1. 1
Violence
Against
women in India
History of violence against
women
In Vaidik kal From Ramcharit manas Sita ji
even the goddess called Luxmi avtar and the
wife of Vishnu avtar Maryada puroshatam
Sri Ram suffered with violence like
abduction. Lankadhipati Ravan abducted
Sita ji.
The second example Draupadi wife of
Pandavas [ Dharmaraj Yudhishthir,
Great
gadadhar
Bheem,
Great
Dhanurdher Arjun, Nackul and
Sehdev]. Suffered as the violence like
Assault or criminal force to woman

2. 2
Duryuodhan [the eldest son of Dhritrashtra
called Kaurvas]
Violence is the word belongs to a
savage world thatswhy we may say
that violence is prevalent since the
evolution of man. Violence is the
source of express the superiority or
express
possession
and
Some
historians believe that the history of
violence against women is tied to the
history of women being viewed as
property and a gender role assigned
to be subservient to men and also
other women.
The UN declaration
It is not unnecessary if we defined
both term of this theme Violence and
Women.
The term violence not defined in
constitution of India. Violence has the
means in itself intentional use of
physical force or power, threatened or
actual, against a group or community

3. 3
that either results in or has high
likelihood of resulting in injury,
death,
psychological
harm
maldevelopment or deprivation.
W omen - Te apex court in State of
Punjab vs. major singh, while dealing
with section 354 of INDIAN PENAL
CODE
had interpreted the term
‘women’ denoting female of any age.
It further held that an offence which
does not amount to rape may come
under the sweep of section 354 of
INDIAN PENAL CODE.
Introduction- Violence against women is
not only the problem of modern time but
retained since middle age which is
called ‘Dark age’. The sole property of her
father, brother or husband and she does not
have any will of her own. This type of
thinking also crept into the minds of Indian
people and they also began to treat their own
women like this. One more reason for the
decline in women's status and freedom was
that original Indians wanted to shield their

4. 4
women folk from the barbarous Muslim
invaders. As polygamy was a norm for these
invaders they picked up any women they
wanted and kept her in their "harems". In
order to protect them Indian women started
using 'Purdah', (a veil), which covers body.
Due to this reason their freedom also became
affected. They were not allowed to move freely
and this lead to the further deterioration of
their status. These problems related with
women resulted in changed mindset of people.
Now they began to consider a girl as misery
and a burden, which has to be shielded from
the eyes of intruders and needs extra care.
Whereas a boy child will not need such extra
care and instead will be helpful as an earning
hand. Thus a vicious circle started in which
women was at the receiving end. All this gave
rise to some new evils such as Child Marriage,
Sati, Jauhar and restriction on girl education
•
Sati : The ritual of dying at the funeral
pyre of the husband is known as "Sati" or
"Sahagaman". According to some of the
Hindu scriptures women dying at the

5. 5
funeral pyre of her husband go straight to
heaven so it’s good to practice this ritual.
Initially it was not obligatory for the
women but if she practiced such a custom
she was highly respected by the society. Sati
was considered to be the better option then
living as a widow as the plight of widows
in Hindu society was even worse. Some of
the scriptures like 'Medhatiti' had different
views it say that Sati is like committing
suicide so one should avoid this.
•
Jauhar : It is also more or less similar to
Sati but it is a mass suicide. Jauhar was
prevalent in the Rajput societies. In this
custom wives immolated themselves while
their husbands were still alive. When people
of Rajput clan became sure that they were
going to die at the hands of their enemy then
all the women arrange a large pyre and set
themselves afire, while their husband used
to fight the last decisive battle known as
"Shaka", with the enemy. Thus protecting
the sanctity of the women and the whole
clan.

6. 6
•
Child Marriage : It was a norm in
medieval India. Girls were married off at
the age of 8-10. They were not allowed
access to education and were treated as the
material being. The plight of women can be
imagined by one of the shloka of Tulsidas
where he writes "Dhol, gawar, shudra,
pashu, nari, ye sab tadan ke adhikari".
Meaning that animals, illiterates, lower
castes and women should be subjected to
beating. Thus women were compared with
animals and were married off at an early
age. The child marriage along with it
brought some more problems such as
increased birth rate, poor health of women
due to repeated child bearing and high
mortality rate of women and children.
•
Restriction
on
Widow
Remarriage : The condition of widows
in medieval India was very bad. They were
not treated as human beings and were
subjected to a lot of restrictions. They were
supposed to live pious life after their
husband died and were not allowed entry in
any celebration. Their presence in any good

7. 7
•
•
work was considered to be a bad omen.
Sometimes heads of widows were also
shaved down. They were not allowed to
remarry. Any woman remarrying was looked
down by the society. This cruelty on widows
was one of the main reasons for the large
number of women committing Sati. In
medieval India living as a Hindu widow
was a sort of a curse.
Purdah System : The veil or the
'Purdah' system was widely prevalent in
medieval Indian society. It was used to
protect the women folk from the eyes of
foreign rulers who invaded India in
medieval period. But this system curtailed
the freedom of women.
Girl Education : The girls of medieval
India and especially Hindu society were not
given formal education. They were given
education related to household chores. But a
famous Indian philosopher 'Vatsyayana'
wrote that women were supposed to be
perfect in sixty four arts which included
cooking, spinning, grinding, knowledge of
medicine, recitation and many more.

8. 8
Though these evils were present in medieval
Indian society but they were mainly
confined to Hindu society. As compared to
Hindu society other societies such as
Buddhism, Jainism and Christians were a
bit lenient. Women in those societies enjoyed
far more freedom. They had easy access to
education and were more liberal in their
approach. According to these religions
gender was not the issue in attaining
salvation. Any person whether a man or a
woman is entitled to get the grace of god.
During the time of king Ashoka women took
part in religious preaching. According to
Hiuen Tsang, the famous traveler of that
time,
Rajyashri,
the
sister
of
Harshavardhana was a distinguished
scholar of her time. Another such example is
the daughter of king Ashoka, Sanghmitra.
She along with her brother Mahendra went
to Sri Lanka to preach Buddhism.
The status of women in Southern India was
better than the North India. While in
Northern India there were not many women
administrators, in Southern India we can

9. 9
•
find some names that made women of that
time proud. Priyaketaladevi, queen of
Chalukya Vikramaditya ruled three villages.
Another woman named Jakkiabbe used to
rule seventy villages. In South India women
had representation in each and every field.
Domingo Paes, famous Portuguese traveler
testifies to it. He has written in his account
that in Vijaynagar kingdom women were
present in each and every field. He says that
women could wrestle, blow trumpet and
handle sword with equal perfection. Nuniz,
another famous traveler to the South also
agrees to it and says that women were
writing accounts of employed in expenses,
recording the affairs of kingdom, which
shows that they were educated. There is no
evidence of any public school in northern
India but according to famous historian Ibn
Batuta there were 13 schools for girls and
24 for boys in Honavar. There was one
major evil present in South India of
medieval time. It was the custom of
Devadasis.
Devadasis : It was a custom prevalent
in Southern India. In this system girls were

10. 10
dedicated to temples in the name of gods and
goddesses. The girls were then onwards
known as 'Devadasis' meaning servant of
god. These Devadasis were supposed to live
the life of celibacy. All the requirements of
Devadasis were fulfilled by the grants given
to the temples. In temple they used to spend
their time in worship of god and by singing
and dancing for the god. Some kings used to
invite temple dancers to perform at their
court for the pleasure of courtiers and thus
some Devadasis converted to Rajadasis
(palace dancers) prevalent in some tribes of
South India like Yellamma cult.
The plight of women in medieval India and at
the starting of modern India can be summed
up in the words of great poet Rabindranath
Tagore:
"O Lord Why have you not given woman the
right to conquer her destiny?
Why does she have to wait head bowed,
By the roadside, Waiting with tired patience,
Hoping for a miracle in the morrow?"
The statistics testifies to the brutalities
afflicted on women folk

11. 11
Social Indicator
India
Infant Mortality Rate, per
73
1000 live births
Maternal Mortality Rate, per
570
100,000 live births
Female Literacy, %
58
Female School Enrollment
47
Earned Income by females, % 26
Underweight Children, %
53
Total Fertility Rate
3.2
Women in Government, %
6
Contraception usage, %
44
Low birth weight babies, %
33
Women's
Reforms
Struggle
World
60
430
77.6
62
58
30
2.9
7
56
17
And
though women of India are not at par with
her counterpart in Western world but she is
struggling hard to make her mark in men's

12. 12
world. We can count on certain names from
the British India where women put the
example of extraordinary bravery which even
men might not be able to show. Rani Lakshmi
Bai of Jhansi was the one such woman. She
was the one who put even British rulers to
shame with her extraordinary feats in battle.
She fought for her kingdom, which Dalhousie,
British Governor General, had unlawfully
annexed. She was in a true sense the leader of
uprising of 1857. There are certain men who
took the cause of women in India. There have
been social reformers like Raja Ram Mohan
Roy, Ishwar Chandra Vidyasagar, Swami
Vivekanand,
and
Swami
Dayananda
Saraswati who have helped women gain their
previous status in society.
Raja Ram Mohan Roy
Born on 22nd may 1772 he was the
torchbearer of social reforms for the women.
He was strictly against the evils prevalent in
society in his time. He is the one who has done

13. 13
women a great favor by abolishing Sati
lawfully. It was due to his efforts that Lord
William Bentinck banned the custom of Sati
in 1829. Though this law was not a great
deterrent but it changed mindset of people to
some extent. Ram Mohan Roy also did great
work in the field of women education. He was
against child marriage and favored widow
remarriage. He himself married a widow thus
setting the example for the whole society.
Along with 'Dwarka Nath Tagore' he founded
"Brahmo Samaj" for the reform of Indian
society and emancipation of women.
Ishwar Chandra Vidyasagar
Ishwar Chandra Vidyasagar was popularly
known as Vidyasager, which means sea of
knowledge. Testifying to his name he was
truly the sea of knowledge. He was a pillar of
social reform movement of Bengal in 19th
century. He widely read ancient Hindu
scriptures and came to know that the gender
divide which was prevalent in Bengal was not
encoded in our ancient texts instead it is the

14. 14
politics to keep women subordinate to men. He
strongly supported women education in
Bengal and went door to door to persuade
people to send their girl child to school. He
also did a lot in the field of widow remarriage.
He opened many schools for girls.
Mahatma Jyotirao Phule
Born on April 11, 1827, Pune, Jyotirao
Govindrao Phule was a real philanthropist.
He was the one to open first girl school in
India. He is also credited with opening first
home for widows of the upper caste and a
home for newborn girl children so that they
can be saved from female infanticide.
Swami
Saraswati
Dayananda
He was the founder of Arya Samaj and gave a
cry, "back to Vedas". He translated Vedas from
Sanskrit to Hindi so that a common man can
read it and understand that the Vedic Hindu
scriptures gave utmost importance to women.

15. 15
He emphasized for the equal rights for women
in every field. He tried to change the mindset
of people with his Vedic teachings.
Mahatma Gandhi
The social reformers of 19th century laid down
the stage for the emancipation of women but
it was Mohan Das Karam Chand Gandhi
under whose influence these reforms reached
masses [r10]. He was the one who liberated
Indian women from the clutches of 'Purdah'
and other social evils. He brought them from
their confinement and asked them to
participate in the struggle for independence.
According to him women should be liberated
from the slavery of kitchen only then their
true potential could be realized. He said that
responsibility of household is important for
women but it should not be the only one. In
fact she should come forward to share the
responsibilities
of
nation.
When Gandhiji came to the stage of Indian
struggle for independence then the average life
span of Indian women was 27 years and only

16. 16
2%women were educated this shows what a
Herculean task it was to bring the women of
India who was not getting her basic rights to
fight for the cause of the nation. But it was
due to his efforts that so many women like
Sarojini Naidu, Vijayalakshmi Pandit, Aruna
Asaf Ali, Sucheta Kriplani and Rajkumari
Amrit Kaur came forward. He spread the
message of equality of the gender to the masses
and criticized the desire of Indian people to
have male child instead of a female. Gandhiji
was strictly against the child marriage and
favored widow remarriage. He urged the
youth to come forward and accept young
widows as their life partner. He said that the
girls are also capable of everything boys can do
but the need of the time is to give them
opportunities so that they can prove
themselves. It was mainly due to his efforts
that when India got independence 'right to
vote' came naturally to Indian women
whereas in other developed nations like
England and America women got this right
very late and that too after lot of protest.

17. 17
Violence and the law
As it explains, violence by men against women
is a longstanding problem and remains
widespread. Until recently it was sanctioned
by the law's indifference. While it may not be
possible to envisage a complete and
comprehensive legal response to violence,
either by the Commonwealth or the State and
Territories, the level of tolerance of it in
different areas of the law needs to be
examined and addressed. A brief reading of
judicial decisions across a range of different
legal issues shows that violence is quite often
a part of the background or context of a legal
dispute but it is either ignored or treated as
irrelevant. This is not to say, however, that
courts always ignore or miss the violence in
cases involving domestic relationships when
the case is not one legally classified as 'about
violence'. Indeed, the cases discussed below
indicate that courts can respond to male
violence against women. However, it was
obvious from the response of women to the
law that such judicial sensitivity to issues of
violence was by no means uniform.

18. 18
Gender
bias
judiciary
and
the
The Senate Standing Committee on Legal and
Constitutional Affairs has recently examined
the issue of gender bias in the judiciary. Its
May 1994 report concentrates on issues of
sexual violence against women. The
Committee found that stereotypes deriving
from historical, social attitudes which did not
accept women's status as equal, autonomous
citizens continue to be used. While the Senate
Committee focused on particular cases of
sexual assault that had received widespread
media coverage, they suggested that it was not
an adequate response to the issue of gender
bias merely to hold individual judges
responsible. They saw the problem a real,
significant but largely unconscious problem of
a systemic nature calling for multiple
solutions.
Violence
education
and
legal

19. 19
In traditional legal education, violence
against women is not typically a subject in the
law course in its own right nor, more
importantly, is it a topic in a general
compulsory course such as property law,
contract, equity or administrative law. While
it is an essential and comparatively visible
part of criminal law in courses in Australian
law schools, it should also be a prominent part
of all traditional law subjects. Violence is
often part of the context of a case, or essential
to understanding the dispute between the
parties, even while it is not the central focus
of the case. The federal Department of
Employment, Education and Training
(DEET) has recognized this by providing
funds for the development of course materials
on key thematic areas, including violence, for
inclusion in core subjects within the law
curriculum.
Violence extends beyond the
criminal law

20. 20
As a result of the ways in which legal
categories are structured, there is a tendency
to see violence as relevant only to the criminal
or
quasi-criminal
law,
largely
the
responsibility of the States and Territories,
and not to consider it as having any relevance
to a range of other non-criminal law issues.
There may well be a tendency not to recognize
it at all in other areas. There has been
considerable law reform effort in Australia
around criminal law issues such as rape and
sexual assault, violence by men against women
in the home, child sexual abuse and homicide
laws. The focus has been on male violence
against women in its clearest and most direct
forms. This work, evident in the reports of
various task forces, committees and inquiries,
including the National Committee on Violence
Against Women, has been essential to make
violence against women a more prominent
concern in traditional criminal law. There has
been much less attention to violence which
arises less directly in the law and may take
other forms. For example, women are
subjected to a variety of different injuries.

21. 21
They may be harmed in their workplaces and
the streets by sexual harassment. They may be
vilified or infantilized or sexualized in media
representations. They may be harmed in a
seemingly infinite variety of forms of
pornography. They may also be injured
through medical abuses, particularly in
relation to their reproductive capacities. As
young women, they may be distinctively
harmed by the juvenile justice system. Abuses
against women are perceived as a 'by-product'
of war. Yet male violence against women is
routinely ignored outside criminal or quasicriminal areas.
Violence against women in
case laws
Now I shall deal with the facet relating to
offences against women. The offences are of
various types. They find mention in many
enactments. These under- mentioned
provisions are enumerated in Indian Penal
Code, 1860:
¢ Section 304-B ----- dowry death
¢ Section 354 ----- Assault or criminal force to

22. 22
woman
¢ Section 361 ----- kidnapping from lawful
guardianship
¢ Section 366 ----- kidnapping, abducting or
inducing a woman
¢ Section 372 -----selling minor for purposes of
prostitution
¢ Section 376 ----- rape
¢ Section 376-A ----- intercourse by a man
with his wife during separation
¢ Section 376-B ----- intercourse by public
servant with woman in his custody
¢ Section 376-D ----- intercourse by any
member of the hospital with any woman in
that hospital
¢ Section 494 ----- remarriage
¢ Section 498 ----- enticing or taking away or
detain a married woman
¢ Section 498-A ----- dowry cruelty
These are the main offences under the IPC
against women. Certain offences are general
against all women and certain offences are
applicable in respect of married women.

23. 23
CLASSIFICATION
OFFENCE
OF
304B. 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 (28 of 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.]
Punishment—Imprisonment of not less than 7 years
but which may extend to imprisonment for life—

24. 24
Cognizable—Non-bailable—Triable
Session—Non-compoundable.
by
Court
of
COMMENTS
Applicability
It was argued that the husband or any of his relative
could be guilty of the offence only if he or she directly
participated in the actual commission of the offence.
This contention was rejected by the Andhra Pradesh
High Court. It observed that in its real import, section
304B of the Indian Penal Code would be applicable if
cruelty or harassment was inflicted by the husband on
any of his relative for, or in connection with demand
for dowry, immediately preceding the death by bodily
injury or by burning. In short she should have died in
abnormal circumstances within seven years of the
marriage. In such circumstances the husband or the
relative, as the case may be, will be deemed to have
caused her death and will be liable to punishment;
Vadde Rama Rao v. State of Andhra Pradesh, 1990 Cr
LJ 1666.
Burden of Proof

25. 25
The prosecution under section 304B of Indian Penal
Code cannot escape from the burden of proof that the
harassment to cruelty was related to the demand for
dowry and such was caused “soon before her death”.
The word “dowry” has to be understood as it is defined
in section 2 of the Dowry Prohibition Act, 1961. Thus,
there are three occasions related to dowry, i.e., before
marriage, at the time of marriage and at an unending
period. The customary payment in connection with the
birth of child or other ceremonies, are not involved
within ambit of “dowry”; Satvir Singh v. State of
Punjab, AIR 2001 SC 2828: (2001) 8 SCC 633.
Dowry
(i) Where the evidence revealed that accused—husband
killed deceased—wife for not satisfying his dowry
demand but nothing on record to show involvement of
co-accused in-laws with the offence committed by the
accused, co-accused in-laws are not guilty of offence
under sections 304B; Patil Paresh Kumar Jayanti Lal
v. State of Gujarat, 2000 Cr LJ 223 (Guj).
(ii) The parties were married on 24-5-1962. After
staying in the matrimonial home for two months, she

26. 26
returned to her parents’ house and told them that her
husband wanted a television set and a fridge. Her
father gave her a sum of Rs. 6,000 and she left for the
matrimonial home. Her husband again demanded a sum
of Rs. 25,000 for purchasing a plot. Thereafter the
husband took his wife to her parents’ home saying that
he would not take her back unless a sum of Rs. 25,000
was paid to him. After one year he took her back but he
did not give up the demand for Rs. 25,000. Soon
thereafter she left for her parents’ home and came back
with a sum of Rs. 15,000 with a promise that the rest
of the amount would be paid later on. In her husband’s
home she died of strangulation. The trial court found
the accused guilty. The death of the deceased took place
within seven years of marriage and persistent demands
of dowry were made on her and she died under
mysterious circumstances. The trial court framed charge
under section 304B. The Supreme Court held that no
ground for quashing the charge was made out; Nem
Chand v. State of Haryana, (1994) 3 Crimes 608 (SC).
Essential ingredients
To attract the provisions of section 304B, one of the
main ingredients of the offence which is required to be
established is that “soon before her death” she was
subjected to cruelty and harassment “in connection with

27. 27
the demand of dowry”; Prema S. Rao v. Yadla
Srinivasa Rao, AIR 2003 SC 11.
Expression ‘soon before her death’: meaning of
The expression ‘soon before her death’ used in the
substantive section 304B, I.P.C. and section 113B of
the Evidence Act is present with the idea of proximity
text. No definite period has been indicated and the
expression ‘soon before her death’ is not defined. The
determination of the period which can come within the
term ‘soon before’ is left to be determined by the courts,
depending upon facts and circumstances of each case.
Suffice, however, to indicate that the expression ‘soon
before would normally imply that the interval should
not be much between the concerned cruelty or
harassment and the death in question. There must be
existence of a proximate and live-link between the
effect of cruelty based on dowry demand and the
concerned death. If alleged incident of cruelty is remote
in time and has become stale enough not to disturb
mental equilibrium of the woman concerned, it would
be of no consequence; Kaliyaperumal v. State of Tamil
Nadu, AIR 2003 SC 3828. See also Yashoda v. State of
Madhya Pradesh, (2004) 3 SCC 98.
Presumption: Applicability

28. 28
(i) The presumption shall be raised only on proof of the
following essentials:—
(1) The question before the court must be whether the
accused has committed the dowry death of a woman.
(2) The woman was subjected to cruelty or harassment
by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection
with, any demand for dowry.
(4) Such cruelty or harassment was soon before her
death.
Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC
3828.
(ii) In dowry death cases and in most of such offences
direct evidence is hardly available and such cases are
usually proved by circumstantial evidence. This section
as well as section 113B of the Evidence Act enact a
rule of presumption, i.e., if death occurs within seven
years of marriage in suspicious circumstances. This may
be caused by burns or any other bodily injury. Thus, it is
obligatory on the part of the prosecution to show that
death occurred within seven years of marriage. If the
prosecution would fail to establish that death did not

29. 29
occur within seven years of marriage, this section will
not apply; Ratan Lal v. State of Madhya Pradesh,
1994 Cri LJ 1684. See also, N.V. Satyanandam v.
Public Prosecutor, AP High Court, AIR 2004 SC 1708.
Section 304B and Section 498A - Distinction
Section 304B is a substantive provision creating a new
offence and not merely a provision effecting a change in
procedure for trial of a pre-existing substantive offence.
As a consequence, accused cannot be tried and punished
for the offence of dowry death provided in section 304B
with the minimum sentence of seven years’
imprisonment for an act done by them prior to creation
of the new offence of dowry death; Soni Devrajbhai
Babubhai v. State of Gujarat, 1991 Cr LJ (313) (SC).
Scope
(i) A perusal of section 304B clearly shows that if a
married woman dies 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 in connection with demand for dowry,
such death shall be called “dowry death” and such

30. 30
husband or relative shall be deemed to have caused the
death. The conditions precedent for establishing an
offence under this section are as follows:
(a) that a married woman had died otherwise than
under normal circumstances; (b) such death was within
seven years of her marriage; and (c) the prosecution has
established that there was cruelty and harassment in
connection with demand for dowry soon before her
death; Baljit Singh v. State of Haryana, AIR 2004 SC
1714: (2004) 3 SCC 122.
(ii) Offence under section 304B of the Indian Penal
Code is triable by the Court of Session. It is a
cognizable and non-bailable offence. The minimum
punishment for the offence is seven years imprisonment
which may extend to life imprisonment. Section 304B
applies not only when death is caused by her husband or
in-laws but also when death occurs unnaturally
whoever might have caused it. The section will apply
whenever the occurrence of death is preceded by cruelty
or harassment by husband or in-laws for dowry and
death occurs in unnatural circumstances. It may be
emphasised that occurrence of death in such
circumstances is enough though death might not have
been in fact caused by the husband or in-laws. Thus the
intention behind the section is to fasten death on the

31. 31
husband or in-laws though they did not in fact caused
the death. Thus a fiction has been created. It is because
in these circumstances, the misery and agony created
thereby which compels the unfortunate married woman
to end her life; Premwati v. State of Uttar Pradesh,
1991 Cr LJ 263.
Unnatural death
In-laws insisted dowry demands on one married young
woman. Ultimately, it appeared that she was done to
death and her body was cremated without sending any
information to her parents or any relatives. The
Supreme Court held that, if it was natural death, there
was no need for the appellants to act in such unnatural
manner and cremate the body in great and unholy haste
without even informing the parents. In the result it
was an unnatural death, either homicidal or suicidal.
But even assuming that it is a case of suicide even then
it would be death which had occurred in unnatural
circumstances. Even in such a case, section 304B is
attracted and this position is not disputed. Therefore,

32. 32
the prosecution has established that the appellants have
committed an offence punishable under section 304B
beyond all reasonable doubts; Shanti v. State of
Haryana, AIR 1991 SC 1226.
Assault or criminal force to woman
Section 354. Assault or criminal force to woman with
intent to outrage her modesty
Whoever assaults or uses criminal force to any woman,
intending to outrage or knowing it to be likely that he
will thereby outrage her modesty, shall be punished
with imprisonment of either description for a term
which may extend to two years, or with fine, or with
both.
CLASSIFICATION OF OFFENCE
Punishment—Imprisonment for 2 years, or fine, or
both—Cognizable—Bailable—Triable
by
any
Magistrate—Non-compoundable.
State Amendments
Andhra Pradesh

33. 33
For section 354, the following section shall be
substituted, namely—
354. Assault or criminal force to woman with intent to
outrage her modesty.—Whoever assaults or uses
criminal force to any woman intending to outrage or
knowing it to be likely that he will thereby outrage her
modesty, shall be punished with imprisonment of either
description for a term which shall not be less than five
years but which may extend to seven years and shall
also be liable to fine:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment of either description for a
term which may be less than five years but which shall
not be less than two years.
Madhya Pradesh
After section 354, the following new section shall be
inserted, namely—
354A. Assault or use Criminal force to woman with
intent to disrobe her.—Whoever assaults or uses
criminal force to any woman or abets or conspires to

34. 34
assault or uses such criminal force to any woman
intending to outrage or knowing it to be likely that by
such assault, he will thereby outrage or causes to be
outraged the modesty of the woman by disrobing or
compel her to be naked on any public place, shall be
punished with imprisonment of either description for a
term which shall not be less than one year but which
may extend to ten years and shall also be liable to
fine.”.
[Vide Madhya Pradesh Act 14 of 2004, sec. 3 (w.e.f. 212-2004)].
Orissa
In the First Schedule to the Code of Criminal
Procedure, 1973 in the entry under column 5 relating to
section 354 of the Indian Penal Code 1860 for the word
‘bailable’ the word ‘non-bailable’ shall be substituted.
[Vide Orissa Act 6 of 1995, sec. 3 (w.e.f. 10-3-1995)].
Comments
Ingredients
What constitutes an outrage to female modesty is
nowhere defined. The essence of a woman’s modesty is

35. 35
her sex. The culpable intention of the accused is the
crux of the matter. The reaction of the woman is very
relevant, but its absence is not always decisive.
Modesty in this section is an attribute associated with
female human beings as a class. It is a virtue which
attaches to a female owing to her sex. The act of pulling
a woman, removing her saree, coupled with a request
for sexual intercourse, is such as would be an outrage to
the modesty of a woman; and knowledge, that modesty
is likely to be outraged, is sufficient to constitute the
offence without any deliberate intention having such
outrage alone for its object. As indicated above, the
word ‘modesty’ is not defined in I.P.C.; Raju
Pandurang Mahale v. State of Maharashtra, AIR 2004
SC 1677.
Section 361. Kidnapping from lawful
guardianship
Whoever takes or entices any minor under 1[sixteen]
years of age if a male, or under 2[eighteen] years of age
if a female, or any person of unsound mind, out of the
keeping of the lawful guardian of such minor or person
of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from
lawful guardianship.

36. 36
Explanation
The words “lawful guardian” in this section include
any person lawfully entrusted with the care or custody
of such minor or other person.
Exception
This section does not extend to the act of any person
who in good faith believes himself to be the father of an
illegitimate child, or who in good faith believes himself
to be entitled to lawful custody of such child, unless
such act is committed for an immoral or unlawful
purpose.
STATE AMENDMENT
Manipur
In section 361 for the words ‘eighteen’ substitute the
word ‘fifteen’.
[Vide Manipur Act 30 of 1950, sec. 3 (w.e.f. 16-41950), read with Act 81 of 1971, sec. 3 (w.e.f. 25-11972)].
COMMENTS
Inducement not immediate cause

37. 37
The accused was charged for kidnapping a minor girl,
below 15 years of age from the lawful guardianship of
her father. It was established that the accused had an
earlier stage solicited or induced minor girl to leave her
father’s protection by conveying or indicating an
encouraging suggestion, that he would give her shelter.
Holding the accused liable for kidnapping under section
363, the Supreme Court said that the mere
circumstances that his act was not the immediate cause
of her leaving her parental home or guardian’s custody
would constitute no valid defence and would not
absolve him from the offence of kidnapping. The
question truly falls for determination on the facts and
circumstances of each case; Thakorilal D Vadgama v.
State of Gujarat, AIR 1973 SC 2314: (1973) 2 SCC
413.
Lawful guardian
Where facts indicate that a girl left her father’s
protection, knowing and having capacity to know the
full import of what she was doing and voluntarily
joined the accused, the offence of kidnapping cannot be
said to have been made out; S. Varadrajan v. State of
Madras, AIR 1965 SC 942.
Use of word ‘keeping’: Meaning of

38. 38
The use of the word “keeping” in the context connotes
the idea of charge, protection, maintenance and control;
further the guardian’s charge and control appears to be
compatible with the independence of action and
movement in the minor, the guardian’s protection and
control of the minor being available, whenever necessity
arises. On plain reading of this section the consent of
the minor who is taken or enticed is wholly immaterial:
it is only the guardian’s consent which takes the case
out of its purview. Nor is it necessary that the taking
or enticing must be shown to have been by means of
force or fraud. Persuasion by the accused person which
creates willingness on the part of the minor to be taken
out of the keeping of the lawful guardian would be
sufficient to attract the section; Prakash v. State of
Haryana, AIR 2004 SC 227.
Section 366. Kidnapping, abducting or
inducing woman to compel her
marriage, etc.
Whoever kidnaps or abducts any woman with intent
that she may be compelled, or knowing it to be likely
that she will be compelled, to marry any person against
her will, or in order that she may be forced or seduced to
illicit intercourse, or knowing it to be likely that she

39. 39
will be forced or seduced to illicit intercourse shall be
punished with imprisonment of either description for a
term which may extend to ten years, and shall also be
liable to fine; 1[and whoever, by means of criminal
intimidation as defined in this Code or of abuse of
authority or any other method of compulsion, induces
any woman to go from any place with intent that she
may be, or knowing that it is likely she will be, forced
or seduced to illicit intercourse with another person
shall be punished as aforesaid].
Punishment—Imprisonment for 10 years and fine—
Cognizable—Non-bailable—Triable by Court of
Session—Non-compoundable.
Section 372. Selling minor for
purposes of prostitution, etc.
Whoever sells, lets to hire, or otherwise disposes of any
1
[person under the age of eighteen years with intent
that such person shall at any age be employed or used
for the purpose of prostitution or illicit intercourse with
any person or for any unlawful and immoral purpose, or
knowing it to be likely that such person will at any age
be] employed or used for any such purpose, shall be
punished with imprisonment of either description for a

40. 40
term which may extend to ten years, and shall be liable
to fine.
[Explanation I
When a female under the age of eighteen
years sold, let for hire, or otherwise disposed
of to a prostitute or to any person who keeps
or manages a brothel, the person so disposing
of such female shall, until the contrary is
proved, be presumed to have disposed of her
with the intent that she shall be used for the
purpose of prostitution.
Explanation II
For the purposes of this section "illicit
intercourse"
means
sexual
intercourse
between persons not united by marriage or by
any union or tie which, though not
amounting to a marriage, is recognised by the
personal law or custom of the community to
which they belong or, where they belong to
different communities, of both such
communities, as constituting between them a
quasi -marital relation].

41. 41
Punishment—Imprisonment for 10 years and
fine—Cognizable—Non-bailable—Triable
by Court of Session—Non-compoundable.
[375. Rape
A man is said to commit “rape” who, except in the case
hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six
following descriptions:—
First.— 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.
Fourthly.—With her consent, when the man knows
that he is not her husband, and that her consent is
given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
Fifthly.— With her 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

42. 42
substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly.— With or without her consent, when she is
under sixteen 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 fifteen years of age, is
not rape.]
STATE AMENDMENT
Manipur
(a) in clause sixthly, for the word “sixteen” substitute
the word “fourteen”; and
(b) in the Exception, for the word “fifteen” substitute
the word “thirteen”.
[Vide Act 30 of 1950, sec. 3 (w.e.f. 16-4-1950) (made
earlier than Act 43 of 1983)].

43. 43
COMMENTS
Absence of injury on male organ of accused
Where a prosecutrix is a minor girl suffering from pain
due to ruptured hymen and bleeding vagina depicts
same, minor contradictions in her statements they are
not of much value, also absence of any injury on male
organ of accused is no valid ground for innocence of
accused, conviction under section 375 I.P.C. proper;
Mohd. Zuber Noor Mohammed Changwadia v. State of
Gujarat, 1999 Cr LJ 3419 (Guj).
Penetration
Mere absence of spermatozoa cannot cast a doubt on
the correctness of the prosecution case; Prithi Chand v.
State of Himachal Pradesh, (1989) Cr LJ 841: AIR
1989 SC 702.
376. Punishment for rape.—(1) Whoever, except in the
cases provided for by sub-section (2), commits rape shall
be punished with imprisonment of either description for
a term which shall not be less than seven years but
which may be for life or for a term which may extend to
ten years and shall also be liable to fine unless the

44. 44
woman raped is his own wife and is not under twelve
years of age, in which cases, he shall be punished with
imprisonment of either description for a term which
may extend to two years or with fine or with both:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a
sentence of imprisonment for a term of less than seven
years.
(2) Whoever: (a) Being a police officer commits rape(i) Within the limits of the police station to which he is
appointed; or
(ii) In the premises of any station house whether or not
situated in the police station to which he is appointed;
or
(iii) On a woman is his custody or in the custody of a
police officer subordinate to him; or
(b) Being a public servant, takes advantage of his
official position and commits rape on a woman in his

45. 45
custody as such public servant or in the custody of a
public servant subordinate to him; or
(c) Being on the management or on the staff of a jail,
remand home or other place of custody established by or
under any law for the time being in force or of a
woman's or children's institution takes advantage of his
official position and commits rape on any inmate of
such jail, remand home, place or institution; or
(d) Being on the management or on the staff of a
hospital, takes advantage of his official position and
commits rape on a woman in that hospital; or
(e) Commits rape on a woman knowing her to be
pregnant; or
(f) Commits rape when she is under twelve years of age;
or
(g) Commits gang rape,
Shall be punished with rigorous imprisonment for a
term which shall not be less than ten years but which
may be for life and shall also be liable to fine:
Provided that the court may, for adequate and special
reasons to be mentioned in the judgment, impose a

46. 46
sentence of imprisonment of either description for a
term of less than ten years.
Explanation 1
Where a woman is raped by one or more in a group of
persons acting in furtherance of their common
intention, each of the persons shall be deemed to have
committed gang rape within the meaning of this subsection.
Explanation 2
"Women's or children's institution "means an
institution, whether called an orphanage or home for
neglected women or children or a widows' home or by
any other name, which is established and maintained
for the reception and care of women or children.
Explanation: 3
"Hospital" means the precincts of the hospital and
includes the precincts of any institution for the
reception and treatment of persons during convalescence
or of persons requiring medical attention or
rehabilitation].
Para I

47. 47
Punishment—Imprisonment for life or imprisonment
for ten years and fine—Cognizable—Non-bailable—
Triable by Court of Session—Non-compoundable.
Para II
Punishment—Imprisonment for two years or fine or
both—Non-Cognizable—Bailable—Triable by Court
of Session—Non-compoundable.
Comments
Charge
Section 376(2)(g) embodies a principle of joint liability
and the essence of that liability is the existence of
common intention; that common intention presupposes
prior concert which may be determined from the conduct
of offenders revealed during the course of action and it
could arise and be formed suddenly, but there must be
meeting of minds. It is not enough to have the same
intention independently of each of the offender. In such
cases, there must be criminal sharing, marking out a
certain measure of jointness in the commission of
offence; Ashok Kumar v. State of Haryana, AIR 2003
SC 777.
Corroborative evidence

48. 48
Corroborative evidence is not an imperative component
of judicial credence in every case of rape; State of
Maharashtra v. Suresh Nivruthi Bhusare, (1997) 2
Crimes 257 (Bom).
Medical evidence
(i) Medical evidence corroborated by version of
prosecutrix independent witness also in favour of the
victim. No evidence of causing an unknown person a
false implication at the cost of family name, conviction
based on her evidence upheld; Lakha v. State of
Rajasthan, 1999 Cr LJ 3418 (Raj).
(ii) Where an innocent girl of just 9 years is caught hold
and raped by accused, and FIR is lodged well in time,
evidence of her testimony also corroborated by medical
evidence, no evidence for false implication, failure on
part of investigation are not enough to deny version of
prosecutrix and other corroborative evidences; Najoor
Ahmad v. State of Bihar, 1999 Cr LJ 2550 (Pat).
Prosecutrix consenting to sexual intercourse
(i) If a woman meekly submits to sexual intercourse it
would be a case of consent; State of Maharashtra v.
Suresh Nivrutti Bhusare, (1997) 2 Crimes 257 (Bom).

49. 49
(ii) Normally a woman would not falsely implicate for
the offence of rape at the cost of her character. In
Indian society, it is very unusual that a lady with a
view to implicate a person would go to the extent of
stating that she was raped; Madan Lal v. State of
Madhya Pradesh, (1997) 2 Crimes 210 (MP).
Rape and abetment to suicide
It has been held that the concent cannot be inferred
merely because co-accused was present in house at the
time accused raped the victim. Neither can co-accused
be convicted under section 376(2)(g) merely because
victim girl allegedly stated before committing suicide
that both of accused raped her; Ashok Kumar v. State
of Haryana, AIR 2003 SC 777.
Rape of a minor
(i) Where a minor girl just 10 years of age raped by
accused, a minor of 16 years on the date of incident,
convicted and sentenced to 3 years R.I., therefore, since
then many years added to his age, he cannot be even
sent to an approved school under the Act and as such
his conviction is maintained but sentence set aside; Bire

50. 50
alias Bir Bahadur Singh v. State of Uttar Pradesh,
2000 Cr LJ 87 (All).
(ii) When the prosecutrix is a minor aged below 16
years, the question of her being a consenting party to
the sexual intercourse does not arise or is of no
consequence; Naresh v. State of Haryana, (1997) 2
Crimes 587 (P&H).
Section 376B. Intercourse by public servant with
woman is his custody
Whoever, being a public servant, takes advantage of
his official position and induces or seduces any woman,
who is in his custody as such public servant or in the
custody of a public servant subordinate to him, to have
sexual intercourse with him, such sexual intercourse not
amounting to the offence of rape, shall be punished
with imprisonment of either description for a term
which may extend to five years and shall also be liable
to fine].
Punishment—Imprisonment for five years and fine—
Cognizable (but no arrest shall be made without a
warrant or without an order of a Magistrate)—
Bailable—Triable by Court of Session—Noncompoundable

51. 51
Section 376D. Intercourse by any member of the
management or staff of a hospital with any woman
in that hospital
[376D. Intercourse by any member of the management
or staff of a hospital with any woman in that hospital.
—Whoever, being on the management of a hospital or
being on the staff of a hospital takes advantage of his
position and has sexual intercourse with any woman in
that hospital, such sexual intercourse not amounting to
the offence of rape, shall be punished with
imprisonment of either description for term which may
extend to five years and shall also be liable to fine.
Explanation
The expression "hospital" shall have the same meaning
as in Explanation 3 to sub-section (2) of section 376.]
Punishment—Imprisonment for five years and fine—
Cognizable (but no arrest shall be made without a
warrant or without an order of a Magistrate)—
Bailable—Triable by Court of Session—Noncompoundable.

52. 52
Section 494. Marrying again
during lifetime of husband or
wife
Whoever, having a husband or wife living, marries in
any case in which such marriage is void by reason of its
taking place during the life of such husband or wife,
shall be punished with imprisonment of either
description for a term which may extend to seven years,
and shall also be liable to fine.
Exception.—This section does not extend to any person
whose marriage with such husband or wife has been
declared void by a Court of competent jurisdiction, nor
to any person who contracts a marriage during the life
of a former husband or wife, if such husband or wife, at
the time of the subsequent marriage, shall have been
continually absent from such person for the space of
seven years, and shall not have been heard of by such
person as being alive within that time provided the
person contracting such subsequent marriage shall,
before such marriage takes place, inform the person
with whom such marriage is contracted of the real state
of facts so far as the same are within his or her
knowledge.

53. 53
Punishment—Imprisonment for 7 years and fine—
Non-cognizable—Bailable—Triable by Magistrate of
the first class—Compoundable by the husband or wife
of the person so marrying with the permission of the
court.
State Amendment
Andhra Pradesh
Punishment—Imprisonment for 7 years and fine—
Cognizable—Non-bailable—Triable by Magistrate of
the first class—Non-compoundable.
Section 498. Enticing or taking away or detaining with
criminal intent a married woman
Whoever takes or entices away any woman who is and
whom he knows or has reason to believe to be the wife
of any other man, from that man, or from any person
having the care of her on behalf of that man, with
intent that she may have illicit intercourse with any
person, or conceals or detains with that intent any such
woman, shall be punished with imprisonment of either
description for a term which may extend to two years,
or with fine, or with both.

54. 54
Punishment—Imprisonment for 2 years, or fine, or
both—Non-cognizable—Bailable—Triable by any
Magistrate—Compoundable by the person with whom
the offender has contracted.
Section 498A. Husband or relative of
husband of a woman subjecting her to
cruelty
[498A. 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 purpose of this section, “cruelty” means—
(a) any wilful 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

55. 55
valuable security or is on account of failure by her or
any person related to her to meet such demand.]
Punishment—Imprisonment for 3 years and
fine-Cognizable if information relating to the
commission of the offence is given to an officer in
charge of a police station by the person aggrieved by the
offence or by any person related to her by blood,
marriage or adoption or if there is no such relative, by
any public servant belonging to such class or category as
may be notified by the State Government in this behalf
—Non-bailable—Triable by Magistrate of the first
class—Non-compoundable.
Comments
Demand for Dowry and Ill-treatment
(i) The wife petitioned for divorce on the ground of
persistent demand made on her by her husband and inlaws. The High Court took the view that there was
nothing wrong in these demands as money was needed
by the husband for his personal use and in such a case
wife should extend help. Reversing the judgment, the
Supreme Court held that demand for dowry is
prohibited under the law. That itself was bad enough;
Shobha Rani v. Madhukar, AIR 1988 SC 121; see also

56. 56
Prakash Kaur v. Harijinderpal Singh, AIR 1999 Raj
46.
(ii) The husband and his parents were greedy people.
Their desire for dowry was insatiable. They went on
demanding dowry even after two years of marriage, and
since the parents of wife could not meet these, they
started ill-treating her with a view to coercing her
parens to give dowry. The Delhi High Court held that
this amounted to cruelty; Adarsh Parkash v. Sarita,
AIR 1987 Del 203.
Demand for money
Demand for money after four years of marriage for a
specific purpose, no where related to marriage demand
but causing of harassment to deceased wife so much so
that she was bound to end her life is sufficient for
conviction under section 498A; State of Punjab v.
Daljit Singh, 1999 Cr LJ 2723 (P&H).
Drunkenness
No doubt drinking is a constituent of culture all over
the world, and is almost a cult in certain societies. Yet,
even here as elsewhere a habit of excessive
drinking is a vice and cannot be considered a
reasonable wear and tear of married life. No reasonable

57. 57
person marries to bargain to endure habitual
drunkenness, a disgusting conduct. And yet it is not an
independent ground of any matrimonial relief in India.
But it may constitute treatment with cruelty, if
indulged in by a spouse and continued, in spite of
remonstrances, by the other. It may cause great anguish
and distress to the wife who never suspected what she
was bargaining for and may sooner or later find living
together not only miserable but unbearable. If it was so,
she may leave him and may, apart from cruelty, even
complain of constructive desertion; Rita v. Brij Kishore,
AIR 1984 Del 291.
Object
Section 498A was added with a view to punishing
husband and his relatives who harass or torture the
wife to coerce her or her relatives to satisfy unlawful
demands of dowry. The hyper-technical view would be
counter productive and would act against interests of
women and against the object for which the provision
was added. There is every likelihood that non-exercise
of inherent power to quash the proceedings to meet the
ends of justice would prevent woman from settling
earlier. That is not the object of Chapter XXA; B.S.
Joshi v. State of Haryana,AIR 2003 SC 1386.

58. 58
Section 498A
Evidence Act
vis-a-vis
section
113
of
Section 498A of the Indian Penal Code or section 113A
of the Indian Evidence Act has not introduced
invidious classification qua the treatment of a married
woman by her husband or relatives of her husband visa-vis the other offenders. On the other hand, such
women form a class apart whom from those who are
married more than seven years earlier to the commission
of such offence, because, with the passage of time after
marriage and birth of children, there are remote chances
of treating a married woman with cruelty by her
husband or his relatives. Thus, the classification is
reasonable and has close nexus with the object sought
to be achieved, i.e., eradication of the evil of dowry in
the Indian social set-up and to ensure that the married
women live with dignity at their matrimonial homes;
Krishan Lal v. Union of India, 1994 Cr LJ 3472.
Unhappiness between husband and wife
Where the prosecution relied only on incident of
unhappiness of deceased with her husband and the
allegation was only in form of suggestion, it does not
establish criminal offence under either or both of the

59. 59
charges, hence conviction under section 498A is
improper; State v. K. Sridhar, 2000 Cr LJ 328 (Kant).
Wilful Conduct
The allegations against the husband were that he
abused and beat his wife, forced her to have a common
kitchen with a harijan family, accused her of adultery
and of carrying in her womb someone else’s child,
pressurizing her to agree for an abortion, and such other
acts. This amounted to a wilful conduct of cruelty
towards wife; Rishi Kumar v. State of Haryana,
Criminal Appeal No. 335-B of 1985.
Te apex court in State of Punjab v. Major
Singh, while dealing with section 354 had
interpreted the term 'women' denoting female
of any age. It further held that an offence
which does not amount to rape may come
under the sweep of section 354, IPC.
In this context the decision rendered in the
case of State v. Musa is worth noticing. The
aforesaid offence caught the eye of the nation
when a senior police officer misbehaved with
another senior officer belonging to the IAS

60. 60
cadre. The lady officer was slapped before the
members of the elite society. Their Lordships
(Supreme
Court)
observed
that
the
observations made in the FIR were neither
absurd nor inherently improbable. Finally the
accused was acquitted.
In Rupen Deo Bajaj v. Kanwar Pal Singh
Gill, the Supreme Court said that the offence
under this section should not be treated lightly
as it is quite a grave offence. In certain
western countries privacy to person and even
privacy to procreation are regarded as very
sacrosanct rights and if this offence is studied
in that prospect the offence would clearly
show that it affects the dignity of women
and, therefore, the accused of this offence,
when proved, should be appropriately dealt
with.
In People's Union for Democratic Rights v.
Police
Commissioner,
Delhi,
Police
Headquarter and another, the supreme court
after holding that the accused was guilty of
offence under section 354 of IPC, awarded, to
the victim, compensation which is to be
recovered from the salary of the guilty officers.

61. 61
Rape
Presently, I shall deal with the regard to
offence of rape. Offence of rape is regarded as
one of the most heinous crimes. Every person's
physical body is a temple in itself. No one has
the right to encroach and create turmoil.
When there is any kind of invasion or
trespass, it offends one's right. The right of a
woman to live in her physical frame with
dignity is an epitomization of sacrosanctity.
An impingement or incursion creates a sense of
trauma in the mind of the person. Not only
does the body suffers but also the mind goes
through such agony and tormentation that one
may not be in a position to forget it
throughout her life. She becomes a different
person in the eyes of the society for no fault of
hers. That apart the offence of rape is an
offence which creates s a dent in the social
marrow of the collective and a concavity in
the morality of the society.
In State of Haryana v. Mange Ram, their
lordships (Supreme Court) gave emphasis
highlighting that the evidence in the case of
this nature should be appreciated on broader

62. 62
probabilities and the judge should not be
carried away by insignificant contradictions.
In State of A.P. v. Ganula Satya Murthy, the
Supreme Court made an observation that it is
an irony that while we are celebrating
women's rights in all spheres we show little or
no concern for their honour. Their lordships
further observed that the courts must deal
with rape cases with utmost sensitivity and
appreciate the evidence of the totality on the
background of the entire case and not on
isolation.
An aspect which needs to be stated here is
that a woman who has been raped is not an
accompliance. She is the victim of a carnal
desire. In a case of rape, corroboration need
not be searched for by the judge if in the
particular circumstances of the cases before
him he is satisfied that it is safe to rely on the
evidence of the prosecutrix. If the prosecutrix
is able to give a vivid account of how she was
subjected to sexual harassment and the
intercourse, the same can be placed reliance
upon and the conviction can be recorded.

63. 63
In State of Maharashtra v. M.M. Madikar, it
has been empathically laid down that there is
rule or prudence requiring corroboration of the
victims in a case of rape.
At this juncture I may state that sometimes
the trial courts give emphasis on absence of
physical injuries, lack of corroboration by
medical evidence, non-raising of alarm, no
evidence of showing resistance and such other
ancillary factors. From these angles the
prosecution is disbelieved or the court arrives
at the conclusion that there is consent.
The apex court in the case of State of H.P. v.
Mange Ram, has clearly laid down that if the
prosecutrix submits her body under fear or
terror the same would never amount to
consent. In the said case their lordships also
held that in the absence of any violence to the
body of the victim in all circumstances would
not give rise to inference of consent.
In State of Rajasthan v. N.K. , wherein the
supreme court held that the absence of injuries
on the person of the prosecutrix is not
necessary to falsify the allegation or be

64. 64
regarded as an evidence of consent on the part
of the prosecutrix.
Homicide
and
violence
outside the criminal law
One of the best known legal aphorisms is 'no
man shall profit from his own wrong'. A
common example given of this is the rule that
a person cannot benefit under the will of
someone that person has killed. However, the
circumstances of some homicide cases, in
which women have killed their husbands after
a long history of abuse; have confronted some
courts with the dilemma of how to apply this
principle. For example, in a case the Supreme
Court of Victoria was confronted with an
application for probate by a woman named in
her husband's will as his executor who had
pleaded guilty to manslaughter. The judge
noted that he had before him materials from
the criminal proceeding, which demonstrated
that the relationship involved violence or
threats of violence directed by the deceased to
his wife.

65. 65
The cumulative effect of the deceased's
behavior was to engender in his wife a very
real and understandable fear of him. After
reviewing a number of authorities concerned
with the principle, the Court decided, in view
of its finding that her level of moral
culpability was markedly diminished, that this
was not a case in which the rule should
operate to prevent the granting of probate.
Similarly, in the NSW case Public Trustee v
Evans, the Court decided that the forfeiture
rule should not apply where the applicant had
been subjected to a prolonged history of
violence prior to the killing.
Social security
A coordinated response to domestic violence
requires a rethinking of, among other things,
housing and social security policies. In the

66. 66
context of social security, a history or current
fear of violence may arise as an issue in a
number of ways. For example, a sole parent
may not wish to pursue child support from her
former violent partner because she is in fear of
him. This is a matter, which has been
recognized by the Department of Social
Security in its guidelines as forming a valid
basis for an exemption from the obligation to
pursue support from her ex-partner.
Alternatively a woman may be overpaid
entitlements as a result of pressure by a male
partner to make a claim to which she is not
entitled. It has also been suggested to the
Commission that women who fear violence
from their ex-partner may be more likely to
plead guilty when confronted with criminal
charges relating to overpayments, which may
themselves flow from the violence by a
partner. In one case recounted, a woman had
pleaded guilty as she believed that this would
prevent her ex-partner from finding her. It
was suggested that if she had been prepared to
plead not guilty and the matter gone to trial,
she would most likely have been acquitted. It
appears that there may be many situations in

67. 67
which men's violence against women (and
children) may be central to the context of a
case but not formally be an issue for decision.
The Department of Social Security is
preparing guidelines for staff on dealing with
clients who are the targets of violence.
However, this recognition of the impact of
violence on clients has not been incorporated
into
the
legislation
which
governs
entitlements.
There is another kind of violence in India as well as
other countries. Just like as
Acid throwing
Acid throwing (acid attack or vitriol age) is a form of
violent assault. It is defined as the act of throwing acid
onto the body of a person "with the intention of
injuring or disfiguring her out of jealousy or revenge".
Perpetrators of these attacks throw acid at their
victims, usually at their faces, burning them, and
damaging skin tissue, often exposing and sometimes
dissolving the bones. The long term consequences of
these attacks include blindness and permanent scarring
of the face and body.

68. 68
These attacks are most common in Cambodia,
Afghanistan, India, Bangladesh, Pakistan and other
nearby countries. According to Taru Bahl and M.H.
Syed, 80% of victims of these acid attacks are female
and almost 70% are under 18 years of age.
Attacks in South Asia
In South Asia, acid throwing attacks have been used as
a form of revenge for refusal of sexual advances,
proposals of marriage and demands for dowry. Scholars
Taru Bahl and M.H. Syed say that land disputes are
another leading cause.
Afghanistan
In Afghanistan in November 2008, extremists subjected
schoolgirls to acid attacks for attending school.
Bangladesh
In Bangladesh, where such attacks are relatively
common, they are mostly a form of domestic violence.
The chemical agents most commonly used to commit
these attacks are hydrochloric acid and sulfuric acid.
According to Mridula Bandyopadhyay and Mahmuda
Rahman Khan, it is a form of violence primarily
targeted at women. They describe it as a relatively
recent form of violence, with the earliest record in
Bangladesh from 1983. The scholar Afroza Anwary
points out that acid violence occurs not only in

69. 69
Bangladesh but also in Pakistan, China, and Ethiopia
and has occurred historically in Europe.
Cambodia
In Cambodia, it was reported that these attacks were
mostly carried out by wives against their husbands'
lovers.
Gaza
In 2006 a group in Gaza calling itself "Just Swords of
Islam" claimed to have thrown acid at a young woman
who was dressed "immodestly," and warned other
women to wear the hijab.
India
The Thomas Reuters Foundation survey says that India
is the fourth most dangerous place in the world for
women to live in as women belonging to any class, caste
or creed and religion can be victims of this cruel form of
violence and disfigurement, a premeditated crime
intended to kill or maim her permanently and act as a
lesson to put her in her place. In India, acid attacks on
women who dared to refuse a man's proposal of
marriage or asked for a divorce are a common form of
revenge. Acid is cheap and easily available and is the
quickest way to destroy a woman's life. The number of
acid attacks has been rising in India and there have
been 68 reported acid attacks in the state of Karnataka
since 1999.

70. 70
Indian acid attack survivor Shirin Juwaley founded
Palash Foundation to help other survivors with
"psycho-social rehabilitation". She also spearheads
research into social norms of beauty, speaks publicly,
and blogs regularly at Do I Look ‘Normal’? In 2011,
the principal of an Indian college refused to have
Jewelry speak at her school for fear that Juwaley's
story of being attacked by her husband would make
students "become scared of marriage". Tom O'Neill of
National Geographic reported that acid throwing is
also used to enforce the caste system in modern India,
where upper caste individuals often attack Dalits for
supposedly violating the order.
Iran
Similarly, in the run-up to the Islamic Revolution from
1978–1979, Ayatollah Khomenei's supporters threw
acid at hijab-free women and clean-shaven men in order
to coerce the population into obeying strict Islamic
mores.
Pakistan
According to New York Times reporter Nicholas D.
Kristof, acid attacks are at an all time high in Pakistan
and increasing every year. The Pakistani attacks he
describes are typically the work of husbands against
their wives who have "dishonored them".

71. 71
According to a Rand Corporation commentary,
hundreds of women in Pakistan and Afghanistan have
been blinded or maimed "when acid was thrown on their
unveiled faces by male fanatics who considered them
improperly dressed". Attacks or threats of attacks on
women who failed to wear hijab or were otherwise
"immodestly dressed" have been reported in other
countries as well.
Legislation
In 2002, Bangladesh introduced the death penalty for
throwing acid and laws strictly controlling the sales of
acids.
Under the Qisas law of Pakistan, the perpetrator may
suffer the same fate as the victim, and may be punished
by having drops of acid placed in his/her eyes. This law
is not binding and is rarely enforced according to a New
York Times report. Iran has a similar law, and
sentenced an attacker to be blinded in 2008. However,
as of July 31, 2011, Ameneh Bahrami pardoned her
attacker, thereby absolving Majid Movahedi of his
crime and halting the retributive justice of Qisas.
Lower House of Parliament in Pakistan unanimously
passed the Acid Control and Acid Crime Prevention Bill
On May 10, 2011. As punishment, according to the bill
individuals held responsible for acid throwing face
harsh fines and life in prison. Over the past few years,

72. 72
acid throwing has been recognized by many countries as
one of the latest and most excruciating forms of
violence committed against women.
Victims and treatment
There is a high survival rate amongst victims of acid
attacks. Consequently the victim is faced with physical
challenges, which require long term surgical treatment,
as well as psychological challenges, which require indepth intervention from psychologists and counselors at
each stage of physical recovery.[citation needed]
In Bangladesh, the Acid Survivors Foundation (ASF),
Nairpokkho, Action Aid, and the Bangladesh Rural
advancement committee’s Community Empowerment &
Strengthening Local Institutions Programme assist
survivors in Bangladesh. The Acid Survivors
Foundation in Pakistan (ASF-P) operates in Islamabad
offering medical, psychological and rehabilitation
support. The Acid Survivors Foundation in Uganda
(ASF-U) operates in Kampala and also provides
counseling and rehabilitation treatment to victims of
acid attacks, as well as their families if need be.
Additionally in Cambodia, LICADHO, the Association
of the Blind in Cambodia and the Cambodian Acid
Survivors Charity (CASC) all assist survivors of acid
attacks. The Acid Survivors Trust International (ASTI)
provides specialist support to its sister organizations in

73. 73
Africa and Asia through its specialist team who work
across the organizations transferring medical,
psychological and social rehabilitation skills whilst
supporting knowledge sharing and best practice.
The Domestic Violence Act This
act constituted as the boon for
women but it could not become as a
boon. Before it women are in worst
condition after that the condition of
them improve but not so what would
think , the thinkers and maker of this
act want to improve the condition of
women of India which is very sad and
worryable. Women suffered much a
number of assaults belongs to many
types of crimes related to law, society
and morality that’s why this act
constituted in great expectation. It’s
constitutes for the welfare and
goodness of women and their rights by
which they get their existence. It give
its best but……….

74. 74
Fundamental rights perspective
Domestic violence is sadly a reality in Indian
society, a truism. In the Indian patriarchal
setup, it became an acceptable practice to
abuse women. There may be many reasons for
the occurrence of domestic violence. From a
feminist standpoint, it could be said that the
occurrence of domestic violence against women
arises out of the patriarchal setup, the
stereotyping of gender roles and the
distribution of power, real or perceived, in
society. Following such ideology, men are
believed to be stronger than women and more
powerful. They control women and their lives
and as a result of this power play, they may
hurt women with impunity. The role of the
woman is to accept her ‘fate’ and the violence
employed against her meekly. For long, the
fairer sex has suffered at the hands of men,
the exploitation ranges from physical to
intangible abuse like mental and psychological
torture. Women have been treated as child
bearing machines, and if I may, then
preferably male child bearing machines, pushover, to nothing but animals at the hands of

75. 75
men. Domestic violence is one of the gravest
and the most pervasive human rights
violation. For too long now, women have
accepted it as their destiny or have just
acquiescence their right to raise their voice,
perhaps, because of the justice system or the
lack of it or because they are vulnerable,
scared of being ostracized by their own
because domestic violence still remains a taboo
for most women who suffer from it or for
other reasons best known to them. But not
any more! Women gear up-take control
because of the domestic violence act, 2005.
The Protection of Women from Domestic
Violence Act (or the Domestic Violence Act) is
a laudable piece of legislation that was
enacted in 2005 to tackle this problem. The
Act in theory goes a long way towards
protection of women in the domestic setup. It
is the first substantial step in the direction of
vanquishing the questionable public/private
distinction traditionally maintained in the
law, which has been challenged by feminists
time and again. Admittedly, women could
earlier approach the Courts under the Indian

76. 76
Penal Code (IPC) in cases of domestic violence.
However, the kinds of domestic violence
contemplated by this Act, and the victims
recognized by it, make it more expansive in
scope than the IPC. The IPC never used the
term domestic violence to refer to this
objectionable practice. In fact, the only similar
class of offences addressed by the IPC
Dealt with cruelty to married women. All
other instances of domestic violence within the
household had to be dealt with under the
offences that the respective acts of violence
constituted under the IPC without any regard
to the gender of the victim. This posed a
problem especially where the victims were
children or women who were dependant on the
assailant. In fact, even where the victim was
the wife of the assailant and could approach
the Courts under S.498A of the IPC, she
would presumably have to move out of her
matrimonial home to ensure her safety or face
further violence as retaliation. There was no
measure in place to allow her to continue
staying in her matrimonial home and yet raise
her voice against the violence perpetrated

77. 77
against her. This, together with many other
problems faced by women in the household,
prompted this enactment. This commentary
focuses on the constitutional perspectives of
this progressive legislation.
Important Provisions
The Act, in a bold break from prior
legislations, gives a very expansive definition
to the term “domestic violence”, a term
hitherto not even used in legal parlance.
Domestic violence is defined in a
comprehensive way in S.3 of the Act,
comprising physical, mental, verbal, emotional,
sexual and economic abuse, harassment for
dowry, acts of threatening to abuse the victim
or any other person related to her.
An important addition to the law ensures that
an aggrieved wife, who takes recourse to the
law, cannot be harassed for doing so. Thus, if
a husband is accused of any of the above
forms of violence, he cannot during the
pending disposal of the case prohibit/restrict
the wife's continued access to resources/

78. 78
facilities to which she is entitled by virtue of
the domestic relationship, including access to
the shared household. In short, a husband
cannot take away her jewellery or money, or
throw her out of the house while they are
having a dispute. A woman who is the victim
of domestic violence will have the right to the
services of the police, shelter homes and
medical establishments. She also has the right
to simultaneously file her own complaint
under Section 498A of the Indian Penal Code.
This piece of legislation, in my view has been
long over due. It is a comprehensive law and
addresses all issues related to women. It is for
the first time that an act has been made to
address women's issues in such detail. The Act
is an extremely progressive one not only
because it recognizes women who are in a live
in relationship but also extends protection to
other women in the household, including
sisters and mothers thus the Act includes
relations of consanguinity, marriage, or
through relationships in the nature of
marriage, adoption, or joint family thus,
'domestic relationships' are not restricted to

79. 79
the marital context alone. In fact the Act has
given a new dimension to the word abuse
because unlike the primitive notion abuse
includes actual abuse or threat of abuse,
whether physical, sexual, verbal, economic and
harassment by way of dowry demands and
thus, under the new law;
The law will cover those women who are or
have been in a relationship where both parties
have lived together in a shared household, and
are related by marriage or adoption.
Preventing one's wife from taking up a job or
forcing her to leave job are also under the
purview of the Act. One of the most
important features of the Act is that it also
provides a woman a right to reside in the
matrimonial and shared household, whether or
not she has any title in the household.
Husbands or live-in partners who would be
guilty of domestic violence can be put behind
bars for a year and fined Rs 20,000 and all
crimes in the Domestic Violence Act are nonbailable. In addition to physical violence of
beating, slapping, hitting, kicking and
pushing, the Act also covers sexual violence

80. 80
like forced intercourse, forcing his wife or
mate to look at pornography or any other
obscene pictures or material and child sexual
abuse. The new law also addresses sexual
abuse of children and forcing girls to marry
against their wishes. This certainly proves
that the new Act has been formed keeping the
current relationship culture in India and the
irregularities in the previous Domestic
Violence Laws in mind.
The Act has also defined Physical Violence
very comprehensively, as: Any kind of bodily
harm or injury, A threat of bodily harm,
Beating, slapping and hitting. Thus, physical
violence is defined as any act or conduct
which is of such a nature as to cause bodily
pain, harm, or danger to life, limb, or health,
or an act that impairs the health or
development of the person aggrieved, or that
includes assault, criminal intimidation and
criminal force. But violence against women is
not always physical. For the first time, the
law has expanded the definition to include
sexual, verbal and economic violence. Under
the law, Sexual Violence will include: Forced

81. 81
sexual encounter, Forcing a woman to look at
pornography or any obscene pictures, any act
of sexual nature to abuse, humiliate or degrade
a woman's' integrity.
The new law is also tough on men who subject
women to name calling or verbal abuse. While
Verbal Violence is often trivialized as
unimportant, observers say it can damage a
woman's self-esteem. The Act defines Verbal
Violence as: Name calling, any kind of
accusation on a woman's character or conduct,
Insults for not bringing dowry, preventing a
woman from marrying a person of her choice,
Any form of threat or insults for not
producing a male child.
Another significant step has been to recognize
Economic Violence. Under the Act, Economic
Violence is: Not providing money, food,
clothes, medicines, causing hindrance to
employment opportunities, forcing a woman to
vacate her house, Not paying rent. The Act
thus deals with forms of abuse that were
either not addressed earlier, or that were
addressed in ways not as broad as done here.
For instance, it includes in its ambit sexual

82. 82
abuse like marital rape which, though
excluded under the IPC, can now be legally
recognized as a form of abuse under the
definition of sexual abuse in this Act. The
definition also encompasses claims for
compensation arising out of domestic violence
and includes maintenance similar to that
provided for under S.125 of the Code of
Criminal Procedure (Cr.P.C). Nevertheless, the
claim for compensation is not limited to
maintenance as allowed by that provision. It
is noteworthy that the maintenance available
under this section must be in correspondence
with the lifestyle of the aggrieved party.
Lastly, the Act identifies emotional abuse as a
form of domestic violence, including insults on
account of the victim’s not having any
children or male children.
Constitutional Perspective
The enactment in question was passed by the
Parliament with recourse to Article 253 of the
Constitution. This provision confers on the
Parliament the power to make laws in
pursuance
of
international
treaties,
conventions, etc. The Domestic Violence Act

83. 83
was passed in furtherance of the
recommendations of the United Nations
Committee on the CEDAW. The Act
encompasses all the provisions of the Specific
Recommendations which form a part of
General Recommendation no.19, 1992.
Protection
of
Fundamental Rights
Women
and
The Statement of Objects and Reasons
declares that the Act was being passed
keeping in view the fundamental rights
guaranteed under Articles 14, 15 and 21.
Article 21 confers the right to life and liberty
in negative terms, stating that it may not be
taken away except by procedure established by
law, which is required, as a result of judicial
decisions, to be fair, just and reasonable. The
right to life has been held to include the
following rights (which are reflected in the
Act), among others:

84. 84
1. The right to be free of violence: In
Francis Coralie Mullin v. Union Territory
Delhi, Administrator, and the Supreme Court
stated, any act which damages or injures or
interferes with the use of any limb or faculty
of a person, either permanently or even
temporarily, would be within the inhibition of
Article 21.This right is incorporated in the Act
through the definition of physical abuse,
which constitutes domestic violence (and is
hence punishable under the Act). Physical
abuse is said to consist of acts or conduct of
such nature that they cause bodily pain, harm,
or danger to life, limb or health, or impair the
health or development of the aggrieved
person . Apart from this, the Act also includes
similar acts of physical violence and certain
acts of physical violence as envisaged in the
Indian Penal Code within the definition of
domestic violence. By adoption of such an
expansive definition, the Act protects the
right of women against violence.
2. The right to dignity : In Ahmdabad
Municipal Corporation v. Nawab Khan
Gulab Khan, the Supreme Court emphasized

85. 85
the fact that the right to life included in its
ambit the right to live with human dignity,
basing its opinion on a host of cases that had
been decided in favour of this proposition. The
right to dignity would include the right
against being subjected to humiliating sexual
acts. It would also include the right against
being insulted. These two facets of the right to
life find mention under the definitions of
sexual
abuse
and
emotional
abuse,
respectively. A praiseworthy aspect of the
legislation is the very conception of emotional
abuse as a form of domestic violence. The
recognition of sexual abuse of the wife by the
husband as a form of violation to the person is
creditable, especially as such sexual abuse is
not recognized by the IPC as an offence. These
acts would fall within the confines of
domestic violence as envisaged by the Act,
though the definition would not be limited to
it.
3. The right to shelter: In Chameli Singh
v. State of U.P., it was held that the right to
life would include the right to shelter,
distinguishing the matter at hand from Gauri

86. 86
Shankar v. Union of India where the question
had related to eviction of a tenant under a
statute. Ss. 6 and 17 of the Domestic Violence
Act reinforce this right. Under S.6, it is a duty
of the Protection Officer to provide the
aggrieved party accommodation where the
party has no place of accommodation, on
request by such party or otherwise. Under
S.17, the party’s right to continue staying in
the shared household is protected. These
provisions thereby enable women to use the
various protections given to them without any
fear of being left homeless.
Article 14 contains the equal protection
clause. It affirms equality before the law and
the equal protection of the laws. Article 14
prohibits class legislation , but permits
classification for legislative purposes. A law
does not become unconstitutional simply
because it applies to one set of persons and not
another. Where a law effects a classification
and is challenged as being violative of this
Article, the law may be declared valid if it
satisfies the following two conditions:

87. 87
1. The classification must be based on some
intelligible differentia,
2. There must be a rational nexus between this
differentia and the object sought to be
achieved by the law. As a result of the ruling
in cases such as Royappa v. State of Tamil
Nadu , any law that is arbitrary is considered
violative of Article 14 as well. This provision
is significant in putting a stop to arbitrariness
in the exercise of State power and also in
ensuring that no citizen is subjected to any
discrimination. At the same time, it preserves
the State’s power to legislate for a specific
category of people.
Article 15 disallows discrimination on the
grounds of religion, caste, sex, race, etc., but
permits the State to make special provisions
for certain classes of persons, including women
and children.
The Domestic Violence Act promotes the
rights of women guaranteed under Articles 14
and 15. Domestic violence is one among
several factors that hinder women in their
progress, and this Act seeks to protect them

88. 88
from this evil. It indeed effects a classification
between women and men, protecting only
women from domestic violence, but this
classification is founded on an intelligible
differential, namely, gender, and also has a
rational nexus with the object of the Act.
Further, the Act is far from arbitrary, in that
it is a well-thought and necessary attempt to
curtail domestic violence and eventually
vanquish it. It is to be remembered that it is
generally women who are the victims of
domestic violence, and not men. At this stage,
it is also essential to keep in mind Article
15(3) which empowers the State to make
legislations like this for the benefit of women,
thus creating an exception in their favour
against the operation of Article 15(1).
While saying that the Act is protected by
Article
15(3)
from
being
considered
discriminatory, it would help to recollect that
this provision creates an exception in favour
of women and children, and thus could be
made use of to justify the extension of the Act
to male children as well. Indeed, it would
seem logical to do so. It is, however, opined

89. 89
that it is too early to predict the usefulness of
this legislations to its target beneficiaries and
the society as a whole. It needs to be seen
whether the practicality of the Act has been
ensured by the legislature and also the
responsibility of implementation lies in the
hands of the executive which will be the
actual scale for measuring the effectiveness of
this Act. Whether or not the act will be misused or not only time will tell for there cannot
be any perceptible change in women's status
overnight. It will take at least a decade before
things change
This bill will provide them a safeguard and a
sort of sword in their hand so that they will
not be seen as an animal or a shoe that you
can wear anytime and throw anytime but at
least some women would benefit which would
set a precedent for others.
It would be violative of the equality clause as
also it would be discrimination on the basis of
caste. Frowning upon this observation the
Supreme Court stated, “In our opinion, the
learned judge failed to appreciate that part
III of the Constitution does not touch upon

90. 90
the personal laws of the parties. In applying
the personal laws of the parties, he (the High
Court judge) could not introduce his own
concepts of modern times but should have
enforced the law as derived from recognized
and authoritative sources of Hindu laws, i.e.
Smritis and commentaries referred to, as
interpreted in the judgments of various High
Courts, except where such law is altered by
any usage or custom or abrogated by statute."
Reynold Rajamani v. Union of India (1982 2
SCC 474).The excerpts of this judgment on
which reliance was placed upon by the
Supreme Court in the AWAG case pertain to
prayers by the parties to increase the grounds
available for divorce under the Indian Divorce
Act. It was also argued in that Petition that
divorce by mutual consent should be available
even under the Indian Divorce Act. It was in
this context that the Supreme Court observed
that adding provisions to a Statute was a
legislative act. The case did not deal with
challenge to personal laws as being
discriminatory to women.

91. 91
Pannalal Pitti v. State of A.P. (1996 2 SCC
498). This case dealt with validity of
provisions of A.P. Charitable Hindu Religious
and Endowments Act, 1987 and the argument
was that laws should be made which are
uniformly applicable to all religious or
charitable endowments run by persons
professing all religions. It was in this context
that the Supreme Court observed that in a
pluralistic society like ours making uniform
laws cutting across religions could only be
achieved in a phased manner and it was
inappropriate to think "all laws have to be
made uniformly applicable to all people in one
go."
Anil Kumar Mhasi v. Union of India (1994 5
SCC 704). In this case, additional grounds
given to a woman for claiming divorce under
the Indian Divorce Act were challenged as
being discriminatory towards men. The
challenge was rebuffed by holding that women
did require special protection. What is
significant about this judgment is that the
Supreme Court did test the validity of some
sections of the Indian Divorce Act (a personal

92. 92
law for Christians) on the touch stone of
fundamental rights but on merits found the
challenge to be unsustainable. The approach of
the Supreme Court is clearly wrong and flies
in the face of the Constitution. The Contrary
View, on the other hand, in the following
decisions the Supreme Court has tested aspects
of personal laws on the touchstone of
fundamental
rights.
Madhu Kishwar V. State of Bihar (1996 5
SCC 125). Certain provisions of Chotanagpur
Tenancy Act, 1908 were challenged as being
discriminatory towards women. While Court
in this case refused to declare tribal customs
en masse offending fundamental rights it kept
the doors of such challenge open by holding,
"..under the circumstances it is not desirable to
declare the customs of tribal inhabitants as
offending Articles 14, 15 and 21 of the
Constitution and each case must be examined
when full facts are placed before the court."In
this case, the Court went into the
Constitutionality of the law and read down
the provisions so as to bring them in line with
womens' right to livelihood under Article 21 of
the Constitution.

93. 93
Githa Hariharan v. Reserve Bank of India
(1999 2 SCC 228) a three judge Bench of the
Supreme Court was considering the
Constitutional validity of S. 6 of the Hindu
Minority and Guardianship Act. The
challenge was on the basis that the section
discriminates against women, as the father is
the natural guardian of a minor and not the
mother. The Court did not reject the Petition
on the ground that it could not go into
Constitutional validity of personal law.
Instead it read down S.6 so as to bring it in
consonance with Articles 14 and 15. The
Court observed in Para 9, Is that the correct
way of understanding the section and does the
word 'after' in the section only mean 'after the
lifetime'? If this question is answered in the
affirmative, the section has to be struck down
as unconstitutional as it undoubtedly violates
gender equality, one of the basic principles of
our Constitution. The Hindu Maintenance
and Guardianship Act came into force in
1956, i.e. six years after the Constitution.
"Similarly S. 19(b) of the Guardians and
Wards Act would also have to be construed in
the same manner in which we have construed

94. 94
Section 6(a) The Hindu Maintenance and
Guardianship Act ." Of course, the decision is
not very satisfactory as the Constitutional
mandate required the Supreme Court to hold
that irrespective of whether the father was
unfit or not the mother should also be given
equal rights as a natural guardian.
Failure of the Act : The Act could play a
stellar role in protection of women’s rights in
the household and in guarding them from
domestic violence. In the very first instance, a
recognition of domestic violence as something
unacceptable, where it has become yet another
social practice, is necessary and indeed,
commendable in a patriarchal society. Having
recognised the rights of women and the
violation of these rights, the next step taken is
providing innovative and efficacious remedies
to enforce the same. The conceptualization of
the Act thus far is admirable.
However, one thing that the writers feel is
amiss in the Act is the fact that it brushes
aside male children. Though there are
interpretations to the contrary, it is the
opinion of the writers that the Act does not

95. 95
extend its protection to male children. Firstly,
an aggrieved person as defined by the Act is a
woman who is, or has been in a domestic
relationship with the respondent. While the
Act does define a child as any person below
the age of eighteen years, the definition of
domestic violence itself refers at all stages only
to an aggrieved person and not to a child; the
only relevant place in which a child is
mentioned is S.18(c), where it is stated that a
Magistrate may pass a protection order
restraining the respondent from entering the
school of the child where the aggrieved person
is a child. It is the opinion of the writers that
this in itself is not sufficient to construe the
Act as applicable to male children as well.
Arguably, it could be said that the Act was
passed to cater to the needs of women and not
boys. After all, the very title of the Act
indicates that it has been enacted to protect
the rights of women. Yet, it must be kept in
mind that domestic violence, though
predominantly faced by women, be they wives,
mothers, sisters or daughters, is also aimed
against male children at times. It seems a poor

96. 96
excuse to say that male children should not be
provided easily accessible relief from domestic
violence simply because of their gender. Even
if other forms of violence could be adequately
addressed by the IPC (though this hardly
seems the case), it is a fact that the sexual
abuse of male children cannot be redressed in
any apposite manner by it. Reference may be
had to the Sakshi case , and the subsequent
172nd Law Commission report, where it was
argued, among other things, that the offence
of rape as addressed in the IPC be defined in
gender-neutral terms, so that the protection
could be extended to male children as well.
This was necessary keeping in mind the
increased and increasing instances of sexual
abuse of children, male and female. Once it is
acceded that male children are affected as
much by sexual abuse by female children, it
must be accepted that they need to be
protected from such abuse within the
“private” sphere too. On the face of it, there
seems to be no concrete reason for denying
male children protection from domestic
violence.

97. 97
Domestic Violence versus Honor
Killing
Domestic violence is a significant problem in the
United States. Between 1989 and 2004, 21,124 women
died at the hands of an intimate; 8,997 men died in
domestic violence during the same time period. Because
the U.S. Department of Justice does not catalogue the
victim's or murderer's age, religion, ethnic background,
or immigration status, it is not possible to know what
proportion of these killings are honor-related.
Unni Wikan, a social anthropologist and professor at
the University of Oslo, defines honor killing as "a
murder carried out as a commission from the extended
family, to restore honor after the family has been
dishonored. As a rule, the basic cause is a rumor that
any female family member has behaved in an immoral
way." While honor killings are just a minority of total
domestic violence in the United States and Canada,
they constitute a distinct phenomenon. A 2008
Massachusetts-based study found that "although
immigrants make up an estimated 14 percent of the
state's population, [they, nevertheless,] accounted for
26 percent of the 180 domestic violence deaths from
1997-2006."