Crime Against Illiterate Women
There is no doubt that we are in the midst of a great revolution in the
history of women. Unfortunately, women in this country are mostly unaware of
their rights because of illiteracy and the oppressive tradition. Crime against
women is a worldwide epidemic.
The sociologists had described the women by propounding different perceptions. The era when Women were treated and respected on par with goddesses is bygone. The gradual evolution of the patriarchal mindset developed during post Vedic period coupled with the introduction of the rigid caste system rapidly denigrated the status of women. The multi-cultured society has placed the women at different positions. Thus, there is no uniform status of women in Indian society. However, civilization showed the overall upliftment of women's position.
Historical Background
Despite the constitutional provisions and safeguard provided for women, crime against women continues unabated in our country, both inside and outside our home. Women are often terrorized so that they do not assert their rights. Position of women has gone through drastic change in the context of Indian history. Society has been emphasized with the changing of image of women and its impact on the modern society.
Tracing back from history, women has gone through a very difficult and different experiences at different times. In the society there patriarchal system was in trend, it was difficult to adopt the matriarchal system which promoted the dignity of women and provides status to it.
According to historian Romilla Thaper-
within the Indian sub-continent there have been infinite variations on the status of women diverging according to cultural malices, family structure, class, caste property rights and morals.
The period thereto is divided in three aspects:
Definition: for this purpose, sexual harassment includes such unwelcome sexually determined behavior ( whether directly or by implication ) as[2]:
On account of domestic violence specially brides are subjected to harassment for demand of dowry and compelled to commit suicide. Abetment of suicide of a disordered mental state of person is an offence punishable with death or 10 years of life imprisonment as under section 305 and 306 of IPC.
Definitions
Various authors have propounded the definition of crime which are listed below. According to Kenny[1], crime is wrong whose sanction is punitive.
According to Bentham[2], offences are whatever the legislature has prohibited If the question relates to a theoretical research for the discovery of the best possible laws according to the principles laws according to the principles of utility, we give the name of offence to every act which we think ought to be prohibited by reasons of some evil which it produces or tends to produce.
According to Blackstone[3], crime is an act done in violation of public rights. Generally crime is more than an act of mere disobedience to law. It is an act which is both forbidden by law and revolting to the moral sentiments of society. Various authors have propounded definitions of crime. Crime is defined as an act punishable by law as forbidden by statute or injurious or injurious to public welfare is a crime.[4] In modern complex, society things may be against the public welfare. Selling contaminated food, molestation of young children or women in railway trains and misleading advertisements may all the said to injurious to public welfare.[5]
The United Nations define crime against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life .The semantic meaning of crime against women is direct or indirect physical or mental cruelty to women. Crimes which are directed specially against women and in which only women are victims are characterized as Crime Against Women. It is equally important to clarify the concept of violence against women.
Violence is also known as abuse and include any sort of physical aggression or misbehavior. According to encyclopedia of Crime and justice,[6] in a broad sense, violence is a general term referring to all types of behavior either threatened or actual, the result in the damage or destruction of property or injury or death of an individual. According to Black's law dictionary[7], violence means unjust or unwarranted use of force usually accompanied by fury, vehemence, or outrage, physical force unlawfully exercised with the intent to harm.[8]
Sutherland characterizes, crime as a symptom of social disorganization. Modern sociological penologists treats crime as a social phenomenon, which receives disapprobation of the society.[9]
Halsbury defines crime as an unlawful act, which is an offence against the public and the perpetrator of that act is liable to legal punishment.[10]
Donald taft defines crime is a social injury and an expression of subjective opinion varying in time and place.[11]
For the definition of women, The Indian Penal Code has defined women as female human being of any age.[12]
These statistics are alarming. It is imperative for all Indians to tackle these problems and improve initiatives and legislation that empower women and girls. From one to the other, it covers wide interpretation regarding the status of women in India. Social norms and culture also play a part in influencing a woman's mobility because some of the cultural beliefs do not support the idea of women going out of their homes to feed themselves and their families.[14]
The problem of underestimation of crime against women is compounded by failure of justice system of the country in securing justice. The amendments made to criminal law are not comprehensive. Apart from such generally applicable laws, many women were in a position of legal dependence as a result of their particular situation, being in youth, poverty or enslavement[15].
We live in a society where women particularly young women and girls are kept under tight control in both urban and rural settings, discouraging them from opening up about sexual abuse at home or at work. One particular problem being that the range of extremely violent crimes against women is large and the official categories are unbelievably foul. No doubt society involves group of people living together and no study can be done leaving a group in the society.
This research will primarily focus on Illiterate women as being the core part and essential for the study of crime against women. India ranked poorly at global level in Gender inequality Index (GII) having 129th position out of 145 countries surveyed. A G-20 survey has ranked India as the worst place for a woman.
The National crime records bureau shows that a crime is committed against a woman every third minute, a woman is raped every 29th minute, a dowry death occurs every 77th minute and one case of cruelty, committed by either the husband or relative of the victim, every ninth minute.[16]
In India women education never got its due share of attention. From the medieval India women were debarred from the educational field. According to medieval perception women needs just household education and this perception of Medieval India still persists in villages of India even today. Girls are supposed to fulfill domestic duties and education becomes secondary for them whereas it is considered to be important for boys.
The people of villages consider girls to be curse and they do not want to waste money on their education and time on them as they think that women should be wedded off as soon as possible. The main reason behind this is their economic inability. The lack of education is root cause for so many problems. An uneducated women cannot understand the things and gather knowledge of being protective in eyes of law.
With spread of education and social advancements, women should be given status in society so as the ill element to illiteracy can be set away. The condition being that women are just places in four walls and are not given chance to groom and develop themselves according to the need of hour.
The widespread of thinking of rural areas has not led their girls and women to come out and learn. They wanted them to learn household works and then marry them at a very younger age. This tradition which is followed by ages has still hindered society in many aspects and has not led women to come out and learn.
No doubt the government in every state has considerably and is giving focus and ideas as to how women can be secured and provide literacy to it but this cannot by possible without the efforts of the society also. The position of Indian women has not been better compared to their counter parts in the world.
Traditionally the women is foundation stone of the family and society in general. She creates life, nurtures it, guards it and strengthen it. Being the supreme law of nation, the constitution of India prohibits any discrimination solely based on the ground of sex in general and in matter of public employment. The prohibition of gender based discrimination has been given the status of a fundamental right.
The universality of crime against women and its repercussions, not only for women's development and empowerment, but for society as a whole necessitates the intervention of state, civil society and the legal mechanism for alleviating the problem. Law plays a significant role in eradicating the crime against women and reconstructing their identities but lacks on its strong implementation. As Martin Luther King[17] observed law cannot change hearts but can restrain the heartless. The legal edifice effectively affirms and promotes principles of equity and equality of women.
Supreme Court in Air India v. Nagesh Meerza[1] has held that a woman shall not be denied employment merely on the ground that she is a woman as it amounts to violation of Article 14 of the Constitution. The apex court in Suchita Srivastava & Another v. Chandigarh Administration,[2] observed that a woman's right to make reproductive choice is also a dimension of personal liberty under Article 21 of the constitution of India, 1950.
In Parvathi and karthikeyan (2002), according to him education plays an important role as a means of human resource development. Education is the greatest force for empowerment. Empowerment can only be acquired through knowledge. Smt. Sushila Kaushik, she throws light on the different issues responsible for women's achievement as well as pitfalls. She states that even if the funds and credits are available to the women, one should see whether they are available to women.
The opposition needs to realize that law works on the principle of Checks and Balances, therefore when a woman has a certain right, there needs to be a provision for its safeguard. The mere problem of the society is that when they find any crime happening against women the society blindfold itself just to avoid deteriorating the reputation of the victim. Maybe the legal system has decided to abandon the objectives of protecting women against crime.
The evidence is everywhere; the voice of women is increasingly heard in Parliament, courts and in the streets. Unfortunately, women in this country are mostly unaware of their rights because of illiteracy and the oppressive tradition. There is no doubt that we are in the midst of revolution in the history of women. Over 32000 Murders, 19000 rapes, 7500 dowry deaths and 36500 molestation cases are the violent crimes reported in India in 2006 against women.[3]
These are figures released by the National Crime Records Bureau recently. The 21st century women in India has vulnerable to anti-social elements despite tremendous strides in technological advancements posing a serious challenge to the Indian diaspora.
The Indian sub-continent is a glaring witness to the innumerable foreign invasions over centuries which resulted in the diverse mix of cultures and traditions under different times of alien rule. The ancient concept of pativrata (virtuous wife) still holds good among the mainstream Indian Society. The modern slogan of protecting women seems to be Paternalistic and patronizing attitude, the need of hour is Equitable Access to both men and women.
The issue of safety of women cannot be seen in isolation. The judiciary, the society and the media together can play an active role in guaranteeing Indian women the safety they deserve. Media can be utilized in campaigning for women's right and education and the importance of feminism. In State of Maharashtra v. M.N. Mardikar[4], it was held that the Right of Privacy is included in right to live as guaranteed by Article 21 of the constitution and a woman of easy virtue is entitled to privacy as and when she likes. She is fully entitled to protect her person if an attempt is made to violate it against her wish.
It is the duty of law enforcement agencies to prevent crime against women but they fail to solve the scourge alone. Teamwork by people is the key eradicating this menace. People must come forward to help in rooting out such social evils. Law enforcing agencies cannot work alone.
When the people are dynamic in their drive against crime, the police cannot remain a mute spectator though they are supposed to be the protectors of citizens. They will be forced to dispense their bounden duty. Youth should be motivated to be socially responsible and protect women. This is the need of the hour. Everyone must think of changing society. In India, women are devalued traditionally and the men are normative reified. According to Hindu Mythology, the word Ardhanarishvara meaning the Lord whose half is woman. What is the value of a man without woman?
We shouldn't forget that woman is root of our society. 65% of Indian men believe women should tolerate violence in order to keep the family together, and women sometimes deserve to be beaten[5]. The combat violence and other abuses against women, Telangana police have established SHE TEAMS to focus on the safety of women[6]. Feminist activism in India gained momentum in the late 1970's. One of the first national level issues that brought women's groups together was the Mathura rape case. The acquittal of police men accused of raping a young girl Mathura in police station led to country wide protests in 1979 – 1980.
The protests widely covered by the national media, forced the government to amend the evidence act, the Criminal Procedure Code and the Indian Penal Code and created a new offence, custodial rape.[7]
In 2018, a survey by Thomson Reuters Foundation termed India as the World's most dangerous country for women due to high risk of sexual violence.[8] Although National Commission for women rejected the report stating that the sample size was small in number of people surveyed and could in no way reflect the state of affairs in a country of 1.3 billion people. National commission for women also pointed out that there could be no doubt that India is far ahead of a number of country in terms of Rights of women.[9]
The survey was similarly rejected by the centre for study of Developing Societies on the grounds that it lacked transparency with respect to sample size and selection bias. [10] Crime against women in India has an evidentiary value which indicates that strategies to improve reporting are probable working.
Researchers found that the opening of all women police stations increases reported crime against women by 22%. Until India becomes a full reporting country, rising rates of crime against women might be indicative of better reporting.[11] In urban and rural areas of study, the women were of varying ages, had varying results with levels of literacy.
In particular to crime against women with special reference to illiterate women have more prevalent results. Although the rates of domestic violence are similar across both rural and urban areas[12], studies from USA indicates that rural communities receive limited access to services, including lower education and literacy rates, higher isolation and poverty rates. Education increases autonomy and more importantly empowerment, social or economic.[13]
Women have always been treated as an object of gross and severe violence at the hands of women. The biological weakness is the key factor behind making a woman weak and to become an easy prey particularly to physical domination. Even today, in the penultimate decade of 21st century, women are not being allowed to live successfully the life of a human being. Literacy is the key to social and economic progress.
In challenge across the justice chain for women in conflict with law, women especially may suffer from illiteracy and lack of necessary knowledge. In spite of having so many enactments, amendments and various form of laws dealing with women and judgments of Supreme Court protecting women the downtrodden and poor conditions of women has not been improved and she still faces all type of atrocities and legislature and judiciary some what fails to provide respect to women in society.
Illiteracy has resulted into various social evils which harass women in one way or the other. No doubt government has taken many initiatives to educate girl child but this practice is not brought up by the rural areas specially as they believe in child marriage and engaging girls in household tasks. Literate women are more aware about their rights and laws associated with crime against them but the problem is with the illiterate ones. They are not substantially aware about what are laws and what is the procedure which can be followed to secure there rights.
Making aware the ones who are already aware is not a matter of spreading awareness among society rather the focus should be on the area which is unaware i.e. the rural women or women living in remote areas. In this context crime against illiterate women are reported more than the literate ones. The reason lies in the statement itself.
Prof. (Dr.) K.D. Gaur's Textbook on the Indian Penal Code has made an in depth study on various sections related to crime against woman with latest case laws and the need of amendment of Indian Penal Code, 1860 with the Criminal amendment act, 2013. The author with the selected commentary and latest case laws has explained the sections related to crime against woman. The author's book has termed to be classic in the filed of criminal law.[14]
Mamta Rao in his book Law relating to women and children has discussed the law relating to woman and children. The author has highlighted the treatment given to women during ages and how the government can provide woman equal status to man.[15] Supreme court in Dr. N.G. Dastane v. Mrs S. Dastane [16], has referred to the aspect of cruelty as to what is cruelty. Crime against women is also found to be varying. Its variations depends upon many factors like illiteracy, economic development, socialization, social control etc.
Sushma (1990)[17] gives a collection of articles in which she tried to examine various atrocities against women like bride burning, dowry, wife battering, sati, divorce, domestic violence, and also crime against aged women in the society. She found that women have been socially, economically, physically, sexually exploited in India since long sometimes in the name of tradition, sometimes in the pretext of writings in scriptures and sometimes by social sanctions.
Mishra Jyotsana(2000)[18] stated that violence affects the lives of millions of women worldwide in all socio legal analysis. It cuts across religious and cultural barriers, impeding to participate the women in the society. Raising awareness in the society and educating men and boys to view women's valuable partner' life for that development of society and for attainment of peace are just important as taking legal steps to protect women' human rights.
Roy (2000)[19] violence against women continues unabated in our country, both inside and outside the home despite legal safeguards provided to women. Women are often terrorized not to access their rights. Violence against women shows itself as rape attack, stripping, eve prodding, abduction and so forth. Although violence against women is globally difficult it is yet to be acknowledged as an issue of human rights violence.
Kushwaha (2003)[20] is of the view that inter disciplinary and multi dimensional character of women is of crucial importance because of their vital contribution in the development. After realizing the crucial role of women it is desirable to great extent for all round development as providing education and jobs in the field of research in the segment of population.
Forming opinions about the study , we come through two opinions about the need of stringent laws, sensitive judiciary, effective law and enforcement machinery and vigilant women's groups to deal with such atrocious crime against women. But what is needed more than anything else is a total revolution in the thinking of society that always blame women for the crime of which she is the victim, not the perpetrator. The problem of crime has root cause in a sociological- economic order that is heavily biased against women.
The legislature has used the definition of gender[21], the pronoun he and its derivatives are used of any person whether male or female. The word has been used intentionally by the legislature meaning the concept of Equality but if we talk about the practical aspect, it seems legislature has itself forgot to contrast a line between the perspectives of male and female.
According to Article 15(3) of the Constitution, discrimination on grounds of religion, race, caste, sex or place of birth shall not prevent the state from making any special provisions for women and children. Article 15(1) prohibits gender discrimination. Article 15(3) lifts that ignominy and permits the state to positively discriminate in favor of women to make special provisions to ameliorate their social, economic and political conditions and accord them parity.[4] Article 15(3) of the constitution makes special provisions for women and children. It empowered the state to make special legislation in this regard. The courts have always approved the validity of such special legislation rather special measures.
These women and children oriented beneficial legislation can be seen in the ambit of the Criminal Law.
According to Article 39(a) the state should direct its policy towards securing that the citizens, men and women equally have the right to an adequate means of livelihood. As per Article 39(d) of the Constitution in the states that there should be equal pay for equal work for both men and women. Thus, the state is under Constitutional obligation to direct its policy towards securing that there is equal pay for equal work for both men and women.
The apex court in Suchita Srivastava & Another v. Chandigarh Administration,[5] observed that a woman's right to make reproductive choice is also a dimension of personal liberty under Article 21 of the constitution of India, 1950.
In Randhir Singh V. Union of India[6], has expressed the opinion that the principle of equal work is not declared in the constitution to be a fundamental right but it is certainly a constitutional goal. Though there are so many laws are present in the statute but this are kept in pen and paper. The beast of our society done this crime very rampant way.
There is a need of a policy to bring about the advancements, development and empowerment of women. Institutions and mechanisms for assistance are lacking to create and strengthen for prevention of such violence and for taking effective action against the perpetrators of such violence. The feminist jurisprudence within the broad framework of gender injustice has always been an alarming element to the society's growth and change[1].
Women and law are so interconnected that there exist some heated questions and critical challenges the social institutions by providing detailed evidence of important cases, judicial precedents, trails, etc. protection of Rights of women are considered as an integral part of HUMAN RIGHTS. To make law keep its promise, it behaves on the judiciary to help actualization of statutory objectives.
In Neelam Mahajan Singh v. commissioner of police,[2] the question on balance between freedom of speech and expression and public decency it was held that there is no need to bowdlerize all literate and thus rob speech and expression. A balance should be made between the two. Concerning to provide ease of access to rights in order to eliminate all obstacles is the way of administration of justice is need of hour to women. Efforts for structural transformation of gender hierarchies target women discrimination as only women manifestation.
On one side we talk about providing equality women and men and on the other hand we talk about how there exist difference between men and women. The essence itself is homogenous. Deprivation, discrimination and atrocities are the three parameters which in context shows how the women is being effected in the society.
Important Aspect
The core area of the research would mainly focus on the women living in slums, backward areas being villages, so that a contrast could be varied in term of what are the gap behind the modernized 21st century and the ones being unaware of what ill-elements are originating the society.
Scope
The need to incorporate women issues has considerably essential in this modernized society. India being Asian regions develops a significant position in terms of quantity and diversity of women laws and studies. Hence, the study will lay more impact on reforms required to be done to protect women against crime with special reference to illiterate ones.
The Indian law prior to the Nirbhaya Incident took into account only acts of penile-vaginal intercourse within the definition of rape and forcible acts of penetration of vagina, mouth, urethra or anus through penis or an inanimate object did not fall within the definition of rape. Many rapists were not prosecuted because there was no law to punish such acts. The definition was expanded in 2013 to consider rape as any acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape.
The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
Section 53A of the Code of Criminal Procedure of the Indian law lays down certain provisions for medical examination of the accused. Section 164A of the Code of Criminal Procedure deals with the medical examination of the victim. The revised statutes of 2013 Indian law, in section 376A, mandates minimum punishment in certain cases.
For instance, if the sexual assault inflicts an injury which causes death or causes the victim to be in a persistent vegetative state, then the convicted rapist must be sentenced to rigorous imprisonment of at least twenty years and up to the remainder of the natural life or with a death penalty." In the case of "gang rape", the same mandatory sentencing is now required by law. The convicted is also required to pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim, and per Section 357 B in the Code of Criminal Procedure. Death penalty for the most extreme rape cases is specified.
The 2013 law also increased the age of consent from 16 years to 18 years, and any sexual activity with anyone less than age of 18, irrespective of consent, now constitutes statutory rape. The new law has made it mandatory for all government and privately run hospitals in India to give free first aid and medical treatment to victims of rape.
As well, in May 2013, the Supreme Court of India held that the two-finger test on a rape victim violates her right to privacy, and asked the Delhi government to provide better medical procedures to confirm sexual assault. On 3 November 2015 the Allahabad High Court observed that a child born out of rape will have inheritance rights over the property of the assaulter and will be treated as illegitimate, however if the child is taken for adoption then he/she will not have any rights on the property of the biological father.
Human rights for illiterate women are therefore an inalienable, integral and indivisible part of human rights. The full development of personality, fundamental freedom and equal participation by illiterate women in political, social, economic and cultural scenarios are commitment for international as well as national development, social and family stability and growth- culturally, socially and economically. All forms of discrimination on grounds of gender are thus, violative of fundamental freedom and human rights. Gender injustice and insensitiveness manifests itself in the form of discrimination, crime and violence against illiterate women.
Taking cognizance of this repression all over, the United Nations passed various instruments which a focus on illiterate women's emancipation and with the object of enhancing the dignity of illiterate women all over the world. Violence against women is an obstacle to the achievement of the objectives of equality, development and peace.
The low social and economic status of women can be both a cause and a consequence of violence against women. Violence against women is a manifestation of the historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of women's full advancement.
Constitutional provisions in India
Constitutional Privileges
Constitutional Provision for Women in India
A Constitution is a basic document of a country having a special legal sanctity which sets the framework and the principal functions of the organs of the Government of a State and declares the principles governing the operation of these organs. The Constitution aims at creating legal norms, social philosophy and economic values which ate to be affected by striking synthesis, harmony and fundamental adjustment between individual rights and social interest to achieve the desired community goals.[1]1. Preamble
The preamble contains the ideals and aspirations of the people of India. One of the golden ideals is the equality of status and of opportunity. This objective has been achieved by and large by providing equality clause in the Constitution of India. The equality clause expressly prohibits discrimination on the basis of race, religion, caste, sex, and place of birth and guarantees equality before the law and equal protection of laws irrespective of race, religion, cast, sex etc. Thus the Indian Constitution has ensured equal status to all i.e. not only between men and men, women and women but also between men and women.163 Constitution of India provide the basic foundation on legislation and laws built in Article 14, 15, 16, 21, 39 of the Constitution of India.
A basic understanding of some of the constitutional guarantees is pertinent to the subject of equal representation of women in the society.
2. Fundamental Rights
Fundamental Rights which are the most effective of every person like, man, woman and child because they are applied and enforceable as constitutional and fundamental rights in India. Justice Bhagwati said that rights are: - These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.[8] Thus, fundamental rights are very important part of the Constitution of India.
Code of Criminal Procedure
a. In Clause ( v ), for the word and figures, 'and 304' , '304 and 304B' shall be substituted.
b. After Clause, ( xii )insertion of the following: 'Section 498B (that is offences relating to dowry)'.
Indian Evidence Act:
a. Insertion of S.113AA. Burden of proof lies with the person charged with S498 IPC (Dowry Offence).
General Suggestions and Remarks:
The State shall, in particular direct its policy towards securing:
Empowerment-legal, social and economic, however, empowerment and equality are based on the gender sensitivity of society towards their problems. The intensification of women's issues and rights movement all over the world is reflected in the form of various Conventions passed by the United Nations. These international protections have helped in the articulation of feminist ideology.[1]
Gender equality, as an ideal has always eluded the constitutional provisions of equality before the law or the equal protection of law. This is because equality is always supposed to be between equals and since the judges did not concede that man and women were equal, gender equality did not seem to them to be a legally forbidden inequality.[2]
Justice Bradley of the United States Supreme Court said: The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.....The paramount destiny and mission of women are to fulfill the noble benign officers of wife and mother. This is the law of Creator.[3] It is also worthwhile to quote words of an eminent American judge who, after tracking the historical background, explained the need for special provisions being made for women.
Such as:
That women's physical structure and the performance of maternal functions place her at a disadvantage for subsistence is obvious. History discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength and this control in various forms, with diminishing intensity, has continued to the present. Education was long denied to her, and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother.
She will still be where some legislation to protect her seems necessary to secure a real equality or right.[4] As late as in 1961, the United States Supreme Court upheld a law placing a woman on the jury list only if she made a special request as put by Justice Harlan:
A woman is still regarded as the centre of home and family life.[5]
Basically, as pointed out by Dicey[6], the Constitutional theories of Rule of Law and the fundamental rights stemmed from the struggle for individual liberty and were intended to curb the power of the State. For a long time gender issues did not come in the limelight. But as pointed out by Felix Frank future[7]: Our Constitutional guarantees of individual freedoms are not static but are expressions of basic human values.
They transcend day to day shift in majority wishes and hence require redefinition from time to time to meet narrowly recognised if not narrowly created human needs. In our country, the Constitutional makers while drafting the Constitution were sensitive to the problems faced by women and thus made specific provisions relating to them.
The supreme court, in its various articles, not only mandates equality of the sexes but also authorities begin discrimination in favour of women and children to make up for the backwardness which has been their age-old destiny. But categorical imperatives constitutionalised by the founding Fathers are not self acting and can acquire socio legal locomotion only by appropriate State action.[8]
Legal frame work and role of Judiciary in India
Overall Crime, Atrocity and violence against Women in a Legal Frame Work and Role of Judiciary in India for Women have been studied in two category;
In Neera Mathur V. LIC[1], The court decided that privacy was an important aspect of personal liberty. In this case, the Supreme Court was shocked to learn that an LIC questionnaire sought information about the dates of menstrual periods and past pregnancies, and the petitioner was terminated for not providing correct information to the LIC.
The Supreme Court held that the questionnaire amounted to invasion of privacy and that, therefore such probes could not be made. The right to personal liberty guaranteed under article 21 included the right to privacy. Information about health could be sought where such information was relevant- it was relevant for selling insurance cover but not for the person seeking employment.
In Gautam Kundu v. State of west Bengal[2], the apex Court ensured that an application for a blood test to disprove paternity of a child in a maintenance suit was rejected. It was held that a child born of a married woman is deemed to be legitimate unless the contrary is proved. Such a presumption could be rebutted by a strong preponderance of evidence and not a mere balance of probabilities.
The Court laid down the following principles:
In Surjit Singh v. Kanwaljit Kaur[3], the High court held; Allowing the medical examination of a woman for her virginity would certainly violate her right to privacy and personal liberty enshrined under Article 21 of the Constitution. Such an order would amount to a roving enquiry against a female who are vulnerable even otherwise. In the instant matrimonial case the question of virginity of the wife is not in issue and the virginity test cannot constitute the sole basis to prove the consummation of marriage. Allowing such a medical examination of the wife would be holding a roving enquiry which is not permissible.
Thus, order of Lower Court dismissing application by husband for getting wife medically examined in order to prove her virginity is proper.
In Zahida Begam v. Mustaka hamed[4] a suit was filed by the wife for dissolution of marriage on the ground of impotency of husband who was unable to perform marital obligations. The husband denied that he is impotent or was unable to perform marital obligation. On the contrary he requested the court that wife be directed to undergo medical checkup so as to ascertain her virginity. Karnataka High Court held that the direction of the court to the wife to undergo virginity test was improper and invaded privacy of the plaintiff wife, which was violation of the Article 21 of the Constitution.
In Bodhisattwa Gautam v. Subhra Chakraborty[5]the complainant, a student, was induced by the accused, a teacher, on false assurance of marriage to cohabit with him. He not only made false assurance of marriage but also fraudulently went through marriage ceremonies. When she became pregnant the accused made her undergo an abortion. When she asked him to maintain her, he disowned her on the ground that there was no marriage.
He was prosecuted under various sections of the IPC. The Supreme Court refusing to quash the prosecution ruled that rape was not only an offence under the Penal Code but was also a violation of a woman's right to live with dignity and personal freedom. It is a crime against basic human right and it is also violative of victim's most cherished of Fundamental Rights, namely, the right to life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women.
In State of Maharashtra v. Madhukar N. Mardikar[6], the Supreme Court said with reference to rape, which unchastely of a woman does not make her open to any and every person to violate her person as and when he wishes. Even a prostitute has a right to privacy under the Article 21 and no person can rape her just because she is a woman of easy virtue. Another dynamic judgment with reference to Article 21 is Chairman Railway Board v. Chandrima Das[7],
The Court in this case observed that the word life as used in the Universal Declaration must get the same meaning as in Article 21. Its meaning cannot be narrowed down. Here relief was provided to a Bangladeshi woman who was raped. The term life in the International Conventions relating to Human Rights and Article 21 were interpreted to mean life worth living, meaningful and dignified.
In Vishaka v. State of Rajasthan[8], The Supreme court in the field of sexual harassment of working women at their place of work, formulated guidelines for their protection. According to Supreme Court:
Gender equality includes protection from sexual harassment and right to work with dignity which is a universally recognized basic human right, the common minimum requirement of this right has received global acceptance.
In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the content of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14,15,19(1)(g) and 21 of the constitution and the safeguards against sexual harassment implicit therein and for formulation of guidelines to achieve this purpose.
Kailash v. State of Maharashtra[9] demonstrates a typical instance of brutal atrocity against a tribal woman who had been beaten and paraded on the village road in broad day light. The session's court had awarded the minimum punishment under sections 452,354,323,506(2) read with section 3 of Scheduled Cast and Scheduled Tribes (Prevention of Atrocities) Act 1989.On appeal to the High Court of Bombay, that part of the session court's order regarding fine imposed under various sections of IPC was set aside and each of the appellant was directed to pay a fine of Rs.5000/- only to the victim.
The conviction of the accused under section 3 of the SC/ST Act too was set aside on hyper technical grounds that the caste certificate was not produced and investigation by a police officer of the rank of deputy superintendent of police was not done. When the matter reached the apex court, the court took a very serious note of atrocities against illiterate women and considered the above mentioned defects as mere technicalities and hardly a ground for acquittal. The court observed that the sentence was too light considering the gravity of the offence.
The court by described the instance as shameful, shocking and outrageous offence. The dishonor of the victim called for harsher punishment, and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Judge. It is commendable that though all the eye-witnesses have turn hostile, the court rightly relied on the statement of the victim. The humiliation done to the tribal woman is shameful. Considering that the Constitution of India mandates equal respect to all communities, sects, lingual and ethnic groups in the country, it is high time to stop the atrocities against tribal in general and tribal illiterate women in particular.
In Sonu Kumar v. State of Himachal Pradesh[10] while acquitting the accused from charges under section 366(A) of IPC, the High Court of Himachal Pradesh reiterated that three principal ingredients are must to constitute an offence under section 366-A IPC: (a) a miner girl below the age of 18 years is induced by the accused: (b) she is induced to go from any place or to do any act, and (c) she is so induced with intent that she may be or knowing that it is likely that she will be forced to seduce to illicit intercourse with another person.[11]
In Jiban Das v. State of Tripura,[12] where a husband set fire on his wife and put her to death , referring to karnel Singh v. State, the High Court of Gauhati reiterated that in the cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused person solely on account of the defect; to do so would tantamount to plying in the hands of the investigation officer, if the investigation is designedly defective. Heavily criticising the court below and investigating officers the court held thus.[13]
In Gulab v. State of M.P.[14] the High Court of Madhya Pradesh restated that the testimony of the prosecutrix alone can form the basis of conviction if it inspires confidence and is found to be reliable. While upholding the conviction of the accused the court also expressed its disappointment in not awarding the minimum statutory punishment in the following words: The victim was a minor of 12 years of age. She was alone and helpless at the place of incident.
The accused took advantage of such situation and committed the rape. It is unfortunate that the session's judge had been lenient in passing the lesser sentence than the minimum sentence prescribed in the law. The leniency of the courts in rape cases cannot be appreciated. The courts must award maximum punishment in rape cases especially where minor girls are involved.
In State of U.P. v. Pappu[15], the finding a rape case that prosecutrix was not having good character and was a girl of easy virtue was held by the Supreme Court to be no ground for acquittal of accused.
The Court held that:
Even assuming that the victim was previously accustomed to sexual intercourse that is not a determination question. On the contrary, the question which was required to be adjudicated was- did the accused commit rape on the victim on the occasion complained of?
Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even the victim in a given case has been promiscuous in her sexual behaviour earlier. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not vulnerable object or prey for being sexually assaulted by anyone and everyone.
The facts in Kamalanantha v. State of T.N.[16], shocked the judicial conscience. The insatiable lust for sex of Swami Premananda led to raping 13 Ashram girls and murder of one. The ashram which is supposed to be God's abode turned out to be devil's workshop.
It is a classic case of betrayal of fatherly and divinely trust of inmates of Ashram girls who were orphans and destitute. Plea taken in this case was that some of the prosecutrix consented to the sexual intercourse.
However, the facts show that the consent was obtained by deceitful means as most of the girls in the ashram were orphans with no other place to go, Accused had dominion and control over them. Therefore, Consent obtained by deceitful means or under threat of death or hurt is no consent at all. It cannot be said, therefore, that charge levelled against accused does not fall in the category of rape.
In Bhupinder Sharma v. State of H.P.[17] the court held that:
To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestations be viewed with the aid of spectacles filled with lenses tinged with doubt, disbelief or suspicion?
In Satvir Singh v. State of Punjab[18] reflected the scope of the sections in the IPC. The Court held that Section 306, IPC read with Section 113-A of the Indian Evidence Act, has only enabled the court to punish a husband or his relatives who subjected a woman to cruelty as envisaged in Section 498-A, IPC and such woman commits suicide within seven years of her marriage. It is immaterial for Section 306, IPC whether cruelty or harassment was soon before her death or earlier. If it was soon before her death the special provision in Section 304-B, IPC would be inviolable, otherwise Section 306, IPC can be resorted.
The requirements of section 304B were examined in Rajesh Bhatnagar v. State of Uttarakhand,[19]. The requirements are: The death of a woman is caused by burns, bodily injury or otherwise than in normal circumstances; and death has been caused or occurred within 7 years of marriage.
Further, it should be shown that soon before her death, she was subjected to cruelty or harassment by her husband or her husband's family or relatives and thirdly, that such harassment should be relation to a demand for dowry. Once these three ingredients are satisfied, the death shall be treated as a dowry death and once a dowry death occurs, such husband or relative shall be presumed to have caused the death.
Thus, by fiction of law, the husband or relative would be presumed to have committed the offence of dowry death rendering them liable for punishment unless the presumption is rebutted. It is only a presumption of law in relation to a death but also a deemed liability fastened upon the husband/relative by operation of law.
In Appasaheb v. State of Maharashtra,[20] the apex court held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. However, Appasaheb was reconsidered by the apex court in Bachni Devi v. State of Maharashtra[21] wherein it was that Appa saheb does not lay down a law of universal application. If a demand for property or valuable security, directly or indirectly, had nexus with marriage, such demand would constitute demand for dowry.
Pathan Hussain Basha v. State of A.P.[22] presented to the fact situations. The court observed that when there is charge under sections 304B and 498A IPC, the prosecution has to prove guilt of the accused beyond reasonable doubt. In the present case, the prosecution by reliable and cogent evidence has established guilt of the accused. Then, it was for the accused to show that death of the deceased did not result from any cruelty or demand of dowry by the accused persons.
The accused has to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of deceased. If it was his found that the accused did not care to explain as to how death of his wife occurred, the onus is not said to be discharged. Maintaining silence could not be equated to discharge of onus by the accused.
In the case Kulwant Kaur v. Gurudial Singh Mann[23] the court held that an issue pertaining to perversity comes within the ambit of substantial question of law. By holding that the high court has failed to exercise the jurisdiction conferred on it despite the plea of perversity being raised the court said that any finding which is not supported by evidence or inferences is drawn in a stretched and unacceptable manner can be said to be perverse. that court concluded that the childish and fanciful behaviour of the wife, the allegation by wife of the extra marital affair of the Appellant-husband, publication in the newspapers that the husband was a womaniser and a drunkard etc. amounted to cruelty.
Shashi Bala v. Rajiv Arora[24], was an appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeking to challenge the impugned order and decree passed by the learned trial court whereby a decree of divorce in favour of the respondent husband under section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim field by the appellant seeking a decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act was dismissed.
By reiterating Samar Ghosh v. Jaya Ghosh[25] the High Court of Delhi held that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In Premwati v. State of M.P.[26], it was held that Section 304-B(1) would be attracted not only when the death is caused by someone but also when the death occurs unnaturally. If occurrence of death is preceded by cruelty or harassment by in-laws for or in connection with a dowry demand and if the connection between the two is established, mere occurrence of death is enough though death may not have been caused by the in-laws.
In Hem Chand v. State of Haryana[27], the court was of the opinion that proof of direct connection of the accused with her death is not essential. The absence of direct connection of the accused with the death has to be taken into consideration in balancing the sentence to be awarded to the accused.
In Wazir Chand v. State of Haryana[28], was a case involving the death by burning of a newly-married woman? The circumstances did not establish either murder or an abetted suicide and the in-laws escaped the jaws of Sections 300 and 306, IPC.
But they were caught in the web of these newly enacted sections for the prevention of harassment for dowry. In this case, the fact that a large number of articles were taken back by the father of the deceased after her death from her matrimonial house, showed that pressure was being exerted by the in-laws for money and articles which continued to be exerted till her death.
A new dimension was added when the Supreme Court observed in Shobha Rani v. Madhukar Reddi[29], that a demand for dowry entitles the wife to get a decree for dissolution of marriage. Thus Section 304-B, IPC has given a new dimension to the concept of cruelty for the purposes of matrimonial remedies.
In State of Punjab v. Iqbal Singh[30], the court while convicting the husband held that:
The legislative intent behind incorporation of Section 113-A of the Indian Evidence Act and Section 304-B of Indian Penal Code was to strengthen the hands of the prosecution in a crime generally committed within the privacy of residential house.
In Kans Raj v. State of Punjab[31], a three judge Bench of the Court dealt with the presumption available in terms of Section 113-B of the Evidence Act and its effect on finding persons guilty in terms of Section 304-B IPC.
It was laid, The law as it exists now provides that 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 marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with demand of dowry, such death shall be punishable under Section 304-B.
Thus in order to seek conviction against a person for offence of dowry death, the prosecution is obliged to prove that:
The Presumption under Section 113-B of the Evidence Act was attracted. There was also unnatural conduct on the part of accused in not informing the parents of the deceased who lived only a few miles away from the village of the accused. He also caused disappearance of evidence thereby attracting Section 201 IPC.
The dead body was secretly and clandestinely cremated. Therefore the conviction of the accused was upheld under Sections 304-B and 201 IPC. In granting bail to the accused and charges of serious offences of cruelty and dowry death, the court laid down three factors in Gajanand Aggarwal v. State of Orissa[33], which may be considered before granting bail under Section 437 CrPC. These are:
In Kailash v. State of M.P.[34], in the wee hours of morning the dead body of deceased was found floating in a well, located in the house of the appellant. The death of the deceased occurred otherwise than in normal circumstances and within seven years of marriage. Evidence of witnesses clearly stated that deceased was subjected with dowry demand, torture and harassment by her husband.
The court found the conviction of accused husband under Section 304-B IPC proper. However on facts and circumstances, sentence of 10 years RI was reduced to eight years.
Illiterate women have suffered many problems in our society and country.
Discussed problem and many solution but they are not sufficient accurate solution these problem, therefore we make our social structure very strong for illiterate women favourable conditions for survive normal and healthy environment. If we give such type social environment, assure that we are getting empowered and successful illiterate women.
Conclusions And Suggestion
After analyzing the various aspects of issues relating to illiterate women it can be concluded that illiterate women are still facing the crime, atrocities and violence in a male dominated society. Even after the emergence of values, the concept of fundamental rights and basic freedoms for all, this section of society has been denied these freedoms in most parts of the India.
The proportion of IPC crimes committed against illiterate women towards total IPC crimes has increased during last 5 years from 9.2% in the year 2009 to 11.2% during the year 2013. The crime against illiterate women during the year 2013 has increased by 26.7% over the year 2012 and by 51.9% over the year 2009.
The IPC component of crimes against illiterate women has accounted for 95.6% of total crimes and the rest 4.4% were SLL crimes against illiterate women.[1] Crime, atrocities and violence against illiterate women are increasing at recent years in India. Such are:
Above stated data proves my hypothesis that existing legislation relating to crime against illiterate women are not sufficient/adequate to overcome the problem of crime, atrocities and violence against illiterate women. Although new legislations have been enforced and amendments made on existing legislations but the incidences of violence, sexual assaults, rape etc are on the increase. It is necessary that illiterate women should be given due respect and status in society.
For this purpose, it is necessary to change the attitude of society. Although on paper, there is no discrimination against illiterate women in plans and programmes of the Government, but poor illiterate women have been largely at low levels in the stairs of development. They are getting lower income and have, generally been living in lower status. Government Institution, in order to economically empower the illiterate women, should have made attempt to employ them in gainful employments.
It is submitted that we have no right to be called civilized unless both men and illiterate women get the status of equality. While doing my research I found illiterate women and girl children to be in a critical situation. They are not safe at homes, workplaces and other public places. Measures are necessary to improve our legislation and court's role in providing safety.
It is necessary that:
I feel that our mindsets have changed and we always blame the women for such crimes in which she is the victim and not the perpetrator. As neither law nor a single organization can by itself save our society from this evil, therefore, it is the duty of each and every person of our country to extend their support and raise their voices for this cause so that we can root out this cultural cancer from our society.
I have, from the studies conducted, tried to bring forth some solutions that can help alleviate the situation and help society combat and reduce such crimes. The world works on incentives. Some are inherent (internal) and some may be instrumental (external). All human beings are motivated to act in a certain way depending on these incentives.
Utilizing this connection, the table given below, proposes appropriate incentives to promote a crime free personality:
We see criminal personalities are enjoying their criminal activities and their activities are not tolerated by family, society and country. Although they have been punished for such crimes but such punishment has not been sufficient to deter others from committing such crimes. On the other hand, a person who has not committed any crime ever does not receive his/her due recognition/financial assistance.
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Web Sources:
The sociologists had described the women by propounding different perceptions. The era when Women were treated and respected on par with goddesses is bygone. The gradual evolution of the patriarchal mindset developed during post Vedic period coupled with the introduction of the rigid caste system rapidly denigrated the status of women. The multi-cultured society has placed the women at different positions. Thus, there is no uniform status of women in Indian society. However, civilization showed the overall upliftment of women's position.
Historical Background
Despite the constitutional provisions and safeguard provided for women, crime against women continues unabated in our country, both inside and outside our home. Women are often terrorized so that they do not assert their rights. Position of women has gone through drastic change in the context of Indian history. Society has been emphasized with the changing of image of women and its impact on the modern society.
Tracing back from history, women has gone through a very difficult and different experiences at different times. In the society there patriarchal system was in trend, it was difficult to adopt the matriarchal system which promoted the dignity of women and provides status to it.
According to historian Romilla Thaper-
within the Indian sub-continent there have been infinite variations on the status of women diverging according to cultural malices, family structure, class, caste property rights and morals.
Position Of Women In Pre- Independence Period
The position of women has considerably put an impact on sociological change.The period thereto is divided in three aspects:
- Vedic Period – The position of women during the Vedic period was
glorious on account of freedom and equality. During this period, the women
participated in every walk of life. Women studied in Gurukuls and enjoyed
liberty in every sphere.
They acquired efficiency in art, music and even warfare. The wife has been called the root of prosperity, enjoyment and dharma in Mahabharata. There was absence of Pardah system. - Post Vedic Period – The women had suffered drastic hardships and
restrictions as propounded by Manu. He attempted to set up male dominated
society by increasing the authority of man. The birth of a girl child was
treated as a disaster for the family. Girls were denied access to education.
- Medieval Period – The women's position was further degraded during the
medieval period with invasions of India by Alexander and the Huns. Society
observed security threats with invading soldiers roaming countryside;
consequently, women were placed behind the veil.
- Women's position during the British Period
The British period has undergone through the impact of change. Due to the western impact on the Indian socio-cultural pattern. The concept of equality, liberty and individual secularism, although, arose but limited to ruling class.
Two major movements took place during British period. These are: - Social Reforms Movement – this emerged in 19th century and raised the
question of equal status of women. Social problems showed their concern on
sati, prohibition of re- marriage, denial of right to property, child
marriage and education to women. Swami Vivekananda, Dayanand Saraswati and
Annie Besant were of opinion that old Vedic period should be revived which
was ideal for women's opinion that old Vedic period should be revived which
was ideal for women's status.
- National Movement – the movement drew the attention of a large number of people and generated confidence among women to raise their voice against oppressive system.
Types Of Crime Against Women
Crime has gained so much of social impact that on regular basis, many crimes are reported against women in different areas. The meaning and scope of domestic violence against women could aptly be clear from a glance at criminal law and civil law which address the offence as to domestic violence against women to certain extent.Criminal Law
Criminal law has given a wide interpretation to crime against women. Sections listed thereto have defined crime against women in its various forms and punishments in context to it. Some of them are listed below.Sexual Harassment Of Working Women At Work Place
The sexual harassment of women[1] particularly the working women at work place by their male counterparts is one of the evils of the modern society. In India, there is no one is capable to combat this evil of the sexual harassment of working women.Definition: for this purpose, sexual harassment includes such unwelcome sexually determined behavior ( whether directly or by implication ) as[2]:
- physical contact and advances;
- a demand or request for sexual favors;
- sexually colored remarks;
- showing pornography;
- any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Domestic Violence Against Women
It connotes any act or conduct which has potential to injure or hurt women – physically, mentally, emotionally, socially and also spiritually within the four walls of house, however, such an act or conduct is done usually not by strangers.Dowry Death
According to section 304-B IPC[3] where death of a married woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of marriage and if it is established that soon before her death she was subjected to cruelty by her husband or his relatives, such death of a married woman is treated as dowry death.When Women Is Driven To Commit Suicide
If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication, commits suicide, whoever abets the commission of such suicide, shall be punished with death or [ imprisonment for life][4], or imprisonment for a term not exceeding ten years and shall also be liable to fine.On account of domestic violence specially brides are subjected to harassment for demand of dowry and compelled to commit suicide. Abetment of suicide of a disordered mental state of person is an offence punishable with death or 10 years of life imprisonment as under section 305 and 306 of IPC.
Causing Hurt And Grevious Hurt[5]
It is common form of domestic violence. Section 319 of the Penal Code defines the expression hurt, as causing bodily pain, injury, infirmity and disease to any person, however, serious hurt is termed as grievous hurt under section 339 and 340 of the Indian Penal Code.Forceful Termination Of Pregnancy Amounts To Violence At Home
In the view of section 313 ( causing miscarriage without woman's consent), 314 ( Death caused by act done with intent to cause miscarriage), 315 ( Act done with intent to prevent child being born alive or to cause it to die after birth) and 316 ( Causing death of quick unborn child by act amounting to culpable homicide) of IPC[6] female infanticide or forcing the wife to terminate her pregnancy are also varieties of domestic violence which is recognized as an offence under the penal code.Unlawful Confinement
It is also one of the forms of domestic violence. When a woman's movement is restrained or confined within the four walls of house. It is a common form of domestic violence which is an offence punishable under sections 339 ( whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed is said wrongfully to restrain that person) and 340 ( whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits is said wrongfully to confine that person ) of the Indian Penal Code[7].Rape
A man is said to commit rape[8] if he:- penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
- inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
- manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman r makes her to do so with him or any other person; or
- applies his mouth to the vagina, anus, urethra f a woman or makes her to
do so with him or any other person, under the circumstances falling under
any of the following seven description:
- against her will
- without her consent
- with her consent, when her consent has been obtained by putting her or any other person in whom she is interested in fear of death or of hurt.
- 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.
- 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 substance, she is unable to understand the nature and consequences of that to which she gives consent.
- With or without her consent, when she is under eighteen years of age.
- When she is unable to communicate consent.
Civil Law
Civil law has also initiated in protecting the crime against women and interpreting laws accordingly. Women is placed at the stage where she needs justification regards to settlement of laws and securing her rights in the society.The Hindu Marriage Act, 1955
According to Section 13(1) (a) of the act, 1955[9], Any marriage solemnized, whether before of after the commencement of this act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party [has, after the solemnization of the marriage, treated the petitioner with cruelty;]. Cruelty is a legal ground for divorce. Though the term cruelty has not been defined under the said act but it is taken to mean acts of physical as well as mental cruelty. Section 10 of the act provides relief as to judicial separation, so the wife can get rid of her husband's abuses by living separately under the order of the court.The Dissolution Of Muslim Marriage Act, 1939
According to section 2 (viii) of the Dissolution of Muslim Marriages Act, 1939 cruelty means:- Habitually offending the wife or ill treating her.
- Forcing wife to lead immoral life.
- Disposing of wife's property without obtaining her consent
- Not allowing her to observe religious practice.
Definitions
Various authors have propounded the definition of crime which are listed below. According to Kenny[1], crime is wrong whose sanction is punitive.
According to Bentham[2], offences are whatever the legislature has prohibited If the question relates to a theoretical research for the discovery of the best possible laws according to the principles laws according to the principles of utility, we give the name of offence to every act which we think ought to be prohibited by reasons of some evil which it produces or tends to produce.
According to Blackstone[3], crime is an act done in violation of public rights. Generally crime is more than an act of mere disobedience to law. It is an act which is both forbidden by law and revolting to the moral sentiments of society. Various authors have propounded definitions of crime. Crime is defined as an act punishable by law as forbidden by statute or injurious or injurious to public welfare is a crime.[4] In modern complex, society things may be against the public welfare. Selling contaminated food, molestation of young children or women in railway trains and misleading advertisements may all the said to injurious to public welfare.[5]
The United Nations define crime against women as any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life .The semantic meaning of crime against women is direct or indirect physical or mental cruelty to women. Crimes which are directed specially against women and in which only women are victims are characterized as Crime Against Women. It is equally important to clarify the concept of violence against women.
Violence is also known as abuse and include any sort of physical aggression or misbehavior. According to encyclopedia of Crime and justice,[6] in a broad sense, violence is a general term referring to all types of behavior either threatened or actual, the result in the damage or destruction of property or injury or death of an individual. According to Black's law dictionary[7], violence means unjust or unwarranted use of force usually accompanied by fury, vehemence, or outrage, physical force unlawfully exercised with the intent to harm.[8]
Sutherland characterizes, crime as a symptom of social disorganization. Modern sociological penologists treats crime as a social phenomenon, which receives disapprobation of the society.[9]
Halsbury defines crime as an unlawful act, which is an offence against the public and the perpetrator of that act is liable to legal punishment.[10]
Donald taft defines crime is a social injury and an expression of subjective opinion varying in time and place.[11]
For the definition of women, The Indian Penal Code has defined women as female human being of any age.[12]
Sociological Aspect Of Law And Women
The Supreme Court as observed in Madhu Krishnan v. state of Bihar[13], women form half of the Indian population. Women have always been discriminated against men and have suffered denial and are suffering discrimination in silence. Women play an important role in the process of society's development in many phases. As India strives towards equal rights, a change in the perceptions of men and women is needed to reduce gender disparity. Statistics pertaining to crime against women have been comprehensively recorded and collated by the National Crimes Records Bureau under various headlines such as trafficking, dowry deaths and rapes.These statistics are alarming. It is imperative for all Indians to tackle these problems and improve initiatives and legislation that empower women and girls. From one to the other, it covers wide interpretation regarding the status of women in India. Social norms and culture also play a part in influencing a woman's mobility because some of the cultural beliefs do not support the idea of women going out of their homes to feed themselves and their families.[14]
The problem of underestimation of crime against women is compounded by failure of justice system of the country in securing justice. The amendments made to criminal law are not comprehensive. Apart from such generally applicable laws, many women were in a position of legal dependence as a result of their particular situation, being in youth, poverty or enslavement[15].
We live in a society where women particularly young women and girls are kept under tight control in both urban and rural settings, discouraging them from opening up about sexual abuse at home or at work. One particular problem being that the range of extremely violent crimes against women is large and the official categories are unbelievably foul. No doubt society involves group of people living together and no study can be done leaving a group in the society.
This research will primarily focus on Illiterate women as being the core part and essential for the study of crime against women. India ranked poorly at global level in Gender inequality Index (GII) having 129th position out of 145 countries surveyed. A G-20 survey has ranked India as the worst place for a woman.
The National crime records bureau shows that a crime is committed against a woman every third minute, a woman is raped every 29th minute, a dowry death occurs every 77th minute and one case of cruelty, committed by either the husband or relative of the victim, every ninth minute.[16]
In India women education never got its due share of attention. From the medieval India women were debarred from the educational field. According to medieval perception women needs just household education and this perception of Medieval India still persists in villages of India even today. Girls are supposed to fulfill domestic duties and education becomes secondary for them whereas it is considered to be important for boys.
The people of villages consider girls to be curse and they do not want to waste money on their education and time on them as they think that women should be wedded off as soon as possible. The main reason behind this is their economic inability. The lack of education is root cause for so many problems. An uneducated women cannot understand the things and gather knowledge of being protective in eyes of law.
With spread of education and social advancements, women should be given status in society so as the ill element to illiteracy can be set away. The condition being that women are just places in four walls and are not given chance to groom and develop themselves according to the need of hour.
The widespread of thinking of rural areas has not led their girls and women to come out and learn. They wanted them to learn household works and then marry them at a very younger age. This tradition which is followed by ages has still hindered society in many aspects and has not led women to come out and learn.
No doubt the government in every state has considerably and is giving focus and ideas as to how women can be secured and provide literacy to it but this cannot by possible without the efforts of the society also. The position of Indian women has not been better compared to their counter parts in the world.
Traditionally the women is foundation stone of the family and society in general. She creates life, nurtures it, guards it and strengthen it. Being the supreme law of nation, the constitution of India prohibits any discrimination solely based on the ground of sex in general and in matter of public employment. The prohibition of gender based discrimination has been given the status of a fundamental right.
The universality of crime against women and its repercussions, not only for women's development and empowerment, but for society as a whole necessitates the intervention of state, civil society and the legal mechanism for alleviating the problem. Law plays a significant role in eradicating the crime against women and reconstructing their identities but lacks on its strong implementation. As Martin Luther King[17] observed law cannot change hearts but can restrain the heartless. The legal edifice effectively affirms and promotes principles of equity and equality of women.
Supreme Court in Air India v. Nagesh Meerza[1] has held that a woman shall not be denied employment merely on the ground that she is a woman as it amounts to violation of Article 14 of the Constitution. The apex court in Suchita Srivastava & Another v. Chandigarh Administration,[2] observed that a woman's right to make reproductive choice is also a dimension of personal liberty under Article 21 of the constitution of India, 1950.
In Parvathi and karthikeyan (2002), according to him education plays an important role as a means of human resource development. Education is the greatest force for empowerment. Empowerment can only be acquired through knowledge. Smt. Sushila Kaushik, she throws light on the different issues responsible for women's achievement as well as pitfalls. She states that even if the funds and credits are available to the women, one should see whether they are available to women.
The opposition needs to realize that law works on the principle of Checks and Balances, therefore when a woman has a certain right, there needs to be a provision for its safeguard. The mere problem of the society is that when they find any crime happening against women the society blindfold itself just to avoid deteriorating the reputation of the victim. Maybe the legal system has decided to abandon the objectives of protecting women against crime.
The evidence is everywhere; the voice of women is increasingly heard in Parliament, courts and in the streets. Unfortunately, women in this country are mostly unaware of their rights because of illiteracy and the oppressive tradition. There is no doubt that we are in the midst of revolution in the history of women. Over 32000 Murders, 19000 rapes, 7500 dowry deaths and 36500 molestation cases are the violent crimes reported in India in 2006 against women.[3]
These are figures released by the National Crime Records Bureau recently. The 21st century women in India has vulnerable to anti-social elements despite tremendous strides in technological advancements posing a serious challenge to the Indian diaspora.
The Indian sub-continent is a glaring witness to the innumerable foreign invasions over centuries which resulted in the diverse mix of cultures and traditions under different times of alien rule. The ancient concept of pativrata (virtuous wife) still holds good among the mainstream Indian Society. The modern slogan of protecting women seems to be Paternalistic and patronizing attitude, the need of hour is Equitable Access to both men and women.
The issue of safety of women cannot be seen in isolation. The judiciary, the society and the media together can play an active role in guaranteeing Indian women the safety they deserve. Media can be utilized in campaigning for women's right and education and the importance of feminism. In State of Maharashtra v. M.N. Mardikar[4], it was held that the Right of Privacy is included in right to live as guaranteed by Article 21 of the constitution and a woman of easy virtue is entitled to privacy as and when she likes. She is fully entitled to protect her person if an attempt is made to violate it against her wish.
It is the duty of law enforcement agencies to prevent crime against women but they fail to solve the scourge alone. Teamwork by people is the key eradicating this menace. People must come forward to help in rooting out such social evils. Law enforcing agencies cannot work alone.
When the people are dynamic in their drive against crime, the police cannot remain a mute spectator though they are supposed to be the protectors of citizens. They will be forced to dispense their bounden duty. Youth should be motivated to be socially responsible and protect women. This is the need of the hour. Everyone must think of changing society. In India, women are devalued traditionally and the men are normative reified. According to Hindu Mythology, the word Ardhanarishvara meaning the Lord whose half is woman. What is the value of a man without woman?
We shouldn't forget that woman is root of our society. 65% of Indian men believe women should tolerate violence in order to keep the family together, and women sometimes deserve to be beaten[5]. The combat violence and other abuses against women, Telangana police have established SHE TEAMS to focus on the safety of women[6]. Feminist activism in India gained momentum in the late 1970's. One of the first national level issues that brought women's groups together was the Mathura rape case. The acquittal of police men accused of raping a young girl Mathura in police station led to country wide protests in 1979 – 1980.
The protests widely covered by the national media, forced the government to amend the evidence act, the Criminal Procedure Code and the Indian Penal Code and created a new offence, custodial rape.[7]
In 2018, a survey by Thomson Reuters Foundation termed India as the World's most dangerous country for women due to high risk of sexual violence.[8] Although National Commission for women rejected the report stating that the sample size was small in number of people surveyed and could in no way reflect the state of affairs in a country of 1.3 billion people. National commission for women also pointed out that there could be no doubt that India is far ahead of a number of country in terms of Rights of women.[9]
The survey was similarly rejected by the centre for study of Developing Societies on the grounds that it lacked transparency with respect to sample size and selection bias. [10] Crime against women in India has an evidentiary value which indicates that strategies to improve reporting are probable working.
Researchers found that the opening of all women police stations increases reported crime against women by 22%. Until India becomes a full reporting country, rising rates of crime against women might be indicative of better reporting.[11] In urban and rural areas of study, the women were of varying ages, had varying results with levels of literacy.
In particular to crime against women with special reference to illiterate women have more prevalent results. Although the rates of domestic violence are similar across both rural and urban areas[12], studies from USA indicates that rural communities receive limited access to services, including lower education and literacy rates, higher isolation and poverty rates. Education increases autonomy and more importantly empowerment, social or economic.[13]
Women have always been treated as an object of gross and severe violence at the hands of women. The biological weakness is the key factor behind making a woman weak and to become an easy prey particularly to physical domination. Even today, in the penultimate decade of 21st century, women are not being allowed to live successfully the life of a human being. Literacy is the key to social and economic progress.
In challenge across the justice chain for women in conflict with law, women especially may suffer from illiteracy and lack of necessary knowledge. In spite of having so many enactments, amendments and various form of laws dealing with women and judgments of Supreme Court protecting women the downtrodden and poor conditions of women has not been improved and she still faces all type of atrocities and legislature and judiciary some what fails to provide respect to women in society.
Illiteracy has resulted into various social evils which harass women in one way or the other. No doubt government has taken many initiatives to educate girl child but this practice is not brought up by the rural areas specially as they believe in child marriage and engaging girls in household tasks. Literate women are more aware about their rights and laws associated with crime against them but the problem is with the illiterate ones. They are not substantially aware about what are laws and what is the procedure which can be followed to secure there rights.
Making aware the ones who are already aware is not a matter of spreading awareness among society rather the focus should be on the area which is unaware i.e. the rural women or women living in remote areas. In this context crime against illiterate women are reported more than the literate ones. The reason lies in the statement itself.
Prof. (Dr.) K.D. Gaur's Textbook on the Indian Penal Code has made an in depth study on various sections related to crime against woman with latest case laws and the need of amendment of Indian Penal Code, 1860 with the Criminal amendment act, 2013. The author with the selected commentary and latest case laws has explained the sections related to crime against woman. The author's book has termed to be classic in the filed of criminal law.[14]
Mamta Rao in his book Law relating to women and children has discussed the law relating to woman and children. The author has highlighted the treatment given to women during ages and how the government can provide woman equal status to man.[15] Supreme court in Dr. N.G. Dastane v. Mrs S. Dastane [16], has referred to the aspect of cruelty as to what is cruelty. Crime against women is also found to be varying. Its variations depends upon many factors like illiteracy, economic development, socialization, social control etc.
Sushma (1990)[17] gives a collection of articles in which she tried to examine various atrocities against women like bride burning, dowry, wife battering, sati, divorce, domestic violence, and also crime against aged women in the society. She found that women have been socially, economically, physically, sexually exploited in India since long sometimes in the name of tradition, sometimes in the pretext of writings in scriptures and sometimes by social sanctions.
Mishra Jyotsana(2000)[18] stated that violence affects the lives of millions of women worldwide in all socio legal analysis. It cuts across religious and cultural barriers, impeding to participate the women in the society. Raising awareness in the society and educating men and boys to view women's valuable partner' life for that development of society and for attainment of peace are just important as taking legal steps to protect women' human rights.
Roy (2000)[19] violence against women continues unabated in our country, both inside and outside the home despite legal safeguards provided to women. Women are often terrorized not to access their rights. Violence against women shows itself as rape attack, stripping, eve prodding, abduction and so forth. Although violence against women is globally difficult it is yet to be acknowledged as an issue of human rights violence.
Kushwaha (2003)[20] is of the view that inter disciplinary and multi dimensional character of women is of crucial importance because of their vital contribution in the development. After realizing the crucial role of women it is desirable to great extent for all round development as providing education and jobs in the field of research in the segment of population.
Forming opinions about the study , we come through two opinions about the need of stringent laws, sensitive judiciary, effective law and enforcement machinery and vigilant women's groups to deal with such atrocious crime against women. But what is needed more than anything else is a total revolution in the thinking of society that always blame women for the crime of which she is the victim, not the perpetrator. The problem of crime has root cause in a sociological- economic order that is heavily biased against women.
The legislature has used the definition of gender[21], the pronoun he and its derivatives are used of any person whether male or female. The word has been used intentionally by the legislature meaning the concept of Equality but if we talk about the practical aspect, it seems legislature has itself forgot to contrast a line between the perspectives of male and female.
New Dimensions In Law For Women Empowerment
Dimensions covers multi- disciplinary as it covers the era after Independence. The core purposes cover Economic, Social and Political perspective.Economic Perspective
Alleviation programmers started covering the perspective of women as they were economically more disadvantaged then men and as their upbringing and mainstreaming are critical to economic development of a nation. It generally tries to enable women to learn its originating impact in the society. Economic area tries to covers the entire wide scenario by removing all the financial barriers in respect of gender biasness. Rural women have less access to economic resources to generate incomes. Various studies of intra house hold resources allocation indicates that in many regions there exists a strong bias against women in areas such as nutrition, medical care, education and inheritance.[1] Economic empowerment is necessary to enable women to seek Justice and Equality.Social Perspective
It enables in providing Right to Equality as it is primarily very necessary to provide dignity to every individual in the society especially irrespective of Gender. The approach to gender equity is based on the recognition that all interventions related to women and also ensure participation and adequate representation of women at different policy levels. The vision of 11th policy plan (2007-2012) is to ensure that every woman in the country is able to develop its potential and share the benefits of growth and prosperity through a participatory approach which empowers them and makes them partners in their own development.[2]Political Empowerment
Women have sustained their rights through political agendas and election manifestos but in actual it is only a myth. Every citizen irrespective of Gender has some Rights and Duties towards the nation which shall be done irrespective of society's impact such as Right to vote, Right to Contest, Right to form organizations etc. Reserving seats for women in political institutions will provide them better form by participating in various political programmers. By far the number of women getting elected to representative body has been steadily increasing.[3] No doubt today, the present scenario defines the picture of Women in a different way but subject to exceptions, women have never been safeguarded to its rights and dignity in the society.Constitutional Provisions
Our makers of Constitution found it necessary to formulate laws irrespective of gender injustice. Hence they opinioned that laws should be of such a nature which focuses on society and its needs.Preamble
The preamble is the key to constitution. It does not discriminate men and women but it treats them alike. The framers of the constitution were well aware of the unequal treatment meted out to the fair sex, from the time immemorial. In India, the history of suppression of women is very old and long which is responsible for including general and special provisions for upliftment and development of the status of women. Certain provisions are specifically designed for the benefit of women. Undoubtedly, the preamble appended to the Constitution of India, 1950 contains various objectives including the equality of status and opportunity to all citizens. This objective has been inserted with the view to give equal status to men and women in terms of the opportunity.Fundamental Rights
Part III of the Constitution of India deals with the fundamental rights. The provisions regarding fundamental rights have been enshrined in Articles 12 to 35, which are applicable to all citizens irrespective of sex. Article 14 in the Constitution ensures equality in political, economic and social spheres. However, certain provisions protect the rights of women.According to Article 15(3) of the Constitution, discrimination on grounds of religion, race, caste, sex or place of birth shall not prevent the state from making any special provisions for women and children. Article 15(1) prohibits gender discrimination. Article 15(3) lifts that ignominy and permits the state to positively discriminate in favor of women to make special provisions to ameliorate their social, economic and political conditions and accord them parity.[4] Article 15(3) of the constitution makes special provisions for women and children. It empowered the state to make special legislation in this regard. The courts have always approved the validity of such special legislation rather special measures.
These women and children oriented beneficial legislation can be seen in the ambit of the Criminal Law.
- Right to equality ( articles 14 and 15 of the constitution
- Right to freedom ( articles 19 to 22)
- Right against exploitation ( articles 23 & 24)
- Right to freedom of religion ( articles 25 to 28)
- Cultural and education rights ( articles 29 & 30)
- Right to constitutional remedies ( articles 32 to 35)
Directive Principles Of State Policy And Women
Under the constitution of India, 1950 the directive principles of State policy is the reflection of governance that India is a welfare democratic state. This policy envisaged equal rights to work, equal pay for equal work, adequate means of decent and dignified livelihood to both men and women, these are guaranteed under the directive principles of state policy. Part IV of the constitution containing Articles 38, 39 (a) (d) and (e), 42, 44 and 45 deal with the welfare and development of women.According to Article 39(a) the state should direct its policy towards securing that the citizens, men and women equally have the right to an adequate means of livelihood. As per Article 39(d) of the Constitution in the states that there should be equal pay for equal work for both men and women. Thus, the state is under Constitutional obligation to direct its policy towards securing that there is equal pay for equal work for both men and women.
The apex court in Suchita Srivastava & Another v. Chandigarh Administration,[5] observed that a woman's right to make reproductive choice is also a dimension of personal liberty under Article 21 of the constitution of India, 1950.
In Randhir Singh V. Union of India[6], has expressed the opinion that the principle of equal work is not declared in the constitution to be a fundamental right but it is certainly a constitutional goal. Though there are so many laws are present in the statute but this are kept in pen and paper. The beast of our society done this crime very rampant way.
Significance Of Study
The study of Crime Against Women With Special Reference To Illiterate Women will socially impact the society and bring out the reasons that why the crimes are being committed against women. What circumstances has led behind the commission of crime. What impact does it throw in the light of modernized world 21st century?There is a need of a policy to bring about the advancements, development and empowerment of women. Institutions and mechanisms for assistance are lacking to create and strengthen for prevention of such violence and for taking effective action against the perpetrators of such violence. The feminist jurisprudence within the broad framework of gender injustice has always been an alarming element to the society's growth and change[1].
Women and law are so interconnected that there exist some heated questions and critical challenges the social institutions by providing detailed evidence of important cases, judicial precedents, trails, etc. protection of Rights of women are considered as an integral part of HUMAN RIGHTS. To make law keep its promise, it behaves on the judiciary to help actualization of statutory objectives.
In Neelam Mahajan Singh v. commissioner of police,[2] the question on balance between freedom of speech and expression and public decency it was held that there is no need to bowdlerize all literate and thus rob speech and expression. A balance should be made between the two. Concerning to provide ease of access to rights in order to eliminate all obstacles is the way of administration of justice is need of hour to women. Efforts for structural transformation of gender hierarchies target women discrimination as only women manifestation.
On one side we talk about providing equality women and men and on the other hand we talk about how there exist difference between men and women. The essence itself is homogenous. Deprivation, discrimination and atrocities are the three parameters which in context shows how the women is being effected in the society.
Important Aspect
The core area of the research would mainly focus on the women living in slums, backward areas being villages, so that a contrast could be varied in term of what are the gap behind the modernized 21st century and the ones being unaware of what ill-elements are originating the society.
Scope
The need to incorporate women issues has considerably essential in this modernized society. India being Asian regions develops a significant position in terms of quantity and diversity of women laws and studies. Hence, the study will lay more impact on reforms required to be done to protect women against crime with special reference to illiterate ones.
The Indian law prior to the Nirbhaya Incident took into account only acts of penile-vaginal intercourse within the definition of rape and forcible acts of penetration of vagina, mouth, urethra or anus through penis or an inanimate object did not fall within the definition of rape. Many rapists were not prosecuted because there was no law to punish such acts. The definition was expanded in 2013 to consider rape as any acts like penetration by penis, or any object or any part of body to any extent, into the vagina, mouth, urethra or anus of a woman or making her to do so with another person or applying of mouth to sexual organs without the consent or will of the woman constitutes the offence of rape.
The section has also clarified that penetration means "penetration to any extent", and lack of physical resistance is immaterial for constituting an offence. Except in certain aggravated situation the punishment will be imprisonment not less than seven years but which may extend to imprisonment for life, and shall also be liable to fine. In aggravated situations, punishment will be rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
Section 53A of the Code of Criminal Procedure of the Indian law lays down certain provisions for medical examination of the accused. Section 164A of the Code of Criminal Procedure deals with the medical examination of the victim. The revised statutes of 2013 Indian law, in section 376A, mandates minimum punishment in certain cases.
For instance, if the sexual assault inflicts an injury which causes death or causes the victim to be in a persistent vegetative state, then the convicted rapist must be sentenced to rigorous imprisonment of at least twenty years and up to the remainder of the natural life or with a death penalty." In the case of "gang rape", the same mandatory sentencing is now required by law. The convicted is also required to pay compensation to the victim which shall be reasonable to meet the medical expenses and rehabilitation of the victim, and per Section 357 B in the Code of Criminal Procedure. Death penalty for the most extreme rape cases is specified.
The 2013 law also increased the age of consent from 16 years to 18 years, and any sexual activity with anyone less than age of 18, irrespective of consent, now constitutes statutory rape. The new law has made it mandatory for all government and privately run hospitals in India to give free first aid and medical treatment to victims of rape.
As well, in May 2013, the Supreme Court of India held that the two-finger test on a rape victim violates her right to privacy, and asked the Delhi government to provide better medical procedures to confirm sexual assault. On 3 November 2015 the Allahabad High Court observed that a child born out of rape will have inheritance rights over the property of the assaulter and will be treated as illegitimate, however if the child is taken for adoption then he/she will not have any rights on the property of the biological father.
Legislative Provisions Of Crimes Against Women
The impoverished status of women is in sharp contrast to an otherwise developing milieu in which social change does not accompany the rapid modernization process, The prevalent gender bias being offensive to human dignity and human rights, has emerged as a fundamental crisis to the world over. Human rights can be taken as those minimal rights which every individual must have against the state or other public authority by virtue of his being a member of human family, irrespective of any other consideration. Democracy, development, respect for human rights and fundamental freedoms are interdependent and have mutual reinforcement.Human rights for illiterate women are therefore an inalienable, integral and indivisible part of human rights. The full development of personality, fundamental freedom and equal participation by illiterate women in political, social, economic and cultural scenarios are commitment for international as well as national development, social and family stability and growth- culturally, socially and economically. All forms of discrimination on grounds of gender are thus, violative of fundamental freedom and human rights. Gender injustice and insensitiveness manifests itself in the form of discrimination, crime and violence against illiterate women.
Taking cognizance of this repression all over, the United Nations passed various instruments which a focus on illiterate women's emancipation and with the object of enhancing the dignity of illiterate women all over the world. Violence against women is an obstacle to the achievement of the objectives of equality, development and peace.
The low social and economic status of women can be both a cause and a consequence of violence against women. Violence against women is a manifestation of the historically unequal power relations between men and women, which have led to domination over and discrimination against women by men and to the prevention of women's full advancement.
- Condemn violence against women and refrain from invoking any custom, tradition or religious consideration to avoid their obligations with respect to its elimination.
- Adopt all appropriate measures, especially in the field of education, to modify the social and cultural patterns of conduct of men and women.
- Provide well-funded shelters and relief support for girls and women subjected to violence.
Constitutional provisions in India
Constitutional Privileges
- Equality before law for women (Article 14)
- The State not to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Article 15 (I)
- The State to make any special provision in favour of women and children (Article 15 (3))
- Equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State (Article 16)
- The State to direct its policy towards securing for men and women equally the right to an adequate means of livelihood (Article 39(a)) and equal pay for equal work for both men and women (Article 39(d))
- To promote justice, on a basis of equal opportunity and to provide free legal aid by suitable legislation or scheme or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities (Article 39 A)
- The State to make provision for securing just and humane conditions of work and for maternity relief (Article 42)
- The State to promote with special care the educational and economic interests of the weaker sections of the people and to protect them from social injustice and all forms of exploitation (Article 46)
- The State to raise the level of nutrition and the standard of living of its people and the improvement of public health (Article 47)
- To promote harmony and the spirit of common brotherhood amongst all the people of India and to renounce practices derogatory to the dignity of women (Article 51(A)(e))
- Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat to be reserved for women and such seats to be allotted by rotation to different constituencies in a Panchayat (Article 243 D(3))
- Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality to be reserved for women and such seats to be allotted by rotation to different constituencies in a Municipality (Article 243 T 3))
Constitutional Provision for Women in India
A Constitution is a basic document of a country having a special legal sanctity which sets the framework and the principal functions of the organs of the Government of a State and declares the principles governing the operation of these organs. The Constitution aims at creating legal norms, social philosophy and economic values which ate to be affected by striking synthesis, harmony and fundamental adjustment between individual rights and social interest to achieve the desired community goals.[1]1. Preamble
The preamble contains the ideals and aspirations of the people of India. One of the golden ideals is the equality of status and of opportunity. This objective has been achieved by and large by providing equality clause in the Constitution of India. The equality clause expressly prohibits discrimination on the basis of race, religion, caste, sex, and place of birth and guarantees equality before the law and equal protection of laws irrespective of race, religion, cast, sex etc. Thus the Indian Constitution has ensured equal status to all i.e. not only between men and men, women and women but also between men and women.163 Constitution of India provide the basic foundation on legislation and laws built in Article 14, 15, 16, 21, 39 of the Constitution of India.
A basic understanding of some of the constitutional guarantees is pertinent to the subject of equal representation of women in the society.
- Political Rights
Notwithstanding the fact that women participated equally in the freedom struggle and, under the constitution and law, have equal political rights as men, enabling them to take part effectively in the administration of the country has had little effect as they are negligibly represented in politics. There were only seven women member in the Constituent Assembly and the number later decreased further.[2]There representation in the Lok Sabha is far below the expected numbers. This has led to the demand for reservation of 33% seats for women in the Lok Sabha and Vidhan Sabhas. Political empowerment of women has been brought by the 73rd and 74th Amendments which reserve seats for women in Gram Panchayats and Municipal bodies. Illiteracy, lack of political awareness, physical violence and economic dependence are a few reasons which restrain women from taking part in the political processes of the country.[3]
Women's Political Participation
The Madhya Pradesh High Court decided a case challenging to the Municipalities Act, 1961 which was amended in 2007 to increase the reservation for women from 33 to 50 percent in these bodies. The court pointed out that reservation under articles 15 and 16 was distinct from the reservations under article 243 of the Constitution. The court pointed out that in case of reservation of posts in government employment, the notion of horizontal reservation was applicable and if the requisite number of women had not been selected they would be selected against their respective social reservation categories as had been pointed out by the Supreme Court.[4]
Participation in political life and number of children
The Supreme Court decision in Javed v. State of Haryana[5]upheld the constitutionality of laws which linked the right to contest election for public office in panchayats to the number of children a person had. Restricting the right to contest election to a public office to those with two living children was seen as a reasonable restriction by the court. This decision clearly privileged population stabilisation policies over the personal liberty of citizens, particularly women, who due to patriarchal relations within the family, are often unable to control the number of children they bear.
- Economic Rights
There has been a catena of legislation conferring equal rights for women and men. These legislations have been guided by the provisions of the fundamental rights and Directive Principles of State Policy. Here again there is a total lack of awareness regarding economic rights amongst women. Laws to improve their condition in matters relating to wages, maternity benefits, equal remuneration and property/succession have been enacted to provide to the necessary protection in these areas.[6]
- Social Justice
The most important step has been codification of the personal laws in our country which pose the biggest challenge in this context for providing social justice to women. In the area of criminal justice, the gender neutrality of law worked to the disadvantage of a woman accused because in some of the cases it imposed a heavy burden on the prosecutrix, for e.g. in cases of rape and dowry. They prevent the fulfilment of the objective of securing to each individual dignity, irrespective of sex, community or place of birth. In this type discrimination Supreme Court said that- Human rights are derived from the dignity and worth inherent in the human person.
Human rights and fundamental freedoms have been reiterated in the Universal declaration of Human Rights. Democracy, development and respect for human rights and fundamental freedoms are inter-dependent and have mutual reinforcement. The human rights for women, including girl child are therefore, inalienable, integral and an indivisible part of universal human rights. The full development of personality and fundamental freedoms and equal participation by women in political, social, economic and cultural life are concomitants for national development, social and family stability and growth-cultural, social and economical. All forms of discrimination on grounds of gender are violative of fundamental freedoms and human rights.[7]
2. Fundamental Rights
Fundamental Rights which are the most effective of every person like, man, woman and child because they are applied and enforceable as constitutional and fundamental rights in India. Justice Bhagwati said that rights are: - These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.[8] Thus, fundamental rights are very important part of the Constitution of India.
- Article 14 ( Equality)
Equality before the law or equal protection by the law, Article 14 of the Constitution of India enunciates the general principle of right to equality and prohibits the state from denying to any person. Article 14 of the Constitution recognises Women as a class. The Court has declared that women as a class were different from men as a class; and for this legislature had merely removed the disability attaching to women by passing the Hindu Succession Act, 1956.[9] Article 15(1) prohibits gender discrimination and Article 15(3) lifts that rigour and permits the State to positively discriminate in favour of women and make special provisions to ameliorate their social condition and provide political, economic and social justice. The State in the field of Criminal Law, Service Law, Labour Law, etc. has resorted to Article 15(3) and the courts, too, have upheld the validity of these protective discriminatory provisions on the basis of constitutional mandate.
In Dr. Punia K. Sodhi v. Union of India[10], the Delhi High Court had an occasion to clarify the close connection between sexual harassment and sex-based discrimination where a lady doctor alleged harassment and discrimination by a senior male doctor. Another specific example of equality of status is the right to equality of opportunity for citizens of India provided under Article 16 of the Constitution of India. The Courts realise Women like men are governed by the Constitution. Articles 14, 15, 19(1)(g) and 21 provide the basis for Realizing equality between man and man, and man and woman.
These articles have provided de jure equality to women, but they have not accelerated de facto equality between man and woman to the extent the Constitution intended. Unless attitudes change, elimination of discrimination against women cannot be achieved. There is still a considerable gap between the constitutional rights and their application in the day-to-day lives of most women. At the same time, it is true that women are working in jobs which were hitherto falling in masculine fields. But there are instances which exhibit lack of confidence in their capability and efficiency. There is still a long and lingering suspicion regarding their capacity to meet the challenges of the jobs assigned to them. Such doubts affect the dignity of working women.[11]
- Article 21 (Right to livelihood)
A very sensitive case for right to livelihood because every person who take breath, his duty to protect own live. Problem of bar girls at Maharashtra before the High court Indian Hotel and Restaurant Association; this case decided. Petitioner has pleaded that its members have three different activities in their respective establishments which are independent of each other:- Service of food, performance of music and dance, and service of liquor in an independent and demarcated room approved by the Collector/Licensing Authority. It is, therefore, pleaded that the activity of sale and consumption of foreign liquor is an activity independent of the rest of the establishment and is restricted to the demarcated and designated room approved by the Collector for sale and consumption of liquor.
On certain days sale of liquor is prohibited. On such days the demarcated room or rooms for the sale of liquor are kept closed and the rest of the establishment is allowed to function and other activities of the Restaurant like sale of food and amusement performances are not disturbed.[12]
On grounds of violation of Article 14, 16 and 21 of the constitution, women's prohibited the employment in Hotels and Bar serving liquor was challenged in judgment of Anuj Garg's[13] case it appears that Constitutional validity of section 30 of the Punjab Excise Act, 1914 prohibiting employment of "any man under the age of 25 years" and/or "any women" in any part of such premises in which liquor or intoxicating drugs is consumed by the Public was observed and examined.
- Article 21 (Right to live with Dignity)
Article 21[14] of the Indian constitution is the fountain head of the right to human dignity .The right to woman dignity has been elucidated by the Supreme Court that the right to life does not mean only animal existence but to live with dignity, Since the term human dignity is incapable of exact definition it has been used, defined and illustrated by the Court depending on the fact and circumstances and socio-cultural milieu. Looking to the development of the woman human dignity at international arena and the need of the socio-political and cultural environment, the court has explained and articulated the right to human dignity in various forms.
- Right against Exploitation
In Vishal jeet v. Union of India[15], the Court has held that:
Prostitution always remains as a running sore in the body of civilization and destroys all moral values. The causes and evil effects of prostitution maligning the society are so notorious and frightful that none can gainsay it. This malignity is daily and hourly threatening the community at large slowly but steadily making the way onwards leaving a track marked with broken hopes. Therefore the necessity for appropriate and drastic action to eradicate this evil has become apparent. The Court suggested certain measures for eradicating the evil.
- Section 363, IPC --Punishment for Kidnapping
Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.2 The words "British India" have successively been substituted by the A.O.1948, the A. O.1950 and Act 3 of 1951, sec.3. Section 366, IPC--Kidnapping, abducting or inducing woman to compel her marriage, etc Section 366 (Act 20, Section 2) IPC had been enacted in 1923. It states that 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 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.
Classification of Offence
Punishment—Imprisonment for 10 years, and fine—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable Section 493, Section 494, Section 495, Section 496, Section 498, IPC provides the elaborative explanation to give judgment to cases coming under this law.
Section 373, IPC-- Buying Minor Girls for purposes of Prostitution, etc
Section 373 IPC (Act 18, Section 2) had been enacted in 1924. Section 366 (a), IPC says, whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.3 Section 366 (b), Section 367, Section 372, Section 373, IPC are also the part of Section 373 IPC.
- Dowry Death and SuicidesThe offence is called dowry death which is made punishable under the Section
304-B, IPC with imprisonment of not less than seven years but which may extend
to imprisonment for life. These offence are Cognizable-Non-bailable-Triable by
Court of Session—Non-compoundable. Under IPC 304B Dowry death:
- 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).
- 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. Thus the Offence under Section 304-B has the
following ingredients:[16]
- The death of a woman should be caused by burns or bodily injury otherwise than under normal circumstances.
- Such death should have occurred within seven years of her marriage.
- She must have been subjected to cruelty or harassment by her husband or any relative of her husband.
- Such Cruelty or harassment should be for or in connection with demand for dowry.
- 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.
Code of Criminal Procedure
- Immediately before S. 499A in the First Schedule substitution of the Chapter heading by 'Of offences against illiterate women'.
- Amendment of the First Schedule making necessary entries after S. 498A i.e. inserting S 498A prescribing - 'Taking, demanding or abetting to take dowry' as a 'Cognizable' and 'Non-bail able' offence punishable with 'imprisonment for not less than 5 year which may extend to 10 years and fine not less than 15,000 rupees or the amount of value of the dowry, whichever is more' and empowering the CJM or CMM to take cognizance of the offence.
- In the First Schedule, against section 498A. in Col.4, omit the qualifying clause and the word 'Cognizable' alone be retained. Consequential amendments of S304 IPC - In the First Schedule, col3, the existing entry be substituted by 'imprisonment for life or imprisonment for a term not less than 7 years but which may extend 10 years'.
- Omit S. 198A.
- Amending S.39 to cast a duty on the public to give information as to a dowry offence.
a. In Clause ( v ), for the word and figures, 'and 304' , '304 and 304B' shall be substituted.
b. After Clause, ( xii )insertion of the following: 'Section 498B (that is offences relating to dowry)'.
Indian Evidence Act:
a. Insertion of S.113AA. Burden of proof lies with the person charged with S498 IPC (Dowry Offence).
General Suggestions and Remarks:
- Cruelty to illiterate women is taking serious dimensions and hence punishment to be enhanced.
- Compulsory registration of marriage and the list of gifts which may be given to the girl be registered.
- Amend the Hindu Marriage Act to make registration of marriage under that Act compulsory.
- Provide tax exemption on gifts to facilitate parents to settle property by way of gifts openly to the girls.
- Marriage expenses in no case to exceed 20 % of the annual income of the bridge's parents or guardians.
- Greater emphasis should be placed on the proper and strict implementation of the provision relating to Dowry Prohibition Officers and Advisory Boards by appoint full time officers who shall be accountable to the Advisory Board
Special Initiatives For Women In India
Some of special initiatives taken in India are:- National Commission for Women
The National Commission for Women was constituted under the act on 31st January, 1992 to exercise powers and review the existing legislation to suggest amendments wherever necessary,[1]etc.
- Reservation for Women in Local Self -Government
The 73rd Constitutional Amendment Acts passed in 1992 to ensure one-third of the total seats for women in all elected offices in local bodies whether in rural areas or urban areas.
- The National Plan of Action for the Girl Child
The plan of Action (1991-2000) is to ensure survival, protection and development of the girl child with the ultimate objective of building up a better future for the girl child.
- National Policy for the Empowerment of Women (2001)
To bringing about advancement, development and empowerment of women in all spheres of life through creation of a more responsive judicial and legal system sensitive to women and mainstreaming a gender perspective in the development process. The strengthening and formation of relevant institutional mechanisms and implementation of international obligations/ commitments and co-operation at the international, regional and sub-regional level was another commitment.
- The Protection of Women from Domestic Violence Act, 2005
Provides for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and for matters connected herewith or incidental there to. It provides for immediate and emergent relief to women in situations of violence of any kind in the home.
- Chhattisgarh Tonhi Pratadna Nivaran Act, 2005
Article 14 of the Constitution of India proclaims the principles of equality before law by providing that the State Shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 which deal with prohibition of discrimination on grounds of religion, race, caste, sex or place of birth also provides in its clause (3) that nothing in this article shall prevent the State from making any special provision for women and children.
The State shall, in particular direct its policy towards securing:
- That the citizen, men and women equally, have the right to an adequate
means of livelihood.
- That there is equal pay for equal work for both men and women.
- That the health and strength of workers, men and women, and the tender
age of children are not abused and the citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength.
- The framers of the Constitution were well aware that women in this country were not enjoying rights equal to those of men. That is why; they incorporated the abovementioned provisions in the Constitution. But these provisions were far from satisfactory and failed to bring about the desired constitutional provisions, and for remedying the existing situation of women so as to improve the condition of women, the Parliament enacted the National Commission for Women Act, 1990 (No. 20 of 1990) to constitute a National Commission for Women and to provide for matters connected therewith or incidental thereto.
Role Of Judiciary
Women enjoy a unique position in every society and country of the world. In spite of their contribution in all spheres of life, they suffer in silence and belong to a class which is in a disadvantaged position on account of several barriers and impediments. India being a country of paradoxes is no exception. Here too a woman, who is called to be an epitome of Shakhty, once given an exalted status, are in need of empowerment.Empowerment-legal, social and economic, however, empowerment and equality are based on the gender sensitivity of society towards their problems. The intensification of women's issues and rights movement all over the world is reflected in the form of various Conventions passed by the United Nations. These international protections have helped in the articulation of feminist ideology.[1]
Gender equality, as an ideal has always eluded the constitutional provisions of equality before the law or the equal protection of law. This is because equality is always supposed to be between equals and since the judges did not concede that man and women were equal, gender equality did not seem to them to be a legally forbidden inequality.[2]
Justice Bradley of the United States Supreme Court said: The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life.....The paramount destiny and mission of women are to fulfill the noble benign officers of wife and mother. This is the law of Creator.[3] It is also worthwhile to quote words of an eminent American judge who, after tracking the historical background, explained the need for special provisions being made for women.
Such as:
That women's physical structure and the performance of maternal functions place her at a disadvantage for subsistence is obvious. History discloses the fact that woman has always been dependent upon man. He established his control at the outset by superior physical strength and this control in various forms, with diminishing intensity, has continued to the present. Education was long denied to her, and while now the doors of the school room are opened and her opportunities for acquiring knowledge are great, yet even with that and consequent increase of capacity for business affairs it is still true that in the struggle for subsistence she is not an equal competitor with her brother.
She will still be where some legislation to protect her seems necessary to secure a real equality or right.[4] As late as in 1961, the United States Supreme Court upheld a law placing a woman on the jury list only if she made a special request as put by Justice Harlan:
A woman is still regarded as the centre of home and family life.[5]
Basically, as pointed out by Dicey[6], the Constitutional theories of Rule of Law and the fundamental rights stemmed from the struggle for individual liberty and were intended to curb the power of the State. For a long time gender issues did not come in the limelight. But as pointed out by Felix Frank future[7]: Our Constitutional guarantees of individual freedoms are not static but are expressions of basic human values.
They transcend day to day shift in majority wishes and hence require redefinition from time to time to meet narrowly recognised if not narrowly created human needs. In our country, the Constitutional makers while drafting the Constitution were sensitive to the problems faced by women and thus made specific provisions relating to them.
The supreme court, in its various articles, not only mandates equality of the sexes but also authorities begin discrimination in favour of women and children to make up for the backwardness which has been their age-old destiny. But categorical imperatives constitutionalised by the founding Fathers are not self acting and can acquire socio legal locomotion only by appropriate State action.[8]
Legal frame work and role of Judiciary in India
Overall Crime, Atrocity and violence against Women in a Legal Frame Work and Role of Judiciary in India for Women have been studied in two category;
In Neera Mathur V. LIC[1], The court decided that privacy was an important aspect of personal liberty. In this case, the Supreme Court was shocked to learn that an LIC questionnaire sought information about the dates of menstrual periods and past pregnancies, and the petitioner was terminated for not providing correct information to the LIC.
The Supreme Court held that the questionnaire amounted to invasion of privacy and that, therefore such probes could not be made. The right to personal liberty guaranteed under article 21 included the right to privacy. Information about health could be sought where such information was relevant- it was relevant for selling insurance cover but not for the person seeking employment.
In Gautam Kundu v. State of west Bengal[2], the apex Court ensured that an application for a blood test to disprove paternity of a child in a maintenance suit was rejected. It was held that a child born of a married woman is deemed to be legitimate unless the contrary is proved. Such a presumption could be rebutted by a strong preponderance of evidence and not a mere balance of probabilities.
The Court laid down the following principles:
- that courts in India cannot order a blood test as a matter of course;
- an application for subjecting a child to a blood test, made in order to have a roving inquiry, cannot be entertained,
- there must be a prima facie case for suspecting the fatherhood of a child which can be established by proving non-access,
- The court must carefully examine as to what would be the consequences of ordering a blood test, whether it would have the effect of branding a child as a bastard and its mother as an unchaste woman.
In Surjit Singh v. Kanwaljit Kaur[3], the High court held; Allowing the medical examination of a woman for her virginity would certainly violate her right to privacy and personal liberty enshrined under Article 21 of the Constitution. Such an order would amount to a roving enquiry against a female who are vulnerable even otherwise. In the instant matrimonial case the question of virginity of the wife is not in issue and the virginity test cannot constitute the sole basis to prove the consummation of marriage. Allowing such a medical examination of the wife would be holding a roving enquiry which is not permissible.
Thus, order of Lower Court dismissing application by husband for getting wife medically examined in order to prove her virginity is proper.
In Zahida Begam v. Mustaka hamed[4] a suit was filed by the wife for dissolution of marriage on the ground of impotency of husband who was unable to perform marital obligations. The husband denied that he is impotent or was unable to perform marital obligation. On the contrary he requested the court that wife be directed to undergo medical checkup so as to ascertain her virginity. Karnataka High Court held that the direction of the court to the wife to undergo virginity test was improper and invaded privacy of the plaintiff wife, which was violation of the Article 21 of the Constitution.
In Bodhisattwa Gautam v. Subhra Chakraborty[5]the complainant, a student, was induced by the accused, a teacher, on false assurance of marriage to cohabit with him. He not only made false assurance of marriage but also fraudulently went through marriage ceremonies. When she became pregnant the accused made her undergo an abortion. When she asked him to maintain her, he disowned her on the ground that there was no marriage.
He was prosecuted under various sections of the IPC. The Supreme Court refusing to quash the prosecution ruled that rape was not only an offence under the Penal Code but was also a violation of a woman's right to live with dignity and personal freedom. It is a crime against basic human right and it is also violative of victim's most cherished of Fundamental Rights, namely, the right to life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence than an act of aggression aimed at degrading and humiliating women.
In State of Maharashtra v. Madhukar N. Mardikar[6], the Supreme Court said with reference to rape, which unchastely of a woman does not make her open to any and every person to violate her person as and when he wishes. Even a prostitute has a right to privacy under the Article 21 and no person can rape her just because she is a woman of easy virtue. Another dynamic judgment with reference to Article 21 is Chairman Railway Board v. Chandrima Das[7],
The Court in this case observed that the word life as used in the Universal Declaration must get the same meaning as in Article 21. Its meaning cannot be narrowed down. Here relief was provided to a Bangladeshi woman who was raped. The term life in the International Conventions relating to Human Rights and Article 21 were interpreted to mean life worth living, meaningful and dignified.
In Vishaka v. State of Rajasthan[8], The Supreme court in the field of sexual harassment of working women at their place of work, formulated guidelines for their protection. According to Supreme Court:
Gender equality includes protection from sexual harassment and right to work with dignity which is a universally recognized basic human right, the common minimum requirement of this right has received global acceptance.
In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces, the content of international conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14,15,19(1)(g) and 21 of the constitution and the safeguards against sexual harassment implicit therein and for formulation of guidelines to achieve this purpose.
Kailash v. State of Maharashtra[9] demonstrates a typical instance of brutal atrocity against a tribal woman who had been beaten and paraded on the village road in broad day light. The session's court had awarded the minimum punishment under sections 452,354,323,506(2) read with section 3 of Scheduled Cast and Scheduled Tribes (Prevention of Atrocities) Act 1989.On appeal to the High Court of Bombay, that part of the session court's order regarding fine imposed under various sections of IPC was set aside and each of the appellant was directed to pay a fine of Rs.5000/- only to the victim.
The conviction of the accused under section 3 of the SC/ST Act too was set aside on hyper technical grounds that the caste certificate was not produced and investigation by a police officer of the rank of deputy superintendent of police was not done. When the matter reached the apex court, the court took a very serious note of atrocities against illiterate women and considered the above mentioned defects as mere technicalities and hardly a ground for acquittal. The court observed that the sentence was too light considering the gravity of the offence.
The court by described the instance as shameful, shocking and outrageous offence. The dishonor of the victim called for harsher punishment, and we are surprised that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Judge. It is commendable that though all the eye-witnesses have turn hostile, the court rightly relied on the statement of the victim. The humiliation done to the tribal woman is shameful. Considering that the Constitution of India mandates equal respect to all communities, sects, lingual and ethnic groups in the country, it is high time to stop the atrocities against tribal in general and tribal illiterate women in particular.
In Sonu Kumar v. State of Himachal Pradesh[10] while acquitting the accused from charges under section 366(A) of IPC, the High Court of Himachal Pradesh reiterated that three principal ingredients are must to constitute an offence under section 366-A IPC: (a) a miner girl below the age of 18 years is induced by the accused: (b) she is induced to go from any place or to do any act, and (c) she is so induced with intent that she may be or knowing that it is likely that she will be forced to seduce to illicit intercourse with another person.[11]
In Jiban Das v. State of Tripura,[12] where a husband set fire on his wife and put her to death , referring to karnel Singh v. State, the High Court of Gauhati reiterated that in the cases of defective investigation the court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused person solely on account of the defect; to do so would tantamount to plying in the hands of the investigation officer, if the investigation is designedly defective. Heavily criticising the court below and investigating officers the court held thus.[13]
In Gulab v. State of M.P.[14] the High Court of Madhya Pradesh restated that the testimony of the prosecutrix alone can form the basis of conviction if it inspires confidence and is found to be reliable. While upholding the conviction of the accused the court also expressed its disappointment in not awarding the minimum statutory punishment in the following words: The victim was a minor of 12 years of age. She was alone and helpless at the place of incident.
The accused took advantage of such situation and committed the rape. It is unfortunate that the session's judge had been lenient in passing the lesser sentence than the minimum sentence prescribed in the law. The leniency of the courts in rape cases cannot be appreciated. The courts must award maximum punishment in rape cases especially where minor girls are involved.
In State of U.P. v. Pappu[15], the finding a rape case that prosecutrix was not having good character and was a girl of easy virtue was held by the Supreme Court to be no ground for acquittal of accused.
The Court held that:
Even assuming that the victim was previously accustomed to sexual intercourse that is not a determination question. On the contrary, the question which was required to be adjudicated was- did the accused commit rape on the victim on the occasion complained of?
Even if it is hypothetically accepted that the victim had lost her virginity earlier, it did not and cannot in law give licence to any person to rape her. It is the accused who was on trial and not the victim. Even the victim in a given case has been promiscuous in her sexual behaviour earlier. She has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not vulnerable object or prey for being sexually assaulted by anyone and everyone.
The facts in Kamalanantha v. State of T.N.[16], shocked the judicial conscience. The insatiable lust for sex of Swami Premananda led to raping 13 Ashram girls and murder of one. The ashram which is supposed to be God's abode turned out to be devil's workshop.
It is a classic case of betrayal of fatherly and divinely trust of inmates of Ashram girls who were orphans and destitute. Plea taken in this case was that some of the prosecutrix consented to the sexual intercourse.
However, the facts show that the consent was obtained by deceitful means as most of the girls in the ashram were orphans with no other place to go, Accused had dominion and control over them. Therefore, Consent obtained by deceitful means or under threat of death or hurt is no consent at all. It cannot be said, therefore, that charge levelled against accused does not fall in the category of rape.
In Bhupinder Sharma v. State of H.P.[17] the court held that:
To insist on corroboration except in the rarest of rare cases is to equate one who is a victim of lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that claim of rape will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Why should the evidence of the girl or the woman who complains of rape or sexual molestations be viewed with the aid of spectacles filled with lenses tinged with doubt, disbelief or suspicion?
In Satvir Singh v. State of Punjab[18] reflected the scope of the sections in the IPC. The Court held that Section 306, IPC read with Section 113-A of the Indian Evidence Act, has only enabled the court to punish a husband or his relatives who subjected a woman to cruelty as envisaged in Section 498-A, IPC and such woman commits suicide within seven years of her marriage. It is immaterial for Section 306, IPC whether cruelty or harassment was soon before her death or earlier. If it was soon before her death the special provision in Section 304-B, IPC would be inviolable, otherwise Section 306, IPC can be resorted.
The requirements of section 304B were examined in Rajesh Bhatnagar v. State of Uttarakhand,[19]. The requirements are: The death of a woman is caused by burns, bodily injury or otherwise than in normal circumstances; and death has been caused or occurred within 7 years of marriage.
Further, it should be shown that soon before her death, she was subjected to cruelty or harassment by her husband or her husband's family or relatives and thirdly, that such harassment should be relation to a demand for dowry. Once these three ingredients are satisfied, the death shall be treated as a dowry death and once a dowry death occurs, such husband or relative shall be presumed to have caused the death.
Thus, by fiction of law, the husband or relative would be presumed to have committed the offence of dowry death rendering them liable for punishment unless the presumption is rebutted. It is only a presumption of law in relation to a death but also a deemed liability fastened upon the husband/relative by operation of law.
In Appasaheb v. State of Maharashtra,[20] the apex court held that a demand for money on account of some financial stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be termed as a demand for dowry as the said word is normally understood. However, Appasaheb was reconsidered by the apex court in Bachni Devi v. State of Maharashtra[21] wherein it was that Appa saheb does not lay down a law of universal application. If a demand for property or valuable security, directly or indirectly, had nexus with marriage, such demand would constitute demand for dowry.
Pathan Hussain Basha v. State of A.P.[22] presented to the fact situations. The court observed that when there is charge under sections 304B and 498A IPC, the prosecution has to prove guilt of the accused beyond reasonable doubt. In the present case, the prosecution by reliable and cogent evidence has established guilt of the accused. Then, it was for the accused to show that death of the deceased did not result from any cruelty or demand of dowry by the accused persons.
The accused has to explain as to how and why his wife died, as well as his conduct immediately prior and subsequent to the death of deceased. If it was his found that the accused did not care to explain as to how death of his wife occurred, the onus is not said to be discharged. Maintaining silence could not be equated to discharge of onus by the accused.
In the case Kulwant Kaur v. Gurudial Singh Mann[23] the court held that an issue pertaining to perversity comes within the ambit of substantial question of law. By holding that the high court has failed to exercise the jurisdiction conferred on it despite the plea of perversity being raised the court said that any finding which is not supported by evidence or inferences is drawn in a stretched and unacceptable manner can be said to be perverse. that court concluded that the childish and fanciful behaviour of the wife, the allegation by wife of the extra marital affair of the Appellant-husband, publication in the newspapers that the husband was a womaniser and a drunkard etc. amounted to cruelty.
Shashi Bala v. Rajiv Arora[24], was an appeal filed under section 28 of the Hindu Marriage Act, 1955, the appellant seeking to challenge the impugned order and decree passed by the learned trial court whereby a decree of divorce in favour of the respondent husband under section 13(i)(a) of the Hindu Marriage Act was granted and the counter claim field by the appellant seeking a decree for restitution of conjugal rights under section 9 of the Hindu Marriage Act was dismissed.
By reiterating Samar Ghosh v. Jaya Ghosh[25] the High Court of Delhi held that willful denial of sexual intercourse without reasonable cause would amount to cruelty. In Premwati v. State of M.P.[26], it was held that Section 304-B(1) would be attracted not only when the death is caused by someone but also when the death occurs unnaturally. If occurrence of death is preceded by cruelty or harassment by in-laws for or in connection with a dowry demand and if the connection between the two is established, mere occurrence of death is enough though death may not have been caused by the in-laws.
In Hem Chand v. State of Haryana[27], the court was of the opinion that proof of direct connection of the accused with her death is not essential. The absence of direct connection of the accused with the death has to be taken into consideration in balancing the sentence to be awarded to the accused.
In Wazir Chand v. State of Haryana[28], was a case involving the death by burning of a newly-married woman? The circumstances did not establish either murder or an abetted suicide and the in-laws escaped the jaws of Sections 300 and 306, IPC.
But they were caught in the web of these newly enacted sections for the prevention of harassment for dowry. In this case, the fact that a large number of articles were taken back by the father of the deceased after her death from her matrimonial house, showed that pressure was being exerted by the in-laws for money and articles which continued to be exerted till her death.
A new dimension was added when the Supreme Court observed in Shobha Rani v. Madhukar Reddi[29], that a demand for dowry entitles the wife to get a decree for dissolution of marriage. Thus Section 304-B, IPC has given a new dimension to the concept of cruelty for the purposes of matrimonial remedies.
In State of Punjab v. Iqbal Singh[30], the court while convicting the husband held that:
The legislative intent behind incorporation of Section 113-A of the Indian Evidence Act and Section 304-B of Indian Penal Code was to strengthen the hands of the prosecution in a crime generally committed within the privacy of residential house.
In Kans Raj v. State of Punjab[31], a three judge Bench of the Court dealt with the presumption available in terms of Section 113-B of the Evidence Act and its effect on finding persons guilty in terms of Section 304-B IPC.
It was laid, The law as it exists now provides that 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 marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with demand of dowry, such death shall be punishable under Section 304-B.
Thus in order to seek conviction against a person for offence of dowry death, the prosecution is obliged to prove that:
- the death of woman was caused by burns or bodily injury of had occurred otherwise than under normal circumstances;
- such death should have occurred within 7 years of her marriage;
- the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband;
- such cruelty or harassment should be for or in connection with demand of dowry, and;
- To such cruelty or harassment the deceased should have been subjected soon before death.
The Presumption under Section 113-B of the Evidence Act was attracted. There was also unnatural conduct on the part of accused in not informing the parents of the deceased who lived only a few miles away from the village of the accused. He also caused disappearance of evidence thereby attracting Section 201 IPC.
The dead body was secretly and clandestinely cremated. Therefore the conviction of the accused was upheld under Sections 304-B and 201 IPC. In granting bail to the accused and charges of serious offences of cruelty and dowry death, the court laid down three factors in Gajanand Aggarwal v. State of Orissa[33], which may be considered before granting bail under Section 437 CrPC. These are:
- The nature of accusations and severity of punishment in case of conviction and the nature of supporting evidence.
- Reasonable apprehension of tampering witness or apprehension of threat to witnesses.
- Prima facie satisfaction of court in support of charge.
In Kailash v. State of M.P.[34], in the wee hours of morning the dead body of deceased was found floating in a well, located in the house of the appellant. The death of the deceased occurred otherwise than in normal circumstances and within seven years of marriage. Evidence of witnesses clearly stated that deceased was subjected with dowry demand, torture and harassment by her husband.
The court found the conviction of accused husband under Section 304-B IPC proper. However on facts and circumstances, sentence of 10 years RI was reduced to eight years.
Illiterate women have suffered many problems in our society and country.
Discussed problem and many solution but they are not sufficient accurate solution these problem, therefore we make our social structure very strong for illiterate women favourable conditions for survive normal and healthy environment. If we give such type social environment, assure that we are getting empowered and successful illiterate women.
Conclusions And Suggestion
After analyzing the various aspects of issues relating to illiterate women it can be concluded that illiterate women are still facing the crime, atrocities and violence in a male dominated society. Even after the emergence of values, the concept of fundamental rights and basic freedoms for all, this section of society has been denied these freedoms in most parts of the India.
The proportion of IPC crimes committed against illiterate women towards total IPC crimes has increased during last 5 years from 9.2% in the year 2009 to 11.2% during the year 2013. The crime against illiterate women during the year 2013 has increased by 26.7% over the year 2012 and by 51.9% over the year 2009.
The IPC component of crimes against illiterate women has accounted for 95.6% of total crimes and the rest 4.4% were SLL crimes against illiterate women.[1] Crime, atrocities and violence against illiterate women are increasing at recent years in India. Such are:
- An increasing trend in the incidence of rape has been observed during the periods 2009 - 2013. These cases have reported an increase of 3.6% in 2010 over 2009 and an increase of 9.2% in the year 2011 over the year 2010, an increase of 3.0% in the year 2012 over 2011 and further an increase of 35.2% n the year 2013 over 2012.
- Incest rape cases have increased by 36.7% from 392 cases in 2012 to 536 as in 2013 as compared to 35.2% increase in overall rape cases.
- Kidnapping & Abduction cases have reported an increase of 35.6% during the year as compared to previous year 2012 (38,262 cases).
- The cases of dowry deaths have decreased by 1.8% during the year 2013 over the previous year (8,233 cases).
- The cases of 'Torture' committed on illiterate women in the country have ‘reased by 11.6% during 2013 over the previous year (1, 06,527 cases).
- Incidents of assault on illiterate women with intent to outrage her modesty in the country have increased by 56.0% during 2013 over the previous year (45,351 cases).
- The number of Insult to the modesty of illiterate women cases has increased by 37.2% during 2013 over the previous year (9,173 cases).
- Importation of girls from foreign country a decrease of 47.4% has been observed in cases registered under this crime in 2013 (31 cases) over 59 cases registered in 2012
- Immoral Traffic (Prevention) Act, 1956: Cases under this Act have registered an increase of 0.6% during the year 2013 as compared to the previous year (2,563).
- Commission of Sati Prevention Act, 1987: No case was registered under this crime head across the country during the year 2013.
- Indecent Representation of Illiterate women (Prohibition) Act, 1986: An increase of 156.7% was noticed in this crime head during the year 2013 as compared to the previous year (141 cases).
- Dowry Prohibition Act, 1961: Incidents of cases registered under this Act has increased by 17.9% during the year 2013 as compared to the previous year (9,038 cases).
Above stated data proves my hypothesis that existing legislation relating to crime against illiterate women are not sufficient/adequate to overcome the problem of crime, atrocities and violence against illiterate women. Although new legislations have been enforced and amendments made on existing legislations but the incidences of violence, sexual assaults, rape etc are on the increase. It is necessary that illiterate women should be given due respect and status in society.
For this purpose, it is necessary to change the attitude of society. Although on paper, there is no discrimination against illiterate women in plans and programmes of the Government, but poor illiterate women have been largely at low levels in the stairs of development. They are getting lower income and have, generally been living in lower status. Government Institution, in order to economically empower the illiterate women, should have made attempt to employ them in gainful employments.
It is submitted that we have no right to be called civilized unless both men and illiterate women get the status of equality. While doing my research I found illiterate women and girl children to be in a critical situation. They are not safe at homes, workplaces and other public places. Measures are necessary to improve our legislation and court's role in providing safety.
It is necessary that:
- Female employees should be made aware of their rights by notifying the
guidelines at work places;
- Training should be given to all females to protect themselves against
any attempts of outraging their modesty;
- There is a need to create awareness among the illiterate women about
sexual harassment as most of them are not aware about their rights of
protection under the new Prohibition of Sexual Harassment Act, 2013.
- Media should be used in stimulating public debate, exposing the severity
and prevalence of violence against illiterate women
- More research should be carried out to understand different causes and
consequences of sexual harassment.
- Easy procedure for filing the complaint should be kept. The complaints
committee should have members who are gender sensitized people. It shall be
highly helpful if the Grievance Redressal Committees or complaints committee in
all institutions are empowered to investigate sexual harassment practices suo
moto and also by involving NGO's of illiterate women with such committees to
prevent administrative intervention and ensure implementation of its findings in
sexual harassment cases.
- It is mandatory to change the attitude of people which can be changed
through education by changes in curriculum at school level, by organising social
awareness camps, by evolving and gearing up State machinery for combating sexual
harassment at work place.
- We also need for stringent and effective laws, sensitive judiciary,
enforcement machinery and vigilant illiterate women's group to deal with
such atrocious crimes.
- It is necessary to prioritize cases in courts where illiterate women or
children are party by early listing and hearing without unnecessary
adjournments. Justice delayed is no justice.
- We should ensure that cases of rape, molestation, kidnapping,
eve-teasing, murder for dowry, cruelty by husband/relatives, trafficking of
girls are referred to Fast Track Courts set up for this purpose.
- Although there is no outer time limit for completion of trials, Judges
should try to achieve the mandate of S.309(1) of Cr.PC that:
in every inquiry or trial the proceedings shall be held as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded.
- Timely and proper recording of dying declaration of the victim by the
Judicial Magistrate is crucial for final conviction and officers must be
adequately trained in this regard.
- Trials in rape cases must be in-camera as per S. 327(2) of Cr.PC. The
provision seeks to protect the identity of the victim and must be adhered to.
However, under the proviso, the presiding Judge may allow support person to
accompany the victim on written application. Such a request should be allowed
if favourable to recording victim's testimony.
- Need is to create an enabling environment for child victims/witness
inside the courtroom. Children should not be forced to have contact with
alleged perpetrators and, where appropriate, audio-visual or closed-circuit
television technology should be made available to facilitate the process.
Children should be asked straightforward questions in language that they
understand.
- Legal aid and advice should be made available round the clock. District
Legal Aid committees should take the lead in the same and take special
measures to reach out to women and children.
- Setting up all women courts and child friendly Courts is a positive
development. However, gender-sensitive training must be necessary part of
training for judicial officers and other Court staff.
- Organization of Lok Adalats to encourage settlement in matrimonial disputes should be adhered to.
I feel that our mindsets have changed and we always blame the women for such crimes in which she is the victim and not the perpetrator. As neither law nor a single organization can by itself save our society from this evil, therefore, it is the duty of each and every person of our country to extend their support and raise their voices for this cause so that we can root out this cultural cancer from our society.
I have, from the studies conducted, tried to bring forth some solutions that can help alleviate the situation and help society combat and reduce such crimes. The world works on incentives. Some are inherent (internal) and some may be instrumental (external). All human beings are motivated to act in a certain way depending on these incentives.
Utilizing this connection, the table given below, proposes appropriate incentives to promote a crime free personality:
We see criminal personalities are enjoying their criminal activities and their activities are not tolerated by family, society and country. Although they have been punished for such crimes but such punishment has not been sufficient to deter others from committing such crimes. On the other hand, a person who has not committed any crime ever does not receive his/her due recognition/financial assistance.
End-Notes:
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