Offences against Women

Although Women may be victims of any of the general crimes such as ‘Murder’, ‘Robbery’, ‘Cheating’, etc, only the crimes which are directed specifically against Women are characterised as ‘Crimes Against Women’.

Various new legislations have been brought and amendments have been made in existing laws with a view to handle these crimes effectively. These are broadly classified under two categories.

(1) The Crimes under the Indian Penal Code (IPC)

  • Rape (Sec. 376 IPC)
  • Kidnapping & Abduction for specified purposes (Sec. 363 – 373 IPC)
  • Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-B IPC)
  • Torture – both mental and physical (Sec. 498-A IPC) (v) Molestation (Sec. 354 IPC)
  • Sexual Harassment (Eve Teasing) (Sec. 509 IPC)
  • Importation of girls (upto 21 years of age) (Sec. 366-B IPC)

(2) The Crimes under the Special & Local Laws (SLL)

Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. The gender specific laws for which crime statistics are recorded throughout the country are –

  • Immoral Traffic (Prevention) Act, 1956
  • Dowry Prohibition Act, 1961
  • Indecent Representation of Women (Prohibition) Act, 1986
  • Sati Prevention Act, 1987.

Obscenity – Offences against Women

‘Obscenity ‘is a difficult term to explain as it is intricately linked to the moral values of the society.

The Courts have laid down a principle saying that the test to determine  obscenity is whether the tendency of the matter, charged with obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall. If it does, the matter falls within the purview of obscenity.

In Ranjit D.Udeshi v.State of Maharashtra (AIR 1965 SC 881), the Supreme Court observed that the test of obscenity to adopt in India is where an obscenity is published with a commercial purpose and no other social purpose, it cannot have the constitutional protection of free speech and expression.

Treating sex in a manner appealing or having the tendency to appeal to the carnal desire of human nature is definitely obscenity.

LAW IN DETAIL

The Indian Penal Code deals with the sale, hire, distribution, public exhibition, circulation, import, export or advertisement etc of anything obscene.

For sale etc of obscene books, the punishment is imprisonment up to 2 years and fine up to Rs.2000 on first conviction and imprisonment up to 5 years and fine up to Rs. 5000 on subsequent convictions.

For sale etc of obscene objects to young person under the age of 20 years, punishment is imprisonment up to 3 years and fine up to Rs. 2000 on first conviction and imprisonment up to 7 years and fine up to Rs. 5000 on subsequent convictions.

Anybody who does any obscene act in public places or sings, recites or utters any obscene songs in or near any public places is punishable with imprisonment up to 3 months or with fine or both.

Exceptions:

Any book, pamphlet, paper, writing, drawing, painting, representation or figure which is published in the interest of science, literature, art or learning or in general concern or which is kept or used bona fide for religious purposes; Any representation sculptured, engraved, painted or otherwise represented on or in any ancient monument or temple or conveyance of idols;

PROCESS FOR SOLUTION

Complaint Under which Section ? 

Section 292, IPC: Sale etc., of obscene books etc.,

Section 293 IPC: Sale etc., of obscene objects to young person

Section 294 IPC: Obscene acts and songs

Whom to complain / where to complaint? 

An FIR may be lodged in the nearest police station or with the Magistrate having the necessary jurisdiction.

How to file the Case ? 

The case may be file in the court of the Magistrate having jurisdiction and the proceedings will be conducted according to the Criminal Procedure Code. The offences under these sections are cognizable, bailable offences.

What Next ? 

Appeal lies to the High Court on the order of the lower court.

ALTERNATE REMEDIES

The accused may plea bargain the offence.

Outraging the Modesty of Woman U/S 354 IPC – Offences against Women

Crime against women are rising in India especially in State of Uttar Pradesh, Madhya Pradesh and Delhi and there is a need felt in every corner of India to enhance punishment to deter these crimes. India is signatories to various International treaties including related to protection of human rights of woman and children.

Hon’ble Supreme Court of India and various High Courts has taken cognizance of situation on many occasions and recommended to Union of India and state Governments to amend the law to protect the faith of common man especially vulnerable groups like woman and children. 

A Critical review of decisions of courts has been done for highlighting the legal situation on the issue of meaning and scope of applicability of section 354 IPC. Data base collected and compiled from the National Crime Record Bureau website to understand the rising trend of crime.

This paper discusses various reasons for less punishment for molestation and need for enhanced punishment and making it non-bailable to make sense in preventing rising crimes against woman.

Many cases of molestation attracted the attention of media and policy makers. On August 12, 1990, SPS Rathore, then IG and President, Haryana Lawn Tennis Association (HLTA) molested Ruchika for which CBI Court sentenced six months imprisonment to him on 21.12.2009. 

The family of Ruchika Girhotra, a minor girl who allegedly committed suicide after molestation by former Haryana director general of police (DGP) SPS Rathore, has given up its fight for justice in the court of law after 22 years. 

The Special CBI Court Panchkula on 01.6.2012 accepted the closure report submitted by the Central Bureau of Investigation (CBI) in two cases – attempt to murder and forgery of documents, filed against former Haryana DGP SPS Rathore. Ruchika’s father Subhash and brother Ashu raised no objection to the closure report.

 Admitting that he was not in a position to pursue the matter further, Subhash said, “I do not see any hope now. We feel cheated. My family is vulnerable. The circumstances have pushed us back by 20 years.” 

“When Rathore was convicted in 2009, Ruchika’s father met Union Home Minister, P C Chidambaram who assured him of justice. 

Her father forced family into exile after Ruchika’s death, fearing further harassment at the hands of the former DGP. During this period, the family shifted between several cities and returned to Panchkula many years later only to lead an inconspicuous life.

Meaning and Scope of Modesty: 

The meaning of the word “modesty” means, “Womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct (in men or women) reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”. – Oxford English Dictionary [6] 

Court observed: “This obviously does not refer to a particular woman but to the accepted notions of womanly behaviour and conduct. It is in this sense that the modesty appears to have been used in section 354 of the Indian Penal Code”. 

The learned Judge then referred to S.509 of the Penal Code in which also the word “modesty” appears and then proceeded to say: 

Public Morality and Decent Behavior: 

“The object of this provision seems to have been to protect women against indecent behaviour of others which is offensive to morality. The offences created by section 354 and section 509 of the IPC are as much in the interest of the women concerned as in the interest of public morality and decent behaviour.” 

Court further observed that “These offences are not only offences against the individual but against public morals and society as well, and that object can be achieved only if the word “modesty” is considered to be an attribute of a human female irrespective of fact whether the female concerned has developed, enough understanding as to appreciate the nature of the act or to realize that it is offensive to decent female behaviour or sense of propriety concerning the relations of a female with others”. 

Global Scenario: 

The fact that, the Sexual Offences Act, 1956[8] has used much wider-language in s. 14 which, deals with indecent assault on women than that used in S. 354, I.P.C. 

That in one sense S. 354 can also be said to be wider than S.14 of the British Act in that it is not confined to sexual offences which is quite correct. The two provisions run thus: 

Section 14 of the Sexual Offences Act, 1956 

“Indecent assault on a woman: 

  • It is an offence, subject to the exception mentioned in sub-section (3) of this section for a person to make an indecent assault on a woman.
  • A girl under the age of sixteen cannot in law give any consent which would prevent an act being an assault for the purposes of this section.
  • Where a marriage is invalid under section two of the Marriage Act, 1949, or section one of the Age of Marriage Act, 1929 (the wife being a girl under the age of sixteen), the invalidity does not make the husband guilty of any offence under this section by reason of her incapacity to consent while under that age, if he believes her to be his wife and has reasonable cause for the belief”.
  • A woman who is a defective cannot in law give any consent which would prevent an act being an assault for the purposes of this section, but a person is only to be treated as guilty of an indecent assault on a defective by reason of that incapacity to consent, if that person knew or had reason to suspect her to be a defective”.

Section 354 of the Indian Panel Code: 

“Assault or criminal force to woman with intent to outrage her modesty-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”. 

What is made an offence under S.14 is the act of the culprit irrespective of its reaction on the woman. The question is whether under S.354 the position is different. It speaks of outraging the modesty of a woman and at first blush seems to require that the outrage must be felt by the victim herself.

But such an interpretation would leave out of the purview of the section assaults, not only on girls of tender age but on even grown up women when such a woman is sleeping and did not wake up or is under anesthesia or stupor or is an idiot.

It may also perhaps, under certain circumstances, exclude a case where the woman is of depraved moral characterCould it be said that the legislature intended that the doing of any act to or in the presence of any woman whom according to the common notions of mankind is suggestive of sex, would be outside this section unless the woman herself felt that it outraged her modesty? 

Test for modesty: 

Court observed that “Again, if the sole test to be applied is the women’s reaction to particular act, would it not be a variable test depending upon the sensitivity or the upbringing of the woman? These considerations impel court to reject the test of a woman’s individual reaction to the act of the accused.

However, court observed that it would not be easy to lay down a comprehensive test” 

As per Bachawat, L. J. 

Section 10 of the IPC explains that “woman” denotes a female human being of any age. The expression “woman” is used in S.354 in conformity with this explanation, see S.7.[7] 

What then is a Woman’s Modesty?  

Court observed that “that the essence of a woman’s modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses modesty, capable of being outraged. 

A female of tender age stands on a somewhat different footing. Her body is immature, and her sexual powers are dormant. Even if the victim is a baby, has not yet developed a sense of shame and has no awareness of sex. Nevertheless, from her very birth she possesses the modesty which is the attribute of her sex.

Observation:  

Incidence of molestation cases in India registered u/s 354, IPC increased by more than 100 percent since 1991, except a marginal decrease raging between 96 to 99% in 2002, 2005 (99%), 2003 (97%) and 2009 (96%) respectively.

There was phenomenal increase of more than 200% (224%) in the year 1995 over the 1994. Quinquennial Average (Q.A.) between 2005-2009 was 37730 (3.3), which is quite high and need to draw attention of the policy makers, legislatures, law commission of India, judiciary and those involved in criminal justice administration like police, Forensic Medicine experts and social activists.

Violation of Right to Privacy and Personal Integrity / Human Dignity:  

Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women’s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex of crimes.

 Constitutional Provisions:  

Article 15(3) of the Constitution of India speaks of allowing the State to make special provisions for women and children. 

International Obligations:  

The Convention on the Elimination of All Forms of Discrimination Against Women, 1979, which was ratified by India in August 1993 and the U.N. Convention on the Rights of The Child, 1989, which was ratified by India on 11.12.93, especially Articles 17 (3) and 19 of the latter speaks of the need to ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well being and physical and mental health, and for developing appropriate guidelines for the protection of the child from information and material injurious to his or her well being. 

States Parties should take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian (s) of any other persons who has the care of the child. 

Recently Allahabad High Court pointed out that because of the mild penalty of sentence up to two years prescribed for an offence under section 354 IPC and the fact that the offence is bailable, such crimes of sexual violence against women are daily on the increase, although they are usually unreported. 

No woman going to college or for meeting friends or who is simply walking on the streets or travelling by a public transport vehicle for going to some place or as in the present case, even when she is present in her house, is completely safe. Victims of such sexual crimes suffer great shame and humiliation. 

Reasons for Non-Reporting of Cases: 

Because of the attending social stigma and personal and family dishonor the aggrieved female is usually reluctant to lodge any complaint or FIR when she is made a victim of this sexual crime. In the rare case when she takes recourse to the law enforcing agency, an absolute mockery of justice results when the molester is let out on bail at the police station itself, as section 354 IPC is a bailable offence and he becomes free to again stalk and terrorize the victim or to commit another criminal assault on her for outraging her modesty. 

Violative of Article 14 of Indian Constitution:  

Such a lenient punishment appears to have been prescribed for the crime under section 354 IPC because of a patriarchal mind set which does not accord equal status with a man to a woman, and is indifferent to the psychological trauma that a woman must undergo when criminal force is applied to her for outraging her modesty.

As a matter of fact if a woman or girl child is viciously molested, it can be a highly traumatic experience which can leave a permanent psychological scar on the woman or girl child as she suffers humiliation, degradation and violation in the same manner similar to that she would suffer if she were an actual victim of a rape. 

Violation of Fundamental Right to Sexual Integrity and Autonomy:  

It is thus a crime similar to the crime of rape, and whilst it has been argued that such crimes affect the sexual integrity and autonomy of women and children and are violative of the right to life guaranteed under Art. 21 of the Constitution of India, but the argument to this extent have not been accepted in Sakshi v Union of India. 

Trial in camera: 

Supreme Court has shown considerable concern for the woman or child victim of sexual violence, and has held in paragraph 34 that the provisions of sub-section (2) of S.327 Cr.P.C. prescribing in camera trials in addition to the offences mentioned in the sub-section i.e. offences under section 376, 376 A, 376 B, 376 C, and 376 D IPC also apply in inquiry or trials of offences under Ss. 354 and 377, I.P.C.  

Need for appropriate legislation:  

Sakshi case (2004)[14] has also emphasized in paragraph 35 that as the cases of child abuse and rape are increasing at an alarming speed appropriate legislation by Parliament in this regard is, urgently required.

Psychologically where a woman or child is subjected to criminal force or assault for outraging her modesty, the experience was considered equally traumatizing as an actual act of rape of the woman.

 Psychological Harm:  

Apex Court of India in State of Punjab v Gurmit, [10] has also shown great concern for the honour of women and the psychological harm that can be caused by such crimes. 

SC in another cases observed that “Intention is not the sole criterion of the offence punishable under Section 354 IPC, and it can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the woman is likely to be affected.

Knowledge and intention are essentially things of the mind and cannot be demonstrated like physical objects. 

A victim of molestation and indignation is in the same position as an injured witness and her testimony should receive the same weight. In the instant case after careful consideration of the evidence, the trial court and the High Court have found the accused guilty. But the offence is Section 354 IPC”.

[Para 13] SC altered the conviction of the accused from Section 376 IPC to Section 354 IPC. [Para 14][16] 

Role of Courts:  

They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. 

The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.

Need For Harsher Punishment: 

SC observed that “………. In fact, we feel that the sentence was too light considering the gravity of the offence.” 

The parade of a tribal woman on the village road in broad day light is shameful, shocking and outrageous. The dishonor is called for harsher punishment; it is surprising that the State Government did not file any appeal for enhancement of the punishment awarded by the Additional Sessions Judge. 

Hon’ble High Court, therefore, recommend that the State of U.P. and the Union of India, consider amending the provisions of section 354 IPC and the First Schedule to the Cr.P.C. by prescribing a higher sentence for the offence and for making it non-bailable and triable by a Court of Session. [13]

Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.

Rape – Offences against Women

Section 375 IPC. Rape.– A man is said to commit” rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First.- Against her will.

Secondly.- Without her consent.

Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age.

Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Where rape is proved, the minimum punishment is ten years for custodial rape, gang rape, rape of pregnant women and minor girls under the age of 12  and seven years in other cases .

The law of rape is not just a few sentences. It is a whole book, which has clearly demarcated chapters and cannot be read selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have understood and applied it.”  –   Kiran Bedi., Joint Commissioner, Special Branch.

In the Mathura rape case , wherein Mathura- a sixteen-year-old tribal girl was raped by two policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.

Her relatives, who had come to register a complaint, were patiently waiting outside even as the heinous act was being committed in the police station. When her relatives and the assembled crowd threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama.

 The case came for hearing on 1st June, 1974 in the sessions court. The judgment however turned out to be in favour of the accused. Mathura was accused of being a liar. It was stated that since she was  her consent was voluntary; under the circumstances only sexual intercourse could be proved and not rape.

On appeal the Nagpur bench of the Bombay High Court set aside the judgment of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held that passive submission due to fear induced by serious threats could not be construed as consent or willing sexual intercourse.

However, the Supreme Court again acquitted the accused policemen. The Supreme Court held that Mathura had raised no alarm; and also that there were no visible marks of injury on her person thereby negating the struggle by her.

The Court in this case failed to comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she did no consent to the sexual intercourse, the Court shall presume that she did not consent.

In Mohd.Habib v. State , the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis, which the High Court presumed was a indication of no resistance.

The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses, who witnessed this ghastly act, could not sway the High Court’s judgment.

Another classic example of the judicial pronouncements in rape cases is the case of Bhanwari Devi, wherein a judge remarked that the victim could not have been raped since she was a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with a dalit.

In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients.

Finally she was rescued by the police- acting on a complaint filed by her neighbour. With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.

The suit was squashed by the High Court, while observing that ‘it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.

Whereas, in State of Punjab v. Gurmit Singh,  the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

 The Supreme Court has in the case of State of Maharashtra v. Madhukar N. Mardikar,  held that “the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard.”

Also the Bandit Queen case,  which depicts the tragic story of a village girl. Phoolan Devi, who was exposed from an early age to the lust and brutality of some men. She was married to a man old enough to be her father. She was beaten and raped by him. She was later thrown out of the village- accused of luring boys of the upper caste.

She was arrested by the police and subjected to indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by the leader of a gang of Thakurs, who striped her naked and paraded her in front of the entire village. This is truly one story that shows the apathy of the existing society.

In Chairman, Railway Board v. Chandrima Das , a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.

An appeal was preferred and it was contended by the state that:

1 . The railway was not liable to pay the compensation to the victim for she was a foreigner.

2 . That the remedy for compensation lies in the domain of private law and not public law. i.e. that the victim should have approached the Civil Court for seeking damages; and should have not come to the High Court under Article 226.

Considering the above said contentions, the Supreme Court observed:

“Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would be avoidable under public law. It was more so, when it was not a mere violation of any ordinary right, but the violation of fundamental rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right of every person guaranteed under Article.21 of the Constitution.”

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’ adopted by the General Assembly of the United Nation.

Cruelty by Husband or Relatives of Husband – Offences against Women

Section 498A:- Husband or relative of husband of a woman subjecting her to cruelty

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanations

  1. For the purposes of this section, “cruelty” means:
  2. any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
  3. harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Though it is the duty of the court to decide the case based on facts and circumstances but what amount to cruelty is an important aspect as misuse of Laws by the wife against husband in society is growing day by day.

Most apparently some Indian Urban Educated Women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives.

There are certain grounds on which cruelty against husband can be filed:- Misuse of Dowry Laws,Domestic Violence Act  by wife against husband and his parents through lodging false complaints.

 Desertion by wife which means wife deliberately intending for separation to bring cohabitation permanently to an end.  But it’s very difficult for husband to prove same as laws are completely female supportive & Gender Biased.

Most of the cases are Desertion by wife in which wife simply refuse to join husband sitting at her parents place & her parents supports her because they knows though she earn or not she will survive happily by extorting money legally from her husband getting support from multiple cases.

Adultery by wife means wife having s*xual relationship with some other person during the lifetime of marriage and there must be strict law to punish wife who has committed adultery. There are laws which supports female to stay away & extort money from husband on the basis of Adultery by Husband but there is not a single crpc which supports husband to catch hold of wife under Adultery.

Though wife is having multiple relation to get divorce on the basis of Adultery husband have to show 100’s proof’s but same allegation if wife do against husband Police & Women NGO’s run behind husband to harass husband without asking any clarification or justification or any proofs for same from Wife.

Wife opting out for second marriage without applying for the divorce proceedings. Threatening to leave husbands home and threat to commit suicide by the wife. Abusing and accusing husbandby way of insulting in presence of in-laws and in some cases wife abusing husband in front of office staff members.

Wife refusing to have s*x with husband without any sufficient reasons which can be considered as a ground of cruelty. Lowering reputation of the husband by using derogatory words in presence of family members and elders. Lodging FIR against husband and in-laws which has later proved as false report.

Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his home, insisting for the separate residence, mental torture and disrespectful behavior towards husband and in-laws as well. Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, infertility  of wife, illicit relationship of wife with some other personand Wife suffering from the filarial. Extra-marital affairs of wife can also be a ground of cruelty against the husband.

Initiating criminal proceedings against husband and parents of husband with Mala-fide intention by the wife.

CASE LAWS: situations in Hindu marriage where a wife was held as cruel to the husband and the Hindu divorce law was applied by the Supreme Court:

  • Deepalakshmi Saehia Zingade v/s Sachi Rameshrao Zingade (AIR 2010 Bom 16) In this case petitioner/wife filed a false case against her husband on the ground of Husband Having Girl Friend which is proved as false in a court of law so it can be considered as cruelty against husband.
  • Anil Bharadwaj v Nimlesh Bharadwaj (AIR 1987 Del 111) According to this case a wife who refuses to have s*xual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.
  • Kalpana v. Surendranath (AIR 1985 All 253) According to this case it has been observed that where a wife who refuses to prepare tea for the husbands friends was declared by the court as cruelty to husband. Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty.

The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. A strict law need to be passed by the parliament for saving the institution of marriage and to punish those women who

are trying to misguide the court by filing false reports just to make the life of men miserable and justice should not only be done but manifestly and undoubtedly be seen to be done.

A recent Supreme Court judgment regarding acts that constitute “cruelty” by the husband or his relatives, punishable under Section 498 A of the Indian Penal Code (IPC), has led to protests by activists. The law minister has promised to look into the matter and consider changes in the legislation.

The provision making cruelty by the husband or his relatives an offence punishable with three years imprisonment was brought in, in 1983. For several years there have been frequent articulations about “misuse” of the provision and a demand for the removal of this section from the statute books.

The workings of the criminal justice system rest on the assumption of lack of bias and requisite impartiality on the part of those entrusted with the responsibility of its functioning.

However judges, police officers, collectors and magistrates all fall prey to the values, biases and prejudices of the society in which they live. The limited impact of legislations like the Dowry Prohibition Act or provisions dealing with matrimonial cruelty, on the prevalence of dowry or occurrence of cruelty (at times even leading to suicide or murder) is beyond dispute.

The dowry amount in the market for Indian Administrative Services (IAS) and Indian Police Service (IPS) officers — the very people entrusted with implementing these laws — are common knowledge! There have also been instances of complaints with regard to dowry and cruelty against judicial officers entrusted with trials under these laws, by daughters-in-law and wives.

In the recent case of Bhaskar Lal Sharma versus Monica, 2009(10) SCALE 744, the Supreme Court examined the ingredients of “cruelty” to determine which acts would fall within the ambit of the offence of cruelty by the husband or his relatives, under Section 498 A of the IPC.

Vikas and Monica got married on January 16, 2004, in Delhi’s Sanatan Dharm Mandir Hall. The marriage was registered on January 22, 2004, with the Registrar of Marriages. Negotiations for the couple’s marriage took place through a matrimonial agency. The husband Vikas had been married earlier and had obtained a decree of divorce in July 2003 from the civil court in the Congo.

Vikas had two children, born on April 23, 1999, and July 8, 2000, respectively, from his first wife. Immediately after the marriage, the couple left India for South Africa where they stayed for around 10 days. Thereafter, they lived in their matrimonial home in the Congo for two months. The relationship between Vikas and Monica was cordial during this period.

Vikas worked in the family import and export business and was managing director of the company. The business was extensive and spread across many countries. The family also had a residential house in Lajpat Nagar, New Delhi.

Monica returned to India on April 5, 2004, and stayed in Lajpat Nagar with her in-laws until May 10, 2004. Thereafter, she re-joined her husband in the Congo. 

Their relationship deteriorated. The couple came back to India on May 21, 2004. Monica allegedly brought all her belongings back with her including clothes and jewellery. 

In an attempt to sort out their relationship, Monica and Vikas consulted a psychiatrist in Delhi who advised them to try and make their marriage work. Vikas left for the Congo on May 27, 2004, hoping that Monica would change her mind with regard to their marriage and return to the Congo.

Monica stayed on at Lajpat Nagar till June 14, 2004; then took her belongings, including her jewellery, and went to her parents’ house. The allegations of mistreatment and humiliation by her in-laws pertain to the period of her stay in Lajpat Nagar. 

On September 9, 2004, Monica filed a complaint of cruelty and criminal breach of trust under Sections 498 A and 406 of the IPC, respectively, against her husband Vikas and her mother-inlaw and father-in-law. She also moved an application claiming maintenance of Rs 2 lakh per month, and interim maintenance of the same amount.

The magistrate examined Monica, recorded her evidence, and issued a summons on March 21, 2005. By order dated May 10, 2005, the magistrate granted Monica interim maintenance of Rs 5,000 per month.

The magistrate also issued non-bailable warrants, dated June 29, 2005, against Vikas and his parents. Monica subsequently went to the high court, which fixed maintenance at Rs 50,000 per month. 

Vikas and his parents approached the Delhi High Court for a quashing of the order directing the issuance of non-bailable warrants against them. The high court, by order dated August 8, 2005, stayed the issuance of non-bailable warrants with an undertaking that Vikas and his parents would appear before the magistrate.

The husband and in-laws also approached the high court for a quashing of the order summoning them for trial under Sections 498 A and 406 of the IPC, for cruelty and criminal breach of trust respectively.

Vikas and his parents came to India, appeared before the magistrate and were released on bail. The high court directed that Vikas’ passport be impounded on grounds that efforts were being made for a reconciliation. But the reconciliation talks broke down and his passport was returned with permission to go abroad subject to a bank guarantee of Rs 1 lakh. 

On November 21, 2005, Monica filed a criminal complaint of cheating with regard to property, under Section 420 of the IPC, against her husband Vikas and her in-laws. It was alleged that material facts with regard to Vikas’ first marriage, particularly that the first wife had alleged acts of cruelty by the husband, had not been disclosed.

The magistrate took cognisance under Sections 417/415 of the IPC for cheating, as the allegations were not made out under Section 420 of the IPC, as property was not involved. At the instance of the wife, several attempts at a reconciliation between her and Vikas were made. 

The high court, by an order dated January 21, 2008, dismissed the in-laws’ application for a quashing of the summons with regard to the criminal case of cruelty and criminal breach of trust. The high court held that whether the conduct of the in-laws amounted to cruelty or not would be determined only after detailed evidence by the prosecution at the trial.

With regard to criminal breach of trust, the high court held that the allegations indicated that property belonging to the wife was in the possession of her in-laws and that they had refused to return it when they were asked to.

The order observed that it was not necessary, at the stage of the quashing, to determine whether the contents of the complaint were true or not. Whether or not the ingredients of criminal breach of trust were made out would be determined at the trial. The father-in-law and mother-in-law appealed to the Supreme Court against the high court’s order refusing to quash the summons with regard to the criminal case.  

The Supreme Court examined the ingredients of Section 498 A of the IPC and observed that, in order to constitute cruelty under the provision, the husband and relatives’ conduct should be such as to be likely to drive the woman to suicide or cause grave injury or danger to her life, limb or to her mental or physical health. 

The wife did make a number of allegations with respect to her in-laws. It was alleged that the father-in-law “threatened the complainant to finish her relationship with Mr Vikas Sharma”. That he offered her a sum of Rs 25 lakh as compensation for a divorce by mutual consent and refused to return clothes/jewellery unless a divorce was granted.

There were a number of allegations of a general nature against the mother-in-law, such as “poisoning the ears of the son”, giving used lady suits (sic) to the daughter-in-law and “giving perpetual sermons to the complainant”, which would clearly be outside the ambit of the offence of cruelty under the provision. 

The three allegations that deserve scrutiny are that the mother-in-law kicked the daughter-in-law; that she humiliated and harassed her by repeatedly saying that her son would be a second-time divorcee while the complainant would have been divorced for the first time; and that gifts/cash given by invitees/guests had been appropriated by the mother-in-law. 

It is important to keep in mind that summons to appear are quashed when, even if the allegations made are taken to be true, they do not constitute an offence or make out a case against the accused. The correctness or falsity of the allegations is generally left to be determined by the trial court, based on the evidence adduced.

In the present case, the apex court judgment declared that even if the allegations made in Monica’s complaint were taken at face value and accepted in their entirety, they did not constitute the offence of cruelty under Section 498 A and that no case had been made out against the in-laws.

This, in effect, means that kicking by the mother-in-law, or harassing and humiliating by threatening the daughter-in-law with divorce have been held not to amount to cruelty under Section 498 A. 

After holding that no case for cruelty had been made out under Section 498 A, the judgment adverts to the allegation that the mother-in-law had taken the gifts/cash given by invitees/guests and holds that this prima facie would fall within the offence of criminal breach of trust, under Section 406 of the IPC.

Applying the view taken to the case, the court quashed the summons issued to the mother-in-law and father-in-law to appear before the magistrate with regard to the offence of cruelty under Section 498 A. It directed that proceedings against the mother-in-law could continue with respect to criminal breach of trust, under Section 406 of the IPC. 

The Supreme Court does not just decide individual cases — it lays down the law of the land. The proposition that kicking and threats of divorce do not cause a woman to feel suicidal, nor do they gravely injure her physical or mental health seems too broad a proposition.

Apart from the factor of a divorced woman’s status in our society, circumstances can indeed be visualised where a woman feels suicidal when she is threatened by divorce. It could gravely injure and traumatise her psyche, thereby jeopardising her mental health. Today, the law recognises that words, barbs and acts that are not physical or violent could be wounding and hurtful enough to amount to cruelty.

Even if kicking may not cause grave physical injury, it could be extremely degrading, demeaning and traumatic to the individual. The importance of the judgment is not confined to the two acts of kicking and threatening divorce being taken out of the purview of cruelty, under Section 498 A in the present case.

Following the precedent set by the apex court, numerous other acts and conduct thought “akin” or similar to kicking and threats of divorce may be taken out of the ambit of the offence of cruelty to a married woman by her husband or his relatives by the courts.

Offences Relating to Marriage

Introduction

Section 493 to Section 498A of the Indian Penal Code, 1860 (hereinafter referred to as IPC) defines and provides for Offences relating to Marriage. Section 494 states that Marrying again during lifetime of husband or wife is Bigamy [Read with section 50 of the Evidence Act and Section 198(1)(c) of CrPC].

However, the IPC provides for Exceptions to Section 494 of IPC, which are as follows:-

  • First marriage has been declared void by a court of competent jurisdiction;
  • Former husband/wife has been continuously absent for a period of seven years and not heard of as being alive provided that these facts are disclosed to the person with whom second marriage is contracted.

(For better understanding of the above provision please refer to Section 17 of the Hindu Marriage Act and Section 108 of the Evidence Act along with the judgment of Supreme Court in the Landmark case of Sarla Mudgal v. Union of India ).

  1. Adultery

The husband alone has the right to prosecute the man who had an adulterous relationship with the wife [Read with Section 198(2) CrPC and Section 50 of the Evidence Act].

Essential ingredients of Adultery are stated in Section 497. They are as follows: –

  1. Sexual intercourse
  2. Woman must be married
  3. Knowledge
  4. Consent or connivance of Husband
  5. Should not constitute rape

Note: This section provides for Exception of woman from prosecution.

Cruelty by Husband or Relatives of Husband

Section 498A of IPC provides for punishment for husband or relatives of husband of a woman subjecting her to cruelty. The said section is strengthened by following provisions of CrPC and Evidence Act

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