EFFECTIVE ENFORCEMENT OF SOCIAL LEGISLATION PERTAINING TO WOMEN
SOBHA NAMBISAN*
April 2005
* Sobha Nambisan is a senior officer in the Indian Administrative Service. This work was
done while she was a visiting fellow at the Centre for Public Policy, IIM Bangalore.
PREFACE
The Centre for Public Policy (CPP) at the Indian Institute of Management Bangalore is
envisioned as a catalyst for new thinking and new directions in public policy and
management. The CPP functions as a think-tank to facilitate open debate and dialogue
on key public policy and management issues, backed up by in-depth research and
analysis, and training and teaching programmes. It engages government and nongovernment
actors through seminars, round-tables, and conferences, both national and
international. Its mission is to change closed mind-sets to more open ones, build capacity
for rigorous policy analysis and innovative thinking, and stimulate creative problem
solving.
This series of Occasional Papers is intended to contribute to the debate on public
policy in India and internationally. Each paper is reviewed to ensure academic rigour
and policy relevance. Papers written by academics are commented on by practitioners
and vice versa.
Comments are welcome and may be sent to the author at prshighedu@
karnataka.gov.in.
ii
ACKNOWLEDGEMENTS
This paper is the result of a six-month study sponsored by the Karnataka State
Government and the Centre for Public Policy, Indian Institute of Management,
Bangalore. I am grateful to the State Government and to the Indian Institute of
Management, Bangalore, for providing me with the opportunity to do the study. My
special thanks are due to Professor Chiranjib Sen and Professor Gita Sen, who were
Chairpersons of the Centre for Public Policy during the period of the study.
I am particularly thankful to Professor Gita Sen for her help and guidance. I am
also grateful to the Centre for Public Policy and to Professor Gita Sen for organising a
workshop to discuss the concept paper prepared by me for the study. I thank the IAS and
IPS officers, the faculty of the Indian Institute of Management, Bangalore and others who
attended the workshop and gave me their valuable suggestions.
This study has been greatly enriched by discussions held with Flavia Agnes,
whose clear and analytical reasoning helped to clarify my thoughts. I have also benefited
from her writings, which combine lucidity of thought with vigour of expression.
I am grateful to Justice Venkatachallaiah whose discussions on the subject gave
me the benefit of his wisdom, learning and vast experience.
I am thankful to the State Women's Commission for giving me the opportunity to
attend the meeting of judges of the Family Courts as well as that of non-government
organisations to discuss the Family Courts. I am also grateful to the Department of
Women and Child Development, Government of Karnataka, for enabling me to hold a
meeting with the deputy directors oft he department on the implementation of social
legislation, particularly that of the Dowry Prohibition Act.
My grateful thanks to Donna Fernandes and friends at for the books which they
lent me, the literature prepared by them after the hearings before the Truth Commission
on dowry deaths' and the discussions had in their lovely office in Bangalore.
I am grateful to senior police officers Ajai Kumar Singh and Nissar Ahmed for
enlightening discussions on the role of the police.
iii
I am thankful to Ruth Manorama and Women's Voice for arranging a meeting of
women's organisations and lawyers to discuss the concept paper prepared by me for the
study. My thanks are also due to the participants of the workshop, which generated quite
a few sparks!
My special thanks to Geetha Devi Aiyappa who devoted an entire Sunday
afternoon to enlightening me on court procedures and the practical steps which can be
taken to reduce delay and to mitigate the trauma of women litigants in Family Courts.
I am grateful to Elizabeth, Centre for Women and Law, National Law School for
permission to use their library.
I thank Sabu George for suggesting names of persons I could meet in connection
with the study.
My thanks to the young lawyers of the Alternative Law Forum, Bangalore, and in
particular to Jayna Kotharia, with whom I attended the Family Courts in Bangalore. I am
also grateful to Jaya Siva, counsellor of Family Courts in Bangalore and to Hema
Deshpande of the Vanitha Sahaya Vani for the insight they gave me on the problems they
face.
My thanks are due to Myrada, which facilitated my meetings with women’s self
help groups in the villages of T Narsipur and Mysore.
I am grateful to Renuka Viswanathan whose lucid exposition on police
investigation and inquests was of great assistance. I also had very useful discussions with
Sri Devappa, Director of Prosecutions, and Government of Karnataka, for which I am
grateful.
I am grateful to PSS Thomas, Secretary General, National Human Rights
Commission, for sending me information on the functions and powers of the
Commission.
I thank Asha Nambisan for lending a willing ear and giving sagacious advice in
the late hours of the night.
iv
I am grateful to Merina Richard for painstaking and efficient secretarial assistance
and to V. Ganesh for help in the production of the book.
v
TABLE OF CONTENTS
1 Introduction............................................................................................................... 1
2. History Of Social Reform And Women's Rights Movement ................................ 7
2.1 Social Reforms of the 19th century ................................................................. 7
2.2 Women's Rights in the Independence Struggle ........................................... 10
2.3 The Contemporary Women's Movement ..................................................... 12
3. Concept Of Equality In Law And Judicial Pronouncement .............................. 17
4. Dowry Prohibition Act And The Family Courts Act........................................... 28
4.1 The Dowry Prohibition Act 1961................................................................... 28
4.2 The Family Courts Act 1984. ......................................................................... 41
5. The Criminal Justice System................................................................................. 55
5.1 Preliminary investigation by the police......................................................... 60
5.2 Dying Declaration ........................................................................................... 64
5.3 Medical evidence and post-mortem............................................................... 65
5.4 Inquest.............................................................................................................. 67
5.5 Judicial process ............................................................................................... 68
5.6 Recommendations for change........................................................................ 69
6. Why Is Social Legislation Not Being Enforced? .................................................. 77
7. Recommendations ................................................................................................... 86
7.1 Summing Up.................................................................................................... 86
7.2 National policy................................................................................................. 90
7.3 Law reforms .................................................................................................... 91
7.4 Enforcement .................................................................................................... 95
7.5 Infrastructure.................................................................................................. 98
7.6 Monitoring....................................................................................................... 99
7.7 Institutions ..................................................................................................... 101
7.8 Budgeting and Financial Provisioning for an Enabling Environment .... 102
7.9 Law and Criminal Justice System............................................................... 106
7.10 Publicity, Gender Sensitisation and Legal Awareness .............................. 108
References ...................................................................................................................... 113
1
1 Introduction
Social reformers and women's rights activists have, in the last 200 years,
campaigned successfully for the enactment of laws to protect women from cruel and
harmful practices as well as to ensure them equal rights with men. Many of the political
campaigns for women's rights have been successful, in so far as the State responded by
enacting new legislation. Laws prohibiting sati, child marriage, dowry and rape have all
been passed, as have laws removing obstacles to women's right to own property, suffrage
and employment. However, although the laws have been enacted, there is a general
disillusionment with regard to their enforcement and women's rights activists have found
to their disappointment that most of the laws are only ornamental. No doubt economic
changes and the forces of development have brought some changes in women's lives -
more women are educated and many are doing well in fields which were closed to them
earlier, such as engineering, medicine and the civil services. The general improvement in
the standard of life has brought salutary changes to women's lives as well.
However, infant and maternal mortality rates are still unacceptably high, showing
the low nutritional and health levels of women and the poor access which they have to the
public or private health system. The educational levels of women continue to be much
lower that those of men and it was only in the 2001 population census that the literacy
rate of women reached the 50% mark (Government of India, 2001) - which only means
that half the population of women in the country know how to write their names. In the
many parts of the country, including some districts of Karnataka, the literacy levels of
women are much less than this - in some areas less than 20% (Government of Karnataka,
1999).
Equality remains a distant dream despite the promises made in the Constitution
fifty years ago. A recent study shows that only 13% of the daughters of land owning
fathers have inherited property from their fathers (Chen 1998). Probably these are women
who have no brothers. Only 50% of widows have inherited their husbands' property and
they hold it jointly with their sons. The Hindu Succession Act, 1956 has made no real
difference to the enjoyment of inheritance rights by daughters -- almost all of them give
2
up their rights in favour of their brothers in order to retain their goodwill or to avoid
social stigma. In other cases their fathers will away the property from their daughters.
Most women in India have no property in their name - whether house or land. In addition,
because of the disparity in educational levels, more women than men work in low skilled,
poorly paid jobs. The 1991 census showed that 80% of the agricultural labourers in the
backward districts of North Karnataka are women (Government of India 2001). Besides
this, the sexual division of labour burdens women with the unpaid work of the household
and as carers of the sick, the very young and the very old.
In an increasingly violent society the pressures and frustrations of modem life
along with the rising tide of consumerism and greed find their outlet most easily in the
form of violence against those who are most vulnerable - women and children. The media
feeds us daily with horrific stories of rape, including those of young children and of
infants. Child prostitution is on the increase in this country as in some other poor
countries which do not take adequate care of their young. Sexual harassment in the
workplace and on roads and public places makes life a daily hell for many women.
However the crime most prevalent against women is undoubtedly that or domestic
violence, making home in many cases the most dangerous place for a women. While it is
naturally difficult to get accurate figures regarding the incidence of domestic violence,
studies have shown that 60% - 80% of women in India have faced domestic violence at
some time or other (ICRW, 2002). In a recent NDTV interview with the economist Bina
Agarwal, aired on 7/8/2003, she stated that 49% of propertyless women have suffered
long-term physical abuse from their husbands and 82% have suffered psychological
abuse. Domestic violence destroys the confidence and quality of life or a woman since
she lives in constant fear. It also destroys her health and sometimes her life itself.
Alcoholism is very often indicated as the reason for domestic violence. Although
alcoholism may be a contributing factor and is certainly very wide spread - with the State
playing an active role in encouraging the consumption of alcohol as a means of
increasing its revenues (male Government servants have been heard to admit that they are
afraid of going into villages after seven in the evening because of the drunkenness
everywhere) - the main reason for domestic violence is decidedly the fact that it is
3
accepted as a way of life and there is no one to question the wife beater. There is a total
lack of understanding of the horror of domestic violence by the predominantly and almost
wholly male police force, public prosecutors and judiciary. It belongs to the domain of
what the French sociologist Pierre Bourdieu (1998) terms 'doxa' - that which is accepted
as a natural and self evident part of the social.
Assault and battery are crimes already covered under the Indian Penal Code but
the beating of wives within the home has not drawn the penalty under these provisions
because of the cultural division of society into 'public' and 'private' spheres. Women's
groups have long been divided on the issue of the necessity of a separate enactment for
domestic violence. While some groups are of the opinion that such an enactment is
needed because it will bring this private crime into the public sphere, others feel that it
will only serve to further push crimes against women into a ghetto as in the case of the
murders of young wives which are euphemistically termed 'dowry deaths' in the Indian
Penal Code. A Bill against domestic violence was prepared by the Union Government in
2001 but it was so badly drafted that it raised the ire of women's groups all over the
country which fortunately stalled it before it could be presented in Parliament.
'Dowry death' or the deaths of young women by suicide or murder within the first
seven years of marriage is on the increase everywhere, including the relatively
progressive southern States. Vimochana, a women's organisation based in Bangalore, has
after a detailed study established that an average of three such deaths occur every day in
Bangalore alone(Vimochana 1998-1999). Most of these never enter the State Crime
Records since they are closed at the initial stage, often at the level of a police constable,
as a 'stove burst' case - that is a kitchen accident occurring due to a stove burst (80% of
dowry deaths are due to burning). Even for the few cases, which reach the courts, the
conviction rate is only about 20%, mostly due to poor investigation by the police, poor
prosecution and witnesses turning hostile.
The most telling evidence of the unequal position of women in this country and
the violence and discrimination meted out to them from birth is in the age specific
mortality rates. The age-specific mortality rates for women exceed that of men
4
throughout childhood and for the childbearing ages (International Institute for Population
Studies, 2000). This is, as is well known, at variance with the mortality rates in developed
countries where the sex ratio is favourable for women because of their superior
biological. strength. It is only because of the unnatural and discriminating conditions
women are subjected to that the sex ratio is adverse in India and has been steadily falling
throughout the 20th century. There are about 32 million less women than men in India,
giving rise to Amartya Sen's famous question "Where are all the missing women?"
The contemporary women's movement has sought to challenge and redefine
prevailing constructions of gender identity in revealing the multiple ways in which
women have been victims of male violence, harassment and discrimination, particularly
in the private sphere of the family. Social reformers and feminists have had a significant
impact in these efforts to redefine the meanings of gender and tradition and to get laws
enacted. However enforcement of the laws remains a struggle.
If we consider the oldest laws in the statute book, enacted in the 19th century to
prohibit some of the more obnoxious cruelties, which were perpetrated against women,
such as the Sati Abolition Act (1829) and the Sharda Act (1929) to raise the age of
consent, we find that some of those old issues are alive even today. True, there may not
be more than one case of sati being committed over a period of one or two years but
Roop Kanwar's murder in 1987 brought to light the popular sentiments that still prevail in
certain sections of society. Roop Kanwar's sati was glamourised and commercialised with
sati temples coming up all over Rajasthan and politicians of different parties rushing
down to the site of the murder to pay their respects. Although the hysterical
demonstrations in favour of sati were inspired by many factors, including that of Rajput
identity, the commercialization could not have been so successful but for some popular
sentiment regarding the 'real' Indian woman, her self sacrificing nature and her total
submersion of self in that of her husband. Similarly, more than a hundred years after the
enactment of the Sharda Act, little girls of twelve are still getting married, though in
fewer numbers than earlier. The average age of marriage for girls in India, according to
the 2001 census, is still much less than eighteen years, bringing with it all the attendant
evils of premature marriage (Government of India, 2001). However there is no longer any
5
argument, as there was in the 19th century, as to whether the shastras prescribed or
prohibited child marriage. The reasons for child marriage now are based mainly on
tradition; the concept of control over women's sexuality and in some cases the lack or
other avenues of activity such as schooling or work.
Relatively recent enactments such as the Dowry Prohibition Act (1961) which is
forty years old, are openly flouted everywhere by everyone. It is an open secret that
despite the Pre-Natal Diagnostic Techniques (Regulation) Act (1994) doctors are making
a fortune by revealing the sex of the foetus and aborting it if it is female. The practice is
so rampant that in some places the sex ratio has fallen to less than 800 and men are
unable to get brides. The kind of violence which will be perpetrated on girls in such an
unnatural scenario may well be imagined.
The paper will attempt to examine why social legislation is not being enforced. Is
it because the problem has not been understood in its entirety and the law addresses only
part of the problem? If that is the case then the law may seem to confer equality but, by
not realizing the disadvantages imposed upon women by society, the impact of the law
may not be equality. In other words the law may be informed by only formal and not by
substantive equality. On the other hand, the law itself may be grossly faulty because it is
framed by a patriarchal mindset. An example is the Bill against Domestic Violence
(2001), which exempted the beating up of a wife from the definition of domestic violence
if it was done by the husband in defense of property!
Is the law too inherently conservative to bring about social reform? Or is it that
activists and reformers have not exploited the full potential of the law? What are the
ideological implications in the legal regulation of women? Even when the law promises
substantive equality and justice, do legal interpretations often reflect the patriarchal
ideology? And are these concepts changing with changing times and the campaigns by
activists?
The paper will discuss whether one of the reasons why social legislation is not
being enforced is because society is not yet ready to accept progressive ideas. Or is this
6
reason only a half-truth and used as an excuse for non-enforcement? Perhaps the truth is
not so much that society does not accept the ideological basis for the laws but that
enforcement is difficult because social legislation protects the interests of the
disadvantaged and marginalized against those of the powerful and the influential. The
paper will examine whether because of this and other reasons the legal system is
inaccessible to the majority of Indian women.
The paper will explore why it is that women's groups and non government
organizations (NGOs) who have, after vigorous campaigning, managed to pressurise the
Government to enact the legislation, are unable to carry the campaign to its logical end by
ensuring enforcement.
The paper will examine the role of the Government in enforcing social legislation.
How serious has the Government (that is, the legislature, the executive and the judiciary)
been in enforcing social legislation? What infrastructural and budgetary support has the
Government provided to ensure the enforcement of the law? What monitoring
mechanisms and institutional supports are in place? It is surely the role of Government to
provide the systemic change required to ensure enforcement.
In order to suggest the steps necessary to ensure enforcement, the paper will
discuss in detail the genesis and implementation of two Acts, the Dowry Prohibition Act,
1961 and the Family Courts Act, 1984.
Lastly, the paper will strive to arrive at some understanding of the action required
to be taken by different protagonists to improve the enforcement of social legislation.
What is attempted is not an academic exercise but a pragmatic resolution of the issue.
7
2. History Of Social Reform And Women's Rights Movement
No analysis of whether the law can be an instrument of social change will be
complete without tracing the history of the social reform and women's rights movements
of the 19th and 20th centuries. It will be seen that while these movements campaigned
vigorously for legal reforms both to protect women from violence and oppression and to
grant them equal rights in all spheres, they were not optimistic regarding the ability of
law alone to bring about changes in women's lives. The social reformers of the 19th
century hoped that law reforms would have an educational impact although they did not
expect that the law would be obeyed just because it was enacted. The women's rights
activists of the 20th century are aware that unless the ideological beliefs which are at the
root of women's oppression are removed from the minds and hearts of people,
particularly of those who are responsible for the interpretation and enforcement of the
law, no great change can he expected in the lives of women. At the same time reformers,
although aware of the limitations of law, also acknowledge its importance. Law initiates
change and is the basis for the struggle to bring about change.
2.1 Social Reforms of the 19th century
The social reformers of the 19th century were all men. Almost all of them were
from the rising middle classes of Bengal and Maharastra, the parts of India, which had
greatest contact with the British colonial regime. Imbued with western ideas they sought
to reform their society by the eradication of violent and harmful social customs, most of
which revolved around the subjugation and oppression of women. While doing so they
ran against a counter movement of traditionalism and fundamentalism, which opposed
any movement towards reform as interference with their religious arid cultural autonomy.
The British on their part sought to justify colonial rule on the 'barbarity' of Indian society
while at the same time showing extreme reluctance to enact legislation to prohibit even
the most extreme of these practices.
Three social customs in particular engaged the attention of the reformers: sati, the
prohibition of widow remarriage and child marriage.
8
Raja Ram Mohan Roy spearheaded the campaign against sati. The discourse
centred on whether or not sati had the sanction of the shastras. Raja Ram Mohan Roy
argued that sati was not prescribed by any shastric text whereas his opponents attempted
to prove the scriptural legitimacy of sati. The abominable cruelty of the practice formed
no part of the argument of either side although this of course was the reason why the
reformers opposed it. As the scholar Lata Mani argued that women were not the focus of
the debate (1998). It was only when, in 1817, Mrityunjaya Vidyalamkara, the Chief
Pundit of the Supreme Court, announced that sati had no shastric sanction that, in 1818,
the provincial governor of Bengal, Sir William Bentinck, prohibited sati in his province.
When Bentinck became Governor General of India, he passed the Sati Abolition Act in
1829. It is interesting to note that Ram Mohan Roy himself was not in favour of
legislating against sati for fear that it would make the stand of the pro sati propagandists
even more rigid and lead to an upsurge of cases of sati. This was exactly what happened -
orthodox Hindus in Calcutta formed the Dharma Sabha to campaign against the abolition
of sati and there was an increase in the cases of sati as a backlash against the law. Despite
the support extended by Roy and other reformers to the Sati Abolition Act, the
Government buckled under pressure and amended the Act to permit sati in cases where
the woman did it "voluntarily".
The lifting of the ban on widow remarriage was the result of a growing social
reform movement led by Iswar Chandra Vidyasagar who showed that widow remarriage
was accepted by the shastras and debated the issue with Hindu pundits in Sanskrit. The
fact that several Hindu communities permitted widow remarriage and it was mainly the
Brahmins who prohibited it strengthened the hands of the reformers. However after the
ban was lifted the instances of widow remarriage remained very few. In the 1890s it was
reported that in the forty odd years since the Act was passed, there had been only five
hundred widow remarriages and these were all "virgin widows" - or in other words, child
widows. Even to this day widow remarriage is rare enough to be commented upon.
The practice of child marriage was another social evil against which social
reformers such as Ranade and Malabari campaigned in the latter half of the 19th century.
In 1860 the Criminal Law Amendment Act 10 revised section 375 or the Penal Code to
9
raise the age of consent to 10 years. In the 1880s, when Malabari sought to raise the age
of consent to 12, a fierce controversy erupted. Even such respected leaders as Bal
Gangadhar Tilak were against the Bill. His reasons were twofold - he believed that
education and not law could bring about social change and, as a nationalist, he was
reluctant to ask the British to help bring social reform. In addition to nationalists like
Tilak, traditionalists reared their heads to defend the practice of child marriage on the
grounds of religion, culture and morality. They argued that Hindu society is so
constituted that early marriage is a necessary institution for the preservation of the social
order and its abolition would destroy the system of joint family and caste. However,
although the British Government in India was reluctant to raise the age of consent to 12,
Malabari took the matter directly to London and despite intense opposition the Bill was
passed. At this time there occurred the horrifying death of Phulmonee, a girl of 10 or 11
years, who died after suffering agony for thirteen days after she was raped by her 35-
year-old husband. The husband was acquitted of both rape and murder since Phulmonee
had, at the age of 10, reached the legal age of marriage. This incident embarrassed the
opponents of the Bill and helped in its passage. Subsequently the minimum age of
marriage was raised in stages till the present 18 years. However even the most avid
supporters of the Bill recognized that the enactment of the law would not stop the
practice and that it was only an educative measure. At best, it strengthened the hands of
fathers for protection of their daughters.
In the case of all the three pieces of social legislation described above - sati,
removal of the ban on widow remarriage and the raising of the minimum age of marriage
- the basis for the opposition to the enactment and to its enforcement was the strong belief
that law cannot interfere in the private sphere of the family, religion and custom. The
family was, and is still, conceived as the sacred, indissoluble unit of society and central to
familial ideology is the concept of the woman whose chief and highest role in life is that
of the self-sacrificing wife and mother who endures all and cheerfully submerges her
individual interests in the interests of her husband and his family. The familial ideology
exerted absolute control over women's sexuality, hence the concept of the 'pure' Indian
woman, upon whose 'honour', which meant chastity, the family honour depended. This
was also the reason why child marriages were given such importance by the upholders of
10
tradition; a little child entering the house as a bride would undoubtedly be 'pure' and a
virgin and could easily be taught to accept the mores and values of the family she entered
as daughter in law. Whether this conceived role of women was higher or lower than that
of men was beside the point; what was important was that their role was different from
that of men. They were the 'other' and hence the question of equality did not arise. In fact
even the social reformers of the 19th century did not urge the concept of equality of
women; their efforts were concentrated on the protection of women from violent and
oppressive social practices by the enactment of social legislation and through education
and propaganda.
2.2 Women's Rights in the Independence Struggle
Equality was however central to the women's movement during the independence
struggle in the early decades of the 20th century. This phase of the reform movement was
led by women, not men and saw the emergence of many all India women's organisation
such as the Women's Indian Association which was set up in 1917, the National Council
for Women in 1925 and the All India Women 's Conference 1927. Perhaps because of the
furore over the legislation regarding child marriage, these organisations did not initially
urge for law reform. Instead they espoused a new political and social agenda based upon
the concept of equal rights. The two main planks in the agenda were the campaigns for
political representation and constitutional equality and the campaign for the reform of
personal law.
Leaders such as Sarojini Naidu and Annie Besant continued to uphold the
traditional ideal of Indian womanhood but campaigned for the `upliftment’ of women by
reform of social practices and by the opening up of educational opportunities for women
which, besides helping them to be better wives and mothers, would also help them to
bring the feminine values of sacrifice and endurance into public life so as to ennoble
society. In this way these leaders of the women's movement in the early 20th century not
only strove for social reform but advocated a role for women beyond that of the family.
The movement soon progressed to campaigning for women's equality by
11
removing the legal and social inequalities, which prevented women from realizing their
full potential. They advocated universal adult franchise and reform in personal laws to
give women equal rights in inheritance, marriage and divorce. The Constituent Assembly
accepted these recommendations for equal rights for all citizens irrespective of gender or
caste and the Constitution of independent India (1948) enshrines the promise of equal
rights for all. Article 15 of the Constitution prohibits discrimination on the grounds of
sex. Article 15(3) allows for special measures for women and children. Article 16
guarantees equality of opportunity in employment and prohibits discrimination on the
basis of sex in employment.
The women's movement thus won success in its effort to win legal equality in the
public sphere fairly easily. It was a different matter altogether to achieve equality in the
private sphere or property rights and in personal law.
The demand for a Hindu code that would remove all legal disabilities of women
in marriage and inheritance was first raised by the All India Women's Conference in
1934 Conservative and orthodox voices within the Congress, as well as those of the
Hindu Mahasabha, strenuously opposed the Hindu Code Bill. The proposed reforms to
Hindu laws were seen as leading to the destruction of the family. Property rights for
women were, in the words of Pandit Thakur Das, "equality run mad". Inheritance rights
for daughters, equal divorce rights and the monogamy clause were among the most
controversial and intensely debated of the proposed reforms. Opponents of the Hindu
Code Bill asserted that it was unfair for men and women to have the same property rights
since men's and women's obligations and responsibilities were different. In other words,
they were asserting once again that women's role was restricted to the nurturing of the
family. The Hindu Code Bill was defeated when it was brought up before the provisional
Parliament, resulting in the Law Minister Ambedkar tendering his resignation, to his
lasting credit. It was only in 1955 that four separate pieces of legislation were enacted
which significantly improved the, legal status of women under the Hindu personal law.
The Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and
Guardianship Act and the Hindu Adoption and Maintenance Act were all enacted in
1955. It should however be noted that The Hindu Succession Act, while granting
12
daughters equal inheritance rights in the father's property, did not give daughters
coparcenary rights in the joint family property. This was because of the ideological
construction that sons remained within the natal family whereas daughters transferred to
another family after marriage. Thus familial ideology once again came in the way of
equal property rights for women.
2.3 The Contemporary Women's Movement
The contemporary women's movement which began in the late 1970s has once
again turned to law reform in order to obtain gender justice. It campaigned against forms
of oppression and violence against women such as rape, dowry, sati, sex selection and
sexual harassment and agitated for reforms in the law on these issues. However the
contemporary women's movement was not seeking the 'protection' of women in the
manner of the social reformers of the 19th century, but was campaigning for the rights of
women - the right of choice and control over their lives and the right to lead lives of
dignity and confidence. Their agitation ran counter to the dominant ideology of Indian -
not just Hindu - society regarding the 'natural' role of women as wives and mothers and
as subordinate partners in domestic life. The contemporary women’s movement has thus
its roots in its challenge of patriarchal concepts of women's role and sexuality.
A national campaign for the reform of rape law emerged around the rape in 1974
of a young tribal girl aged about 18 years called Mathura who was raped in police
custody. The policemen were acquitted by the Sessions Court, convicted on appeal to the
High Court and later acquitted by the Supreme Court. The Supreme Court held that there
was insufficient evidence that Mathura resisted the sexual intercourse and that the fact
that she had a boy friend proved that she was a loose woman who could not, by
definition, be raped. The open letter written by four senior lawyers against the judgement
sparked off the protest by women's groups. The women's movement was trying to
challenge the prevailing social understanding of rape that the absence of injuries implied
constant and that only the 'utmost resistance' - perhaps to the extent of being killed -
could prove that the victim did not consent. The second assumption in the Supreme Court
judgment challenged by the women's movement was that the victim's character was
13
relevant in the case of rape and that if the woman had illicit sexual or even social
relationship with any man, then she was a 'loose' woman and any man was free to
forcibly violate her. As stated by a woman's organization, "For us rape is an act of hatred
and contempt - it is a denial of ourselves as women, as human beings - it is the ultimate
assertion of male power".
The rape of Maya Tyagi in Baghpat, Haryana, who was also raped by policemen
in 1980, intensified the protests of women activists. The entry of politicians into the fray
however transformed the issue with their cries of the 'dishonour' brought on women. This
was the old patriarchal concept of any extramarital sex, even rape, being a matter of
shame and dishonour for the woman, not for the man. As stated by women activists -
"How can your honour be taken away when you yourself have committed no crime?"
The women's movement demanded that the onus of proof regarding consent in
rape cases be shifted to the accused and that the account of the woman's past sexual
conduct be excluded from the rape trial. The Law Commission included these demands of
the women's organisations in their recommendations for comprehensive reforms in the
rape laws. However the amendments to the rape laws, which were finally passed, did not
include many of these recommendations. It was only in the case of custodial rape that the
issue of consent was considered irrelevant.
The aftermath of the amended rape law shows how signally the law can fail to
give justice to women. The reform had very little effect in challenging the traditional
definition of rape and judges continued to hold the same assumptions about women's
sexuality. Ten years after the Mathura judgment, the Supreme Court reduced the
minimum mandatory sentence of ten years imposed on two policemen for raping a young
woman - Suman Rani - to a maximum of five years. The reason given was that the victim
was a woman of "loose" character. In other words, despite the amended law the Supreme
Court judges continued to hold to the ideology that no woman was free to choose her
lovers, and if she did so then it was permissible to punish her as violently as one pleased.
What is really disquieting is that some of the court judgments passed during the
height of the campaign for rape law reform were far more enlightened than those passed
14
after the amendment. The lawyer and activist Flavia Agnes (1992) mentioned a case
reported in 1989 where a little girl aged 7 - 10 years was raped by a man of 21 years in
the presence of two eyewitnesses. The sessions court convicted the accused to life
imprisonment. This was however set aside by the Delhi High Court on the ground that
although the girl had injuries on her body and there was enough evidence to show that
she had been raped, there were no injuries on the man. Earlier the girl had to prove she
had not consented to the rape by incurring injuries on her own body but now even that
was not adequate - she had to inf1ict injuries on the rapist. And this was a case where the
victim was a small child and the rapist a fully-grown man (Mohammed Habib v. State,
1989 CrLJ 137).
Although the minimum punishment for child rape is 10 years according to the
1983 amendment, the tendency of the courts is has been to treat the accused with leniency
in cases where the crime is committed by young men. The Madhya Pradesh High Court
has gone to the extent of stating, “Increasing cases of personal violence and crime rate
cannot justify a severe sentence on youth offenders” (Vinod Kumar and Another Vs State
of Madhya Pradesh, 1987, CrLJ 1541).
Women activists continue to campaign for further reforms of rape laws. At the
same time experience has made them sceptical of any great improvement in the
possibility of women getting justice as long as there is no change in the attitude of both
society and the courts with regard to women and sexual crimes. Rape, which is one of the
most brutal of the forms of violence perpetrated on women, continues to be grossly under
reported because of the 'shame' and ostracism visited on the victim. For those cases in
which complaints are made, the conviction rate is only about 4%.
The women's movement intensified their campaign for reform of personal laws
through a Uniform Civil Code in the wake of the Shah Bano controversy wherein a 73
year old Muslim woman, who was given the talaq by her husband of 40 years brought a
petition for maintenance under section 125 of the Code of Criminal Procedure (CrPC).
The case reached the Supreme Court in 1985. The Supreme Court held that she was
entitled to the maintenance and also made some uncomplimentary remarks about Muslim
15
personal law that created a furore in the country. The Government finally buckled under
pressure from Muslim men to pass the Muslim Women's (Protection or Rights on
Divorce) Act in 1986 despite the opposition of women activists and others. According to
this new law, divorced Muslim women were not eligible to maintenance from their
husbands under section 125 of the CrPC but had to fall back on the Wakf Board for
maintenance. This was a major victory for traditionalists with their cry of 'religion in
danger' as soon as any positive steps are taken for the improvement of the position of
women.
It has to be pointed out that the women activists and liberals who agitated against
the Act during the Shah Bano controversy were considerably embarrassed to find that the
forces of the Hindu Right - the Bharatiya Janata Party (BJP), the Rashtra Swayamsevak
Sangh (RSS) and the Vishwa Hindu Parishad (VHP) had also joined them in their
agitation for a Uniform Civil Code. Their interest was not of course in putting in place a
just legal frame for all women but to drive the practitioners of a minority religion into a
corner. The very next year some of these same forces were making the same outcry of
'religion in danger' in the wake of the demand for legislation regarding sati after the
horrifying murder of Roop Kanwar, a teenaged widow who was burnt alive on the pyre of
her husband in Deorala, Rajasthan in 1987. There followed in Rajasthan a campaign to
glorify sati, which was supported by several components of the Hindu Right. The
Rajasthan Government did nothing to punish those who murdered Roop Kanwar or those
who glorified the incident. The Rajputs held that the Government had no right to interfere
with what they held to be their culture and identity. Although the Government had no
difficulty in passing the Sati Abolition Act and although the strident pro sati campaign
was restricted to certain sections of the populace in one or two States in North India, the
very fact that there was some support for such an indisputably horrible act of cruelty and
murder a hundred years after it was first abolished, is revolting. There was some
difference however in the campaign against sati in the 20th century - those in the anti sati
movement did not attempt to show that the shastras did not permit it - they termed it as a
heinous case of violence against women and as murder.
The Shah Bano case and Roop Kanwar's sati showed how easily the gains made
16
by women through law reforms and by the general wakening of the modern age to
egalitarian and liberal modes of thought and action can be negated through traditionalist
and fundamentalist forces. These forces insist on keeping women confined to the family
in the position of dependency and deny them any independent identity.
It may be seen from this brief overview that laws have been enacted and amended
in response to the demands of social reformers and the women's movement even if the
amendments have in many cases fallen short of, or not conformed fully, to the
recommendations of the activists. An exception of course, was the Shah Bano case where
the State enacted legislation in the teeth of the opposition by women activists and
liberals. However women's groups are disillusioned about the power of law to change
women's lives. The relative unimportance given to women's lives and happiness, the
strongly held beliefs regarding what constitutes a 'good' and a 'bad' woman, the
patriarchal concept regarding woman's 'natural' role as wife and mother and the control
that men exercise over women's sexuality have imbued many judicial pronouncements
and taken away with one hand what the law had given with the other. The other reasons
why it is difficult for women to access the courts or to hope for justice from the present
system will be discussed subsequently.
17
3. Concept Of Equality In Law And Judicial Pronouncement
The familial ideology, which is central to Indian social relationships and is firmly
held by all communities and religions in the country, is that woman's chief and highest
roles are those of wife and mother - the dutiful, chaste and obedient wife who holds the
family together and the loving, self sacrificing mother. The social and biological role of
women as wives and mothers is thus naturalized and universalised. This ideology not
only enforces the moral regulation of women but also the economic regulation; when the
role of breadwinner is that or men it follows that women are economically dependent on
men. The familial ideology assumes the economic dependence of women as a natural part
of the social order. This concept of the role position of women continues to be held
unquestioned despite the fact that the real picture is somewhat different. The population
census has shown that 25% - 30% of the households in India are headed by women
because of the desertion or migration of men (Government of India, 2001). Most women
are workers as well as wives and mothers and work inside or outside the homes to eke out
the family income. Many also put in unpaid but productive work on the family land or in
the family business. For instance, many male artisans are actively assisted by their
women. A larger number of women are also now working in salaried jobs including those
in professional fields. In addition to all this women continue to shoulder the household
responsibilities of cooking, cleaning and looking after children and old people.
However the actual contributions of women make no difference to the strongly
held beliefs of familial ideology. This results in the disinheritance of daughters and
skewed power relations between men and women.
Another important aspect of the familial ideology is the belief that the family
belongs to the private sphere where the State cannot intervene. This effectively protects
men when they commit acts of hostility, oppression and violence against women within
the family. The State itself, both through laws and through the attitudes of the law
enforcing agencies, reinforces this concept of the family as a private domain in which
none can interfere. The State's refusal to criminalize marital rape despite the
recommendation of the Law Commission is an example of the reluctance of the State to
18
intervene in the private sphere of the family.
The dominant familial ideology runs counter to the promise of equality given by
the Constitution. How can the Constitutional guarantee of equality be realized if women's
position is not perceived the same as that of men? The paper will show that there is a
dichotomy and many of the laws in the 'private' sphere of property rights and marriage
are in fact different for men and women. Some other laws appear to be equal and gender
neutral but the impact of the law is different for men and women and results in inequality.
Still others, such as the Equal Remuneration Act of 1976, have not helped women to
obtain justice because of the manner in which it is implemented. Judicial pronouncements
also are informed with the accepted notions of women's place - they are protective of
'good' women - that is those who adhere to the concept of the dutiful wife and mother and
are unsympathetic to those who do not correspond to this dominant image - as in the
Mathura rape case.
Some judicial pronouncements have attempted to deliver even-handed justice.
However a formal approach towards equality in the sense or applying the law equally to
men and women does not always result in equal treatment. Substantive equality, on the
other hand, takes into account the disadvantages that women suffer from because or
social prejudices and economic dependence and ensures that the impact of the law is one
of equality. The paper will discuss some of these judgments to show the difference
between formal and substantive equality. Although most of these judgments have nothing
to do with social legislation, they are being discussed briefly to show the importance of
analysing how a law, supposedly of a progressive nature, actually affects women in the
enforcement.
The personal laws relating to divorce for different communities are, on the whole,
grossly unequal. Among Christians, for instance, men can get a divorce on the grounds of
adultery alone, whereas women have to prove charges of cruelty along with adultery
against their husbands in order to obtain divorce. Under Muslim law, a husband has a
right to extra judicial divorce without stipulating any grounds while the Muslim wife can
obtain a judicial divorce only on the grounds stated within the provisions of the
19
Dissolution of Muslim Marriage Act, 1939. Divorce for Hindus, Sikhs and Jains is
governed by the Hindu Marriage Act, 1955. Although the Hindu Marriage Act contains
the same provisions for men and women, judicial pronouncements on what constitutes
'cruelty' for instance are informed of the familial ideology of what constitutes a 'good'
wife. For example, a decision by the trail court in Karnataka held that the wife's removal
of the mangalsutram was an act of cruelty, although this decision was overturned by the
Karnataka High Court (AIR 2002, Karnataka 256).
The law on adultery is another example of how the law is differently constituted
for men and women despite the Constitutional provisions on equality. Under section 497
of the Indian Penal Code only the adultery committed by the man is considered an
offence and under Section 198 of the Criminal Procedure Code 1973 only the husband of
the woman who commits adultery can prosecute her lover for adultery. On the other
hand, if a married man commits adultery, his wife cannot prosecute his lover for adultery.
In other words, only men can either prosecute or be prosecuted for adultery. In addition,
under section 498 of the Indian Penal Code, "whoever takes or entices away any woman
who is and whom he knows or has reason to believe to be the wife of any other man,
from that man or from any person having the care of her on behalf of that man with intent
that she may have illicit intercourse with any person or conceals or detains with that
intent any such woman, shall be punished with imprisonment of either description for a
term which may extend to two years or with fine or with both.". These sections have
been challenged as violative of Article 15 of the Constitution, which states that there shall
be no discrimination on the basis of sex alone. However, the Supreme Court has upheld
the provisions on the basis of Article 15(3) of the Constitution, which permits positive
discrimination in favour of women and children.
Although the law on adultery appears to be biased in favour of women in the
sense that women cannot be prosecuted for adultery, it raises problematic issues and is
not really favourable towards women. The reason why the female partner in an adulterous
relationship is not punishable under the law is because the man is seen as the seducer and
the woman as the passive victim. The offence is committed against the sanctity of the
matrimonial home and it is the man who defiles the sanctity. The question also arises as
20
to why adultery should be viewed as a criminal offence at all. (In most countries it is not
a criminal offence). This goes back to the concept of the woman as the property of her
husband. If, as stated in Section 498, a man "entices" away the wife of another man, he
has violated the property rights of that man. Since, on the other hand, familial ideology
and social perceptions do not view the husband as the property of the wife, (historically
women could not own property at all) there is no question of adultery being viewed as a
crime against the wife. This is why the wife cannot prosecute for adultery. Section 498 of
the Indian Penal Code is an obnoxious provision, which totally repudiates the idea of
equality of the sexes and of the woman as a free and independent agent.
The legal provisions pertaining to maintenance in the event of a marriage
breaking up is another problematic area. The reason why it is necessary to pay
maintenance to the wife is because of the reality of the economic dependence of the wife
due to the sexual division of labour and not because 'woman is the weaker sex' as held by
some courts. At the same time the amount of maintenance granted by the courts is usually
grossly inadequate to her actual economic needs. In addition, if the woman has a sexual
relationship with another man even years after the break-up of her marriage, the
maintenance is not payable, irrespective of whether the man is supporting her or not. This
is true not only for most of the personal laws but also in the case of the Special Marriage
Act. The law therefore reinforces both the familial ideology of dependency of the woman
as well as the importance of her sexual good conduct and chastity even after the break-up
of her marriage. No consideration is given to the work and contribution of the woman to
the marriage or to her economic requirements.
Property rights are another instance of laws which clearly apply differently to men
and women in all the personal laws. Even the Hindu Succession Act (1956) which does
give equal inheritance rights to daughters and sons in the case of the father's property,
does not give daughters coparcenary rights in joint family property. Only males are
members of the joint family and joint family property devolves only through the male
line from father to son. Daughters are considered to be 'transferred' to another family
upon marriage and therefore not part of the joint family. It is true that some States have
thereafter passed laws giving daughters rights to the coparcenary property. But enjoyment
21
of the property rights conferred by the law on women, whether it be the father's own
property or coparcenary property, is another matter.
What has been discussed till now are some of the laws, which are clearly unequal
for men and women. There are however laws which seem to be gender neutral- that is the
same for both men and women - but in reality are not so because of the different social
and economic positions of men and women. One instance of such a law is that pertaining
to marital property.
In all the personal laws husband and wife are considered to own the property to
which they have a legal title. Each person will retain the property he or she had at the
time of entering into the state of matrimony. In addition, the property acquired by each
partner during the course of the marriage will be retained by that partner as his or her
own property. There is thus no concept of joint ownership of marital property. On the
break up of the marriage each person keeps his or her own property.
This law appears to be fair and gender neutral. In actual fact, however this
concept of formal equality does not produce equal results. Most women do not inherit
any property and hence own no property in their name. In addition, because of lower
educational qualifications and the sexual division of labour, most women do not work
outside their houses, or if they do, then it is in jobs with much less remuneration than
those of their husbands. There are many families, which prevent even professionally
qualified daughters-in-law from working outside the home. Even when the woman has a
job, her salary is often handed over to the husband or in-laws to be spent on household
expenses and not utilised to purchase permanent assets in her name. The contribution of
women as family labour in the agricultural holdings of the family or in family business is
taken for granted and not paid for. Women are also not paid for their work within the
house as cook, cleaner and carer.
Under the circumstances, if the marriage breaks up, the wife becomes destitute.
The law regarding marital property, so apparently gender neutral, gives her no right to the
marital home even if she had swept it and scrubbed it during all the years of her marriage
22
or contributed towards its maintenance. Her contributions to the marriage are not taken
into account and she has to take recourse to the long processes of law to obtain
maintenance or alimony from her husband, which, as indicated earlier, is often grossly
inadequate to meet the financial requirements of herself and her children. The outcome of
the law is thus unequal and it is for this reason that women are often forced to continue in
a humiliating or abusive marital relationship.
In a recent meeting, which the lawyer and activist Flavia Agnes had with judges
of the Family Courts in Karnataka, she suggested that the law be amended to give women
a share in the marital property on the breakdown of the marriage. This suggestion was
resolutely opposed by all the male judges present, one of whom voiced the apprehension,
which must have been in all their minds "How can you ensure good behaviour from
wives if there is such a provision?" Others expressed anxiety that the number of divorces
would increase if the wife were given a share in the marital property. In other words, the
familial ideology of dutiful wife rested on the total economic dependency of the woman
and the family was kept together only by the fact that she had nowhere else to go. Most
of the judges present at the meeting evidently thought that this was a natural and
desirable state of affairs.
The law regarding restitution of conjugal rights is another example of a law which
appears to be gender neutral and tendering formal equality on men and women but which
in implementation is a remedy through which a husband can literally enforce his property
rights to his wife's company. The same remedy is not actually available to the wife
because of her social and economic position.
In the past the remedy was exclusively available to men to ensure their control
over their wives. When a wife refused to remain with her husband the husband could
petition for the restitution of conjugal rights and if the wife refused to comply with the
order she could be imprisoned. Women activists have long been agitating for the
abolition of the remedy and the report of the Subcommittee on Women's Role in Planned
Economy in 1940 recommended the abolition of the remedy in both Hindu and Muslim
personal law. However the Hindu Marriage Act (1955) instead of abolishing the remedy,
23
made it equally applicable to both men and women. Despite the formal equality conferred
by the law, familial ideology continues to inform court judgments and this makes the
remedy an instrument of control over women.
The remedy is often used by husbands to obtain a decree of divorce in cases
where the wife has left the marital home for some reason but is not anxious for a divorce.
Other cases which have come up before the courts are those wherein the wife's place of
work is at some distance from the place where the husband lives and he demands that she
give up her job and reside with him. Even in cases such as that of Tirath Kaur vs Kirpal
Singh where the wife had proved that she took up the job because of her husband's
financial stringency, that she used to meet her husband during holidays and that she sent a
portion of her salary to her husband and father in law in answer to their growing
demands, the court allowed the husband's petition holding that "the husband was justified
in asking the wife to live with him even if she had to give up service the husband was
entitled to restitution claim" (AIR 1964, Punjab 28). On appeal to the High Court, the
Court rejected the appeal: "A wife's first duty to her husband is to submit herself
obediently to his authority, and to remain under his roof and protection. She is not,
therefore, entitled to separate residence or maintenance, unless she proves that by reason
or his maintenance she is compelled live apart from him." Similarly in Gaya Prasad vs
Bhagwati the wife decided to work at a place away from the matrimonial home as a result
of her husband's adverse financial circumstances (AIR 1966 Madhya Pradesh 212). She
asked her husband to live with her but he refused and tried to coerce her to give up her
job. The husband filed a petition for restitution of conjugal rights, which, though
dismissed by the lower court, was allowed on appeal to the High Court, which held that
"according to the ordinary notions of Hindu society, the wife is expected to perform the
marital obligations at her husband residence."
In these and many other cases the court judgments do not seem to recognize the
wife's right to work. In most cases, it was only when the wife could prove that she had
left her husband's residence because of ill treatment that the husband's petition for
restitution of conjugal rights was not allowed.
24
Although there are many other examples of how laws conferring formal equality
are enforced or implemented to reinforce women's subordinate position in the family or
to deny her real equality, the paper will indicate only one more - The Equal
Remuneration Act, 1976 which provides for equal pay for equal or similar work. "Same
work or work of similar nature" is defined in the Act as "work in respect of which the
skill, effort and responsibility required are the same, when performed under similar
working conditions, by a man and a woman". The Act also prohibits discrimination in the
recruitment of workers as also discrimination in promotions, transfers and training.
Although the Act appears progressive, large differentials in the wages of men and
women persist. The Act does not impose a duty on employers to evaluate whether the
work of women and men is of a similar nature nor does it indicate the procedure by
which such evaluation should be made. The enforcement is through individual complaints
and is not institutionalised. Moreover, because of the sexual division of labour, men and
women do not very often do the same work and women are concentrated in the low
paying sectors. A differential value is attached to men's and women's work when they
utilise different types of skills and this value judgment generally works against women,
thereby defeating the purpose or the Act.
The paper has discussed in this chapter laws which; despite sections 14, 15 and
16 of the Constitution; are patently different for men and women and place women in a
disadvantageous position. The chapter has also discussed laws which appear to be equal
but which in application discriminate against women because their position is different
from that of men. The question arises as to how the law should consider gender
difference: should women be considered different from men and in need of protection,
as assumed by the 19th century reformers; as the same as men with the same laws
applicable to both sexes; or as the same as men as far as the right to equality is
concerned but with the recognition that if equality is to be the end result of the legal and
judicial process, then the law should be constructed and implemented with an
understanding of women's position of disadvantage due to the past history of
discrimination against her.
25
The question of considering women and men as different and unequal and
applying different laws to both sexes is no longer relevant. There is no possibility of
setting back the clock and the personal laws concerning property rights and marriage
which continue to discriminate against women will need to be amended. The concept of
formal equality wherein the law, although formally equal, does not confer equal justice
on men and women, has been discussed at length. Substantive equality is that which
ensures justice and equality after a sensitive understanding of the actual position of both
parties. It is in pursuance of substantive equality that article 15[3] of the Constitution
provides for positive discrimination for women and children. There are several court
judgments, which show the presiding officers' concern for substantive equality, which is
where the interpretation of law was with the objective of securing justice and equal rights
in letter and spirit.
Thus after such terrible court judgments in rape cases as that of Pratap Mishra vs
State of Harayana, where the conviction of three men from the National Cadet Corps for
raping a 23 year old pregnant woman was reversed (the victim miscarried 5 days after the
rape) only because she was the second wife of her husband who had not yet legally
divorced his first wife, we turn with relief to the judgment of Justice V.R. Krishna Iyer in
Krishan Lal vs State of Haryana involving the rape of a minor where the court upheld the
conviction of the accused (1980). The court rejected the argument that women lie about
rape on the grounds that "in rape cases, courts must bear in mind human psychology and
behaviour probability when assessing the testimonial potency of the victim's version. The
inherent bashfulness, the innocent naiveté and the feminine tendency to conceal the
outrage of masculine sexual aggression are factors which are relevant to improbablise the
hypothesis of false implications." In State of Maharastra vs Chandraprakash Kevalchand
Jain, the court has stated "Courts must also realize that ordinarily a woman, more so a
young girl, will not stake her reputation by levelling a false charge concerning her
chastity." (AIR 1990, Supreme Court 658).
The paper has discussed several cases where the courts have allowed the
husband's petition for restitution of conjugal rights by insisting that it was the wife's duty
to obey her husband and reside with him even if this meant that she give up her job or
26
career to do so. Definitely such judgments are not imbued with the spirit of gender
equality but rather seek to reinforce the traditional concept that woman's chief role is that
of wife and mother. However the spirit of substantive equality is upheld in the order of
the Supreme Court in Mayadevi vs State of Maharastra where the requirement that
married women obtain their husbands' consent before applying for public employment
was challenged as violating Articles 14, 15 and 16 of the Constitution. The Supreme
Court held: "This is a matter purely personal between husband and wife. It is unthinkable
that in social conditions presently prevalent a husband can prevent a wife from being
independent economically just for his whim or caprice". In this case the Court has held
that in order to achieve economic independence women must not be treated differently
than men.
Similarly in a case against Air India, Lena Khan vs Union of India (1987), the
Supreme Court held that the rule that airhostesses should retire at 35 was discriminatory
and should not be allowed. The Court expressly rejected the argument that airhostesses
should be ' young and attractive.'
It is seen from the above that court judgments are sometimes progressive and
imbued with the spirit of substantive equality and sometimes are not. Unfortunately it is
not true that once certain liberal principles are established in judgments, those principles
are thereafter followed in subsequent judgments. The ideology upon which the
judgments are based does not follow established precedent; in fact no precedent is
established and the view taken depends on the cultural values of individual judges. For
instance several of the judgments in rape cases at the height of the campaign for
amended rape laws were far more progressive, especially on the issue of consent, than
the judgments following the passing of the amendments when the publicity attending the
campaign had died down .The recent decision of the Supreme Court upholding the new
law in Haryana that only those with not more than two children can contest in panchayat
elections is certainly violative of the norms of substantive equality since the judgment
shows a lack of understanding of the reality of women's lives and the fact that few
women enjoy the right to decide the number of children they should have. Law is thus
neither an agent of oppression nor an instrument of social change but an arena for
27
conflicting ideologies. Substantive justice will be available for women only when
women's groups are able to follow up on individual cases and raise an outcry when such
justice is denied. Continued public discussion of the ideology underlying such
judgements will do much to sensitise the makers and interpreters of the law to women's
rights.
The paper has discussed the concept of formal and substantive equality at some
length as also how laws apply differently to men and women. These laws do not relate to
social legislation. However the point is being made that the familial ideology which
prevents women from obtaining equal justice in personal laws relating to property and
marriage, in laws governing employment and remuneration, as well as in criminal cases
stands in the way of the effective enforcement of social legislation. This will become
more clear in the next chapter which will analyse the provisions and the enforcement of
two selected enactments of social legislation - the Dowry Prohibition Act, 1961 and the
Family Courts Act, 1984.
28
4. Dowry Prohibition Act And The Family Courts Act
4.1 The Dowry Prohibition Act 1961
Dowry has been the favourite whipping boy for all the ills, which beset women -
from domestic violence leading to the murder and suicide of young brides to the
unhappiness expressed at the birth of a bonny baby girl, from female foeticide to prevent
girls from being born, to active discrimination against those who are born. The accepted
credo is that it is because dowry has to be paid by the girl's parents to the boy's parents, as
demanded by them at the time of her marriage, that the girl is considered a liability by her
own parents, to be transferred as soon as possible to another household. It is because of
dowry that as little money as possible is invested on the daughter's education and
upbringing whereas the son is given privileged treatment because he not only remains
with the natal family, but also brings money into the house at the time of his marriage.
Dowry is also said to denote the perceived worthlessness of the girl so that gifts have to
accompany her transfer to the bridegroom's family in order to make the transfer more
acceptable. The fact that marriage is considered an absolute imperative for girls gives the
bridegroom's family the leverage to demand more and more. The payment of large
dowries also makes the girl's family reluctant to accept her back when she is ill treated in
the marital home. On the other hand they are willing to give in to ever increasing
demands from the husband's family in order to keep her in the husband's house at all
costs. While the amount of dowry demanded does have some correlation with the
academic qualifications or job of the boy, dowry is hardly the purchase of a husband; it is
more like blood money paid into enemy hands.
There has been considerable academic discussion on the origin of dowry, whether
it has been prescribed or proscribed by the shastras, whether it was an integral part of
kanyadan and whether it is different from streedhan. It is generally accepted that
streedhan means the wealth of the woman - the gold, jewellery, clothes and other
property which belong to the bride and is hers to use whereas dowry is the wealth that
goes with the women, that is, the wealth which does not belong to the woman but which
accompanies her when she marries into her husband's family. The practice of giving
29
dowry is closely linked to the concept of the daughter as 'paraya dhan', a commodity to be
transferred from one family to another. This is at the root of the reluctance to permit
daughters to inherit immovable property.
Even highly placed professionals who have no sons have been known to decide not
to construct a house for themselves because the property will go to a daughter.
Women are thus placed in a position of dependency both in their own homes and
in their marital homes.
The 19th century reformers did not raise the issue of dowry as a social evil to be
legally banned. The women's organisations, which in the early decades of the 20th
century, rallied around the demand of equal rights for women, also did not take up issues
such as domestic violence, rape and dowry. This was perhaps because the women’s
movement which participated wholeheartedly in the struggle for independence,
concentrated at that time on the nationalist agenda of securing the independence of the
country and linked the dawn of a new era of democracy and equal rights for all with the
vision of an independent India. However the misery caused to women by dowry has been
tellingly portrayed in women's literature of the first three decades of the 20th century in
the Hindi belt in north India. This concern is accompanied by sharp criticisms of the selfcentred
egotistic behaviour of men and attacks against male reformers for their failure to
address and tackle the practice of dowry. An editorial in Mahila Darpan (March - April
1921) categorically mentions that the monstrous custom of dowry is the 'primary' cause
for the rapid increase in polygamy, marriage of young girls to old men, and widowhood.
The custom has so reduced women's status that many innocent girls are put to death at
birth, and among those who grow up, many are married to old men married several times
before and with numerous wives. The editor voices her opinion that if the custom of
dowry were abolished then a considerable improvement would follow in other social ills
besetting society. Griha Lakshmi and Stree Darpan are two other women's magazines of
the time which were eloquent on the evils of dowry. These women writers have identified
dowry as responsible for a larger vicious pattern characterised by the oppression of
women in society.
30
It was at this time that the suicide of Snehalatha, a young girl from Bengal, who
killed herself to save her family the anxiety of getting together a dowry for her marriage,
created an outcry in the women's magazines. Snehalatha's letter to her father, written
just before her death, was published in Mahila Darpan (March-April, 1921, p109)
wherein she has written "I am unmarried even though I am fifteen years of age and I am
taking my own life because people criticize and ridicule you for this is in spite or your
making several attempts to resolve this issue".
The women's movement, which had campaigned for equal rights during the preindependence
struggle, saw those rights enshrined in the Constitution of the new nation.
The struggle for equal rights in inheritance of property and in marriage and divorce laws
faced a more uphill task; however some measure of success was achieved by 1955 when
the Hindu Succession Act and other pieces of legislation were enacted. It was only by this
time that the women's movement began to give recognition to the gender inequalities
built into the structure of society and family. The Government responded by the
enactment of the Dowry Prohibition Act, 1961, a piece of legislation as full of holes as a
colander and never meant to be taken seriously.
The Act laid down a very narrow definition of dowry as "property given in
consideration of marriage and as a condition of the marriage taking place". This meant
that money and other forms of wealth demanded and given after the marriage were not
included in the definition of dowry. The definition also excluded presents in the form of
cash, ornaments, clothes and other articles from its purview. Both giving and taking
dowry was an offence under the Act. The offence was noncognizable and bailable - in
other words, it was considered a trivial offence. The maximum punishment was only
imprisonment for six months and/or a fine of Rs.5000/-. Complaints had to be filed
within a year of the offence and only by the aggrieved party. The prior permission of the
Government was required before prosecuting a husband who demanded dowry.
As a piece of toothless legislation the 1961 Act was unparalleled. Because or the
difficulties involved, hardly any cases were filed under the Act and there were less than
half a dozen convictions in the period between the enactment and the amendment. The
31
judgment of the Bombay High Court in the Shankar Rao vs L.V. Jadhav case in 1983 is
an example of the mechanical manner in which the law was interpreted. The Court held
that a demand for Rs.50,000 from the girl's parents to send the couple abroad did not
constitute a demand for dowry since the girl's parents had not agreed to pay the amount at
the time of the marriage. It was not therefore a "consideration for marriage". The
absurdity of the interpretation showed how easily the law could be circumvented.
In the meantime the custom of dowry spread to communities where it was hitherto
unknown. The amount demanded also increased, as did new forms of demands on the
girls' parents. Domestic violence increased but even when women, driven to desperation,
approached the police for help the police would decline to intervene in "family quarrels"
and send the women back, often after lecturing them about their duties. Even when the
domestic violence women were subjected to ended in murder or suicide, there was
reluctance on the part of the police to intervene in what was still seen as essentially a
private matter. The National Crimes Record Bureau showed an increasing number of
unnatural deaths of married women in all parts of the country but even this was only the
tip of the iceberg as most of the deaths did not come to public or official notice but were
closed at the initial stage as kitchen accidents (more than 80% of the deaths were due to
burning). Domestic violence is a complex issue and it is not only young women or brides
who are subjected to it. However, all domestic violence was rather simplistically
attributed to dowry. The murders and suicides of young brides brought to India the
infamy both in national and international circles of a cultural crime peculiar to this
country, known as 'dowry death' or 'bride burning'.
In the 1970s and 1980s violence became the central issue of the feminist
movement. Wife battering and violence against women within the four walls of the house
were for the first time brought out into the open.
The first protests against dowry in the contemporary feminist movement were
made by Progressive Organisation of Women in Hyderabad in 1975. After two years the
movement was taken up in Delhi, which witnessed the largest number of murders of
young women for dowry. Such organisations as Stree Sangarsha and Mahila Dakshata
Samithi organised mass campaigns for justice in the case of murders of young women by
32
their husbands and in laws. Examples are the murders of Tarvinder Kaur, Kanchan
Chopra, Bharati Narula, Shakuntala Arora, Hardeep Kaur and many others(Gandhi and
Shah 1992). The campaign included the formation of neighbourhood groups, street plays,
signature campaigns, mass protests in front of the houses of persons demanding dowry,
posters, rallies and boycotts. The campaign attracted massive media attention and spread
to other parts of India. The campaign witnessed a number of women's organisations
coming together and was supported enthusiastically by members of the public who joined
hands with the women activists to force the police to take cognisance of the crimes. Until
this time women's death by fire had been put down as suicide and even these suicides
were rarely seen as being due to dowry harassment. The police had never bothered to
investigate them and had passed them off as private affairs of no concern to the State. For
instance, Hardeep Kaur, a friend of the Tarvinder Kaur whose murder was one of the
first, which the activists took up, had also been burnt to death by her in laws. Although
she was an educated girl the police accepted a thumb impressioned statement purportedly
written by her to show that she had committed suicide and allowed the culprits to go scotfree.
Such calculated oversight by the police angered the women's groups. Their
concerted campaign forced the police to reopen the case and ultimately to obtain an order
of conviction against the in laws. Even dying declarations of the victims were completely
ignored by the police, as in the case of Tarvinder Kaur, where she had declared that her
mother in law and sister in law had set her on fire, despite which the police had closed the
case as one of suicide. The campaign by the women activists’ linked death by tire with
dowry harassment, showing that many official 'suicides' were in fact murders.
The women's groups placed a memorandum before the Home Ministry
demanding redressal. They demanded that dowry should be made an unbailable offence,
that if the death of a girl occurred within the first seven years of marriage, post mortem
must be compulsorily performed and that cases which appeared, as suicide should be
fully investigated.
It was accepted by the Government that the glaring loopholes in the Dowry
Prohibition Act, 1961 needed to be plugged. A private member's bill was introduced in
Parliament by Pramila Dandavate, MP, to make amendments to the Dowry Prohibition
33
Act, 1961. The bill was referred to the Joint Committee of both the Houses. The
Committee suggested that the words "in consideration of marriage" ought to be totally
deleted from the definition of dowry. The Committee also felt that presents given to the
bride and bridegroom should be included in the definition of dowry. It recommended that
gifts given to the bride should be listed and registered in her name. In case she died
within the first five years of marriage the gift should revert to her parents. If she got
divorced, the gifts should revert to her.
The bill, which was introduced in 1984, did not take cognisance of many of these
recommendations. The most important amendments was that in the definition of dowry it
substituted the words "in connection with marriage" for the words "as consideration for
the marriage." It was felt that the simple omission of the words "as consideration of
marriage" would make the definition too wide. The other important amendments were
that the one year limitation period 'was removed and it was now possible for the girl's
parents, relative or a social worker to file a complaint on her behalf. The requirement of
prior sanction of the Government for prosecuting a husband who demands dowry was
dropped and dowry was made into a cognizable offence. The punishment was also
increased to imprisonment of five years and a line up to Rs.l0,000 or the amount of the
dowry, which ever was more.
The Act was again amended in 1986 to make it more stringent. The fine was
increased to Rs.15000. Dowry was made into a non-bailable offence. State Governments
were requested to appoint Dowry Prohibition Officers.
Despite these improvements in the Act of 1961 several lacunae persist in the
amended Act, creating difficulties in enforcement. The first is that of the definition of
dowry itself. Despite the demands of women activists and the recommendations of the
Joint Committee, the amendment retained the words "in connection with the marriage" in
the definition of dowry. The trouble is that the context and the manner in which demands
are made on the wife's parents and relatives by the husband and his parents have changed
through the years and the existing definition of dowry cannot cover all of them. The
relatives of the wife are in a permanently weaker position and it is possible to make
34
demands on them through out the life of the wife and not just before, during or
immediately after the marriage. The birth of a child, the expansion of the husband's
business, the construction or purchase of a house for the husband and his parents, the
desire to study or work abroad voiced by the husband, the marriage of the husband's
sister, the perceived need for better transport facilities for the husband - these are all
occasions when the parents of the wife are pressurised to make contributions. The
alternative would be harassment and ill-treatment of the wife or her return to her natal
home, which was to be avoided as far as possible because of the social stigma involved.
Another problem with the amended Act is that both those who take dowry and
those who give are penalized. This is a good example of formal equality conferred by the
law, which renders the entire enactment useless because there is no understanding of the
reality of the situation the law is attempting to improve. In the Indian context the parents
of most girls expect to have to give some dowry at the time of the daughter's marriage.
The amount they have to pay is determined by custom and usage and depends on their
caste, financial position, financial position of the groom and his parents and other similar
factors. The exact amount payable is decided after negotiations between the relatives on
both sides, usually in the presence of the marriage broker. Traditionally nothing will be
put into writing but the girl's father will be reconciled to paying this amount, which may
be in the form of cash, property, gold, vehicle and clothes. Trouble usually arises only
when the girl's father for some reason reneges on some part of the agreement or when the
groom's parents make additional demands. At such a time it becomes difficult for the
bride or her parents to give a police complaint against the groom's family because firstly,
the demand for dowry would not be in writing and it will be difficult to obtain proof and
secondly, the bride's parents may also get into trouble because they have already given
some dowry. This clause in the Act also causes problems for the wife if, according to
section 6 of the Act, she demands that the dowry be transferred to her name. She will find
it difficult to benefit from the provision without getting her parents into trouble for
having given the dowry in the first place. The women activists who had demanded
amendment of the 1961 Act had urged that the givers of dowry should not be penalized
but this recommendation was not accepted while enacting the amendment.
35
Another serious problem is that the recommendation of the Committee with
regard to the listing and registration of gifts given to the bride and groom is not part of
the Act. The Act does net also place any ceiling on the value of the gifts although the
proviso to sub section (2) lays down that "where such presents are made by or on behalf
of the bride or any person related to the bride, such presents should be of customary
nature and the value thereof not excessive, having regard to the financial status of the
person by whom or on whose behalf such presents are given". The subsection speaks only
of those gifts given at the time of the wedding and does not cover gifts made subsequent
to or before the marriage. The proviso regarding the value of the gifts "not being
excessive" is very vaguely worded and left to subjective interpretation. This also makes it
very difficult to distinguish between gifts, which are given voluntarily, and dowry which
is given under compulsion. The Act does not ban conspicuously lavish weddings
although it is the bridegroom's family which demands a "decent" wedding and the bride's
family which pays for it.
The agitation of women's groups against dowry brought to the forefront the
violence faced by women within their homes and the inaction of the police when
confronted with complaints about such violence. It was recognized that although there are
general provisions in the Indian Penal Code covering murder, abetment to suicide,
causing hurt and wrongful confinement which could be applied to women facing
domestic violence, these provisions were not helpful to women not only because of social
and cultural mores which turned a blind eye on wife battering or other inequities and
crimes committed within the family, but also because the evidence required by the courts
to prove the offence "beyond all reasonable doubt" to secure convictions could not be
easily available when the abuse took place within the home and in the heart of the family.
The offence which is committed within the privacy of the home by a person on whom the
woman is economically and emotionally dependent needs to be dealt with on a different
plane. For this reason the Government amended the Indian Penal Code with sections 498
A and 304 B.
Section 498 A prescribes a penalty of imprisonment of three years for the husband
or relative of the husband of a woman who subjects her to cruelty. Cruelty includes
36
physical and mental cruelty, which is likely to drive the woman to suicide or cause grave
injury to her life or limb. In addition, the definition of cruelty under this section includes
the harassment of the woman in order to coerce her or her relative to meet with any
unlawful demand for property.
Despite the fact that section 498 A is not limited to cases of domestic violence
because or dowry demands, but covers all kinds of domestic violence, the attitude of most
of the police has not changed and they are usually reluctant to intervene in cases of wife
battering or where the wife is subjected to mental cruelty unless the complaint is linked to
dowry. The result is that most women who take recourse to section 498 A combine
genuine complaints of physical and mental cruelty with vague allegations of dowry which
they are then unable to prove. It is also true that a majority of the cases filed under this
section are subsequently withdrawn, usually because of the exigencies of women’s lives
in India, where, without any rights in the matrimonial home and in the natal home in the
event of the break up of the marriage, they have nowhere to go. Section 498 A does
however help women by forcing men to the negotiating table and as a deterrent to bad
behaviour. There has been some talk or abolishing section 498 A because of 'misuse' by
women who make fake allegations against their husbands with regard to demanding
dowry. This shows a total lack of understanding of the difficulties faced by women who
are subjected to routine and persistent beatings or daily humiliations from which they can
get no relief.
Section 304B of the Indian Penal Code introduces the word "dowry death" into
the IPC and states that where a woman meets with a death otherwise than under normal
circumstances within the first seven years of her marriage and it is shown that soon
before her death she had been harassed by her husband or in laws with demands for
dowry, then the husband and relatives shall be held to have caused her death.
This section does not help women much because usually no records are
maintained or complaints made regarding dowry demands while the girl is alive. Despite
the amendments to the Dowry Prohibition Act and the stringent punishment imposed for
demanding and taking dowry and despite the amendments to the Indian Penal Code, the
37
deaths of young women due to murder and suicide continue to rise. The National Crimes
Record Bureau depicts these increases although many of the murders of young women by
members of their family do not find a place in these records. Even for those few cases,
which reach the courts, the conviction rates are less than 20%. Shoddy and
unprofessional investigation by the police, corrupt doctors and public prosecutors, delay
in the court, witnesses turning hostile are all contributory factors to the low conviction
rate. Moreover there are many cases, which disclose a strong gender bias on the part of
the judiciary even to the point of acquitting murderers and allowing them to go scot-free.
A few of the more infamous examples are described.
In the case of Ashok Kumar vs State of Rajasthan [AIR (All India Reporters)
1990, Supreme Court 2134], the sessions judge decided to ignore the dying declaration of
the victim, attested by a doctor, that she had been burnt by her brother in law. Instead he
decided to acquit the accused on the flimsy ground that there was contradiction between
the two doctors and that he doubted the testimony of the doctor who had attested the
dying declaration because she was a woman. This verdict was reversed by the High Court
and confirmed by the Supreme Court. Since murders of young wives occur within the
four walls of the home, it is not easy to get evidence. But even when there is evidence as
the in this case, the dying declaration of the victim, repeatedly was discredited
(Gonsalves L 1993).
In the case of Shobha Rani vs Madhulkar Reddy (1988), the husband and his
parents harassed the young wife with demands of money. She approached the court for a
divorce on grounds of cruelty. The trial court as well as the High Court held that there
was nothing strange in a husband asking his rich wife for money when he needed it and
dismissed the case. The young woman had to then approach the Supreme Court which,
having examined the evidence, drew a distinction between asking a spouse for money and
harassing a wife for money and granted the divorce on grounds of cruel. The case of
Vibha Shukla shows how difficult it may be to get a conviction even under Section 498,
A which was specially created to help women facing domestic violence. Vibha was found
burnt to death while the husband Ashok Shukla was in the house (AIR, 1990, SC 2134).
A huge dowry had been paid at the time of the wedding and there were several
38
subsequent demands for dowry. Vibha was subjected to cruelty and harassment. When
she delivered a daughter, her husband and his family did not accept the child, who was
left behind in her parents' house. Despite all this evidence the Bombay High Court set
aside the conviction of the sessions court and acquitted the husband of the charge of
murder and harassment under section 498 A of the Indian Penal Code. The High Court
held that occasional cruelty and harassment could not be construed as cruelty under
section 498 A!
In several cases where the wife had clearly committed suicide because of
domestic violence or dowry harassment, the husband was acquitted on the grounds that
the girl committed suicide because of depression.
In many of these cases the blatantly biased acquittals by the High Courts were
reversed by the Supreme Court. However in only a small proportion of the cases would
the relatives of the murdered girl have the staying power or the resources to take the case
to the Supreme Court. In many cases it was due to the adverse publicity given to the
acquittal by women activists and their taking it to the Supreme Court that convictions
were obtained.
There is however no doubt that despite the new laws crimes against women are on
the increase. The practice of dowry has also spread and very few marriages are performed
without demanding and taking dowry. A recent feature on NDTV showed how male IAS
probationers in the Academy were being 'purchased' and how shamelessly they were
breaking the law.
It is clear that the Dowry Prohibition Act, even after the enactment of the
amendments, has been a colossal failure. The amendments to the Indian Penal Code and
concomitant amendments to the Evidence Act and the Code of Criminal Procedure to
treat the unnatural deaths of married women within the first seven years of marriage on a
different plane, have not increased the conviction rates in the case of murders of young
women or proved a deterrent to cruelty to the wife within the home. Women activists
have now begun examining the phenomenon of dowry and domestic violence from a
39
deeper sociological perspective. They suspect that, as the lawyer and activist Flavia
Agnes puts it, the agitation against dowry is a "misplaced campaign". It is misplaced
because the activists as well as the Government had not realized that dowry is only a
symptom of a graver malady and that the practice of dowry cannot be rooted out without
addressing the underlying causes. The efforts made so far through legislation to curb the
practice of dowry have confused the symptom for the malady.
The real deep-rooted cause for domestic violence is not dowry but the unequal
power relations within the family and the vulnerability of women. Women are subjected
to cruelty in the home for a variety of reasons and not only for dowry. Women activists
are now of the opinion that the distinction made between the dowry givers and dowry
takers is artificial since both parties share the same cultural values and perceptions
regarding women. Besides, the dowry givers of today are the dowry takers of tomorrow
since most families have sons as well as daughters. The parents or daughters do not give
them the same consideration that they give their sons indiscriminate against them not
only in the inheritance of property but also in providing them with an equal education and
helping them to stand on their own feel. In most cases the chief priority of parents is to
get their daughters married off. In this anxiety to find a bridegroom they often do not take
the trouble to asce11ain the antecedents of the boy or the details regarding his job. They
are willing to pay dowry to the boys' parents and give in to all kinds of humiliating
demands although it is illegal, in order that they take their daughters off their hands.
Although it is natural to assume that men are equally desirous of being married, the great
anxiety shown by Indian parents to get their daughters married places them in a
supplicating, disadvantageous position as compared with that of the parents of the
bridegroom. It is the arrogance that stems from the unequal power relations between the
bride's and the groom's relatives that enabled the Delhi girl Nisha Sharma's would be
mother in law to slap her father at the wedding ceremony when he protested against the
escalated demands for dowry by the groom's parents (Dhavan R 2003). Indian parents not
only wish to marry off their daughters somehow but try to ensure that they stay married at
all costs. After having spent all the money on dowry in order to get their daughter
married, they would not want her back in their house. The social stigma of having an
unmarried or divorced daughter at home would also affect the marriage chances of her
40
younger sisters. Hence the parents of the young bride persuade her to adjust in her
husband's house, at the cost of her self respect or even her life. It is to be remembered
that the murders and suicides of young brides are presaged by many months of physical
and mental torture. In many of the cases the girls have returned to their parents' home
complaining of the trauma they were subjected to and have been sent back by their
parents after some patch up was effected by the parents giving in to the additional
demands of the groom. The girls' parents have thus literally sent them to their death.
The complaints of dowry are made by the girls' parents only after the girls are
killed, when they complain to the police in order to get even and also to get back the
dowry. Even after making the complaint they often compromise the matter when the
grooms' families buy them off. There are also horrifying cases of the dead girl's parents
marrying off a younger daughter to the same murderer! In any case the husbands of the
dead women have no difficulty in marrying a second time with, of course, another dowry,
as witness the notorious case of Sudha Goel where the husband who murdered her
married again and had two children even while the court case against him was going on
and before he was finally convicted and sentenced to life imprisonment [1984 (4), SCC
476].
The women's organizations began questioning the role of the girl's parents in
driving her to death. They began to feel that the campaign against dowry was wrongly
formulated because it did not link the issue of dowry with that of women's property
rights in their parents' home. The reason for the continuance of the social evil of dowry
was attributed to the powerless position of the woman both in her husband's home and in
her parents' home. It was in this context that Madhu Kishwar wrote the article in
Manushi “Rethinking Dowry Boycott” (1988) in which she argued that women's
organisations had been barking up the wrong tree in campaigning for the banning of
dowry and that in the absence of property rights for daughters, denying them dowry
would render them even more vulnerable to violence and humiliation in their husbands'
home. Banning dowry would be helpful only to the fathers and brothers of girls; it
would not help the girls themselves.
41
There can be no doubt that dowry worsens the position of women since it is a
coercive demands on the parents of daughters and is therefore to some extent responsible
for the unequal treatment meted out from birth to girls by their parents. The women's
organisations were right in demanding legislation prohibiting dowry. However they are
also correct in pointing out that without addressing the fundamental issues relating to
women's disempowerment merely passing laws prohibiting dowry will neither stop the
practice of 'lena dena' nor help women in the long run.
4.2 The Family Courts Act 1984.
Divorce was first recognized as a legal remedy in Hindu marriages in the Hindu
Marriage Act, 1955. A more liberalised divorce policy was adopted through the
amendment of 1976 which permitted divorce by mutual consent. The personal laws of
other religions also permitted divorce under certain circumstances. By laying down the
law regarding dissolution of marriage, divorce, conjugal rights, marital property and
maintenance, the State entered the private sphere of the family. The application of these
laws was done through the civil courts which meant that marital disputes were decided
on the adversary principle with lawyers on both sides fighting it out in the open court
and the case being tried along the strict rules of court procedure. This resulted in long
drawn out and expensive legal battles between spouses. The huge pendency of all kinds
of cases in the civil court contributed to painful delay in settling matrimonial disputes.
For instance the case of Dastane vs Dastane (1975) took thirteen long years for a remedy
to be denied. In Shanthi Nigam vs RC Nigam (Sita Mahalakshmi 1992) a petition for
restitution of conjugal rights was decided after nine years and in Surendra Kumar vs
Kamalesh even the question relating to jurisdiction was not decided for one and half
years.
The outcome in a legal battle fought out on the adversary principle depends
entirely on the cleverness of the lawyers on both sides. Women have much the worst or it
in such a situation. They are the weaker partners in the marriage and in a much more
disadvantaged position financially as compared with their husbands. They cannot afford
expensive lawyers, (and the better the lawyer, the more expensive) or a long legal battle.
42
With no property or job, or at best a lowly paid job, saddled with the children, facing
social stigma, with no rights in either the natal home or in the marital home and after
being for several years at the receiving end of an abusive relationship, they find it
difficult to face the trauma of a prolonged legal tussle. Their husbands, on the other hand,
can continue with their lives and often marry again even during the pendency of the case.
The pronounced male bias evident in legal proceedings also render divorce or
maintenance cases more painful and unjust for women.
During the eighties the women's movement began to demand for laws and
procedures which would ensure women's economic rights within the marriage and make
matrimonial litigations speedy, less expensive, less traumatic, and more just for women.
They stressed that the unequal power relations between men and women within the
institution of marriage should be recognized and new laws and procedures instituted
which will eradicate the tyranny of dogma and preconceived notions of gender roles and
tilt the balance in favour of women. Their argument was that just as special courts, laws
and procedures had been established to resolve labour disputes because of the unequal
power balance between labour and management, a similar exercise had to be done to
resolve matrimonial disputes because of the unequal power equations between men and
women.
It was against this background and in recognition of the fact that conflict
resolution was an important aspect of matrimonial disputes and that the formal
atmosphere of the civil court was not the best place to settle such disputes that the
government enacted The Family Courts Act, 1984.
The objective of the Act, as spelt out in the preamble, was to promote conciliation
in, and speedy settlement of, disputes relating to marriage and family affairs and for
matters connected therewith. A reference is also made to the demands of women's
organisations as well as to the 59th report of the Law Commission which had stressed
that in dealing with disputes concerning the family the court ought to adopt an approach
radically different from that of ordinary civil proceedings and that it should make
43
reasonable efforts at settlement before the commencement of the trial.
There is however one important area of difference between the demands of
women's organisations and the provisions of the Family Court Act which was enacted in
order to set up special courts to try matrimonial disputes, as urged by the women's
organisations. The activists had demanded that the special courts should be set up in
order to deliver gender justice in matrimonial conflicts since this is hard to obtain in the
civil courts with their rigid rules of procedure and evidence. However in section 4 of the
Family Courts Act dealing with the appointment of judges, it is indicated that while
selecting persons for appointment as judges "every endeavour shall be made to ensure
that persons committed to the need to protect and preserve the institution of marriage
shall be selected." It has always been the argument of women activists that efforts to
protect and preserve the institution of marriage is usually at the cost of the woman who is
forced to "adjust" and accept humiliating, painful and unjust conditions in order to
preserve the' family as a unit. As cogently put by Flavia Agnes in her "Critique of Family
Courts" - "The institution of marriage and family can be preserved only at the cost of
women - by denying women property rights and the right to divorce. All recent laws that
are considered to be progressive and pro-women have been anti-family. For instance, the
Dissolution of Muslim Marriages Act, 1939 and the Hindu Marriages Act, 1955, gave
Muslim and Hindu women the right to divorce. In a traditional sense these laws could be
viewed as being 'antifamily' The next logical step was to move further in the same
directions by making this right of divorce a practical and feasible reality rather than a
nightmare by ensuring that divorce proceedings were speedy, devoid of anti-women
biases and economically more fair and just to women. The aim had to be gender justice.
The judiciary and the court officials had to be carefully selected or oriented towards
achieving this end. But unfortunately, the Family Courts Act did not stipulate this.
Instead, the Act was committed to preserving the institution of marriage and family."
The main provisions of the Act are as follows:
a) to make it obligatory for the State Governments to set up a Family Court in every
city or town with a population exceeding one million.
44
b) to enable the State Governments to set up such courts in areas other than those
specil1ed above.
c) to include within the jurisdiction of the Family Courts matters relating to (i)
matrimonial relief, including nullity of marriage, judicial separation, restitution of
conjugal rights or declaration as to the validity of a marriage or as to the
matrimonial status of any person (ii) the property of the spouses or of either of
them (iii) declaration as to the legitimacy of any person (iv) guardianship of a
person or custody of a minor (v) maintenance, including proceedings under
section 125 of the Code of Criminal Procedure, 1973.
d) to make it obligatory on the part of the Family Courts to endeavour, in the first
instance, to effect reconciliation or a settlement between the parties to a family
dispute.
e) to provide for the association of social welfare agencies and counsellors
f) to provide that the parties to a dispute before a Family Court shall not be entitled
as of right to be represented by a legal practitioner. However the Court may, in
the interest of justice, seek assistance of a legal expert as amicus curiae
g) to simplify the rules of evidence and procedure.
h) to provide for incamera proceedings at the request of either party or if the
presiding officer thinks it is necessary.
i) to provide for only one right of appeal which shall be to the High Court.
The intention behind the Family Courts Act is thus to set up courts in informal
settings away from the regular courts, where matrimonial disputes will be speedily
disposed off by following simp1ified procedures, where the approach is conciliatory
rather than adversarial so as to effect reconciliation where this is possible and where it is
not, a quick divorce without acrimony and accompanied by a just settlement of issues
such as maintenance, alimony and child custody. The presence of lawyers will be the
exception rather than the rule and proceedings are to be held incamera to make them less
painful, particularly for the women. The presence of trained counsellors and social
welfare agencies as well as the careful selection or sensitised and experienced judges will
ensure substantive gender justice.
45
What does the reality check show?
According to section 3 of the Act there should be Family Courts established in
every State in India. As against this only eighteen States have established Family Courts
so far. In Karnataka there are at present nine Family Courts - three in Bangalore (as
against~ a sanctioned four) and one each in Belgaum, Bijapur, Davangere, Raichur,
Gulbarga and Mysore. Taking the population into account Bangalore should be having
six Family Courts. A study of the Family Courts of Karnataka being conducted by the
organisation Majlis on the request of the Karnataka State Government reveals that except
for Bangalore there has not been much increase in the number of cases filed in the other
Family Courts during the three years from 1999 to 2002 (Agnes F, 2003 (b)). In all the
Family Courts except Bangalore the number of cases filed for maintenance is more than
the number filed for divorce. In Bangalore, surprisingly, the number of divorce cases has
increased considerably and is much more than the cases filed for maintenance. The study,
which is not yet completed, does not disclose whether the majority of the divorce cases
are filed by men or women.
The pendency is considerable - even in the case of the Raichur Family Court,
where the number of cases filed is small and is decreasing, the pendency is 544 as against
the average yearly disposal of 289.
The infrastructure provided for the Family Courts in Karnataka is by and large
pitiable. The Raichur and Gulbarga Family Courts are housed in old buildings with not
even the most basic amenities. The conditions in which the litigants are made to wait are
inhuman. There is no shelter or toilets for the women who come from far off taluks and
wait throughout the day in the scorching sun of these northern districts with their babies
in their arms. The Mysore Family Court is very congested. There is no place for' the
litigants to sit and most of them have to wait outside the court hall for lack of space. The
registry is a part of the court corridor sectioned off with aluminium dividers. In
Bangalore all the three Family Courts are situated in the City Civil Court complex and
are scattered in different court rooms, on different floors, isolated from each other. The
46
court registry is situated in yet another room on a different floor. The counselling rooms
are also segregated from the court rooms and the registry. The litigants have a hard time
locating the different court rooms, the registry and the counselling rooms which are
scattered in different parts of the large court complex. There is no difference between the
courts labelled as Family Courts and the other regular civil and criminal courts. As in the
other courts, the judge sits on an elevated dais and the lawyers sit round a horseshoe
shaped table occupying the main body of the room. There is only one row of chairs at the
back of the room for the litigants. However for most of the lawyers and the litigants there
is only standing space inside the court room with the lawyers far outnumbering the
litigants. Despite the express intention of the Family Courts Act that Family Courts
should be situated at a distance from the regular courts so as to reinforce the informal
image, the family Court rooms in Bangalore are situated in between the Civil and
Criminal Courts which makes it convenient for the lawyers to flit from one court to
another.
At a recent meeting of NGOs (non government organisations) and women
lawyers held under the aegis of Women's Voice, an activist organisation based in
Bangalore, there was strong criticism of the manner in which the court proceedings were
conducted, with women litigants being subjected to vulgar and embarrassing questions
and comments during cross examination in the crowded court room. Even the women
lawyers representing them were not exempted from jibes and sexual innuendos. The
proceedings are rarely held in camera, not withstanding the provision in the Act. The
Majlis study reveals that in one of the Family Courts, when the presiding judge attempted
to strictly follow the principle of ‘incamera’ hearing, the lawyers complained and forced
the judge to hold the trial in the open court room. Most of the judges, in the meeting of
Family Courts judges held by Flavia Agnes as part of the study being conducted by
Majlis, confessed to being under considerable pressure from lawyers to 'conform'. One of
the judges admitted that he was unable to move out of the totally unsuitable court
premises into a new building because the lawyers were opposed to it on the ground that
the new building was at some distance from the district courts and therefore inconvenient
to them.
47
As in the case of the provision in the Act for 'in camera' proceedings, the
provision whereby the litigants are not entitled, as of right, to be represented by lawyers,
has been completely ignored in practice by the Family Courts of Karnataka. The judges
treat the request for legal representation as a mere formality and never refuse it. They
apprehend that if they refuse permission, the litigants will approach the High Court in
appeal and obtain the required permission. (This has happened in one case where the
High Court ruled that the refusal interfered with the right of employment of the lawyers).
Hence refusal to permit lawyers to represent the litigants only results in delay.
Another provision in the Act, which according to the judges is responsible for
causing delay in deciding cases, is that related to compulsory counselling. According to
them counselling has become a mere formality and is done in a mechanical manner which
at best delays the commencement of the case and at worst is used by the husband to
prevent the case from progressing, thereby helping to 'wear out' the woman who cannot
afford a protracted legal battle.
No qualifications have been presented for counsellors. In some of the Family
Courts the counselling is done by the lawyers (on the principle of 'I counsel your case,
you counsel mine'). Counselling is thus purely ad hoc. There are no social welfare
agencies to assist the presiding officer to ascertain the truth of various averments made by
the litigants. None of the Family Courts in Karnataka is assisted by non commercial
lawyers. Although the Act provides for the appointment of an amicus curiae to assist the
Court, none of the Family Courts in Karnataka has an amicus curiae. Simplified
procedures are not formulated for the Family Courts with the result that much delay is
caused by taking down the evidence in the same detailed manner as in the other Courts
and by following procedures which serve to complicate simple matters. For instance in
order to withdraw maintenance amounts paid by the husband in the court, the wife has to
make a formal application and submit a stamped voucher after which the amount is given
to the woman in the form of a cheque. The woman requires the services of a lawyer for
making the application and for identification. The procedure alone takes a minimum of
fifteen days and it will be nearly a month before she can access the amount since the
48
payment is through cheque. In fact, even this is being optimistic. A lawyer working for
the Alternative Law Forum complained that her client had been unable to obtain the small
amount paid in the Bangalore Family Court as maintenance even after seven months and
repeated visits to the court since the clerk raised some objection or other obviously for
the purpose of benefiting from the transaction. It would have been a simple enough
matter to have the money paid into the woman's account in a bank on the premises of the
court.
None of the Family Courts in Karnataka has prepared simple formats which could
be easily filled up for straight forward cases such as applications for maintenance. There
are no help desks provided to assist the litigants.
The Majlis study team has observed in their interim report that they had seen in the
court room of the Principle Judge a woman who had come all the way from Kolar
district, with a one month old infant in her arms. Every time the child cried, the
lawyers glared at her and asked her to take the child out. She was feeling very self
conscious about this. Finally, when the matter was called out, her lawyer was not
present and she felt totally lost. She could not answer any of the questions and was
embarrassed as all the lawyers were watching her. Then she was sent for counselling.
Two hours later the study team found her outside the counselling rooms with the
wailing child, waiting for the counsellor to turn up. [Agnes F 2003(b)]
The Family Courts have failed miserably in their mandate of speedy disposal of
cases. According to Jaya Siva, Bangalore Family Courts counsellor, the cases being tried
in the Courts now are of 1995 - 96 vintage! Even simple maintenance cases takes more
than two years to be finalized - one year being taken even for service of notice on the
husband. This happens because of collusion of the process server with the husband or
deliberate avoidance of service. The Family Courts judges stated at the meeting that
about 30% of the maintenance cases are dismissed at the initial stage for want of service
of notice.
According to Jaya Siva, even child custody cases take eight or nine years to be
settled. The agony of uncertainty involved for the child as well as for the parents may
well be imagined.
49
Much of the delay is attributed to the fact that lawyers have become as much a
part of Family Court cases as of other court cases. The lawyers on both sides seek
adjournments and prolong the litigation. They also obfuscate the issue and introduce
further complications in the case by making additional applications for restitution of
conjugal rights, child custody etc, thereby leading to multiple litigation. Alternatively the
case gets dismissed for want of prosecution because the lawyers are interested only in
filing the case and not in following it up seriously.
The case of Tanzeem, which gained some media publicity recently when the judge
presiding over the Family Court threw a file at her in impatience at the absence of
her lawyer, shows how terrible is the plight of a woman litigant in the Family Court.
Tanzeem is the mother of two children whom she is supporting out of her meagre
earnings of Rs.3000 per month. The case has been going on for three years with
approximately ten adjournments every year. Tanzeem has paid Rs.200 to the lawyer
for every day of attendance. Both her children have serious medical problems
her daughter needs a heart operation which she cannot afford. Tanzeem takes leave
from her job and attends every court hearing because of her anxiety about the
outcome. Her husband never attends, has married again and carries on with his life.
[Agnes 2003(b)]
Even after the Court gives its decree regarding maintenance or alimony, execution
is another matter. If the husband does not honour the execution order delay is incurred by
issuing him a show cause notice. He is also permitted very often by the Judge to make
part payments, despite the difficulties this causes to the woman. Another problem is that
unlike in Civil Court cases, the application for recovery of maintenance under section.
125 of the Code of Criminal Procedure has to be made within one year of the amount
being due. This in effect means that for every year's default in payment the woman has to
approach the court to file a fresh application for execution. It is therefore a usual practice
for the husband to harass the wife by making her come again and again to the court,
incurring fresh expenditure each time to file recovery petitions. Men also avoid payment
of maintenance by taking voluntary retirement, disappearing - or even going to jail!
Employers also collude by not recovering the amount from the employees' salary.
At the meeting of Family Court judges, the judges were bitter about the fact that
they were not given the same facilities as their counterparts in other Courts, (for example,
they do not have the facility of an office car), that the staff was inadequate and that since
50
they were all on deputation the judges did not have disciplinary powers over them and
could not control them easily.
One more case is described briefly to illustrate how the cumbersome processes of
the Family Court punish women.
The litigant is a young women of twenty five years with two small daughters aged four and
two. She has not studied beyond Std VII. Her husband has died recently of AIDS and she
has also been tested HIV positive, having undoubtedly got the disease from him. After her
husband's death her father in law, a well to do man owning several bars and a shop, threw
her and her children out of the house. She stayed in her parents' house for a year and in the
meantime filed for maintenance and a share in the marital property. She also filed for an
interim injunction to stay in the matrimonial home which was granted by the Court. The
execution of the order took some time and in the meantime the father in law tried to delay
the process or even derail it by applying for the initiation of conciliation proceedings.
Finally the court order was executed to the extent of allowing the young woman to enter the
house along with her children. But it was an empty victory
the father in law, mother in law, brother in law and his wife retreated to the first floor of
the house, locked up the kitchen, dug up the floor of the rooms on the ground floor and cut
off the electricity and water supply to the ground floor! The girl and her babies are now
staying in this frightening place with her father bringing her food once a day. And so the
case goes on. [Agnes F, 2003(b)]
In Maharashtra and in one or two other States, agitations by women activists have
resulted in some improvement in the working of Family Courts. However in Karnataka
and in most other States callousness on the part of the official machinery and lack of
interest in ensuring justice for women by enforcing the Act in letter and spirit has resulted
in the Family Courts becoming yet another instrument in the oppression of women. In
fact in some ways women may be worse off after the setting up of Family Courts. The
fact that the formality of a request for engaging a lawyer and for going through a formal
conciliation process, however mechanical, are mandatory according to the Act, provides
reasons for delay which are not part of any other Court proceedings. The inferior
facilities given to these relatively new Courts also contribute to their inefficiency. At the
same time the Family Courts continue to adhere to the lengthy and time consuming
processes and methods of recording evidence of the regular courts.
How can Family Courts be made more effective and fulfil their mandate? Any
51
experienced lawyer can suggest some of the remedies. For instance, one of the
biggest problems has been evasion of notice by husbands in maintenance cases. This
difficulty can be overcome if the court grants an ad interim maintenance amount to
the wife that is, all amount or maintenance is ordered to be paid by the husband to the
wife pending hearing of the application for interim maintenance. This will, most
probably, bring the husband running to the next hearing of the Court.
Similarly, there should be no need to issue a showcause notice to the husband if
he fails to pay the maintenance amount. An execution decree should instead be issued
immediately.
Much court time can be saved if the confirmation of notices and summons is done
at the administration level by the Registry.
It is ridiculous and totally against the spirit of the Act to make the woman
approach the Court for every year's default in payment. Once a recovery petition is tiled it
should suffice for all subsequent recoveries. Section 125 of the Code of Criminal
Procedure should be amended in this respect.
There are differing opinions on the need of lawyers in Family Courts. Most of the
family court judges interviewed in the Majlis study were of the opinion that they are not
required, that they have a vested interest in prolonging litigation and that they play
mischief and sometimes cheat the clients. However many eminent lawyers, including Dr.
Lotika Sarkar, feel that poor and illiterate or semiliterate people, particularly women, will
not be in a position to know what is relevant and what is irrelevant and how best to
present their case. Some kind of legal assistance is required. However for maintenance
cases under section 125 of the Code of Criminal Procedure a simplified format and a help
desk manned by paralegal persons will eliminate the need for a lawyer. Lawyers can
therefore be banned in maintenance cases by an amendment of the Act.
A body of non commercial lawyers should be attached to the Family Courts to
52
assist women litigants. They should be paid reasonable fees commensurate with those of
other lawyers of Family Courts and the fees may be paid out of a Family Courts Fund to
be created for the purpose.
Most of the proceedings, particularly those pertaining to divorce and child
custody, should be held in camera. Two common accusations made against women in the
Family Court are that they are unfaithful (this is invariably made against working
women) or that they are mentally unbalanced. It is difficult to defend oneself against
either of these charges in the open court.
Counselling should be taken seriously. Trained counsellors with a Master's degree
in Social Work and sufficient experience should be appointed. The Family Court judges
as well as the counsellors should be given training in gender issues. The counsellors will
also require training in family law. Counsellors should take care not to re-emphasise
gender stereotypes or the familial ideology; they should strive for gender justice. While it
is undoubtedly an excellent thing if conciliation efforts can set right misunderstandings,
change behaviour patterns and bring harmony into relationships, counsellors should
always keep in mind that a family should not be kept together at the cost of the woman. A
family in which a woman has to put up with humiliation and ill treatment is not only a
bad thing in itself, but also extremely harmful to the children. The counsellors should also
remember that if the difficulties in the marriage were caused by demands for dowry in
any form, then this is a zero tolerance zone and no compromise should be effected.
Divorce proceedings should ensue in such cases as well as criminal action initiated
against those who have broken the law.
NGOs and social welfare organisations of repute should be attached to each
Family Court to assist the judge to ascertain the facts on the ground. For instance in the
case previously mentioned of the young daughter in law and her children shut up in a
house without food, water or electricity and with the floor torn up, it would be easy for an
NGO to physically check the facts quickly and report them to the Court so that the Court
could institute contempt of court proceedings against the father in law.
53
NGOs with paralegal training will also be helpful in giving advice regarding
alternate options and in giving emotional support to women litigants. Since most girls in
India are socialized into considering marriage as the ultimate objective of their life, the
breakdown of the marriage shatters their self-esteem completely. The NGO can help
them to feel confident and in control of their lives. A recent case in the Bangalore Family
Court poignantly illustrates the need for such support
A young orphan girl married a Marwari businessman. The girl's uncle (her
only relative) and the marriage broker had conducted the marriage
negotiations. The day after the marriage her husband demanded a divorce on
the ground that he had just discovered that his wife belonged to a different
caste! The girl agreed to a divorce by mutual consent. She was alone in the
Family Court - the uncle was nowhere to be seen. She did not ask for
maintenance or alimony - obviously shocked by what had happened, she only
wanted to return to her village. A supportive women's organisation attached
to the Family Court would have been of great help to this young girl1.
Family Courts should have good infrastructure so that women feel safe and
comfortable. Clean toilets, comfortable waiting areas, provision of drinking water and
subsidised canteens are minimum requirements. In order to make the Act effective, there
should be Family Courts in every district with circuit courts for the taluks. Counselling
centres with professionally trained counsellors should be set up in every taluk. These
centres should also dispense literature on legal awareness regarding family law.
None of these suggestions is new. The flawed functioning of Family Courts has
come under considerable criticism from women's groups for a long time. Vimochana
had urged for changes in the Family Courts Act and at the instance of the Chief. Justice
a workshop had been held on 2nd April 1991 in which policy makers; activist groups,
the Legal Aid Board and legal experts had participated. The recommendations had been
sent to the State Law department from where they did not re-emerge. Of particular
interest is the section on non-payment of maintenance. The non-execution of the decree,
obtained after such trauma from the Family Court, is the last cruel joke played on the
woman. The last paragraph of the recommendations with regard to a social audit of the
54
Family Courts to be conducted every two years is also to be taken note of since
continuous monitoring of a high standard is the price of effective enforcement of any
legislation.
In order to implement the Family Courts Act in the spirit in which it was
conceived Government will have to invest money as well as effort. Every step must be
taken in consonance with the avowed objective of gender justice - whether it is in
reconciling differences and keeping the family together in a spirit if mutual respect or in
facilitating a quick divorce under conditions of justice and fair play.
1 Communication by Jaya Sivar, counsellor, Family Courts, Bangalore.
55
5. The Criminal Justice System
This chapter will examine how the criminal justice system in this country operates
to ensure that those who cause hurt to the weak and the marginalised are apprehended
and punished according to the law of the land. Although the focus is on domestic
violence leading to the death of women, much of what is said here is applicable to violent
crimes against other powerless groups or religious minorities.
Women's deaths by murder or suicide are in most cases caused by their husbands
and in laws and take place within the marital home. Months or years of abominable
mental and physical cruelty, often by not just one person but by all the persons in the
house, usually presages the death of the woman. Wife battering is not only because of
dowry. A woman may be beaten because the crying of the child disturbs the husband,
because she has not borne sons, because she ‘answers back’, because the mother in law
complains about her, because the husband has drunk too much or for any other reason.
The real reason for wife beating is, of course, that the husband knows that he can get
away with it because it is socially accepted that he has the unquestioned right to beat his
wife. This belief is an article of faith with the police as well and it makes them reluctant
to register the complaint or take action against the wife beater when a desperate woman
approaches the police station with a complaint. The police, instead of doing their duty,
often transgress their limits by advising the woman to return to her marital home and
'adjust' herself to the prevailing condition.
There are sections in the Indian Penal Code dealing with the several kinds of
cruelties a woman may be subjected to in her home. Sections 299 and 300 deal with
culpable homicide and murder. Sections 304-306 deal with punishment for culpable
homicide not amounting to murder and abetment of suicide. Sections 312-318 deal with
causing miscarriage and concealment of death by secret disposal of the dead body.
Sections 319-324 deal with causing hurt, both grievous and otherwise, section 494 deals
with bigamy, sections 309-358 with wrongful restraint, sections 383-389 with extortion
and sections 403-405 with dishonest misappropriation of property and criminal breach of
56
trust. It is not therefore for want of law that the police do not take action when the
husband commits a crime against his wife under any of these sections but because of
culturally induced value systems that hold that the woman is 'below the law' when it
comes to what is euphemistically termed "family quarrels." Besides, the police may be
wife beaters themselves.
Instead of tackling such prejudices, which have nullified legal provisions and
made them inoperative, the Government enacted new laws in 1986, which they hoped
would be sufficient to deal with the problem of cruelty within the marriage. Section 498A
of the Indian Penal Act reads as follows:
“Whoever, being the husband or the relative of the husband of a women, subjects
such woman to cruelty, shall be punished with imprisonment for a term which may
extend to three years, and shall also be liable to fine.
For the purposes of this section 'cruelty' means
a. any wilful conduct which is of such nature as is likely to drive the women to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or
physical) of the woman; or
b. harassment of the woman where such harassment is with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person related to her to meet such
demand.”
The first part of the definition of cruelty in this section does not pertain only to
dowry but refers to any physical or mental cruelty to which the woman may be subjected.
The second part of the definition of cruelty does refer to harassment on account of dowry
demands. Section 304 B is with regard to 'dowry death' the new phrase coined to describe
the deaths of young brides caused by harassment for dowry.
57
Unfortunately the police mindset has not changed after the enactment of the two
amendments. They do not usually take cognisance of the first part of section 498 A. The
only offence in the relationship of husband and wife, which they are willing to recognize,
is that of demanding dowry and harassment due to dowry. Hence it is only if there is a
complaint made regarding dowry that the police swing into action. This is why, although
the woman may have a genuine grievance under the first part of section 498 A, it is only
when she adds, whether truly or falsely, that she is harassed under the second part of the
section that any action is taken on her complaint.
Any new intervention or improvement sought to be made in this state of affairs
becomes problematic because of the dominant ideology regarding family relationships.
Thus Vimochana, an activist women's organisation in Bangalore, sought the
establishment of women's helpline in the office of the Police Commissioner. The idea
was that the helpline would swiftly respond to women's cries for help round the clock
and whenever necessary carry out rescue operations to save women in situations where
they apprehend danger to their lives. There had been a huge response to an
advertisement placed by Vimochana and an overwhelmingly large number of men and
women of all ages and from different walks of life had volunteered to give free service
to man the helpline. However when the helpline was established in the Police
Commissioner's office, the police decided that another agency should operate the
helpline and it soon became yet another counselling centre. There is a serious problem
about establishing such counselling centres in Police Commissioner's offices and police
stations. Women come to the police station only when they are desperate and as a last
resort. If, instead of registering the complaint and taking swift action against the
criminal, they are turned over to a counselling centre, that last hope is eroded. The
counselling centres, whether those in the police stations or those outside established by
the Central Social Welfare Board and other agencies, usually try to keep the family
together and consider a case to have been successfully disposed off if, on the husband's
promise of good behaviour, the wife is made to return to his house. There is no
monitoring undertaken to verify the conditions of life for the woman thereafter. The
most damning discovery about the helpline is that complaints received at the line or
58
handled by the counselling centre are not even linked up as proof of spousal violence
when unnatural deaths occur.
Section 154 of the Criminal Procedure Code describes in detail how a complaint
should be dealt with in a police station. Under the law all information initially given
regarding the commission of an offence has to be written down, read over to the
complainant, signed by the complainant and entered in a case diary. A free copy of the
document has also to be given to the complainant immediately. Everything hinges on this
paper which is called the first information report or FIR. As described above, the police
are slow to act according to the procedure laid down in section 154 when women make
complaint of domestic violence. Under the circumstances the possibility of the police
taking action when someone else reports the matter is almost nil although, since assault is
cognizable crime, the police can take suo moto action. In fact, even when a woman is
brought to the hospital after being grievously burnt, the police very often do not
commence investigation until she dies of her injuries. This may take place several days or
even weeks after the incident, by which time of course all evidence would have been
destroyed and the witnesses primed.
The public hearings organised by Vimochana in Bangalore before the Joint
Legislature Committee and before the Truth Commission in August 1999 where young
women who had suffered marital violence and the parents of girls who had been
murdered or had committed suicide testified in public laid bare for the first time the
endless tales of shocking brutality which these women had to endure. They are perhaps
worse~ than the tortures suffered by the prisoners of concentration camps because many
of them take place in the privacy of the bedroom. Burning with cigarette butts, gangrapc
by the husband and his friends, rape by father in law and brother in law with the
husband's approval, beatings and kicks bringing about miscarriage - these are just a few
of the tortures inflicted on these girls.
In many case the panchayat or the parents of the girls had intervened. However
the interventions did not help as long as the parents of the girl were reluctant to break up
59
the marriage. The deaths of these women can be laid at the door of their parents and the
law enforcing machinery for reluctance to enforce the law.
The paper will focus on the investigation and prosecution of murders and suicides
of women in Bangalore following the path breaking work done by Vimochana in this city
in 1999. However these findings are equally applicable elsewhere. Even in Kerala, where
the demographic indicators with regard to women's status are significantly better than in
other States, deaths of women due to domestic violence are on the increase. In the States
of the north where all the parameters of governance as well as the status of women are
much worse, the administration of the criminal justice system is also correspondingly
degraded.
The first striking fact, which emerged from Vimochana's study, which initially
covered the period 1997-98, is the large numbers of women who they found had been
murdered or driven to suicide in Bangalore city alone during the period of study. The
study revealed that over the two-year period, from January 1997 to December 1998, over
1425 unnatural deaths of women by murder or suicide had occurred in Bangalore. (The
actual numbers may be much higher because of lapses in the data collection by the Crime
Records Bureau. Vimochana has found several cases of burn victims who did not find a
place in the official register of unnatural deaths). These were by knifing, strangulating,
poisoning or burning. More than 70% of the deaths were by burning since this was the
easiest way to destroy evidence. The disquieting fact was that the number of deaths
which emerged ill Vimochana's study was much more than the number shown in the
State police crime records. The cases listed by Vimochana were complete with the details
of each case - the name of the police station, the crime number, the name or the victim
and so on. Police authorities then agreed to get the two sets of data reconciled. Once this
was done they admitted that their own figures were confined to some hundred odd cases
of "dowry deaths" booked under sections 304 B and 498 A of the Indian Penal Code.
Vimochana's list was much larger because they included cases, which the police had
routinely classified and closed as accidents. The implications of the vast difference
between police figures and their own then dawned on Vimochana. The reopening of some
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of these cases by the police after the Vimochana study did in fact reveal that they were
not accidents but suicides or murders.
It is necessary to understand how it is possible to murder young women in their
own homes and to masquerade these crimes as accidents with such ease.
5.1 Preliminary investigation by the police
The law relating to the investigations of an unnatural death is given in sections
174 and 176 of the Criminal Procedure Code. When an unnatural death occurs (that is, a
murder, suicide or accident) the station house officer (SHO) that is, the officer in charge
of the police station, is expected to immediately record all information about the death
and proceed to the scene of occurrence for preliminary investigation. He is also expected
to make a preliminary entry about the section of the law applicable in the first
information report. Initially the case is only entered as an unnatural death or murder
under section 174. If the FIR is not subsequently modified after preliminary investigation
then it can never be converted into an offence under the relevant section of law and action
taken against the offender. The preliminary investigation is of the greatest importance
because it is this which will decide whether the case will be closed as an accident or
whether further investigation will be taken up because of registration of the case in the
FIR as a murder or suicide. It is therefore essential that the preliminary investigation is
done by a well trained and efficient officer. Very often the SHO does not take an active
interest in the matter and a constable or head constable makes the crucial entries which
ultimately determine whether the case will be treated as a murder, suicide or accident.
There is almost no supervision of this very important function by any higher authority
within the police or by independent agencies like the Human Rights Commission or
Women's Commission (who only look at the police statistics of registered cases). The
police constable who does the preliminary investigation has thus got unbridled powers
which are often misused. This explains how about 700 burn cases of young wives were,
during the period of the Vimochana study, closed as "stove burst" or 'kitchen accident'
cases and were not included in the police records as murders or suicides. The parents of
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the victims who gave their testimony before the Joint Legislature Committee and before
the Truth Commission described in graphic detail how their daughters had been
tormented by their husbands and their families and how the police investigation had at
best been casual and at worst a case of criminal collusion with the murderers.
The State Police Manual gives detailed instructions on how the police
investigation is to be done. Police officers are required to study the evidence from the
scene of the crime - the bruises on the body, the materials found, the location of the
body, whether doors and windows are closed or open and other material evidence. They
are expected to photograph the corpse and the premises from different angles. They have
to collect oral evidence which will throw light on the case and help them to determine
whether it was a case of murder, suicide or accident.
It is a fact that police morale is at very low ebb. Most of their time is taken up in
law and order and protocol duties. Detection and investigation of crime receives the
lowest priority unless the crime is committed against a public figure. Domestic crimes -
the murders of women within the home receives the least priority because of the
difficulty in investigating such a crime due to the lack of witnesses, with all the members
of the household involved in the crime in one way or the other, and because of the ease
destroying evidence. Money power and influence also plays large part in closing many
cases as accidents. The police may also be interested in closing such cases as accidents
because the police crime records will show a decrease in the crime rate and the workload
of the police will be less.
It was not only the testimony of the victims before the Truth Commission which
revealed how shockingly bad police investigation is in the case of most of the heinous
crimes committed against women. A glance at the connected files in any Tahsildar's
office will corroborate this. Most police investigation at the all important preliminary
stage is confined to a description of the corpse and a mechanical taking down of the
statements or the husband, rather in law, mother in law, husband's siblings if they reside
with him, the parents of the dead girl and her brothers and sisters. If the girl's parents
state that they had not been harassed for dowry or that they were not aware of any
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harassment of their daughter for dowry, the case is usually closed without further
investigation. The usual lament of the police is "If the parents of the girl have no
complaint, what can we do?" However, it is the duty of the police during preliminary
investigation to find out the truth irrespective of whether there is a complaint or not.
There is no need for a complaint by anybody for the police to make a thorough
investigation of a cognisable crime, such as an unnatural death in suspicious
circumstances, Similarly, although the parents evidence regarding harassment would no
doubt be helpful, the police can come to a conclusion regarding the cause of death from
other evidence, both material and oral. This is what their training and the compulsions of
duty as well as the requirement of justice demand.
In Karnataka the Tahsildar is the Executive Magistrate empowered by the State to
conduct inquests. A copy of the record of the preliminary investigation into the unnatural
deaths of young women is retained in the Tahsildar's office. Even a cursory glance at
these records will disclose the shockingly inept if not callously criminal manner in which
the preliminary investigation is done. An example is the case of the death by drowning in
a village in Karnataka of a young married girl within a few months of her marriage. She
was said to have drowned while washing clothes on an embankment of the river. As usual
the record of the investigation consists of the description of the body and the recording of
the statements of her parents and siblings and those of her husband and husband's familyall
in the same style, as though they were filling out a printed form. Nowhere in the
papers is there any evidence recorded of whether the girl usually went to wash the clothes
alone or with friends, as is usual in a village. None of the friends or the neighbours have
been interrogated. The records do not disclose whether the investigating officer even
visited the scene of occurrence and examined whether it was) in fact, possible for the girl
to have fallen from the embankment and drowned. On the basis of the statements of the
husband's family and because the girl's parents did not state there was a dowry problem,
the case was closed without further ado as an 'accident'. In several cases the girls are said
to have committed suicide because of stomach ache. The police do not seek corroborative
evidence as to whether they had seen a doctor for the stomach ache and what the doctor's
prognosis was. In many cases of death by burning, the incident occurs at two or three in
the morning when it is impossible that any cooking is being done. Very often the police
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close the case as an 'accident due to stove burst' without even seizing the kerosene stove.
I n some cases women' s organisation have shown that there was no kerosene stove on the
premises and the cooking was habitually done on gas. At the time of the public hearings
before the Truth Commission the parents of murdered girls have stated that the police had
not even recorded the statements of eyewitnesses to the crime and the eyewitnesses
confirmed this before the Commission.
The parents of the dead girl do not, very often, accuse the husband and his family
of bad behaviour because the girl may have died so soon after her marriage that they,
living in a distant village or in another State, may not be aware of their daughter's
torments. Girls also try to spare their parents the details of their suffering for as long as
possible either because of affection or because they hope that matters will improve after a
while. The parents may also not complain of harassment by the son in law if he is related
to them (as in the case of a girl marrying her maternal uncle or cousin) which is often the
case. If the death occurs in a village, the husband's community often closes rank behind
his family and the girl's parents, as strangers, feel threatened. Parents are also, shockingly
enough, 'purchased' by their daughters' murderers on condition of silence. Perhaps the
most important reason for the parents' reluctance to press the case is the wretched
hopelessness to which they are reduced and their reluctance to get embroiled in the
painful ordeal of police investigation and the long processes of the court when they have
little faith that the criminal justice system in this country which ultimately deliver justice
to their daughter.
Another problem with police investigation is that the police are fixated on the
second part of section 498A and on section 304B of the Indian Penal Code to the
exclusion of all other sections in the case of violent crimes against women. In many cases
they do not appear to realize that other sections of the Indian Penal Code such as those
dealing with murder, culpable homicide, causing hurt and abetment of suicide can also be
applied to crimes against women or that women, young and old, can be killed for reasons
other than dowry. Hence if the evidence does not disclose that there was a problem
regarding dowry the police are apt to exonerate the husband and close the case as one of
suicide or accident.
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A story narrated by the Deputy Director, Women and Child Development Department,
Chikmagallur at a recent meeting of Deputy Directors of that department illustrates this
point. He stated that a member of a Stree Shakti group, (a self help group of women
promoted by the Karnataka Government) who was a young girl of eighteen, had married a
man from another village. She was a bright girl who had undergone several rounds of
training on women's 'empowerment' and had won prizes at taluk level debates on dowry.
She protested against the marriage when her parents gave dowry to the groom's people
according to custom, but to no avail. Within a few days of the marriage and before the
marriage pandal was taken down in her house, the girl was dead. Her husband and his
family stated that she had committed suicide because of 'depression' and because of
pressure from them and from the villagers, the police accepted this version of the story
and were ready to close the case. However, representations from the Stree Shakti group to
the Deputy Commissioner and the Deputy Director, Women and Child Development,
disclosed that the girl had been raped by her father in law and murdered, perhaps because
she refused to be silent about the violation. The case has since been re opened.
The Government has, in an effort to improve the investigation into "dowry
deaths” issued orders that these deaths should, in Bangalore, be investigated by an
Assistant Commissioner of Police and in the districts should be entrusted to a special cell
set up in the Corps of Detectives. In practice however the Assistant Commissioner of
Police is too busy with other routine duties to do more than generally supervise the
investigation. The special cell in the COD is also not superior to the rest of the
investigative apparatus and very often does not get the co-operation of the local police.
Moreover and this seems to have been over looked while issuing these orders, the
Assistant Commissioner of Police and the Corps of Detectives will enter into the picture
only after the preliminary investigation is over and only if, after the preliminary
investigation, the FIR is filed citing relevant sections of the law to show- that a
cognizable offence has been committed. If, on the other hand, the preliminary
investigation is done at a lower level in the unprofessional, criminally negligent manner
described above, the cases will be closed at that stage and neither the Assistant
Commissioner of Police nor the Corps of Detectives will enter the picture. They do not
even supervise or monitor the preliminary investigation. This explains the large
discrepancy between the number of murders and suicides of women recorded in the study
of Vimochana and the number indicated in the police records.
5.2 Dying Declaration
In the absence of other witnesses, conclusive proof can be sought from the victim
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herself, if she lives long enough to give her evidence. Criminal jurisprudence is built
around the fact that a dying person is most likely to tell the truth. The dying declaration
of the victim - most often a burn victim - has therefore much value as evidence in the
court of law. Detailed instructions have been laid down in manuals as well as in case laws
as to how dying declarations are to be recorded. The declaration should be voluntary, the
dying person should be in a fit state to give the statement and it should be signed by her.
The police have to record that the declaration is voluntary and the doctor has to certify
that she is fit to give it. However the terrible truth about women dying of domestic
violence is that they very often exonerate their murderers even on their deathbeds. This is
usually because of fear for their little children, left behind in the husband's family, or for
their old parents. Sometimes, unaware that they are going to die, they exonerate their
husbands because of the fear that they will have to return to the same household. Later,
when they realize that they are going to die, they give another statement accusing the
husband and his family of killing them. However judges, unaware of the realities of the
situation, often do not accept the second declaration as evidence. It is the sad fact of
domestic violence ending in murder, where it is so hard to obtain evidence, that even the
evidence of the victim herself often helps to exonerate the criminal, not to punish him.
Besides this, there are many cases where all the provision regarding recording of
the dying declaration are deliberately violated by corrupt police officials and doctors to
help the murderers. The declaration is often not voluntary but obtained under coercion.
The dying woman is threatened that her children will be harmed or that a case of
attempted suicide will be foisted on her if she does not put her thumb impression to the
statement exonerating her husband and in laws. Sometimes the thumb impression is taken
on a blank piece of paper or from a dead or comatose body. Instead of allowing the
victim privacy while recording the dying declaration she is surrounded by hostile and
threatening members of her husband's family and by policemen in uniform. In this
manner the dying declaration is very often used not to convict the criminal but concocted
to acquit him.
5.3 Medical evidence and post-mortem
Forensic and medical evidence can provide valuable insights into the cause of
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death, particularly in the case of death due to domestic violence when murders are so
often camouflaged so as to appear like accidents or suicides. Vimochana has held
meetings with leading forensic and medical experts who have demonstrated the best
techniques for establishing whether the injuries are accidental, self inflicted or otherwise.
It is important that medical and forensic evidence must be gathered immediately after the
body is discovered. Unfortunately this is never done.
Under the law medical evidence must be produced to determine the cause of death
when an unnatural death occurs. The Code of Criminal Procedure was amended in 1983
to make post-mortem mandatory in cases where a woman has committed suicide within
seven years of her marriage or where the woman has died within seven years of marriage
and a relative of the woman makes a request for post-mortem or there is reasonable
suspicion that some person had committed an offence in relation to the woman. There are
detailed procedures laid down in medical and police manuals as to how post-mortems are
to be done. Unfortunately these are often ignored in practice. The police often delay in
sending bodies for post-mortem. Post-mortems are only done in Government institutions
because private hospitals refuse to do them. The facilities in most of the' Government
hospitals with regard to transport of bodies, storage in mortuaries and conducting the
post-mortems are primitive. For instance many taluk hospitals do not even have
mortuaries. The doctors delay in conducting the post-mortem and in sending the reports.
Sometimes the post-mortem reports are received by the police after several months.
There is a general disinclination among doctors to do post-mortems because it is
an unpleasant task with potential for prolonged legal harassment through court
appearances. For these reasons, doctors often get post-mortems done through untrained
lower functionaries.
The post-mortem reports are often perfunctory and do not clearly indicate the
cause of death. Vimochana has seen several cases where there were major differences in
the record of injuries maintained by the police, by executive magistrates and by medical
officers. Such discrepancies are exploited to secure the acquittal of the accused when the
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case comes up for trial. Unfortunately post-mortems are not supervised or culpable
medical officers punished in these cases.
5.4 Inquest
Existing criminal procedure does take note of the need for external monitoring of
police investigation, particularly in cases relating to deaths in police custody or when it
relates to the suicide of a woman within seven years of marriage or the death of a woman
within seven years of marriage under suspicious circumstances or when a relative of a
woman dying within seven years of marriage makes a request in this behalf. The external
monitoring is done by holding an independent inquest by the Executive Magistrate. The
sole purpose of the inquest is to ascertain the cause of death. Section 176 of the Code of
Criminal Procedure describes the powers of the Magistrate while holding the inquest. He
has all the powers which he would have in holding an enquiry into an offence and can
summon witnesses and record evidence.
The inquest, if done properly, could be a check on the preliminary investigation
done by the police. Unfortunately the Government of Karnataka, and probably most other
State Governments, have not notified rules for sections 174 and 176 of the Code of
Criminal Procedure to give detailed guidelines regarding the manner in which the
Executive Magistrates are to hold inquest. The result is that the Executive Magistrates,
who consider inquests as unpleasant additions to their normal duties, simply follow the
lead of the police and sign on the dotted line. There is absolutely no independent enquiry
or monitoring by the Executive Magistrate.
The procedure followed at present in Karnataka is as follows: As soon as the
officer in charge of a police station is informed of an unnatural death occurring within his
jurisdiction, he informs the Executive Magistrate (normally the Tahsildar). In the case of
unnatural deaths of young married women, the Magistrate proceeds to the place where
the body is lying and examines it, recording in the statement the injuries on the body.
There is often some delay in doing this because the Magistrate may not be available since
he is an officer of the revenue department and has many other duties. He is also a touring
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officer and may not be available in head quarters. The police justifiably complain that the
non availability of the Executive Magistrate delays the holding of the inquest and sending
the body for post-mortem.
The Executive Magistrate is unused to police procedures and out of his element
while conducting the inquest. Besides this, examination of a dead body, and that too of a
young woman, for marks of injuries is an acutely painful and embarrassing exercise for
him. He will therefore most often merely put his signature to the statement already
prepared by the police after examination of the corpse. The examination of the witnesses
by the Executive Magistrate is also done in a perfunctory manner by recording the
statements of the dead woman's parents and siblings and those of the husbands and his
parents in exactly the same manner in which the police have done in their preliminary
investigation. In fact the statements are very often exactly the same, word for word, being
nothing but copies of each other. A sketchy report is then prepared (often by the police)
and signed by the Executive Magistrate.
In the absence of guidelines and training the Executive Magistrate is totally at sea
and the inquest provides no mechanism for external monitoring of the preliminary
investigation to enquire into the cause of death. In addition, Executive Magistrates are as
corrupt as the police and the medical officers and as likely to collude to protect the guilty.
A national newspaper had reported in October 2003 about the strictures passed by the
High Court of Karnataka against a Tahsildar for refusing to record the dying declaration
of a woman and thus helping to secure the acquittal of her murderers.
5.5 Judicial process
In the small proportion of cases where the police succeed in filing a charge sheet,
the case will normally take seven or eight years for conclusion of the trial. The conviction
rate is abysmally low at about 29%. The reasons are manifold and vary from poor quality
of investigation to witnesses turning hostile. The long delay in the court allows ample
time for extraneous influences to play on the witnesses both in the form of blandishments
and threats. The feelings of shock and righteous indignation are bound to wane in eight
years, rendering the witnesses susceptible. Moreover, they may genuinely forget the
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details of what they saw or heard, giving room for a clever defense lawyer to pick holes
in their evidence. It is the duty of the public prosecutor to prepare the witnesses in
advance just before the trial and go through their statements with them, but he is often
remiss in doing this, with catastrophic results (The public prosecutors blame the police
for not bringing in the witnesses well in time for the prosecutors to help them to refresh
their memories.) In addition the public prosecutors are often no match for defence
lawyers, not being equally motivated and burdened with a plethora of different types of
cases.
The paper has attempted to depict how the Government, in recognition of the fact
that women are often subjected to abuse and cruelty in the marital home, sometimes
resulting in their death, that the number of such deaths are on the increase everywhere
and are often not even part of the official police records, has amended the Indian Penal
Code, the Code of Criminal Procedure and the Evidence Act to ensure that domestic
violence is recognized as a crime and to improve the investigation into the deaths of
women due to domestic violence. However, twenty years after these amendments, it is as
easy as ever for a family to murder its women with impunity and the number of such
crimes continues to increase, as admitted by the police themselves. As explained above,
lack of concern or understanding of the serious lacunae in police investigation and
inquest, absence of monitoring or accountability, lack of attention to detail, insufficient
budgetary and administrative support for more scientific investigation by the police,
criminal negligence, corruption and criminal collusion by all concerned, as well as public
apathy, have ensured that the law is rendered ineffective.
What is the remedy?
5.6 Recommendations for change
Improvement of police attitudes and methods is essential for effective punishment
of brutal spouses and their families. The following measures should be taken with regard
to police investigation:
1) A responsible senior officer should be entrusted with the preliminary investigation
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which will determine the section under which the unnatural death is classified -
whether as an accident, suicide or murder.
2) The power to take cognisance of an offence must be actively exercised by the
police whenever there is incontrovertible physical proof of violence.
3) A forensic and medical team should accompany the police officer to the scene of
occurrence in order to help him to do a quick and scientific preliminary
investigation according to the provisions in the Police Manual. Evidence from
the scene of crime as well as oral evidence should be collected with the objective
of arriving at the truth, irrespective of whether the parents of the victim complain
about harassment or not. The preliminary investigation should be videotaped.
4) The police should adopt appropriate behaviour to encourage witnesses and
victims to testify courageously.
5) The procedure prescribed for recording dying declarations should be followed
scrupulously. The recording should be done in private, in a calm atmosphere and
after reassuring the victim, after obtaining the certificate regarding fitness from
the doctor and after removing all interested parties from the scene.
6) Monitoring and review must be based on the unnatural deaths of women and not
just dowry deaths. The monitoring should be done for the preliminary
investigation, inquest proceedings, and classification of the death, further
investigation and charge sheeting. The progress in the court should also be
monitored. The investigating officer, the Executive Magistrate, the doctor
performing the post-mortem and the public prosecutor should all be made
accountable for lapses.
7) The inquest procedure requires to be radically changed. The mistake has been in
the present procedure of conducting the inquest alongside the police investigation
at the scene of crime. Inexperience and poor knowledge of investigative
techniques have made Executive Magistrates ineffective in countering the
conclusions drawn by the police from the examination of the dead bodies. The
inquest as conducted at present has only served as a nuisance factor to delay the
conduct of the post-mortem. The remedy would be to conduct the inquest, not
along with the preliminary police investigation, but as a separate quasi-judicial
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enquiry in an open court, as near the scene of occurrence of the incident as
possible, one week after information regarding the death is received. The
preliminary investigation report of the police and the post-mortem report will be
placed before the Magistrate in the open court as part of the inquest proceedings.
The Magistrate can examine the police officer and the doctor who conducted the
post-mortem. He can also summon and examine other witnesses if he feels they
can throw light on the case. AI time limit of one or two days should be fixed for
completing the inquest and pronouncing the findings in the open court. After
weighing all the evidence the Magistrate conducting the inquest will give his
considered finding as to whether the death was due to murder, suicide or accident.
Further police action should be taken only on the basis of the findings of the
inquest.
There are several obvious advantages in following this revised procedure for the
inquest. The unlimited discretion enjoyed by the police at the junior most levels today to
cover up cases of domestic violence will be removed. All unnatural deaths of women can
be monitored at one forum since no case can be summarily filed away by the police
without a magisterial order. The inquest becomes an occasion for an external agency and
the public to assess whether an investigation (including medical and forensic
examination) has been thoroughly done and all relevant witnesses examined. It also
ensures that the post-mortem is done on time and the report submitted since the postmortem
report is examined at the time of the inquest. Since the proceedings are held in
the open court members of the public and the media will be able to assess whether the
various functionaries have done their work properly. It also ensures that major reports
become part of the public record; copies or the first information reports, post-mortem
reports and the inquest report itself can he obtained by any person from the Executive
Magistrate's office itself. This will introduce much required transparency into the
proceedings and will be a major achievement since the study by Vimochana has shown
the difficulty faced by the victim's family in having access to crucial papers as well as
information about the progress in police investigation.
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The inquest proceedings should be subject to judicial review. This as well as
public vigilance is required to ensure that the inquests are conducted properly.
All these changes in the inquest procedure do not require statutory amendments
since one of them contravene the legal provisions already existing. They can be covered
by the rules under sections 174 and 176 of the Code of Criminal Procedure which the
State Governments are competent to frame. The Karnataka State Government is in fact
expected shortly to notify the rules on the lines indicated above.
8) Once the rules are framed for sections 174 and 176 of the Code of Criminal
Procedure, intensive and continuous training of police officers and Executive
Magistrates should be made mandatory.
9) Post-mortems should be videotaped to ensure greater transparency and
accountability.
10) A delay of seven or eight years in the court is an intolerable burden on the parents
of the dead girl. A large number of fast track courts may be one answer to the
problem. The public prosecutor should be held accountable for the proper
preparation and presentation of the case. Witnesses turning hostile are an everpresent
problem in Indian courts and a number of solutions are suggested,
including taking cognisance of statements made before the police and witness
protection measures. One solution may be taking into cognisance the statements
made by witnesses in the inquest, the fact that it is held in an open court would
preclude any possibility of coercion. The other suggestion is that it may be worth
considering a change from the adversarial prosecution methods we have inherited
from the British to the French criminal jurisprudence system. In the British
system the State is pitted against the alleged criminal and the judge is not
expected to seek the truth but to treat both parties on an equal footing and
evaluate their evidence and arguments objectively. The case for the prosecution is
often deliberately lost by presenting inadequate and contradictory evidence,
suppressing crucial testimony and through indifferent arguments. As a
consequence criminals (especially those who can afford expensive legal support)
escape unscathed. In the French system the judge plays a more active role; he is
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not a mere arbitrator between two opposing parties but a seeker of the truth. He
can ask questions, call witnesses, demand the collection of fresh evidence and do
all he can to ascertain the truth. In India disadvantaged groups like women may
have a greater chance of securing justice if the French system is adopted.
However there is always the danger that a judge with such unbridled powers may
misuse them. Judges also should be made accountable.
11) In the final analysis it is the role played by public bodies, citizen's groups and
voluntary agencies, which can ensure effective administration of justice. While
strong campaigning by activists does help, sustained results are possible only if
the system itself provides a legitimate role to these bodies so that they can have a
continuous catalytic and monitoring role.
There are several areas in which voluntarily agencies and committed citizens can
be integrated into the system.
i. they can be provided a 'help desk' in police stations so that they can advice
complainants who visit police stations or their rights as well as of police
procedures.
ii. they can accompany the police - medical officer - forensic expert investigating
team at the time of the preliminary investigation and ensure that preliminary
enquiries are done properly.
iii. they can work closely with legal aid and services authorities to create
awareness and provide additional support to victims and their families
iv. they can serve on monitoring committees set up within the Government to
review progress in prosecuting and convicting cases of domestic violence
v. they can be given financial support, wherever required, in setting up
neighbourhood groups to prevent domestic violence.
vi. they can monitor what happens to the victims of domestic abuse who on the
advice of counselling centres, return to their husbands' house.
12. There are one lakh women's self help groups in Karnataka. Most other States
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also have a large number of women's self help groups. These groups should be
encouraged to discuss issues such as domestic violence and atrocities against women.
They should be instructed on the legal position with regard to these matters and
encouraged to evolve strategies to counter such atrocities. A network of strong
women and vigilant citizens will best protect women against violence and help to
bring the criminals to justice if atrocities take place.
The criminal justice system in our country is in bad shape and needs to be
overhauled. In addition to the difficulties already described, some of the principles of
criminal law in this country make it difficult for the State to secure a conviction. The
system bends over backwards in protecting the rights of the accused. Even the faintest
possibility of the infringement of any of these rights sends the defence lawyer running in
appeal to the High Court, which results in further delay in deciding the cases in the lower
court. Three principles of our judicial system in particular protect the accused in a
criminal case: (1) the accused is presumed to be innocent till his guilt is proved (2) proof
beyond reasonable doubt is required and (3) the accused enjoys the right to silence or
total denial. The burden is therefore entirely on the State to prove the case against the
accused. In the European system the accused has to disclose his defence at the earliest
possible time and does not have the right to silence.
While our criminal justice system protects the rights of the accused assiduously,
the victim has few rights. The defence lawyer is permitted by the court to ask the victim
irrelevant and offensive questions with intention to harass and humiliate her and to delay
the proceedings. Rape victims, in particular, undergo a trauma almost as bad as the rape
itself by being forced to suffer brutal cross examination, often with aspersions on their
sexual conduct and character. The delay caused by frequent adjournments on the request
of the defence lawyer is also a denial of justice to the victim.
Certain pragmatic steps can be taken, as in other countries, to reduce delay in the
court. A pre-trial conference of the judge, the prosecution and the defence is one of them.
Here differences may be narrowed down so that the trial will be confined to what is
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disputed by the defence.
Witnesses turning hostile are a major problem in our system. In about 80% of
the criminal cases witnesses turn hostile, making it difficult for the prosecution to
prove the case, Witnesses rarely turn hostile in the European criminal justice system.
A Witness Protection Act should be enacted and enforced. Statements before the
police should be signed by the witness. In case of heinous crimes the statement given
before the police may be videographed. If witnesses turn hostile, action should be
initiated for perjury by amending section 340 of the Code of Criminal Procedure.
The Government has to give more attention to effective and scientific
investigation into crimes. A four-tier structure of forensic experts should be established at
police station level, district level, range level and State level. DNA centres should be
established at State and district levels. Most important, each police station should be
tagged on to a Crime Response Team as in the United States, so that forensic experts are
on the scene of occurrence right from the preliminary investigation stage. Police officers
should be specially trained in criminology and in detection and investigation of crimes.
The entire investigation and prosecution apparatus should work together to bring
the criminal to justice. At present each is only interested in blaming the other for the
failure to obtain conviction of the accused. There should be continuous interaction
between them and joint monitoring of cases in order to learn from mistakes and prevent
then in future.
It is not only the law and court practices which protect the criminal; the
corruption that prevails in every branch of public service and in all sections of society is
the greatest obstacle to securing justice for the marginalised and powerless. The post of
court constable is a sought after post because money can be made by masquerading the
wrong persons as witnesses and by doing other mischief. However, as explained, earlier
corruption as well as buckling under undue influence are to be seen in every stage of the
investigation and court processes - the police, the medical officers, the executive
magistrates, the court clerks and the public prosecutors. If even one of these agencies is
76
corrupt or does not work with sincerity the case will fall through. It is therefore not
really surprising that the conviction rate is so poor. The fact that the conviction rate in
India is less than 30%, whereas it is more than 80% in European countries is sufficient
indictment of the criminal justice system in this country.
It is the first duty of the State to protect its citizens - especially those who cannot
take up cudgels on their own behalf. There can be no real equality or enjoyment of
rights unless there is freedom from fear and faith in the State apparatus for keeping and
enforcing the law and ensuring justice. The State has to keep its promise under the social
contract. It is not the intention of this paper to go into a long discussion of how the
criminal justice system should be improved in order to protect human rights. This has
been sufficiently discussed in other places and excellent recommendations made by the
National Police Commission, the Rebeiro Report and various Law Commission Reports,
particularly those of 14, 40, 41 and 154. The Malimath Report (2003) is the most recent
in this connection. The Government, both at the Centre and the State, has to now with
strength of will and purpose, implement these recommendations. It has to invest
thought, energy and money in reforming the investigative and judicial machinery so as
to ensure that crimes are not committed against the disadvantaged with impunity.
77
6. Why Is Social Legislation Not Being Enforced?
After a century and a half of fighting for legal enactments for the protection of
women and for granting them equal rights, many women's rights activists have become
disillusioned with the ability of the law to ensure the enjoyment of those rights by
women. The law, they feel, is too rigid to understand the complexities of women's lives.
The process of litigation is long, expensive, complicated and oppressive for women
emotionally, physically and financially. Even after obtaining a decree, the execution of
the same is another long and traumatic process. Justice for women under the criminal
justice system is also almost impossible to secure. In addition, there is no protection for
women, who face harassment or the threat of violence in the workplace, school or
college, street, public transport, place of entertainment or in the home.
Many women activists are therefore turning to alternative justice delivery systems
such as the nyaya panchayats or mahila adalats to resolve conflicts. However such
informal bodies are only as good as the persons composing them. In some cases they are
able to evolve strategies for securing, if not absolute justice according to the law, at least
an honourable compromise which will enable the women to live with some peace or
mind. The sad truth is that many women, who arc victims of violence and aggression, do
not seek justice, but only a way of survival. The nyaya panchayats and Mahila adalats
can, in some cases, help to evolve strategies and compromises for survival.
However such informal bodies cannot help to enforce social legislation. There are
very few cases where the aggrieved party files a complaint in the police station or in the
court against those who violate the provisions of social legislation such as the Child
Marriage Restraint Act, the Prenatal Diagnostic Techniques (Regulation) Act, The
Prevention of Immoral Trafficking in Women & Children Act or any of the other
enactments of social legislation. Most of the court cases pertaining to the Dowry
Prohibition Act are with regard to dowry deaths and very few are connected with the
demand for dowry, although this is prohibited under the Act. The reason is not far to seek
- the aggrieved party in the case of social legislation is usually too helpless and weak to
78
file a complaint. The foetus, which was aborted because it was female, the woman or
child sold into prostitution and sexual slavery, the little girl given in marriage - these are
not persons who are in a position to give a complaint. It is for the State to enforce social
legislation by taking proactive steps to apprehend, with the help of both the law enforcing
machinery and the general public, those guilty of breaking the law. The fact that there are
hardly any cases pending in the courts of the land against those who have perpetrated
these offences shows that these proactive measures have not been taken.
.
One reason for the State's failure to enforce social legislation by convicting the
guilty under the law is the fact that most enactments of social legislation have been done
under pressure from social reformers and women's rights activists. The Government
obtains mileage from enactment of social legislation because it helps to project an image
of progressiveness and liberal mindedness. However there is not sufficient or objective
analysis done before enacting social legislation. There is no understanding or
appreciation of the traditional beliefs or prejudices behind some of the practices which
the legislation seeks to abolish. In fact, even though the legislation is almost invariably
enacted in response to demand from women activists, the sections of the law are very
often not in accordance with the demands of the activists. Even the recommendations of
the Law Commissions and Joint Committees of Legislature sometimes do not find a place
in the enactment. The process of law making is therefore not sufficiently participatory.
The resultant legislation is often toothless and does not address the real issues. An
example is the Dowry Prohibition Act, 1961 which was a totally effete piece of
legislation in its first incarnation. It was amended twice thereafter after persistent
demands by activists. However even at the time of amendment, important
recommendations of the Joint Legislature Committee were ignored and continue to be
ignored. No in depth analysis of this social custom was done while enacting the
legislation and there was no recognition by the Government, or even by the activists, of
the real reasons for the continuation of dowry. However the point is being made that the
initial legislation was perfectly useless and it was only after twenty years, and after much
energy and time had been spent by the activists in campaigning for amendments, that any
improvement was made in the legislation. Even now it is far from perfect and does not
79
address the crux of the problem.
The Dowry Prohibition Act, 1961 may have been purely ornamental but there is
some legislation- or proposed legislation - which would do more harm then good to
women. An example is the Protection from Domestic Violence Bill, 2002 which was
meant to honour India's commitment to the Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) by recognizing domestic violence as
discrimination against women. It was also recognition of the demand of the women's
movement for a civil law on domestic violence as there was a realization that the criminal
laws do not adequately serve the needs of women. In 1998 the Women’s Rights Initiative
of the Lawyers Collective drafted the Domestic Violence to Women (Prevention) Bill
(the "LOWRI Bill") after detailed discussion with various women's groups. This Bill was
modelled on the United Nations Framework for Model Legislation on Domestic
Violence. The LOWRI Bill clearly and comprehensively defined domestic violence as
any act, omission or conduct which is of such nature as to harm or injure or has the
potential of harming or injuring the health, safety or well being of the person aggrieved or
any child in the domestic relationship and includes physical abuse, sexual abuse, verbal
and mental abuse and economic abuse. The terms physical abuse, sexual abuse, verbal
and mental abuse and economic abuse are also comprehensively defined so that a woman
can effectively claim relief under the proposed law when faced with domestic violence
and no judge will be able to say that since marital rape is not an offence in India, a
husband cannot sexually abuse his wife. The Bill also covers a wide range of women,
who, if in a "domestic relationship" with the respondent, could avail the relief mentioned
under the proposed law. The LOWRI Bill also provided for a very wide range of reliefs
that a woman facing domestic violence can claim. She can get a 'no domestic violence'
order from the judge against the perpetrator and also claim a right to residence in the
shared household, temporary custody of her child, maintenance, return of her stridhan,
compensation for injuries suffered and so on. These orders could also be passed adinterim
and ex parte. The LOWRI Bill also provides for the appointment of "Protection
Officers" through a transparent mechanism who shall assist the woman in tiling her case
and implementing the order of the court.
80
When, after much pressure from the women's groups, the Government of India
introduced a Bill on domestic violence in the Lok Sabha (Bill no.133 of 2001), titled the
Protection from Domestic Violence Bill, 2001, it invited sharp criticism from the
women's movement. The Bill is not just unhelpful but actually dangerous in its
implications for women as it not only fails to define domestic violence to include
economic, mental and sexual violence but goes on to imply that if the assault on the
woman is not habitual, it is not domestic violence. The meaning of 'habitual' is left to the
imagination or judicial interpretation. As if this was not enough, the Government of India
Bill provided for a right to self-defence to the perpetrator of violence and also a right to
inflict hurt on a woman in defence of property! There were many problems with the Bill
ranging from its definition of domestic violence to the relief granted, to the provisions
establishing protection officers. It contained no provision for a right to reside in the
matrimonial home. It also contained a provision for the mandatory counselling of the
aggrieved woman. It is accepted by the Government that domestic violence is
discrimination against women and a violation of human rights. Yet this human right is
being undermined in the proposed law itself.
Fortunately there was much public protest against the Bill and women activists
were successful in getting the Bill referred to the Parliamentary Standing Committee for
the Ministry of Human Resources Development. After holding hearings with women's
groups and organisations and various institutions and NGOs, the Committee submitted its
recommendations to the Parliament. The recommendations contain most of the provisions
or the LOWRI Bill. Parliament is yet to pass the law on domestic violence.
This rather long description of the history of the Bill on domestic violence is
given in order to portray the various forces involved in the passage of a law and how
social legislation for women, if not drafted by those who strongly believe in gender
equality and human rights, can have disastrous consequences.
Since as explained earlier, the State has to be the primary agent for enforcement
of social legislation, the Government, while enacting the law, will have to set up the
81
mechanism for enforcing it. This includes a separate provision of budgetary support,
which should be included in the legislation itself. In the absence or an enforcing
mechanism and budgetary support, it cannot be assumed that the Government is serious
about enforcement of the law. For instance, the Dowry Prohibition Act provides for the
establishment of Dowry Prohibition officers. However there is no indication of the
powers of these officers or guidelines regarding their duties. There is no budgetary
support for their training, for execution of their duties or for giving publicity to the
provisions of the Act.
Another example is the Child Marriage Restraint Act, one of our oldest Acts and
still violated in most States, including Karnataka. In spite of the fact that this is one of the
grossest infringements of human rights, the Government has set up no mechanism to
enforce the Act. It is only when minors are included in mass marriages, which are
invariably inaugurated by senior politicians, that the resultant bad publicity in the media
forces the Government to acknowledge the fact that child marriage continue to take place.
Many enactments of social legislation, particularly those pertaining to women, are
inter-linked and they cannot be enforced unless these linked enactments or supportive
policies of the Government are successfully implemented. For instance, in order to
enforce the Child Marriage Restraint Act the Government should make it mandatory (and
position the infrastructure necessary to make it a reality) that all girls should be educated
till the age of eighteen, which is till class 12. This will not only help to enforce the Act
but also achieve many other purposes. Similarly, the fact that Government has not taken
any proactive measures to help women claim equal property rights with their brothers,
certainly comes in the way of the successful enforcement of the Dowry Prohibition Act.
Social legislation cannot be enforced in the absence of strong supportive
institutions. Where are these institutions? For instance, the causes for much domestic
violence and misery as well as for the desertion and consequent destitution of women and
children is bigamy. However in the absence of the compulsory registration of all
marriages, it is very easy for women to be cheated. Similarly the efficient and
compulsory registration of births is required to enforce both the Child Marriage
(Restraint) Act and the Act prohibiting and regulating child labour.
82
To sum up, social legislation is very often enacted to please a pressure group and
without sufficient seriousness of purpose. In the West if laws are enacted, they are
expected to be obeyed. In order to held do this, they build the connected enforcement
strategies and allocate the required resources. But in India it is almost as though nobody,
including the Government, really expects the law to be obeyed. In. Raja Ram Mohan
Roy's time social legislation, such as the law against sati, may have been enacted
primarily with an educational purpose. But we are no longer under a foreign ruler and it
is our own duly elected Government which has passed the law. The Government should
pass laws carefully, after due consultation, and should set up the mechanisms and provide
the resources to enforce them.
.
The laws are also not based on clearly expressed social policies. The Government
has not enunciated a clear gender policy or human rights policy, which it then seeks to
implement seriously with all the resources at its command.
In addition to having no mechanisms for enforcement, there are no mechanisms in
place for monitoring the enforcement. The monitoring of the enforcement of social
legislation pertaining to women is ultimately the responsibility of the district officers of
the Women and Child Development Department. These deputy directors have to
implement the schemes of the department pertaining to the development of women as
well as children, including the prestigious Integrated Child Development Services
Scheme. In addition, they have to implement the income generating and entrepreneur
development schemes of the Women's Development Corporation as well as the schemes
of the Disabled Welfare Department. In all they have some forty schemes to implement.
In addition, they have to attend the meetings of the Zilla Panchayat and the Deputy
Comm:ssioner and do the tasks allotted to them by the Deputy Commissioner or Zilla
Panchayat. They also have to attend meetings called by the head of the Department, the
District Minister, the Department Minister and local authorities. To expect them to
monitor the enforcement of all the laws pertaining to social legislation without any
guidance or support whatsoever is expecting too much. In fact it is not really expected.
The National and State Women's Commissions can take on some of the
responsibility for monitoring. However these, particularly the State Women's
83
Commissions, are not strong organisations and their powers are not clearly laid down. In
addition these organisations are only as good as the persons nominated to them. Very
often the persons nominated are not those with knowledge and long years of experience
in working in the field of women 's rights or human rights but are political appointments.
The women's groups and NGOs who campaigned to get the Acts passed do not
usually remain in the picture thereafter to ensure successful implementation. Participating
in a fierce campaign for a short period is relatively easy; it is also exhilarating. When the
Act is passed, even if it is not quite in the way the women’s groups wanted it, there is a
general feeling of euphoria. However, monitoring the enforcement requires long,
sustained effort and in the face of Government apathy and lack of public interest, it can
be frustrating and heart breaking. Women's groups are however now acknowledging that
such sustained effort, which will involve following up of individual cases, interacting
with Government officials, articulating complaints when required, providing legal
assistance and other help to women, are all measures required to be done to ensure even a
modicum of enforcement. However few women's organisations and other nongovernment
organizations have the stamina or financial backing for such sustained effort.
There is not sufficient appreciation of the fact that it would be easier for women
to come forward to enjoy the rights conferred on them through the Constitution and
through social legislation, if they are educated and economically independent to at least
some extent. Government has not, in the field of development, done enough to ensure
that the obstacles in the path of girls and women are removed so that they become the
equal of men educationally and economically. Although some effort has been made to
improve the literacy and educational levels of girls, they are far from sufficient. On the
other hand, instead of positive discrimination to help them come up, girls and women
often face discrimination in the implementation of Government schemes. An example in
Karnataka is the number of pre-matric hostels provided for scheduled caste, scheduled
tribe and backward class children allocated for boys and girls respectively (Department of
Social Welfare, Government of Karnataka 2002). It is seen that despite the fact that the
literacy and educational levels of scheduled caste and backward caste girls lag far behind
84
those of boys, 82% of the hostels are for boys and only 18% are for girls. This is despite
the fact that it is girls who really require hostels because of the reluctance of parents to
send them to a high school which may be at some distance from the village, where the
parents fear (the fears are often well founded) they may face sexual harassment or even
rape on the way to school and even in the school at the hands of the male teachers or
older students.
Today the virtue of gentleness and tolerance are held to ridicule. There is a
marked increase in aggressiveness and consumerism in our society, which leads to
ruthlessness and violence. This attitude extends even to children, who are taught to value
marks above anything else because marks means money. The fact that the humanities aregiven
second preference by most students is an indication of the value system.
The policy of liberalization and the opening of the world markets have brought
with them an increase in consumerism and greed. Even children are often valued not for
themselves, but for money. This is why sons are valued and desired - because they bring
in money whereas daughters are less valued because money has to be paid out on their
marriage. What greater epitome of selfishness can there be than the parents who send a
brutalized girl back to her tormentors or who accept money to make an 'out of court'
settlement with her murderers? There are even parents, unbelievable though it may seem
who give a second daughter in marriage to the same murderer. When natural human
affections can be sacrificed so easily, can it be expected that strangers will link hands in a
community programme to ensure that such violence is not tolerated in their
neighbourhood? Public apathy is in fact another factor for the increasing violence against
women in both public places and in the home.
The increase in fundamentalism in all communities in recent years also feeds the
fires of intolerance and violence. The first casualty of fundamentalism is women. At best
it curtails their freedom and destroys the equal rights of women, at worst it unleashes on
them the savagery of communal hatred, as witnessed in the Gujarat riots in which the
victims of the most bestial crimes were undoubtedly women. Religious fundamentalism
85
and communal hatred are the greatest threats today to the expression and enjoyment of
human rights.
86
7. Recommendations
7.1 Summing Up
The Constitution of our country confers equal rights on all its citizens - men and
women. India has signed international treaties regarding the equal rights of women. We
are a signatory to the Beijing Platform for Action and have, in 1993, ratified the
Convention on Elimination of All Forms of Discrimination Against Women (CEDAW),
variously known as the "Women's Convention" and the "Women's Bill of Rights". There
is a plethora of laws to ameliorate the condition of women and to grant them equal rights.
Despite all this, the practical realization of these rights by women is extremely
unsatisfactory and a matter of grave concern. In many ways, with globalisation, increase
in consumerism, the growing criminalization of politics and the withdrawing or the State
from many areas of public concern, the condition of women is deteriorating rapidly.
Neither education nor prosperity has helped to improve the status of women. Thus the
lowest - and most steeply declining - juvenile sex ratios are found in the most prosperous
parts of the country - Punjab, Haryana, Gujarat and Delhi, particularly south western
Delhi which is the richest district in Delhi. Obviously wealth and education only help
people to give expression to son preference by accessing modern technology to eliminate
baby girls even before they are born. Maternal and infant mortality figures are still among
the highest in the world.
Significant gender disparities continue in all-important areas of development
access to health care and nutrition, all levels of education, employment and income and
representation in public affairs, politics and Government. Two thirds of the children out
of school are girls. Less than 8% of Parliamentary seats, less than 6% of Cabinet
positions and less than 4% of seats in High Courts and the Supreme Court are occupied
by women. Less than 3% of administrators and managers are women. Violence against
women is a 'high growth' sector. It is estimated that a rape occurs every thirty four
minutes and that every ninety three minutes a woman is killed. The enormity and
prevalence of domestic violence is yet to be recognized.
The trouble is that our society continues to be deeply patriarchal and pious
expressions regarding equal rights do not always result in action to ensure that women
87
actually do enjoy those rights. Although there has been some improvement in the status
of women since independence, with more women being educated and having careers and
professions, there has not been sufficient change in social attitudes regarding women. The
same patriarchal mindset continues to hold sway in the judiciary, the legislature, the
administration, the professionals, including doctors, lawyers and teachers, the police at all
levels and in civil society.
In a study conducted in 1996, 109 judges were interviewed to assess their attitudes to
violence against women.
• 48% believed that there were certain occasions when it was justifiable for a
husband to slap his wife.
• 74% believed that the preservation of the family should be the women's primary
concern even if she faces violence.
• 68% believed that 'provocative" clothes were an invitation to sexual assault. 34%
believed that dowry has an inherent cultural value.
• 55% believed that the moral character of the woman is relevant in cases of sexual
abuse.
• 9% believed that a woman who says 'no' to sexual intercourse often means
• "yes" .
Source: Sakshi 1998
The increase in consumerism and rise in expectations regarding the standard of
life have resulted in many families encouraging women to work outside the home to
augment the family income. However the fact that a woman works and earns money does
not automatically improve her status or confer her autonomy; very often her freedom to
move outside the home is restricted to going to work and she has no say in how her
earnings are spent. Besides this, the fact that she works outside the house does not alter
the perception that her 'natural' role is that of wife and mother, with the result that she
continues to be responsible for housework and child care and thereby, shoulders a double
burden. Her position within the home continues to be that of subordination and
dependency.
The cultural ideal of a woman with little or no interest in property is well
projected by the media and internalised by women themselves. The concept of female
dependency results in the idea of marriage as the only source of physical and financial
security for a woman, thus reinforcing the ideology that marriage is more essential for a
woman than for a man and that a woman is somehow incomplete without a man.
88
These patriarchal values are at total variance with the concept of human rights of
women adopted by CEDAW, which states that the Convention "recognizes the influence
of culture and tradition in restricting fundamental rights of women and targets cultural
patterns which define the public realm as a man's world and the domestic sphere as
women's domain" (United Nations, 1979). The preamble of CEDAW states that “A
change in the traditional role of men as well as the role of women in society and in the
family is needed to achieve full equality of men and women”. Article 5 of CEDAW
stipulates elimination of "prejudices and customary and all other practices which arc
based on the idea of the inferiority or the superiority of either of the sexes or on
stereotyped roles for men and women".
The Government of India has ratified CEDAW but neither the Ninth Five Year
Plan (1997-2002) which adopted the empowerment of women as one of its primary
objectives, nor the National Policy on Empowerment of Women formulated in 2001, has
explicitly stated that these patriarchal concepts regarding women are to be strenuously
opposed by Government polices and programmes or that the tenets regarding women's
human rights are basic to its philosophy. The concrete steps which are to be taken to
ensure that these rights do not merely remain on paper but are actually enjoyed by
women are also not indicated in either document.
The paper has, so far, after a brief overview of the history of social reforms and
the campaign for equal rights, discussed how, despite Constitutional guarantees regarding
equal rights, many laws are unequal for men and women. Others, although apparently
gender neutral, are not so in application because of the unequal economic and social
positions of men and women. It has been pointed out that substantive equality can be the
outcome only when corrective action is taken to ensure that equality is the end result of
the legislative and judicial process.
The paper has discussed at length two enactments of social legislation - The
Dowry Prohibition Act, 1961 and the Family Courts Act, 1984 to show how social
legislation has proved ineffective both because of lacunae and defects in the framing of
the laws and lack of enforcement machinery and proper monitoring. It has also been
89
pointed out that it is necessary to understand the reasons for the persistence of pernicious
practices such as dowry, where there is need for attitudinal change towards daughters so
that they enjoy the same educational opportunities and property rights as their brothers.
The paper has discussed the criminal justice system and how difficult it is for women and
other marginalized groups to access the courts or to get justice. Women are peculiarly
disadvantaged because most of the crimes against them are committed within the home
and by family members. The manner of investigation of the unnatural deaths of women
has been discussed at some length and suggestions made for more collective
investigation.
The paper has been written on the basis of discussions with lawyers, women's
organisations and NGOs, Government officials, Family Court judges and counsellors,
police officers and women's self help groups and after visits to Family Courts and a
women's helping and counselling centre situated in the office of the Police
Commissioner, Bangalore.
What has emerged from the study is the need to firstly, put in place a National
Policy which will state its intention in unambiguous terms to ensure that women are not
only given equal rights under the law but that they enjoy those rights. Women's equal
rights should include freedom from violence, both inside the home and outside it. The steps to be
taken to enforce the equal rights should be spelt out in the policy.
Secondly, all laws should be framed or amended in order to confer equal rights on
men and women. This will mean not merely formal, but substantive equal rights. The
laws should be framed or amended in a participatory manner after consultation with
women's groups.
Thirdly, social legislation should be backed by mechanisms for enforcement and
monitoring, along with the budgetary resources required. Supporting institutions are also
necessary for effective enforcement.
Fourthly, Government needs to create an enabling environment by ensuring that
90
women benefit equally with men in all Government programmes and policies. Gender
budgeting should be done to eliminate gender disparities in literacy and education, health,
training and employment opportunities. The criminal justice system requires to be
revamped to ensure security and speedy justice for all citizens.
Lastly, and most importantly, efforts should be made in all possible ways to bring
about attitudinal change for the creation of a more liberal, compassionate and just society.
In this last chapter the paper will briefly discuss how these various measures are
to be implemented.
7.2 National policy
If women are ever to enjoy equal rights then it is essential that Government does
deep and intense introspection and in consultation with women activists and
organisations, frame a national policy, which clearly and unambiguously presents the
State's recognition of the rights of women. The Policy should accept that women are
independent individuals, that the roles of wife and mother are not to be universalised or
naturalized, that marriage is not more necessary for a woman than for a man and that a
woman should enter a marriage and remain in it only as a free and equal partner. The
Policy should emphasize that domestic duties and child rearing are the fully shared
responsibilities of both sexes and that women should be enabled to combine family
responsibilities with work and participation in public life. Maternity is a social function
performed by women and cannot be used to discriminate-against them.
The Policy should state in emphatic terms that the State will not tolerate any form
of violence against women, whether in public or within the home. The Policy should
recognize that the inequality of women is the result of social conditioning which requires
corrective action, including the elimination of sexual stereotyping. The Policy should
state its intention to ensure that there is no discrimination against women in the law, in
practice, by the Government, by non Government groups or individuals or enterprises, in
public life or in private life and that there is equality in all fields: civil, cultural,
economic, social and political. The Policy should accept that rights have to be both dejure
91
and defacto and that laws and polices should be supported by institutions and
mechanisms for their operation.
The Government has to therefore pronounce a National Policy which will strike at
the heart of the patriarchal value system. But this is not enough. The fact that the
enforcement of social legislation has been such a failure demands concerted efforts on
the part of all concerned - by Government and State actors, as well as by members of
civil society such as teachers and students, professional men and women, activists and
women's groups, public bodies, private enterprises and by neighbourhood groups so that
affirmative action is taken to ensure that the Policy results in de facto equality and
justice for women.
The Government will therefore have to delineate the practical steps to be taken to
bring the Policy into effect. For too long have we been confusing the pronouncement of
intentions, the passing of laws or the mere setting up of institutions with effective action.
The efforts of the Government should be based on the principle of the substantive
equality. These are (a) equality of opportunity, (b) equality of access to opportunity and
(c) equality of results.
As regards equality of opportunity, the Government has to ensure that women's
entitlements are on equal terms with those of men and that these are secured by a
framework of laws and policies and supported by institutions and mechanisms for their
operation. In order to achieve equality of access to opportunity the State must ensure
that there are no obstacles barring women from enjoying or fulfilling their rights.
Equality of results is what matters ultimately because the true indicators of the State's
progress are not just what the State does but also what the State achieve in terms of
actual change for women. It is here that India has faltered. Despite the many
programmes and policies for women's development, figures and statistics as well as
everyday perceptions show that equal rights for women are nowhere near achievement.
7.3 Law reforms
It is necessary, as a first step, for Government to examine all the existing social
92
legislation and laws concerning women in the light of the anti patriarchal, progressive
Policy proposed above. Amendments should be made where necessary to plug loopholes
and new laws passed if required. Law reform will have to be done in a participatory
manner after holding wide consultations with women activists and women’s
organisations. This will prevent the kind of lapses or grave errors that have occurred in
the past while enacting social legislation. Lapses have been due to failure to understand
the ideology behind harmful practices or because of the inbred patriarchal beliefs or
those responsible for drafting and passing the bills that have come in the way of framing
social legislation.
Law reforms have not till now fundamentally challenged and transformed the
underlying assumptions regarding women. Dowry laws, for example, failed both to
challenge attitudes about women and marriage, including parental pressure to marry off
their daughters, and to link the problem of dowry with women's property rights in their
parental home. Another example is the law on rape, with regard to which women
activists have long been demanding several amendments, ranging from the definition of
rape to the method of taking evidence. The Law Commission, which was asked to look
into the matter, invited Sakshi and several other organisations to give their views after
which it released its 172nd Report on the Review of Rape Laws in 2000. However when
the Government enacted the amendment in the winter session of Parliament in 2002, it
only partially accepted the Law Commission's Report. Not even the definition of rape
has been amended although both the Law Commission and the women's groups had
recommended it strongly. The recommendation, made both by the Law Commission and
by the women's groups that the rape victim's past sexual history should not be used as
evidence in a rape trial was excluded from the amendment and the demand that onus of
proof regarding consent should be shifted to the accused was accepted only partially,
that is, in the case of custodial rape.
Another example of law which need to be amended on the lines suggested by
women's organisations is the Dowry Prohibition Act, where the women's organisations
have been insisting on change in the definition of dowry, the removal of the penal clause
with regard to the givers of dowry, placing a ceiling on gifts and marriage expenses and
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on making it mandatory to register gifts given to the bride or the bridegroom or members
of the groom's family. Another example is that of the law prohibiting trafficking in
women and children where it is normally the prostitutes who are being penalized.
Women activists have long been agitating against this and also for amendment to the Act
to penalize male clients, particularly those who have sex with children. The sections 497
and 498 in the Indian Penal Code, which deal with adultery, should be repealed since
they are insulting to women, as explained earlier - they are based on the concept of
women being the property of men. The Protection from Domestic Violence Bill should
be passed on the basis of the recommendations of the Parliamentary Standing
Committee for the Ministry of Human Resources Development in its 124th report. The
definition of domestic violence should be in accordance with that in the United Nations
Framework for Model Legislation on Domestic Violence.
Women activists now state emphatically that a campaign needs to be mounted
around the economic rights of women. The enjoyment of property rights secures the
woman against infringement of other rights, including that against violence. A study by
Pradeep Kumar Panda of the Centre for Development Studies (2003) showed that 49%
of propertyless women had suffered long term physical abuse from husbands and 82%
had suffered psychological abuse as against 8% and 16% respectively in the case of
women having a house or land in their name.
The Hindu Succession Act should be amended to give daughters equal
coparcenary rights. If a uniform civil code is not practical at present because of the
prevailing atmosphere of communal tension, it will be necessary to ensure women's
equal rights in property and manage within the framework of the personal laws of all
communities.
However woman do not get equality to access of opportunity or equality of results
merely by enactment of legislation giving them equal property rights. As earlier
indicated in this paper, a recent study in seven States by the development sociologist
Martha Chen (998) has shown that only 13% of the daughters of fathers owning landed
property have inherited property from their parents. In almost all cases women are
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unwilling to force the issue or take their brothers to court to claim their legal share of the
property because of the emotional pain involved and the fear that, by losing their
brothers' good will, they will become more dependent on their husbands' families.
Suggestions have been made that women's property rights should be made 'self
executing' although how this is to be done without the woman taking some assertive
steps in the matter is not clear. However the following are some suggestions made by
Madhu Kishwar in Manushi (1988). They were made in the context of banning dowry
when she had pointed out that banning dowry without ensuring that daughters enjoy the
same property rights as their brothers would only help fathers and sons, not the girls.
1) Any document whereby a woman surrenders her rights in favour of her brothers,
husband or in laws should be considered invalid.
2) A woman should not be able to pass on to her husband or in laws any property
inherited from her parents. If she dies childless or under suspicious circumstances,
the property should revert to the natal family.
The law could also be amended to prohibit fathers from writing wills which will
disinherit daughters and to provide that if daughters are disinherited, the land will lapse
to Government.
Women activists have long been campaigning for enactment of laws which will
give women the right to stay in the marital home even after breakdown of the marriage
and an equal share in any property acquired during the course of the marriage in the
event of the breakdown of the marriage. (According to the present law, as explained
earlier in the paper, each partner retains what he/she brought into the marriage and what
has been acquired in his/her name during the course of the marriage. This really means
that a divorce renders most wives destitute). An amendment to marriage laws giving
women equal share in any property acquired during the marriage involves recognition of
the fact that even if, because of the sexual division of labour, the wife does not ‘work',
she still makes a valuable contribution within the home which enables the husband to
earn. It is only fair therefore that whatever property is acquired during the course of the
marriage belongs to both partners and should be equally divided between them if the
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marriage breaks up.
This law regarding equal marital property rights exists in the United States as well
as European countries. In fact it existed in Goa. However in this country it is a
revolutionary and for some - a horrifying concept. The paper has already described the
shock with which the idea was received by judges of the Family Court in a meeting in
Bangalore. The immediate reaction was that such a law could encourage many more
women to break up their marriages, leading to a great increase in the number of
divorces. They were also afraid that it would encourage women to misbehave. It is a sad
commentary on Indian family life if it is only the fear of destitution that keeps women in
the marriage. Such a marriage based on unequal power relations can be good for
nobody, including the children. On the other hand, equal marital property rights for
women in the event of break up of the marriage, will alter the power equations within a
marriage, will discourage men from abusing their wives and inhibit domestic violence or
intimidation. It is therefore necessary that the Government enact a law making it
mandatory that all property acquired after a marriage be in the joint names of husband
and wife and that the wife get an equal share on dissolution of the marriage. A small
beginning in this direction has been made in Karnataka under the Government Ashraya
Housing Scheme, where the title deeds of the house are issued in the name of the
woman.
The above is only an example of how all the laws pertaining to women should be
formulated or amended after examining them in detail with the intention of securing
substantive equality for women.
7.4 Enforcement
The mistake made till now is to assume that laws will enforce themselves without
any special efforts being made by the Government. However laws which are poorly
conceived, indifferently enforced and casually reviewed have very grave consequences.
It is meaningless to enact social legislation without putting in place the mechanism and
infrastructure to enforce it and without providing the necessary resources.
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Each law should be seen in the context of its substance, structure and culture. The
substance refers to the clauses or sections of the law which, as has been pointed out,
should be framed carefully, in a participatory manner and after due consultation with
women's organisations. The structure of the law refers to the details of how it is to be
implemented. This has to he understood and clearly enunciated. For instance, structure
of the law in the case of the Dowry Prohibition Act will include, among other things, the
manner in which the complaint is to be written and to whom it should be given, as well
as details of the powers and responsibilities of the Dowry Prohibition Officers and the
resources to be placed at their disposal in the discharge of their duties. The Equal
Remunerations Act is a pitiful failure because no attention has been given to the
structure of the law. There are no guidelines as to how work is to be measured or
mechanism set up to determine equal work in different types of jobs in an industry. In
the absence of such mechanism women's work, involving different skills from those of
men, is grossly underpaid. The culture of the law is the philosophy behind its enactment.
It is necessary to understand this in order to enforce it in letter and spirit.
For example, the philosophy behind the Prenatal Diagnostic Techniques
(Regulation) Act is that although abortion is not illegal, it is unethical and discriminatory
to conduct an ultrasound examination in order to ascertain the sex of the foetus or to
abort it because it is female. Similarly the philosophy behind the Dowry Prohibition Act
is that demanding money from the parents of the girls is wrong because extortion is
unethical, it is an act of discrimination and because it violates the concept of marriage as
a relationship based on equality and mutual respect.
The substance, structure and culture of each law should be given wide publicity
and be discussed in the media at the time of its enactment or revision so that the public
can understand the implications of the law and help to enforce it.
The enforcement of social legislation pertaining to women will be the
responsibility of the police, the officials of the Women and Child Development
department and, sometimes, revenue officers. No guidelines have been given to these
officials with regard to enforcement of social legislation. A recent news item has
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mentioned how the police department insisted that the Women and Child Development
department officials were responsible for enforcement of the Child Marriage Restraint
Act whereas that department's officials complained that the police were not doing their
duty. It is therefore necessary to examine the 'structure' of each law carefully and
determine who is to be responsible for what actions. Guidelines have to be issued and
training given to the concerned officials so they will have no doubt about their
responsibilities. The Government will also have to ensure that the required funds are
placed at their disposal. This can be indicated in the Act itself.
The police department in Karnataka has initiated, as part of its induction training
for new recruits at the level of the constable and sub inspector, a five-day course in
gender sensitisation. The new recruits should, along with this, be given intensive training
in the role and duties of the police in each or the enactments of social legislation
pertaining to women. In addition to this, in-service training at regular intervals should be
given to the police at all levels on the enforcement of social legislation pertaining to
women. Modules for the training have to be carefully prepared.
Similar training modules should be prepared for other enforcement agencies such
as the officials of the Department of Women and Child Development and for Executive
Magistrates. Gender sensitisation and training programmes are also required for the
judiciary and public prosecutors.
Court judgments relating to the enforcement of social legislation and to cases of
atrocities against women should be regularly circulated to the enforcement agencies for
their guidance, along with an explanatory note. The Director General of Police can be
made responsible for this.
It has already been mentioned that it would be difficult for the officials of the
Women and Child Development department to effectively enforce social legislation
because of their multifarious duties. In order that they discharge their duties efficiently
with regard to both women and children it is necessary to have separate field
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departments for women and children. The concept of one department to implement
schemes for both women and children arose from the belief that the chief duty of the
State with regard to women was in connection with their roles as mothers of small
children. Since this is no longer the case, and the State is required to protect and enforce
the rights of women as well as those of children (which are very different) and set up the
mechanisms and institution for doing so, a very different approach is required. A
separate department for women with separate district level officers and supporting staff
is therefore essential to give a strong impetus to the enforcement of social legislation.
These officers will be given powers, which they will exercise, and responsibilities,
which they will discharge under each Act. They will co ordinate with NGOs and
citizens' groups, with the police and the courts to enforce social legislation. They will in
addition implement schemes for women and ensure that women benefit adequately from
the schemes of other departments.
7.5 Infrastructure
Laws cannot be enforced in the absence of supportive infrastructure. Women are
often unable to walk out of violent marriages because, in the absence of any rights in
their natal homes, they have nowhere to go. It is therefore necessary for the Government
to support non-government organisations (NGOs) in setting up short stay homes or
temporary shelters. These short stay homes should not be horrid places where the
women are virtual prisoners, as is often the case at present, but pleasant residences
where they are treated with respect and kindness and given legal assistance,
psychological counselling, education, training and job placement services. Minimum
standards should be determined and prescribed by the Government for these institutions
and monitoring done by the district officers of the Women and Child Development
Department and by the State Women's Commission. External evaluation should also be
done every three years. There should be one such short stay home in every taluk with
help lines attached to them so that women who fear they are in physical danger can be
instantly rescued by the police.
Another form of infrastructural support would be the availability of noncommercial
lawyering - groups of lawyers, particularly activist women lawyers, who can
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have regular practice but are in addition paid by the Government to assist women fight
their cases in the court. They could also provide legal support systems for women who
have to take difficult decisions such as claiming inheritance rights. These lawyers should
be paid a substantially higher fee for winning cases. Paralegals could also be appointed
in Family Courts for assisting women.
7.6 Monitoring
Continuous monitoring is the price of effective enforcement. The monitoring
mechanism should be clearly included in the Rules to the Act. The monitoring should
not confined to the review of statistics, although these are also necessary but be a
detailed, flexible, case by case examination to the constant refrain of "has the law, as it
is now implemented, really helped women? How can the law be enforced so as to help
women better?" The best way to monitor the enforcement of social legislation is with the
help of a Government - NGO partnership. NGOs, particularly those of women activists,
should be a formal part of the monitoring mechanism and, by getting the facts of each
case through actual involvement in the field, assist the Government both in effective
monitoring and in developing alternative strategies for enforcement. The NGOs should
be given some financial support by Government for doing this. The Supreme Court has
already, in some cases, directed the Government to enter into a partnership with NGOs
for enforcing a social measure; a recent case being that in which the Delhi Municipal
Corporation was directed to work with Manushi. The formal recognition of their role by
Government along with financial support will help women's organisations to have the
stamina required for the long sustained effort needed for enforcement of social
legislation.
The NGO - Government partnership for the purpose of social monitoring should
be at the district as well as State level. At the district level the monitoring should be
done on a stipulated date every two months by a Committee consisting of two or three
NGOs selected by the district administration and by the district NGO network (these
should preferably be women's organisations, headed by women), the Superintendent of
Police, the deputy director, Women and Child Development Department and the public
prosecutor. The Committee should review investigation and prosecution of cases of
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atrocities against women as well as the enforcement of social legislation pertaining to
women. Victims and complainants should be invited to attend the meetings. Minutes of
the meeting should be sent to the Secretary as well as the Director, Women and Child
Development Department, as well as to the Director General of Police.
At the State level the Committee can be headed by the Minister, Women and
Child Development Department. The Secretary, Women and Child Development
Department, the Secretary, Home Department, the head of the Police, the Director of
Public Prosecution and one or two State level women's organizations should be members
of the Committee. The Committee should meet once in a quarter to review all cases of
atrocities against women pending at the investigation stage for six months or more. The
Committee should also, at a separate sitting every quarter, review the enforcement of
social legislation. Members of the public should be permitted to depose before the
Committee during this time.
What is really important, at every stage of the process of realizing women's rights,
whether it is at the stage of law making or enforcement and monitoring, or the
formulation or implementation of programmes to help build a conducive environment or
the setting up of institutions, is continuous introspection and going into details. It is
always necessary to ascertain what the end result of every action is and whether this has
conferred equality on the woman, helped her to enjoy her rights or to make her life
easier. The interim measures of the process should not be confused with the end result
This aspect of enforcement and monitoring of social legislation as well as of
Government programmes should be stressed in all training programmes for Government
officials and NGOs.
An example is the case of women’s self help groups, of which there is a large
number in almost all States. They have saved an enormous amount of money which they
lend among themselves. Some have also borrowed from banks to take up income
generating activities. No doubt many of the women in self-help groups have become
more self confident and have gained the respect of their families. But it would be wrong
to assume that a savings and credit activity will automatically confer empowerment on
the women of a self-help group. By going into details it is possible to ascertain whether
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the women have really benefited or have in fact suffered after joining the group. It may
be that they have had to starve or deprive themselves in order to save the mandatory
Rs.10 every week. It is certainly true that in many cases the husbands of these women
'allow' them to join the group only because it puts money into their hands. There have
been reports that dowry demands have escalated because of the availability of the
women's money. It is certainly true that most of the groups do not discuss the issues that
do matter a great deal in their daily lives, such as marital violence and atrocities within
the home, possibly because these subjects are not within the accepted parameters of the
training given to them by NGOs and the Government. Finally the measure of success of
the self-help groups should be in the difference it has made to the women - are they
eating better? Are all the members of the family eating together? This would certainly be
an almost revolutionary step towards equality where traditionally women and girls eat
last and least. Are girls and boys treated the same - given the same affection and
importance, sent to the same schools, given the same health care? Is there less violence
in the house? Do the women playa larger role in decision making?
7.7 Institutions
In its first report to CEDAW the Government had indicated the setting up of
institutions such as the National Women's Commission and the State Women's
Commissions as indicators of its sincerity in taking proactive steps towards ensuring
women's rights and equality. However these institutions have not been given many
powers, are basically recommendatory bodies and their resources are meagre. If the test
of 'end results' in applied in the case of these institutions the findings will not be
encouraging
It is necessary to set up a mechanism for selecting the right persons for these
bodies. It is also important to give them sufficient powers and resources so that they can
function collectively. These are really Commissions for Women's Rights and can be
given powers similar to those of the National Human Rights Commission (NHRC). The
NHRC enquires into complaints of violation of human rights and while doing so has all
the powers or a civil court trying a suit under the Code of Civil Procedure. In particular,
it can summon and enforce the attendance of witnesses and examine them on oath as fell
as cause the production of documents. It has the power to compel, under sections 176
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and 177 of the Indian Penal Code, any person to furnish information, which it feels is
relevant to the enquiry. The Commission, or any officer authorized by it, can enter any
building or place to seize documents relating to the subject matter of the enquiry. It may,
for the purpose of conducting an investigation, utilise the services of any officer or
investigating agency of the Government. The NHRC shall 'be deemed to be a civil court
for all purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure
which relate to prosecution for contempt of lawful authority of public servants and for
offences against public justice.
In addition to setting up institutions for supervision and monitoring of women's
rights, the Government should also set up institutional mechanisms, which will create an
enabling environment for enjoyment of those rights. Important examples are the
registration of births and deaths and marriages. The registration of births is important to
enforce the legislation on child labour and on child marriage and in cases of child abuse
and rape. The Registration of Marriages Act was enacted in Karnataka in 1985 but is yet
to come into force. The Government of India has stated in its declaratory statement to
CEDAW that compulsory registration of marriages was difficult in a country like India.
In fact, given the will, it would not be difficult to set up mechanisms for registering
marriages in a functioning democracy like India with elected local bodies and a good
administrative network. The compulsory registration of marriages will help to protect
the rights of women in a country where bigamy is common among men. India should,
therefore, withdraw the declaration to this article and enforce the compulsory
registration of marriages.
7.8 Budgeting and Financial Provisioning for an Enabling Environment
Laws cannot be enforced in a vacuum but require an enabling environment. For
example, the Child Marriage Restraint Act will be easier to enforce if all children attend
school. If the Government provided free, useful and enjoyable schooling to girls till the
age of eighteen (that is, till class 12) there would be much less likelihood of the girl
getting married before that age. Besides this, the girl would be in a better position to
earn her living, become financially independent and to understand and access her rights.
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The litmus test of end results should be applied to important development programmes
such as education, health, employment, training and rural development to ascertain
whether women are benefiting equally with men and what should be done in these areas
to confer equal rights and benefits.
Just as apparently gender neutral laws need not in fact be gender neutral because
of the unequal position of women, so too, Government programmes and policies may
not be gender neutral. Considerable effort and positive discrimination are therefore
required to overcome both the disadvantages of the past and the social construction of
inequality, as it exists today. For example, the fear of rape and sexual molestation is a
very real fear in the minds of the parents of girls and of the girls themselves. Girls may
therefore drop out at the high school stage since they will have to travel some distance to
school. The absences of basic facilities such as toilets also discourage girls of high
school age from attending school. The Government needs to understand the problem and
take steps towards finding a solution. Girls' high schools, a much larger proportion of
women teachers at high school stage, separate toilets for girls and boys in all the
schools, provision of school buses for girls and a large number of girls' hostels are some
measures, which will definitely help improve the situation. However all this requires
money and the Government will have to commit itself to spending 6% of the GDP on
education and earmarking a proportionately larger portion within the education budget
for girls' education.
The huge increase in fees for professional colleges in the aftermath of the recent
Supreme Court judgments going to have disastrous consequences for girls if remedial
steps are not taken. In such a situation parents are more likely to spend money on their
son's higher education than on their daughter's, even if the daughter is more gifted
academically. The dowry to be given for the girl's marriage will also increase
considerably with the increase in the expenditure on boys' education. The Government
should come forward with a well thought out scheme of educational loans and
scholarships to help both girls and boys enter professional colleges. Seats may also have
to be reserved for girls in professional colleges in future if it is found that the increase in
the fee structure has resulted in fewer number of girls entering these colleges,
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Government of India has, in the last two years, initiated some attempts at gender
budgeting and some States, including Karnataka, are earmarking 30% of the budget in
all development schemes for women (Special Component Plan for Women, Government
of Karnataka). However it is debatable as to how much a mechanical earmarking of the
budget in different departments for women will really help women and there has been no
effort to go into the details and analyse the effect or such earmarking. What is really
necessary is to examine the needs of women in all developmental areas such as
education, health, rural development, employment and training from their perspective of
substantive equality, identify the measures to be taken to achieve such equality and
budget for the same. What has been suggested earlier for the retention of girls in high
school is an example of such gender budgeting.
Such an exercise would mean that the Government both in the Centre and in the
States, will need to invest considerably more in the social sector. All State Governments
are facing financial stringency and the first casualty in the case of budget cuts is the
social sector. However it is always possible for Government to find the resources to fund
priority sectors. What is necessary is to accept, and to declare, that human resources
development and gender equality are priority sectors and allocate resources accordingly.
In order to take practical steps towards achieving substantive equality for women
in development and employment it is necessary to obtain separate data by sex. For
example, it is important to ascertain how many women access the public health system
or private hospitals for women's health needs (that is apart from children's needs or for
child birth) vis-à-vis men, or how many women benefit from the Government's
employment generation schemes, as against men - and the reasons thereof. Similarly, in
the case of poverty eradication schemes and income generating schemes for poor
women, it is important to obtain data and identify the households, which are de facto
headed by women (this comes to about 30% in rural areas) and target the female heads
of households for assistance in these schemes. Government can then be reasonably
certain not only that the poorest people are getting the assistance but also that the
benefits are not actually cornered by men.
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The Government will need to take proactive steps to ensure that there are many
more women in the judiciary, administration and professions. The pressure on girls to
get married and "settle" down by the time they are in their early twenties certainly
curtails the time they have to join a competitive field. In addition some of the rules of
recruitment are grossly unfair. A few years ago a girl from South India, who topped the
Civil Services examination, was allotted Assam as her cadre. Although neither men nor
women may like to be allotted to the north eastern States, it is the girls' parents who
hesitate to send them so far away. Besides this, the boys can get married (albeit for a
smaller dowry) even if they are allotted an unpopular cadre and get wives to "look after
them" whereas the girls are unlikely to find husbands in such circumstances. When this
is the case, and when the percentage of women in the all India services is less than 10%,
the Government should certainly take steps to make the process of allotment of cadres
more friendly towards women and gender sensitive.
It is being increasingly recognized by women activists that the strongest support
for women's autonomy is economic empowerment. If women have education, jobs and
property, they will be able to stand up for their rights, negotiate more to their advantage,
walk out of a bad marriage more easily and approach the courts for legal remedy from a
position of strength. The Government should take proactive steps to help women to get
remunerative employment. This can be done to some extent by relieving women of the
responsibility of childcare by provisioning good day care centres and advocating flexi
timings for both men and women so that both of them can share and discharge domestic
responsibilities.
In addition the State should insist on an Equal Opportunities Policy being adopted
by employers and enterprises in both the public and private sectors, as has been done in
many foreign countries, so that procedures and practices are developed and applied
which do not discriminate on the grounds of sex and marriage and which provide
equality of opportunity for all job applicants and employees. The Equal Opportunities
Policy will include taking action both to remedy the effects of past discrimination and to
remedy present inequalities. Dynamic monitoring is an essential part of the process and
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will entail ensuring that there is a high representation of women at every level of the
organisation The Government can encourage the private sector to adopt an Equal
Opportunities Policy by offering tax exemption and other benefits. With more and more
of the economy shifting to the private sector, it is important that the Government insists
upon them adopting an Equal Opportunity Policy.
7.9 Law and Criminal Justice System
The paper has already discussed in some detail the improvements required in the
criminal justice system. It is however to be re-emphasised that the rights of the victims
require to be respected much more. As stated by Rajeev Dhavan, the Supreme Court
lawyer in 2003 “Law preserves status quo and cloaks injustice”. The recent acquittals by
the Gujarat High Court of the accused in the Best Bakery and other cases have proved
what women and other disenfranchised groups have known for a long time. More courts
and more efficient courts will help to speed the disposal of cases but most important is
judicial sensitivity to victims. The plight of witnesses in criminal cases has also been
pointed out in many pronouncements of the Supreme Court. They are forced to come
again and again since the case gets adjourned several times, they are not given the
minimal facilities while waiting for their case to be called, they are treated with
disrespect and often humiliated in the courtroom and sometimes they are threatened,
abducted or murdered. All this of course is manipulated by the lawyers and works to the
advantage of the accused. The criminal justice system therefore needs to be thoroughly
overhauled in the interest of the victim. As already indicated in the chapter on the
Criminal Justice System the Government has to implement the recommendations of
various Law Commissions and the Rebeiro Report.
It may be a good idea set up a police team in every district headed by a Deputy
Superintendent of Police who will exclusively concentrate on investigation of crimes
against women. The members of the team should be handpicked and given special
training. It should, however, be emphasized that this team should not be used for any
other purpose. As already stated, speedy disposal of cases in the court is of paramount
importance.
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Fast track courts should be set up exclusively to try cases of crimes against
women. They should be given a time limit within which they should complete the case.
Particularly in the cases of murders of women within the home, where it is so difficult to
get evidence, delay in the court completely subverts the cause of justice.
Since it is the State's first duty to maintain law and order, there is justification in
recommending that the State pay compensation to a victim of violence, including
domestic violence. This should be done as early as possible and certainly before the
completion of the case. Victim compensation is part of the criminal justice system in
several countries but in our country a beginning has been made in this area only in
Andhra Pradesh.
In addition to improvements in police investigation, prosecution and court
procedure, more attention has to be paid to the proactive role of the State in coming to
the help of women facing overt threats of violence and preventing crimes from taking
place. Joint and concerted action by the police and NGOs is crucial in this context. In
the late 1980s an IPS officer called Nissar Ahmed, who was Assistant Commissioner of
Police (ACP) in Banga1ore, showed how this could be done. He formed a team headed
by a woman sub-inspector, with three other police officials of the rank of sub inspectors
and head constables, a woman doctor and two social activists as members. He
identified the areas in his jurisdiction with the highest record of domestic violence and
unnatural deaths of women. Every day the team would visit houses in these
neighbourhoods, covering twenty houses in a day. In each home they would question
the women of the household, (the young daughters in law separately) in order to
ascertain whether they were being subjected to violence. On the basis of such house
visits they were able to identify the houses where girls were in imminent danger of their
lives, the houses where they were being routinely beaten but did not face a life
threatening situation and the houses where there was threat of violence but no overt act
of violence. In the first type of case the ACP called the girls and their parents to the
police station, made the parents take their daughters home, and filed cases against the
husbands and in-laws. In the second type of case the husband and in-laws as well as the
girl and her parents were called to the police station, the in-laws were severely warned
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and an undertaking taken from them that they would not ill treat the girl in future. For
cases of the third variety the police called a meeting of all the women in the locality
and stated that any case of domestic violence should be reported to them. By following
this method of constant surveillance and monitoring, followed by swift action, Sri
Nissar Ahmed was able to bring down by 70% the number of murders and suicides of
young women in his jurisdiction.
The police should set up such police - NGO teams to visit every house on a
continuous basis in areas, which are notorious for domestic violence. This will send a
clear message that such violence will not he tolerated. It is to be stressed, however, that
the system will succeed only if the ACP or OCP in charge of the area reviews the work
of the team on a weekly basis and take prompt follow up action on the information
obtained by the team.
Preventive action should also be taken by women's organisations forming
neighbourhood groups of men and women who will visit houses where women are
subjected to violence and warn the perpetrators of violence, work with the police to file
cases against the culprits, hold meetings of residents in the locality to mobilize them to
confront domestic violence and give support to women who wish to leave the house
because of violence. The women's organisation will act as facilitator of the
neighbourhood groups and monitor and review their activities. Vimochana is
implementing a project of this type in two areas in Bangalore.
Government should give financial assistance to women's organizations and NGOs
to implement such projects. The projects should be regularly monitored and reviewed by
the State Women's Commission and by the Department of Women and Child
Development.
7.10 Publicity, Gender Sensitisation and Legal Awareness
Laws cannot change society; they can only point out the direction in which
change is required. It is people who bring about social change and revolution begin in
109
the minds of men. How can we bring about a counter culture which is liberating?
Cultural beliefs and dogmas are accepted unquestioningly because of a long
history: or constant repetition. This is how social conditioning and cultural
indoctrination takes place. In order to challenge patriarchal beliefs it will be necessary to
reiterate continuously and in all forums the basic tenets regarding women's human rights
so that they get internalised. The Government should be willing to spend a great deal of
money on continuous and creativity planned and executed publicity campaigns declaring
openly the premises of its Women's Policy - that men and women are equal beings and
should enjoy equal rights in every way, that a man has no right to beat his wife under
any circumstances and that such action is a crime, that girls have the same rights in their
natal home that boys have and can return to it when they choose, that all property is to
be divided equally among sons and daughters, that to discriminate among one's own
children is a sin and that daughters as well as sons should look after their parents. These
beliefs should be written up on public hoardings, on buses, shown on cinema slides and
given publicity in different ways through all the media. Corporate bodies should also be
encouraged to invest in such advertisements and publicity campaigns and given tax
exemptions, if necessary, for doing so. Advertisements which discriminate between sons
and daughters such as those which advise investment or saving for the "son's education
and the daughter's marriage" should not be permitted. What is required is a blitzkrieg of
publicity on these lines something similar to the family planning campaigns of
yesteryear or the pulse polio campaign of today. The important sections in social
legislations such as the Dowry Prohibition Act or the PNDT Act should be given similar
publicity.
The Indecent Representation of Women Act (1986) needs to be reviewed.
Indecent representation of women should include depicting women in positions of
servility and subjection. Many popular soap operas on television typically show the
heroine enduring all forms of degradation and physical and mental abuse. This is
disgusting and offensive. Commercial advertisements should promote the idea of shared
domestic chores by showing men washing shirts, ironing saris and cleaning the
bathroom with Harpic. School textbooks should not be merely gender neutral but should
110
show girls and women in a strong and positive light. It should be continuously
reinforced that girls and boys should be given exactly the same treatment and that boys
should help in domestic work and girls have time to play and have fun. Physical training
and sports' should be made compulsory for girls in all schools, particularly in co
education schools where boys tend to usurp the playground all the time. In addition,
training in the martial arts such as karate should be a must for girls. They should also be
taught cycling as part of the school curriculum so as to encourage mobility. Sexual
stereotyping should not only be actively discouraged but all girls and boys should be
encouraged to dream big and to feel confident that they can achieve anything. Sex
education for adolescent girls and boys should be compulsory in ail schools
Legal awareness regarding human rights in general and women's rights in
particular should be made part of the curriculum of the high school and in all college
courses, including professional courses. Many years ago Doordarshan had shown a very
interesting serial on legal awareness directed by the writer Mrinal Pande. Such television
serials and radio plays combining entertainment with legal awareness on women's
issues, would be of great help. Legal awareness is also required to be disseminated to
women's self-help groups along with practical information on support systems available
in the areas where the group resides. Legal awareness for self-help groups should not be
restricted to doling out information; it should prove a dynamic instrument of social
change.
Training modules in gender have to be prepared and training programmes
organized to sensitise the judiciary, the legislature, members of local governments, the
police, administrators at all levels, as well as teachers and doctors. The training should
be on a core module with additional modules suited to the needs of particular groups.
The training modules should be thought provoking and challenging and the training
made an insightful experience. The modules will have to be revised and replenished
from time to time as the need arises and innovative methods of training evolved;
otherwise it might degenerate into boring homilies which none but the already
convinced will care to attend.
111
The history of people's movements, whether it be the anti-apartheid movement in
South Africa, the labour union movement or the civil rights movement in the United
States, has shown that rights are rarely granted without a struggle. Women's rights too
will have to be fought for. Although Government can motivate and sensitise
Government functionaries and State actors to respond positively to the demand for equal
rights for women in all fields, it is the women's organisations themselves who have to
come together to organize, plan and execute concerted struggles for the rights of women.
They will need to identify priority areas to focus upon, hone their skills in dialogue,
strategy and campaigning as well as bury differences and overcome divisive forces of
caste, community, politics and ideology in order to convert the struggle into a mass
movement. An excellent strategy would be to carry along with them the self-help groups
who can form the grassroots women's movement. It is necessary that the self-help
groups be trained in discussing issues of atrocities against women and equal rights and
in evolving their own strategies to solve their problems through their united strength.
The women's self help groups can, if united across territorial and caste/community
barriers, affect a people's revolution for women's rights.
Men must also take part in this struggle since social transformation is not possible
without their support. The women's movement will need to evolve new strategies to
make men understand that women's equal rights is in their interest also, for, as Shelley
said:
Can man be free if woman be a slave?
.. . . well ye know
What Woman is, for none of Woman born
Can choose but drain the bitter dregs of woe
Which ever from the oppressed to the oppressors flow.
Or, as IS Mill said more prosaically, "The subjugation of women is wrong in itself
and one of the chief hindrances to human improvement."
In our country, women are the largest minority and the oppression of women is
112
the gravest violation of human rights. But there are other oppressed groups also such as
religious minorities, the dalits, the disabled and the very poor. None of these groups is
homogenous and there are divisions of oppressed and oppressor within the groups
themselves. An example is a recent case of a twelve year old dalit school girl who was
raped repeatedly by her teacher, also a dalit, in front of her classmates. The parents of
the victim as well as the parents of her dalit classmates, closed ranks behind the rapist
for caste reasons and forced the girl to revoke her earlier statement that she had been
raped. Women also, perhaps unsurprisingly, sometimes oppress other women. It is
essential to teach moral values in school throughout the school years, inculcating the
values of gentleness, tolerance and compassion to counter the forces of greed and
violence which otherwise threaten to engulf the world. This inculcation of moral values
should be totally delinked from any religious teaching and should be based on respect
for human rights, recognition of the similarities of all human beings and the refusal to
see any person as less than human or as the' other'.
113
References
Agarwal B. The Idea of Gender Equality From Legislative Vision to Everyday Family
Practice. In: India: Another Millennium? (ed) R. Thapar R, Penguin Books India, New
Delhi, 2000.
Agnes F. Protecting Women against Violence – Review of a Decade of Legislation 1980-
89. Economic & Political Weekly, Vol. XXVII, April 25- May 1, 1992.
Agnes F. Women's Movement within a Secular Framework. Economic & Political
Weekly, Vol. XXIX, May 14 - May 20, 1994.
Agnes F (a). “Feminist Jurisprudence: Contemporary Concerns”, Majlis, 2003
Agnes F (b). “A study of family courts in Karnataka”, Majlis, 2003
Bourdieu, P. Practical Reason: On the Theory of Social Action. Cambridge, UK: Polity
Press, 1998.
Chen M.A.(ed) Widows in India: Social Neglect and Public Action. Sage, New Delhi
1998.
Department of Social Welfare, Government of Karnataka. Statistics pertaining to 2002.
Dhavan R. “Nisha’s Law”. The Hindu, 30th May 2003.
Gandhi N and Shah N. The issues at stake: Theory and Practice in the Women’s
Movement in India. Kali For Women, New Delhi, 1992.
Gonsalves L Women and Law. Lancer, New Delhi, 1993.
Government of India, Central Statistical Organization, Ministry of Statistics and
Programme Implementation. Statistical Abstract 2001, Public Health Statistics,
Government of India, New Delhi, 2001.
Government of Karnataka. Karnataka Human Development in 1999. 1999
Government of Karnataka. Special Component Plan for Women.
Hirschom R, ed. Women and Property - Women as Property. St Martin's Press, New
York, 1984.
International Centre for Research on Women (ICRW). Domestic Violence in India:
Exploring Strategies, Promoting Dialogue. Summary Report of Four Studies. ICRW,
Washington, DC, 2002.
114
International Institute for Population Sciences (IIPS). National Family Health Survey
(NFHS-2) – 1998-99. IIPS, Mumbai.
Kapur R and B Cossman. Subversive sites: Feminist engagements with law in India. Sage
Publications, New Delhi, 1996.
Kapur R, ed. Feminist Terrains in Legal Domains: Interdisciplinary essays on women
and law in India. Kali for Women, New Delhi, 1996.
Kishwar M. "Rethinking Dowry Boycott", Manushi, No.48, 1988, p.10.
Kumar R. The History of Doing. The History of Doing: An Illustrated Account of
Movements for Women's Rights and Feminism in India 1800-1990. Kali for Women, New
Delhi, 1993.
Mahila Darpan, March - April 1921(2).
Mahalakshmi MVSS, Dissertation on Family Courts). National Law School of India
University, 1992. (Unpublished).
Majumdar R. History of Women's Rights: A Non-Historicist Reading. Economic &
Political Weekly, Vol. XXXVIII, May 31 - June 6 2003.
Mani L. Contentious Traditions: The Debate on Sati in Colonial India. University of
California Press, Berkley, 1998.
Menski W, ed. South Asians and the Dowry Problem. Trentham Books Ltd, London,
1998.
Oldenburg VT. Dowry Murder: The Imperial Origins Of A Cultural Crime. Oxford
University Press, New Delhi, 2002
Panda PK. "Rights-based strategies in the prevention of domestic violence," Centre for
Development Studies, Trivendrum Working Papers 344, Centre for Development Studies,
Trivendrum, India, 2003.
Sakshi. Justice on Gender Sakshi, New Delhi, 1998
UN General Assembly. UN Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW). 1979.
Verghese J. Her gold and her body. Vikas Publishing House, New Delhi, 1980.
Vimochana. Study of unnatural deaths of women in the city of Bangalore, 1998-1999
(unpublished).
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