THE BANYAN TREE: VOLUME II - BRINGING CHANGE - LAWS AND LEGAL AID FOR SOCIAL ACTION

( By Editor : Carol Huss )

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Section III

Law Relating To Women

The hand that rocks the cradle rules the world ‘, it is said. But today’s woman prefers to leave her child in a creche and rub shoulders will the man in the working field. However, In India this choice is a deliberate one only in a percentage of case. For the vast majority it is not choice but necessity which compels the women to work and supplement the famly income. Although reading a few feminist magazines may give people an impression that women are freer today and more one the move, the vast majority of women in India continue to live along the lines laid down by Manu.

Women have always been an exploited lot - - exploited in the name of religious, traditional and cultural stereotypes. She is cast into moulds to suit the ideas of men. In the family, generally, when it comes to making important decisions, she has no say at all.

In this section, we shall look at some issues like dowry, sati, rape, etc. which are different forms of exploitation of women. We shall begin by looking at the constitutional rights of women.

Constitutional Rights of Women

General Approach of the Constitution



  1. The Indian Constitution tries to ensure that men and women are treated equally/ with dignity.
  2. Secondly, it notes that in some respects, women have been illtreated, or regarded as inferior, and to remove this, the Constitution allows the State to make special provisions for the benefit of women. (Art. 15 {3}).
  3. The Constitution expects that the State will make special efforts to improve the position of women in society.
  4. The Constitution also expects the State to take steps to prevent the exploitation of women.

The first two are fundamental rights and third and fourth are directives to the State, in the making of laws.

Some Constitutional Provisions


  1. Article 14 provides that the States shall not deny equality before the law, or equal protection of the laws. Article 15 confirms this by instructing the State not to discriminate on the grounds of sex, among other things.
  2. Article 16 prohibits discrimination on the basis of sex in employment under the State.
  3. Article 39(b) ensures equal pay for equal work.
  4. Article 51A(c) provides that it will be the duty of every citizen of India to renounce practices derogatory to the dignity of women, e.g. sati, rape, using and capitalising on the female form, indecent assault, etc.
  5. Article 21 gurantees protection of life and personal liberty. In connection with this, the Supreme Court, in the case of women in police lock-ups lays down certain guidelines on how women in police lock-up should be treated. They are:

    1. separate place of detention should be provided for female suspects.
    2. Female suspects should be interrogated only in the presence of female police officers.
    3. On arrest, the police should inform a relative or friend of the arrested person.
    4. Sessions judges should make surprise visits to police lock ups to ensure that the above are being followed.

Rights to Maintenance

Provisions

Sections 125-128 of the Coe of Criminal procedure, 1973 deal with the right to maintenance. Section 125 confers a statutory right to maintenance to wife and children, and imposes a legal obligation on the husband to:



  1. maintain his wife (if she is unable to maintain herself),
  2. provide shelter to his wife and minor children; and
  3. do the above, by making a monthly allowance, not exceeding Rs.500 p.m.2

When is woman eligible to this right

A woman is eligible when she refuses to live with her husband on the grounds of adultery, cruelty, apostacy, or a second marriage without the first being dissolved. If she leaves her husband’s house wihout a justifiable cause, she is not entitled to claim maintenance. Further, the maintenance will not be given if :



  1. she is living in adultery ;
  2. she refuses to live with her husband, without sufficient cause; and
  3. if they are living separately by mutualconsent.

Enforcement

The right can be enforced in a criminal court or under personal law in a civil court. In a suit in a civil court, an appeal can be made to obtain a decree for an amount commensurate with the status and means of the liable party.

Law on Sati

See box below for an example of the Sati problem.

This incident in Deorala took the whole country by surprise, with its suddenness, the lassitude of the local government officials and the active participation in its glorification by hundreds of people, educated and illiterate alike.

The incident was brought to the forefront mainly because of the efforts of women’s groups and the press.\

Provision against Sati

Till December 14th, 1987 with the introduction of the Commission of Sati (Preventive) Bill, the provisions against commission of Sati were :



  1. The Law enacted by Lord William Bentinck in 1882, under which, "....all persons convicted of aiding and abetting in the sacrifice of a Hindu widow by burning and burying her alive, whether...it be voluntary... or not shall be deemed guilty of culpable homicide and shall be liable to punishment by fine or imprisonment or both."


  2. The Indian Penal Code (IPC) enacted in 1860 did not define Sati as a separate offence. Sati was tried under section 306, which states : "If any person commits suicide, whoever abets the commission of such suicide shallbe punished with imprisonment upto a maximum of 10 years and shall also be liable to fine." Apart from this, whoever attempted Sati was tried under Section 309 1 (Attempt to commit suicide).

    A forcible or coerced sati was tried as a murder/culpable homicide under Sections 299 and 300 respecively. As for persons who participated in Sati rites, each of them was liable to be punished under Section 149 of the IPC, as being members of an unlawful assembly.

    In other words, the IPC, which applies to the whole country was more or less adequate to deal with those incidents that compelled a widow to undergo Sati. However, despite these provisions, the extra ordinary casualness with which the Rajasthan State Government reacted to the barbarous act of Roop Kanwar’s cold blooded murder, makes it appear to be poliically motivated







    An Incident in Deorala Samaj

    4th Sept. : Eighteen year old Roop Kanwar, the young widow of Mal Singh, commits 1987 herself to the funeral pyre of her deceased husband. Once the ceremony is over, the sacrificed woman is considered as ‘Godess’ and the funeral spot becomes a shrine.

    6th Sept : Woman actvists try to meet the Chief Minister Harideo Joshi to demand prosecution, but are turned down.

    9th Sept : Pushpendra Singh (brother of late Mal Singh) who ignited the funeral pyre is arrested.

    16th Sept : The Chunri Mahotsava, consecrating the Sat Sthal is held amidst pressure from womens’ groups and is attended by over 2 lakh people. Meanwhile a wave of admiration and reverence spreads for Sati Maa Roop Kanwar. Young girls in Deorala village began to look upon Roop Kanwar as heroine. Photographs of Roop, sitting on the funeral pyre, with the glowing expression on her face, are being sold like hot cakes.

    18th Sept : The District Magistrate and Superintendent of Police are transferred.

    19th Sept : Union Minister of State, P. Chidambaram visits Jaipur. On the same day, police arrest Sumer singh, father-in-law of Roop Kanwar, and Babu Lall, the priest who peformed the last rites.

    27th Sept : The Prime Minister describes Roop Kanwar’s death as a ‘national shame’.

    14th Dec : The Government introduces the Commission of Sati (Prevention) Bill 1987 in the Lok Sabha 1 which prescribes death sentencefor abetment of commission of Sati. This is done to supplement Section 304 of the Indian Penal Code, enacted in 1860, which includes punishment for commission of sati, but does not define it separately (it comes under suicide) or specify any action against the glorifi-cation of Sati.

    Source : Women’s Link. Dec. 1987, Vol. IV, Indian Social Institute, New Delhi.



  3. Article 51 a (c) of the Constitution enjoins on each of us to renounce practices derogatory to the dignity of women.


  4. As it stands now,

    1. abettment of Sati is a crime, punishable with death of life imprisonment;
    2. Any attempt to glorify Sati invites a sentence of upto seven years and fine upto Rs.5,000. Collectors and District Magistrates have been empowered to remove any temple or structre constructed for the glorification of Sati, and seize funds or property acquired for that purpose.

    It is hoped that these stem steps will deter religious fundamentalistsfanatics from perpetuating the barbaric practice of Sati.


Law on Rape

Rape is not just a crime- it is a sacrilege to the dignity of womanhood. The Indian Law on rape is essentially a law which looks at the issue of rape from the male viewpoint. In other words, it is lacking in sensitivity to the cry of women for justice and compassion and understanding. Rarely does a woman who is raped, report to the police. One has only to read the law on rape, and to witness the treatment meted out by the police officials, to understand why this is so.

What constitutes the crime of Rape?
According to Section 375of the IPC, when a man has sexual intercourse with a woman.........



  1. against her will ;
  2. with her consent, when her consent has been obtained by putting her/any person in whom she is interested, in fear of death or hurt;
  3. with her consent, when he by deception, makes her believe that he is her lawful husband;
  4. with her consent, given on account of her unsoundness of mind, or intoxication, which she is incapable of understanding the consequences of her consent; or
  5. with or without her consent, when she is under sixteen years of age;....he is said to have committed rape.

In any case of rape, the prosecution has to prove that :



  1. the man who did it was the accused; and
  2. the act was done against her will or that she was below 16 yrs.of age ( in this case, a birth certificate is necessary).

The usual stand taken by the defence is that the woman consented, that she was of loose morals,or that she did not shout for help, or there were no injury marks found on her body. The law requires that there should be some marks on the woman’s body to prove that she did put up a show of resistance. In the case of Mathura, a fifteen old Harijan girl who was raped by tow policemen in the police station, the Supreme Court acquitted the offenders on the ground that there was no mark of injury on her body, and that she did not cry out for help, which meant that she consented to it. This was challenged later by women’s organisations, but because of the time gap, the review petition was rejected. (However, the two policemen were later convicted by the Nagpur Bench of the Bombay High Court).

What should a victim of rape do?



  1. Get herself medically examined immediately, and keep doctor’s report.
  2. Preserve condition of place where rape took place.
  3. File an FIR in the nearest police station giving exact details of the incident, and demand a copy of the FIR, free of cost. You can write and file the FIR if the police refuse to take down your report.
  4. Also file a written complaint to the nearest Magistrate of your locality in order to ensure immediate order of investigation by the police.
  5. Take a lawyer with you to the police station.
  6. Keep all the objects obtained from the accused, e.g. cloth, watch, spectacles, pen etc.
  7. The rape victim should strictly avoid taking bath after rape, in order to preserve the evidence.

One can readily appreicate that a woman who has just undergone the trauma of rape is not in a proper state of mind to do all the above, yet the law does not seem to appreciate this.

Punishment

Rape is a cognizable offence triable by the Court of Sessions alone. It comes under Section 375 and 376, as now amended by the Criminal Law Amendment Act, 1983. Prior to 26th December, 1983, rape trials in court used to conducted openly. Now the new i.e. Sec.327 (2) of Criminal Procedure Code, provides for ‘Camera Trial’ and it has been made unlawful for any person to print or publish or disclose the name of the rape victim without prior permission of the court. (Sec. 327 (3) or Cr. P.C.)



  1. Under the new law, the punishment for rape is not less than seven years of imprisonment, but it may extend to life imprisonment, or a term which may extend upto 10 years, and the accused shall also be liable for fine.
  2. The punishment for raping one’s own wife, who is below 16 years is two years’ imprisonment, or fine, or both.
  3. Rigorous imprisonment of ten years which may even extend to life, alongwith fine, is imposed on the following persons committing rape:



    1. police officer in charge of a police station;
    2. any public servant;
    3. any staff of a jail or remand home having control over its inmates;
    4. any staff of a hospital, including doctors or other persons, in charge of patients;
    5. any person committing rape on a pregnant woman;
    6. any person committing rape on a woman under 12 years of age, &
    7. any person of a gang, committing gang rape.

    In case a court imposes a sentence less than the minimum, it must record its reasons for doing so. This is to allow the appeal court to appreciate the reasons for imposing a lesser sentence. (See also boxes below)







    Case of a rapist who was awarded life imprisonment - the maximum punishment prescribed under the law

    In a case of rape, (Prem Pal Vs. Union of India, Delhi Adminstration) the accused, a 23 -yr- old junk dealer, of West Patel Nagar, West Delhi, had been convicted, on 14 July 1983, by S. M. Aggarwal, Additional Sessions Judge of Delhi, under Section 376. He was accused of raping a 4-yr-old girl of his neighbourhood in a public latrine, while she was returning from school. Rejecting the plea for probation, advanced advanced by the defence the Judge sentenced him to life imprisonment.

    This is the first case of its kind in the country where a rapist has been awarded life imprisonment - the maximum punishment prescribed under the law.

    Source : P. D. Mathew. The Law on Rape (ISI Booklet No.11) ISI, New Delhi, 1985.


    Landmark Judgement


    In case (Bhardada B. Haribhai vs. State of Gujarat, AIR 1983 SC 753) concerning a government servant’s conviction for assaulting two minor girls and raping one of them, the Supreme Court in its judgement on 24 May, 1983, reaffirmed that corroboration is not essential for conviction of rape.

    The Court has ruled that in India, it is rare for a woman to make false accusation of rape because in reporting the crime of rape, she has to suffer a serious embarrassment and public humiliations; especially during cross-examination in court and medical examination, and the publcity given by the press. In he circumstances, the court has held : ‘ Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society’.

    The above case involved a Government employee in Gandhinagar, Gujarat who assaulted two girls aged 10and 12 yrs. One girl escaped, but the other, according to medical evidence, (and by confession) was assaulted. The local women’s organisation took up the matter and filed a criminal case against him. He was convicted by the Sessions Court, and later by the High Court which confirmed the sentence.

    N.B. : Since corroboration is not compulsory in the law, the court may accept the uncorroborated evidence of a woman, but it must be prudent in accepting it.

    Souce: Ibid p.11



  4. A husband who indulges in forcible sexual intercourse with his judicially separated wife(i.e. living separatelyunder an order of judicial separation) is punishable with imprisonment for two years and fine.

Right of self defence
Sec. 100 of the IPC confers upon a woman the right to defend herself if any person :



  1. assaults her with the intention of committing rape; or
  2. assaults her with the intention of gratifying unnatural lust.

In the exercise of the right of self defence, a woman can go to the extent of killing the assailant or the aggressor and she would not be liable for murder or manslaughter.

Suggetions for changes in the law, recommended by the Law Commission


  1. The present definition must be amended to include, ‘fear of injury, either to body,mind, reputation, or property’ as reasons for submitting to sexual intercourse.


  2. Age of consent by a woman must be raised from 16 to 18, keeping in line with the minimum age of marriage. Similarly sexual intercourse by a husband with his wife who is below 18 years should be considered as rape.


  3. A woman should have a right to be accompanied by her relative or friend, when called in the police station, to make statements.


  4. Except in unavoidable circumstances, a woman should not be arreestd after sunset or before sunrise.


  5. A arrested woman should not be detained except in a place of custody meant exclusively for women, In the absence of such a place, she must be detained in an institute meant for welfare of women.


  6. An officer-in-charge of a police station, who refuses to record the statement of the commission of a cognisable offence, reported to him, should be punished with imprisonment upto one year, or fine, or both.


  7. Except in rare cases, a victim of rape should not be questioned in cross-examinaion about her past sexual experience.

Dowry

On 4th February, 1988 a very shocking incident took place in Kanpur. Three sisters, Poonam, Kamini and Alka committed suicide. The reason? To relieve their parents from their dowry debts!

Dowry was abolished by the Dowry Prohibition Act in 1961, but the fact that more than 20 years later, dowry is still a burning issue, is a sad commentary on the implementation of the law.

In 1986, the Anti Dowry Act was amended to include punishment of husbands/inlaws who demanded dowry or inflicted cruelty and torture, with imprisonment upto five years and fine which shall not be less than Rs.15,000. If any woman dies an unnatural death within seven days of her marriage, her death will be taken as a diwry death, inviting the death sentence, as per Sec.304B of the IPC. (See also box below).







Demand for dowry amounts to cruelty : Supreme Court

(Hindustan Times, New Delhi Nov. 18, 1987)

The Supreme Court on November 18 expanded the scope of ‘cruelty’ in matrimonial cases when it ruled that even demand for dowry amounts to cruelty, entitling the wife to get a decree for dissolution of the marriage. Mr. Justice B. C. Ray and K. J.Shetty recommended that the evidence of harassment of the wife to meet any unlawfuldemand for money amounts to cruelty in law. The present judgement is a fallout of a civil petition and a special leave petition moved by Mrs. Shoba Rani a post graduate in biological sciences, challenging the High Court judgement, denying her decree for divorce, on the ground that there was no satisfactory evidence that the demands for dowry were such as to ‘border on harassment’. She was also described by the court as being ‘hypersensitive’.

However, when the Supreme Court admitted the wife’s allegation that her busband demanded money from her, the Supreme Court regretted the High Court’s handling of it, after examining a letter in which the husband had himself admitted to the petitioner,i.e. his wife, that his parents, demanded dowry, which according to him was ‘nothing wrong’.

The Supreme Court, while criticising the High Court’s attitude, said: ‘It was not proper to discredit the wife as hypersensitiveor prone to exaggeration....it would be judging the wife by our style of manners, which we cannot apply. We must try to understand her feelings and then search for the nugget of truth in the entire evidence’.

Source : Legal News & Views. Vol. No.ii (1 Jan. 1988)p.9

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