Vivekananda Institute of Professional Studies

Women & Law

CRIMES AGAINST WOMEN

Simran Bhullar
VIII- B
17517703811
Mrs. Nidhi Mutreja

INTRODUCTION
In India, equality before law and equality of status is more in
books than in the Indian community. Women have been
suppressed for ages, socially, religiously and physically. Men
have been considered superior to women in all walks of life.
The patriarchal mindset of the society is a negation of the
promise of equality. Equality is a farfetched dream which many
societies have bore through decades. The fight for the rights of
women has been continuing since ages and it still continues.
As soon as a girl child is born in a family, the first reaction is
disappointment. In some cases pre natal diagnostic is
conducted to discover the sex of the fetus and if it turns out to
be a female then it is destroyed as soon as possible. Her
education is irrelevant, her dignity and character is a social
issue, her life is controlled by her family, and she is a mere
burden for all. Right from her birth till the time of her death,
she lives a life of a daughter, a sister, a mother without a true
identity of her own.
Education, media, social workers and protective laws have
helped in arousing a consciousness among the society about
the status of women but with the increase in the awareness
about the same, there has been a sharp increase in crimes
against women as well. Most of the crimes that are committed
against women have become so institutionalized that they are
condoned not only by the society and other institutions that are
supposed to curb them but also by the victims themselves. 1
The laws, courts, lawyers, police, all seem to be available for
providing justice to the victim but when a woman seeks help of
this justice-providing machinery, all she gets is failure,
1Saxena, S. (1995). p. 319. Crimes Against Women and Protective Laws. Deep
and Deep Publications.

disappointment and harassment at the hands of the system.

Even the fa
This research paper aims to focus on the various crimes against
women and their respective legislations and sanctions
including:
1.
2.
3.
4.
5.
6.

Adultery
Rape
Outraging the Modesty of Women
Domestic Violence
Female Foeticide
Obscenity

Andhra Pradesh and Uttar Pradesh have recorded the highest

number of cases of crime against women, closely followed by
West Bengal, Rajasthan, Maharashtra and Madhya Pradesh.
Delhi the capital city of India recorded approximately 13000
cases of crime against women in the year 2013. While the
national crime rate was 52.2 in the year 2013, Delhi had the
highest rate of crime against women with an eye opening figure
of 146.8 in the same year.
Now these figures can be misleading since the awareness
amongst the people in metro cities is much higher and the
crime reporting procedure is easier as compared to other cities.
The actual figures can be really disturbing and much more
alarming as most of the crimes in the country go unregistered
due to the fear of being a subject of humiliation by the society.
The year on year increase in reporting of incidents of crime
against women on one hand clearly describes the state of
women in our country, while on the other it shows the
increasing strength of women who are coming out and
reporting these cases.

ADULTERY
Adultery is extramarital sex that is considered objectionable on
social, religious, moral or legal grounds. 2 Adultery is an act of
intimacy outside of marriage. Almost all the countries and
religions of the world condemn it. This is also considered as a
solid ground for divorce in most penal laws. Adultery is a
voluntary sexual act that takes place between a man and a
woman who are not married to each other, where one of them
is married to their respective spouses.

The Indian law penalizes the act of adultery under Chapter XX :

Of Offences relating to Marriage under section 497 of Indian
Penal Code, 1860 and section 198 of Code of Criminal
Procedure, 1973.
The provision under the IPC reads as follows:
497. Adultery.Whoever has sexual intercourse with a person
who is and whom he knows or has reason to believe to be the
wife of another man, without the consent or connivance of that
man, such sexual intercourse not amounting to the offence of
rape, is guilty of the offence of adultery, and shall be punished
with imprisonment of either description for a term which may
extend to five years, or with fine, or with both. In such case the
wife shall not be punishable as an abettor.

2 Blacks Law Dictionary Online, retrieved at:

http://thelawdictionary.org/adultery/ (Visited on April 8, 2015)

The ingredients of the offence of adultery under Section 497

are:
i) The accused had sexual intercourse with a woman;
ii) Such woman was married;
iii) The accused knew or had reason to believe it;
iv) The connection was held without the consent or connivance
of the husband.
v) The sexual connection so held does not amount to rape.

This provision was drafted as early as 1860, when the status

and position of women was much more orthodox. It was
believed by the law-makers that women are incapable of
committing such a crime and are mere victims of the same and
it is the man who may entice or seduce her into having a sexual
intercourse with him. 3
This provision has broadly two parts:
1. When a man has a sexual intercourse with the wife of
another man, without the consent of such man, he is
guilty of the offence of adultery.
2. The wife, who has sexual intercourse with another man,
without the consent of her husband, is not guilty of the
offence of adultery.
Hence, we can infer that this law is both pro equality and
against it. According to it, a married man is the only aggrieved.
A woman can not file a case against her husband if he is
committing adultery. Therefore, if a man is having an intimate
relationship with any woman other than his wife, then the wife
has no right to file a complaint against her adulterous husband.
3 refer: Macaulay's Draft Penal Code (1837), Notes, Note Q, pp. 90-93, cited
from, Law Commission of India, Forty-second Report: Indian Penal Code
(Government of India, 1971), para 20.13

This is grossly unjust. Thus this is merely a crime committed by

a man against a husband with respect to his wife. The main
idea of the legislators seems to be that a husband must not be
cheated. The only complainant in such cases shall be the
husband. A wife has no right complaint. Similarly, the only
accused can be a man, the married woman or a widow or any
woman who indulges into a sexual intercourse with a married
man cannot be punished. 4
In consonance with the penal provision, section 198 of Cr.P.C,
1973 reads as follows:
198. Prosecution for offences against marriage.(1) No court
shall take cognizance of an offence punishable under Chapter
XX of the Indian Penal Code (45 of 1860), except upon a
complaint made by some person aggrieved by the offence.
(2) For the purposes of sub-section (1), no person other than
the husband of the woman shall be deemed to be aggrieved by
any offence punishable under Section 497 or Section 498 of the
said Code: Provided that in the absence of the husband, some
person who had care of the woman on his behalf at the time
when such offence was committed may, with the leave of the
court, make a complaint on his behalf.
According to the above provision, only a husband can make a
complaint and only upon his complaint cognizance shall be
taken by the court, unless the circumstances otherwise provide.
This law was formulated to secure that the right of inheritance
falls into ones own lineage and a married mans property
should not be inherited by any other mans issue. This provision
totally neglects the right of women; there status is merely that
of a human being who is involved in a sexual intercourse with
another man. They can neither be the aggrieved nor be the
abettor, only an ingredient to constitute the offence of
adultery.5

4 Section 497, Indian Penal Code, 1860

The constitutional validity of this provision of adultery has been

time and again challenged in the court of law but has been
upheld every time under the purview of Article 15 of the
Constitution of India which reads as follows:

15. Prohibition of discrimination on grounds of religion, race,

caste,
sex or place of birth.
(1) The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or
any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex,
place of
birth or any of them, be subject to any disability, liability,
restriction or
condition with regard to
(a) access to shops, public restaurants, hotels and places of
public
entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of
public resort maintained wholly or partly out of State funds or
dedicated
to the use of the general public.
(3) Nothing in this article shall prevent the State from making
any
special provision for women and children.
5 Law Commission of India, 42nd report on Indian Penal Code, August
1997,available at http://lawcommissionofindia.nic.in/101-169/Report156Vol2.pdf

(4) Nothing in this article or in clause (2) of article 29 shall

prevent the
State from making any special provision for the advancement
of any socially
and educationally backward classes of citizens or for the
Scheduled Castes and
the Scheduled Tribes.
(5) Nothing in this article or in sub-clause (g) of clause (1) of
article 19
shall prevent the State from making any special provision, by
law, for the
advancement of any socially and educationally backward
classes of citizens or
for the Scheduled Castes or the Scheduled Tribes in so far as
such special
provisions relate to their admission to educational institutions
including private
educational institutions, whether aided or unaided by the State,
other than the
minority educational institutions referred to in clause (1) of
article 30.

Therefore, Article 15 (2) (3) empowers the state to make any

laws to make special provisions for women and children. In
1951, one Mr Yusuf Abdul Aziz, charged with adultery,
contended before the Bombay High Court that Section 497 IPC
is unconstitutional as it, in contravention of Articles 14 and 15
of the Constitution6, operates unequally between a man and a
woman by making only the former responsible for adultery. It,
thereby, he argued, discriminates in favour of women and
against men only on the ground of sex.

Recalling the historical background of Section 497 and the then

prevailing social conditions and the sexual mores oppressive to
women, and the unequal status of women, the High Court of
Bombay upheld the constitutional validity of the provision.
Chagla, C.J., observed:
"What led to this discrimination in this country is not the fact
that women had a sex different from that of men, but that
women in this country were so situated that special legislation
was required in order to protect them, and it was from this
point of view that one finds in Section 497 a position in law
which takes a sympathetic and charitable view of the weakness
of women in this country." The Court also opined that the
alleged discrimination in favour of women was saved by the
provisions of Article 15(3) of the Constitution which permits the
State to make "any special provision for women and children".
Yusuf Abdul, on appeal to the Supreme Court argued that
Section 497, by assuming that the offence of adultery could
only be committed by a man and mandating a court that the
adulteress wife be not punished even as an abettor offended
the spirit of equality enshrined in Articles 14 and 15 of the
Constitution. Such immunity assured to the adulteress wife
(even) for her willing participation in the adulterous sexual
activity, it was argued, did amount to a sort of license to her to
commit and abet the offence of adultery.
Vivian Bose, J., speaking for the Constitutional Bench
(comprising M.C. Mahajan, C.J., Mukherjea, S.R. Das and
Ghulam Hasan, JJ.) was not impressed by the appellant's
interpretation of Section 497 as well as of Articles 14 and 15.
His Lordship, like Chagla, C.J., relying heavily upon Article 15(3),
held that Section 497 is a special provision made for women
and therefore is saved by clause (3) of Article 15. To the
argument that Article 15(3) should be confined only to
provisions which are beneficial to women and should not be
used to give them a licence to commit and abet a crime with
impunity, the Apex Court responded:

"We are not unable to read any such restriction into the clause;
nor are we able to agree that a provision which prohibits
punishment is tantamount to a licence to commit the offence of
which punishment has been prohibited."
More than three decades after the Supreme Court's
pronouncement in Yusuf Abdul Aziz case, constitutional vires of
Section 497 came to be reagitated in Sowmithri Vishnu v.Union
of India. It was contended that Section 497, being contrary to
Article 14 of the Constitution, makes an irrational classification
between women and men as it: (i) confers upon the husband
the right to prosecute the adulterer but it does not confer a
corresponding right upon the wife to prosecute the woman with
whom her husband has committed adultery, (ii) does not confer
any right on the wife to prosecute the husband who has
committed adultery with another woman, and (iii) does not take
in its ambit the cases where the husband has sexual relations
with unmarried women, with the result that the husbands have
a free licence under the law to have extramarital relationship
with unmarried women.
The Supreme Court rejected these arguments and ruled that
Section 497 does not offend either Article 14 or Article 15 of the
Constitution. The Apex Court also brushed aside the argument
that Section 497, in the changed social "transformation" in
feminine attitudes and status of the woman in a marriage, is a
flagrant instance of "gender discrimination", "legislative
despotism" and "male chauvinism", by opining that it is for the
legislature to take note of such a "transformation" while making
appropriate amendments to Section 497.6
Evidence: Adultery is a secret act. Direct evidence of an act of
adultery is extremely difficult. Where a charge for adultery
under Section 497 is definite as regards to the place where
offence was said to have been committed but specific dates
cannot be proved on which sexual intercourse took place,
6 A.R. Antulay Vs. Ramdas Srinivas Nayak And Ors. , AIR 1984 SC 718

according to court judgments, it is sufficient to specify the

period within which offence was alleged to have been
committed and omission of precise date would not affect the
allegation of the husband.
Cases from 2013- 2015

RAPE
After the latest Delhi gang rape case a new strong anti rape law
has been enacted, four accused are sentenced to be death .
But still the scenario is not changed. In every day we wake up
with horrible news of rape. According to the statistic National
crime records bureau in Delhi 1,121 rape cases got registered
in the first eight months of this year (i.e.: January to July). This
is the highest in last 13 years. It means according to NCRB data
in every 29 second five people was raped. But these are the
registered case but there are many unregistered cases which
are remaining unnoticed. As this project is for the subject of law
and social transformation so in this project I will try to find out
the link between the law and the society and also try to find out
whether it is able to make any social transformation.
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 wife, the wife
not being under fifteen years of age, is not rape]. 7
Recently Section 375 has been replaced with a newly worded
section where the word rape has been substituted by sexual
assault.8 It has two implications, one, that under the changed
law the offence of sexual assault has been made gender
neutral and second that the new term will take under its ambit
many more acts of sexual nature. Under the old provision read
with case law, a very strict definition of rape, which required
certain degree of penetration of the female genitalia, was
followed. However, under the substituted provision the law
stands substantially changed. It provides for the following:
i) Penetration of penis into vagina, urethra, mouth or anus of
any person, or making any other person to do so with him or
any other person;

7 Section 375 Indian Penal Code 1860

8 Criminal Law Amendment, 2013

ii) Insertion of any object or any body part, not being penis, into
vagina, urethra, mouth or anus of any person, or making any
other person to do so with him or any other person;
iii) manipulation of any body part so as to cause penetration of
vagina, urethra, mouth or anus or any body part of such person
or makes the person to do so with him or any other person;
iv) Application of mouth to the penis, vagina, anus, urethra of
another person or makes such person to do so with him or any
other person;
v) lastly, touching the vagina, penis, anus or breast of the
person or makes the person touch the vagina, penis, anus or
breast of that person or any other person.
As can be observed the new section has criminalized forcing a
person to commit a sexual act on oneself as well as any other
person. This is a very substantial change.
Also consent by any person below 18 years of age is considered
to be no consent. The age bar earlier was 16 years.
Also added is the explanation 3 which says that a person who
does not physically resist to the act of penetration shall not by
the reason only of that fact, be regarded as consenting to the
sexual activity
Any of the acts enumerated above will constitute the offence of
sexual assault and be punishable with an imprisonment term
not less than seven years but may extend to life imprisonment
and shall also be liable to fine. Also aggravated sexual assault
is liable for imprisonment of a term not less than 10 years but
may extend to life imprisonment and also fine.
The Ordinance has further amended the law to provide for the
following:
1) Where the commission of sexual assault or aggravated
sexual assault causes death of the victim or leaves the victim in
a persistent vegetative state the punishment is prescribed to
be rigorous imprisonment of a term not less than twenty years
but may extend to life imprisonment (meaning the whole of the
remainder natural life of the accused) or even with death.
2) Further section 376 B provides that whoever commits sexual
assault on his own wife, who is living separately under a decree
of separation or under any custom or usage, without her
consent, shall be punished with imprisonment of either
description, for a term which shall not be less than two years

but which may extend to seven years, and shall also be liable
to fine.
3) Also the substituted section 376 C provides that:
Whoever,
(a) being in a position of authority or in a fiduciary relationship;
or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or other
place of custody established by or under any law for the time
being in force, or a womens or childrens institution; or
(d) being on the management of a hospital or being on the staff
of a hospital, and abuses such position or fiduciary relationship
to induce or seduce any person either in the first mentioned
persons custody or under the first mentioned persons charge
or present in the premises and has sexual intercourse with that
person, such sexual intercourse not amounting to the offence of
sexual assault, shall be punished with rigorous imprisonment
of either description for a term which shall not be less than five
years but which may extend to ten years, and shall also be
liable to fine.
This provision reinforces the terms of new section 376(2) and
perhaps is added to highlight the gravity of situation where the
perpetrator is a person in a position of trust and authority.
4) The provision added under section 376D provides Where a
person
is sexually
assaulted
by one or more persons
constituting a group or acting in furtherance of a common
intention, each of those persons shall be deemed to have
committed the offence of sexual assault, regardless of gender
and shall be punished with rigorous imprisonment for a term
which shall not be less than twenty years, but which may
extend to life and shall pay compensation to the victim which
shall be reasonable to meet the medical expenses and
rehabilitation of the victim
This provision would make liable even a female person for the
offence of sexual assault if she is a part of the group of persons
committing the act.

5) Further section 376 E has been added and section 509

amended to stand as follows:
376E. Whoever has been previously convicted of an offence
punishable under section 376 or section 376A or section
376C or section 376D and is subsequently convicted of an
offence punishable under any of the said sections shall be
punished with imprisonment for life, which shall mean the
remainder of that persons natural life or with death..
Recently the defense lawyer A.P Singh (of Delhi gang rape
case) said that if his daughter went out with her boyfriend at
midnight then he will burn her alive. This statement made by
defence lawyer of Delhi gang rape case make us think that
whether this amendment of rape laws can able to make any
social transformation or all effort will be wasted. According to
Roscoe Pound lawyers are the social engineers. They are
supposed to be a social reformer if they can make such types of
offensive statement in front of media then it is not very difficult
to imagine what would be the common people take on this type
sensitive issue.
In very general sense rape means anything which is done by
using force and without the consent. According to Oxford
Dictionary rape means to force someone to have sex with you
when they do not want to by threatening them or using
violence. Section 375 of Indian Penal Code defines the term
rape. According to section 375 of Indian Penal Code, it can be
said that a man has committed rape under certain
circumstances. These are following below:
1. Without the will of the concern woman ( in the time of
intercourse)
2. Without the consent of the concern women.
3. If consent is there but it has been taken by threaten and
fearing her.
4. If the girl gives consent because she thinks that this man is
her legal husband though the man is very much aware of the
fact that she is not his wife.
5. When the girl gives her consent but in that time her mental
condition is not sound or at the time of intoxication.

6. When the age of the girl is 16 years of age then with or

without consent of the girl if any intercourse has been there
then it is considered as rape.
The anti-rape law has been encoded in the Indian penal code.
Section 375 of Indian Penal Code defines what constitute to
rape. Section 376 of the Indian Penal Code on the other hand
enumerates the punishment of rape. The explanation given in
section 375 of the Indian Penal Code; it is stated that
penetration is enough to commit the sexual intercourse
which is essential for the crime of rape. Full penetration is not
required in case of rape; if any part of the organ of male goes
within the labium of the pudendum of the woman, no matter
how little it amounts to rape.
According to the old law it is not important that hymen should
be ruptured. So to prove that a particular intercourse is raped
or not absent of consent is essential. If there is consent then it
is not a rape. But it is essential that consent must be free
consent. Here the meaning of the term free consent is different
from the Indian Contract Act, 1872.
In the case of Tukaram vs. State of Maharastra 9 it is commonly
known as The MATHURA RAPE CASE. This a worthy case to
discuss in the social transformation perspective because this is
the very first case which led to public outrage and as a result of
the protest the reforms have been made in the existing law. In
this case what happened was 16 years old girl who is belongs
to tribal community named Mathura was raped in a Police
station. After that the family members of Mathura, made a
criminal complaint against those two police officers. But the
Supreme Court of India reject this case and also said that why
they reject the case. It said that the case got rejected because
Mathuras body bore no outwards sign of rape. This judgment
leads to a huge movement by many women groups all over the
nation. After this huge protest four eminent law professors
wrote an open complaint letter to the Chief Justice of India
opposing this judgment. After this entire incident an
amendment has been made in criminal law in 1983. So after
the Mathura Rape Case, the Criminal Law Amendment, 1983
has been made. The main features of the criminal law
amendment, 1983 are:
9 1979 AIR 185, 1979 SCR (1) 810

1. For the first time custodial rape has been recognized.

2. Closed proceeding for the rape trials.
3. It is also banned the publication of victims identifications.
In the year of 2002, an amendment of section 146 of the Indian
Evidence Act has been made. It is also significant in this
regards. According to this amendment, it does not allowed any
types of cross examination of rape victims that directly or
indirectly raised questions about the moral character of the
rape victim also any types of question which is about the
previous sexual experience of the victims.
After the Delhi gang rape case in December 2012 India has
experienced the power of the general mass. All over the India
people are start protesting against this incident. They are fight
for justice, fight for a new law and most importantly all they
want is to a safe and rape free society. Though changing the
law is another thing and social transformation is totally different
story. Literally the term transformation means inspiration,
innovation and proper execution.
In parliament there are certain number of reservation for
women but still the number of amendment regarding women
related law are very few. So in Parliament in spite of reserving
certain percentage of seat for women, they should allot specific
time for discussion and debate over women related issue,
including the improvement of rape laws. Then only it would be
helpful for our society.
Vinod Kumar Vs. State of Kerala10
Essentials and parameters of the offence of rape under Section
37511 came to be questioned. The Supreme Court held that
where the woman is in possession of her senses, and therefore,
capable of consenting but the act is done against her will; and
second, where it is done without her consent; the third, fourth
and fifth, when there is consent, but it is not such a consent as
excuses the offender, because it is obtained by putting her on
10 ILC-2014-SC-CRL-Apr-2

11 Indian Penal Code 2013

any person in whom she is interested in fear of death or of hurt.

The expression "against her will" means that the act must have
been done in spite of the opposition of the woman also
"Consent" is also stated to be an act of reason coupled with
deliberation. It denotes an active will in the mind of a person to
permit the doing of an act complained of. Section 375, requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and
moral quality of the act but after having fully exercised the
choice between resistance and assent. Whether there was
consent or not, is to be ascertained only on a careful study of
all relevant circumstances.
Bhavanbhai Bhayabhai Panella Vs. State of Gujarat 12
In this case the rape of girl aged 11 years was committed by
the accused and there was adequate evidence on record to
justify conviction of the appellant. Thus, the conviction of the
appellant was upheld. Appellant has been in custody for about
ten years and having regard to the totality of circumstances,
ends of justice will be met if the sentence awarded to the
appellant is reduced to RI for ten years from life imprisonment .
However, sentence of fine and compensation as also default
sentence and direction for recovery of the amount payable as
compensation maintained.
In Re: Indian Woman says gang-raped on orders of Village Court
published in Business & Financial News dated 23.01.2014 13
Such crimes can certainly be prevented if the state police
machinery work in a more organized and dedicated manner.
Thus, we implore upon the State machinery to work in harmony
with each other to safeguard the rights of women in our
country. The registration of FIR is mandatory under Section 154
of the Code, if the information discloses commission of a
12 LC-2015-SC-CRL-Feb-3
13 ILC-2014-SC-CRL-Mar-18

cognizable offence and the Police officers are duty bound to

register the same. Likewise all hospitals, public or private,
whether run by the Central Government, the State
Government, local bodies or any other person, are statutorily
obligated under Section 357C to provide the first-aid or medical
treatment, free of cost, to the victims of any offence covered
under Sections 326A, 376, 376A, 376B, 376C, 376D or Section
376E of the IPC. Important decision that was held was that the
registration of FIR is mandatory under Section 154 of the Code,
if the information discloses commission of a cognizable offence
and the Police officers are duty bound to register the same.
Marital Rape: Marital Rape refers to unwanted intercourse by a
man with his wife obtained by force, threat of force, or physical
violence, or when she is unable to give consent. Marital rape
could be by the use of force only, a battering rape or a
sadistic/obsessive rape. It is a non-consensual act of violent
perversion by a husband against the wife where she is
physically and sexually abused.
Historically, Raptus, the generic term of rape was to imply
violent theft, applied to both property and person. It was
synonymous with abduction and a womans abduction or sexual
molestation, was merely the theft of a woman against the
consent of her guardian or those with legal power over her. The
harm, ironically, was treated as a wrong against her father or
husband, women being wholly owned subsidiaries.
Not surprisingly, thus, married women were never the subject
of rape laws. Laws bestowed an absolute immunity on the
husband in respect of his wife, solely on the basis of the marital
relation. The revolution started with women activists in America
raising their voices in the 1970s for elimination of marital rape
exemption clause and extension of guarantee of equal
protection to women.
In the present day, studies indicate that between 10 and 14%
of married women are raped by their husbands: the incidents of
marital rape soars to 1/3rd to among clinical samples of
battered women. Sexual assault by ones spouse accounts for
approximately 25% of rapes committed. Women who became
prime targets for marital rape are those who attempt to flee.

Criminal charges of sexual assault may be triggered by other

acts, which may include genital contact with the mouth or anus
or the insertion of objects into the vagina or the anus, all
without the consent of the victim. It is a conscious process of
intimidation and assertion of the superiority of men over
women.
Advancing well into the timeline, marital rape is not an offence
in India. Despite amendments, law commissions and new
legislations, one of the most humiliating and debilitating acts is
not an offence in India. A look at the options a woman has to
protect herself in a marriage, tells us that the legislations have
been either non-existent or obscure and everything has just
depended on the interpretation by Courts.
Section 375, the provision of rape in the Indian Penal Code
(IPC), has echoing very archaic sentiments, mentioned as its
exception clause- Sexual intercourse by man with his own
wife, the wife not being under 15 years of age, is not rape.
Section 376 of IPC provides punishment for rape. According to
the section, the rapist should be punished with imprisonment of
either description for a term which shall not be less than 7
years but which may extend to life or for a term extending up
to 10 years and shall also be liable to fine unless the woman
raped is his own wife, and is not under 12 years of age, in
which case, he shall be punished with imprisonment of either
description for a term which may extend to 2 years with fine or
with both.
This section in dealing with sexual assault, in a very narrow
purview lays down that, an offence of rape within marital bonds
stands only if the wife be less than 12 years of age, if she be
between 12 to 16 years, an offence is committed, however, less
serious, attracting milder punishment. Once, the age crosses
16, there is no legal protection accorded to the wife, in direct
contravention of human rights regulations.
How can the same law provide for the legal age of consent for
marriage to be 18 while protecting form sexual abuse, only
those up to the age of 16? Beyond the age of 16, there is no
remedy the woman has.

A marriage is a bond of trust and that of affection. A husband

exercising sexual superiority, by getting it on demand and
through any means possible, is not part of the institution.
Surprisingly, this is not, as yet, in any law book in India.
Marital rape is illegal in 18 American States, 3 Australian
States, New Zealand, Canada, Israel, France, Sweden,
Denmark, Norway, Soviet Union, Poland and Czechoslovakia.
Rape in any form is an act of utter humiliation, degradation and
violation rather than an outdated concept of penile/vaginal
penetration. Restricting an understanding of rape reaffirms the
view that rapists treat rape as sex and not violence and hence,
condone
such
behaviour.
The importance of consent for every individual decision cannot
be over emphasized. A woman can protect her right to life and
liberty, but not her body, within her marriage, which is just
ironical. Women so far have had recourse only to section 498-A
of the IPC, dealing with cruelty, to protect themselves against
perverse sexual conduct by the husband. But, where is the
standard of measure or interpretation for the courts, of
perversion or unnatural, the definitions within intimate
spousal relations? Is excessive demand for sex perverse? Isnt
consent a sine qua non? Is marriage a license to rape? There is
no answer, because the judiciary and the legislature have been
silent.
The 172nd Law Commission report had made the following
recommendations for substantial change in the law with regard
to rape.
1. Rape should be replaced by the term sexual assault.
2. Sexual intercourse as contained in section 375 of IPC
should include all forms of penetration such as
penile/vaginal, penile/oral, finger/vaginal, finger/anal and
object/vaginal.
3. In the light of Sakshi v. Union of India and Others [2004 (5)
SCC 518], sexual assault on any part of the body should
be construed as rape.

4. Rape laws should be made gender neutral as custodial

rape of young boys has been neglected by law.
5. A new offence, namely section 376E with the title
unlawful sexual conduct should be created.
6. Section 509 of the IPC was also sought to be amended,
providing higher punishment where the offence set out in
the said section is committed with sexual intent.
7. Marital rape: explanation (2) of section 375 of IPC should
be deleted. Forced sexual intercourse by a husband with
his wife should be treated equally as an offence just as
any physical violence by a husband against the wife is
treated as an offence. On the same reasoning, section 376
A was to be deleted.
8. Under the Indian Evidence Act (IEA), when alleged that a
victim consented to the sexual act and it is denied, the
court shall presume it to be so.
The much awaited Domestic Violence Act, 2005 (DVA) has also
been a disappointment. It has provided civil remedies to what
the provision of cruelty already gave criminal remedies, while
keeping the status of the matter of marital rape in continuing
disregard. Section 3 of the Domestic Violence Act, amongst
other things in the definition of domestic violence, has included
any act causing harm, injury, anything endangering health, life,
etc., mental, physical, or sexual.
It condones sexual abuse in a domestic relationship of marriage
or a live-in, only if it is life threatening or grievously hurtful. It is
not about the freedom of decision of a womans wants. It is
about the fundamental design of the marital institution that
despite being married, she retains and individual status, where
she doesnt need to concede to every physical overture even
though it is only be her husband. Honour and dignity remains
with an individual, irrespective of marital status.
Section 122 of the Indian Evidence Act prevents communication
during marriage from being disclosed in court except when one
married partner is being persecuted for n offence against the
other. Since, marital rape is not an offence, the evidence is

inadmissible, although relevant, unless it is a prosecution for

battery, or some related physical or mental abuse under the
provision of cruelty. Setting out to prove the offence of marital
rape in court, combining the provisions of the DVA and IPC will
be a nearly impossible task.
As a final piece of argument to show the pressing need for
protection of woman, here are some effects a rape victim may
have to live with, Physical injuries to vaginal and anal areas, lacerations,
bruising.
Anxiety, shock, depression and suicidal thoughts.
Gynecological effects including miscarriage, stillbirths,
bladder infections, STDs and infertility.
Long drawn symptoms like insomnia, eating disorders,
sexual dysfunction, and negative self image.
Marriage does not thrive on sex and the fear of frivolous
litigation should not stop protection from being offered to those
caught in abusive traps, where they are denigrated to the
status of chattel. Apart form judicial awakening; we primarily
require generation of awareness. Men are the perpetrators of
this crime. Educating boys and men to view women as
valuable partners in life, in the development of society and the
attainment of peace are just as important as taking legal steps
protect womens human rights, says the UN. Men have the
social, economic, moral, political, religious and social
responsibility to combat all forms of gender discrimination.

Sec 114 A: The newly-added S. 114-A deals with cases of

prosecution for rape under clauses (a), (b), (c), (d), (e) or (g) of
S. 376(2) of the Indian Penal Code, where sexual Intercourse by
the accused is proved, and the question before the Court is
whether such intercourse was with or without the womans
consent. In such cases, if the woman, in her evidence, states

before the Court that she did not consent, the Court must
presume that she did not so consent.
This new provision (inserted in 1983) has brought about a
rather radical change in the Indian Law relating to rape cases.
Formerly, the rule was that corroboration of the victims version
was not essential for a conviction, but as a matter of prudence,
it would have to be established if the mind of the judge, unless
circumstances were strong enough to make it safe to convict
the accused without such corroboration. As observed by the
Supreme Court, although the victim of a rape cannot be treated
as an accomplice, her evidence is to be treated almost like
accomplice evidence, requiring corroboration. 14
Now, of course, the position is different, and S. 114-A raises a
presumption in favour of the rape victim.
The following three conditions must be satisfied before the
presumption contained in S. 114-A can be raised:
(a) It should be proved that there was sexual intercourse.
(b) The question before the court should be whether such
intercourse was with or without the consent of the woman.
(c) The woman must have stated, in her evidence before the
court that she had not consented to the intercourse.
This presumption would apply not only to rape cases, but also
to cases of attempted rape, as for instance, when the victim
was disrobed and attempts were made to rape her, which,
however, could not materialise because of intervening
circumstances.15
In a case of alleged gang rape of a girl above the age of 16, the
F. I.R. was lodged seven days after the occurrence. The girl
14 (Sk. Zakir v. State of Bihar, 1983 Cri. L.J. 1285)
15 (Fagnu Bhai v. State of Orissa, 1992 Cri. L.J. 1808)

admitted that she was desirous of marrying one of the accused,

and the chemical examiners report ran counter to any sexual
intercourse. In the circumstances, it was held that the
presumption under S. 114-A could not be invoked. 16
Lastly, it may be noted that the presumption under S. 114-A
can be drawn only when the accused says that he indulged in
sexual intercourse with the consent of the girl. If the case of the
accused is not that such intercourse was had with her consent,
no presumption can be drawn under the section. 17

16 . (Sharrighan v. State of M.P., 1993 Cri. L.J. 120)

17 (Ravindranath v. State of U.P., 1991 Cri. L.J. 31)

DOMESTIC VIOLENCE
In India where almost half of the population is women, they
have always been ill-treated and deprived of their right to life
and personal liberty as provided under the constitution of India.
Women are always considered as a physically and emotionally
weaker than the males, whereas at present women have
proved themselves in almost every field of life affirming that
they are no less than men due to their hard work whether at
home or working places. Behind closed doors of homes all
across our country, people are being tortured, beaten and
killed. It is happening in rural areas, towns, cities and in
metropolitans as well. It is crossing all social classes, genders,
racial lines and age groups. It is becoming a legacy being
passed on from one generation to another. But offences against
women which reflects the pathetic reality that women are just
not safe and secure anywhere. According to a latest report
prepared by Indias National Crime Records Bureau
(NCRB), a crime has been recorded against women in every
three minutes in India. Every 60 minutes, two women are raped
in this country. Every six hours, a young married woman is
found beaten to death, burnt or driven to suicide.
Violence against women is not a new phenomenon. Women
have to bear the burns of domestic, public, physical as well as
emotional and mental violence against them, which affects her
status in the society at the larger extent. The statistics of
increasing crimes against women is shocking, where women
are subjected to violence attacks i.e. foeticide, infanticide,
medical neglect, child marriages, bride burning, sexual abuse of
girl child, forced marriages, rapes, prostitution, sexual
harassment at home as well as work places etc. In all the above
cases women is considered as aggrieved person.
The term used to describe this exploding problem of violence
within our homes is Domestic Violence. This violence is
towards someone who we are in a relationship with, be it a
wife, husband, son, daughter, mother, father, grandparent or
any other family member. It can be a males or a females
atrocities towards another male or a female. Anyone can be a
victim and a victimizer. This violence has a tendency to explode

in various forms such as physical, sexual or emotional.

Domestic Violence includes harms or injuries which
endangers womens health, safety, life, limb or well being,
whether mental or physical. It may also be through physical,
sexual, verbal, emotional and economic abuse. According to
United Nation Population Fund Report, around two-third of
married
Indian
women
are
victims
of Domestic
Violence attacks and as many as 70 per cent of married
women in India between the age of 15 and 49 are victims of
beating, rape or forced sex. In India, more than 55 percent of
the women suffer from Domestic Violence, especially in the
states of Bihar, U.P., M.P. and other northern states.
What amounts to domestic violence against women? -Domestic
Violence undoubtedly a human right issue where it is very
important to know what actually leads to act of domestic
violence. The most common causes for women stalking and
battering include:- exploitation of women for demanding more
dowry, discrimination of women, alienation of womens self
acquired property fraudulently, torture by husband and in-laws
of the husband, arguing with the partner, refusing to have sex
with the partner, neglecting children, going out of home
without telling the partner, not cooking properly or on time,
indulging in extra marital affairs, not looking after in-laws,
cruelty by husband or in-laws mentally or physically, abusing &
insulting by using vulgar language, sexual harassment,
molestation, immoral traffic, rape, sodomy and all other
inhuman acts. In all above stated causes women are subjected
to torture and will be considered as the aggrieved person.
Usually violence takes place due to lack of understandings
between the couple as well as in the family.
The consequences of domestic violence attack on women,
which will affect victim as well as family of the victim. Domestic
Violence affects womens productivity in all forms of life i.e.
assaulted women will always get agonized and emotionally
disturbed and remain quite after occurrence of the torment.
The suicide case of such victimized women is also a deadly
consequence and the number of such cases is increasing day
by day. A working Indian woman may lose her efficiency in work
or drop out from work in some cases. Domestic Violence may
affect the life of children at the larger extent because child will

be having greater attachment with her mother and once the

mothers grief and sufferings revealed then child may turn
silent, reserved and express solace to the mother. In some of
the cases violence will lead to maintain distance from the
partner whereby sexual life gets affected adversely. Sometimes
marriage life will become a burden to the spouse and one of the
spouses will opt out for divorce or separation which again
affects life of the children.
In a case where wife is beaten up by her husband doesnt
amount to domestic violence unless a sufficient reason of
violation of right to life is shown. In another case where the
women just not given food, it amounts to domestic violence if it
is intended to achieve the ultimate purpose of necking her out
of the benefits of shared household.
To prevent violence against women and to protect the rights of
aggrieved women, the legislation The Protection of Women
from Domestic Violence Act, 2005 was passed by the
parliament. According to this act every women who have been
deprived of their right to life by the act of husband or relatives
of the husband, can file a complaint to the protection officer,
police officer or magistrate in the form of Domestic Incident
Report (Similar to FIR). Complaint can be filed by the victim
/aggrieved person or relatives, it will be considered as the
prima-facie evidence of the offence. Every Domestic Incident
Report has to be prepared by the Protection Officer which will
assist in the further investigation of the incidence. The
protection officer will pass certain orders i.e. protection of the
women, custody of respondent and order of monetary relief to
the victim.
The Government of India should come out with some more
stringent laws to protect the rights of women who are victims of
violence of any kind occurring within the family, so that it will
work as the preventive measure to eradicate the crime. A strict
law to be passed to punish those women who are filing a false
compliant against husband or relatives by misusing of Domestic
Violence Act so that there will be fair justice to all.
V.D. Bhanot Vs. Savita Bhanot18
18 ILC-2012-SC-MAT-Feb-1

In this case the wife was subjected to violence prior to coming

of force of PWD Act and was no longer living with husband. The
wife is entitled to maintain petition Even if the acts of domestic
violence had been committed prior to the coming into force of
the said Act, notwithstanding the fact that in the past she had
lived together with her husband in a shared household, but was
no more living with him, at the time when the Act came into
force.
The Protection of Women From Domestic Violence
2005 - Section 18 , Section 19 , Section 20 , Section 12:

Act,

In this case the wife compelled to leave matrimonial home after

31 years of marriage; the couple had no children. The husband
directed to provide a portion of his house to wife to where he
was residing and pay Rs. 6,000/- p.m. towards her expenses
and if the wife was reluctant live with her husband, that
husband had to pay Rs. 4,000/- for obtaining alternative
accommodation. Held, in addition to providing the residential
accommodation to the Wife, the Husband shall also pay a total
sum of Rs. 10,000/- per month to the Wife towards her
maintenance and day-to-day expenses.
Inderjit Singh Grewal Vs. State of Punjab & Anr. 19
Court held that a complaint could be filed only within a period
of one year from the date of the incident. The Rule 15(6) under
the provision of Criminal Procedure Code are applicable.

PREVENTION OF DOMESTIC VIOLENCE ACT

Primarily meant to provide protection to the wife or female livein partner from domestic violence at the hands of the husband
19 ILC-2011-SC-MAT-Aug-3

or male live-in partner or his relatives, the law also extends its
protection to women in a household such as sisters or mothers.
Domestic violence includes actual abuse or the threat of abuse
physical, sexual, verbal, emotional or economic. Harassment
by way of unlawful dowry demands is also covered.
The debate on domestic violence had a long journey from 2001
when the Bill was introduced in the Parliament to 2005 when
finally the Act was passed. The act contains 5 chapters and 37
sections. The act was brought into force on October 2006.
The act primarily meant to provide protection to the wife or
female live in partner from domestic violence at the hands of
the husband or male live in partner/ their relatives. The
important highlights of this Act are:
1. The prime beneficiaries of this act are women and children
2. The term domestic relationship has been defined under
Section 2 (s) read with section 2 (g) and has been given a
vast meaning.
3. Domestic violence under this act includes physical, sexual,
emotional, verbal, psychological and economical abuse or
threats.20
The definition of an 'aggrieved' person' is equally wide and
covers not just the wife but a woman who is the sexual partner
of the male irrespective of whether she is his legal wife or not.
The daughter, mother, sister, child (male or female), widowed
relative, in fact, any woman residing in the household who is
related in some way to the respondent, is also covered by the
Act
The respondent under the definition given in the Act is "any
male, adult person who is, or has been, in a domestic
relationship with the aggrieved person" but so that his mother,
sister and other relatives do not go scot free, the case can also
be filed against relatives of the husband or male partner. 21
20 Section 3, Preventyion of Women from Domestic Violence Act.
21 [Chapter. I, - Sec.2(a)].

The information regarding an act or acts of domestic violence

does not necessarily have to be lodged by the aggrieved party
but by "any person who has reason to believe that" such an act
has been or is being committed. Which means that neighbours,
social workers, relatives etc. can all take initiative on behalf of
the victim?22
This fear of being driven out of the house effectively silenced
many women and made them silent sufferers. The court, by
this new Act, can now order that she not only reside in the
same house but that a part of the house can even be allotted to
her for her personal use even if she has no legal claim or share
in the property.23
S.18 of the same chapter allows the magistrate to protect the
woman from acts of violence or even "acts that are likely to
take place" in the future and can prohibit the respondent from
dispossessing the aggrieved person or in any other manner
disturbing her possessions, entering the aggrieved person's
place of work or, if the aggrieved person is a child, the school.
The respondent can also be restrained from attempting to
communicate in any form, whatsoever, with the aggrieved
person, including personal, oral, written, electronic or
telephonic contact". The respondent can even be prohibited
from entering the room/area/house that is allotted to her by the
court.
The Act allows magistrates to impose monetary relief and
monthly payments of maintenance. The respondent can also be
made to meet the expenses incurred and losses suffered by the
aggrieved person and any child of the aggrieved person as a
result of domestic violence and can also cover loss of earnings,
medical expenses, loss or damage to property and can also
cover the maintenance of the victim and her children.
Sec.22 allows the magistrate to make the respondent pay
compensation and damages for injuries including mental
torture and emotional distress caused by acts of domestic
22 [ Chapter III - Sec. 4.]
23 [Chapter IV - Sec. 17]

violence. Sec.31 gives a penalty up to one year imprisonment

and/or a fine up to Rs. 20,000/- for and offence. The offence is
also considered cognisable and non-bailable. Sec. 32 (2) goes
even further and says that "under the sole testimony of the
aggrieved person, the court may conclude that an offence has
been committed by the accused"
The Act also ensures speedy justice as the court has to start
proceedings and have the first hearing within 3 days of the
complaint being filed in court and every case must be disposed
of within a period of sixty days of the first hearing.
It makes provisions for the state to provide for Protection
Officers and the whole machinery by which to implement the
Act.
Interpreting s 2(s) of the Protection of Women from Domestic
Violence Act, 2005, the court held that the definition of shared
household as including a household where the person
aggrieved lives or at any stage had lived in a domestic
relationship will mean that wherever the husband and wife
lived together in the past that property becomes a shared
household. It is quite possible that the husband and wife may
have lived together in dozens of places and therefore saying
that all these will be shared households would be chaotic and
absurd. It is well settled that any interpretation which leads to
absurdity should not be accepted. The wife is only entitled to
claim a right to residence in a shared household, and a 'shared
household' would only mean the house belonging to or taken
on rent by the husband, or the house which belongs to the joint
family of which the husband is a member. Furthermore, a claim
for alternative accommodation under S 19(1)(f) of the Act can
only be made against the husband and not against the
husband's in-laws or other relatives. 24

24 S R Batra vs Taruna Batra

OUTRAGING
WOMAN

THE

MODESTY

OF

Any person who assaults a woman or uses criminal force on any

woman with the intention to outrage her modesty is guilty of an
offence under section 354 of the Indian Penal Code. He may
also do so with the knowledge that by doing so he would be
outraging the modesty of the woman.
Any person who utters any word or makes any sound or gesture
or exhibits any object with the intention that it will be seen or
heard by such woman or will intrude up on her privacy is guilty
of insulting the modesty of that woman.
Assault or using criminal force is an offence under section 354
of the Indian Penal Code while insulting the modesty of the
woman through words or gestures is an offence under Section
509 of the Code.
Some of the examples illustrating acts that amount to
outraging the modesty of a woman are as follows:
Hugging a woman without her consent, kissing her, touching
her private parts or
any act which is likely to put her to shame by outraging her
modesty.
Examples of insulting the modesty of the woman are:
Writing letters using vulgar language.
Making vulgar gestures
Displaying vulgar figures
Singing songs with vulgar suggestions
Entering a womans house and making vulgar gestures
Exhibiting his nude body
The offence under section 354 is punishable with imprisonment
up to 2 years or fine or both while that under Section 509 is
punishable with a simple imprisonment of 1 year or fine or
both. Both the offences are cognizable, bailable and
compoundable with the permission of the court.
Any person may file a complaint and lodge an FIR against the
offender in the nearest Police Station. The case can be tried by

the Metropolitan Magistrate or a First Class or Second Class

Judicial Magistrate.
Once the case is filed in the Court, the concerned woman has to
prove the following:
Under Section 354 of IPC,
a) That the accused had assaulted the woman or has used
criminal force on her.
b) That he had done so with the intention of outraging her
modesty or that he had
done so knowing that thereby he outrage her modesty.
Under Section 509 of IPC,
a) That the accused has uttered any word or made any sound
or gesture or exhibited
any object to the woman with the intention that she sees or
hears it or it intrudes
her privacy.
b) That he has done so with the intention of insulting her
modesty.
Amendment: The Ordinance has enhanced the term of
imprisonment prescribed for the offence which falls under the
category of assault or criminal force to woman with intent to
outrage her modesty (section 354). While earlier the accused
was liable to imprisonment of a term which could extend to two
years or fine or both, now, the same offence is punishable with
a term of one year which may extend up to five years and shall
also be liable to fine.
This reflects substantial change in the outlook towards the
crime and a stronger determination to deter criminals.
the ordinance mandates insertion of new sections after the
already existing section 354 which deals with assault or
criminal force to woman with intent to outrage her modesty.
Section
354A deals
with
the
definition
of sexual
harassment which is very broadly defined and criminalizes
acts like forcibly showing pornography, physical contact and
advances involving unwelcome and explicit sexual overtures,
demanding or requesting sexual favours, any other unwelcome
physical, verbal or non-verbal conduct of sexual nature. This
section further deals with the punishment to be awarded for the
offence depending upon the act in question.

While demanding or requesting sexual favours and physical

contact or advances which involve unwelcome and explicit
sexual overtures is punishable with rigorous imprisonment of a
term which may extend to five years or with fine or with both,
the other three acts enumerated above attract a lesser term
which may extend to one year or fine or both. A bare reading of
this section shows that it is gender neutral in nature.
Further section 354B deals with offence where criminal force
or assault is used up on a woman with the intention of disrobing
her or compelling her to be naked in public and penalizes the
same with an imprisonment term which shall not be less than
three years but may extend to seven years and also attract
fine. This section deals with a very specific offence and adds to
and will supplement the provision dealing with the offence of
outraging the modesty of a woman. This is a welcome provision
in view of the fact that many cases have been reported in the
news of women being stripped in public as an instrument of
punishment mostly in backward areas.
Section 354 C also deals with the specific act of either
watching or capturing the images of a woman engaging in a
private act where she expects privacy and observation by the
perpetrator or any other person at the behest of the
perpetrator is not likely. Such watching or capturing images of a
woman is criminalized and attracts an imprisonment term
which shall not be less than one year but may extend to three
years and fine. Also on a subsequent conviction the minimum
imprisonment term shall be that of three years extendable to
seven years and also fine.
For the purpose of this section the offence is widely defined and
includes a situation where the victim may have consented to
the capturing of images or any act but not agreed to the
dissemination of the same to any third person.
Section 354 D criminalizes the act of stalking which interferes
with the mental peace of a person or causes distress, fear of
violence or alarm. The same is punishable with a minimum
imprisonment term of one year which may extend to three
years and also liable with fine. However, the offence is subject
to certain exceptions like where a person can show that the

acts done were in pursuance of some law, amounted to

reasonable conduct or in order to prevention of some crime.
Also, In section 509 of the Penal Code, for the words shall be
punished with simple imprisonment for a term which may
extend to one year, or with fine, or with both, the words shall
be punished with simple imprisonment for a term which may
extend to three years and shall also be liable to fine shall be
substituted.
A senior Indian Administrative Service (IAS) female officer
named Rupan Deol Bajaj filed a complaint against Gill for, in
1988, "patting" her "posterior" at a party where he was alleged
to be drunk In August 1996, Gill was convicted under Section
354 (outraging the modesty of a woman) and Section 509
(word, gesture or act intended to insult a lady), generally
summarised as sexual harassment. Gill was sentenced to pay a
fine of Rs 200,000, be imprisoned rigorously for 3 months
and simply for 2 months, and finally to serve 3 years of
probation. After final appeals before the Supreme Court in July
2005, the conviction was upheld, and the jail sentences were
reduced to probation. The victim had declined to accept the
monetary compensation, and the court ordered that it be
donated to women's organisations.25
Ajahar Ali vs State of West Bengal26 court held- In the instant
case, as the appellant has committed a heinous crime and with
the social condition prevailing in the society, the modesty of a
woman has to be strongly guarded and as the appellant
behaved like a road side Romeo, we do not think it is a fit case
where the benefit of the Act 1958 should be given to the
appellant. The provisions of Section 354 IPC has been enacted
to safeguard public morality and decent behaviour. Therefore, if
any person uses criminal force upon any woman with the
intention or knowledge that the womans modesty will be
outraged, he is to be punished. 27
25 http://www.tribuneindia.com/2005/20050728/main5.htm; Kanwar Pal Singh
Gill vs State 2005 SC 161
26 (2013) 10 SCC 31

OBSCENITY
The word obscenity has not been defined anywhere under the
statutory provisions. However, obscenity has been expressly
made an offence.
Section 292, 293 and 294 of the Indian Penal Code, 1860, deal
with the offence of obscenity. Moreover, sections 3 and 4 of the
Indecent Representation of Women (Prohibition) Act and section
67 of the Information Technology Act also deal with obscenity.
Section 292: Sale, etc., of obscene books, etc. :( 1 ) For
the purposes of subsection (2), a book, pamphlet, paper,
writing, drawing, painting, representation, figure or any other
object, shall be deemed to be obscene if it is lascivious or
appeals to the prurient interest or if its effect, or (where it
comprises two or more distinct items) the effect of any one of
27 http://judis.nic.in/supremecourt/imgs1.aspx?filename=40857

its items, is, if taken as a whole, such as to tend to deprave and

corrupt person, who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or
embodied in it.
(2) Whoever(a) sells, lets to hire, distributes, publicly exhibits or in any
manner puts into circulation, or for purposes of sale, hire,
distribution, public exhibition or circulation, makes, produces or
has in his possession any obscene book, pamphlet, paper,
drawing, painting, representation or figure or any other
obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of
the purposes aforesaid, or knowing or having reason to believe
that such object will be sold, let to hire, distributed or publicly
exhibited or in any manner put into circulation, or
(c) takes part in or receives profits from any business in the
course of which he knows or has reason to believe that any
such obscene objects are for any of the purposes aforesaid,
made, produced, purchased, kept, imported, exported,
conveyed, publicly exhibited or in any manner put into
circulation, or
(d) advertises or makes known by any means whatsoever that
any person is engaged or is ready to engage in any act which is
an offence under this section, or that any such obscene object
can be procured from or through any person, or
(e) Offers or attempts to do any act which is an offence under
this section,
shall be punished on first conviction with imprisonment of
either description for a term which may extend to two years,
and with fine which may extend to two thousand rupees,
and, in the event of a second or subsequent conviction, with
imprisonment of either description for a term which may extend
to five years, and also with fine which may extend to five
thousand rupees].

Exception- This section does not extend to-

(a) Any book, pamphlet, paper, writing, drawing, painting,

representation or figure(i) the publication of which is proved to be justified as being for
the public good on the ground that such book, pamphlet, paper,
writing, drawing, painting, representation or figure is in the
interest of science, literature, art of learning or other objects of
general concern, or
(ii) Which is kept or used bona fide for religious purposes;

(b) Any representation sculptured,

otherwise represented on or in-

engraved,

painted

or

(i) Any ancient monument within the meaning of the Ancient

Monuments and Archaeological Sites and Remains Act, 1958
(24 of 1958), or
(ii) Any temple, or on any car used for the conveyance of idols,
or kept or used for any religious purpose.
Section 293: Sale, etc., of obscene objects to young
person: Whoever sells, lets to hire, distributes, exhibits or
circulates to any person under the age of twenty years any
such obscene object as is referred to in the last preceding
section, or offers or attempts so to do, shall be punished
140[on first conviction with imprisonment of either description
for a term which may extend to three years, and with fine
which may extend to two thousand rupees, and, in the event of
a second or subsequent conviction, with imprisonment of either
description for a term which may extend to seven years, and
also with fine which may extend to five thousand rupees
Section 294- Obscene acts and songs: Whoever, to the
annoyance of others(a) Does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or words, in
or near any public place, shall be punished with imprisonment

of either description for a term which may extend to three

months, or with fine, or with both.

THE
INDECENT
REPRESENTATION
(PROHIBITION) ACT, 1986

OF

WOMEN

Section 3- Prohibition of advertisements containing indecent

representation of Women. - No person shall publish, or cause to
be published, or arrange or take part in the publication or
exhibition of, any advertisement which contains indecent
representation of women in any form.
Section 4- Prohibition of publication or sending by post of
books, pamphlets, etc; containing indecent representation of
women.- No person shall produce or cause to be produced,
sell , let to hire, distribute, circulate or send by post any book,
pamphlet, paper, slide, film, writing, drawing, painting,
photograph , representation or figure which contains indecent
representation of women in any form:
Provided that noting in this section shall apply to(a) Any book, pamphlet, paper, slide, film, writing, drawing,
painting, photograph, representation or figure
(i)the publication of which is proved to be justified as justified
as being for the public good on the ground that such book,
pamphlet, paper, slide , film, writing, drawing, painting,
photography, representation or figure is in the interest of
science, literature, art, or learning , art, or learning or other
objects of general concern; or
(ii) Which is kept or used bona fide for religious purpose;
Any representation sculptured, engraved, painted or otherwise
represented on or in
(i) Any ancient monument within the meaning of the Ancient
Monument and Archaeological Sites and Remains Act, 1958 (24
of 1958); or
(ii) Any temple, or on any car used or the conveyance of idols,
or kept or used for any religious purpose;

Any film in respect of which the provisions of Part II of the

Cinematograph Act, 1952 (37 of 1952), will be applicable.
Section 67- Punishment for publishing or transmitting
obscene material in electronic form:
Whoever publishes or transmits or causes to be published or
transmitted in the electronic form, any material which is
lascivious or appeals to the prurient interest or if its effect is
such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or
hear the matter contained or embodied in it, shall be punished
on first conviction with imprisonment of either description for a
term which may extend to three years and with fine which may
extend to five lakh rupees and in the event of second or
subsequent conviction with imprisonment of either description
for a term which may extend to five years and also with fine
which may extend to ten lakh rupees.
Although, the expressionObscenity is nowhere defined in our
statutory provisions, but the courts have often interpreted the
meaning of the same in various judicial pronouncements.
The test for obscenity was first laid down the Regina v. Hicklin,
as a tendency to deprave and corrupt those whose
minds are open to such immoral influences and into
whose hands a publication of this sort may fall. Lord CJ
Cockburn in his opinion in the Hicklin case pointed out that the
danger of prurient literature was that it would suggest to the
minds of the young of either sex, and even to persons of more
advanced years, thoughts of a most impure and libidinous
character.
The Supreme Court of India in the case of Ranjit D. Udeshi v.
State of Maharashtra upheld the test laid down by Cockburn,
C.J. It observed as follows:
That the test of obscenity to adopt in India is that obscenity
without a preponderating social purpose or profit cannot have
the constitutional protection of free speech and expression and
obscenity in treating sex in a manner appealing to the carnal
side of human nature or having that tendency. The obscene
matter in a book must be considered by itself and separately to
find out whether it is so gross and its obscenity so decided that

it is likely to deprave and corrupt those whose minds are open

to influences of this sort and into whose hands the book is likely
to fall. In this connection the interests of our contemporary
society and particularly the influence of the book on it must not
be overlooked. It further interpreted the word obscene as
that which is offensive to modesty or decency, lewd, filthy and
repulsive. Also that section 292 of the IPC was a reasonable
restriction on the right of freedom of speech and expression
under Article 19 (2) of the Constitution.
Another test for obscenity is the Miller Test which was laid
down by the United States Supreme Court in the case of Miller
v. California:
It is a three-prong test for obscenity:
1. Whether the average person, applying community
standards would find the work, taken as a whole, appeals to the
prurientinterest;
2. Whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically denied by state law;
3. Whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value.
The third-prong of Miller test needs a
assessment of the reasonable person test.

more

objective

This test was endorsed by the Supreme Court in the case of

Director General of Doordarshan v. Anand Patwardhan
and also in the case of Ajay Goswami v. Union of India,
where it was observed that the test for judging a work should
be that of an ordinary person of common sense and prudence
and not an out of the ordinary or hyper sensitive person
In the last few years, lawmakers have been in a dilemma with
regard to the applicability of these tests for obscenity in an
electronic environment .Dr. A.R. Lakshmanan, J. in the Ajay
Goswami case, while referring to contemporary day and age of
the internet observed that:Community mores and standards
played a part in the Indian Supreme Court taking a different
view from the general view taken by the English Courts. The
test has become somewhat outdated in the context of the

internet age which has broken down traditional barriers and

made publications from across the globe available with a click
of the mouse
But, in the recent judgment of Avnish Bajaj v. State (NCT of
Delhi) both the provisions were considered together in arriving
at the judgment. Also, the punishment under section 67 of the
ITA is more stringent that section 292 of the IPC. Section 67 is
also criticized it is very easy for a person to escape criminal
charges just by proving his lack of knowledge of publication or
transmission of obscene information in the electronic form.
Moreover, though publication or transmission of obscene
information may be illegal but mere possession, browsing or
surfing through obscene content is not an illegal activity.
The issues related to publication of obscene information in
electronic form has to be looked at from the perspective of
extra-territorial jurisdiction and Internet technologies, keeping
in view that obscenity is no longer a local or static
phenomenon. It is now global and dynamic in nature and thus
needs strict interpretation of statute.
The acceptable level of obscenity in films, photographs,
paintings, and stories and novels, is not yet settled in India. In
terms of section 292 of the Indian Penal Code, any matter is
obscene if taken as a whole, it is lascivious or appeals to the
prurient interest or if its effect and tends to deprave and
corrupt persons who read, see or hear the matter contained or
embodied in it. In this article, the author will argue for the
community standards test as against the Hicklin test in the
backdrop of the Supreme Court judgement in Aveek Sarkar v.
State of West Bengal28
A Bench of the Supreme Court comprising Justices K S
Radhakrishnan and A K Sikri recently decided that a picture of
Boris Becker, a world renowned Tennis player, posing nude with
his dark-skinned fiance was not prosecutable as obscene
under Section 292 of the IPC or under Section 4 of the Indecent
Representation of Women (Prohibition) Act, 1986. Justice
Radhakrishnan speaking for the Bench ruled that nudity per se
cannot be equated with obscenity. The photograph and the
28 (3rd February 2014) Criminal Appeal No 902 of 2004).

article objected to should be appreciated in context and in light

of the message sought to be conveyed, namely, to eradicate
the evil of racism and Apartheid in the society and to promote
love and marriage between white-skinned man and a blackskinned woman. The photograph, according to the Bench,
wanted to convey that colour of skin matters little and love
champions over colour.29

FEMALE FOETICIDE
Female foeticide is the extreme manifestation of crimes against
women. The progress of medical science has further facilitated
the commission of this offence. With the invention of CVS,
amniocentesis and Ultrasound, sex determination of the
fetus has become much easier than it was. Female infanticide
has been replaced by female foeticide in most of the cases 30.
Female feticide may be defined as the selective abortion or
murder of a girl child in the womb itself, done intentionally by
the mother, either on her on will or under the pressure of her
husband or other persons related to her, after pre-natal sex
determination. The techniques which were used to detect
genetic disorders, chromosomal abnormalities, congenital
abnormalities or sex linked diseases were abused to commit
female foeticide. The irony lies in the fact that such an evil
practice is generally adopted by well-educated and wealthy
sections of our society.
The general purpose behind abortions is to terminate
unplanned pregnancy. However, abortions done to kill a female
child even before she comes into this world leads to the
atrocious and cruel crime of female foeticide. Even female
foeticide is a side effect of a patriarchal setup of societies. The
root cause of female foeticide lies in the cultural and ancient
norms of our society which place men above women in all
29 SC Judgment on Nudity Defines Spirit of Liberalism, New Indian Express, February 9, 2014
(New Delhi)

30 Refer: http://www.legalserviceindia.com/article/l292-Female-Foeticide.html

aspects of life. A vehement desire for a male child lies in the

fact that only male class of the society is considered capable of
taking forward the clans of a family and providing aid in
achieving salvation after death by performing the last rites. The
evil practice of dowry further aggravates the feelings of
detestment towards a girl child as she is considered a liability.
The growing rate of female foeticides is a matter of grave
concern and offends the dignity of women. 31 The state is under
an obligation to take steps to ensure that the health and
strength of women is not abused under Article 39 (e) of the
Constitution of India. The commission of the crime of female
foeticide displays a complete failure of the state in performing
such duty. Therefore, sex selective abortions are against the
principles enshrined under the constitution of India. Female
foeticide is a clear violation of a female childs right to life
under Article 21 of the Constitution of India. The national plan
of action exclusively for the girl child (1991-2000) was
formulated in 1992 for the "Survival, Protection and
Development of the Girl Children". One of the main objectives
of this act was to prevent the acts of female foeticide.
Moreover, the National Plan of Action for children 32 has also
emphasized the importance of prevention of female foeticide.
The key areas covered under the plan include complete
abolition of female foeticide, female infanticide and the
development and protection of girl child. Moreover, sex
selection was prohibited. Even Article 6 of the Convention on
the Right of the child recognizes the principle that every state
shall recognize that every child has an inherent right to life. It
imposes upon the states a positive obligation to work towards
the survival and development of a child.
This practice has led to decline in the Child Sex Ratio in most
parts of India. The Child Sex ratio, which is the number of girls
per 1000 boys in the 0-6 years age group has declined from
976 in 1961 to 914 in 2011. The Current Sex Ratio of India 2015
31 Devender Kumari, Krishan Kumar Kajal, Female Foeticide and Infanticide: A Socio-Legal
Problem, International Journal of Science and Research, Volume 3 Issue 6, June 2014 avaialable at:
http://ijsr.net/archive/v3i6/MDIwMTQ2OTk%3D.pdf- referred (Visited on 10 April, 2015).

32 Department of women and child development, National Plan of Action for children, 2005,
available at: http://www.wcd.nic.in/NAPAug16A.pdf

is 943 females for every 1,000 males. The states of India, such
as Bihar, Haryana, Chandigarh, etc. have the lowest sex ratios
as per 2015 report.33
INDIAN PENAL CODE, 1860
Although the Indian Penal Code does not specifically and
expressly address the crime of female foeticide, however, there
are certain provisions under the act which may be resorted, in
order to punish the perpetrators of the offence of female
foeticide. These provisions curb the act of miscarriage itself,
irrespective of whether the sex of the child to be born.
Section 312- Causing miscarriage: This section prohibits and
penalizes voluntary miscarriage of a woman, except when it is
done in good faith to save the life of the woman. Moreover, it
provides for an aggravated punishment if the woman is quick
with the child.
Section 313- Causing miscarriage without womans Consent:
This section provides for an aggravated punishment for an
offence committed under Section 312, if it is committed without
the consent of the woman.
Section 314- Death caused by act done with intent to cause
miscarriage: This section penalizes any act done with the
intention to cause miscarriage, which leads to the death of the
pregnant woman. Only intention to cause miscarriage and the
occurrence of death constitute the essentials of this offence.
Section 315- Act done with intent to prevent child being born
alive or to cause it to die after birth: This section prohibits and
penalizes any act done, before the birth of any child, with the
intention of either preventing the child to be born alive or
causing it to die after its birth. Such act is punishable only if it
prevents that child from being born alive, or causes it to die
after its birth. Moreover, no such act is punishable if it is done
in good faith.

33 Referred: http://www.indiaonlinepages.com/population/sex-ratio-of-india.html (visited on 11th

April, 2015)

Section 316- Causing death of quick unborn child by act

amounting to culpable homicide. Such act is punishable with an
imprisonment of up to 10 years and with fine.
Medical Termination of Pregnancy Act, 1971
This act was enacted in July 1971, and it came into force in
April 1972. This act gave a right to choice to a woman to decide
whether she wants to have the child or not. The right to
abortion, family planning as well as contraception is personal to
a woman. The main object of the act was to regulate and
legalise the abortions done in good faith. Sex selective
techniques were introduces in the year 1975 in India primarily
for the detection of genetic abnormalities. However, these
techniques were often misused and used for the determination
of sex of the foetus. The provisions of this Act were often used
to force women to abort the female child. Therefore, incidents
of female feoticide started taking place under the garb of
legalized abortions under the Medical Termination of pregnancy
Act, 1971.
The first step to curb this menace of female foeticide was taken
by the stae of Maharashtra by enacting the Maharashtra
Regulation of Pre-Natal Diagnostic Techniques Act, 1988. This
act was passed as the Government of Maharashtra was
pressurized by a social action group (Forum against Sex
determination and Sex pre selection) based in Mumbai.
However, the Maharashtra Regulation of Pre-Natal Diagnostic
Techniques Act, 1988 was later repealed and superceded by the
Central Legislation, namely the Pre-Natal Diagnostic Techniques
Act, 1994.
Pre-natal
Diagnostic
Techniques
Prevention of Misuse) Act

(Regulation

and

This Act was passed in the year 1994 and it came into effect
from January, 1996. This act was passed to provide for the
lacunaes and loopholes which were not addressed by any of the
statutory provisions existing at that time. The Act specifically
prohibits determination of sex of foetus and provides for a
penalty for violation of this prohibition.

Under the Act, individual practitioners, clinics or centers are

barred from conducting tests to determine the sex of the foetus
or informing the couples about it.
The Act prohibits sex selection, before or after conception, and
provides for regulation of pre-natal diagnostic techniques for
the purpose of detecting genetic abnormalities or metabolic
disorders or chromosomal abnormalities or certain congenital
malformitites or sex linked disorders so as to prevent their
misuse for sex determination which leads to female foeticide.
The advanced techniques evolved for the purpose of preconception sex-selection, such as sperm separation and preimplantation genetic diagnosis (PGD) have also been covered
under the act. The sanction exists in the form of fines,
suspension and cancellation of registered medical practitioners.
The manufacturer of ultrasound machines are now required to
sell their products only to registered clinics.
The Act prohibited determination of sex of the foetus and
stated punishment for the violation of the provisions. It also
provided for mandatory registration of genetic counselling
centres, clinics, hospitals, nursing homes, etc. However, in
practice we find that these provisions have been misused and
are proving against the interest of the females.
The main objects34 of the Act of 1994 are as follows:
1. Prohibiting the use of pre natal diagnostic techniques for
determination of sex of foetus leading to female foeticide
2. Prohibiting advertisements of the techniques for detection
or determination of sex.
3. Regulating the use of techniques only for the specific
purposes of detecting genetic abnormalities or disorders
4. Permitting the use of such techniques only under certain
conditions by registered institutions.
5. Providing for punishments for violation of the provisions of
this Act.
6. Providing deterrent punishment to stop such inhuman acts
of female foeticide.

34 Rao Mamta, Law relating to Women And children, Third Edition, 2012, Eastern Book Company,
Lucknow

However, the act was not implemented effectively, as there

existed certain inadequacies and practical difficulties. Such
inadequacy was even pointed out by the Apex Court in the case
of Cehat Vs Union of India 35. New techniques were developed
under medical sciences which were not covered by the Act,
such as pre-conception sex selection techniques. The law
makers took note of this deficiency and amended the said act
in 2003, and renamed it as he Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
The main purpose of the amended act was to prohibit the use
of sex selective techniques before or after conception as well as
the misuse of pre-natal diagnostic techniques for sex selective
abortions.
Section 2 (j) defines "pre-natal diagnostic techniques". It
includes all pre-natal diagnostic procedures and pre-natal
diagnostic tests;
Moreover, such test requires a written and informed consent
of the mother.36
Section 4 provides for Regulation of pre-natal diagnostic
techniques. On and from the commencement of this Act- It
states that the pre-natal diagnostic techniques mentioned
under the Act can only be conducted at duly registered
Genetic Counselling centres, laboratories and clinics. Moreover
it prohibits the use of pre-natal diagnostic techniques, except
for the purposes of detection of any of the following
abnormalities, namely:-(i) Chromosomal abnormalities;
(ii) Genetic metabolic diseases;
(iii) haemoglobinopathies;
(iv) Sex-linked genetic diseases;
(v) Congenital anomalies;
(vi) Any other abnormalities or diseases as may be specified by
the Central Supervisory Board;
Moreover, pre-natal diagnostic techniques shall be conducted
only if35 Cehat And Ors. Vs Union of India, (2003) SCC 8 SCC 412
36 Section 5, Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.

(i) Age of the pregnant woman is above thirty-five years;

(ii) The pregnant woman has undergone of two or more
spontaneous abortions or foetal loss;
(iii) The pregnant woman had been exposed to potentially
teratogenic agents such as drugs, radiation, infection or
chemicals;
(iv)The pregnant woman has a family history of mental
retardation or physical deformities such as spasticity or any
other genetic disease;
(v) Any other condition as may be specified by the Central
Supervisory Board;
Section 6 of the Act prohibits Determination of sex. It
states as follows:
(a) No Genetic Counselling Centre or Genetic Laboratory or
Genetic Clinic shall conduct or cause to be conducted in its
Centre, Laboratory or Clinic, pre-natal diagnostic techniques
including ultrasonography, for the purpose of determining the
sex of a foetus;
(b) No person shall conduct or cause to be conducted any prenatal diagnostic techniques including ultrasonography for the
purpose of determining the sex of
a foetus.
Section 22- Advertising the availability of sex determination
techniques is prohibited and punishable with imprisonment for
a term which may extend upto 3 years along with fine.
Section 24- The court shall presume that the pregnant woman
has been compelled by her husband or the relative to undergo
prenatal diagnostic technique unless the contrary is proved.
Punishments for violation of the ActChapter VII of the Act deals with penalties and offences.
The following punishments are prescribed:
For a doctor or medical person who misuses these
techniques for sex selection, the Act prescribes the
following punishment- 3 years of imprisonment and/or fine
up to Rs 10,000 for first conviction. Moreover, it provides
for Suspension of Registration by the Medical Council for 5
years in case of first conviction. In case of subsequent

conviction, the offender is liable to an imprisonment for 5

years and/or fine Rs 50,000.
Persons seeking to know the sex of the fetus: 3
years imprisonment and/or fine Rs 50,000 for the first
offence. For subsequent offence, 5 years imprisonment
and/or fine Rs 1,00,000. The pregnant woman herself is
considered innocent under the Act, unless and until proved
otherwise. It is presumed that she will have been
compelled to undergo sex determination tests by her
husband and relatives
Persons connected with advertising of sex
selection/ sex determination services: 3 years
imprisonment and/or a fine of Rs 10,000 with additional
fine for continuing contravention at the rate of Rs 500 per
day.
Recent judicial pronouncements on Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994
In Sudhir Mahadeoraol Nimkar vs Appropriate Authority Nanded
And Ors. (2014, Bombay High Court), the Bombay High
court observed, inter alia that while interpreting the provisions
of this Act, the object behind the special legislation shall be
kept in mind. The object is to prohibit use of pre-natal
diagnostic techniques for determination of sex of the foetus
leading to female foeticide. Pre-natal diagnostics techniques
like sonography are useful for detection of sex. They can be
used also for detecting disorders in the foetus. In view of the
possibility of use of this technique for determination of sex and
then for termination of pregnancy of unborn child, the aforesaid
provisions are made. Sale of ultrasound machines to persons
not registered under the Act (rule 3-A of the Rules) is
prohibited.
Similar observations were made by the Bombay High Court in
the case of Dr. Quamar Sultana Mohd.
vs The State Of
Maharashtra And Anr on (18 November, 2014)

CONCLUSION
ADULTERY
There exist 2 possible remedies to treat the maladies in our
criminal codes with respect to the offence of adultery. The 1 st
remedy is to widen the scope of Aggrieved Person, so as to
enable a female victim to make a complaint for the offence of
adultery against her adulterer husband. The second remedy,
which displays an extremist view, is that there should be an
absolute removal of offences related to adultery from our
criminal codes. Therefore, the second remedy favors absolute
decriminalization of adultery.
OUTRAGING MODESTY
Before passing of the 2013 amendment, he scope of section
354 was very vague and ambiguous as it did not cover specific
acts of stalking, voyeurism. Such acts of stalking, voyeurism
were considered trivial and not grave enough to fall within the
ambit of Section 354. Based on the recommendation of the
justice Verma committee, the amendment Act of 2013 was
passed.
The amendment act of 201337 extensively deals with the
offence of outraging modesty of a woman. The following
additions have been made:
DOMESTIC VIOLENCE
The statutory remedy available under PWDVA is only temporary
in nature and does not entitle a woman to any proprietary
rights. Therefore, it is protectionist legislation and not an
37 The Criminal Law (Amendment) Act, 2013, Available at http://indiacode.nic.in/acts-in-pdf/132013.pdf

empowering legislation. Moreover, the act fails to provide

remedy to women who are not covered under the relationships
in the nature of marriage, for example, keeps and mistresses.
These women cannot claim any remedy under the act.
FEMALE FOETICIDE
The growing rate of female foeticides is a matter of grave
concern and offends the dignity of women. 38 The state is under
an obligation to take steps to ensure that the health and
strength of women is not abused under Article 39 (e) of the
Constitution of India. The commission of the crime of female
foeticide displays a complete failure of the state in performing
such duty. Therefore, sex selective abortions are against the
principles enshrined under the constitution of India.
RAPE
The atrocious and inhumane incident of Nirbhaya case, shook
the conscience of the people of our society at large, which lead
to a social revolt against the criminal justice system. Such
social revolt forced the state machinery to meet and address
the demand of the hour, as a result of which the 2013
amendment act came into force. The justice verma committee
report played a pivotal role in bringing about this
transformation. A provision has been made for fast track
courts, women Cells, provisions for CCTV, etc.

38 Devender Kumari, Krishan Kumar Kajal, Female Foeticide and Infanticide: A Socio-Legal Problem,
International Journal of Science and Research, Volume 3 Issue 6, June 2014 avaialable at:
http://ijsr.net/archive/v3i6/MDIwMTQ2OTk%3D.pdf- referred (Visited on 10 April, 2015).

BIBLIOGRAPHY
Statutes:
1. Indian Penal Code, 1860
2. Code of criminal Procedure, 1973
3. Indian Evidence Act, 1872
4. Protection of Women from Domestic Violence Act, 2005
5. Pre-natal
Diagnostic
Techniques
(Regulation
and
Prevention of Misuse) Act, Pre-conception and Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994.
6. Hindu Marriage Act, 1955
7. Indecent Representation of Women (Prohibition) Act
8. Information Technology Act, 2000
9. Dowry Prohibition Act, 1961
Books:
1. Nomita Agarwal, Women and Law, 2012
2. Mamta Rao, Women and Law, Third Edition, 2012
3. Shobha Saxena, Violence against women