1. Violence against women in India
“In childhood a female must be subject to her father, in
youth to her husband, when her lord is dead to her sons. A
woman must never be independent” (Manu V. 145)
Violence against women in India isn’t just a current issue,
but rather has deep seated traditional roots in the culture. In
order to combat the problem, we must understand its
causes.
In India, the problem of violence against women is a result
of a long standing power imbalance between men and
women. Men have control over access to property and
resources. There is also a sexual division of labor in India
that results in female exploitation–physically, mentally, and
commercially.
Oppression in India
Women in India are subject to all forms of violence. Female
infanticide is quite common in Haryana and Punjab because
there is a preference for sons because male children carry
on the family lineage. The education of sons is also
considered much more important. In these two states, the
sex ratio is lower than the national average.
Discrimination within the household
Within the household, there exists gender discrimination
which determines intra-household distribution of food.
Because women and girls are given less food than men,
malnutrition among adolescent girls and women is quite
prevalent in India.
Lack of opportunity to work

2. Due to lower educational levels, a woman has a much lower
capacity to earn. Women from upper castes are seldom
allowed to work outside the home. However, work
participation rate among low caste women is better
compared to that of upper caste women.
Honor killings
Honor killings are quite common in Haryana and Tamil Nadu
when young girls marry somebody outside their caste and
clan against her family’s wishes.
Women as property
Dowry is demanded from the husband’s side (in-laws) when
younger women get married. Newly married women become
subject to verbal and physical abuse. In many cases, young
brides are burnt to death by her in-laws if the parents fail to
meet the requisite dowry demanded. Women are also
viewed in terms of their virginity, as chastity is considered
as a great virtue.
In terms of family planning, women have been used as the
subjects of experiments. Governments promote
contraceptives to lower fertility among women, at the behest
of multinational corporations and the corporate sector,
without thinking about their consequences. Population
control and family planning is considered a way to control
women’s sexuality.
Data on violence against women
In a country like India the data may show that such crimes
being committed may be going up or down. But in reality,
women are afraid of even lodging FIRs (First Information
Report) in police stations despite being raped or sexually
harassed. The judiciary and the legal system are biased in
favor of men. Cases of violence against women are under-
reported.

3. According to the latest National Crime Records Bureau 2007,
a total of 1,85,312 incidents of crime against women (both
under Indian Penal Code-IPC and Special and Local Laws-
SLL) were reported in the country during 2007.
The total numbers of sexual harassment cases were 10,950
in 2007. The total number of cases pertaining to cruelty by
husband and relatives was 75,930. There were 61 cases of
importation of girls. Altogether there were 38,734 cases of
molestation in 2007.
The number of rape cases has increased by nearly ten fold
from 2487 in 1953 to 20737 in 2007.
What can be done
When women protest against their exploitation, many try to
silence them. The experience of Bhanwari Devi, the ‘sathin’
from Rajasthan, is a case in point. She was gang-raped for
working against child marriage practiced by the upper castes
in her village.
According to the NCRB (National Crime Records Bureau)
2008, respect for women seem to be the worst in Andhra
Pradesh, which accounted for 83.5 per cent of cases under
Indecent Representation of Women (Prohibition) Act of total
cases across the country. Out of a total 1,200 such cases,
Andhra had registered 1,005 incidents in this regard. The
NCRB data clearly points to the profile of the average rapist
– over 75% were known to the victims. In fact, nearly 10%
were relatives. Another disturbing aspect was that about a
quarter of the rape victims were minors.
During the Fourth World Conference on Women held in
Beijing in September 1995, the United Nations Secretary-
General, Boutros Boutros-Ghali, said that violence against
women is a universal problem that must be universally

4. condemned. The United Nations has termed violence against
women as a gross violation of human rights.
The theme of violence against women surrounding
marriages or relationships (even outside any relationships)
has become a serious issue in post modern India. Crimes
against females start when the child is born and if she is not
murdered then continue all through her adolescent age and
marital life. The most common forms of violence against
women and girls are Female infanticide, Child beating, Bride
burning, Dowry deaths, Honour killings Domestic violence,
Sexual harassment or Sati. The State has tried to tackle
these crimes by legislative action since the beginning of the
20th century. But the violence against women has not
shown any signs of abatement. Our Constitution
unequivocally grants to the woman a place in the society
equal to that of men by giving them equal rights of work,
wages and vote. But man, his mind attuned to the notion of
woman as chattel, is hitting hard at woman’s assertion of
equality and dignity.
The main reasons attributed to the rising violence against
women are the failure of the existing law and that of the law
enforcement agencies to effectively deal with it. Though the
status of the women has risen in the society, the rate of the
crimes has risen and has taken hybrid forms. Among many
reasons attributed to the failure, we are most concerned
with the approach of the legal machinery towards crimes
against women. Over the years the Indian State has enacted
general as well as specific provisions to deal with this
menace. But a patriarchal umbrella covers these laws
making them female insensitive. An ideal law should not
only have substantive but procedural fairness as well. A
critical evaluation of the different legislations to curb the
menace have gaping holes in the approach of the legislature
as well as the judiciary.

5. Rape
. Rape in ordinary jargon means intercourse with a woman
without her consent, under fear or fraud(Legally defined Sec
375 of IPC).Feminist organizations have defined rape as an
act of hate and contempt and the assertion of male power in
a patriarchal society. rape law miserably falls short of
taking into account various situations which may deprive the
woman of her power to consent to an act of sexual
intercourse. Thus rape laws in India are archaic in nature
and fall short of protecting the women. The two most glaring
examples of lacunae in the law are Marital Rape and Rape by
women.
Marital Rape
In common law the institution of marriage is greatly
influenced by the Roman Law. Marriage in Roman Law was a
privilege of the Roman citizens for it was closely connected
with the concept of property. This being the reason, the
slaves or Junian Latins (slaves freed after manumission)
were prevented from being married to the Roman women.
[4] However it must be noted that in Roman Law a woman
had no legal rights and to prevent any diversion of property
vested in her by virtue of being in her father’s manus , the
husband had the absolute right to conjugal relations with his
wife. The notion of consent was absent. She was totally
subjected to the whims and fancies of her husband as he
held the position of her tutela (similar to the modern day
concept of guardian).[5] This gave foundation to the concept
of woman, as a property or chattel, with no will of her own.
[6] Therefore a married woman was really a part of her
husband’s property, so that forced sexual intercourse was
merely a way by which the husband was making use of his
property. Blackstone puts it neatly by saying that the very
being of the woman is suspended during the marriage, or at
least is incorporated and consolidated into that of her
husband, under whose wing, protection and cover she
performs everything.[7]

6. The Common Law Position
Until 1991, in England, non-consensual intercourse between
man and wife was not “unlawful” (being understood in this
context to mean “outside of marriage”) sexual intercourse
which fell within the definition of that act contained in
section 1(1) of the Sexual Offences (Amendment) Act 1976
(now itself amended). The Law Commission in England, in
1991, made its case on the basis that modern marriage is a
partnership of equals and rape is no-consensual intercourse,
and women are entitled to refuse to have sexual intercourse
on any particular occasion. The Law Commission considered
and rejected all the objections normally raised to the
criminalization of rape in marriage as irrelevant to the fact
that rape is a crime.[8] The House of Lords in R v. R [9] held
that there is no ‘marital exemption’ to the law of rape and
accordingly the husband may be convicted of the rape of his
wife, if she does not consent to intercourse regardless of
whether he is living with or apart from his wife. This view
now has been consistently followed in a number of English
decisions.[10] In Australia also marital rape is no exception
to the offence of rape.[11]
American Position
American Criminal Law has also adopted the Common Law,
so far as the husband’s immunity from the offence of rape is
concerned. Different jurisdictions have different degree of
punishments but the position is common that marital rape
exemption is unconstitutional in law.[12]
Indian Position
Rape is defined under Section 375 of IPC. [13] The section
itself provides an express exception by virtue of which
sexual intercourse with the wife does not qualify as rape.
Marital rape is punishable only when the wife is between
12-15 years of age or if the rape is committed on the wife
who is judicially separated. Indian Law prima facie does not
recognize marital rape to be an offence if the wife is over 15

7. years of age. On analysis of Sections 375 and 376 of the IPC
one finds that in India, law is still possessed by the phantom
of patriarchy. The legal system still seems to be
retrogressive. Rape is only a ground for divorce. Under the
Hindu Marriage Act, 1955,[14] the Special Marriage Act,
1954[15] and Indian Divorce Act, 1869[16] rape is a wife’s
special ground for divorce. Under the Parsi Marriage and
Divorce Act, 1936 fornication and rape are special grounds
for divorce for wife.[17] Courts in India and abroad have
been expanding the traditional legal definition of rape to
include both custodial and marital rape. In Bodhisattawa
v.Gautam[18], the Supreme Court said that rape is a crime
against basic human rights and is also violative of the
victim’s fundamental rights, but refused to recognize marital
rape. The case of marital rape suffered a serious setback
when a two judge bench of Supreme Court in discussing
marital rape held that foreign precedents need not to be
relied upon to change the law which has been followed
consistently for the last 50 years.[19]
It is to be understood that Rape per se means ‘sexual
intercourse without consent”. It is an extremely dangerous
crime which threatens to not only physically hurt a woman
but mentally traumatize her. Thus Rape should not be
isolated in law but should also be contextualized in the
domain of sexuality.[20] There is a need for the law to
accept that all rape is rape –even if it is not by a stranger.
[21] If husband insists on having sexual intercourse with his
wife and causes grave injury or danger to life, limb or health
of the wife such a conduct amounts to cruelty to her. It must
now be recognized that if the husband during sexual
intercourse with his wife treats her with cruelty as defined
under the IPC, the conduct shall be punished as amounting
to rape as protection of life and limb is the principal function
of the criminal law. A husband does not have an absolute
right to enjoy the person of his wife without regard to the
question of safety to her, and if he does so, the conduct
should be punishable. If one adopts the liberal interpretation

8. of 498A it can be reasonably be said that the rape amounts
to cruelty as defined in that section. It easily conforms to
the definition of mental and physical torture.
Rape By Woman
It is of utmost disappointment that the laws in India
regarding women have not progressed with time. They are
extremely pedantic and narrow in their approach and the
attitude of the judiciary also has not helped the cause. The
injustice to the woman cause is observed in the rape clause
which exempts a woman committing rape on other woman.
A bare reading of Section 375 makes it clear that rape can
be committed by a man only. The Supreme Court in Priya
Patel v. State of M.P.[22] held that it is conceptually
impossible for a woman to rape another woman. Justice
Pasayat stated that when one or more persons act in
furtherance of their common intention to rape a woman,
each person of the group shall be deemed to have
committed gang rape. The sine quo non for bringing in
application of S. 34, I.P.C. is that the act must be done in
furtherance of the common intention to do a criminal act.
The expression ‘in furtherance of their common intention’ as
appearing in the Explanation to S. 376(2) relates to
intention to commit rape. A woman cannot be said to have
an intention to commit rape and thusa woman cannot be
held guilty of committing rape.
This judgment no doubt shows the lack of conceptual clarity
in the judicial mind when it comes to the offence of rape. If
in a case a woman had held woman and facilitated the
commission of rape then it would have clearly fitted the bill
of gang rape. But by holding that it is conceptually
impossible for a woman to commit rape or help the others
committing rape, the Supreme Court have closed doors on
liberal and just approach to rape laws.

9. Honour Killings
Honour, a wide ranging masculine concept underpinning
patriarchal practices in India across all castes, is the one of
the most valued ideals in the sub continental patriarchies,
whether Hindu, Sikh or Muslim – with most communities
seeking to gain and maintain ‘honour’. Quite ironically in the
patriarchal societies women are the repositories of this
‘honour’.[23] Violation of the marriage codes is regarded as
an attack upon the ‘honour’ or ‘prestige’ and the action to
uphold this honour is obviously a male prerogative. This
action translates itself either into either physical or mental
trespass.[24]
Run Away Marriages
In the extremely gender biased caste and religiously
polarized society of the country, “eloping” has become quite
a norm. It is observed that immediately after a young couple
‘elopes’, the criminalization of their action and the
contestation of the validity of the marriages begins. First,
the father of the woman alleges that she is a minor, and
files charges against her husband of kidnapping/abduction,
wrongful confinement and often rape. Subsequently the
police vigorously searches for the ‘kidnapped girl’ leading to
arrest of the boy’s family members. The social pressure
exerted on the couple forces them to come out of hiding and
the criminal justice system brings the ‘errant’ children to
task. In the case of Ravi Kumar,[25] 16 year old girl fell in
love wth a vegetable vendor and got married to him. The
elder sister of the girl, who was the only earning member of
the family, filed a complaint in the police station. The police
found the couple and on the girl’s refusal to leave her
husband, the police put her in Nariniketan because the
police believed that she might be manipulated by her in laws
with whom she was residing The court in this case was
sympathetic to the cause of the girl and quashed the
charges of kidnapping and abduction against the boy.

10. At the heart of this dispute of elope marriages lies the claim
of two men for the custody of the women. Thus the judges
first settle the question of custody and the authority of
‘natural’ guardians.[26] Thus at this stage we see the
extereme marginalization of women who are treated as
nothing but mere property of either father or husband. The
party seeking the custodyof the women moves a habeas
corpus petition. In Mohd. Ikram Hussain v. State of Up
[27]the Supreme Court highlighted an important dimension
to this contest over custody, namely that a habeas corpus
petition for such a purpose in not available for a man
charged with kidnapping. Rather, the only remedy available
to such a person is to establish the ‘factum’ marriage and
then seek retrieval through restitution of conjugal rights.
Another line of reasoning naturalized in judicial discourse is
the idea that a woman who has been in the custody of her
chosen partner is under coercion and not in a position to
make an independent decision; therefore before determining
the case she must first be put into the supposedly protective
custody of the state. Conversely, a woman in the custody of
her parents is not recognized as subject to any form of
coercion or pressure: there is a natural bias in favour of the
parents, who, as far as the judicial system is concerned,
could never be acting against her interest. At the same there
have been instances where the Courts have worked to
establish the autonomy of the woman. In Jyoti alias Janat
and Another v. State of UP [28], the court held once a
person becomes a major he or she cannot be restrained
from going anywhere or living with anybody and any act
restraining them will be violative of Article 19 of the Indian
Constitution.
Dowry And Dowry Related Offences
One of the crudest and cruelest form of domestic violence
stems from “dowry” – a dreadful evil which has become a
part of Hindu social life. Today Dowry has pervaded all the
communities and threatens to destroy the social fabric with
which the Indian family is woven. The tradition of dowry

11. started in the form of “Vardakshina” which used to be given
by the parents of the bride to the bridegroom out of love
and affection and to honour the groom rather than to induce
him to take the bride[29]. Later on in the hands of lords and
kings[30] it became the symbol of status and prestige to
assert one’s superiority over others and dowry emerged as
an unintended consequence of the above social practice.[31]
Before independence, the effort to control the dowry evil
was made in the then province of Sindh by enacting the
Sindh Deli Leti Act, 1935. Free India enacted its first statute
in 1961, the Dowry Prohibition Act, 1961. This statute
proved inefficient and a Joint Parliamentary Committee was
constituted, on whose recommendation the Act was
amended twice in 1984 and 1986.[32] The committee
highlighted the inefficiency of the act and recommended IPC
provisions to deal with the situation. Section 498A and
Section 304B which came as a result of the recommendation
have been discussed in the subsequent sections.
Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961 is a short act with only 10
sections with the express objective to prohibit giving or
taking of Dowry. Under the Dowry Prohibition Act the
definition of dowry is extremely wide covering situation
before, at the time and after the marriage. [33] However,
one observes that it has been the utmost failure of both the
judiciary and the legislature in not giving an exact definition
of Dowry. But this problem is not one of competence but of
complexity of the issue.[34] Moreover, the courts have
made the words “to be agreed redundant” in L. V. Jhadav v.
Shankarrao Abasaheb pawar and others.[35] Another major
problem faced by the courts is distinction between stridhan
and dowry.[36] Stridhan is a type of property over which the
woman generally has full rights of ownership. It mostly
consists of items which are given to her during the time of
her maidenhood, presented at the time of her marriage or
after the marriage.[37]But in the case of Prathiba Rani v.
Suraj Kumar[38] the SC held that whatever is given to the

12. bride at the time of the time of marriage constitutes dowry.
Though this destroys the distinction between stridhan and
dowry but in the opinion of the researcher since the line
between the two is extremely thin, there is no other
recourse available to the courts.
Section 304B[39]
Dowry Prohibition Act, 1961 is only an act to prevent the
taking or giving of dowry. The penal sanction for giving or
taking of dowry is only five years and it prescribes no
punishment for dowry deaths. More so dowry deaths were
more or less characterized as suicide.[40] Section 304B,
which falls under the heading “Offences affecting a human
body”, devises a mechanism for punishing dowry death.
Under this section minimum sentence is seven years
punishment which may extend to punishment for life. Dowry
related deaths are also concerned with Sections 299, 300,
302, 304, 306, 307 of the Indian Penal Code. Section 304B
applies not only when death is caused but also when death
occurs naturally whoever might have caused it. Though
there is no definition of cruelty in 304B, but it is borrowed
from 498A since they have a common background.
A careful reading of the S.304B leads us to conclusion that
words “…..it is shown that soon before her death she was
subjected to cruelty or harassment….” are of significance
because the initial burden of proving that circumstances
which are essential for proving an offence under S.304B did
exist is on the prosecution. If this is shown or established,
the question of presumption u/S. 113B of the Evidence Act
would arise. Going by the conventional standard it may be
harsh but looking at the problem at hand it seems an
appropriate measure. Generally dowry death is committed
within four walls of house where bride is in helpless situation
thus the Indian Parliament was left with no alternative but in
order to save hundreds of innocent girls from death and of

13. course to punish such criminals it had to enact the provision
for such presumption.[41]
Limited Application of 304B
It is to be noted that Section 304B is used only in the cases
when there is a death within seven years of marriage.
Section 304B loses its applicability after that. In State of
Punjab v. Iqbal Singh and others[42]it was observed that
period of seven years is considered to be the turbulent one
after which the legislature assumes that the couple would
have settled down in life. The section only deals with the
situation that the where there is a death. If it does not result
in death but then Section 498A applies which is discussed in
the next section.
Section 498A[43]
Section 498A of the IPC was introduced in the Indian Penal
Code by Criminal Law (Second Amendment) Act, 1983 for
protection of the women inside the matrimonial home. This
section was enacted to comprehensively cover instances of
wife beating, bride burning and cruelty of different degrees
and variations directed against women. The statement of
objects and reasons of the said amending act referred to the
increasing number of dowry deaths which was a matter of
serious concern. The extent of the evil was commented by
the joint committees of both the houses to examine the
working of the Dowry Prohibition Act 1961. It was found that
cases of cruelty by husband and relatives of the husband
which culminate in suicide by, or murder of, the hapless
women concerned, constitute only a small fraction of the
cases involving such cruelty. An offence in the nature of
abetment to suicide may also attract the provisions of
Section 306, IPC, which was already in the statute book. It
was therefore proposed to amend the Indian Penal code,
1860, Code of Criminal Procedure 1973 and Indian Evidence
Act 1872 to effectively deal with not only the cases of dowry

14. deaths, but also the cases of cruelty to married woman by
their in laws. This resulted in the introduction of 304B to
deal with dowry death and 498A to deal with cruelty to
women. Section 113A introduced in the Indian Evidence Act
by this amendment raises a presumption against the
husband or the relatives of the husband for the abetment of
suicide by a married woman within a period of seven years
of her marriage if she has been treated with cruelty by her
husband or such a relation to coerce how to fetch more
dowry or on her refusal to do so.[44]
Cruelty: Meaning
It is observed thorough judicial decisions that the definition
of cruelty is constantly in flux. The concept of cruelty varies
from place to place and individual to individual and
according to the social and economic status of the person
concerned. Therefore, to decide the question of cruelty the
relevant factors are the matrimonial relationships between
the husband and the wife, their cultural and temperamental
status in life, state of health, their interactions in their daily
life which dominate the aspect of cruelty.[45] The
expression ‘cruelty’ postulates such treatment as to cause a
reasonable apprehension in the mind of the wife that her
living with the husband will be harmful and injurious to her
life.[46] Cruelty covers both mental and physical cruelty
against the wife.[47] The Supreme Court in Pawan Kumar v.
State of Haryana[48] has held that cruelty and harassment
need not be physical. Mental cruelty can be broadly defined
as that conduct which inflicts upon the party such mental
pain and suffering as would make it not possible for the
party to live with each other.[49]Mental cruelty means,
when other party causes mental pain, agony or suffering of
such a magnitude that it severs the bond between the
husband and wife.[50] It is observed that the definition of
cruelty has constantly been expanding. This trend has its
pros and cons.

15. It is submitted that while the expanding definition has given
increased protection to women in matrimonial homes, it has
also been misused by victim wife to unnecessarily implicate
the relatives of the husband. Inflated and exaggerated
complaints are filed against each and every relation and if
any one of them happens to be of higher social standing, he
or she becomes an easy prey for bargaining and
blackmailing. The threat grains credibility because of the
cognizable, non-compoundable and non-bailable character of
the section. The courts have exhorted the law enforcement
agencies to guard against such covert misuse and
investigate the matter sensitively.[51]
Sentencing
There is no compulsion that a jail sentence must be awarded
and it is for this reason that the option of awarding either a
jail sentence or a fine or both is left to the discretion of the
court. If it appears to the court that on an overall view of
the case a jail sentence would serve the ends of justice,
such a punishment would be in order. The court can merely
order the payment of fine also.[52] Moreover the fact that
the accused is neither a habitual offender or does not have
any criminal record is no defense to lenient punishment
because in most cases the husband does not have a criminal
record.[53] Keeping in mind the atrocious nature of the
crime and obvious repercussions on the woman and society,
the courts have pronounced severe punishment so that it
may have deterrent effect.
Limited Application of 498 A
Section 498A only applies to the situation where the woman
who has been treated cruelly satisfies the criteria of wife in
125 of Cr P.C. If on the date of the alleged cruelty, the
informant or the victim ceased to be the wife of the accused
the FIR as well as the charge sheet is liable to be quashed.
[54] Moreover by the usage of the words ‘marriage’ and
‘husband’ in 304B and 498A, restricts the usage of the
section to only marriage which is valid in law.[55] If the

16. prosecution produces evidence indicating at the fact that the
woman was only residing with the accused but no evidence
regarding the marital status, then the criterion of Section
498A are not fulfilled.
Non Compoundability
The author submits that the purpose of the 498A is to
protect women and not destroy matrimonial homes. The non
compoundability nature of this section threatens to shake
the foundations of the marriage which is regarded as
sansakara since time memorial. If the parties decide to
settle their disputes amicably to salvage the marriage or
decide to put an end to the marriage by mutual divorce,
they should be allowed to compound the offence so that
criminal proceedings don’t chase them. Justice Malimath
Committee has reported that the offence being non-bailable
and non-compoundable makes an innocent person undergo
stigmatization and hardship.[56] Thus it is suggested that if
the woman lodging the complaint feels that reconciliation
can be reached, the Courts should oversee the matter and
allow for such an amicable settlement.[57]
Distinction between Section 498A and 304B
The distinction between the two sections was discussed in
Smt. Shanti and Another v. State of Haryana. [58] The
court held that these two sections are not mutually exclusive
but they deal with two separate offences. Section 498Ato
some extent overlaps with Section 304B but it cannot be
said that sufficient provision has been incorporated in the
Penal Code in the shape of section 498A so as to deprive the
law court from recording the conviction under 304B read
with 126 of IPC. The ingredients of S 304B are totally
different from 498A. Since 304B only applies in the case of
death and within a fixed period i.e. 7 years its scope is much
lesser than that of 498A.

17. Conclusion
The above discussed problems of the social legislations
dealing with the problems of women leave one in disturbed
state of mind. Undoubtedly, in a society that seems to treat
issues of the welfare of women too casually, some stringent
measures are necessary to keep in check the unscrupulous &
unbridled male of the specie. Women have suffered ages of
extreme discrimination and isolation. The foregone
discussion clearly indicates the manner in which the criminal
law in India is still in the patriarchal clutches. It was seen
how rape laws meant for the protection of women are not
able to remedy certain situations which have gained
prominence in recent times. The greatest danger the women
faces with respect to violence is in her home and dowry
demand still exists in most homes in India. The current
legislation has not been able to remedy the wrong which has
existed in this country as a result of patriarchal hegemony.
Though stricter penal laws in the IPC have helped the cause
but it is a still a long way ahead to completely get rid of the
evil.
This acute problem that has pervaded all spheres of our
social life requires comprehensive legislative action with
focus on women crimes. The laws are outmoded and need a
definite change if we are to achieve our twin Constitutional
objective of justice and equality. The judiciary needs to play
its part in interpreting the laws in favour of the women.
Moreover, the state has every right to enter the private
realm of home if great injustice is being done behind closed
doors of home. The legislature needs to take up relevant
issues and deal with contemporary problems instead of
relying on old legislations. The problem requires a
comprehensive law covering all the aspects of the crime, like
preventive punishment, legal procedure and social
safeguard.
[1] V Suresh and D Nagasaila, PSA Pillai’s Criminal Law, 9th
edition, (New Delhi: Butterworths India, 2000) at 720.

18. [2] Richard Card, Criminal Law, (London: Butterworths,
1995) at 237.
[3] Ratna Kapur and Brenda Cossman, Subversive Sites –
Feminist Engagements with Law in India, (New Delhi: Sage
Publications, 1996) at 61.
[4] A. M. Prichard. Leage’s Roman Private Law (London:
Macmillan & Co. Ltd., 1961) at 96.
[5] This can also be inferred by looking at the laws relating
to succession and the offence of adultery
[6] Therefore the question of her consent didn’t arise, even
in matters relating to her.
[7] Blackstone, Commentaries on English Law- Vol. I , 1844,
at 442.
[8] Joni Lovenduski & Vicky Randall, Contemporary Feminist
Politics (Oxford: Oxford University Press, 1993) at 330.
[9] [1991]1 All E.R. 747 (The brief facts of this case were as
follows: The husband and wife had been married in 1984 but
son separated in October 1989 because the wife complained
that she was being forced to have sexual intercourse. The
wife left the matrimonial home with her children and went to
her parents’ house. Two days later the husband phoned the
wife and told her that he was going to seek a divorce. The
following month the husband broke into the parents’ home
and either forced the wife to have sexual intercourse or
attempted to do so, that being an act, which formed the
basis of the charge against him).
[10] R. v. C, [1991] 1 All E. R. 755 (In the course of the trial
of two defendants, who included the husband of the victim,
on charges of kidnapping, rape, aiding and abetting rape
and buggery committed against the wife of one of the

19. defendants, the trial judge, Simon Brown J., was asked to
give a ruling on whether the defendant husband could be
guilty of the offence of raping his wife. The husband was
living apart from his wife at the time of the alleged offence
but there was no formal separation agreement. The
defendants were alleged to have abducted the wife and to
have them committed the sexual assaults, which were the
basis of the charges brought against them. Although the
defendants were acquitted on the charge of rape, the ruling
on Marital Exemption in this case is a landmark in the law of
rape). Also see S. v. H.M. Advocate, 1989 S.L.T. 469.
[11] R. v. L, (1991) 174 CLR 379.
[12] Delaware classifies rape into two categories. Rape in
the first category is in the first degree if the victim is not the
defendant’s voluntary social companion on the occasion of
the offence and has not previously permitted him to sexual
contact. Marriage or previous sexual contact, however,
reduces the offence to second degree. In 1977, Oregon’s law
was changed to create a new offence called, ‘Sponsol Rape’,
one that could be committed only by a husband against his
wife. Nebraska has also adopted a law allowing a wife to
charge her live-in husband with rape
[13] Section 375 of the Indian Penal Code as “ a man is said
to commit rape who, except in the cases hereinafter
accepted, has sexual intercourse with a woman under
circumstances falling under any of the six following
descriptions”:
Firstly, against her will.
Secondly, without her consent.
Thirdly, with her consent, when her consent has been
obtained by putting her or any person in whom she is
interested in fear of death or of hurt.

20. Fourthly, with her consent, when the man knows that he is
not her husband, that her consent is given because she
believed that he is another man who she is or believes
herself to be lawfully married.
Fifthly, with her consent, when, at the time of giving such
consent, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration
by him personally or through another of any stupefying or
unwholesome substance she is unable to understand the
nature and consequence of that to which she gives consent.
Sixthly, with or without her consent when she is less than 16
years of age.
Explanation.—Penetration is sufficient to constitute the
sexual intercourse necessary to the offence of rape.
Exception.—Sexual intercourse by a man with his own wife,
the wife not being under
[14] Section 13 (2) (ii).
[15] Section 27 (1A)(1).
[16] Section 10
[17] Section 32(d).
[18] AIR 1996 SC 922. Kapur, Ratna, & Khanna, Shomona,
Memorandum on Rape Laws relating to Sexual Offences
(Delhi: Centre for Feminist Legal Research,1996) at 39.
[19] Sakshi v. Union of India, 2004 5 SCC 518.
[20] Naina Kapur, & Kirti Singh, “Practising Feminist Law”,
6-8 Stud. Ad. 32 (1994-1996).

21. [21] Collen Ward, Attitudes towards Rape (London: Sage
Publications, 1995) at 42.
[22] (2006) 6 SCC 263(Prosecutrix was returning by Utkal
Express after attending a sports meet. When she reached
her destination at Sagar, accused-husband of appellant-
accused met her at the railway station and told her that her
father has asked him to pick her up from the railway station.
Since the prosecutrix was suffering from fever, she
accompanied accused to his house. He committed rape on
her. When commission of rape was going on, appellant-
accused his wife, reached there. The prosecutrix requested
the appellant to save her. Instead of saving her, the
appellant slapped her, closed the door of the house and left
place of incident.)
[23] Uma Chakravarti,” From father to husbands: of love,
death and marriage in North India”, Honour : Crimes,
Paradigms, And Violence Against Women at 314.
[24] Hindu woman who had a relationship with a Muslim
man, was dragged out of her house, stripped and killed and
then let on the street as an example to all other women of
the punishment to be inflicted on the women who
transgressed the boundaries of community( Times of India,
19 April 2002). A Hindu girl married to a Christian boy was
forcibly separated from and forced to abort the four month
pregnancy( Indian Express , 8 June 2003).
[25] Unreported.
[26] Kiran Singh v. Anand Pratap Singh, AIR 1980 SC 1749.
[27] AIR 1964 SC 1625.
[28] 2003[2] JIC 468(All).

22. [29] N.R.Madhav Menon, “The Dowry Prohibition Act: Does
the law provide the solution or itself constitutes the
problem?” Indian Bar Review Vol.14, 1987, p.631.
[30] For example the Island of Bombay once formed part of
the Portuguese Dominions in India. In 1661 when Princess
Infante Catherine was married to King Charles II of England,
it was ceded by the King of Portugal to the British Crown as
dowry, cited from, The Collector of Bombay v. Nusserwanji
Rattanji Mistri and others,1955 SCJ 339.
[31] Supra note 29.
[32] The act was also as a result of the strong women’s
movement in late 70’s and early eighties. With the campaign
against dowry, the family as a private domain lost its
significance and was brought into public sphere as a site of
inequality and oppression. The dowry deaths called suicides
came to be redefined as murders.
[33] It is defined as – any property or valuable security
given or agreed to be given either or directly or indirectly –
(a) by one party to a marriage to the other party to the
marriage (b) by the parents of either party to a marriage or
by any other person, to either party to the marriage or to
any other person , at or before or after the marriage in
connection with the marriage of the said party but does not
include dower or mahr in the case of the persons to whom
the Muslim Personal law(Shariat) applies.
[34] See Kunju Moideen v. Sayed mohd, AIR 1986 Ker.48
( Question arose whether money advanced by a person to a
prospective son-in-law for purchasing land in the joint name
of himself and daughter amounts to dowry or not. The court
held that it was not dowry).
[35] AIR 1983 SC 1219 (A dowry demand was made in the
name of expense of sending the bride to her husband to USA

23. where he was working. It was threatened that the marriages
will be discontinued if the money is not paid but nonetheless
certain ceremonies were completed. On the breakdown of
the marriage the bridegroom contended that there was
never any agreement. The court however rejected this
narrow interpretation).
[36] The Act as it may be noted uses the word dowry not in
the sense only what the bride’s parents give to bridegroom
or their daughter’s in laws but also other way round.
Moreover the Act not only applies to Hindu communities but
to all kinds of religious marriages.
[37]Paras Diwan, Law relating to Dowry, Dowry Deaths,
Bride Burning, rape and Related Offences(Universal:1997,
NewDelhi) at16.
[38] AIR 1985 SC 628.
[39] Section 304 B, IPC: Dowry Death – (1) Where the
death of a woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances within
seven years of her marriage and it is shown that soon before
her death she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection
with, any demand for dowry, such death shall be called
“dowry death”, and such husband or relative shall be
deemed to have caused her death.
Explanation – For the purpose of this sub-section, “dowry”
shall have the same meaning as in section 2 of the Dowry
Prohibition Act, 1961.
(2) Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven
years but which may extend to imprisonment for life.
[40] See FN 32.

24. [41] See Gurditta Singh v. The State of Rajasthan, 1992
CRLJ 309 (RAJ).
[42] 1991 CRLJ 1897 (SC).
[43] S. 498A, IPC: A. Husband or relative of husband of a
woman subjecting her to cruelty. – Whoever being the
husband or the relative of the husband of a woman, subjects
such woman to cruelty shall be punished with imprisonment
for a term, which may extend to three years and shall also
be liable to fine.
Explanation. – For the purposes of this section, “cruelty”
means -
(a) Any willful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) Harassment of the woman where such harassment is
with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand.”
[44] SK Sarvalya, RA Nelson’s Indian Penal Code, Volume
4(Delhi:LexisNexis Butterworth, 2003) at 4621.
[45] Sarojakshan Shankarah Nayar and Others v. State of
Maharashtra, 1995 Cr LJ 340(Bom).
[46] Sumangala L Hegde (Smt) v. Laxminarayan Anant
Hegde 2003 Cr LJ 1418 (Kant).
[47] Explanation (a) to Section 498A.

25. [48] AIR 1998 SC 958.
[49] V Bhagat v. Mrs D Bhagat, AIR 1994 SC 710.
[50] S Hanumanta Rao v. S Ramini, AIR 1999 SC 1318.
[51] Kans Raj v. State of Punjab, 2000 Cr LJ 2993(SC);
Savitri Devi v. Romesh Chand , 2003 Cr LJ 2759(Delhi).
[52] Madhuri Mukund Chitnis(Smt) v. Mukund Matand
Chitnis , 192 Cr LJ 111(Bom).
[53] State of Maharasthra v. Vasant Shankar Mhasane, 1993
Cr LJ 1134(Bom).
[54] In this case by the pronouncement of triple talaq, the
couple had ceased to be husband and wife. Azaz Hussain v.
State of J&K, 2003 Cr LJ 2582 (J&K). Also see Syed Hyder
Hussain v. State of Andhra Pradesh 2002 Cr LJ 3602(AP).
[55] Ramnarayan v. State of Madhya Pradesh, (1998) 1 CCR
542(Madhya Pradesh).
Void marriages are defined in Section 11 of the Hindu
Marriage Act, 1955: Any marriage solemnized after the
commencement of this Act shall be null and void and may,
on a petition presented by either party thereto, be so
declared by a decree of nullity if it contravenes any one of
the conditions specified in clauses (i), (iv) and (v) of section
5.
Section 5: Conditions of Hindu Marriage: A marriage may be
solemnized between any two Hindus, if the following
conditions are fulfilled, namely:-
(i) neither party has a spouse living at the time of the
marriage;

26. (ii) neither party is an idiot or a lunatic at the time of the
marriage;
(iii) the bridegroom has completed the age of eighteen years
and the bride the age of fifteen years at the time of the
marriage;
(iv) the parties are not within the degrees of prohibited
relationship, unless the custom or usage governing each of
them permits of a marriage between the two;
(v) the parties are not sapindas of each other, unless the
custom or usage governing each of them permits of a
marriage between the two;
(vi) where the bride has not completed the age of eighteen
years, the consent of her guardian in marriage, if any, has
been obtained for the marriage.
[56] Dr. Ramesh, “ Cruelty as comoundable offence: A
critique”, 2006 3(8) Criminal Law Journal 205.
[57] This approach has been followed by certain High Courts
where the order was given to quash the criminal
proceedings. See Ramesh Kumar v. State 2003 IV AD
377(Del).
[58] AIR 1991 SC 1226 (A young woman was married with
an army man. At the relevant time the husband was posted
outside the city and the woman was constantly taunted by
her in laws. When her relatives tried to talk to her they were
turned out and not allowed to speak to her. Ultimately, it
turned out that she was done to death and her body was
cremated without telling the parents. The High Court held
that Section 304-B and Section 498-A IPC are mutually
exclusive and that when once the cruelty envisaged in
Section 498-A IPC results in dowry death of the victim,
Section 304-B alone is attracted and in that view of the

27. matter the appellants were acquitted under Section 498-A
IPC. This view was not accepted by the Supreme Court).