thesis - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with...

414
THESIS LEGAL PROTECTION OF WOMEN : AN ANALYTICAL STUDY WITH SPECIAL REFERENCE TO DOWRY DEATHS IN THE STATE OF JHARKHAND THESIS SUBMITTED BY BHANU GIRI PURSUED UNDER SUPERVISION AND GUIDENCE OF PROF. (Dr) SHIV SAHAI SINGH (Retd.) DEPARTMENT OF LAW UNIVERSITY OF BURDWAN BURDWAN WEST BENGAL 713104

Upload: others

Post on 12-Jun-2020

5 views

Category:

Documents


0 download

TRANSCRIPT

Page 1: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

THESIS

LEGAL PROTECTION OF WOMEN : AN ANALYTICAL STUDY

WITH SPECIAL REFERENCE TO DOWRY DEATHS IN THE

STATE OF JHARKHAND

THESIS SUBMITTED BY

BHANU GIRI

PURSUED UNDER SUPERVISION AND GUIDENCE OF

PROF. (Dr) SHIV SAHAI SINGH (Retd.)

DEPARTMENT OF LAW

UNIVERSITY OF BURDWAN

BURDWAN

WEST BENGAL

713104

Page 2: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

Prof. (Dr.) Shiv Sahai Singh (Retd.) THE UNIVERSITY OF BURDWAN

M.A.,LL.M,Ph.D GOLAPAG, BURDWAN - 713104

Professor of Law West Bengal, India

Residence : Director (H), C.B. Singh law College Sonegaon (Dostpur Rd.) Akbarpur, Ambedkarnagar – 224122 (U.P) Mob : +91 943405934

CERTIFICATE

I have great pleasure to certify that Mr. Bhanu Giri, Guest lecturer in Law, has

done his research work on “LEGAL PROTECTION OF WOMEN : AN ANALYTICAL

STUDY WITH SPECIAL REFERENCE TO DOWRY DEATHS IN THE STATE OF

JHARKHAND” under my supervision and guidance for the award of Ph.D Degree in Law.

He has complied with all the formalities including delivery of two seminar lectures for

submitting the thesis leading to the Ph.D Degree in Law, University of Burdwan.

This is also to certify that no research work has, to the best of my knowledge, been done

on this topic in such format in any Indian or Foreign university and that work has been

done by the Researcher himself

Burdwan

(Prof. S S Singh)

Page 3: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

CONTENTS

i) Preface I - IV

ii) Acknowledgement V

iii) Abbreviations VI

iv) Figures & Table VII - XIII

Chapter – 1

INTRODUCTION 2 - 48

Chapter – 2

EXISTING LAWS ON WOMEN IN INTERNATIONAL

LAW 49-173

2.1 Universal Declaration Of Human Rights ( UDHR) 49

1.0 Women In Western World 5

1.1 Women In Eastern World 7

1.2 Position Of Women In Nineteenth Century 10

1.3 Position Of Women In Ancient India 15

1.4 Position Of Women In Medieval Period 17

1.5 Position Of Women In Modern Period 18

1.6 Position Of Women After Independence 19

1.7 Women’s Liberty 22

1.8 Attempts For Empowering Women 28

1.9 Requirement Of 21st Century 36

1.10 Empowerment Of Women 39

1.11 Joint Effort Of Women And Society 42

Page 4: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

2.2 Bangkok Declaration 59

2.3 Convention On Political Rights On Women 60

2.4 The Convention On The Nationality Of Married Women 64

2.5 Declaration On Elimination Of Discrimination Against Women, 1967 67

2.6 Convention On The Elimination Of All Forms Of Discrimination Against Women 69

2.7 Members And Ratification 74

2.8 Convention On Preventing And Combating Violence Against Women And Domestic

Violence 85

2.9 Global Implementation Plan To End Violence Against Women And Girls 90

2.10 United Nations Commission On The Status Of Women 93

2.11 Global Implementation Plan 97

2.12 United Nations Millennium Declaration, 2000 113

2.13 World Summit 2005 115

2.14 Legal Protection Of Women In Pakistan: 119

2.15 Legal Protection Of Women In Bangladesh 125

2.16 Legal Protection Of Women In Sri Lanka 138

2.17 Legal Protection Of Women In China 147

2.18 Legal Protection Of Women In UK 152

2.19 Legal Protection Of Women In Russia 156

2.20 Legal Protection Of Women In USA 163

2.21 Legal Protection Of Women In Australia 166

2.22 Legal Protection Of Women In South Africa 170

Chapter – 3

LEGAL PROTECTION OF WOMEN IN INDIA 172 -232

3.1 Legal Protection Of Women In India 175

3.2 Legal Provisions 179

3.3 Special Initiatives For Women 181

3.4 Protection Of Women From Domestic Violence Act 2005 182

3.5 State Legal Services In India 187

Page 5: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

3.6 Women-Specific Legislations 188

3.7 Women-Related Legislations 189

3.8 The Immoral Traffic (Prevention) Act, 1956 192

3.9 The Dowry Prohibition Act, 1961 195

3.10 Other Provisions : 197

3.11 The Indecent Representation Of Women (Prohibition) Act, 1986 199

3.12 The Commission Of Sati (Prevention) Act, 1987 (3 Of 1988) 201

3.13 Fundamental Opposition 204

3.14 Indian Penal Code 206

3.15 Protection Of Women From Domestic Violence Act, 2005 213

3.16 The Protection Of Women Against Sexual Harassment At Work Place Bill, 2010: 222

3.17 Amendments To The Indian Penal Code 230

Chapter – 4

THE JUDICIAL EFFORTS TOWARDS WOMEN

PROTECTION 233-287

4.1 Efforts Of Supreme Court Of India 234

4.2 Trial Court Can Issue Direction To Initiate Disciplinary Proceedings Against Corrupt

Io, Medical Officer 249

4.3 Judicial Responses To Domestic Violence 254

4.4 Enforcing Laws 255

4.5 Exercising Discretion 256

4.6 Establishing Policies And Procedures 258

4.7 Advocacy Strategies For Judicial Reform 260

4.8 Legislative And Judicial Initiatives Towards Women Empowerment 262

4.9 Public Interest Litigation In India 268

4.10 A Defence Of ‘Judicial Activism’ 271

4.11 Khap Panchyat 275

4.12 Court Judgement Against Khap 281

4.13 Some Cases Of Honour Killings In India 284

4.14 Supreme Court's Criticism On Khap Panchayats 286

Page 6: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

4.15 Conclusion 287

Chapter – 5

DOWRY DEATH - A CASE STUDY OF JHARKHAND

STATE 289-368

5.1 Introduction 289

5.2 History Of Dowry System In India 292

5.3 Law Against Dowry System 293

5.4 Case Study On Dowry Death In The State Of Jharkhand 294

5.5 Some Case Studies Of Dowry Deaths In Jharkhand 302

5.6 Special Cell To Check Crime Against Women 366

Chapter – 6

Conclusion 370 -386

Bibliography 387-395

Page 7: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

i

PREFACE

Women constitute about half of the global population, but they are

placed at various disadvantageous positions due to gender difference

and bias. They have been the victims of violence and exploitations by

the male dominated society all over the world. Ours (India) is a

tradition bound society where women have been socially, physically,

economically and sexually exploited from time immemorial.

Sometimes in the name of religion, sometimes in the pretext of

customs and sometimes by the social sanctions.

The Universal Declaration of Human Rights (UDHR) 1948

proclaims: ‘All human beings are born free and equal in dignity and

rights’. But women’s freedom, dignity and equality are constantly

deprived all over the world, in the last two-three decades in particular.

So far many global initiatives have been taken to promote women’s

right. They include the declaration of decade for women (1975-85),

World conferences on women, the adaption of Beijing’s declaration

and platform for action. Inspite of all these initiatives, progresses in

the achievement of women’s rights have become slow worldwide.

More than 65 years after independence – the Indian women are still

unfree, exploited, sold as commodity, and liquidated without the law

held hostage by and exploitative combination.

The incidence of domestic violence against women has been

increasing over the years. Women are subjected to violence mainly

cruelty by husband or his relatives, dowry deaths, grievous heart etc. it

is matter of irony that instead of Protection of Domestic Violence Act,

2005 passed by Indian legislature. It is indeed true that the crime

Page 8: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

ii

graph of atrocities on women has scaled alarming peaks in our

country, cases of dowry deaths, bride burning; honour killing and

suicide etc. have become a regular affair.

Dowry and dowry related murders and suicides are such evils in the

society which are putting the society to a great shame. As the law for

consumerism is increasing, so is the greed for dowry. Some bride

groom and his parents / family members want their needed consumer

articles to be supplied by the bride parents/family members. Failing to

get them satisfied, they sometime twist the arm of the bride so much

that it breaks. They either murder her or induce her to commit suicide

by their persisting cruelty, harassment, taunts, insults and humiliating

behaviour.

To eradicate these evil designs the criminal law has been amended but

with not much successes. It has been laid down that if a married

women dies within 7 years of her marriage in suspicious

circumstances, the matter has to be investigated. It may be a dowry

murder or induced suicide. New sections in Indian Panel Code i.e,

section 304B, section 498A have been inserted in respect of dowry

deaths and cruelty by husband or relatives of husbands.

Similarly, law of evidence has also been amended and section 113A

and 113B have been inserted which have been strengthened the hands

of prosecution by permitting a presumption to be raised if certain facts

are established and the unfortunate event has taken place within 7

years of marriage.

It’s really important to note that the offences against married women

are normally committed within their houses, therefore it’s not expected

Page 9: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

iii

that physical torture or abuses couldn’t cause to the women. Dowry

deaths occur within four walls of the in-laws house of the bride. There

can be no direct evidence available for the offense of dowry deaths.

Therefore, the courts are to rely on circumstantial evidence.

It is of course true that every effort is been made to control it by

legislation. The legislation on the subject enacted by parliament i.e.

the Dowry Prohibition Act, 1961 and the far reaching amendments

which have been made in the Act by number of states have not been

subsided in combating the evil.

Its therefore, appears that there are legal provisions no doubt, but how

far these provisions safeguard women’s interest? The laws, both

substantive and procedural have failed to facilitate the punishment to

the guilty and to create fear in the minds of culprits.

The judicial system at the higher level seems to be alive to this social

melody but this progress attitude is a poor substitute of injustices and

harassment of suffering families. The casual manner, in which the

cases of bride burning are investigated, prosecuted and tried shows a

lack of concern by various functionaries of the criminal justice system.

The husband and in-laws escape punishment on account of many

loopholes in our existing criminal justice system. Thus, the present

study will undertake an impact analysis of existing legal system in

India combating such type of crimes. Then it will spell out the

justification for a special law for the protection of women. In this

context case studies of Jharkhand state have been undertaken. The

effective functioning of the family courts, the role of various NGO’s

and national commission for women has also been undertaken

Page 10: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

iv

thoroughly which will recommend a legal strategy on its impact.

Further, it will help to identify the lacunas and limitations in the

existing legal regimes.

( Bhanu Giri )

Page 11: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

v

ACKNOWLEDGEMENT

Writing of thesis on the subject of problems of women was not at all

an easy task for a researcher like me. This could not have been

possible without the able guidance and encouragement of my

supervisor. I express my heartfelt respect and gratitude to my guide

Professor(Dr) Shiv sahai Singh , the retired professor of Department

of Law, University of Burdwan, Golapbag, Burdwan ( W.B) for his

untiring supervision and good guidance in writing and presenting the

thesis for Ph. D degree in Law. I also express heartfelt thanks and

gratitude to Dr. Manik Chakraborty, Dr Sarit Sadhu and other faculty

members of the Department of Law, University of Burdwan for their

moral support.

I extend heartfelt thanks to my wife Kumudji, loving sons Ved

Prakash and Siddharth for their unflinching support in writing and

collecting the datas, figures etc. whenever and wherever required. The

help and support of the Librarian and other staffs of Indian Law

Institute, New Delhi is unforgettable.

I am indebted to all my friends and well wishers of Lions Club of

Bokaro Steel City, especially Mr K. O. Oommen and Mrs Shanta

Oommen, Principal, M G M Junior School , Bokaro Steel City, Dist-

Bokaro in the State of Jharkhand for their good wishes and

encouragement for writing the thesis.

( Bhanu Giri )

Page 12: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

vi

A B B R E V I A T I O N

BIHR - Bangladesh Institute Of Human Rights

BPfA - Beijing Platform for Exchange

BLAST – Bangladesh Legal Aid And Services Trust

CEDAW – Convention on Elimination of Discrimination of all forms of Women

Cr.P.C - Criminal Procedure Code

EEA - European Economic Area

EGM – Expert Group Meeting

HDI – Human Development Index

ICC – Internal Complaints Committee

LCC – Local Complaints Committee

MDG – Millennium Development Goal

NGO – Non Governmental Organisation

NPAGE – National Plan Of Action on Gender Equality

NRM - National Referral Mechanism

NCW – National Commission for Women

PA – Public Association

PO – Prosecuting Officer

R2P/RtoP – Responsibility to Protect

UKBA – United Kingdom Border Agency

UNDP – United National Development Programme

VAWA – Violence Against Women’s Work

WHRN – Women’s Human Right Network

WIDM – Womens Independent Democratic Movement

Page 13: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

1

1

Introduction

Page 14: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

2

Twenty first century has brought in its trail a new hope for women.

Dramatic changes have happened in the role, ambitions and attitude of

women in the last few decades of twentieth century. Women have

departed from their traditional role of reproducers, mothers and wives

only. From a non-entity, they have been able to establish an identity of

their own in the modern society.

The whole situation in today’s women world leads to some basic

questions. Do women feel insecure, unhappy and dissatisfied more than

their predecessors? Why are they confused about women’s role and

position in modern society? Is employment making women

economically strong, but socially and emotionally broken? What can be

done to empower women? Is there any mid-way, which could make

women secure, aware, confident and happy without disturbing the

familial1 peace and social harmony?

1 familial - relating to or having the characteristics of a family; "children of the same familial background"; "familial

aggregation"

Page 15: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

3

1. Why women are relegated to secondary position? Women comprise of

50% of the world population1. It is an anomaly that though they possess

diverse capabilities and are of valuable service in various nation-building

activities, they had been relegated to secondary position till very recent

past by the modern society. Why? Is it because they belong to weaker

sex? Or they are incapable or incompetent? No, it is not so.

2. It is appointed to ponder why modern women are still insecure and

unhappy, despite attaining so much success in almost every sphere of

modern world. Women have played multiple roles in life and in each

role their performance is par excellence. Still Women-folk have to suffer

innuendo2 physical and emotional problems despite of all the changes

and developments happened in the modern women’s world. The position

of women in real life is still far from satisfactory. There is still a deep

entrenched discrimination against them almost in every walk of life. It

crosses all the borders, age of region, caste, class or community.

3. Why is she confused about what her role should be in real-life?

Feminist Movement3 for empowerment

With changing times, women risen up to situation

Modern women have proved that they are second to none, whether it is

home or outside home at their workplace. Even in areas which are far

away from their traditional role as a housewife. With changing times,

they have risen up to the occasion and managed the work both inside and

outside the home at her work place. – Such as in industry, media, IT,

1 Empowerment of Women in modern India . “An enlightened women is a source of infinite energy” by Swami Vivekanand 2 innuendo - an indirect (and usually malicious) implication 3 The feminist movement (also known as the Women's Movement, Women's Liberation, or Women's Lib) refers to a series of campaigns for reforms on issues such as reproductive rights, domestic violence, maternity leave, equal pay, women's suffrage, sexual harassment, and sexual violence, all of which fall under the label of feminism.

Page 16: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

4

politics, technology, administration/ management, armed forces or civil

services.

At home, they rear children with love and affection at home and manage

household activities. They have shown their capability to deal with

the recent economic depression - a situation of – with ingenuity. Like a

financial expert they meet the challenges of the present times of ever

rising prices in their own income.

Outside, they work shoulder-to-shoulder with men almost in all the

areas. They are educated. Many of them are financially independent.

Modern women1 are more aware than their predecessor of their rights

and are keen to exercise them. They know their worth in within the

family, in the society and in the world.

It did not happen overnight. Women fought a fierce battle to reach up-to

present position. They continuously worked hard to get equality, liberty

and opportunity.

Movement for empowerment of women

Woman’s movement for empowerment in India is quite different from

the similar movements in Western nations.

1 Modern Women referring to women of 20th Century.

Page 17: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

5

1.0 WOMEN IN WESTERN WORLD

In the West, since beginning its focus was on establishing an

independent identity of a woman free from male domination. The

feminist movement in the West laid great stress on the freedom and

liberty of women. It resulted in reacting aggressively against patriarchal

system of society and male chauvinism.

Since Feminist movement for liberation and other revolutions took place

in western world, the western society realized much earlier the need to

improve the position of women in society. There the governments and

the society made many efforts/reforms – legal, social, economic and

political too gave to women more and more freedom and liberty to take

their own decision without being influenced by the men-folk.

Women of Western world today enjoy more privileges in matters of

education, employment, freedom, liberty & equality than their

counterparts in eastern world.

Margaret Thatcher1, the Prime Minister of United Kingdom during late

eighties led her country from a bad economic condition to success. She

has shown to the world that in a democracy, it is not necessary to bow

down before the unreasonable demands of pressure groups or abandon

useful but unpopular policies in order to win an election. Gorabachov’s2

Soviet Union watched with interest her efforts for economic

development. She has shown to the world that women are capable of

wielding political power even in a “Developed country” like England.

1 Margaret Hilda Thatcher, Baroness Thatcher, LG OM PC FRS was a British politician who was the Prime Minister of the United Kingdom from 1979 to 1990 and the Leader of the Conservative Party from 1975 to 1990. 2 Mikhail Sergeyevich Gorbachev is a former Soviet statesman, having served as General Secretary of the Communist Party of the Soviet Union from 1985 until 1991, and as the first president of the Soviet Union from 1990 until its dissolution in 1991

Page 18: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

6

“But the erosion of family values and decay of day today ‘social life’ has

always been a matter of concern USA and the West. There people and

leaders regularly call for the restoration of social/family values and

systems, which basically depend on culture of ‘inclusiveness’ and not on

the concept of ‘exclusiveness’, which Western societies glamorizes.”1

1 Ref. Patricia Jeffrey, Frogs in a Well: Indian Women in Purdah (New Delhi: Vikas, 1979), p. 174.

Page 19: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

7

1.1 WOMEN IN EASTERN WORLD

The eastern world, especially nations in Asia are still struggling to give

to its women their rightful place. Problems of high female mortality rate,

sexual harassment, deaths during childbirths still exist there. There are

millions of women who have go through sexual harassment, domestic

violence, discrimination, abuse or are denied of pleasures of life because

of their gender. Their problems are deeply ingrained in the history, laws

and cultures of complex and sophisticated Asian societies.

Beauty of Indian movement1

In India, initially the focus of the movement for emancipation

/empowerment of women-folk were to improve and not to denounce

the traditional values and systems. It was to lead women to freedom and

remove darkness spread all over due to the apathy of powerful lobbies of

the society, which crushed the spirit of men and women alike. It aimed to

empower not only the women, but the nation as a whole. Therefore,

under the guidance, encouragement and support of eminent male leaders

like Gandhi, Nehru, Patel and social reformers like Raja Ram Mohan

Roy, Ishwar Chandra Vidyasagar, Vivekananda etc., women in India

also challenged those quarters which were interested in holding all

backwards.

Being under the foreign domination, India suffered for a long time due to

multiple ills – poverty, illiteracy, ignorance due to superstitions and

blind following of outdated customs and social practices, women being

the worst victim. Therefore, the movement for empowerment focussed

on education, social and legal reforms like equal civic, personal and

1 Indian Movement refers to the various movements started during the pre-independence period in early19th century.

Page 20: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

8

property rights to men and women. Stress was laid on ‘Stree Dharma’1

(fundamental duties of women). The strength of the whole movement

was based on its being above party, caste or communal politics.

Confusion in women’s mind about their role in life

There is a confusion in women’s mind as well as to what should be their

role in life – that of a home-maker or a career woman. On one hand they

are under constant pressure, because psychological strains are created by

the need to conform to socially induced images of femininity – to be a

good wife, perfect mother and efficient home-maker. On the other, desire

to establish their own identity or financial strains in family life force

them to become career women.

Why Indian women feel insecure in general?

Generally women suffer deprivation, discrimination, humiliation and

denial of basic human rights in varying degrees at some point or the

other. Discrimination against them is at every stage of life and

everywhere. It may be a girl child, a married woman, a single woman, a

working woman, refugees or women belonging to lower, middle or

upper strata of society.

In India, women in general form one of the most vulnerable sections of

Indian Society. Women are at disadvantage due to:

Class oppression due to poverty,

Economic dependence on male counterpart,

Caste oppression due to inter caste clashes

Social taboos and

Gender oppression

1 Shweta Singh (2009). Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti - In The Woman Question in the Contemporary Indian English Women Writings, Ed. Indu Swami, Sarup: Delhi.

Page 21: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

9

Increasing number of crimes.

Many transitions in one life for a woman

A woman faces many transitions in one life. Almost every tenth year

brings a major change in her life. With each transition, her role and

position in society changes drastically. She needs attention, support, care

and love of her near and dear ones during transition from one phase to

another – in her childhood of her parents and close relations, in her youth

of her spouse, in her old age of her sons and daughters. It is usually

apathy of people concerned, at every stage of her life, which makes a

woman’s life miserable. Discrimination against her starts much before

she is born- in the form of feticide and continues till her last breadth.

Unfortunately, most of the times, it is her own family and people, who

are responsible for her sufferings. Women generally prefer to suffer

silently than to go to courts or seek justice in the courts/state authorities

or any outside agency. The consumerist culture has increased atrocities,

domestic violence and physical assaults on women.

Page 22: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

10

1.2 POSITION OF WOMEN IN THE NINETEENTH

CENTURY

Up-till the beginning of twentieth century women in India along with

other women all over the world were hedged in by many social,

economic, legal and religious restrictions. Most of them were illiterate,

ignorant and confined them within the four walls of the house for

centuries. They were not aware of their rights. Ignorance and deprivation

were accepted as their lot. They were far away from the mainstream, cut

off from all the communications with outside world and generally

confined within the four walls of their house.

Still victims of social evils and discrimination

A large number of women are still victims of many evil social customs

and traditions, which are ingrained in the history, culture and laws of the

patriarchal system of society. Most heinous crimes are still done against

women irrespective of caste, creed, time or place such as infanticide,

feticide, physical abuse, early marriage, illiteracy, unequal rights in

marriage, divorce, rape, molestation, dowry deaths, inheritance,

polygamy, inauspicious widowhood with severe disabilities and

restrictions, restrictions on widow remarriage or Sati etc.etc,. The list is

endless. Crimes against women are increasing every day.

Declining Sex-ratio

Societal bias against women continues as revealed by falling sex-ratio.

India may be progressing economically, but socially it is on its back

gear. On gender issues it lags behind alarmingly – be it sex-ratio or

number of crimes, as statistics show, against women1. On paper there are

1 "CIA Fact Book". The Central Intelligence Agency of the United States.

Page 23: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

11

enough laws to tackle the issues, but without much positive results. The

sex ratio has steadily declined over the 20th century

1. The sex ratio in

1901 census was 975 female to every 1000 males. Now according to

provisional data of Census 2011, released on 31st April 2011, national

sex ratio is 940 females for every 1000 males in 2011; child sex

(0-6years) has worsened to 914 in 2011 from 927 in 2001. Decline is

unabated since 1961 Census.2

Poor statics in other spheres as well

As for health-care, the National Sample Health Survey showed that over

50% of women are anaemic. India’s maternal mortality ratio is highest in

South Asia: 540 deaths per 1, 00,000 live births. Though 70% of the

female labour force works is in agriculture, less than 10% of women

farmers are landowners. Nearly half the women in India are still

illiterate. Literacy rate 65 years after independence has reached for

females only up to 65% (total being 74% and for males 82%).3

Reasons for sufferings/insecurity of women-folk are many like -

Indifferent attitude – The male-dominated society and callous

government usually turns a blind eye to the gender issues, “Women have

to face an uphill task for taking women’s issues as, firstly most people

are indifferent to atrocities that do not affect them, and it is only a

microscopic minority, which reacts. Secondly, the administration and

judiciary are very slow in reaching and taking any kind of measure and

sometimes even stall the proceedings.”4

1 Grech, V; Savona-Ventura, C; Vassallo-Agius, P (2002). "Unexplained differences in sex ratios at birth in Europe and

North America". BMJ (Clinical research ed.) (BMJ, NCBI/National Institutes of Health) 324 (7344): 1010–1. PMC 102777. PMID 11976243. 2 Source : http://censusindia.gov.in/2011census/hlo/HLO_Tables.html 3 Source : (TOI, 8.3.07, P.18) 4 Mr. P.A. Sebastian, Secretary of the Committee for People’s Democratic Rights

Page 24: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

12

Strains on modern families – A modern woman, when in need, does not

find enough support systems to fall back on, which usually her own

family used to provide earlier. Due to fast-pace of modern life, busy life-

style, lack of time and other constraints on modern families, it has

become almost impossible to get earlier kind of emotional or physical

support. Many surveys show that a significant number of women leave

workforce when they start a family. Maternity is usually seen as a

disruption in career. There is a dramatic decline in the share of women as

they move up the hierarchy.

Growing intolerance amongst youths – The tolerance level of people is

continuously decreasing. Aspirations and ambitions have increased

beyond limits. Everybody wishes to touch the sky with least effort and

with no loss of time. Failure in achieving one’s targets due to one reason

or the other, make a person intolerant and angry.

Liberal ‘divorce’ laws – In metros and modern families, marriages are no

more considered to be a lifelong commitment. Intolerance amongst

youth is increasing. A woman cannot be sure due to lack of mutual

understanding, how long her marriage will last. It does not take much

time or effort for both the couple to walk out. A little bit of intolerance

or misunderstanding puts her married status in danger and compels her to

cope up with all kinds of problems and difficult situations single-

handedly.

Adversities of life arising out of economic, social, psychological and

environmental situations hit women’s world worst. During times of war,

struggle, unstable economy, natural calamities and infighting amongst

various sections of society or inter-group or intra-group clashes, women

along-with children are the primary victims and are worst hit.

At times in an attempt to safeguard/uphold their independence/authority

within the family or at working place, some women become insensitive,

Page 25: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

13

narrow minded and sometimes ruthless. Too much of assertion of their

independence or authority create complications in their own life and in

others’ lives as well, which ultimately develop insecurity in

women’s minds.

Government of India has made some draconian1 laws in favour of

women with an intention to protect them from violence and

discrimination. Instead of gaining the sympathy of society or the

opposite sex, they have earned the wrath/ire of menfolk and the society.

Such laws are being misused by some shrewd women to teach

men/society a lesson. Male members or his relatives cannot even raise

their voice against the misuse of such legislations.

Government’s inefficiency/failure to implement honestly and sincerely

the laws passed to protect the interests of women.

Disoriented psyche of Modern Woman

It has been observed that too much stress on women’s liberty has

developed in women a disoriented form of psyche, where nothing but

‘self’ matters – ‘I, my and me’. Women too like men are now in a rat

race for power, position and money. Self-gratification and heroism

(feeling of being super women) is taking prevalence over social

responsibilities. Breaking down of value system is affecting adversely

familial bonds or bonds of marital loyalty. They are in a hurry to fulfil

their desires and in the process end seems to justify means. Such an

attitude has led to a situation, where they do not want to compromise in

any way their time and resources, most of the times not even for their

own children. Modern women many a times do not find or devote

enough time to inculcate positive values in the minds of growing-up

1 A code of laws prepared by Draco, the celebrated lawgiver of Athens, that, by modern standards, are considered exceedingly severe. The term draconian has come to be used to refer to any unusually harsh law.

Page 26: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

14

children. Rising number of different kinds of crimes and lawlessness in

the society as well as in the nation is to some extent.

Page 27: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

15

1.3 POSITION OF WOMEN IN ANCIENT INDIA

The position of women was not always so bad in India. In ancient India,

during the Vedic period1, women were placed on a high pedestal. In her

role of a good wife and a worthy mother, she commanded a great deal of

respect and honor in the society. They were known for their mental

alertness, intuition and spiritual qualities of love and service. The best of

qualities a human being can possess like knowledge, wealth, strength

and ability to provide food and shelter were all visualised in the form of

woman – Saraswati, Laxmi, Durga, Annapurna respectively. She had

freedom and access to education and knowledge. Gargi2 and Maitreyi

3

are well known for their pursuit of knowledge. “Yatra Naryastu

Pujyante, Ramate Tatra Devata”4, meaning where woman is worshipped,

there resides god.

During later period of Vedic age, as described

in Brahamanas and Sutras, women lost their independence and their

status was degraded to that of ‘Shudras’5. Women were regarded as unfit

for independent life. After the revival of Hinduism, according to Chinese

traveller’s, marriages between men of higher castes and women of lower

castes were permitted and their offspring’s were given a recognised

1 D.N. Jha, Ancient India: An Introductory Outline (New Delhi: People's Publishing House, 1981), p. 11. The Early Vedic or kg Vedic age which begins from 1500 B.C. and the post-Vedic age which extends from 1000 B.C. to 500 B.C. 2 Gargi, the Vedic prophetess and daughter of sage Vachaknu, composed several hymns that questioned the origin of all existence. When King Janak of Videha organized a 'brahmayajna', a philosophic congress centered around the fire sacrament, Gargi was one of the eminent participants. She challenged the sage Yajnavalkya with a volley of perturbing questions on the soul or 'atman' that confounded the learned man who had till then silenced many an eminent scholar. Her question - "The layer that is above the sky and below the earth, which is described as being situated between the earth and the sky and which is indicated as the symbol of the past, present and future, where is that situated?" - bamboozled even the great Vedic men of letters. 3 Maitreyi :The Rig Veda contains about one thousand hymns, of which about 10 are accredited to Maitreyi, the woman seer and philosopher. She contributed towards the enhancement of her sage-husband Yajnavalkya's personality and the flowering of his spiritual thoughts. 4 Maharshi Manu, who set the code of conduct for Indian society. 5 Shudra is the fourth Varna, as prescribed in the Purusha Sukta of the Rig veda, which constitutes society into four varnas or Chaturvarna. The other three varnas are Brahmins; Kshatriya, and Vaishya.

Page 28: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

16

position in society. Marriages of widows were dis courage, custom of

Sati was established, but child marriage was unknown. Women were

taught Arts and Shasta’s as well.

Page 29: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

17

1.4 POSITION DURING MEDIEVAL PERIOD

Seventh century onwards, with the downfall of Hindu Raj and

continuous invasions of Turks, Afghans and Mughals, the position of

woman deteriorated fast. Right to education was taken away from them.

They became the victims of illiteracy, ignorance, complete male-

domination and many kinds of religious and social restrictions.

Patriarchal system institutionalized unequal nature of family laws and

traditions. Property was inherited only by sons.

In some parts of northern India, Bengal and Rajputana, women from

families of Rajah, Chiefs, Zamindars and upper castes suffered from

social evils like ‘Purdah system’ 1, ‘Sati Pratha,

2 ‘dowry’ ‘polygamy’

and ‘infanticide’, renunciation of all the comforts and happiness by

widows (young or old). In Maharashtra, these evils were curbed to some

extent by the energetic steps taken by Peshwa.3

Nevertheless, this does not mean that there were no exceptions to this

rule. Even during those days, there were a few great women like Rani

Laxmibai, Chand Bibi, Milya Bai, Razia Sultana etc. who came into

forefront, led people and earned fame and respect of people.

1 Ref. Asha, S. “Narrative Discourses on Purdah in the Subcontinent.” ICFAI Journal of English Studies 3, no. 2 (June 2008): 41–51: Purdah has "visual, spatial, and ethical dimensions".It refers to three main components: veiling of women, segregation of sexes, and a set of norms and attitudes that sets boundaries for Muslim women’s moral conduct. 2 Ref. Doniger, Wendy (2009). The Hindus: An Alternative History. Penguin Books. p. 611. ISBN 9780143116691.: A social funeral practice among some Indian communities in which a recently widowed woman would immolate herself on her husband’s funeral pyre 3 A Peshwa is the titular equivalent of a modern Prime Minister. Maratha ruler Shahaji created the Peshwa designation in order to more effectively delegate administrative duties during the growth of the Maratha Empire.

Page 30: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

18

1.5 POSITION OF WOMEN IN MODERN PERIOD

During the second half of the nineteenth century, modern education drew

the attention of some sensitive Indians and reformers like Swami

Dayanand, Maharshi Karve, Raja Ram Mohan Roy, and Gandhiji etc.

towards the oppressive and evil social customs, practices and traditions.

They tried to put to an end those evil practices. They worked for the

better future and emancipation of women community. Inspired by

Gandhiji, many women from well to do and middle class families not

only received education, but also came out to take part in public life.

Women’s Associations were formed all over the country. All India

Women’s Conference 1was formed in 1926 and is working since then to

support legitimate demands of women.

All India Muslim Ladies Conference2 was started in 1914. Leading

Muslim ladies demanded abolition of Purdah system3, restrictions on

polygamy and spread of education for women. They were supported by

reformists.

Wives of some viceroys showed interest in the uplift and

education of women and helped in opening some colleges and institution

for them. In 1923, due to sincere efforts of Mrs. Ramabai Ranade,

Women India Association was formed with branches all over the

country. It rendered valuable service to the cause of women.

1 The All India Women's Conference (AIWC) is an organization based in Delhi. It was founded in 1927 by Margaret Cousins, "as an organization dedicated to upliftment and betterment of women and children". As well as continuing its original mission, the AIWC has since diversified into various social and economic activities involving women. Today there are more than 100,000 members in over 500 branches. AIWC is recognized worldwide as a premier organization working for women's development and empowerment. 2 Father and Daughter: a political autobiography. Lahore: Nigarishat, 1971. Also: Karachi: Oxford University Press, 2002 0195796462 3 An MRG International Report Muslim women in India by Seema Kazi 1999

Page 31: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

19

1.6 POSITION OF WOMEN AFTER INDEPENDENCE:

Brighter Side of Women’s development

Since Independence, India is passing through times of rapid changes in

social behaviour. It is still in transitional phase. Government took upon

itself responsibility of protecting its women, providing them better

conditions of living, better education, better medical facilities, better job-

opportunities and opening up enough avenues for them to grow to their

fullest stature1.

Constitution of India gave them freedom, equality and access to

education and employment. Government of India issues guidelines, from

time to time, to Central and State Government for formulating and

implementing action programs for women2. It has identified areas of

health, family planning, nutrition, education, vocational courses for

women, employment, legal provisions and social welfare for its future

action plans.

Woman herself has become aware and confident of her mind,

capabilities and rights. She started questioning the stereo type

assumptions that went with womanhood. Gradual and greater awareness

has led her to make her own decisions. She made her own efforts for

welfare of women and secured more space in economic, political and

social spheres for them through the intervention of government’s

authorities. The older typical image, slowly and slowly, started getting

diffused. Women got a foothold in modern world and started leading

active life.

1 "Women in History". National Resource Center for Women. Retrieved 24 December 2006.

2 Kalyani Menon-Sen, A. K. Shiva Kumar (2001). "Women in India: How Free? How Equal?". United Nations. Archived

from the original on 11 September 2006. Retrieved 24 December 2006.

Page 32: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

20

A separate Department of Women & Child Development

In 1985, a separate Department of Women & Child Development 1was

set up within the Ministry of Human Resource development to

implement/monitor the comprehensive programs and to ensure all round

development of Women. National Perspective Plan (NPP) for women2

1988-2000 A.D. prepared a base for future strategies. It put a major

thrust in the programs for women development, particularly to raise the

social and economic status of women. It also instructs the Government to

ensure that women are properly covered by developmental schemes.

There had been many changes during last few decades of twentieth

century. Many bright and dynamic young women came forward and

joined the national mainstream through working and reaching at decision

making levels in different disciplines like politics, administration,

economics, technology, industry, journalism and other developmental

fields, which are far away from her traditional role of a housewife. Many

of them made their presence felt in Indian society. The name of Mrs.

Indira Gandhi, former Prime Minister (1965 to 1984) is worth

mentioning here. At present, everybody is well aware of the important

place occupied by Sonia Gandhi and her role in Indian politics. However

the number of women who have joined the main-stream is very small.

1 Department of Women and Children: The broad mandate of the Ministry is to have holistic development of Women and Children. As a nodal Ministry for the advancement of women and children, the Ministry formulates plans, policies and programmes; enacts/ amends legislation, guides and coordinates the efforts of both governmental and non-governmental organisations working in the field of Women and Child Development. Besides, playing its nodal role, the Ministry implements certain innovative programmes for women and children. These programmes cover welfare and support services, training for employment and income generation, awareness generation and gender sensitization. These programmes play a supplementary and complementary role to the other general developmental programmes in the sectors of health, education, rural development etc. All these efforts are directed to ensure that women are empowered both economically and socially and thus become equal partners in national development along with men official website: http://wcd.nic.in/aboutus.htm 2 National Perspective Plan for Women, 1988-2000 A.D.: Report of the Core Group Set Up by the Department of Women & Child Development, Ministry of Human Resource Development, Government of India, 1988 India. Dept. of Women and Child Development

Page 33: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

21

Twenty first century has brought a new hope for women. Many women

have joined the workforce and become quite ambitious about their own

career in the same manner as men are. However the number of women

who have joined the main-stream is very small.

Darker Side - In general, women are still victims of discrimination.

Page 34: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

22

1.7 WOMEN’S LIBERTY

The darker side of women’s lib is that woman who acted as a pivot

around which the whole familial and social life revolved, is losing her

grip and is under the influence of her whims and fancies. She is

becoming more and more aggressive and rude, most of the time shouting

on others and showing all kinds of tantrums – emotional and violent

outbursts1.

Is Child-care a dilemma2? -Child care and proper upbringing of small

children, who need twenty four hours mothers’ attention and presence at

home has become a dilemma for career women. Parenting and

inculcating right values in children requires a lot of time and patience

during a child’s growing years.

Dearth of time and required attention of parents at right time, lack of

stimulation at home, while children are growing up, tense atmosphere

and impaired relationships between parents, dictatorial handling of

children during their tender age and easy availability of and access to

money tempts children to bad habits.

The concept of spending ‘quality’ or ‘quantity’ time with children does

not work well. Many parents buy materialistic goods for them to clear

their guilt conscience of not being there for them. In the dual worker

families with dependent children, the concerns can range from sheer

logistic problems associated with providing proper child-care to

emotional challenges tied to not being there, when one’s children are

growing.

1 Jayapalan (2001). Indian society and social institutions. Atlantic Publishers & Distri. p. 145. ISBN 978-81-7156-925-0.

2 Pruthi, Raj Kumar; Rameshwari Devi and Romila Pruthi (2001). Status and Position of Women: In Ancient, Medieval

and Modern India. Vedam books. ISBN 81-7594-078-6.

Page 35: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

23

It is the irony of the modern times that when children need their mothers

the most, a modern career mother hardly gets time to spend with them.

Her mind remains busy in unresolved problems of work-place and her

career prospects, even at that time too, when she is at home. When she

finds spare time, her children do not need her much, as they get involved

in schools or in other activities elsewhere and remain busy in their own

world.

Alienation1 – Sometimes, improper handling during their tender age may

make children irritant or undisciplined or hamper normal growth of

children’s abilities. Many children develop the feeling of alienation and

revolting indulgence. They may become uncommitted to values of their

parents or the ‘establishment’. Some of them become the victim of

harmful evils like drug addiction (an evil, which has come across as

shockingly and poignantly) in order to escape from problems that may be

real or imaginary.

To prevent such harmful evils from spreading in the society, it is

necessary that parents shall find out enough time for their children. It

would develop in children feeling of interdependence and a feeling of

being wanted and being loved. They should provide them a secure and

stable home environment. Children can be kept busy with sports, hobbies

and other useful activities, which could which could slant them away

from evil outlets.

Support systems – There exist many support systems, but not without

constraints. If young couple depend on their old parents or in-laws for

taking care of their children and in performing daily household chores,

they become overburdened and find it difficult to cope with the

1 Shweta Singh (2009). Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti - In The Woman

Question in the Contemporary Indian English Women Writings, Ed. Indu Swami, Sarup: Delhi

Page 36: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

24

responsibilities properly due to their failing health. If they depend on

servants, they are expensive, unreliable, untrained and do not stay around

for long.

Crutches/day care centre, are overcrowded and are run more on

commercial basis rather than paying attention required for proper

upbringing of children. Besides a mother’s role is so crucial that nobody

else can substitute her for cultivating positive qualities, which once

imbibed, would inevitably became part of one’s nature and provide the

guidelines for wholesome behaviour patterns.

In short, career women themselves are overburdened. Neither they could

do full justice to home-tasks nor to their duties at work place. At home,

their kids are deprived of the tender and affectionate care and love of the

mother. The nation is at loss from having confident and healthy citizens

– mentally, physically and economically. Such a dilemma is seen not

only in India, but in advanced countries too, where government has

created enough facilities and arrangements to make their citizens secure

and comfortable.

Plight of an urban woman1

Two income families are fast becoming the norm of urban modern

society. It puts a great pressure on urban women. Modern trend of

nuclear family system and desire of liberated woman for complete

freedom have aggravated their problems2.

The urban women have to suffer mainly due to lack of support systems.

Old traditional support systems are gradually vanishing and new systems

1 Advani, Abhishek (17 November 2009). "JP Morgan's India CEO". Forbes. Retrieved 23 January 2012

2 "Women of India: Frequently Asked Questions". 19 December 2006. Retrieved 24 December 2006

Page 37: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

25

supposed to replace them are not up to the expectations and satisfaction.

For some couples day-care or crutches are too expensive.

In addition to it, increased necessities due to consumerism and lure for

luxury items have added to the miseries of urban women, who suffer

more than a rural woman due to social evils like infanticide1, dowry,

divorce, child care, polygamy2 etc.

Plight of rural women

In rural India, most of the women are victim of poverty, ignorance,

illiteracy and unemployment. Rural women irrespective of caste or class

have to suffer more than urban women in three critical areas: –

Ø Access to education,

Ø Reproductive health, and

Ø Credit Resources.

Illiteracy is wide spread in rural areas, which has made rural women

superstitious, unemployable and victim of different kinds of oppressions.

Poverty frequently pushes unemployed men to go to distant places in

search of jobs and leave their families behind. Most of rural women in

about 30% to 35% rural households, women are sole breadwinner with

complete responsibility to raise children and run the household3. They

mostly work in unorganized sector and are usually oppressed or

exploited by their employers4.

1 Infanticide (or infant homicide) is the intentional killing of infants, generally female infanticide is more common than the killing of male offspring. 2 Polygamy, (translated literally in Late Greek as "many married") is a marriage which includes more than two partners. When a man is married to more than one wife at a time, the relationship is called polygyny; and when a woman is married to more than one husband at a time, it is called polyandry. If a marriage includes multiple husbands and wives, it can be called group or conjoint marriage. 3 Carol S. Coonrod (June 1998). "Chronic Hunger and the Status of Women in India". Retrieved 24 December 2006

4 Bhatt, Ela R. We are Poor but So Many: the Story of Self-Employed Women in India. New York: Oxford UP, 2005

Page 38: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

26

Most of the women in rural areas become victims of abuse, harassment,

humiliation and exploitation because of the laziness, drunkenness, debts,

vices or violent attitude of their own men-folk1. Wife beating, desertions,

polygamy are the common practices amongst them.

Male members of the family are incapable to protect own women. They

tolerate atrocities on their women by others with down cast eyes.

Nobody comes forward to rescue the victims or has the courage to

condemn exploitation of their own women. In addition to it women’s

own helplessness, unawareness or inherent weaknesses put them in

difficult situations.

However, women belonging to lower castes get laxity in regard to all

those social or religious restrictions, rituals and observances, by which

urban women or caste Hindu women suffers like Pardah system,

polygamy, Sati Pratha etc. Widows have lesser ritual or religious

restrictions. Divorce or remarriage is allowed to rural women.

Caste Colour to gender issues2

Generally, the suppression and slave like conditions of women do not

evoke much sympathy in the hearts of men-community. On the contrary,

many male members of the society try to cash on women’s sufferings. In

fact the male-dominated society and callous Government turns a blind

eye to the gender issues.

In the present atmosphere of politicization of caste, Caste-colour is given

to gender issues. Gender issues are very conveniently turned into caste

issues by vested shrewd persons/politicians. Such an attitude pushes the

oppressed women into the background unnoticed. It is done purposely to

1 Victoria A. Velkoff and Arjun Adlakha (October 1998). "Women of the World: Women's Health in India" (PDF). U.S.

Department of Commerce. Retrieved 25 December 2006 2 The Danger of Gender: Caste, Class and Gender in Contemporary Indian Women's Writing" by Clara Nubile, p.9

Page 39: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

27

evoke public sentiments against other castes living there. Politicians reap

benefit out of it.

Page 40: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

28

1.8 ATTEMPTS FOR EMPOWERING WOMEN1

Reality is much deeper than what one sees on the surface or in the

papers. The attempts done so far in India towards women’s development

could make a small section of women educated and aware. They are

doing several things which women were not allowed to do a few years

back. But these attempts are just like few drops in the ocean. Much more

is required to be done in this area.

The pace of women’s advancement has been very slow. It is very

difficult to make a breakthrough in age old traditions, customs and

accepted norms/values in the society. Despite all the efforts made for

women’s uplift, plight of average women has not been changed much.

She still remains the most maligned/ill-treated person even in modern

society.

Deep thinking of authorities, national determination and political-will are

needed to assess women’s properly problem-areas and to remove hurdles

lying on their way to join the mainstream2. It necessitates toning up

social, legal, political and economic systems. It involves social

mobilization and transformation of outdated social values. Plans for

women’s development need to be made very carefully, so that not only

they, but also the whole society and nation could benefit.

There is a need to create supportive infrastructure for women to enhance

their confidence and ensure their security. For it, policy makers need to

understand that liberation means liberation from atrocities and

oppression3. The policies, they make or programs they initiate should be

directed to educate all the women, so that they could become confident,

1 "India country data - Women, Business and the Law - World Bank Group". Wbl.worldbank.org. Retrieved 3 April 2012

2 "Status of Women in India" by Shobana Nelasco, p.11

3 "National Policy For The Empowerment Of Women (2001)". Retrieved 24 December 2006.

Page 41: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

29

self-sufficient, and capable to participate in nation building activities. It

is necessary to inculcate in women scientific temper and courage to fight

against evil social practices. They should be made aware of the legal

infrastructure of the nation, especially about the special legal measures

taken to protect them from atrocities and exploitation.

Education of a girl child1

So far, Government has attempted to educate all the women, but without

desirable results. According to 2011 census the literacy rate amongst

women could reach only up-to 65%. Reluctance of parents to send their

daughters to co-educational institutions or hostels, or their economic

difficulties creates problems for girls to get educated. Quite often

talented and hard-working girls are by-passed, while arrangements are

made for the brother.

Challenge of education, A Policy Perspective 1985 has observed “As far

as the participation of girls in education is concerned, it is clear that even

after considerable acceleration in recent years because of deliberate

measures to facilitate their participation, girls are still way behind the

boys2. To a great extent this disparity is more the result of economic and

occupational problems and cultural biases of society than the

accessibility of educational facilities. Even though the performance of

girls compares favourably with the boys, relatively fewer girls seek

admission to professional courses other than those pertaining to

medicine, teacher training and nursing.”

Many parents still do not like to send their daughters to far away schools.

They still hesitate to send girls to co-educational institutions and are

1 Victoria A. Velkoff (October 1998). "Women of the World: Women's Education in India" (PDF). U.S. Department of

Commerce. Retrieved 25 December 2006. 2 "Human Development Report". United Nations Development Programme. 2013. p. 156

Page 42: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

30

particularly averse to those, in which there are male teachers. A large

number of girls get little education or no education at all due to financial

constraints or domestic responsibilities or early marriage or early child

birth etc.

As a result of this attitude, many girls seldom get opportunity to develop

their personality and fulfil their ambitions. Half of the

opportunities/career-courses available to them are not known to many

girls especially those belonging to poor families or living in remote

areas. It is still difficult for them to get free access to modern facilities

like computer or internet.

Their easy access to Open University1 and distance education programs

could solve these problems to a great extent.

Sound system of education and training makes any person broad-

minded, liberated and financially independent and to inculcate in them

knowledge. Training imbibes in them attitude, work-habits and skills.

Swami Vivekananda has said when you educate a man you educate only

one person. But when you educate a woman you educate a whole family.

Prepare them to join mainstream2

The number of employed women is also not at all satisfactory. It is only

12% of the total number of women3. Even this employment figure is the

result of the contribution made by those uneducated rural women, who

work as marginal labour in agricultural sector without increasing

productivity4. It means that majority of Indian women, whether educated

or uneducated whether living in urban areas or in rural areas, remain

1 "National Policy For The Empowerment Of Women (2001)". Retrieved 24 December 2006

2 "Human Development Report". United Nations Development Programme. 2013. p. 156

3 Mishra, R. C. (2006). Towards Gender Equality. Authorspress. ISBN 81-7273-306-2

4 "Asia's women in agriculture, environment and rural production: India". Retrieved 24 December 2006

Page 43: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

31

either unemployed or underemployed. Economically woman is still

dependent on man.

Women population consists of about 50% of total population. They form

a vast reservoir of human resource, which is yet to be tapped and utilized

fully1. At present, career opportunities have no matching training

facilities. There is absence of enough job oriented courses for women.

Many girls are left with no alternative but to join local

colleges/universities just to pass time, keep them busy till they get

married and obtain degrees in Arts, Science or Commerce.

Therefore, more and more job oriented vocational course, professional

education, training and refresher courses need to be created for them. It

would inculcate in them knowledge, attitude, work-habits and skills and

to create groups of skilled women. Also enough special short term

refresher training and coaching programs need to be arranged in order to

fill the gap incurred in their career due to familial liabilities. There is a

need to create enough job-opportunities for women. It also requires that

information about the opportunities should be available to them.

Entrepreneurship among women needs to be promoted2. Government can

facilitate credit by providing financial assistance to them. There should

be no age-bar for women to join jobs in organized sector. It would

enable them to join organized sector at appropriate point of time in their

life and fill the gap incurred in their career due to familial liabilities.

More and more job oriented vocational courses and a good and congenial

atmosphere to work.

If planned properly the education and family-life, with the norm of two

children in a family, most of women could be free from their 1 "National Policy For The Empowerment Of Women (2001)". Retrieved 24 December 2006

2 "Human Development Report". United Nations Development Programme. 2013. p. 156

Page 44: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

32

motherhood liabilities and could find enough time to join the mainstream

and plan their career without hindrance. Arrangements of short term

refresher training or coaching programmes can solve the problem of

filling the gap incurring between their graduation from educational

institutions and start of a regular career. Benefit of Open University and

distance education programs could be taken for this purpose. It would

enable women to get employed again. The gap incurred in their career

would not block their way to enter into the mainstream once again.

Views on position of women1

There are different views about what the position of women in society is

and what should be their role. There are two extreme views about it -

Feminists’ point of view – Till mid-seventies, feminists concentrated

more on issues like discriminatory laws of inheritance, domestic

violence, rape, equal pay etc. They blamed oppressive practices of

society, hypocrisy of men, religious beliefs and socio-economic-political

systems, for enhancing women’s miseries. Now they are in stiff

competition with male members of society. Their attention is more on

countering the space given to males in patriarchal society rather than on

how to tackle women issues.

According to them, society still considers woman a “Problem”. Hindu

religion trains them to seek fulfilment in self-denial and tolerate

humiliation throughout her life. It is dinned into woman’s head right

from the beginning that a woman’s world begins and ends with the

happiness of her family. That there could be something else more

exciting, fulfilling and different, never crosses her mind.

1 "Status of Women in India" by Shobana Nelasco, p.11

Page 45: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

33

They feel that forceful and aggressive qualities of body and mind of man

has imposed on women many kinds of restrictions. The traditional and

historical demarcation of activities, in which male members leave the

home for paid labour and women remain at home performing longer

hours of unpaid work is a great injustice. Patriarchal system of society

has relegated women to secondary status in the society, strengthened and

institutionalized unequal family laws and traditions1. Feminists advice

women, “do not work hard on your relationship. Work smart”.

Feminists accuse the Government for not taking appropriate policy

measures addressed to woman’s problems seriously. All principles,

programs and laws which guarantee freedom, equality, liberty, humanly

treatment to all remain inapplicable in the case of women.

Traditional point of view2

Traditionalists assert that equality, for which some feminist women are

clamouring, is worthless. It is difficult, how-so-ever hard one tries to

ignore/get over those inherent gender dissimilarities, which nature has

created in their physique, style and attitudes. Women, by nature are more

patient, tolerant, responsible and understanding than man.

Healthy relationship between husband and wife makes the world more

colourful, comfortable and give each other purpose of life. It gives both

of them incentive to work hard, move forward and make everybody

happy within the family.

There is no substitute for a mother’s loving care. Constant interaction of

parents with children is the key learning tool needed in growing years. A

mother can guide better the physical and mental growth of her children,

1 "The Danger of Gender: Caste, Class and Gender in Contemporary Indian Women's Writing" by Clara Nubile, p.9

2 Pruthi, Raj Kumar; Rameshwari Devi and Romila Pruthi (2001). Status and Position of Women: In Ancient, Medieval

and Modern India. Vedam books. ISBN 81-7594-078-6.

Page 46: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

34

develop their character and mould them into civilized young

citizen. While doing so, women get inner satisfaction and sense of

fulfilment. Absence of mother from the house hampers the proper

growth of a child. Quite often insecurity, vengeance, emotional

deprivation creeps in within the minds of children.

Except for a few exceptions, concept of “family” and “home, sweet

home” is vanishing from the Indian scene as well. Centuries old

institution of ‘family’, which has, so far, provided emotional support to

all family members is no longer remained a cushion either for husband,

children, elders or sick.

Too much stress on liberty and freedom of women has taken away sheen

from the centuries old social institution known as ‘family’. An impulsive

mind cannot think rationally. Till now, they have given refuge and

emotional support to all – young or old. Now their absence from home

has developed insecurity in minds of children and old people. The

increasing burden of work within and outside the house has often

resulted in domestic quarrels, which at times end up in divorce.

Divorce creates unhappy situations for both the couples. The most

bitterly contested issue is that of child custody. And given the parallel

increase in number of divorced people remarrying, the issue takes on an

added complexity. Increasing number of divorce cases or cases of mental

depression amongst women due to stress/pressures are the living

examples of it.

Idea of the development of women in Indian atmosphere does not match

the idea of the western women’s liberation movement. Western women

have progressed a lot and enjoy the freedom in their own way. But has

anyone peeped in their personal lives? They are only independent. There

Page 47: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

35

are no finer nuances in their relationship. Familial ties do not carry much

meaning to them. Marriage, divorce, re-marriage, custody of children,

insecurity amongst children are causing severe problems for Western

society.

Page 48: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

36

1.9 REQUIREMENTS OF 21ST

CENTURY1

The need of the modern times is to maintain a balance between

femininity and ambition. The measures for improving the status of

women should not destroy those valuable components of Indian culture,

which sustains life, activity and happiness of all within a family. Without

them a woman’s life becomes just like a bouquet of paper flowers, which

does not have any fragrance and after some times loses its charm.

Nucleus family system gives enough space and opportunity to grow and

adjust with each other. Her husband shares all her familial liabilities and

willingly takes care of her parents and blood relatives. Both have equal

share in matters relating to finances. Husband shares the responsibility

for parenting/child-rearing and home-management. Still many couples

are not able to create an environment of partnership that is comfortable

to all the nucleus family members, leave aside the extended family.

Now in most of the families, elders cannot interfere in young couple’s

decisions. It is considered to be absolutely personal matter. There is no

emotional pressure of on the woman of a nucleus family. However, the

more she gets, more she desires. Now she wants complete freedom from

all familial responsibilities including that of her own household.

An Indian woman has various dimensions to her personality – that of a

daughter, sister, wife, a mother, a grandmother – each one adds to her

happiness. She does not need to ape West’s materialistic value system,

where it has already been shifted from “are being”to“having”2. The finer

values of life have given way to sheer selfishness, chasing money,

materialism, commercialism and desire to possess more and more

1 Singh, S., & Hoge, G. (2010). Debating Outcomes for ‘Working’ Women – Illustration from India, The Journal of

Poverty, 14 (2), 197-215 2 "A Place at the Multicultural Table: The Development of an American Hinduism" by Prema Kurien, p. 171

Page 49: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

37

luxurious goods/comforts. Modernization has increased their necessities

& economic expectations.

Psyche of modern liberated women1

Recent transition has made some of women over-confident and over-

ambitious. The psyche of such modern, educated and liberated women

has led them to be in ruthless competition with men. In their hurry to win

the race and further their career, they overlook their social

responsibilities. They desire to have similar freedom, liberty and carefree

life, as usually male counterparts enjoy. They prefer to act or behave like

men.

Many women desire to set themselves free from all bondage of kinship.

Some of them prefer to go far away from their homes and settle down in

unknown places or in foreign lands, where she enjoy anonymity, get total

control over activities of their spouses and enforce on everybody their

own will/manifesto.

As movement of women’s lib is gaining momentum, a drastic transition

is taking place in the attitude of both the sexes. Role of man in

performing household chores and responsibilities in rearing up infants

and toddlers is increasing. His say in family matters is diminishing.

Usually voice of woman in a house prevails, men finds themselves

helpless.

Such women take all major decisions in the family and to dictate their

own terms. They want to control the destiny of everybody around them.

They do whatever they want and enjoy life in their own way. To them,

1 Singh, S., & Hoge, G. (2010). Debating Outcomes for ‘Working’ Women – Illustration from India, The Journal of

Poverty, 14 (2), 197-215

Page 50: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

38

nothing matters in life except for their own self. Is it a true

empowerment or it is a mirage?

Women need to be careful by exercising some self-control and self-

discipline, so that they do not hurt the feelings or rights of others in the

family or society. A woman needs to understand that she should not try

to act or behave like a man. There is much more grace in femininity. The

roles of man and woman in a society are not competitive but

complementary. A woman can remain more safe, secure, confident and

successful, till she lives in protected atmosphere in the company of her

male counterpart.

Page 51: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

39

1.10 EMPOWERMENT OF WOMEN

“Empowerment”1 is only a political slogan as of date. Presence of a few

persons of a section in power structure does not change the condition of

its majority. These political campaigns mislead people and betray the

cause. What is needed for empowering women is toning up social, legal,

political and economic systems2. True empowerment requires clear cut

policies by identifying the specific problem areas and then based on

them, the approach for its solution to be followed.

Reservations for women3

Some leaders suggest that Reservation of jobs for women is one of the

ways, which can empower women. If Government, political parties and

its leaders have real faith in Policy of Reservation4, then on the grounds

of deprivation, discrimination and under-representation, no other section

of society deserves Reservation more than women.

However women have set a classic example that they can make progress

without crutches. Though the progress is slow, but it is definitely

sustainable. Women’s march towards progress/empowerment is

unstoppable and irreversible. Reservation Policy will not necessarily lead

to the sustainable growth of women-folk.

If women can do so without Reservation, why cannot men of SCs, STs

or OBCs? If for any reason or rhyme, government finds itself to provide

1 Empowerment refers to increasing the spiritual, political, social, educational, gender, or economic strength of individuals and communities. 2 United Nations Research Institute for Social Development. 2010. Combating Poverty and Inequality: Structural Change, Social Policy and Politics. Geneva: UNRISD “Gender Inequalities at Home and in the Market.” Chapter 4, pp. 5–33 3 "Rajya Sabha passes Women's Reservation Bill". Chennai, India: The Hindu. 10 March 2010. Retrieved 25 August

2010. 4 Reservation is a process of setting aside a certain percentage of government jobs and vacancies in educational institutes for members of backward and under-represented communities (defined primarily by caste, religion, gender status as a domicile etc). Reservation is a form of quota-based affirmative action. Reservation is governed by constitutional laws, statutory laws, and local rules and regulations.

Page 52: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

40

reservation to women, then it should abolish immediately this

discriminatory policy of reservation.

The need of special attention in case of women arises not because they

are intellectually inferior to men, but because they miss many

opportunities, when some crucial years of their life are spent in fulfilling

familial responsibilities. That time they serve humanity and the nation by

taking care of the future generation, cultivating in them positive

qualities, which once imbibed, inevitably become part of one’s nature

and provide guidelines for their wholesome behaviour pattern.

For their valuable contribution to the society and the nation, if they could

not be rewarded, then at least, they should not be punished.

Fifth Pay Commission1

Fifth Pay commission for central government employees made certain

useful suggestions. After assessing specific needs of women, the Vth Pay

Commission observed, “Representation of women at the supervisory

decision-making/managerial levels both in Government and Public

Sector Undertakings is very limited…”

Therefore, it suggested “Age of recruitment for women employees may

be enhanced to 35 years, as by that time in a majority of cases, family

commitments would be more manageable and children would be fairly

grown up.” It recommended the concept of flexi-time and flexi-place on

trial basis. Voluntary system of option for serving women-employees to

work half time for a maximum of six years in a career, when the children

are young and family commitments are at the maximum. It also

recommended the government to sympathetically take care of

1 "Pay commission in india". Retrieved 12 October 2011

Page 53: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

41

their accommodation, nature of posting, transport facilities, child-care

facilities at day care centres or crèches etc.

Such concessions for women are required, so that Women can continue

to take responsibility of her dependent children, elderly relatives. They

can do justice to their familial responsibilities. Their increasing

participation in work outside home should not become inexorably taxing.

They can balance work and family responsibilities together.

Page 54: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

42

1.11 JOINT EFFORT OF WOMEN AND SOCIETY

A joint effort of women themselves and that of the society and the nation

is urgently needed in order to cope with the challenges posed due to

recent changes in the attitude and role of women of twenty first century1.

It would be a blunder, if society does not realizes that women are the

backbone of Indian society. They not only provide management at home,

but also work they work shoulder-to-shoulder with men almost in all the

areas. They contribute, both directly and indirectly, in nation-building

activities. Women have always been good managers and decision-

makers. Till now their qualities/skills have benefitted ‘family’ only.

There is a need to maintain balance between femininity and ambitions of

women. With modernity, technological advancements, info-tech

revolution has changed the role of women, her equations with others, her

perspective and ambitions. Economic independence has made them

stronger, confident and more vociferous2. They are aware and informed

about the solutions of the needs and problems of their own and their

children more than their spouses.

Immediately after independence, in 1950′s, free young India embodied a

liberal and inclusive vision of India. People understood and interpreted

liberally the problems of caste, gender, community, rural-urban areas,

meaning of social-economic-legal justice and attempted to resolve the

issues rationally.

1950′s and 60′s was the time, when society was in general conservative,

attitude hardly rebellion against social norms, talks being all about

1 Singh, S. 2010. "Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti" – As part of an Anthology

titled The Woman Question in the Contemporary Indian English Women Writings, Ed. Indu Swami Publishers Sarup: Delhi 2 Singh, S. & Singh, P. (2011). "Shobha De: Deconstructed for Maverick Feminism." In Contemporary Indian Women

Novelists In English, Ed. Indu Swami, Sarup: Delh

Page 55: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

43

sacrifice. 1970′s and 80′s was the period of transition, when though

people were still family and society-oriented, rebellion attitude started.

Those were the years of social and political turmoil. Women gradually

achieved success in various fields. Gender bias started vanishing.

Women acquired more education, economic and social power on their

own without craving for any concession unlike other so-called weaker

sections of society like SCs, STs or OBCs. A new wave swept across the

woman’s world – many young women joined the workforce becoming

students, teachers, administrators or activists in different social

movements. With it, gender relationships and norms have undergone a

sea-change because of changed socio-economic atmosphere and a

change in expectations1. It has ironically increased conflicts.

In 1990′s, rebellion attitude became dominant2. Family and society were

considered major obstacles on the way to progress. In matter of

employment, it is not so difficult for women to ` get jobs as it was

earlier. Women were placed more or less on equal footing with men.

Earlier main women issues were of physical strain, constant

psychological pressures, to conform to socially induced images of

femininity – to be a good wife, perfect mother, efficient home-maker and

on the other to work hard in office to prove her worth. Their concerns

then revolved around issues like dowry, domestic violence, rape, equal

opportunities and equal pay etc. Now the focus is on teaching menfolk a

lesson and be ahead of them everywhere. Today’s woman wants her man

to do all that, which previous generation of women did for their

counterparts.

1 "InfoChange women: Background & Perspective". Retrieved 24 December 2006

2 Ray, Raka. Fields of Protest: Women's Movements in India. University of Minnesota Press; Minneapolis, MN. 1999.

Page 13.

Page 56: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

44

The attitude of people in twenty first century became increasingly

individualistic. Both men and women bothered about their own issues

and commitments. More importance is being given to self-identity, less

attention to family-matters. Youth do not tolerate any opposition or

interference of elders in their family matters. Any restriction on

pleasures of life is just not tolerated1. They want life free from tensions

and stress.

Independent, but undisciplined life style, pressures due to lack of family

support systems, clash in old and new value systems, fatigue due to

erratic sleep patterns due to late night entertainment culture, running

after money, numerous temptations due to market-oriented economy,

fascination for glamour and excitement are responsible for making

modern life awry with full of tensions.

Women issues needs to be nurtured very carefully, so that not only they,

but also the community and nation can benefit. A woman should not care

for her own needs only, but also needs to see the welfare of all the

persons around her. To be educated means to be enlightened, to be aware

of her surroundings and to be conscious of her responsibilities.

At present families and communities do not have time to spare for

inculcating required values in children. Now a days, schools/educational

institutions are expected by modern society to inculcate in young

children good values and mannerism. From schools required values are

expected to be reinserted into society. For inculcation of moral values,

modern society should not depend on educational institutions. It can

make children learn to stand on their feet and be politically and

economically independent, but often, in life they end up “Bowling

1 Women in the face of globalisation. New Delhi: Serials Publications, 2007

Page 57: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

45

Alone” (in sociologist Robert Putnam’s memorable phrase) and

unhappy.

Why should a woman consider maternity, motherhood and household

responsibility a burden? That is their source of power as the next

generation is in her domain. There is an urgent need to pay attention to

the future of family as an institution. Values cannot be taught like texts

nor tested in written examinations. Good values are inculcated at home,

in one’s family and society. They are learned by living. Woman is the

hope of the future1.

Success in life is not dependent on legal document, or on laid down rules

and regulations. It depends on maturity, mutual understanding and

willingness to make adjustments for each other’s happiness.

As far as the ambitions of woman are concerned, she should set her

priorities rightly at different points of her life. If she wants to pursue a

career first, she should devote her efforts and energy towards it. But once

she decides to enter into a family life, she should not take it for granted.

She needs to be mentally prepared to shoulder its responsibilities as well.

She should find out enough time for her family and children.

As a householder she along with her spouse is responsible to provide a

secure and stable home environment. A well knit family promotes a

feeling of inter-dependence and a feeling of being wanted and being

loved.

As far as government is concerned, it should have liberal policies for

making jobs available to women as employment makes women not only

economically strong, but socially and emotionally strong. Women like

1 Shweta Singh (2009). Examining the Dharma Driven Identity of Women: Mahabharata’s Kunti - In The Woman

Question in the Contemporary Indian English Women Writings, Ed. Indu Swami, Sarup: Delhi.

Page 58: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

46

men have every right to feel secure, confident and happy and to be

participating actively in the mainstream of a nation/national growth, in

solving all the problems of society and nation at every level. They are,

both entitled to and responsible for contributing to national development

but without disturbing familial peace, social harmony.

Adequate attention needs to be given by policy-makers and the society to

issues like -

proper identification of problem areas; adjustments of financial

allocations and administrative decisions as well actions to suit condition;

motivation and disciplining of socio-political authorities to have

sympathy and understanding about culture and needs of the society, in

which they live;

For ensuring women’s participation in their own welfare and

development processes in physically and socially uncongenial

environment, attention should be paid in devising strategies to provide a

safe and secure atmosphere to them.

More in-depth studies of women issues should be encouraged to provide

alternative approaches/strategies for resolving them by the Government,

society as well as by voluntary agencies.

Law-makers should legislate more equitably.

Male chauvinism must go. Unless woman can take her rightful place by

the side of man, there is no point of the women knowing what to do. She

must be allowed to do it. If the future of the nation is to be safeguarded,

it is necessary to acknowledge that roles of man and women in life are

complementary not competitive.

Page 59: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

47

Any society could only flourish when its women are given their due

place in the process of development. It should never be forgotten that

“An enlightened woman is a source of infinite energy.”

1.13 Problems to get solutions on the issue : The problem of

discrimination in women is a phenomenon in India. To explore this

discrimination towards women in India is not an easy task for a

researcher because of the vast area of the country. Therefore the author

of this thesis has decided to discuss the issue of women related problems

in criminal law domain specially dowry deaths on the count of subject

matter. On the basis of feasibility and reliability, the researcher chosen

an area of the country which is tribal dominated and fully backward

known as Jharkhand region, now a state of Indian region to highlight the

problem faced by women on the issue.

1.14 Research Methodology : The whole research is done basically on

doctrinal method along with some empirical surveys of the state of

Jharkhand to explore the crime rate against women on the issue of

Dowry Deaths in the state.

Therefore, the whole project is classified into five (5) parts. The first part

introduces the project to highlight the problems of women related

atrocities. The second fragment of the project concentrates on existing

laws on women in International Law. The third chapter discusses on

legal protection of women in India. The fourth part of the work analyses

the judicial efforts towards women protection with reference to crimes

against women. The fifth portion of the project highlights on dowry

deaths with reference to Jharkhand States. The project is concluded in

the last part of the work.

Page 60: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

48

2

Existing Laws

on Women in

International

Law

Page 61: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

49

2.1 UNIVERSAL DECLARATION OF HUMAN RIGHTS:

The Universal Declaration of Human Rights (UDHR) is a declaration

adopted by the United Nations General Assembly on 10 December 1948

at Palais de Chaillot, Paris. The Declaration arose directly from the

experience of the Second World War and represents the first global

expression of rights to which all human beings are inherently entitled.

The full text is published by the United Nations on its website.

It consists of 30 articles which have been elaborated in subsequent

international treaties, regional human rights instruments, national

constitutions and laws. The International Bill of Human Rights consists

of the Universal Declaration of Human Rights, the International

Covenant on Economic, Social and Cultural Rights, and the International

Covenant on Civil and Political Rights and its two Optional Protocols. In

1966 the General Assembly adopted the two detailed Covenants, which

complete the International Bill of Human Rights; and in 1976, after the

Covenants had been ratified by a sufficient number of individual nations,

the Bill took on the force of international law1.

During the Second World War the allies adopted the Four Freedoms:

freedom of speech, freedom of religion, freedom from fear, and freedom

from want, as their basic war aims. The United Nations Charter

"reaffirmed faith in fundamental human rights, and dignity and worth of

1 Williams 1981; This is the first book edition of the Universal Declaration of Human Rights, with a foreword by Jimmy Carter

Page 62: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

50

the human person" and committed all member states to promote

"universal respect for, and observance of, human rights and fundamental

freedoms for all without distinction as to race, sex, language, or

religion1” A universal declaration that specified the rights of individuals

was necessary to give effect to the Charter's provisions on human rights2.

At the time Humphrey was newly appointed as Director of the Division

of Human Rights within the United Nations Secretariat3. The

Commission on Human Rights, a standing body of the United Nations,

was constituted to undertake the work of preparing what was initially

conceived as an International Bill of Rights4. The membership of the

Commission was designed to be broadly representative of the global

community with representatives of the following countries serving:

Australia, Belgium, Byelorussian Soviet Socialist Republic, Chile,

China, Egypt, France, India,-family phrases were the result of the

Christian Democratic movement's influence on Cassin and Malik5.

The Universal Declaration was adopted by the General Assembly on 10

December 1948 by a vote of 48 in favour, 0 against, with eight

abstentions: the Soviet Union, Ukrainian SSR, Byelorussian SSR,

People's Federal Republic of Yugoslavia, and People’s Republic of

Poland, Union of South Africa, Czechoslovakia and the Kingdom of

Saudi Arabia6,7

. Honduras and Yemen, both members of UN at the time,

failed to appear for vote8. The South African position can be seen as a

1 United Nations Charter, preamble and article 55". United Nations. Retrieved 2013-04-20 2 UDHR – History of human rights". Universalrights.net. Retrieved 2012-07-07 3 Morsink 1999, p. 133 4 Morsink 1999, p. 4 5 Carlson, Allan 12 January 2004. Globalizing Family Values 6 CCNMTL. "default". Center for New Media Teaching and Learning (CCNMTL). Columbia University. Retrieved 2013-07-12 7 UNAC. "Questions and answers about the Universal Declaration of Human Rights". United Nations Association in Canada (UNAC). p. "Who are the signatories of the Declaration?" 8 Jost Müller-Neuhof (2008-12-10). "Menschenrechte: Die mächtigste Idee der Welt". Der Tagesspiegel (in German). Retrieved 2013-07-12.

Page 63: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

51

kind of protection of the system of apartheid in South Africa, which

clearly violated any number of articles in the declaration7. The Saudi

Arabian delegation abstained mostly for two reasons: because of Article

18 which states that everyone has the right "to change his religion or

belief" and because of Article 16 on equal marriage rights. Eleanor

Roosevelt attributed the abstention of the Soviet bloc nations to Article

13, which provided the right of citizens to leave their countries.1

The following countries voted in favour of the declaration:2

Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil, Burma,

Canada, Chile, Republic of China, Colombia, Costa Rica, Cuba,

Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia,

France, Greece, Guatemala, Haiti, Iceland, India, Iran, Iraq, Lebanon,

Liberia, Luxembourg, Mexico, Netherlands, New Zealand, Nicaragua,

Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Siam, Sweden,

Syria, Turkey, United Kingdom, United States, Uruguay, Venezuela.

The Universal declaration should protect the rights of people. Each

country who signed this declaration is obliged to respect the human

rights in their country. The human rights include: Equal opportunities,

Equality of the sexes,

Racial equality,

The right to an education,

The right to protest,

The right to life,

The right to privacy,

Freedom of speech,

1 Ref : Glendon 2001, pp. 169–70, 2 Ref : Yearbook of the United Nations 1948–1949 p 535

Page 64: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

52

Freedom of religion,

Children protection and

Tolerance

The underlying structure of the Universal Declaration was introduced in

its second draft which was prepared by René Cassin1. Cassin worked

from a first draft prepared by John Peters Humphrey2. The structure was

influenced by the Code Napoleon, including a preamble and introductory

general principles3. Cassin compared the Declaration to the portico of a

Greek temple, with a foundation, steps, four columns and a pediment.

Articles 1 and 2 are the foundation blocks, with their principles of

dignity, liberty, equality and brotherhood. The seven paragraphs of the

preamble, setting out the reasons for the Declaration, represent the steps.

The main body of the Declaration forms the four columns. The first

column (articles 3–11) constitutes rights of the individual, such as the

right to life and the prohibition of slavery. Articles 6 through 11 refer to

the fundamental legality of human rights with specific remedies cited for

their defence when violated. The second column (articles 12–17)

constitutes the rights of the individual in civil and political society.

The third column (articles 18–21) is concerned with spiritual, public and

political freedoms such as freedom of thought, conscience and religion,

as well as freedom of association. The fourth column (articles 22–27)

sets out social, economic and cultural rights. In Cassin's model, the last

three articles of the Declaration provide the pediment which binds the

1 René Samuel Cassin (born 5 October 1887 in Bayonne, France; died 20 February 1976 in Paris, France) was a French jurist, law professor and judge. He received the Nobel Peace Prize in 1968 for his work in drafting the Universal Declaration of Human Rights, adopted by the United Nations General Assembly on 10 December 1948. That same year, he was also awarded one of the UN's own Human Rights Prizes. René Cassin founded the French Institute of Administrative Sciences (IFSA) which was recognized as a public utility association. 2 John Peters Humphrey, OC (April 30, 1905 – March 14, 1995) was a Canadian legal scholar, jurist, and human rights advocate. He is most famous as the author of the first draft of the Universal Declaration on Human Rights. 3 Ref: Glendon 2002, pp. 62–64.

Page 65: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

53

structure together. These articles are concerned with the duty of the

individual to society and the prohibition of use of rights in contravention

of the purposes of the United Nations Organisation.1

The adoption of the Universal Declaration is a significant international

commemoration marked each year on 10 December and is known as

Human Rights Day or International Human Rights Day. The

commemoration is observed by individuals, community and religious

groups, human rights organisations, parliaments, governments and the

United Nations. Decadal commemorations are often accompanied by

campaigns to promote awareness of the Declaration and human rights.

2008 marked the 60th anniversary of the Declaration and was

accompanied by year-long activities around the theme "Dignity and

justice for all of us.”2

The Guinness Book of Records describes the UDHR as the "Most

Translated Document”3 in the world. In the preamble, governments

commit themselves and their people to progressive measures which

secure the universal and effective recognition and observance of the

human rights set out in the Declaration. Eleanor Roosevelt supported the

adoption of the UDHR as a declaration rather than as a treaty, because

she believed that it would have the same kind of influence on global

society as the United States Declaration of Independence had within the

United States. In this, she proved to be correct. Even though it is not

legally binding, the Declaration has been adopted in or has influenced

most national constitutions since 1948. It has also served as the

foundation for a growing number of national laws, international laws,

1 Ref: Glendon 2002,Ch.10 2 Ref : "The Universal Declaration of Human Rights: 1948–2008". United Nations. Retrieved 15 February 2011. 3 "Universal Declaration of Human Rights". United Nations Office of the High Commissioner for Human rights.

Page 66: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

54

and treaties, as well as regional, national, and sub-national institutions

protecting and promoting human rights.

While not a treaty itself, the Declaration was explicitly adopted for the

purpose of defining the meaning of the words "fundamental freedoms"

and "human rights" appearing in the United Nations Charter, which is

binding on all member states. For this reason the Universal Declaration

is a fundamental constitutive document of the United Nations. Many

international lawyers, in addition, believe that the Declaration forms part

of ‘customary international law’1 and is a powerful tool in applying

diplomatic and moral pressure to governments that violate any of its

articles. The 1968 United Nations International Conference on Human

Rights advised that it "constitutes an obligation for the members of the

international community" to all persons.

The declaration has served as the foundation for two binding UN human

rights covenants, the International Covenant on Civil and Political

Rights, and the International Covenant on Economic, Social and Cultural

Rights and the principles of the Declaration are elaborated in

international treaties such as the International Convention on the

Elimination of All Forms of Racial Discrimination, the International

Convention on the Elimination of Discrimination Against Women, the

United Nations Convention on the Rights of the Child, the United

Nations Convention Against Torture and many more. The Declaration

continues to be widely cited by governments, academics, advocates and

constitutional courts and individual human beings who appeal to its

principles for the protection of their recognised human rights.

1 Office of the High Commissioner for Human Rights. "Digital record of the UDHR". United Nations.

Page 67: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

55

The Universal Declaration has received praise from a number of notable

people. Charles Malik, Lebanese philosopher and diplomat, called it "an

international document of the first order of importance,"1 while Eleanor

Roosevelt, first chairwoman of the Commission on Human Rights

(CHR) that drafted the Declaration, stated that it "may well become the

international Magna Carta of all men everywhere."210 December 1948.

In a speech on 5 October 1995, Pope John Paul II called the UDHR "one

of the highest expressions of the human conscience of our time"3. And in

a statement on 10 December 2003 on behalf of the European Union,

Marcello Spatafora said that "it placed human rights at the centre of the

framework of principles and obligations shaping relations within the

international community.

Islamic countries reaction:

Most Islamic countries have signed the Universal Declaration of Human

Rights and other human rights agreements. In 1948, Saudi Arabia did not

sign the declaration, claiming that it violated Islamic Sharia law4.

However, Pakistan (which had signed the declaration) disagreed with

and critiqued the Saudi position5. In 1982, the Iranian representative to

the United Nations, Said Rajaie-Khorassani, said that the UDHR was "a

secular understanding of the Judeo-Christian tradition", which could not

be implemented by Muslims without trespassing the Islamic law6. On 30

June 2000, Muslim nations that are members of the Organisation of the

1 Statement by Charles Malik as Representative of Lebanon to the Third Committee of the UN General Assembly on the Universal Declaration, 6 November 1948 2 Michael E. Eidenmuller (1948-12-09). "Eleanor Roosevelt: Address to the United Nations General Assembly". Americanrhetoric.com. Retrieved 2012-07-07. 3 "John Paul II, Address to the U.N., October 2, 1979 and October 5, 1995". Vatican.va. Retrieved 2012-07-07. 4 Nisrine Abiad (2008). Sharia, Muslim states and international human rights treaty obligations: a comparative study. BIICL. pp. 60–65. ISBN 978-1-905221-41-7. 5 Price, Daniel E. (1999). Islamic political culture, democracy, and human rights: a comparative study. Greenwood Publishing Group. ISBN 978-0-275-96187-9. 6 Littman, D (February/March 1999). "Universal Human Rights and Human Rights in Islam". Midstream. Archived from the original on 2006-05-12.

Page 68: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

56

Islamic Conference (now the Organisation of Islamic Cooperation)

officially resolved to support the Cairo Declaration on Human Rights in

Islam1, an alternative document that says people have "freedom and

right to a dignified life in accordance with the Islamic Shari’ah", without

any discrimination on grounds of "race, colour, language, sex, religious

belief, political affiliation, social status or other considerations". As a

secular state, Turkey has signed the declaration of Human Rights in 1948

and other European Human Rights agreements.

A number of scholars in different fields have expressed concerns with

the Declaration's alleged western bias. These include Irene Oh (Religion

and Ethics), Abdulaziz Sachedina (Religion), Riffat Hassan (Theology)

and Faisal Kutty (Law). Riffat Hassan argues as follows:

"What needs to be pointed out to those who uphold the Universal

Declaration of Human Rights to be the highest, or sole, model, of a

charter of equality and liberty for all human beings, is that given the

Western origin and orientation of this Declaration, the "universality" of

the assumptions on which it is based is - at the very least - problematic

and subject to questioning. Furthermore, the alleged incompatibility

between the concept of human rights and religion in general, or

particular religions such as Islam, needs to be examined in an unbiased

way."2

Irene Oh argues that one of the ways to reconcile the two is to approach

it from the perspective of comparative ethics.3

Kutty writes: "A strong argument can be made that the current

formulation of international human rights constitutes a cultural structure

1 "Resolution No 60/27-P". Organisation of the Islamic Conference. 2000-06-27. Retrieved 2011-06-02. 2 "Are Human Rights Compatible with Islam?". religiousconsultation.org. Retrieved 2012-11-12. 3 "The Rights of God". Georgetown University Press, 2007.

Page 69: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

57

in which western society finds itself easily at home ... It is important to

acknowledge and appreciate that other societies may have equally valid

alternative conceptions of human rights.1

Groups such as Amnesty International2 and War Resisters International

3

have advocated for "The Right to Refuse to Kill" to be added to the

UDHR. War Resisters International has stated that the right to

conscientious objection to military service is primarily derived from, but

not yet explicit in, Article 18 of the UDHR: the right to freedom of

thought, conscience and religion.

Steps have been taken within the United Nations to make this right more

explicit; but those steps have been limited to secondary, more "marginal"

4United Nations documents. That is why Amnesty International would

like to have this right brought "out of the margins" and explicitly into the

primary document, namely the UDHR itself.

1 "Non-Western Societies Have Influenced Human Rights". in Jacqueline Langwith, ed., Opposing Viewpoints: Human Rights (Gale/Greenhaven Press: Chicago, 2007) 41. 2 Out of the margins: the right to conscientious objection to military service in Europe: An announcement of Amnesty International's forthcoming campaign and briefing for the UN Commission on Human Rights, 31 March 1997. Amnesty International. 3 A Conscientious Objector's Guide to the UN Human Rights System, Parts 1, 2 & 3, Background Information on International Law for COs, Standards which recognise the right to conscientious objection, War Resisters' International. 4 Sean MacBride, The Imperatives of Survival, Nobel Lecture, 12 December 1974, The Nobel Foundation – Official website of the Nobel Foundation. (English index page; hyperlink to Swedish site.) From Nobel Lectures in Peace 1971–1980.

Page 70: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

58

Women:

American feminist Catharine MacKinnon has asked the question "are

women considered human?", focusing in part on the use of male-centric

terms such as brotherhood in Article 1 and himself and his family in

article 23.1

1 "Are Women Human?". Martinus Nijhoff Publishers. Retrieved 2013-01-31.

Page 71: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

59

2.2 BANGKOK DECLARATION:

In the Bangkok Declaration adopted by Ministers of Asian states

meeting in 1993 in the lead up to the World Conference on Human

Rights held in the same year, Asian governments reaffirmed their

commitment to the principles of the United Nations Charter and the

Universal Declaration of Human Rights. They stated their view of the

interdependence and indivisibility of human rights and stressed the need

for universality, objectivity and non-selectivity of human rights. At the

same time, however, they emphasized the principles of sovereignty and

non-interference, calling for greater emphasis on economic, social, and

cultural rights, particularly the right to economic development, over civil

and political rights. The Bangkok Declaration is considered to be a

landmark expression of the Asian Values perspective, which offers an

extended critique of human rights universalism.1

Organizations promoting UDHR:

International Federation for Human Rights2,3

Amnesty International4

Youth for Human Rights International5,6

1 "Final Declaration Of The Regional Meeting For Asia Of The World Conference On Human Rights". Law.hku.hk. Retrieved 2012-07-07. 2 Contribution to the EU Multi-stakeholder Forum on CSR (Corporate Social Responsibility), 10 February 2009; accessed on 9 November 2009 3 Information Partners, web site of the UNHCR, last updated 25 February 2010, 16:08 GMT (web retrieval 25 February 2010, 18:11 GMT) 4 "UDHR film". Amnesty International. Retrieved 2013-07-19. 5 Ref. http://www.ala.org/offices/iro/awardsactivities/resolutionifla 6 Ref: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/universalright

Page 72: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

60

2.3 Convention on political rights on Women1:

The Contracting Parties, desiring to implement the principle of equality

of rights for men and women contained in the Charter of the United

Nations2, Recognizing that everyone has the right to take part in the

government of his country directly or indirectly through freely chosen

representatives, and has the right to equal access to public service in his

country, and desiring to equalize the status of men and women in the

enjoyment and exercise of political rights, in accordance with the

provisions of the Charter of the United Nations and of the Universal

Declaration of Human Rights, having resolved to conclude a Convention

for this purpose, hereby agree as hereinafter provided3:

Article 1

Women shall be entitled to vote in all elections on equal terms with

men, without any discrimination.

Article 2

Women shall be eligible for election to all publicly elected bodies,

established by national law, on equal terms with men, without any

discrimination.

Article 3

Women shall be entitled to hold public office and to exercise all

public functions, established by national law, on equal terms with

men, without any discrimination.

1 The Convention on the Political Rights of Women was adopted by the United Nations General Assembly in 1953, and

it is the first international legislation protecting the equal status of women to exercise political rights. 2 Ref. Joyce, James Avery (1978). Human Rights: International Documents, Volume 1. Brill Archive. pp. 180–1. ISBN

9789028602984. 3 Convention on the Political Rights of Women, 193 U.N.T.S. 135, entered into force July 7, 1954 by University of

Minnesota, Human Rights Library

Page 73: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

61

Article 4

i. This Convention shall be open for signature on behalf of any

Member of the United Nations and also on behalf of any other State

to which an invitation has been addressed by the General Assembly.

ii. This Convention shall be ratified and the instruments of ratification

shall be deposited with the Secretary-General of the United Nations.

Article 5

i. This Convention shall be open for accession to all States referred to

in paragraph I of article IV.

ii. Accession shall be effected by the deposit of an instrument of

accession with the Secretary-General of the United Nations.

Article 6

i. This Convention shall come into force on the ninetieth day following

the date of deposit of the sixth instrument of ratification or accession.

ii. For each State ratifying or acceding to the Convention after the

deposit of the sixth instrument of ratification or accession the

Convention shall enter into force on the ninetieth day after deposit by

such State of its instrument of ratification or accession.

Article 7

In the event that any State submits a reservation to any of the articles

of this Convention at the time of signature, ratification or accession,

the Secretary-General shall communicate the text of the reservation

to all States which are or may become Parties to this Convention.

Any State which objects to the reservation may, within a period of

ninety days from the date of the said communication (or upon the

date of its becoming a Party to the Convention), notify the Secretary-

Page 74: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

62

General that it does not accept it. In such case, the Convention shall

not enter into force as between such State and the State making the

reservation.

Article 8

i. Any State may denounce this Convention by written notification to

the Secretary-General of the United Nations. Denunciation shall take

effect one year after the date of receipt of the notification by the

Secretary General.

ii. This Convention shall cease to be in force as from the date when the

denunciation which reduces the number of Parties to less than six

becomes effective.

Article 9

Any dispute which may arise between any two or more

Contracting States concerning the interpretation or application of

this Convention, which is not settled by negotiation, shall at the

request of any one of the parties to the dispute be referred to the

International Court of Justice for decision, unless they agree to

another mode of settlement.

Article 10

The Secretary-General of the United Nations shall notify all

Members of the United Nations and the non-member States

contemplated in paragraph I of article IV of this Convention of the

following:

I. Signatures and instruments of ratification received in accordance

with article IV;

II. Instruments of accession received in accordance with article V;

Page 75: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

63

III. The date upon which this Convention enters into force in

accordance with article VI;

IV. Communications and notifications received in accordance with

article VII;

V. Notifications of denunciation received in accordance with

paragraph I of article VIII;

VI. Abrogation in accordance with paragraph 2 of article VIII.

Article 11

1. This Convention, of which the Chinese, English, French, Russian

and Spanish texts shall be equally authentic, shall be deposited in

the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit a

certified copy to all Members of the United Nations and to the

non-member States contemplated in paragraph I of article IV.

Page 76: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

64

2.4 The Convention on the Nationality of Married Women:

It is an international convention passed by the United Nations General

Assembly1 in 1957. It entered into force in 1958 and as of 2013 it has 74

state parties.

Before the Convention on the Nationality of Married Women, no

legislation existed to protect married women's right to retain or renounce

national citizenship in the way that men could. Women's rights groups

recognized a need to legally protect the citizenship rights of women who

married someone from outside of their country or nationality. The

League of Nations, the international organization later succeeded by the

United Nations, was lobbied by women's rights groups during the early

20th century to address the lack of international laws recognizing

married women's rights of national citizenship. The Conference for the

Codification of International Law, held at The Hague in 1930, drew

protests from international women's rights groups, yet the League

declined to include legislation enforcing married women's nationality

rights. The League took the position that it was not their role, but the role

of member states, to deal with equality between men and women2.

The International Women's Suffrage Alliance (IWSA, later renamed the

International Alliance of Women) launched a telegram campaign in 1931

to pressure the League of Nations to address the lack of legislation.

Women from around the world sent telegrams to the League of Nations

1 The General Assembly is the main deliberative, policymaking and representative organ of the United Nations. Comprising all 193 Members of the United Nations, it provides a unique forum for multilateral discussion of the full spectrum of international issues covered by the Charter 2 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 80. ISBN 9780801860287.

Page 77: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

65

as a protest. The League made the concession of creating an unfunded

Consultative Committee on Nationality of Women1.

The Pan-American Conference in Montevideo passed a Convention on

the Nationality of Married Women in 1933. It was passed by the Pan

American Conference at the same time as the Treaty on the Equality of

Rights Between Men and Women. These were the first pieces of

international law to "explicitly set sexual equality as a principle to be

incorporated into national legislation"2 which was required of countries

ratifying the convention and treaty. Lobbying by the American National

Women's Party has been credited with this legislation.3 However, neither

the International Labour Organization (ILO) nor the League of Nations

passed any legislation on the issue during the interwar years.

The issue of the nationality of married women was a leading women's

rights issue facing the United Nations after its establishment. The United

Nations Commission on the Status of Women was created, and made it a

priority of their agenda, launching a study in 1948. The Commission

recommended to the United Nations Economic and Social Council that

legislation is drafted to give women equal rights as set out in Article 15

of the Universal Declaration of Human Rights. 4The Convention on the

Nationality of Married Women entered into force on August 11, 1958.

As of 2013, the convention has been ratified by 74 states. It has been

denounced by the ratifying states of Luxembourg, Netherlands, and

United Kingdom.

1 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 80. ISBN 9780801860287. 2 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 81. ISBN 9780801860287. 3 Berkovitch, Nitza (1999). From Motherhood to Citizenship: Women's Rights and International Organizations. JHU Press. p. 82. ISBN 9780801860287. 4 Joyce, James Avery (1978). Human Rights: International Documents, Volume 1. Brill Archive. p. 183. ISBN 9789028602984.

Page 78: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

66

The Convention was concluded in the light of the conflicts of law on

nationality derived from provisions concerning the loss or acquisition of

nationality by women as a result of marriage, divorce, or of the change

of nationality by the husband during marriage. It allows women to adopt

the nationality of their husband based upon the woman's own decision,

but does not require it1.

The Convention seeks to fulfil aspirations articulated in Article 15 of the

Universal Declaration of Human Rights that 'everyone has a right to a

nationality' and 'no one shall be arbitrarily deprived of his nationality nor

denied the right to change his nationality'.

Article 1

Woman's nationality not to be automatically affected by marriage

to an alien.

Article 2

Acquisition or renunciation of a nationality by a husband not to

prevent the wife's retention of her nationality.

Article 3

Specially privileged nationality procedures to be available for

wives to take the nationality of their husbands.

1 Kinnear, Karen L. (2011). Women in Developing Countries: A Reference Handbook. ABC-CLIO. p. 179. ISBN 9781598844252.

Page 79: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

67

2.5 DECLARATION ON ELIMINATION OF DISCRIMINATION

AGAINST WOMEN, 1967:

The Declaration on the Elimination of Discrimination against Women is

a human rights proclamation issued by the United Nations General

Assembly, outlining that body's views on women's rights. It was adopted

by the General Assembly on 7 November 19671. The Declaration was an

important precursor to the legally binding 1979 Convention on the

Elimination of All Forms of Discrimination against Women.

The Declaration follows the structure of the Universal Declaration of

Human Rights, with a preamble followed by eleven articles.

Article 1: declares that discrimination against women is "fundamentally

unjust and constitutes an offence against human dignity"2.

"Discrimination" is not defined.

Article 2: calls for the abolition of laws and customs which discriminate

against women, for equality under the law to be recognised, and for

states to ratify and implement existing UN human rights instruments

against discrimination.

Article 3: calls for public education to eliminate prejudice against

women.

Article 4: calls for women to enjoy full electoral rights, including the

right to vote and the right to seek and hold public office.

Article 5: calls for women to have the same rights as men to change their

nationality.

1 United Nations General Assembly Resolution 2263, 7 November, 1967

2 Declaration on the Elimination of Discrimination against Women, Article 1.

Page 80: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

68

Article 6: calls for women to enjoy full equality in civil law, particularly

around marriage and divorce, and calls for child marriages to be

outlawed.

Article 7: calls for the elimination of gender discrimination in criminal

punishment.

Article 8: calls on states to combat all forms of traffic in women and

exploitation of prostitution of women.

Article 9: affirms an equal right to education regardless of gender.

Article 10: calls for equal rights in the workplace, including non-

discrimination in employment, equal pay for equal work, and paid

maternity leave.

Article 11: calls on states to implement the principles of the Declaration.

Page 81: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

69

2.6 CONVENTION ON THE ELIMINATION OF ALL FORMS OF

DISCRIMINATION AGAINST WOMEN:

The Convention on the Elimination of all Forms of Discrimination

against Women (CEDAW) is an international treaty adopted in 1979 by

the United Nations General Assembly. Described as an international bill

of rights for women, it came into force on 3 September 1981. Over fifty

countries that have ratified the Convention have done so subject to

certain declarations, reservations, and objections, including 38 countries

that rejected the enforcement article 29, which addresses means of

settlement for disputes concerning the interpretation or application of the

Convention1. Australia's declaration noted the limitations on central

government power resulting from its federal constitutional system. The

United States and Palau have signed, but not yet ratified the treaty. The

Holy See, Iran, Somalia, South Sudan, Sudan and Tonga are not

signatories to CEDAW.

The Convention defines discrimination against women in the following

terms:

Any distinction, exclusion or restriction made on the basis of sex which

has the effect or purpose of impairing or nullifying the recognition,

enjoyment or exercise by women, irrespective of their marital status, on

a basis of equality of men and women, of human rights and fundamental

freedoms in the political, economic, social, cultural, civil or any other

field.

It also establishes an agenda of action for putting an end to sex-based

discrimination:

1 "Declarations, Reservations and Objections to CEDAW". Un.org. Retrieved 2011-09-27.

Page 82: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

70

States must take measures to seek to eliminate prejudices and customs

based on the idea of the inferiority or the superiority of one sex or on

stereotyped role for men and women.

States ratifying the Convention are required to enshrine gender equality

into their domestic legislation, repeal all discriminatory provisions in

their laws, and enact new provisions to guard against discrimination

against women. However, special protection for maternity is not

regarded as gender discrimination (Article 4). Appropriate measures,

including legislation, to suppress all forms of trafficking in women and

forced prostitution are also not regarded as gender discrimination

(Article 6). Equal opportunity in education for female students is

required, and coeducation is encouraged. (Article 10). States ratifying

the Convention must also establish tribunals and public institutions to

guarantee women effective protection against discrimination, and take

steps to eliminate all forms of discrimination practiced against women

by individuals, organizations, and enterprises (Article 2,(e)).

CEDAW with UNSCR 1325 and 1820

Resolutions 1325 10th anniversary events highlight use of CEDAW

mechanisms1.

The 10th anniversary of Resolution 1325 in October 2010 highlighted

the increasing demand for accountability to UN Security Council

Resolution 1325 on Women, Peace and Security. Many expressed

concern about the fact that only 22 Member States out of 192 have

adopted national action plans. Women are still underrepresented if not

totally absent in most official peace negotiations and sexual violence in

conflict continue to increase.

1 Ref: Ensuring Accountability to UNSCR 1325 and 1820 using CEDAW reporting mechanisms

Page 83: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

71

These realities emphasized the need to use other legal mechanisms to

strengthen the implementation of SCR 1325, particularly CEDAW. The

well-established mechanisms of CEDAW – the Member States

compliance report and the civil society shadow reporting process were

cited as powerful instruments to ensure accountability.

Several regional and international meetings including the High Level

Seminar “1325 in 2020: Looking Forward…Looking Back,” organized

by the African Center for the Constructive Resolution of Disputes, and

the “Stockholm International Conference 10 years with 1325 – What

now?” called for the use of CEDAW to improve 1325 implementation.

Page 84: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

72

Intersection between SCR 1325 and CEDAW1

While CEDAW and UN Security Council Resolutions 1325 and 1820 on

Women, Peace and Security are important international instruments on

their own, there is also an intersection among the three standards that can

be used to enhance their implementation and impact.

Resolutions 1325 and 1820 broaden the scope of CEDAW application by

clarifying its relevance to all parties in conflict, whereas CEDAW

provides concrete strategic guidance for actions to be taken on the broad

commitments outlined in the two Resolutions.

CEDAW is a global human rights treaty that should be incorporated into

national law as the highest standard for women's rights. It requires UN

Member States that have ratified it (185 to date) to set in place

mechanisms to fully realize women's rights.

Resolution 1325 is an international law unanimously adopted by the

Security Council that mandates UN Member States to engage women in

all aspects of peace building including ensuring women's participation

on all levels of decision–making on peace and security issues.

Resolution 1820 links sexual violence as a tactic of war with the

maintenance of international peace and security. It also demands a

comprehensive report from the UN Secretary General on implementation

and strategies for improving information flow to the Security Council;

and adoption of concrete protection and prevention measures to end

sexual violence.

1 Written Statement submitted to CEDAW on the occasion of the General Discussion on Women in Conflict and Post-

conflict Situations « Global Network of Women Peacebuilders

Page 85: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

73

Resolutions 1325 and 1820 and CEDAW share the following agenda on

women's human rights and gender equality1:

1) Demand women’s participation in decision-making at all levels

2) Rejection of violence against women as it impedes the advancement

of women and maintains their subordinate status

3) Equality of women and men under the law; protection of women

and girls through the rule of law

4) Demand security forces and systems to protect women and girls

from gender-based violence

5) Recognition of the fact that distinct experiences and burdens of

women and girls come from systemic discrimination

6) Ensure that women’s experiences, needs and perspectives are

incorporated into the political, legal and social decisions that

determine the achievement of just and lasting peace

A General Comment from the CEDAW committee could strengthen

women’s advocacy for the full implementation of Resolutions 1325 and

1820 at the country and community levels. Conversely, CEDAW’s

relevance to conflict-affected areas will be underscored further by the

two Resolutions. In other words, all three international instruments will

reinforce each other and be much more effective if used together in

leveraging women’s human rights2.

1 Ref: Ensuring Accountability to UNSCR 1325 and 1820 using CEDAW reporting mechanisms

2 CEDAW with UNSCR 1325 and 1820 « Global Network of Women Peacebuilders

Page 86: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

74

2.7 MEMBERS AND RATIFICATION:

Main article: List of parties to the Convention on the Elimination of All

Forms of Discrimination against Women

The seven UN member states that have not ratified or acceded to the

convention are Iran, Palau, Somalia, South Sudan, Sudan, Tonga, and the

United States1.

The one UN non-member state that had not acceded to the convention is

the Holy See/Vatican City2.

The Republic of China (Taiwan) in 2007 has also ratified the treaty in its

legislature, but is unrecognized by the United Nations and is a party to

the treaty only unofficially3.

The latest state to have acceded the convention was Nauru on 23 June

2011.

Committee on the Elimination of Discrimination against Women,

The Committee on the Elimination of Discrimination against Women is

the United Nations (U.N.) treaty body that oversees the Convention on

the Elimination of All Forms of Discrimination against Women

(CEDAW). The formation of this committee was outlined in Article 17

of the CEDAW, which also established the rules, purpose, and operating

procedures of the committee4. Throughout its years of operation the

committee has held multiple sessions to ensure the rules outlined in the

1 "'Convention on the Elimination of All Forms of Discrimination Against Women'". Treaties.un.org. Retrieved 2011-09-

27. 2 Note: See New Zealand No 47 Declarations and Reservations New Zealand has signed this treaty on behalf on Niue.

3 Government Information Office, Republic of China (Taiwan). "Taiwan Aims to Sign Up Against Discrimination." 8

September 2006. 4 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The

Convention and the Committee". United Nations. Retrieved 18 October 2012.

Page 87: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

75

CEDAW are being followed. Over time the practices of the committee

have evolved due to an increased focus on women's rights issues.

History of the committee:

The Committee on the Elimination of Discrimination Against Women

was formed on 3 September 1981 after the CEDAW received the 20

ratifications required for it to enter into force. Article 17 of the CEDAW

established the committee in order to ensure that the provisions of the

CEDAW were followed by the countries that had signed and agreed to

be bound by it1. The first regular session of the committee was held from

18–22 October 1982. In this session the first officers of the committee

were elected by simple majority, with Ms. L. Ider of Mongolia becoming

chairperson2. Other officers elected were three vice chairpersons: Ms. M.

Caron of Canada, Ms. Z. Ilic of Yugoslavia and Ms. L. Mukayiranga of

Rwanda. The final officer elected was Ms. D. P. Bernard of Guyana as

rapporteur of the committee. During this session the committee also

unanimously approved to adopt its rules of procedure.

The rules regarding where and when the committee can hold sessions are

laid out in their rules of procedure3. The committee is allowed to hold as

many meetings as are required to perform their duties effectively, with

the states party to the CEDAW and the Secretary-General of the United

Nations authorizing the number of regular sessions held. In addition,

special sessions can be held at the request of either a state party to the

convention or the majority of the members serving on the committee.

1 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The

Convention and the Committee". United Nations. Retrieved 18 October 2012 2 United Nations Committee on the Elimination of Discrimination Against Women (1989). The Work of CEDAW: Reports

of the Committee on the Elimination of Discrimination against Women. New York: United Nations. p. 5. ISBN 9211301327. 3 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of

Discrimination Against Women". United Nations. Retrieved 18 October 2012.

Page 88: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

76

Fifty-three sessions have been held to date, with the most recent taking

place from 1 October 2012 to 19 October 20121. The first thirty-nine

sessions were held at the United Nations headquarters building in New

York City, with the fortieth session and alternating sessions following it

held in the Palais des Nations in Geneva. During each of its regular

sessions the committee hears reports from states party to the CEDAW on

their progress in adhering to CEDAW and implementing its ideas in their

countries2. The committee also holds pre-sessional work groups to

discuss the issues and questions that the committee should deal with

during the following session.

Reports:

Under article 18 of the CEDAW states must report to the committee on

the progress they have made in implementing the CEDAW within their

state. As most of the information the committee works with comes from

these reports, guidelines have been developed to help states prepare

accurate and useful reports3. Initial reports discussing the current picture

of discrimination against women in the reporting states are required to

specifically deal with each article of the CEDAW, and consist of no

more than one-hundred pages. States are required to prepare and present

these initial reports within one year of ratifying the CEDAW4. Periodic

reports detailing the state's progress in adhering to the articles of the

CEDAW should be no more than seventy-five pages in length and

1 U.N. Office of the High Commissioner for Human Rights. "Committee on the Elimination of Discrimination against

Women – Sessions". United Nations. Retrieved 6 November 2012. 2 United Nations Committee on the Elimination of Discrimination Against Women.

ny.un.org/doc/UNDOC/GEN/N12/281/61/PDF/N1228161.pdf?OpenElement "Report of the Committee on the Elimination of Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 United Nations Committee on the Elimination of Discrimination Against Women. "Overview of the current working

methods of the Committee on the Elimination of Discrimination against Women". United Nations. Retrieved 18 October 2012. 4 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The

Convention and the Committee". United Nations. Retrieved 18 October 2012.

Page 89: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

77

should focus on the specific period of time since the state's last report.

States party to the CEDAW are typically required to provide periodic

reports every four years, but if the committee is concerned about the

situation in that state they can request a report at any time1.

The committee chooses which reports to address by considering factors

such as the amount of time the report has been pending, whether the

report is initial or periodic (with more priority given to initial reports),

and from which region the report originates. Eight states are invited to

give their reports during each session and it is required a representative

from the state is in attendance when the report is presented. The

committee focuses on constructive dialogue when a report is presented,

and appreciates careful time management on the part of the state

presenting its report. Due to the high backlog of overdue reports the

committee has encouraged states to combine all of their outstanding

reports into one document, and sends reminders to states that have

reports five years overdue. The CEDAW also requires that the

committee provide an annual report that includes its activities, comments

relating to the reports provided by states, information relating to the

Optional Protocol of the CEDAW, and any other general suggestions or

recommendations the committee has made. This report is given to the

United Nations General Assembly through the Economic and Social

Council. All reports, agendas and other official documents pertaining to

the committee, including the reports provided by the states, are provided

to the public unless otherwise decided by the committee2.

1 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The

Convention and the Committee". United Nations. Retrieved 18 October 2012 2 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of

Discrimination Against Women". United Nations. Retrieved 18 October 2012.

Page 90: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

78

General Recommendations:

Along with issuing its annual report and offering advice to reporting

states, the committee has the ability to issue general recommendations

that elaborate on its views of the obligations imposed by CEDAW1. To

date, the committee has issued twenty-five general recommendations, the

latest dealing with the committee's interpretation of the CEDAW's

obligations relating to women's role in public life, and women's access to

healthcare. The recommendations issued by the committee in its first

decade were short and dealt mainly with the content of states’ reports

and reservations to the convention. Since 1991, however,

recommendations have been focused on guiding states’ application of the

CEDAW in specific situations. The formulation of a general

recommendation begins with dialogue between the committee on the

topic in the recommendation with various non-governmental

organizations and other U.N. bodies. The recommendation is then

drafted by a member of the committee and discussed and revised in the

next session, and finally adopted in the following session.

Changes in the committee:

For the first ten years it operated the committee operated significantly

differently than it does now2. The only form of censure given to the

committee by the CEDAW was their general recommendations and

concluding comments following a report3. Due to the emergence of the

Global Campaign for Women's Human Rights in 1991 more attention

1 United Nations Committee on the Elimination of Discrimination Against Women. "Overview of the current working

methods of the Committee on the Elimination of Discrimination against Women". United Nations. Retrieved 18 October 2012. 2 Reilly, Niamh (2009). Women's human rights : seeking gender justice in a globalizing age (Reprinted. ed.). Cambridge:

Polity Press. p. 62. ISBN 9780745637006. 3 Reilly, Niamh (2009). Women's human rights : seeking gender justice in a globalizing age (Reprinted. ed.). Cambridge:

Polity Press. p. 62. ISBN 9780745637006.

Page 91: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

79

was given to the CEDAW, reviving the committee. The committee made

changes to the CEDAW that allowed it to meet more than once a year,

and have taken advantage of this by meeting at least twice a year since

19971. The committee originally only met for two weeks in its annual

sessions, but that has now been changed to meeting multiple times a year

in eighteen day sessions2. CEDAW also gained new complaint and

inquiry proceedings allowing the committee to initiate inquiry

proceedings if it believes a state is in severe violation of the articles of

the CEDAW.

Despite evolving since the committee was first formed, members believe

there are ways in which the committee can better meet the goals outlined

in the CEDAW. One of the committee's main goals moving forward is

expanding its information base, allowing it to more effectively deal with

issues that arise concerning the CEDAW. The committee is authorized in

Article 22 of the CEDAW to invite specialized U.N. agencies such as the

United Nations Development Programme to deliver reports discussing

women's rights issues in the state under discussion3. Another method for

gathering information is requesting reports from non-governmental

organizations dealing with discrimination against women that are

operating in the country under discussion. This is recommended to insure

that the committee is receiving the full, unbiased picture of affairs within

the reporting state.

Another recommendation for improvement involves interpreting and

clarifying the language used in the CEDAW in order to make the

1 Reilly, Niamh (2009). Women's human rights : seeking gender justice in a globalizing age (Reprinted. ed.). Cambridge:

Polity Press. p. 62. ISBN 9780745637006. 2 United Nations Committee on the Elimination of Discrimination Against Women.

ny.un.org/doc/UNDOC/GEN/N12/281/61/PDF/N1228161.pdf?OpenElement "Report of the Committee on the Elimination of Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The

Convention and the Committee". United Nations. Retrieved 18 October 2012

Page 92: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

80

document as useful as it can be. A third improvement that has been

suggested is improving the efficiency of the committee. Due to the

backlog in reports faced by the committee it has been suggested that the

government officials who prepare reports presented to the committee

should be trained, in order to make all reports uniform and more easily

processed. A final suggestion for improvement is the implementation of

a right of petition in the CEDAW, allowing the committee to hear

complaints from citizens of a state against the state, increasing the

committee's strength and direct impact on the problem of discrimination

against women1.

Languages:

The official languages of the committee are English, Arabic, French,

Russian, and Spanish, with any statement made in one of the official

languages translated into the other four. A speaker who does not speak

one of the official languages provides a translator2. All formal decisions

and documents issued by the committee are provided in each of the

official languages. The original rules of procedure adopted by the

committee did not include Arabic as an official language, but the rule

was amended in the committees second session to include Arabic3.

1 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The

Convention and the Committee". United Nations. Retrieved 18 October 2012 2 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of

Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 United Nations Committee on the Elimination of Discrimination Against Women (1989). The Work of CEDAW: Reports

of the Committee on the Elimination of Discrimination against Women. New York: United Nations. p. 5. ISBN 9211301327.

Page 93: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

81

Members of the Committee:

Twenty-three members serve on the committee, described as experts for

their experience and expertise in women's issues1. The members are

nominated by their national governments and elected through a secret

ballot by states party to the convention. Upon winning the election and

taking up their responsibilities the members of the committee recite the

following statement, known as the solemn declaration, “I solemnly

declare that I shall perform my duties and exercise powers as a member

of the Committee on the Elimination of Discrimination against Women

honourably, faithfully, impartially and conscientiously”2. The members

come from a wide range of occupations including doctors, lawyers,

diplomats and educators, providing various viewpoints to the committee

due to their diversity. Many members continue to hold full-time jobs

outside of the committee and receive little monetary payment for their

work on the committee.

To insure that the nationality of members encompasses all the diverse

states who have signed the CEDAW, members are elected according to

regions divided into Latin America and the Caribbean, Africa, Asia,

Western Europe, and Eastern Europe. The members of the committee

differ from those of other treaty bodies of the United Nations in that they

have all been women with only one exception3. In the event a member of

the committee is unable to continue serving on the committee before her

term is up the state that had nominated the resigning member shall

1 Merry, Sally Engle (2006). Human rights and gender violence : translating international law into local justice

([Nachdr.]. ed.). Chicago [u.a.]: Univ. of Chicago Press. p. 82. ISBN 0226520730. 2 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of

Discrimination Against Women". United Nations. Retrieved 18 October 2012. 3 U.N. Office of the High Commissioner for Human Rights. "Fact Sheet No. 22, Discrimination Against Women: The

Convention and the Committee". United Nations. Retrieved 18 October 2012

Page 94: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

82

nominate another expert from their country to fill in her seat1.

Committee members and experts also attend an annual luncheon, hosted

by the NGO Committee on the Status of Women, NY (NGO CSW/NY),

where key issues are discusses and the efforts of the committee are

honoured2.

Officers of the Committee:

The officers of the committee are composed of a chairperson, three vice-

chairpersons and a rapporteur3. Officers of the committee are nominated

by another member of the committee, as opposed to a government which

nominates members for the committee4. All officers are elected by

majority vote to a two-year term of office, and remain eligible for re-

election after their term expires. The chairperson's duties include

declaring a meeting to be open or closed, directing the discussion in a

session, announcing decisions made by the committee, preparing

agendas in consultation with the secretary-general, designating the

members of pre-sessional working groups and representing the

committee at United Nations meetings which the committee is invited to

participate in. In the case the chairperson is unable to perform any her

duties she designates one of the three vice-chairpersons to take over her

role. If the chairperson fails to designate a vice-chairperson prior to her

absence then the vice-chairperson with the first name in English

alphabetical order takes over. In the event an officer is unable to

continue serving on the committee before her term expires a new officer

1 U.N. Office of the High Commissioner for Human Rights. "Rules of Procedure of the Committee on the Elimination of

Discrimination Against Women". United Nations. Retrieved 18 October 2012. 2 "NGO CSW, NY / About / How We Work". Ngocsw.org. 26 July 2011. Retrieved 2011-09-27.

3 U.N. Office of the High Commissioner for Human Rights. "Membership of the Committee on the Elimination of

Discrimination against Women". OHCHR. Retrieved 18 October 2012. 4 United Nations Committee on the Elimination of Discrimination Against Women (1989). The Work of CEDAW: Reports

of the Committee on the Elimination of Discrimination against Women. New York: United Nations. p. 5. ISBN 9211301327.

Page 95: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

83

from the same region as the original officer shall be nominated, elected

and will take over the vacated office.

Optional Protocol:

The Optional Protocol to the Convention on the Elimination of All

Forms of Discrimination against Women is a side-agreement to the

Convention which allows its parties to recognise the competence of the

Committee on the Elimination of Discrimination against Women to

consider complaints from individuals1.

The Optional Protocol was adopted by the UN General Assembly on 6

October 1999 and entered into force on 22 December 20002. Currently it

has 80 signatories and 104 parties3.

Controversy:

In an article in Moment magazine in February 2011, Paula Kweskin, in

discussing so-called "honor" killings taking place in the Palestinian

Authority, writes that two-thirds of all murders in the Palestinian

Authority and Gaza are “honor” killings. These crimes go unpunished

and laws grant impunity to those who kill based on “family honor.” In

interviews and press releases on their websites, many NGOs, including

Badil, the Palestinian Center for Human Rights, and the Women's Center

for Legal Aid and Counselling, have decried "honor" killings and the

lack of legal protection for Palestinian women; yet these NGOs are silent

when given a forum at CEDAW to address these problems4.

1 Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, Article 1.

2 "Optional Protocol to Women's Convention Comes into Force". 21 December 2000. Retrieved 2008-07-15

3 "Parties to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against

Women". UN OHCHR. Retrieved 2009-10-03 4 By elisniv (24 February 2011). "NGOs Fail Palestinian Women at the UN". Momentmagazine.wordpress.com.

Retrieved 2011-09-27

Page 96: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

84

The CEDAW has been controversial for statements that have been made

by some of its members which were seen by a number of states and

NGOs as promoting Western-style feminism. Often referenced is a 2000

report which said that in Belarus, "the Committee is concerned by the

continuing prevalence of sex-role stereotypes and by the reintroduction

of such symbols as a Mothers' Day and a Mothers' Award, which it sees

as encouraging women's traditional roles1." Other controversial positions

of CEDAW include supporting the decriminalization of prostitution in

specific countries [not in citation given], criticizing Slovenia because

only 30% of children are in day care, and pressuring numerous states to

decriminalize abortion2 .Other requests are seen by groups as a backdoor

to forcing states parties to adopt an Equal Rights Amendment or

comparable national legislation, which is seen as a violation of the

CEDAW treaty mandate and the sovereignty of states parties3.

More recently, the controversy concerning CEDAW has cantered around

the question of easy access to abortion and contraception. According to

C-FAM (the Catholic Family and Human Rights Institute), at UN

meetings officials pressed the delegation from Slovakia to liberalize its

abortion laws and to inaugurate campaigns encouraging contraceptive

use and "reproductive health awareness"4.

1 "Womenwatch report". Retrieved 2011-09-27

2 "Nations Pressured by CEDAW". Archived from the original on 23 July 2011. Retrieved 2011-09-27

3 "Concerned Women for America – Exposing CEDAW". Cwfa.org. Retrieved 2011-09-27

4 "UN Committee Pressures Slovakia over its Concordat with the Catholic Church".

Page 97: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

85

2.8 CONVENTION ON PREVENTING AND COMBATING

VIOLENCE AGAINST WOMEN AND DOMESTIC VIOLENCE:

The Council of Europe Convention on preventing and combating

violence against women and domestic violence (Istanbul Convention) is

a Council of Europe convention against violence against women and

domestic violence which was opened for signature on May 11, 2011, in

Istanbul, Turkey. The convention aims at prevention of violence, victim

protection and "to end with the impunity of perpetrators"1. It has been

signed by 30 countries and on 12 March 2012 Turkey became the first

country to ratify the Convention, followed by three countries in 2013

(Albania, Italy2, Montenegro, Portugal).

The Council of Europe has undertaken a series of initiatives to promote

the protection of women against violence 3since the 1990s. In particular,

these initiatives have resulted in the adoption, in 2002, of the Council of

Europe Recommendation Rec(2002)5 of the Committee of Ministers to

member states on the protection of women against violence, and the

running of a Europe-wide campaign, from 2006-2008, to combat

violence against women, including domestic violence4. The Council of

Europe Parliamentary Assembly has also taken a firm political stance

against all forms of violence against women. It has adopted a number of

resolutions and recommendations calling for legally-binding standards

on preventing, protecting against and prosecuting the most severe and

widespread forms of gender-based violence.

1 Signatures and ratifications". Council of Europe. 1 July 2013. Retrieved 1 July 2013.

2 Italy's senate ratified, but a deposit of the instrument of ratification has not been recorded by the Council of Europe;

"The Italian Senate ratifies the Istanbul convention". Council of Europe. 20 June 2012. Retrieved 20 June 2012. 3 "Recommendation Rec(2002)5 of the Committee of Ministers to member states on the protection of women against

violence". Council of Europe Committee of Ministers. Retrieved 2012-12-18. 4 "Campaign to Combat Violence against Women, including domestic violence (2006-2008)". Council of Europe.

Retrieved 2012-12-18

Page 98: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

86

National reports, studies and surveys revealed the magnitude of the

problem in Europe. The campaign in particular showed a large variation

in Europe of national responses to violence against women and domestic

violence. Thus the need for harmonised legal standards to ensure that

victims benefit from the same level of protection everywhere in Europe

became apparent. The Ministers of Justice of Council of Europe member

states began discussing the need to step up protection from domestic

violence, in particular intimate partner violence.

The Council of Europe decided it was necessary to set comprehensive

standards to prevent and combat violence against women and domestic

violence. In December 2008, the Committee of Ministers set up an

expert group mandated to prepare a draft convention in this field. Over

the course of just over two years, this group, called the CAHVIO (Ad

Hoc Committee for preventing and combating violence against women

and domestic violence)1, worked out a draft text. During the later stage

of drafting of the convention, UK, Italy, Russia and the Holy See have

proposed several amendments to limit the requirements provided by the

Convention. These amendments have been criticized by Amnesty

International2. The final draft of the convention was produced in

December 2010.

Adoption, signature and ratification:

The convention was adopted by the Council of Europe Committee of

Ministers on 7 April 2011. It opened for signature on 11 May 2011 on

the occasion of the 121st Session of the Committee of Ministers in

Istanbul. It will enter into force following 10 ratifications, 8 of which

1 Ad Hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO)". Council

of Europe. Retrieved 2012-12-18. 2 "Time to take a stand to oppose violence against women in Europe". Amnesty International. 2011. Retrieved 12

September 2012

Page 99: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

87

must be member states of the Council of Europe. As of March 2013, the

convention has been signed by 30 states, followed by ratification of five:

Albania, Italy Montenegro, Portugal and Turkey. States that have ratified

the Convention are legally-bound by its provisions once it enters into

force.

The Istanbul Convention is the first legally-binding instrument which

"creates a comprehensive legal framework and approach to combat

violence against women" and is focussed on preventing domestic

violence, protecting victims and prosecuting offenders1.

It characterizes violence against women as a violation of human rights

and a form of discrimination (Art.3(a)). Countries should exercise due

diligence when preventing violence, protecting victims and prosecuting

perpetrators (Art. 5). The Convention is also the first international treaty

to contain a definition of gender. For the purpose of the Convention

gender is defined in Article 3(c) as "the socially constructed roles,

behaviours, activities and attributes that a given society considers

appropriate for women and men". Moreover, the treaty establishes a

series of offences characterized as violence against women. States

should include these in their penal codes or in other forms of legislation

should these offences not already exist in their legal systems. The

offences established by the Convention include: psychological violence

(Art.33); stalking (Art.34); physical violence (Art.35); sexual violence,

including rape (Art.36), forced marriage (Art.37); female genital

mutilation (Art.38), forced abortion and forced sterilisation (Art.39); and

sexual harassment (Art.40). Parties to the Convention may choose

whether or not they wish to criminalise or subject to other legal sanction

the following offences: psychological violence, stalking and sexual

1 "Malta signs convention on domestic violence". Malta Star. 21 May 2012. Retrieved 12 September 2012.

Page 100: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

88

harassment. The Convention also includes an article targeting crimes

committed in the name of so-called "honour" (Art. 42)1.

Structure:

The convention contains 81 articles separated into 12 chapters. Its

structure follows the structure of the Council of Europe’s most recent

conventions. The structure of the instrument is based on the “four Ps”:

Prevention, Protection and support of victims, Prosecution of offenders

and Integrated Policies. Each area foresees a series of specific measures2.

The Convention also establishes obligations in relation to the collection

of data and supporting research in the field of violence against women

(Art. 11).

At the Preamble, European Convention on Human Rights, European

Social Charter and Convention on Action against Trafficking in Human

Beings as well as international human rights treaties by United Nations

and Rome Statute of the International Criminal Court are recalled. In

Article 2, this Convention indicates that the provisions shall apply in

time of peace and also in situations of armed conflicts in violence against

women and domestic violence. Article 3 provides defines key terms:

"violence against women" is violence of human rights and a form of

discrimination against women and shall mean all acts of gender-based

violation that result in, or are likely to result in physical, sexual,

psychological, or economic harm or suffering to women including

threats of such acts, coercion or arbitrary deprivation of liberty, whether

occurring in public or private life,

1 "Council of Europe Convention on preventing and combating violence against women and domestic violence

Explanatory report" (PDF). Council of Europe. Retrieved 2012-12-18. 2 Ad Hoc Committee on preventing and combating violence against women and domestic violence (CAHVIO) interim

report". Council of Europe. 27 May 2009. Retrieved 2012-12-18.

Page 101: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

89

"domestic violence": all acts of physical, sexual, psychological or

economic violence that occur with the family or domestic unit or

between former or current spouses or partners, whether or not the

perpetrator shares or has shared the same residence with the victim.

"gender": means the socially constructed roles, behaviours, activities and

attributes that a given society considers appropriate for women and men.

"gender-based violence against women": means violence that is directed

against a woman because she is a woman or that affects women

disproportionately.

Article 4 prohibits several types of discrimination stating: The

implementation of the provisions of this Convention by the Parties, in

particular measure to protect the rights of victims, shall be secured

without discrimination on any ground such as sex, gender, race, colour,

language political or other opinion, national or social origin, association

with a national minority, property, birth, sexual orientation, gender

identity, age, state of health, disability, marital states, migrant or refugee

status, or other status.

Page 102: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

90

2.9 GLOBAL IMPLEMENTATION PLAN TO END VIOLENCE

AGAINST WOMEN AND GIRLS:

The Global Implementation Plan to End Violence against Women and

Girls was a recommendation from the multi-agency Expert Group

Meeting (EGM) on the prevention of violence against women and girls.

The meeting was convened as part of the United Nations Commission on

the Status of Women's multi-year programme of work for 2010-2014.

The "Elimination and prevention of all forms of violence against women

and girls" formed a priority theme for its fifty-seventh session in 2013

(CSW57).

The EGM took place in Bangkok, Thailand 17 - 20 September 2012 and

was organised by the United Nations Entity for Gender Equality and the

Empowerment of Women (UN Women), in collaboration with the

following organisations:

United Nations Economic and Social Commission for Asia and the

Pacific (ESCAP);

United Nations Development Programme (UNDP);

United Nations Population Fund (UNFPA);

United Nations Children’s Fund (UNICEF) and;

World Health Organization (WHO)1.

The report that the meeting produced reflected the shared discussion and

analysis of the major issues, gaps and challenges identified at the EGM

and presented key findings and recommendations. It was intended to

build on the individual papers on specific issues provided by experts

prior to the meeting, and the background paper prepared by the

1 EGM announced, UN Women's website. Retrieved 28 February 2013

Page 103: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

91

rapporteur1. It provided inputs for the reports of the Secretary-General to

the CSW and was widely disseminated in preparation to the fifty-seventh

session of CSW.

Recommendations 106 - 109 of the EGM calls for a global plan to be

launched by 2015, to end violence against women and girls organised

along these lines:-

The Global Implementation Plan to End Violence against

Women and Girls, endorsed and supported by Member States at

its launch, would aim to:

Intensify and scale-up global awareness of violence against

women and girls as a global emergency.

Combine the best thinking on how to proceed with concrete

pledges for action.

Mobilise international, regional and national action by

governments, multilaterals, the private sector and civil society.

Build the foundation for an evidence and practice-informed

global prevention strategy.

Increase resources available to end violence against women and

girls.

Development of the plan would require, among other things:

Identification of a small set of key policy, legal and programme-

delivery targets (institutions) at the national level towards which

global violence prevention efforts can be directed.

Detailed review of existing action plans, indicators,

recommendations, platforms for action, policy agendas, and

recommendations outlined by the Security Council, UN Treaty

1 EGM: prevention of violence against women and girls. Background papers. Retrieved 8 March 2013

Page 104: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

92

bodies, the special rapporteurs, and various UN agencies, with a

view to closing implementation gaps and building the next stage.

Creation of a cohesive global community of key stakeholders.

Designation of strong coordinating mechanisms.

Development of an accountability framework with indicators to

measure State responsiveness to the policy, legal and

programme-delivery goals identified and an independent

monitoring mechanism.

Page 105: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

93

2.10 UNITED NATIONS COMMISSION ON THE STATUS OF

WOMEN :

The fifty-seventh session of the United Nations Commission on the

Status of Women took place at the UN building, New York between the

4th and 15th March 2013.

The agreed conclusions from the session agreed the following four

actions:

Strengthening implementation of legal and policy frameworks

and accountability.

Addressing structural and underlying causes and risk factors so

as to prevent violence against women and girls.

Strengthening multisectorial services, programmes and responses

to violence against women and girls.

Improving the evidence-base1.

UN Women's Executive Director Michelle Bachelet urged speedy

implementation of the Agreed Conclusions saying, “The best way to

honour the commitments made by Member States at the Commission is

to work for implementation and accountability2."

The Expert Group Meeting (EGM): prevention of violence against

women and girls was convened as part of the United Nations

Commission on the Status of Women's multi-year programme of work

for 2010-2014. The "Elimination and prevention of all forms of violence

against women and girls" forms a priority theme for its fifty-seventh

session in 2013 (CSW57).

1 Ref:SSN 0252-0117 Final draft, pp. 1-17. Retrieved 11 June 2013.

2Ref:http://www.unwomen.org/2013/03/un-women-urges-implementation-of-historic-global-agreement-to-end-

violence-against-women-and-girls/ Press release from UN Women, "UN Women urges implementation of historic global agreement to end violence against women and girls", 20 March 2013. Retrieved 11 June 2013.

Page 106: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

94

The meeting took place in Bangkok, Thailand 17–20 September 2012

and was organised by the United Nations Entity for Gender Equality and

the Empowerment of Women (UN Women), in collaboration with the

following organisations:

United Nations Economic and Social Commission for Asia and

the Pacific (ESCAP);

United Nations Development Programme (UNDP);

United Nations Population Fund (UNFPA);

United Nations Children’s Fund (UNICEF) and;

World Health Organization (WHO)1.

HISTORY OF EXPERT GROUP AND RECOMENDATIONS

The report reflects the shared discussion and analysis of the major issues,

gaps and challenges identified at the EGM and presents key findings and

recommendations. It was intended to build on the individual papers on

specific issues provided by experts prior to the meeting, and the

background paper prepared by the rapporteur2. It provides inputs for the

reports of the Secretary-General to the CSW and widely disseminated in

preparation to the fifty-seventh session of CSW (CSW57).

Experts stressed the critical importance of women’s organisations, civil

society, international institutions, donors and States working together to

go beyond ‘ad hoc’ approaches to prevention, and for States to take their

responsibility for developing long-term and multi-sectoral strategies so

that activity can be coordinated, and evidence built, to achieve real

results. With an increased commitment from all actors to such an

approach, and corresponding investment, many experts believed violence

1 EGM announced, UN Women's website. Retrieved 28 February 2013

2 17 Sep 2012 - 20 Sep 2012 09:00 AM to 6:00 PM. "violence-against-women-and-girls/ Background papers are

available on the EGM website". Unwomen.org. Retrieved 2013-06-30

Page 107: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

95

against women and girls could be ended within a generation. To this end,

experts have made recommendations (see below) for a coordinated and

target-focussed approach to preventing violence against women and

girls, driven by two overarching activities – a Global Implementation

Plan – framing the work of international, regional and national

institutions (including States) toward the goal of ending violence against

women and girls, along with a Global Advocacy Campaign – driven by

women’s and other civil society organisations to create momentum and

provide accountability for the above.

Also, given CSW’s specific mandate with regards to implementation of

the Beijing Declaration and Platform for Action1 experts have made

further recommendations for immediate implementation, aligned with

the BPfA’s2 strategic objectives of taking integrated measures to prevent

and eliminate violence against women, and studying the causes and

consequences of violence against women and the effectiveness of

preventive measures. While the BPfA objectives cover both prevention

of, and response to, violence against women and girls, and experts

supported full implementation of all of these, the recommendations

below build on those areas focussing on prevention.

Finally, experts identified recommendations arising from emerging

issues or gaps in the evidence and practice base regarding prevention of

violence against women and girls in certain contexts and settings. These

include recommendations for prevention in settings affected by

humanitarian crises such as conflict and natural disasters; contexts of

1 ECOSOC resolution 1996/6 requires the Commission to integrate into its programme a follow-up process to the 1995

Conference, and to regularly review the critical areas of concern in the Platform. It is to ‘assist the [Economic and Social] Council in monitoring, reviewing and appraising progress achieved and problems encountered in the implementation of the Beijing Declaration and Platform for Action at all levels,’ and ‘maintain and enhance public awareness and support for the implementation of the Platform for Action 2 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013.

Page 108: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

96

serious urban or youth violence; with regards to representation of women

and girls in the context of mass media as well as in new social media;

and in the context of the global financial crisis and shifting geopolitics.

In addition to the broad recommendations below that are relevant to all

settings, special attention has been given to certain contexts and settings

in order to highlight specific strategies for prevention related to these

particular areas of concern. Experts have also chosen to highlight certain

recommendations specific to preventing violence against girls, including

adolescent girls, and young women, as a frequently overlooked group

worthy of special consideration.

Page 109: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

97

2.11 GLOBAL IMPLEMENTATION PLAN

Experts agreed that while an international legal and normative frame

work for preventing violence against women and girls is already in

place, there are two major barriers to its implementation. The first is that

social and cultural norms and customs are often used as a shroud or

excuse for laws, practices and behaviours that are either directly violent

or discriminatory towards women and girls, or else contribute to and

support violence against them. The BPfA clearly calls on States to

‘refrain from invoking any custom, tradition or religious consideration to

avoid their obligations with respect to its elimination as set out in the

Declaration on the Elimination of Violence against Women,’1 and

experts were adamant that this entails an active obligation on States to

examine their own laws and policies, and challenge the communities,

organisations and individuals in their jurisdictions, to eliminate norms

and customs that excuse, justify or tolerate violence against women and

girls, and which exist in all societies.

A second barrier to full implementation of existing obligations is the lack

of a coordinated, strategic agenda at international, regional and national

levels for modifying ‘the social and cultural patterns of conduct of men

and women, with a view to achieving the elimination of prejudices and

customary and all other practices which are based on the idea of the

inferiority or the superiority of either of the sexes or on stereotyped roles

for men and women,’2 required by CEDAW. This is an essential

precondition and support for the sustainable prevention of violence

against women and girls. As noted above, such prejudices, practices and

1 United Nations Beijing Declaration and Platform for Action, adopted at the Fourth World Conference on Women, 27

October 1995, paragraph 124(a). 2 United Nations Convention for the Elimination of All Forms of Discrimination against Women (1979) GA res. 34/180,

art 5(a).

Page 110: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

98

stereotypes are rampant in all societies, expressed as much through

channels such as media and popular culture, as through institutions more

identifiable as the bearers of custom or ‘tradition’ (e.g. faith institutions).

A much greater commitment and level of resourcing is required from all

States, along with significantly improved coordination of policy,

programming and research at global, regional and national levels

towards a shared strategic agenda to eliminate these and so meet the

legal obligation under CEDAW.

To this end, an overarching recommendation from experts was that

Member States commit, at CSW in 2013, to develop a Global

Implementation Plan to End Violence against Women and Girls, to be

launched in 2015, with a particular focus on prevention of violence

against women and girls. This Plan should aim to provide vigilance on

established international obligations (particularly the overarching BPfA1

and CEDAW obligations cited above), and serve as the tool for

operationalizing these norms into national policy and programming in a

coordinated and results-based way.

The Global Implementation Plan to End Violence against

Women and Girls, endorsed and supported by Member States at

its launch, would aim to:

Intensify and scale-up global awareness of violence against

women and girls as a global emergency

Combine the best thinking on how to proceed with concrete

pledges for action.

Mobilise international, regional and national action by

governments, multilaterals, the private sector and civil society.

1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013

Page 111: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

99

Build the foundation for an evidence and practice-informed

global prevention strategy.

Increase resources available to end violence against women and

girls.

Development of the plan should be linked to the processes defining the

post-2015 development agenda, to ensure that the prevention of violence

against women and girls is rightly understood as crucial to the meeting

of other internationally agreed development goals, and that targets

relating to the prevention of (and response to) such violence are

explicitly identified and well situated in the post-2015 development

framework.

Development of the plan would require, among other things:

Identification of a small set of key policy, legal and programme-

delivery targets (institutions) at the national level towards which

global violence prevention efforts can be directed.

Detailed review of existing action plans, indicators,

recommendations, platforms for action, policy agendas, and

recommendations outlined by the Security Council, UN Treaty

bodies, the special rapporteurs, and various UN agencies, with a

view to closing implementation gaps and building the next stage.

Creation of a cohesive global community of key stakeholders.

Designation of strong coordinating mechanisms.

Development of an accountability framework with indicators to

measure State responsiveness to the policy, legal and

programme-delivery goals identified and an independent

monitoring mechanism.

Page 112: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

100

Development of the plan should include the proactive engagement of

new partners (such as the private sector, sporting organisations, religious

and cultural leaders, the media and entertainment industry), with a

critical eye to the internal structures and methods of operation of such

partners to ensure they fully support and in no way undermine the human

rights of women and girls.

A global advocacy campaign for prevention:

Experts further recognised the crucial and catalytic role of women’s

organisations and called for them to help build support and momentum

for the above. A global ‘movement for prevention’ is needed, engaging a

critical mass of individuals, groups and institutions working together to

create communities and countries that are safe for women and girls and

where their rights are respected.

Experts’ second overarching recommendation was therefore those

women’s organisations, in partnership with other civil society

organisations and identified willing international and regional

institutions, States and other relevant parties lead a Global Advocacy

Campaign to Prevent Violence against Women and Girls, as a crucial

accompaniment to the development of the Implementation Plan above.

The Advocacy Campaign could include the creation of plain language

communications materials, mechanisms to share information and

practice, avenues for capacity development, and advocacy strengthening,

for example through the training of male and female youth and veteran

activists and leaders to monitor progress of nations on international

agreements, produce reports, and represent women’s and girls’ priorities

and interests in international forum. The aim of the Advocacy Campaign

would be to create momentum for the Implementation Plan, ensure the

Page 113: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

101

consistent promotion of evidence-informed, rights-based prevention

activity, and hold international, regional and national stakeholders

accountable to women and girls.

While the Global Implementation Plan may take one to two years to

develop, there are many areas of work that States have already

committed to under the BPfA1 Strategic Objective D1 – to take

integrated measures to prevent and eliminate violence against women –

and upon which they can and should take immediate action. Below are

recommendations elaborated by the experts in line with the growing

evidence and practice base on prevention, in support of these existing

commitments.

In line with BPfA’s calling on Governments to ‘formulate and

implement, at all appropriate levels, plans of action to eliminate violence

against women,’and calling for the allocation of ‘adequate resources

within the government budget and mobilisation of community resources

for activities related to the elimination of violence against women,

including resources for the implementation of plans of action at all

appropriate levels,’ experts recommend that States work in partnership

with funders, international and regional institutions, women’s and civil

society organisations and other stakeholders to develop, implement,

evaluate and monitor coordinated, multisectoral and sustained prevention

strategies, alongside and reinforcing strategies to improve the response

to existing violence. Such strategies should

Address the underlying causes of violence against women and

girls in norms and practices at socio-structural, community,

organisational, relationship and individual levels, and include a

1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2011

Page 114: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

102

performance monitoring framework, and coordination and

accountability mechanisms.

Comprise a variety of coordinated interventions to be

implemented in a mutually reinforcing way across settings and

sectors.

Include the review and revision of policy and legislation to

ensure a consistent whole-of-government framework for the

prevention of violence against women and girls that promotes

women’s and girls’ human rights and gender equality in line with

international norms. This review and reform process should

ensure law and policy: aligns with and responds explicitly to

State obligations under relevant human rights treaties,

intergovernmental agreements and international

standards/guidelines, repealing and reforming discriminatory

laws and criminalizing violence against women and girls; defines

violence against women and girls according to international

norms, acknowledging that such violence is a form of

discrimination and manifestation of historically unequal power

relations between men and women, and the recognising the

particular vulnerabilities of girls; and recognises that women’s

and girls’ experience of violence is shaped by factors such as

disability, age, ethnicity, religion, political or other opinion,

national or social origin, property, marital status, sexual

orientation, HIV/AIDS status, migrant or refugee status and

exposure to conflict or natural disaster.

Be supported by multi-sectoral coordination mechanisms, with

the involvement of representatives from across government

institutions and also civil society, donors and other stakeholders

who can aid in implementation. These mechanisms should begin

Page 115: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

103

by identifying where existing capacity could be harnessed in

particular programmatic areas for immediate impact (e.g. through

existing health or education sectors, or existing nongovernment

programming), and provide for the development of capacity (e.g.

a human rights training curriculum and mandatory training for all

elected officials and civil servants at every level of government)

across other sectors for mid to longer-term work.

Ensure earmarked budgets are in place in each relevant Ministry

– including human and technical resources – to fund such

strategies over the short, mid and long-terms. Working to

integrate prevention of violence against women and girls into all

leading policy and funding frameworks can also provide strategic

avenues and a broad base from which to strengthen efforts and

secure budgets. Examples of these include poverty reduction and

development strategies and national plans, and sector-wide

reforms related to education, health, security, justice, HIV and

AIDS, peace-building, transitional justice, reconstruction and

conflict prevention strategies and frameworks in post-conflict

situations, and contingency planning strategies and frameworks

in settings affected by cyclical natural disasters.

Set specific targets and include mechanisms for monitoring

progress towards them, across implementing institutions, and

agencies in international/regional systems. Institutional

responsibilities and reporting arrangements against these targets

should be articulated, and mechanisms for accountability

established. For example, regular and participatory multi-sectoral

assessments at the national and local levels, across line ministries

and related public sector institutions can strengthen

accountability for performance in terms of agreed-upon

Page 116: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

104

budgetary commitments and/or related performance on budgetary

allocations.

Aim to create an enabling environment for women’s and civil

society organisations working on prevention of violence against

women and girls. Resource allocation models should maximise

collaboration between community organisations, and continuity

of funding for programmes where they are shown to be effective

through appropriate evaluation.

Include – across all settings and frameworks – efforts to engage

men and boys in achieving gender equality and preventing

violence, informed by the expertise of the women’s sector, and

with mechanisms to ensure accountability to women and girls.

Experts further recommend that UN agencies mirror what is recognised

as good practice for Governments above, and adopt a coordinated,

interagency approach to prevent (and respond to) violence against

women and girls, with support from the highest political level (i.e. the

Secretary General). As part of the Global Implementation Plan, UN

agencies should develop a system-wide work plan building on related

system-wide initiatives (e.g. the Secretary Generals’ Unite Campaign)

and through existing coordination mechanisms, to support and promote

national implementation of, monitor progress against, and advance the

international normative framework. Regional institutions should

similarly develop and implement coordinated work plans to support

Member States implement regional normative frameworks for prevention

of violence against women and girls, monitor progress against these

frameworks, and advance the frameworks themselves. Such work plans

might include strategies to:

Page 117: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

105

Expand normative interpretations and understandings of

prevention activity – beyond awareness-raising, education and

sensitisation of the media – to make linkages with and

encompass positive obligations on States to promote gender

equality and change social norms contributing to gender

stereotyping, discrimination and violence against women and

girls, across all levels, jurisdictions, sectors and settings.

Provide policy guidance, technical advice and knowledge

management to support States develop, implement and monitor

holistic, systemic and sustained approaches to prevention.

Ensure coordinated and sustained national and regional

programming for prevention across different agencies and

funding streams, and in different settings, such as conflict-

affected contexts, natural disasters, low, middle and high-

income countries (e.g. through UNDAFs, humanitarian funding

streams, and in cooperation with regional bodies).

Ensure outcomes and targets for prevention of violence against

women and girls are a key component of the post-2015

development agenda.

In line with BPfA’s 1‘Adopt all appropriate measures, especially in the

field of education, to modify the social and cultural patterns of conduct

of men and women, and to eliminate prejudices, customary practices and

all other practices based on the idea of the inferiority or superiority of

either of the sexes and on stereotyped roles for men and women’, experts

recommend that States:

Develop, implement and monitor compulsory education

promoting human rights and gender equality, challenging

1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013

Page 118: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

106

gender stereotypes, discrimination and violence against women

and girls, and building skills for equal and respectful

relationships and for peaceful conflict resolution, at all levels of

schooling, from kindergarten to the tertiary level and in non-

school educational settings.

Review teaching and learning materials to support the above,

elaborating relevant curricula and materials in partnership with

specialists on violence against women and girls, and ensuring

that such education is gender-sensitive, comprehensive and

fully integrated and includes assessment and reporting

measures.

Provide for specialized training and resources for teaching and

support staff to deliver the above curricula, implement gender-

sensitive approaches to instruction through non-violent

pedagogy, and support students who may disclose violence.

Support schools, tertiary institutions and other educational

settings to promote broader ‘whole-school/institution cultures’

of equality, non-violence and respect, through engagement of

leadership, events and extracurricular activities, and

involvement of the community, as well as through policy and

practice reform such as instigating institution-wide bans on all

violence – including corporal punishment – and protocols and

procedures for responding to violence, discrimination, bullying

and harassment, whether in the staff-room, the classroom or

elsewhere on the school/institution grounds.

Monitor and support girls’ completion of secondary schooling

which multiple studies suggest is strongly protective against

domestic and sexual violence.

Page 119: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

107

In line with BPfA’s1, calling for the development of ‘programmes and

procedures to eliminate sexual harassment and other forms of violence

against women in all educational institutions, workplaces and

elsewhere,’ experts make a number of recommendations to States,

employers, trade unions, community and youth organisations and non-

governmental organisations, as appropriate:

Review regulatory frameworks, codes of conduct, protocols and

procedures, of workplace, educational institutions, sporting

clubs, community and faith organisations, the military, police and

other organisational/institutional environments, to ensure they

work to eliminate discrimination and harassment, and build

organisational environments that are safe and inclusive of women

and girls, and encourage women’s and girls’ participation and

leadership.

Foster collaboration between employer and other organisations,

and with women’s and other civil society organisations –

especially those with expertise in engaging men and boys for

gender equality – to recognise the role of

organisations/institutions in prevention of violence against

women and girls. Such a role is not only limited to addressing

violence, discrimination and harassment within the organisation

itself, but also extends to the organisation/institution as a

‘change-maker,’ capable of contributing to the transformation of

attitudes, practices and social norms in their communities and

society as a whole.

Develop and implement awareness-raising and bystander

capacity-building initiatives for employees or other members of

1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013

Page 120: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

108

the organisation, especially those aimed at supporting men to

proactively challenge men’s violence or early warning signs of

such violence.

Identify women and men who can act as positive role models and

ambassadors for prevention among employer and other

organisations.

Ensure protection and regulation in both the private and public

sector for migrant workers to help combat harassment,

discrimination and trafficking incidences.

In line with BPfA’s1, calling for the organisation, support and funding of

‘community-based education and training campaigns to raise awareness

about violence against women as a violation of women's enjoyment of

their human rights and mobilisation of local communities to use

appropriate gender-sensitive traditional and innovative methods of

conflict resolution,’ experts recommend that States, local authorities,

civil society organisations, communities and community organisations,

promote gender equal and non-violent relationships, families and

communities through new and existing holistic prevention efforts,

services, programmes, events and grant/funding initiatives; prioritise

prevention of violence against women and girls in grassroots efforts,

urban and municipal planning; and implement legislative, regulatory and

community-based programming initiatives to prevent violence and

harassment of women and girls in private and public spaces.

In line with BPfA’s, recognising, supporting and promoting ‘the

fundamental role of intermediate institutions, such as primary health-care

centres, family-planning centres, existing school health services, mother

and baby protection services, centres for migrant families and so forth in

1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013

Page 121: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

109

the field of information and education related to abuse’ experts

recommend that States and partner organisations:

Develop, implement and monitor programmes combining

respectful relationships skills building and counselling support

for children and young people, especially those who have been

exposed to, or are identified as at risk of, violence.

Develop, implement and monitor intensive early-intervention

programmes for children and young people demonstrating

violence-supportive attitudes and/or who are using violence,

recognising that this may be a result of prior victimisation and

using a model that empowers them with the skills and inner

resources for non-violent conflict resolution and healthy

relationship-building.

Develop, implement and monitor positive and non-violent

parenting programmes, including those specifically targeting

fathers/men.

Integrate issues of gender equality and prevention of violence

against women and girls into health and social welfare

programmes including sexual, reproductive and maternal health,

HIV-AIDS programmes, and programmes promoting equal,

respectful and non-violent intimate and family relationships.

Support the role of these sectors in identifying women and girls

at risk of violence and referring them to early intervention or

response services.

In line with BPfA’s1 supporting ‘initiatives of women's organisations and

non-governmental organisations all over the world to raise awareness on

the issue of violence against women and to contribute to its elimination,’

1 Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013

Page 122: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

110

and organising, supporting and funding ‘community-based education and

training campaigns to raise awareness about violence against women as a

violation of women's enjoyment of their human rights and mobilise local

communities to use appropriate gender-sensitive traditional and

innovative methods of conflict resolution, ’experts recommend that

States, including local governments, with community organisations, non-

governmental organisations, educational institutions, the public and

private sectors, particularly enterprises, and the mass media, as

appropriate, develop and implement – in concert with wider strategies

above – social marketing, communications and holistic community

mobilisation efforts addressing the underlying causes of violence against

women and girls, such as through the promotion of positive, respectful

and non-violent masculinities; challenging gender stereotypes; raising

awareness of the unacceptability of violence; and promoting critical

thinking within the community on violence against women and girls as a

manifestation of inequality and a violation of women’s human rights.

In line with BPfA’s1 calling for ‘special measures to eliminate violence

against women, particularly those in vulnerable situations, such as young

women, refugee, displaced and internally displaced women, women with

disabilities and women migrant workers, including enforcing any

existing legislation and developing, as appropriate, new legislation for

women migrant workers in both sending and receiving countries,

’experts recommend that States, employers, trade unions, community

and youth organisations and non-governmental organisations, as

appropriate, recognise the multiple vulnerabilities of women and girls to

various forms of violence throughout their life cycle, and identify clear

prevention activities and budgets for this work.

1Beijing Platform for Action (BPfA), UN Women. Retrieved 28 February 2013

Page 123: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

111

In line with UNSCR, experts recommend that States ensure they have

and implement action plans on women, peace and security, including

comprehensive strategies to address the proliferation of small arms and

armed violence, whether in conflict, post - conflict or ‘peacetime’

settings. Such initiatives should specifically include:

The support of arms control and disarmament initiatives and policies that

take into account the needs and perceptions of both men and women,

namely through consultation and threat assessment, and provide

adequate incentives for participation, namely in regular campaigns of

gun registry and civilian disarmament.

The harmonisation and implementation of laws that address domestic

violence and firearms and ammunition – banning individuals with a

history of violence from access to firearms, and ensuring guns are seized

and gun licences suspended in domestic violence cases.

The improvement of the police officers’ capacity to conduct

psychosocial evaluations, along with strengthened police training on

violence against women and girls and the role of firearms, reaching

beyond those working in special victim units.

The conduction of risk analysis in all centres for victim support,

including assessing the presence of a weapon in the home.

In line with the UN General Assembly Special Session on HIV and

AIDS, and the 2010 UN AIDS Agenda for Accelerated Country Action

on Women, Girls and HIV1 and AIDS, integrate a focus on promoting

1 UN AIDS Agenda for Accelerated Country Action on Women, Girls, Gender Equality and HIV. Retrieved 28 February

2013.

Page 124: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

112

gender equality, addressing gender based violence and engaging men

and boys for gender equality into national AIDS plans1.

1 Athena Network and Sonke Gender Justice Network (2012) Review of efforts to integrate Strategies to Address

Gender-based Violence and Engage Men and Boys to Advance Gender Equality through National Strategic Plans on HIV and AIDS, an Overview of Findings.

Page 125: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

113

2.12 UNITED NATIONS MILLENNIUM DECLARATION, 2000:

"Only through broad and sustained efforts to create a shared future,

based upon our common humanity in all its diversity, can globalization

be made fully inclusive and equitable", world leaders stated as they

unanimously adopted a "United Nations Millennium Declaration1" at the

conclusion of their Millennium Summit on 8 September 2000.

The 3 day summit held on 6-8 September at New York was the largest-

ever gathering of world leaders. The Declaration was the main document

of the Summit and it contained a statement of values, principles and

objectives for the international agenda for the twenty-first century. It also

set deadlines for many collective actions.

In an address delivered at the concluding meeting of the Summit, United

Nations Secretary-General Kofi Annan told world leaders that it had

sketched out clear directions for adapting the Organization to its role in

the new century. “It lies in your power, and therefore is your

responsibility, to reach the goals that you have defined”, he declared.

"Only you can determine whether the United Nations rises to the

challenge. For my part, I hereby re-dedicate myself, as from today, to

carrying out your mandate."

The Declaration reaffirmed Member States' faith in the United Nations

and its Charter as indispensable for a more peaceful, prosperous and just

world. The collective responsibility of the governments of the world to

uphold human dignity, equality and equity is recognized, as is the duty

of world leaders to all people, and especially children and the most

vulnerable.

1 United Nations General Assembly Resolution 2 session 55 United Nations Millennium Declaration on 18 September

2000

Page 126: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

114

The leaders declared that the central challenge of today was to ensure

that globalization becomes a positive force for all, acknowledging that at

present both its benefits and its costs are unequally shared. The

Declaration called for global policies and measures, corresponding to the

needs of developing countries and economies in transition.

The Summit Declaration cited freedom, equality (of individuals and

nations), solidarity, tolerance, respect for nature and shared

responsibility as six values fundamental to international relations for the

twenty-first century1.

The Millennium Declaration has eight chapters and key objectives,

adopted by 189 world leaders during the summit: The Declaration, after

the Vienna Declaration and Programme of Action, stresses the

observance of international human rights law and international

humanitarian law under the Principles of United Nations Charter as well

as the treaties on sustainable development.

1. Values and Principles

a. Freedom

b. Equality

c. Solidarity

d. Tolerance

e. Respect for nature

f. Shared responsibility

2. Peace, Security and Disarmament

3. Development and Poverty Eradication

4. Protecting our Common Environment

5. Human Rights, Democracy and Good Governance

1 United Nations General Assembly Verbotim Report meeting 85 session 55 page 1 on 14 December 2000 at 10:00

(retrieved 2007-09-10)

Page 127: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

115

6. Protecting the Vulnerable

7. Meeting the Special Needs of Africa

8. Strengthening the United Nations

2.13 WORLD SUMMIT 2005

The 2005 World Summit, 14–16 September 2005, was a follow-up

summit meeting to the United Nations' 2000 Millennium Summit, which

led to the Millennium Declaration of the Millennium Development Goals

(MDGs). Representatives (including many leaders) of the then 191 (now

193) member states met in New York City for what the United Nations

described as "a once-in-a-generation opportunity to take bold decisions

in the areas of development, security, human rights and reform of the

United Nations1."

The summit was billed as the "largest gathering of world leaders in

history," and featured appearances of numerous heads of state and heads

of government. The majority of those present addressed the U. N.

General Assembly, and gave speeches reflecting on the U. N.'s past

successes and future challenges. All 191 of the then member states gave

an address in some form- if the head of state or government was not

present the nation's foreign minister, vice president, or Deputy Prime

Minister usually sufficed. The meetings were presided over by the Prime

Minister of Sweden, Göran Persson.

The pre-summit negotiations were blown sharply off course by the

appearance in early August at the U. N. of United States Ambassador to

the U. N. John Bolton, appointed as a recess appointment by U.S.

President George W. Bush. The position had been vacant since January,

with responsibilities handled by professional U.S. diplomats. Bolton

1 The 2005 World Summit: An overview (PDF) United Nations website

Page 128: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

116

swiftly issued a list of new demands (including dropping the use of the

words "Millennium Development Goals"), which days before the summit

had still not been settled. Some observers contended that on the eve of

the summit the U.S. struck a more conciliatory tone than expected1,

something partly credited as a consequence of the outpouring of

international support for the U.S. after Hurricane Katrina.

As well as discussing progress on the Millennium Development Goals

and re-iterating the world's commitment to them, the summit was

convened to address the possible reform of the United Nations; much of

this was eventually postponed to a later date. An exception was the

endorsement of the "responsibility to protect" (known by the acronyms

RtoP and R2P), a formulation of the "right of humanitarian intervention"

developed by a U.N. commission2 and proposed by Kofi Annan as part

of his In Larger Freedom3 reform package. The "Responsibility to

Protect" gives the world community the right to intervene in the case of

"national authorities manifestly failing to protect their populations from

genocide, war crimes, ethnic cleansing and crimes against humanity".

There was also broad agreement at the summit to set up a new Human

Rights Council.

During the summit, the United Nations Convention Against Corruption

received its thirtieth ratification, and as a result entered into force in

December 2005.

The inaugural session of the Clinton Global Initiative was held in New

York City to coincide with the 2005 World Summit, and attracted many

1 Howard LaFranchi At U.N., Bolton Softens His Tone Controversial U.S. Ambassador Taking More Conciliatory

Approach CBS News September 12, 2005 (originally published in the Christian Science Monitor 2 Annan calls for endorsement of Responsibility to Protect Human Security Policy Division, Human Security and Human

Rights Bureau Foreign Affairs Canada 3 In larger freedom: towards development, security and human rights for all. Report of the Secretary-General. Prepared

by the UN Web Services Section Department of Public Information in 2005.

Page 129: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

117

of the same world leaders. It was brought before the United Nations

General Assembly for adoption as a resolution on 16 September1 where

ambassadors made last minute statements and reservations. For example,

John Bolton said: "I do wish to make one point clear: the United States

understands that reference to the International Conference on Population

and Development, the Beijing Declaration and Platform for Action and

the use of the phrase 'reproductive health' of the outcome document do

not create any rights and cannot be interpreted to constitute support,

endorsement or promotion of abortion2."

The pressure group The United Nations Association of Great Britain and

Northern Ireland (UNA-UK) contend that:

Delegates to the UN Summit have been accused of producing a 'watered-

down' outcome document which merely reiterates existing pledges. It is

true that there is cause for disappointment, in particular the failure to

make progress on Weapons of Mass Destruction. But the document also

contains important steps forward including3:

1. agreement on the responsibility to protect populations suffering

gross human rights violations;

2. a blueprint for the establishment of a Peace building Commission

to prevent relapses into violence following the conclusion of peace

agreements; and

1 United Nations General Assembly Verbatim Report meeting 8 session 60 Integrated and coordinated implementation

of and follow-up to the outcomes of the major United Nations conferences and summits in the economic, social and related fields page 44 on 16 September 2005 2 United Nations General Assembly Verbatim Report meeting 8 session 60 page 46, Mr. Bolton United States on 16

September 2005 (retrieved 2008-10-22 3 The United Nations Association of Great Britain and Northern Ireland (UNA-UK). 2005 World Summit Outcome

Document: A Glass Half Full?

Page 130: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

118

3. Agreement on equipping the UN with a new Human Rights

Council to strengthen its ability to promote and protect human

rights around the world.

Page 131: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

119

2.14 LEGAL PROTECTION OF WOMEN IN PAKISTAN:

Pakistan was created for its citizen to be free of discrimination and

deprivation they had suffered in the past. Citizens included women; and

it was stated that they should stand side by side with men as their

companions in all spheres of life. This sentiment was reflected in the

constitutional proposals subsequently made. (Articles 25 and Article34)1.

In practice however the promise of equality has not only been ignored, it

has been blatantly violated2. In 1995, nearly a half-century after the

creation of Pakistan, the National Report for the Fourth UN World

Conference for Women had to admit that women 'continue to suffer in

the face of oppressive patriarchal structures, rigid Orthodox norms and

stifling socio-cultural customs and traditions3'.

Adherence to status quo, political inertia and lack of social will have

continued women's historical burden. Legal empowerment of women in

Pakistan can only be ensured through creation of forward looking and

strong civil society that propel the State to bring positive changes in the

constitutional, statutory and customary laws.

Women's situation in Pakistan4:

Studies on women and state have shown that the State is not a gender-

neutral entity Political dispensation at the State level can either reinforce

female subordination or support female autonomy. The changing attitude

of the Pakistan State towards women ranges from half-hearted policy

measures at best, to inaction and outright discrimination by enactment of

retrogressive law particularly during the military regime of 1977-88. 1 Reports of Commission of Inquiry for Women, Pakistan. August 1997.Islamabad.

2 NATIONAL COMMISSION ON THE STATUS OF WOMEN'S REPORT ON HUDOOD ORDINANCES 1979

3 Unicef, 1998.Children and Women in Pakistan: A situation Analysis. Political Printer (Pvt.) Ltd., Islamabad

4 Mumtaz, K & Shaheed, F., 1987. "Women of Pakistan: Two Steps Forward, One Step Back?" Vanguard Books (Pvt.)

Ltd., Lahore, Pakistan

Page 132: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

120

The constitution of Pakistan recognizes the principle of equality of all

citizens and the right to equal protection of the law. It specifically

prohibits discrimination on the basis of gender, and makes provision for

measures of affirmative action by the State. However, the constitution is

silent on the critical issues, such as women's reproductive rights, as well

as rights to development or the environment, which are equally relevant

for women1.

Coexistence of multiple legal systems provides different options for

settling contentious issues concerning women's right and usually least

favourable to women is implemented. Even the application of Muslims

laws is uneven for instance; the lack of protection under statutory law, of

women's religious right to choose a spouse and the absence of punitive

actions for not giving women their share of inheritance.

Discriminatory legislation exists in Pakistan. This will necessitate an

ijtihadi quantum jump to rectify the gap. Enlightened and liberal ulemas

should be motivated to undertake research in this area for

implementation by the State2.

The law regarding sexual crimes against women heavily favors men. The

Zina ordinance confuses rape with adultery and places female victims of

the former as well as that accused of the latter at particular risk. If the

court is unable to establish rape and the woman become pregnant, her

pregnancy is interpreted as evidence of her compliance in all illegal acts

and, therefore, she is to be punished3. Large numbers of women in

prisons have been falsely and maliciously prosecuted under this law for

exercising their legal rights in freedom of choice of a marriage.

1 Mumtaz, K & Shaheed, F., 1987. "Women of Pakistan: Two Steps Forward, One Step Back?" Vanguard Books (Pvt.)

Ltd., Lahore, Pakistan 2 Reports of Commission of Inquiry for Women, Pakistan. August 1997.Islamabad.

3 Text of Protection of Women (Criminal Laws Amendment) Act, 2006 a.k.a. Women's Protection Bill

Page 133: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

121

The law of Evidence (1984) states that the value of the women's

testimony should be considered only half of a man's even in criminal

matters. The Pakistan Citizenship Act (1951) guarantees citizenship by

descent only through the father. There is discrepancy in the minimum

age of marriage for the girls at sixteen, and for the boys at eighteen.

Women donot have an equal right of divorce. Right of divorce given to

women through delegation (Tafweez) though permissible in Islam, yet

the attitude of majority has led to its disuse1. Furthermore, the

procedures of women seeking divorce are quite complex.

The Muslim family Law Ordinance (1961) brought important reforms by

making marriage registration mandatory, introducing a standardize

marriage contract form, and laying down a procedure for divorce.

However, it did it not offer a fair post-divorce settlement. Pakistan Law

Commission has recently taken up this issue and some reform has been

recommended which still needs to be implemented by the Government.

There is no legislation on domestic violence and honor killing. These are

treated at par with other forms of violence. Cases of violence against

women often go unpunished like acid throwing and stove burning.

Recently, awareness created by CSOs has resulted in increasing the

registration of cases against the perpetrators. Incest has no special status

in laws and similarly, there are no laws for sexual harassment at work or

public places2.

Judicial indifference towards the issue of women's rights and other issues

concerning women has worsened the situation. My experience in courts

revealed that husband's side finds it easy to convince a male judge

1 Quarterly Newsletter, Legislative Watch, Issue No.6&7. Aurat Publication & Information.

2 Unicef, 1998.Children and Women in Pakistan: A situation Analysis. Political Printer (Pvt.) Ltd., Islamabad.

Page 134: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

122

against the female litigating for her right by accusing her of awargi

(lewdness).

Options for legal empowerment of women1:

Four major commission or committees were organized from time to time

in the past to identify areas of discrimination against Pakistani women

and suggest remedial measures and changes in the existing laws for the

betterment of the tragic plight of women. Although these bodies made

various recommendations, in practical terms little was achieved as the

government concerned often lacked the will, vision or self-confidence to

accept most of these reforms .The research work and the

recommendations are already in place there is only need to bring these

learning in the public view through debates .

Efforts from the Civil Society2:

Many theatre groups like Ajoka and Lok Rehas brought issues for debate

among masses through their parallel theatre techniques. Media played a

very important role even in the days of oppression to raise controversial

issues but still there is room to use these means of communications more

effectively.

As a logical effect of such moment a lot of free legal aid centres are

opened in various part of the country to help out the women. Free legal

aid service of AGHS and Tahuffuz are few of these examples. Kashf

Foundation which is aiming at empowerment of women through micro

financing is yet another laudable venture. Shelter home opened in the

name of 'Dastak' for the destitute women is also one of the off shoots of

these efforts from the civil society side.

1 Article by S.M.Zafar, "Human Rights Environment in Pakistan".

2 Quarterly Newsletter, Legislative Watch, Issue No.6&7. Aurat Publication & Information

Page 135: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

123

Regrettably, political parties have not played any significant role to

improve the status of women even in their own parties. I have publicly

questioned the leaders of the political parties as to why they have not

adopted the convention to reserve 33% seats for women in their working

committees. Answer given to me is that they are not vote catchers.

Unfortunately, on account of such myopic view of political leaders the

number of women politicians has gradually shrunk since the days of

independence .It is a dismal picture that out of 207 male members of the

former National Assembly, there were only 5 women legislators, 2

senators out of 83 and only one woman out of 483 male dominated

Provincial Legislatures.

Local Bodies are a critical tier of government. In the recent Local Bodies

election women's participation was ensured by provision of 33%

reserved seats for them. Same formula adopted for Provisional and

National Assemblies would ensure improved Human Rights environment

in the country.

Although there is a gradual and increasing acknowledgement of women's

autonomy as a development issue, empirical indicators show that women

continue to have a lower quality of life, are dis-empowered and face an

inequality of opportunities in all areas of development, relative to men.

In the global and South Asian terms, Pakistani men do not fare well

either, as the HDI devised by the UNDP clearly affirms. However,

women fare even worse. Discriminatory laws and customs play a crucial

role in preserving status quo. Serious efforts on the part of the State need

to be undertaken to change the situation. State's commitment to bring a

positive change in the society could be gauged by its gender-sensitive

policy initiative and law’s enactment processes. Presence of strong civil

society organization could not only monitor initiatives taken by the State

Page 136: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

124

but can also keep their pressure on the State apparatuses to bring these

changes at its earliest instead of delaying it in the name of other priority

issues.

Empowerment of women would require a holistic approach in which all

sections of society cooperate and state play its constitutional role .The

burden must be shared by the political parties, media and ulemas as each

one of this section has failed to give the issue of women's rights the

critical importance it deserves.

Page 137: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

125

2.15 LEGAL PROTECTION OF WOMEN IN BANGLADESH:

Whole world celebrate International women day on 8th March. The year

2010 was the 100th year of the International day for women. But, still

women have been facing great challenge in most of the countries of the

world. Many countries of the world have no actual human rights. And

the women rights can't imagine there. Women rights are the human

rights.

Bangladesh is one of the most vulnerable country in the world where

there women are passing in very danger situation. Indeed in Bangladesh

have gotten two great women leaders Sheikh Hasina and Begum

Khaleda Zia who have been governing Bangladesh since 1991. Presently

Sheikh Hasina has governing Bangladesh as a Prime Minister1. And

Begum Zia was a former Prime Minister of Bangladesh. But, yet the

women are crying for their rights and security. Though, every day many

women's have been torturing, killings. Violence against women is a

common picture in Bangladesh2.

Many women in Bangladesh suffer from rape, gang rape, murder, torture

and acid throwing. The position of women in Bangladesh is vulnerable.

Even though Bangladesh has an elected government, the difficulties

facing women haven't ended. Violence against women is a common

feature in Bangladesh, and women face various problems under the

system of repression3.

1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza

Begum ,University of Wollongong, 2004, page 27 2 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,

University of East London, Essex, 1997 3 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor

of Law at Dhaka University

Page 138: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

126

The main types of the oppression of women include dowry, trafficking,

kidnapping, rape, physical torture and acid throwing. Almost every day,

women are victimized by these acts of violence and repression. And

domestic violence at the hands of husbands is a very routine practice in

Bangladesh1.

According to a survey conducted by the Bangladesh Mahila Parishad, at

least 937 women were killed during the period from January to October

this year. Prominent human rights leader and BMP president, Ayesha

Khanam, said that although an elected government is now in power and

there are conscious people in the ministry and in parliament, women

continue to face violence2. (Source: The Daily Star, 12/7/2009)

There is one example of a sensationalistic gang rape case. On Sept. 25,

an adolescent was gang raped following her abduction by ten

Bangladesh Chhatra League activists while she was returning from a

Puja Mandap in the Kolapar sub district of the Patuakhali district. Also,

on Nov. 8, one Bir Bengal attempted to rape a woman, Jamnua Chakma,

age 21, in the Ghilachari army camp in the Naniachar subdistrict of

Rangamati. She is wife of Shyamal Kanti Chakma3.

In Bangladesh, there are many laws for the protection of women, yet the

oppression of women hasn't lessened. It is hard to imagine that it will be

stopped in the near future. What is causing this situation? It is because

there is no rule of law and no good governance. Impunity and corruption

are very common in Bangladesh, and illegal political interference on

1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza

Begum ,University of Wollongong, 2004, page 59 2 “Pain” Book by By Jahangir Alam Akash Page 345

3 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,

University of East London, Essex, 1997

Page 139: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

127

behalf of criminals is another reason that women's persecution

continues1.

Bangladesh has many laws for the protection of women. For example,

the Suppression of Immoral Traffic Act 1933, the Family Court

Ordinance, the Cruelty to Women (Deterrent Punishment) Ordinance,

the Trafficking in Women and Children Act 1993, the Dowry Prohibition

Act, the Prevention of Women2 and Child Repression Act (2000), etc.

The problem is that every case of oppression of women involves the

police, witnesses, lawyers, magistrates or judges, and often doctors. If all

the parties involved perform their professional and moral obligation,

then the perpetrator will be punished. But, with some exceptions, most of

the parties are involved in corruption or are irresponsible. Political

pressuring can also hamper the investigation of cases involve women's

repression. Sometimes, to protect themselves, witnesses in the cases will

not give truthful statements to the court.

The Bangladesh Institute of Human Rights (BIHR)3 is a Bangladesh

Awami League government-supported human rights organization.

According to this organization, during the first six months of this year,

1,479 women were raped. The Minister for Home Affairs Sahara Khatun

shared this figure with the national assembly4.

According to a monitoring cell at the police headquarters, from January

to October 2009, at least 3,413 women were tortured over dowry, 83

1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza

Begum ,University of Wollongong, 2004, page 55 2 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor

of Law at Dhaka University 3 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,

University of East London, Essex, 1997 4 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza

Begum ,University of Wollongong, 2004 page 89, 92 97

Page 140: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

128

women fall victim to torture, 2,336 were abducted, 2,476 were raped, 36

were killed after rape, 33 were injured after rape, and 117 women were

killed.

In Bangladesh have no equal rights in practice for women. The women

have facing difficulties by various ways. Especially the working women

are facing these difficulties like discrimination of wages. According to

the daily Star (8-3-2010), Acid Survivors Foundation (ASF) Executive

Director Monira Rahman said, in the last 100 years the world achieved a

lot, but it is a matter of regret that violence against women, especially in

countries such as Bangladesh, is still widespread. Referring to a WHO

study in 2005, she said 57.5 percent of women in Bangladesh are

sexually and physically tortured1. In reality, the rate is much higher, she

said. Monira told, there were 490 incidents of acid throwing in 2002.

Still three accused rapist and provocateurs to death of sensational mass

raped and killing case of Mohima2. We are hearing from abroad that the

family members of Simee have been facing insecurity still. And after

happening women persecution our NGO's starting their activity. But,

after some days they turned to back. Then the real problem has starting

for a victim family.

We can give an example on Rajufa and Sheulee rape cases. After raped

to Sheulee the rapist was murdered to the father of rape victim. And they

were started false cases against the relatives of Sheulee3. But, nobody

comes to help of this helpless and oppressed family. In the same

situation has going on Rajufa's family. The Indigenous, Christian and the

Hindu women have been insecure more than Muslim women. Many

1 "Human Development Report". United Nations Development Programme. 2013. p. 156.

2 Pain” Book by By Jahangir Alam Akash Page 340

3 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza

Begum ,University of Wollongong, 2004, chapter 6

Page 141: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

129

NGO have been working for the rights of women. But, they have no

coordination. They have been working for the women rights as for the

problem of cover. Never have they wanted to go inside or the root cause

of a problem.

In order to prevent violence against women, it is necessary to practice

the rule of law, carry out proper and competent investigations, should

reduce poverty and all kinds of discrimination (man and women) and

implement existing laws protecting women1. At the same time, it is

necessary to ensure the security of witnesses and victims, and corruption

must be fought against during the time from when the case is filed until

the trial is finished. And political pressuring must be stopped. To prevent

women's oppression, men must first come forward. The question

remains: is the Bangladesh government ready to tackle any and all kinds

of violence against women?

The present government has passed one year already. But, they didn't

take any step for the rights of women. Even the women development

policy of 1997 hasn't rein stead. We want to see that, Bangladesh

government should take positive step for the empowerment and for the

rights of women immediately2.

Bangladesh Legal Aid and Services Trust (BLAST) called "Empowering

Women: From Fatwa to Freedom". BLAST is one of the leading legal

services organisations in Bangladesh, and the only one that provides

access to legal aid across the spectrum, from the frontlines of the formal

justice system to the apex court since 19933. BLAST provides legal aid-

1 Protection of women's rights in Bangladesh : a legal study in an international and comparative perspective by Afroza

Begum ,University of Wollongong, 2004,chapter 3 and 4 2 Alffram, Henrik (2009). Ignoring Executions and Torture: Impunity for Bangladesh's Security Forces. Human Rights

Watch. ISBN 1-56432-483-4 3 "The Global Gender Gap Report 2012". World Economic Forum. pp. 10–11.

Page 142: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

130

mediation, legal advice and representation-to women and girls, over 90

per cent of its clients, to realise their rights. BLAST conducts awareness

trainings for women and girls to learn about their legal rights. Its clients

are mainly women and girls, usually living in poverty or extreme

disadvantage in our country.

Amongst many others, BLAST recently obtained landmark judgments

following public interest litigation, challenging the Forced Veiling of

Women and Extra-judicial Punishments through 'Fatwas'1, and a

prohibition on corporal punishment in schools and madrasas.

High Court issues a Suo Motu order2: From the early 1990s, the

incidence of fatwa being issued by rural clerics or village elders and

resulting in corporal punishment being inflicted on women and men

drew increasing attention from the media and human rights organisations

nationally and internationally3. However, almost a decade after the focus

on fatwa violence first began, in December 2000, the High Court issued

a Suo Motu order on certain government authorities on the basis of a

newspaper report about another fatwa requiring a woman to undergo an

intervening marriage (hilla) on the ground that she had dissolved marital

ties with her husband. Acting upon this fatwa, a relative of the woman

then reportedly had sexual relations with her, and her husband refused to

take her back as his wife4.

After hearing all the parties concerned, the High Court Division on

January 1, 2001 pronounced its judgement making the rule absolute and

holding that the fatwa in question was wrong and further holding that

1 Bennett Jones, Owen (2003). Pakistan: Eye of the Storm (2nd revised ed.). Yale University Press. ISBN 978-0-300-

10147-8 2 Biswas, Rajiv (2012). Future Asia: The New Gold Rush in the East. Palgrave Macmillan. ISBN 978-1-137-02721-4

3 Carlisle v. United States, 517 U.S. 416 (Supreme Court of the United States 1996)

4 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor

of Law at Dhaka University

Page 143: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

131

any fatwa, including the instant one, are all unauthorised and illegal. The

Hon'ble Court also opined that the legal system of Bangladesh empowers

only the Courts to decide all questions relating to legal opinions

regarding Muslim laws and other laws as in force. This was a great day

for Bangladeshi women who are the victims and sufferers of fatwa.

However, very unusually, two appeals were filed against this judgement,

by third parties (who had no involvement in the High Court's case). The

Government did not appeal the judgement, nor did it take part in the

leave hearing. One of the leave petitioners is an Assistant Mufti at a

madrasah, described as being engaged in imparting Islamic Higher

Education. The other is Chairman of the Mosjid Council, and claims to

be a scholar of Islamic Jurisprudence and the Holy Quran and Hadith,

who is regularly asked for advice on Muslim family matters and other

aspects of Muslim life and in the process issues fatwas and as such has

an interest in the matter. On the basis of appeal the apex court has

granted leave to appeal in both petitions1.

In these circumstances, while appeal hearing of the above mentioned Suo

Motu2 case on fatwa was pending regarding the fatwa case before the

Apex Court of Bangladesh, the incidents of fatwa against poor women

and girls in Bangladesh increased alarmingly. Throughout 2009,

newspapers reported a series of incidents of violence inflicted on women

and girls in the name of fatwa by traditional dispute resolution processes

(shalish), often involving religious leaders. These incidents had

reportedly resulted in women and girls in villages across the country

being caned, beaten, lashed or otherwise publicly humiliated within their

communities.

1 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,

University of East London, Essex, 1997 2 Carlisle v. United States, 517 U.S. 416 (Supreme Court of the United States 1996)

Page 144: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

132

The spate of acts of violence against women in several parts of rural

Bangladesh is justified by the perpetrators of these crimes on the basis of

fatwa given by a local imam or a maulvi or maulana. It has been rightly

pointed out that violence against women is a crime that cannot be

justified on this basis. In addition, and again rightly, it is pointed out that

these self-appointed givers of fatwa have no authority for their

proclamations. What these statements however fail to clarify is a

fundamental misconception about fatwa themselves.

Appellate Court verdict1: Finally, after more than 10 years, the Supreme

Court of Bangladesh started hearing on the appeal on 01.03.2011, where

lawyers against fatwa/extra judicial penalties argued that the

pronouncement and execution of certain fatwas, including those which

involve corporal punishment or other forms of humiliating and degrading

treatment, is a criminal offence under Bangladesh law, and therefore

these appeals raise issues regarding the enforcement of existing criminal

laws to protect (primarily women) from violence, and that such fatwas

cannot be protected as part of the right to freedom of religion2.

Earlier on February14, 2011, the Supreme Court appointed nine legal

experts as amicus curiae (friends of the court) for their opinion on this

issue. It also heard the opinions from five of the country's prominent

Alems (Islamic scholars), nominated by the Islamic Foundation

Bangladesh. The panel of five, however, told the court, banning fatwa

will ultimately put a ban on the holy religion of Islam. As a result, all the

people of the State would become sinners for lack of adequate

knowledge on Islam.

1 Ameen, Nusrat, Keeping a Wife at the End of a Stick: Law and Wife Abuse in Bangladesh, Unpublished Ph.D. thesis,

University of East London, Essex, 1997 2 Debnath, Angela (2009). "The Bangladesh genocide: The plight of women". In Samuel Totten. Plight and Fate of

Women During and Following Genocide. Transaction. pp. 47–66

Page 145: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

133

After hearing all concerned in this case, the Appellate Division of the

Supreme Court of Bangladesh on May 12, 2011 ruled that fatwa or

religious edicts could only be pronounced by persons properly educated

in religious matters, but no one could be forced to accept it, in the

following terms:

"No person can pronounce a fatwa which violates or affects the rights or

reputation or dignity of any person which is covered by the law of the

land,"

The verdict added: "[A] fatwa on religious matters only may be given by

the properly educated persons who may be accepted only voluntarily but

any coercion or undue influence in any form is forbidden1."

The judgement further pointed out that "no punishment, including

physical violence or mental torture in any form, can be imposed or

implicated on anybody in pursuance of [a] fatwa."

The above-mentioned verdict of the Apex Court of Bangladesh in the

fatwa case and the High Court judgement against fatwa and related

advocacy work against fatwa, are definitely one step forward in order to

protect women's rights in Bangladesh and this would eventually lead to

incremental achievements for legal empowerment of women in the

country.

Accordingly, that was a day of celebration for all those who believe in

gender equalities and thousands of girls and women across the country

who were constantly victimised by the issuance of illegal fatwas over the

years. Now we have a legal power to protect rights of women where they

will not be exposed to humiliations ranging from mockery to rape or free

1 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor

of Law at Dhaka University

Page 146: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

134

from small rituals curtailing their freedom to absolute limitations on

what they can do1, what they can wear, whom they can marry, and where

they can go. And that there will be no use of illegal extra-judicial

penalties under the religious veil in the name of fatwa where women

were mostly victimised.

It is true that the status of women and equality between men and women

has improved over the years considerably in our country. Positive

developments have been witnessed in the reduced gender gap in school

attendance and in increasing the life expectancy of women and women's

participation in political life.

The situation is not very impressive: Nevertheless, despite these positive

developments women and girls still suffer extensive systematic

discrimination across the country. Still a lot needs to be done in order to

achieve women's equal status to men with respect to legal, social

(including sexual and reproductive rights) and economic rights. I was

going through recent data regarding fatwa victims after having the

landmark Judgment. Unfortunately, the situation is not very impressive,

we can still find news reports regarding fatwa incidents where women

and girls were victimised by fatwa (extra-judicial penalties) across the

country.

Now the big question is: Can law alone protect women's rights in our

country? I think the very question now we should ask that although some

practices have become habitual, is there any moral justification for them.

Stereotypes about gender roles have led to practices in our culture of

actively preferring and promoting one sex over the other-often boys over

girls. Thus gender discrimination.

1 Gerlach, Christian (2010). Extremely Violent Societies: Mass Violence in the Twentieth-Century World (1 ed.).

Cambridge University Press. ISBN 978-0-521-70681-0

Page 147: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

135

The way out: So what is the way out? What are the means through which

we can achieve gender equality in our country to empower women and

to protect their rights?

I think it is time to take a holistic view over the gender equality and set a

moral value in respect of every one of our country to realise that gender

equality and female empowerment are core development objectives,

fundamental for the realisation of human rights and key to effective and

sustainable development outcomes. No society can develop successfully

without providing equitable opportunities, resources, and life prospects

for males and females so that they can shape their own lives and

contribute to their families and communities.

Perhaps more importantly, we need to adopt in our national values the

language of universal human rights that allows legitimate claims to be

articulated with a moral authority which other approaches lack. It is a

language which is recognised by the powerful, and which stimulates

deep chords of response in many1. It is a language which has the

potential to empower individuals and communities at the grass-roots

level to believe that they have a right to education, to health care or any

other right. Human rights speak in broad terms about the fundamental

entitlement of all human beings to live in dignity, and in conditions of

social justice and thereby provide a foundation from which to establish a

set of demands premised on the intrinsic worth of the individual. The

human rights approach justifies legitimate claims2, not because the

realisation of rights such as that to health or life is a means to another

end, such as quality child care, environment, development or population

1 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor

of Law at Dhaka University 2 "The Global Gender Gap Report 2012". World Economic Forum. pp. 10–11

Page 148: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

136

policies, but because the realisation of their rights is an important goal in

itself.

Human rights not only create entitlements for rights-holders, but they

also create duties for the State. States are required to ensure the

fulfilment of human rights by acting in a way that enables rights-holders

to enjoy the rights to which they are entitled. Human rights require that

actions of a legislative, administrative, policy or programme nature are

considered in light of the obligations inherent in human rights1. Actions

which violate or fail to support the realisation of human rights

contravene human rights obligations.

However, there is an unwillingness to adopt a holistic approach to

infringement of bodily security and gender-based discrimination in a

society, or address complex problems in regard to gender roles and

relationships and their impact in imposing disadvantages upon women

because of their sex2.

Gender equality and human rights, if they are to be realised, must be

respected, protected and fulfilled in both the public and private realm.

And in order to do those universal moral values need to be established in

every sphere of our life privately and publicly. Values are our guidelines

for living and behaviour3. Each of us has a set of deeply held beliefs

about how the world should be. For some people, that set of beliefs is

largely dictated by a religion, a culture, a peer group, or the society at

large. For others, it has been arrived at through careful thought and

reflection on experience, and is unique.

1 "Human Development Report". United Nations Development Programme. 2013. p. 150.

2 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor

of Law at Dhaka University 3 Trest v. Cain, 522 U.S. 87 (Supreme Court of the United States 1997)

Page 149: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

137

Therefore, we need to set or create a values system that disregards the

stereotyping of men and women. What they should look like, dress like,

how they should behave and so on, can lead to discrimination or even

exploitation. What is needed is a values system which is backed by

morality and support human rights and a society free from all sort of

discrimination towards women and girls1.

1 Dr. Nusrat Ameen, LL.B.(Hons) and LL.M., Dhaka University; Ph.D. University of East London, is an Assistant Professor

of Law at Dhaka University.

Page 150: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

138

2.16 LEGAL PROTECTION OF WOMEN IN SRI LANKA:

In relation to the legal policy framework of Sri Lanka, the International

Women’s Year (1975) and the United Nations Decade for Women

(1976-1985) inspired the adoption of laws, policies and mechanisms for

the promotion and protection of women’s rights. These pivotal events set

the stage for the adoption of Chapter III of the Constitution on

Fundamental Rights, the ratification of the Convention on the

Elimination of All Forms of Discrimination against Women (CEDAW)

in 1981, the establishment of a Women’s Charter, and the development

of a National Plan of Action for Women in 19961. Currently the

government of Sri Lanka is in the process of negotiating the institution

of the latest gender equity mechanism, the National Commission for

Women.

Legal and policy framework2

Chapter III of the Constitution of Sri Lanka provides for the protection

of fundamental rights. Article 12 of Chapter III recognizes the right to

equality and equal protection of the law as well as the right to protection

from discrimination on certain specified grounds, including sex. Any

person, whose right to equality is violated, under this Article, by either

executive or administrative action, can file a Fundamental Rights

Application in the Supreme Court. Article 12(3) also recognizes that a

special provision to promote substantive equality can be made by law,

regulations, or administrative action for the advancement of women. The

only criticism of this clause is that women are not provided the provision

independently; instead, it is inclusive of women, children, and disabled

1 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara

2

http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007.

Page 151: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

139

persons. The Fundamental Rights Chapter itself has certain inherent

limitations. It has no retrospective effect, and there is no provision for

judicial review of past legislations. Therefore, gender discriminatory

laws, which were in existence at the time the constitution was adopted,

cannot be challenged on the basis of Article 121. This means that any

reform of such laws depend on political will. Unlike in South Africa, the

right to culture and religion in Sri Lanka has so far trumped the right to

equality. As an example, in 1995 the legal age of marriage for both men

and women was raised to the age of 18 years. No corresponding change

was made in the Muslim law, as there is no minimum age of marriage for

Muslims and child marriages are possible (although rare), under the law.

This exclusion was justified on the ground that the, “Muslim community

is entitled to be governed by their own laws, usages and customs and it

would not be productive to aim at a level of uniformity which does not

recognize adequately the different cultural traditions and aspirations of

the Muslim community2.”

Current machinery for women in Sri Lanka3:

Together, the Ministry of Women’s Affairs, the Women’s Bureau, and

The National Committee for Women comprise the national machinery

for women in Sri Lanka; however, their roles and responsibilities vary.

A cabinet portfolio for Women’s Affairs was created in 1983 due to

lobbying by women’s groups and activists. Responsibilities of the

Ministry are primarily cantered around the implementation of policies,

plans and programs with a focus on women’s empowerment. This

Ref: The of http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007. 2 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on

Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 3 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara

Page 152: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

140

includes the advancement of the quality of life for women, increased

participation in national development policies, and promotion of gender

equity and gender justice. The Ministry is also responsible for the

implementation the Women’s Charter, while the Women’s Bureau of Sri

Lanka and the National Committee for Women are statutory institutions

under the Ministry. Throughout its twenty-five year history, however, it

has more often than not been combined with another ministry; at present

it functions within the “Ministry of Child Development and Women’s

Empowerment.”

Women’s Bureau created in 1978, the Bureau was originally housed

under the Ministry of Plan Implementation, though it now functions

under the Ministry of Women’s Affairs1. The Women’s Bureau is more

project-based than the Ministry, and focuses mainly on issues of income

generation and raising awareness.

As mentioned above, Sri Lanka is a signatory to CEDAW, without

reservations, and adopted a Women’s Charter in 1993. The Women’s

Charter was created as a means of translating the CEDAW commitments

into a Sri Lankan context2. The Charter spells out more detailed steps the

State should take in ensuring the equal rights of women. Seven areas of

concern specific to women in Sri Lanka are highlighted, they include:

civil and political rights; the right to education and training; the right to

economic activity and benefits; the right to healthcare and nutrition;

rights within the family; the right to protection from social

discrimination; and the right to protection from gender based violence.

The Charter also provided for the establishment of a National Committee

1 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on

Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 2 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara

Page 153: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

141

for Women whose formulation was a collaborative effort of the national

machinery and women’s NGOs1. Despite its importance, the Charter

remains a document with no legal force.

The National Committee for Women is comprised of a Chairperson and

experts from fourteen sectors, all appointed by the President for a period

of four years; ten staff members; a legal officer with eight support staff;

an Executive Director, also appointed by the President; and the Secretary

of the Ministry of Women’s Affairs, who serves as an ex-officio member

of the Committee. Together, their mandate is to monitor and ensure the

implementation of provisions as stated in the Women’s Charter2. The

NCW accomplishes this through their powers of policy formulation,

awareness raising and advocacy. A Gender Complaints Unit has also

been established to receive complaints on gender-based discrimination.

In late 1995 and early 1996, the Ministry of Women’s Affairs and the

National Committee for Women formulated the National Plan of Action

for Women in Sri Lanka. Through several key measures, the National

Plan of Action reflects the critical areas of concern set forth in the

Beijing Platform for Action. The Plan identifies problems and issues,

sets goals for their solution, recommends strategies and activities, and is

responsible for the identification of implementing agencies. There are

eight sectors in which programs under the Plan were proposed, they

include: violence against women, human rights and armed conflict;

political participation and decision-making; health; education and

training; economic activities and poverty; media and communication;

environment; and institutional strengthening and support. Since its

inception, the Plan was revised in 1998 and 2000.

1 http://globaltamilforum.org/gtf/content/gtwf

2 The of social site of the Government of Sri Lanka: Ministry of Child Development and Women’s Empowerment,

http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007

Page 154: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

142

In the last 28 years of the Fundamental Rights Chapter, there have only

been two cases of gender discrimination filed in the Supreme Court. In

the first case, a female doctor was subjected to suspension from her

internship and later transferred when she made an allegation of rape

against a male colleague who worked in the same state hospital. The case

was settled out of court and the female doctor obtained the relief she

wanted. In the second case, a Sri Lankan woman who was married to a

non-Sri Lankan challenged the regulations that discriminated against

foreign male spouses obtaining a resident visa. Following the decision in

this case, these regulations were amended. The creation of a National

Commission for Women would hopefully establish a clear and accessible

pathway of reporting and action if such cases are brought forward in the

future.

The need for legislation to convert the National Committee on Women to

a National Commission with greater powers was raised in 1994. At that

time, draft legislation was formulated but shelved1. The matter was again

taken up in February 2004 with the Ministry of Women’s Affairs

publishing a document titled, “The Draft Bill on Women’s Rights (Sri

Lanka)2.” Once the draft was published, the Ministry called for views on

the document from women’s organizations and the public. A

consultation was also held with women’s groups to discuss the Bill

further. The general consensus coming out of these consultations was

that that the Bill was not well conceptualized both in terms of its

objectives and the institutional framework it outlined, and therefore

should be revised. As a result, a small Technical Committee was created

to review the Bill and prepare a new draft that could then be finalized for

1 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on

Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 2 Bill on Women's Rights (Sri Lanka): Draft, Made Open for Public Scrutiny and Views, February 2004

Page 155: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

143

presentation to Parliament. The Draft Bill prepared by the Technical

Committee was submitted to the National Committee on Women and the

Ministry of Women’s Affairs in October 2004. The Bill was approved in

November 2004 and was subject to a few changes.

The Draft Bill reflects and recognizes Sri Lanka’s commitment to

women’s rights under the Constitution, the Women’s Charter, and

international instruments ratified by Sri Lanka. In fact, the Women’s

Charter is an annex to the Bill1.

The proposed procedure for appointment of members of the National

Commission mirrors the procedure of appointments to other independent

commissions in Sri Lanka. The members are appointed by the President

upon recommendation of the Constitutional Council. The Commission

consists of nine members who have distinguished themselves as leaders

in areas varying from law and development to environment and the

media, with a commitment and proven track record of having worked to

advance women’s rights and gender equality. Each member will hold

office for a period of four years and can be eligible to hold office for a

further four-year term. Out of the nine appointments, three will function

as full time members. The Bill also lays down distinct procedure for the

removal of Commissioners; however, there are substantial safeguards in

place against arbitrary removal2.

The role of the Commission, as envisaged by the Bill, primarily focuses

on quasi-judicial responsibilities, research, and education, advising,

monitoring, and networking3. The ability of the Commission to carry out

1 Bill on Women's Rights (Sri Lanka): Draft, Made Open for Public Scrutiny and Views, February 2004

2 Hon. Mahinda Samarasinghe Minister of Plantation Industries and Special Envoy of His Excellency The President on

Human Rights at the Third Committee of the 67 Session of the United Nations General Assembly on Agenda Item 28: Advancement of Women Sub Items (a-b) United Nations, New York.16 October, 2012 3 Ref: The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara

Page 156: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

144

these duties is only possible with sufficient authority. The proposed

“powers” of the National Commission are: to carry out investigations,

call for reports, or intervene in any proceedings regarding the

infringement or imminent infringement of women’s rights; to conduct

public inquiries in relation to women’s rights; to conduct programs for

the empowerment of women and the advancement of women’s rights;

establish regional offices; take steps as directed by the Supreme Court,

or any other court, in respect of any matter referred to it by that court;

award in its absolute discretion, to an aggrieved person such some of

money as is sufficient to meet the expenses that may have been

reasonably incurred by her through making a complaint to the

Commission1; to call for annual reports from relevant bodies on

measures to implement the Women’s Charter and other rights recognized

by this Act in areas within their purview; and finally, to forward a report

to Parliament at least once in every year on its activities and the

achievement of its objectives. The investigative provisions of the Bill are

devoted to spelling out, in more detail, the Commission’s powers of

inquiry and investigations that relate to the infringement of women’s

rights. The Bill strives for substantial powers of investigation, including

the ability to summon witnesses and to take action against those who do

not appear before the Commission or fail to submit evidence. The Bill

recognizes a very broad concept of standing. It is envisaged that

complaints to the Commission can be made not only by a person acting

in their own interest, but also by anyone acting on behalf of another

person, acting as a member of or in the interest of a group or class of

persons, acting in the public interest, or, an association acting in the

1 The of social site of the Government of Sri Lanka: Ministry of Child Development and Women’s Empowerment,

http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007.

Page 157: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

145

interest of its members1. The Commission will be able to investigate

complaints against both State and non-State actors. Lastly, it is

authorized to enter any place of detention in which a woman is being

detained2. In relation to finances, the Bill seeks to establish a fund

entitled the “National Fund for Women” which will include allocations

from the national budget, independent grants and donations, and

proceeds from sale of movable and immovable property.

When an investigation conducted by the Commission discloses an

infringement, or imminent infringement, there are several procedures

that can be followed. First, the matter can be referred for conciliation or

mediation with the agreement of both parties. Second, referrals can be

made to the appropriate authorities to remedy the “violation” and

recommendations can be made for prosecution or legal action. Lastly,

other appropriate relief may be granted if determined just and equitable.

At this time, the enforcement of recommendations and decisions of the

National Commission are through the High Court in the province where

the complainant resides or to which the subject matter of the finding

relates. The drafters of the National Commission for Women envision

this to be a high power, independent Commission3.

As of December 2007, the Draft Bill for the National Women’s

Commission is still being revised and the new version has not been

available for general public discussion4.

The need for a National Commission for Women with greater powers is

critical for the continued protection and promotion of gender equality

1 http://globaltamilforum.org/gtf/content/gtwf

2 Human Development Report". United Nations Development Programme. 2013

3 The National Machinery for the Protection and Promotion of Women’s Rights in Sri Lanka by Chulani Kodikara

4 The of social site of the Government of Sri Lanka: Ministry of Child Development and Women’s Empowerment,

http://www.priu.gov.lk/Ministries_2007/Min_Child_Dev_womens_empower.html, viewed on November 14, 2007

Page 158: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

146

and women’s rights in Sri Lanka. Within the current gender machinery,

there remains an overlap between the Ministry of Women’s Affairs, the

Bureau, and the National Committee for Women. As a whole, the

national machinery for women is still much marginalized from the

national decision-making processes to the national planning processes.

Gender discrimination remains a category that is not addressed

frequently in litigation and hopefully, through the introduction of the

National Commission for Women1, the focus on and legitimacy of

gender equality issues will become more prevalent in the Sri Lankan

system of governance.

1 Bill on Women's Rights (Sri Lanka): Draft, Made Open for Public Scrutiny and Views, February 2004

Page 159: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

147

2.17 Legal protection of women in China:

The PRC has a commendable policy/legal framework in place to

promote and protect the rights of women. The rights of women are

entrenched in legislation. The 1982 Constitution states that1:

“Women...enjoy equal rights with men in all spheres of life, political,

economic, cultural and social, including family life. The State protects

the rights and interests of women, applies the principle of equal pay for

equal work for men and women alike and trains and selects cadres from

among women...marriage, the family and mother and child are protected

by the State2.

Both husband and wife have the duty to practice family

planning...violation of the freedom of marriage is prohibited.

Maltreatment of old people, women and children is prohibited.”

Prominent legislation setting out women’s rights include the Marriage

Law of 1950, the Inheritance Law (1985) (guaranteeing the inheritance

rights of daughters and widows) the Compulsory Education Law (1995),

the Law on the Protection of Rights and Interest of Women (1992) and

the Maternal and Child Care Law (1994). The rights of women and girls

are further protected in the Civil Law, the Criminal Law, the Criminal

Procedural Law, The Law for the Protection of Minors (1991), the Labor

Law (1994), the Law on the Prevention and Control of Infectious

Diseases (1989) and the Law on Adoption (1991)3. Almost all provinces

1 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing

declaration, the platform of action and the outcome of the 23rd

Session of General Assembly on Women Issues 2 Legal Protection of Legal Protection of Women’ s Rights in China Dr Xin Chunyin Professor and Vice Minister

Legislative Affairs Commission National People’s Congress of China 3 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s

Republic of China

Page 160: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

148

have enacted specific legislation protecting the rights and interests

women.

The body of law includes provisions that expressly prohibit1:

(i) workplace violations or discrimination;

(ii) violence and the abuse of women and girls;

(iii) humiliation of women in the context of public humiliation;

(iv) prostitution and the abduction and sale of women and children;

and

(v) Selective abortion based on the sex of the child.

In 1980, the PRC was one of the first countries in the world to endorse

the 1979 UN Convention on the Elimination of All Forms of

Discrimination against Women. In 1989, PRC was one of the cosponsor

countries for the UN Convention on the Rights of Children. In March

1991, PRC signed both the World Declaration on the Survival,

Protection and Development of Children and its related action plan. The

State Council Work Committee formally assumed responsibility for

implementation of both the 1992 National Program of Action for Child

Development and the 1992 Law on the Protection of the Rights and

Interests of Women2. The 1992 Law on the Protection of the Rights and

Interests of Women is a statement of general principles. Detailed

regulations are drafted by local authorities. A State Council Commission

has been designated to coordinate implementation. Mass associations,

1 Legal Protection of Legal Protection of Women’ s Rights in China Dr Xin Chunyin Professor and Vice Minister

Legislative Affairs Commission National People’s Congress of China 2 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing

declaration, the platform of action and the outcome of the 23rd

Session of General Assembly on Women Issues

Page 161: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

149

such as the ACWF1, have been acquiring newly recognized legal

responsibilities to assist in the protection of rights and interests of

women.

The ACWF is involved in the drafting of legislation, which specifically

addresses women. The ACWF also plays a key role in the administration

of the Law through its Urban and Rural Women’s Work Department,

which is staffed by lawyers. Although the legal framework addresses the

rights and interests of women, critics argue that as a result of weaknesses

in the judicial system and in and implementation and enforcement of the

law, the position of women in practice is not as clearly protected as

envisaged in the legislation. In 1994, the State Council stated that

“Owing to the constraints of social development and the influence of old

concepts, the condition of Chinese women are still not wholly

satisfactory.”

The State Council also concluded that the enforcement of the 1992 Law

on the Protection of the Rights and Interests of Women was in the

“initial” stages and that the State would have to commit significant

resources in the long term to ensure full implementation.

The PRC’s strategy with respect to gender-specific legislation “Raises

the vexing but genuinely important questions of what the best practical

socially and legally appropriate means are for protecting women’s and

children’s rights in the contemporary circumstances of the [PRC’s]

transition to the socialist market2 [economy].”

1 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s

Republic of China 2 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing

declaration, the platform of action and the outcome of the 23rd

Session of General Assembly on Women Issues

Page 162: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

150

Discussion within feminist groups in the PRC focuses not only on the

legislation, but also on the implementation of the laws. In many cases

laws are silent when it comes to penalties for non-compliance1. There

has been some training of the judiciary, and the ACWF continues its

media campaigns aimed at increasing public awareness of the rights of

women. However, despite the progress, many activists argue that there is

still a long way to go to achieve, in practice, the objectives set forth in

the Constitution and in legislation.

According to UNICEF’s 1995 Progress of Nations report, 21 percent of

the deputies in the National People’s Congress were women, compared

to a world average of only 9 percent. Following the 1992 passage of the

Law on the Protection of the Rights and Interests of Women,

approximately two-thirds of PRC’s provinces have drafted regulations

stipulating a minimum number of women deputies in the People’s

Congresses and People’s Political Consultative Congresses2.

The ACWF has concluded that3 “Emphasizing increasing the rate of

Chinese women participating in government work, while implementing

the Law on Protection of Women’s Rights and Interests is extremely

important. That women’s rights and interests were infringed or ignored

in the past was to a great extent due to lack of the women’s voice in

policymaking.... in cities or areas which have a higher rate of women in

government, matters involving protection of women’s rights and

interests have been better handled, problems related to women’s rights

1 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s

Republic of China 2 Ref: Report of the people’s republic of China Regarding the questionnaire on the implementation of the Beijing

declaration, the platform of action and the outcome of the 23rd

Session of General Assembly on Women Issues 3 Legal Protection of Legal Protection of Women’ s Rights in China Dr Xin Chunyin Professor and Vice Minister

Legislative Affairs Commission National People’s Congress of China

Page 163: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

151

and interests are solved in a shorter period, and consequently, they

record few serious cases of infringing women’s rights and interests1.”

1 The Legislative Affairs Commission of the Standing Committee of the National People’s Congress of the People’s

Republic of China

Page 164: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

152

2.18 LEGAL PROTECTION OF WOMEN IN UK

Women who are outside of their country of origin are particularly

vulnerable to experiencing gender-based violence as the Beijing

Platform for Action recognises:

“Some groups of women, such as…refugee women, women migrants,

including women migrant workers.... destitute women, women in

institutions.... are also particularly vulnerable to violence”1.

Women in this situation may have fled gender-based violence in their

country of origin and be experiencing it again in the UK. They may have

migrated for family formation or reunion or for economic advantage, but

experience violence in the UK. They may be trafficked for the purposes

of sexual exploitation2. Refugee

3 and asylum-seeking women

4 face

multiple forms of discrimination that place them at greater risk of

experiencing violence. A literature review carried out by the Refugee

Council which analysed the vulnerabilities of refugee women to sexual

violence found that they were vulnerable to violence at all stages in the

“refugee cycle”.

Migrant women5 in the UK who are experiencing violence have an

intensified experience of it because their immigration status often

1 UN Women Beijing Platform for Action http://www.un.org/womenwatch/daw/beijing/platform/

2 Government Equalities Office (2011) CEDAW (Convention on the Elimination of all forms of Discrimination against

Women) report. United Kingdom’s Seventh Periodic Report. GEO: London http://www.homeoffice.gov.uk/publications/equalities/international-equality/7th-cedaw-report?view=Binary 3 Refugee Council (2012) The experiences of refugee women in the UK: Briefing.

http://www.refugeecouncil.org.uk/Resources/Refugee%20Council/downloads/briefings/Briefing%20%20experiences%20of%20refugee%20women%20in%20the%20UK.pdf 4 Home Office, Immigration Statistics, April to June 2011: Asylum, Table as.03: Asylum applications from main

applicants by age, sex and country of nationality 5 Migrant groups include dispersed asylum seekers, refugees, seasonal agricultural workers, students, ‘Tier 1’ (highly

skilled) migrant workers, dependants joining already settled family members, people with irregular migration status such as those who have overstayed their visa or who are working in breach of their visa conditions, women who have left violent partners and have no recourse to public funds, and people from inside and outside the EU. Local areas vary according to the size and distribution of these groups in their population

Page 165: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

153

prevents them from accessing life-saving services. Trafficked women1

are routinely responded to as immigration offenders rather than victims

of human rights abuses and returned to their country of origin, frequently

to face re-trafficking. Migrant domestic workers are often unable to

leave an abusive employer and face proposals which will further increase

their vulnerability to exploitation.

A number of international, regional and domestic legal mechanisms have

been developed to respond to these issues. These enable women who are

outside of their country of origin and who are at risk of or are

experiencing gender-based violence to secure safety in the UK.

The 1951 UN Convention Relating to the Status of Refugees (the

Refugee Convention) has been interpreted to offer protection to women

experiencing or at risk of violence2 in their country of origin, including

women experiencing domestic violence and trafficked women. Specific

guidance has been developed for UK Border Agency (UKBA) case-

owners to enable them to understand and respond to women’s asylum

claims. Gender Issues in the Asylum Claim11 sets out the different

forms of persecution and harm that woman may experience and explains

how the Refugee Convention should be interpreted to protect them.

The Council of Europe Convention on Action against Trafficking in

Human Beings (2005) (the Trafficking Convention) enables some

victims of trafficking to receive residence permits. The National Referral

Mechanism (NRM) has been developed so that the UK meets its

obligations under the Trafficking Convention to identify and protect

1 Human Rights Watch (2010) Fast-Tracked Unfairness: Detention and denial of women asylum seekers in the UK.

http://www.hrw.org/reports/2010/02/24/fast-tracked-unfairness-0 2 Campaign to Abolish No Recourse to Public Funds (2012), ‘Press Release: Campaign to Abolish No Recourse to Public

Funds Celebrates Victory; Home Office Concession for Destitute Victims of Domestic Violence’ London: Campaign to Abolish No Recourse to Public Funds.http://www.wrc.org.uk/includes/documents/cm_docs/2012/p/press_release30_march_2012.doc

Page 166: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

154

victims of trafficking. The domestic violence rule, paragraph 289A of

the Immigration Rules, enables those who have come to the UK as

partner of someone who is British or settled here and whose relationship

breaks down because of domestic violence to apply for settlement in the

UK.

The Sojourner Project and the scheme that will replace it in 2012 enables

this group of women to access support in a place of safety while they

prepare their domestic violence rule application and it is decided by the

UKBA.14 Women from other European Economic Area (EEA) countries

and women who are the family members of EEA nationals have rights in

the UK, including to work, seek work, study or be self-employed1.

Article 13 of the Citizen’s Directive (2004/38/EC) enables some family

members of EEA nationals to retain their rights of residence in the

country they are living in if their relationship ends in certain

circumstances, including because of domestic violence.

The legal mechanisms described enable women who are outside of their

country of origin and who are experiencing, or at risk of experiencing,

gender-based violence to obtain protection from that violence in the UK

(depending on the particular circumstances of the case)2. However, the

ability of a woman to secure this safety will depend on a number of

factors of which the availability of a legal protection mechanism is only

one. A woman seeking protection in the UK will also need to have legal

advice and representation, support from specialist services, financial

support and accommodation in a place of safety.

1 Briddick C, Camplin H, Perks K, Scott E and Tweedale R, Rights of Women (2010) Measuring Up? UK compliance with

international obligations to protect women from violence, www.rightsofwomen.org.uk 2 HM Government (2010) Call to End Violence Against Women and Girls

http://www.homeoffice.gov.uk/publications/crime/call-end-violence-women-girls/vawg-paper?view=Binary

Page 167: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

155

This research, which analyses six months of calls to Rights of Women’s

immigration and asylum law line, identifies and analyses the key barriers

and issues for women seeking safety and protection in the UK. It

highlights the protection ‘gaps’ that exist and gives a voice to the women

who have called us and who have fallen through those gaps. Our report1

makes clear and concrete recommendations which, if implemented, will

ensure that this particularly vulnerable group of women are able to

access protection and live lives free from violence.

All of our recommendations are in line with the Government’s own

commitments to end violence against women and the UK’s international

obligations to protect women from violence2. Throughout this report we

have drawn on the statistical information that we collect from our advice

line service users. Further information about this is given in Chapter 1

and Appendix 1. We have also, where appropriate, used case-studies

from our advice line to highlight particular issues of concern. Where we

have done this, details of the caller and the case have been changed to

ensure confidentiality.

1 Rights of Women (2011). Silences voices speak: strategies for protecting migrant women from violence and abuse

http://www.rightsofwomen.org.uk/pdfs/Policy/Silenced_voices_speak-strategies_for_protecting_migrant_women_from_violence_and_abuse.pdf 2 Scottish Refugee Council and London School of Hygiene and Tropical Medicine (2009) Asylum Seeking Women,

violence and health http://genderviolence.lshtm.ac.uk/files/2009/10/Asylum-seeking-Women-Violence-and-Health.pdf; Refugee Council (2009) The vulnerable women’s project: refugee and asylum seeking women affected by rape or sexual violence – literature review http://www.refugeecouncil.org.uk/Resources/Refugee%20Council/downloads/researchreports/RC%20VWP-report-web.pdf

Page 168: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

156

2.19 LEGAL PROTECTION OF WOMEN IN RUSSIA:

From January until June 2013 KARAT conducted a project aimed at the

advancement of the legal protection of women’s human rights in Belarus

through adoption of the relevant and well-formulated laws on gender

equality as well as the prevention and eradication of domestic violence.

All the activities within the project were carried on in cooperation with

the Belorussian partner – Public Association “Women’s Independent

Democratic Movement” (PA “WIDM”)1.

The project had the following specific objectives2:

(i) Strengthening the capacity of women’s human rights leaders in

Belarus to formulate draft law proposals on gender equality and

domestic violence through expertise sharing and utilizing Polish

experiences in this area;

(ii) Empowering women’s human rights leaders in Belarus through

provision of the international support for their causes;

(iii) Developing the outline of the specific provisions that need to be

incorporated into draft laws on gender equality and domestic

violence in order for them to be effective;

(iv) Developing the strategy along with the plan of action for advocacy

for the adoption of the draft law proposals on gender equality and

domestic violence in Belarus.

Activities and its outcome:

On April 18-21, 2013 ten women’s rights advocates from Belarus took

part in a strategic training in Warsaw, Poland on legal protection of

women from discrimination and domestic violence. The training was a

1 "The Global Gender Gap Report 2012", World economic forum.

2 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women

Page 169: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

157

response to the current challenges faced by the Belorussian women’s

movement. It focused on raising the knowledge of participants about the

essential elements that constitute a good law against gender-based

discrimination and violence. The participants learned about the best

European examples of this kind of legislation, and the European Union

and United Nations’ recommendations on effective prevention of

gender-based discrimination and violence, as well as victim protection.

The lawyers who conducted the training shared Polish experiences of

developing the draft bills to make the participants aware of problems

they might encounter while working on and presenting their drafts to the

relevant state’s authorities. The women’s rights advocates had an

opportunity to discuss with the Polish experts the weak and strong points

of their draft bill on domestic violence in the light of international

legislation as well as opportunities and threats in a context of current

social and political situation in Belarus1.

The training was one of the series of initiatives that Belorussian

women’s organizations plan to undertake to make the state’s authorities

adopt the bill on equal status of women and men as well as the bill on

preventing and combating domestic violence2. The training was

organized by KARAT with its Belarusian member organization Public

Association of “Women’s Independent Democratic Movement” (PA

‘WIDM’).

One of the training’s results was a development of the resource material

„Legal measures to protect women from violence and discrimination„

which is a relevant source of knowledge about the United Nations,

European Union and Polish anti-discrimination and anti-violence

1 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women

2 "The Global Gender Gap Report 2012". World Economic Forum.

Page 170: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

158

legislation in a context of gender. It focuses on EU directives prohibiting

gender discrimination, the recommendations of Council of Europe and

United Nations on model regulations concerning counteracting domestic

violence as well as Polish regulations aimed at protecting women from

discrimination which can be found in the Labour Code, Polish

Constitution, Anti-discrimination Act and Law on Domestic Violence1.

Background

Despite the fact that Belarus is a State Party to the United Nations

Convention on the Elimination of All Forms of Discrimination Against

Women (CEDAW)2 and is obliged to implement its provisions, the

Government does not show enough commitment and proves to be rather

reluctant in taking pro-active steps to advance the situation of women.

Until now, the Belorussian authorities have not adopted the basic legal

provisions aimed at protecting fundamental women’s rights, such as

prohibition of discrimination and law on preventing and eradicating

domestic violence.

Although the adoption of these laws has been incorporated in the

National Plan of Action on Gender Equality (NPAGE), there is a

justified concern that the authorities will not take pro-active steps to

facilitate these legislative processes. In other words, it seems hardly

possible that decision-makers would come up with relevant draft law

proposals on gender equality, as well as on domestic violence.

Thus the Public Association “Women’s Independent Democratic

Movement” (PA “WIDM”) from Minsk3, which is a coordinator of the

wider women’s rights defenders community in Belarus (Women’s

1 "The Global Gender Gap Report 2012". World Economic Forum.

2 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women

3 "Human Development Report". United Nations Development Programme. 2013

Page 171: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

159

Human Rights Network – WHRN) aims at developing the draft laws and

lobby for their adoption. In order to facilitate these processes, the

capacity to formulate law provisions of PA “WIDM” and activists from

WHRN needs to be strengthened. There is a lot of expertise and

experience on developing and adopting such legislation in the Region,

that KARAT Coalition operates in (Central and Eastern Europe and

Central Asia), as the vast majority of the countries already have gone

through these processes, including Poland.

In Poland, the so called “anti-discrimination” 1law has been adopted in

December 2011 and the act on preventing and combating domestic

violence has been in force since 2005. Though these laws are far from

being perfect, civil society organizations were actively involved in both

legislative processes.

In this context, PA “WIDM” together with KARAT2 launched

cooperation aiming at strengthening the capacity of Belorussian

women’s rights advocates to develop draft law proposals on gender

equality and domestic violence. The goal of this cooperation is to utilize

the Polish experiences (successes but also failures) to facilitate the

positive legal changes in Belarus.

The situation of women’s rights defenders in Belarus

According to information received from the Public Association

“Women’s Independent Democratic Movement”3 (PA “WIDM”),

women’s rights movement has recently slowed down its institutional

development due to the struggles for keeping the legal status of

organizations. Moreover, the number of women’s organizations

1 "The Global Gender Gap Report 2012". World Economic Forum.

2 "Human Development Report". United Nations Development Programme. 2013

3 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women

Page 172: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

160

decreased in recent years and there are only 32 women’s organizations

officially registered at the moment. This has obviously a negative impact

on women’s movement’s capacity to implement its mission and

influence the policy-making.

There is a clear tendency of the authorities to continue to worsen the

conditions for the functioning of the third sector, including the

restrictions related to receiving the foreign funding. As a result of such

policy, democratic NGOs, including women’s NGOs, have only limited

capacity to participate in public decision-making processes and are

deprived of the opportunity to implement their basic function –

representing the interests of citizens in relations with the state.

Discrimination against women in Belarus

Discrimination against women and violations of women’s human rights

are widely spread in all spheres of life in Belarus1. The CEDAW

Committee and other international human rights bodies have expressed

their concerns a number of times about the state’s failure to place high

priority on addressing women’s rights issues.

Lack of legal protection from gender-based discrimination2

In its last Concluding Observations, released after the reviewing session

of the State’s compliance with the CEDAW provisions in 2011, the

CEDAW Committee specifically highlighted the problem of “the

absence of a specific prohibition of discrimination against women in all

areas of life in national legislation, in line with article 1 and 2 of the

Convention”. It also noted “the absence of a law on gender equality” and

urged the State Party to adopt such legislation, ”including a clear

1 "Human Development Report". United Nations Development Programme. 2013.

2 The Global Gender Gap Report 2012". World Economic Forum

Page 173: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

161

definition of all forms of discrimination against women, covering both

direct and indirect discrimination”.

The advancement of the status of women in Belarus will not be possible,

unless effective anti-discrimination legislation is put in place.

Violence against Women1

The prevalence of various forms of domestic violence against women

(physical, sexual, psychological, and economic)2 is one of the most acute

areas of women’s rights violations in Belarus. The country is falling

short of its international obligations to eradicate the phenomenon and

until now the problem of domestic violence has not been

comprehensively and adequately addressed. Most importantly, in Belarus

(unlike nearly all European countries) there is no specific law on

preventing and eradicating domestic violence. The need for the adoption

of such law has been included in the current National Plan of Action on

Gender Equality (NPAGE)3. Nonetheless, NPAGE is poorly resourced,

as well as given a low public profile, it is important in the context of

exerting the pressure for the actual adoption of the act on preventing and

combating domestic violence. The previous editions of NPAGE proved

to have only limited impact and many goals remained not to be

addressed. Thus a sustained advocacy of the Belarusian women’s rights

advocates, as well as international human rights institutions is needed to

facilitate the positive changes.

All the activities within the project „Mobilization for the enhanced legal

protection of women’s rights in Belarus” have been possible thanks to

financial support of the Embassy of the Kingdom of the Netherlands.

1 Russian Federation, the Russian Federation's National Report Prepared for the Fourth World Conference on Women

2 The Global Gender Gap Report 2012". World Economic Forum

3 Human Development Report". United Nations Development Programme. 2013

Page 174: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

162

Page 175: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

163

2.20 LEGAL PROTECTION OF WOMEN IN USA:

The U.S. Congress has passed two main laws related to violence against

women, the Violence Against Women Act and the Family Violence

Prevention and Services Act. The Violence Against Women Act

(VAWA) was the first major law to help government agencies and

victim advocates work together to fight domestic violence, sexual

assault, and other types of violence against women. It created new

punishments for certain crimes and started programs to prevent violence

and help victims1. Over the years, the law has been expanded to provide

more programs and services. Currently, some included items are:

(i) Violence prevention programs in communities

(ii) Protections for victims who are evicted from their homes because

of events related to domestic violence or stalking

(iii) Funding for victim assistance services like rape crisis centers and

hotlines Programs to meet the needs of immigrant women and

women of different races or ethnicities

(iv) Programs and services for victims with disabilities

(v) Legal aid for survivors of violence

(vi) Services for children and teens

The National Advisory Committee on Violence Against Women works

to help promote the goals and vision of VAWA. The committee is a joint

effort between the U.S. Department of Justice and the U.S. Department

of Health and Human Services. Examples of the committee's efforts

include the Community Checklist initiative to make sure each

1 Human Development Report". United Nations Development Programme. 2013

Page 176: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

164

community has domestic violence programs and the Toolkit to End

Violence Against Women1, which has chapters for specific audiences.

The Family Violence Prevention and Services Act2

The Family Violence Prevention and Services Act (FVPSA) provide the

main federal funding to help victims of domestic violence and their

dependents (such as children). Programs funded through FVPSA provide

shelter and related help. They also offer violence prevention activities

and try to improve how service agencies work together in communities.

FVPSA works through a few main ways:

Formula Grants. This money helps states, territories, and tribes

create and support programs that work to help victims and

prevent family violence. The amount of money is determined by

a formula based partly on population. The states, territories, and

tribes distribute the money to thousands of domestic violence

shelters and programs.

The National Domestic Violence Hotline. This is a 24-hour,

confidential, toll-free hotline. Hotline staff connects the caller to

a local service provider. Trained advocates provide support,

information, referrals, safety planning, and crisis intervention in

more than 170 languages to hundreds of thousands of domestic

violence victims each year.

The Domestic Violence Prevention Enhancements and

Leadership Through Alliances (DELTA) Program. Like many

public health problems, intimate partner violence is not simply

an individual problem — it is a community problem. DELTA

1 The Global Gender Gap Report 2012". World Economic Forum

2 Human Development Report". United Nations Development Programme. 2013

Page 177: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

165

supports local programs that teach people ways to prevent

violence.

Page 178: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

166

2.21 LEGAL PROTECTION OF WOMEN IN AUSTRALIA:

Women's rights are not fully protected in Australia. Australia's Sex

Discrimination Act 1984 (SDA)1 does not adequately address systemic

discrimination or promote substantive equality – there is no general

prohibition on sex discrimination; the burden for addressing sex

discrimination is on individual complainants; intersectional

discrimination is not adequately addressed; and exemptions to the Act,

such as those for religious institutions, perpetuate unfair and

unreasonable discrimination against women.

Protection from discrimination against women in the workforce remains

inadequate, particularly in the areas of pregnancy and family

responsibilities. Proposed changes to the SDA2, which will improve

protections against sexual harassment, and discrimination on the basis of

breastfeeding and family responsibilities, are welcome but further

improvements are needed, such as those recommended in the 2008

Senate Committee Inquiry into the SDA. The Australian Government

has committed to consolidating and harmonising federal anti-

discrimination law into a single Act and to considering the

unimplemented Inquiry recommendations as part of this process, but it is

not yet clear how this will happen.

Inequality in business and the workplace

Women remain significantly underrepresented on boards and at senior

management level. In 2010, only 8.4% of directors of the largest 200

publicly listed companies in Australia and 33.4% of government boards

are women. Australia has recently introduced a new gender diversity

target of 40% representation for both women and men on Australian 1 The Global Gender Gap Report 2012". World Economic Forum

2 Human Development Report". United Nations Development Programme. 2013

Page 179: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

167

Government boards. However the target of 40% applies when looking at

the total number of women and men across all Australian Government

boards1 – it does not address representation on individual government

boards and may therefore have little impact.

The gender pay gap continues to widen, with women earning 82 cents in

the male dollar (the biggest gap since 1994), and the gap is as big as 35%

in some industries. The gender pay gap affects current incomes, living

standards and the capacity of women to save for retirement. The report

of the 2008-09 Parliamentary Committee Inquiry into pay equity,

making it Fair, made a large number of recommendations to which the

Government has not yet responded.

Violence Against Women

High rates of violence against women remain a major issue, with almost

one-in-three Australian women experiencing physical violence and

almost one-in-five women experiencing sexual violence in their

lifetime2. The government-appointed National Council to Reduce

Violence Against Women and Children delivered its report in April

2009. In August 2010, the Australian Government released a draft

National Plan to Reduce Violence against Women and Children, but this

has yet to be implemented fully.

Aboriginal and Torres Strait Islander women experience horrific levels

of violence and are 35 times more likely to be hospitalised as a result of

spousal or partner violence than non-Indigenous women. Violence

against Aboriginal and Torres Strait Islander women is associated with a

number of factors, including racism, dispossession, disadvantage and

poor living conditions. Australia provides funding to Aboriginal and 1 Human Development Report". United Nations Development Programme. 2013

2 The Global Gender Gap Report 2012". World Economic Forum

Page 180: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

168

Torres Strait Islander Legal Services, however Aboriginal and Torres

Strait Islander women experience difficulties in accessing and gaining

representation from these services. Australia has also funded family

violence prevention legal services to provide services to Aboriginal and

Torres Strait Islander people, however these services are not available in

all parts of Australia, including urban areas, and are not adequately

funded for law reform and policy development work.

The needs of particular women

Women from different population groups experience particular

difficulties. There is limited access to family violence and sexual assault

services in rural and remote areas. Women from culturally and

linguistically diverse backgrounds face difficulties in reporting violence

and accessing culturally appropriate accommodation. Violence against

women with disabilities often goes undetected, unreported or

uninvestigated, and there is a lack of access to appropriate services1,

including crisis accommodation, for women with disabilities. Violence

against women identifying as lesbian, bisexual, transgender, transsexual

or intersex within relationships often goes unacknowledged by national

anti-violence strategies. Aboriginal and Torres Strait Islander women

also experience high rates of violence.

Three major government-commissioned reports have found that the

family law system does not respond effectively to issues of family

violence. As part of its election platform, the Australian Labor Party

committed to amending legislation responding to these reports but has

not done so since being re-elected.

1 Human Development Report". United Nations Development Programme. 2013

Page 181: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

169

The CEDAW Action Plan, prepared by YWCA with Women's Legal

Services NSW on behalf of a coalition of NGOs setting out what the

Australian and State and Territory Governments should do to put into

action the UN's recommendations on women's human rights in Australia,

can be found along with CEDAW's Review of Australia on the resources

page of this site.

What the UN Human Rights Council recommended in the Universal

Periodic Review1 In January 2011 Australia was reviewed by the UN

Human Rights Council2 during the Universal Periodic Review (or UPR)

(a process whereby the human rights performance of all UN member

states is reviewed by other states). In June 2011 Australia provided its

response to the 145 recommendations made by the Human Rights

Council.

The Government has accepted over 90 per cent of the recommendations

and has committed to incorporating the recommendations it has accepted

into the National Human Rights Action Plan.

In relation to women's rights, the Human Rights Council made a number

of relevant recommendations.

1 Human Development Report". United Nations Development Programme. 2013

2 The Global Gender Gap Report 2012". World Economic Forum

Page 182: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

170

2.22 LEGAL PROTECTION OF WOMEN IN SOUTH AFRICA:

Over the past decade South Africa has ratified the main international and

regional women’s rights protection instruments; and national statutory

laws tend to respect the principle of equality between women and men.

Yet, the continued application of discriminatory customary laws and

persistent patriarchal traditions lead to widespread violations of women’s

human rights. The Coalition of the campaign remains particularly

concerned about1: discrimination within the family; violence against

women, including trafficking; unequal access to property; discrimination

in employment; and access to health services.

Some positive developments:

In addition to the ratification of all the main women’s rights protection

instruments, the Coalition of the Campaign acknowledges several other

developments in recent years concerning women’s rights2:

The adoption of the Criminal Law (Sexual Offences)

Amendment Act 2007 which modifies the definition of consent

and the evidential requirements for proving rape (including

abolition of the cautionary rule against complainants’ evidence

and providing that no negative inference can be drawn from a

delay in reporting rape)3.

The adoption of the Criminal Law (Sentencing) Amendment Act

2007, which establishes minimum sentences for rape. This

amendment was intended in particular to prevent courts failing to

impose minimum sentences on the basis of absence of physical

1 "Human Development Report". United Nations Development Programme. 2013

2Bhe and Others v Magistrate, Khayelitsha and Others ( commission for gender equality as Amicaus Curiae) ; Shibi v

Sithole and Others; South African Human Rights Commission and Another v President of the Republic of South Africa and Another 2005 1 (SA) 580 (CC) 3 The Global Gender Gap Report 2012". World Economic Forum.

Page 183: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

171

injuries, the “cultural beliefs” of the perpetrator, or the behaviour

of the victims or her relationship to the perpetrator.

The adoption of National Instructions for Police on Sexual

Offences, which sets out how police investigations should be

conducted in such cases.

Concerning representation of women in parliament, following the

2009 parliamentary elections, 178 out of a total of 400 members

of the lower house are women (44.5%). In the upper house, 16 of

54 members are women (29.6%). At ministerial level and deputy

minister level respectively 42% and 39% are women1.

But discrimination and violence persist2:

South Africa has a hybrid legal system composed of statutory and

customary law. Laws protecting women’s rights are ineffectively

implemented, due to lack of training of law enforcement personnel,

general lack of awareness of women’s human rights and generalised

impunity for violations.

Discrimination in the family3:

Legally both civil and customary marriages are recognised. Religious

marriages have been recognised by the courts and laws recognising such

marriages are currently under consideration. Under customary law,

polygamy is authorized (although it is rarely practised). Indeed, the

President, Jacob Zuma, whose role is to guarantee the application of the

Constitution, which provides for equality between men and women,

openly defends polygamy and married his fifth wife in 2010. The

Recognition of Customary Marriages act requires a court application if a

1 Human Development Report". United Nations Development Programme. 2013.

2Ref: Protocol to the African charter on human and peoples' rights on the rights of women in Africa

3 The Global Gender Gap Report 2012". World Economic Forum.

Page 184: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

172

spouse in an existing customary marriage wants to take on a new wife.

However, the need to register customary marriages is not well-known

and many women within customary marriages do not know about their

rights as outlined in the new legislation.

Violence

Despite the adoption of specific legislation to protect women from

domestic violence, including marital rape, (Domestic Violence Act

1998), such violence remains widespread. The implementation of the law

is curtailed, due to deeply rooted social attitudes which condone violence

against women, lack of resources, and inadequate training of doctors,

police and court personnel1. Efforts undertaken by the government,

including the financing of shelters for victims and training for police,

have so far proved inadequate. South Africa has the highest recorded

incidence of rape in the world. Over a nine month period, during 2007-

2008, 36,190 complaints of rape were recorded by the police.

Yet, the large majority of rapes committed go unreported. Reported

cases are generally not effectively investigated and prosecuted, in part

due to lack of training of law enforcement officials2. According to a

2008 study, only 4.1% of reported cases result in convictions. The

government abolished specialist sexual offences units in favour of a

decentralized approach to the investigation of these cases. This has led to

deterioration in how rape cases are dealt with by the police3.

In 2009, the Minister of Police announced government’s intention to

reverse this decision but this has not been implemented. There are

extensive reports of rape, sexual abuse, sexual harassment and assaults

1 Human Development Report". United Nations Development Programme. 2013.

2 The Global Gender Gap Report 2012". World Economic Forum.

3 Ref: Protocol to the African charter on human and peoples' rights on the rights of women in Africa

Page 185: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

173

of girls at school by teachers, students, and other persons in the school

community. Although the law requires schools to disclose sexual abuse

to the authorities; administrators often conceal sexual violence or delay

disciplinary action. Violence against those accused of witchcraft occurs,

especially amongst elderly women. There have been reports of women

accused of witchcraft being driven from their villages in rural

communities, assaulted, exiled, and in some cases, murdered1.

The Children’s Act 20052 (signed into law in 2008) prohibits trafficking

of children, and the new Sexual Offences Act of 2007 prohibits any

trafficking for sexual purposes. The Prevention of Trafficking Bill 3is

currently at parliamentary stage and aims to comply with government’s

international obligations in relation to trafficking. The precise extent of

trafficking operations in South Africa is unknown.

1 "The Global Gender Gap Report 2012". World Economic Forum.

2 Human Development Report". United Nations Development Programme. 2013.

3 Ref: Protocol to the African charter on human and peoples' rights on the rights of women in Africa

Page 186: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

174

3

Legal

Protection of

Women in

India

Page 187: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

175

3.1 LEGAL PROTECTION OF WOMEN IN INDIA:

The principle of gender equality is enshrined in the Indian Constitution

in its Preamble, Fundamental Rights, Fundamental Duties and Directive

Principles. The Constitution not only grants equality to women, but also

empowers the State to adopt measures of positive discrimination in

favour of women. Within the framework of a democratic polity, our

laws, development policies, Plans and programmes have aimed at

women’s advancement in different spheres. India has also ratified

various international conventions and human rights instruments

committing to secure equal rights of women. Key among them is the

ratification of the Convention on Elimination of All Forms of

Discrimination against Women (CEDAW) in 1993.

"Ratifying CEDAW remains among the unfinished businessof the Civil

Rights movement."

- - Dorothy I. Height

April 13, 2010

The Constitution of India not only grants equality to women but also

empowers the State to adopt measures of positive discrimination in

favour of women for neutralizing the cumulative socio economic,

education and political disadvantages faced by them. Fundamental

Page 188: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

176

Rights, among others, ensure equality before the law and equal

protection of law; prohibits discrimination against any citizen on grounds

of religion, race, caste, sex or place of birth, and guarantee equality of

opportunity to all citizens in matters relating to employment. Articles

14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of

specific importance in this regard.

Constitutional Privileges1

i. Equality before law for women (Article 14)

ii. The State not to discriminate against any citizen on grounds only

of religion, race, caste, sex, place of birth or any of them (Article

15 (i))

iii. The State to make any special provision in favour of women and

children (Article 15 (3))

iv. Equality of opportunity for all citizens in matters relating to

employment or appointment to any office under the State (Article

16)

v. The State to direct its policy towards securing for men and women

equally the right to an adequate means of livelihood (Article

39(a)); and equal pay for equal work for both men and women

(Article 39(d))

vi. To promote justice, on a basis of equal opportunity and to provide

free legal aid by suitable legislation or scheme or in any other

way to ensure that opportunities for securing justice are not denied

to any citizen by reason of economic or other disabilities (Article

39 A)

vii. The State to make provision for securing just and humane

conditions of work and for maternity relief (Article 42)

1 Ref : THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 NO. 43 OF 2005 ,13th September, 2005

Page 189: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

177

viii. The State to promote with special care the educational and

economic interests of the weaker sections of the people and to

protect them from social injustice and all forms of exploitation

(Article 46)

ix. The State to raise the level of nutrition and the standard of living

of its people (Article 47)

x. To promote harmony and the spirit of common brotherhood

amongst all the people of India and to renounce practices

derogatory to the dignity of women (Article 51(A) (e))

xi. Not less than one-third (including the number of seats reserved for

women belonging to the Scheduled Castes and the Scheduled

Tribes) of the total number of seats to be filled by direct election

in every Panchayat to be reserved for women and such seats to be

allotted by rotation to different constituencies in a Panchayat

(Article 243 D(3))

xii. Not less than one- third of the total number of offices of

Chairpersons in the Panchayats at each level to be reserved for

women (Article 243 D (4))

xiii. Not less than one-third (including the number of seats reserved

for women belonging to the Scheduled Castes and the Scheduled

Tribes) of the total number of seats to be filled by direct election

in every Municipality to be reserved for women and such seats to

be allotted by rotation to different constituencies in a Municipality

(Article 243 T (3))

xiv. Reservation of offices of Chairpersons in Municipalities for the

Scheduled Castes, the Scheduled Tribes and women in such

Page 190: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

178

manner as the legislature of a State may by law provide (Article

243 T (4))1

1 Ref : Collected by the All India Christian Council,

Page 191: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

179

3.2 LEGAL PROVISIONS

To uphold the Constitutional mandate, the State has enacted various

legislative measures intended to ensure equal rights, to counter social

discrimination and various forms of violence and atrocities and to

provide support services especially to working women.

Although women may be victims of any of the crimes such as ‘Murder’,

‘Robbery’, ‘Cheating’ etc, the crimes, which are directed specifically

against women, are characterized as ‘Crime against Women’. These are

broadly classified under two categories1.

1) The Crimes Identified Under the Indian Penal Code (IPC)

i. Rape (Sec. 376 IPC)

ii. Kidnapping & Abduction for different purposes

(Sec. 363-373)

iii. Homicide for Dowry, Dowry Deaths or their attempts

(Sec. 302/304-B IPC)

iv. Torture, both mental and physical (Sec. 498-A IPC)

v. Molestation (Sec. 354 IPC)

vi. Sexual Harassment (Sec. 509 IPC)

vii. Importation of girls (up to 21 years of age)

2) The Crimes identified under the Special Laws (SLL)

Although all laws are not gender specific, the provisions of law

affecting women significantly have been reviewed periodically

and amendments carried out to keep pace with the emerging

requirements.

1 Ref : Source: http://indiacode.nic.in/fullact1.asp?tfnm=200543 Download date: June 5, 2013

Page 192: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

180

Some acts which have special provisions to safeguard women and

their interests are1:

i) The Employees State Insurance Act, 1948

ii) The Plantation Labour Act, 1951

iii) The Family Courts Act, 1954

iv) The Special Marriage Act, 1954

v) The Hindu Marriage Act, 1955

vi) The Hindu Succession Act, 1956 with amendment in 2005

vii) Immoral Traffic (Prevention) Act, 1956

viii) The Maternity Benefit Act, 1961 (Amended in 1995)

ix) Dowry Prohibition Act, 1961

x) The Medical Termination of Pregnancy Act, 1971

xi) The Contract Labour (Regulation and Abolition) Act, 1976

xii) The Equal Remuneration Act, 1976

xiii) The Prohibition of Child Marriage Act, 2006

xiv) The Criminal Law (Amendment) Act, 1983

xv) The Factories (Amendment) Act, 1986

xvi) Indecent Representation of Women (Prohibition) Act, 1986

xvii) Commission of Sati (Prevention) Act, 1987

xviii) The Protection of Women from Domestic Violence Act, 2005

1 Ref : Journal of Business Management & Social Sciences Research (JBM&SSR) ISSN No: 2319‐5614 Volume 2, No.4,

April 2013

Page 193: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

181

3.3 SPECIAL INITIATIVES FOR WOMEN

i. National Commission for Women1

In January 1992, the Government set-up this statutory body with a

specific mandate to study and monitor all matters relating to the

constitutional and legal safeguards provided for women, review the

existing legislation to suggest amendments wherever necessary, etc.

ii. Reservation for Women in Local Self -Government2

The 73rd Constitutional Amendment Acts passed in 1992 by Parliament

ensure one-third of the total seats for women in all elected offices in

local bodies whether in rural areas or urban areas.

iii. The National Plan of Action for the Girl Child (1991-2000)

The plan of Action is to ensure survival, protection and development of

the girl child with the ultimate objective of building up a better future for

the girl child.

iv. National Policy for the Empowerment of Women, 2001

The Department of Women & Child Development in the Ministry of

Human Resource Development has prepared a “National Policy for the

Empowerment of Women” in the year 2001. The goal of this policy is to

bring about the advancement, development and empowerment of

women.

1 Def:The apex national level organization of India with the mandate of protecting and promoting the interests of

women. 2 The Women’s Reservation Bill [The Constitution (108th Amendment) Bill] is one of the longest pending legislations in

the Indian Parliament, It was first introduced in 1996, and has remained enmeshed in controversy ever since. The Bill seeks to reserve 33.33 per cent seats in the Lok Sabha or the Lower House of Indian Parliament and in the State Legislative Assemblies for women, on the lines of the 73rd and 74th Constitutional Amendments which reserved the same percentage of seats for women in rural and urban local bodies respectively. Though it has been introduced in Parliament several times since then, the Bill could not be passed because of lack of political consensus.

Page 194: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

182

3.4 PROTECTION OF WOMEN FROM DOMESTIC

VIOLENCE ACT 2005:

The Protection of Women from Domestic Violence Act 2005 was

brought into force by the Indian government from October 26, 2006. The

Act was passed by the Parliament in August 2005 and assented to by the

President on 13 September 2005. As of November 2007, it has been

ratified by four of twenty-eight state governments in India; namely

Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Odisha. Of about 8,000

criminal cases registered all over India under this act, Rajasthan had

3440 cases; Kerala had 1,028 cases, while Punjab had 172 cases

registered1.

The Protection of Women from Domestic Violence Act 2005 differs

from the earlier law, Section 498A of the Indian Penal Code, in that it

explicitly defines domestic violence in addition to dowry-related

cruelty2. Domestic violence is defined as follows:

For the purposes of this Act, any conduct of the respondent shall

constitute domestic violence if he,—

i. Habitually assaults or makes the life of the aggrieved person

miserable by cruelty of conduct even if such conduct does not

amount to physical ill-treatment3; or

ii. Forces the aggrieved person to lead an immoral life; or

iii. Otherwise injures or harms the aggrieved person.

1 Ref : Dewan, Anjali. "Proceeding of Strategising Gender Mainstreaming Workshop held on 6th March, 2013 at H.P.

Institute Of Public Administration (HIPA), Fairlawn (Shimla)". Himachal Pradesh Institute of Public Administration. p. 5. Retrieved 4 October 2013. 2 Ref: Datta, Damayanti (4 December 2006). "The new laws of marriage". India Today. Retrieved 29 March 2013.

3 Ref : Sandhu, Veenu (5 November 2006). "Men running scared now". Hindustan Times. Retrieved 4 October 2013.

Page 195: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

183

Nothing contained in clause (c) of sub-section (1) shall amount to

domestic violence if the pursuit of course of conduct by the respondent

was reasonable for his own protection or for the protection of his or

another's property.

Primarily meant to provide protection to the wife or female live-in

partner from domestic violence at the hands of the husband or male live-

in partner or his relatives, the law also extends its protection to women

living in a household such as sisters, widows or mothers. Domestic

violence under the act includes actual abuse or the threat of abuse

whether physical, sexual, verbal, emotional or economic. Harassment by

way of unlawful dowry demands to the woman or her relatives would

also be covered under this definition1.

The salient features of the Protection from Domestic Violence Act, 2005

are as follows:

The Act seeks to cover those women who are or have been in a

relationship with the abuser where both parties have lived together in a

shared household and are related by consanguinity, marriage or a

relationship in the nature of marriage, or adoption; in addition

relationship with family members living together as a joint family are

also included. Even those women who are sisters, widows, mothers,

single women, or living with the abuser are entitled to get legal

protection under the proposed Act.

"Domestic violence" includes actual abuse or the threat of abuse that is

physical, sexual, verbal, emotional and economic. Harassment by way of

unlawful dowry demands to the woman or her relatives would also be

covered under this definition. 1 Ref : Speech of the Hon'ble President of India, at the National Conference of Lady Lawyers and Lady Teachers, at

Yavatmal". Press Information Bureau, Government of India. Retrieved 4 October 2013.

Page 196: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

184

One of the most important features of the Act is the woman’s right to

secure housing. The Act provides for the woman’s right to reside in the

matrimonial or shared household, whether or not she has any title or

rights in the household. This right is secured by a residence order, which

is passed by a court. These residence orders cannot be passed against

anyone who is a woman.

The other relief envisaged under the Act is that of the power of the court

to pass protection orders that prevent the abuser from aiding or

committing an act of domestic violence or any other specified act,

entering a workplace or any other place frequented by the abused,

attempting to communicate with the abused, isolating any assets used by

both the parties and causing violence to the abused, her relatives and

others who provide her assistance from the domestic violence.

The draft Act provides for appointment of Protection Officers and NGOs

to provide assistance to the woman w.r.t medical examination, legal aid,

safe shelter, etc.

The Act provides for breach of protection order or interim protection

order by the respondent as a cognizable and non-bailable offence

punishable with imprisonment for a term which may extend to one year

or with fine which may extend to twenty thousand rupees or with both.

Similarly, non-compliance or discharge of duties by the Protection

Officer is also sought to be made an offence under the Act with similar

punishment.1

1 Ref : Adams, Adrienne; Sullivan, Bybee, Greeson (May 2008). "Development of the Scale of Economic Abuse".

Violence Against Women 14 (5): 563–588.

Page 197: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

185

While "economic abuse1" includes deprivation of all or any economic or

financial resources to which the victim is entitled under any law or

custom whether payable under an order of a Court or otherwise or which

the victim requires out of necessity including, but not limited to,

household necessities for the aggrieved person and her children, if any,

stridhan2, property, jointly or separately owned by her, payment of rental

related to the shared household and maintenance and disposal of

household effects, any alienation of assets whether movable or

immovable, valuables, shares, securities, bonds and the like or other

property in which the victim has an interest or is entitled to use by virtue

of the domestic relationship or which may be reasonably required by the

victim or her children or her stridhan or any other property jointly or

separately held by the victim and prohibition or restriction to continued

access to resources or facilities which the victim is entitled to use or

enjoy by virtue of the domestic relationship including access to the

shared household, "physical abuse" means any act or conduct which is of

such a nature as to cause bodily pain, harm or danger to life, limb, or

health or impair the health or development of the victim and includes

assault, criminal intimidation and criminal force.

Men's organizations such as the Save Indian Family Foundation have

opposed the law, arguing that it might be misused by women during

disputes.

Renuka Chowdhury, the Indian Minister for Women and Child

Development, agreed in a Hindustan Times article that "an equal gender

1 Def : Economic abuse is a form of abuse when one intimate partner has control over the other partner's access to

economic resources,which diminishes the victim's capacity to support him/herself and forces him/her to depend on the perpetrator financially. 2 Def : tridhan is a traditional practice that was primarily meant to provide women with some level of economic

security in adverse situations like divorce, widowhood, etc.

Page 198: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

186

law would be ideal. But there is simply too much physical evidence to

prove that it is mainly the woman who suffers at the hands of man".

Former Attorney General of India Soli Sorabjee1 has also criticized the

broad definition of verbal abuse in the act. According to the ex-president

of India, Pratibha Devisingh Patil, and “Another disquieting trend has

been that women themselves have not been innocent of abusing women.

At times women have played an unsavoury, catalytic role in perpetrating

violence whether against the daughter-in-law, the mother-in-law or

female domestic helps. Instances exist whereby protective legal

provisions for the benefit of women have been subjected to distortion

and misuse to wreak petty vengeance and to settle scores. Some surveys

have concluded that 6 to 10 percent of dowry complaints are false and

were registered primarily to settle scores. It is unfortunate if laws meant

to protect women get abused as instruments of oppression. The bottom-

line therefore, is the fair invocation of legal provisions and their

objective and honest implementation."

1 Soli Jehangir Sorabjee, AM is an Indian jurist and former Attorney-General of India. He has been honored with Padma

Vibhushan for his defense of the freedom of expression and the protection of human rights

Page 199: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

187

3.5 STATE LEGAL SERVICES IN INDIA:

Hon’ble Mr. Justice S.H. Kapadia, the Chief Justice of India is the

Patron-in-Chief and Hon’ble Mr. Justice Altamas Kabir, Judge, Supreme

Court of India is the Executive Chairperson of the Authority. NALSA1 is

housed at 12/11, Jam Nagar House, New Delhi-110011.

In every State, State Legal Services Authority has been constituted to

give effect to the policies and directions of the NALSA and to give free

legal services to the people and conduct Lok Adalats2 in the State. The

State Legal Services Authority is headed by Hon’ble the Chief Justice of

the respective High Court who is the Patron-in-Chief of the State Legal

Services Authority.

In every District, District Legal Services Authority has been constituted

to implement Legal Services Programmes in the District. The District

Legal Services Authority is situated in the District Courts Complex in

every District and chaired by the District Judge of the respective district.

1 The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to

provide free Legal Services to the weaker sections of the society and to organize Lok Adalats for amicable settlement of disputes. 2 Lok Adalat is a system of alternative dispute resolution developed in India. It roughly means "People's court". India

has had a long history of resolving disputes through the mediation of village elders. The system of Lok Adalats is an improvement and is based on the principles of Mahatma Gandhi. Lok Adalat is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee. They are held periodically for exercising such jurisdiction as they determine. These are usually presided over by retired judges, social activists, or other members of the legal profession. The Lok Adalats can deal with all Civil Cases, Matrimonial Disputes, Land Disputes, Partition/Property Disputes, Labour Disputes etc., and compoundable criminal Cases. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is an enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 because it is a judgement by consent. All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court. It is also important that decision should be justifiable.

Page 200: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

188

3.6 WOMEN-SPECIFIC LEGISLATIONS1

1. The Immoral Traffic (Prevention) Act, 1956 2

2. The Dowry Prohibition Act, 1961 3(28 of 1961)

(Amended in 1986)

3. The Indecent Representation of Women (Prohibition) Act, 19864

4. The Commission of Sati (Prevention) Act, 1987 5 (3 of 1988)

5. Protection of Women from Domestic Violence Act, 2005 6

6. The Sexual Harassment of Women at Workplace

(PREVENTION, PROHIBITION and REDRESSAL) Act, 2013

1 Laws related to Women in India, ref. National commission for women in India.

2 The Immoral Traffic (Prevention) Act or PITA is a 1986 amendment of legislation passed in 1956 as a result of the

signing by India of the United Nations' declaration in 1950 in New York on the suppression of trafficking. The act, then called the All India Suppression of Immoral Traffic Act (SITA), was amended to the current law. The laws were intended as a means of limiting and eventually abolishing prostitution in India by gradually criminalising various aspects of sex work. 3 Introduced and taken up by then Indlaw minister Ashoke Kumar Sen, this Act prohibits the request, payment or

acceptance of a dowry, "as consideration for the marriage", where "dowry" is defined as a gift demanded or given as a precondition for a marriage. Gifts given without a precondition are not considered dowry, and are legal. Asking or giving of dowry can be punished by an imprisonment of up to six months, a fine of up to Rs. 15000 or the amount of dowry (whichever is higher), or imprisonment up to 5 years. It replaced several pieces of anti-dowry legislation that had been enacted by various Indian states. 4 The Indecent Representation of Women (Prohibition) Act was passed by Indian parliament in 1986. This prohibits

indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner. In January 2013, three Punjabi singers, Jazzy B, Yo Yo Honey Singh and Daljit Dosanjh were arrested in India under this act for indecent representation of women through their songs 5 Sati (Prevention) Act, 1987 is law enacted by Government of Rajasthan in 1987. It became a federal legislation with

the enactment of The Commission of Sati (Prevention) Act, 1987 by Government of India in 1988. The Act seeks to prevent Sati practice or the voluntary or forced burning or burying alive of widows, and to prohibit glorification of this action through the observance of any ceremony, the participation in any procession, the creation of a financial trust, the construction of a temple, or any actions to commemorate or honor the memory of a widow who committed sati. Sati was first banned under Bengal Sati Regulation, 1829. 6 The Protection of Women from Domestic Violence Act 2005 was brought into force by the Indian government from

October 26, 2006. The Act was passed by the Parliament in August 2005 and assented to by the President on 13 September 2005. As of November 2007, it has been ratified by four of twenty-eight state governments in India; namely Andhra Pradesh, Tamil Nadu, Uttar Pradesh and Odisha. Of about 8,000 criminal cases registered all over India under this act, Rajasthan had 3440 cases, Kerala had 1,028 cases, while Punjab had 172 cases registered

Page 201: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

189

3.7 WOMEN-RELATED LEGISLATIONS

1. The Indian Penal Code,1860 1

2. The Indian Evidence Act, 1872

3. The Indian Christian Marriage Act, 1872 (15 of 1872)

4. The Married Women’s Property Act, 1874 (3 of 1874)

5. The Guardians and Wards Act,1890

6. The Workmen’s Compensation Act, 1923

7. The Trade Unions Act 1926

8. The Child Marriage Restraint Act, 1929 (19 of 1929)

9. The Payments of Wages Act, 1936

10. The Payments of Wages (Procedure) Act, 1937

11. The Muslim Personal Law (Shariat) Application Act, 1937

12. Employers Liabilities Act 1938

13. The Minimum Wages Act, 1948

14. The Employees’ State Insurance Act,1948

15. The Factories Act, 1948

16. The Minimum Wages Act, 1950

1 Indian Penal Code (IPC, Hindi: ) is the main criminal code of India. It is a comprehensive code, intended to cover all

substantive aspects of criminal law. It was drafted in 1860 and came into force in British India during the early British Raj period in 1862. However, it did not apply automatically in the Princely states, which had their own courts and legal systems until the 1940s. The Code has since been amended several times and is now supplemented by other criminal provisions. In the state of Jammu and Kashmir, the IPC is known as Ranbir Penal Code (RPC). After the departure of the British, the Indian Penal Code was inherited by Pakistan as well, much of which was formerly part of British India, and there it is now called the Pakistan Penal Code. Even after the independence of Bangladesh from Pakistan, it continued in force there. It was also adopted by the British colonial authorities in Burma, Ceylon (now Sri Lanka), the Straits Settlements (now part of Malaysia), Singapore and Brunei, and remains the basis of the criminal codes in those countries.

Page 202: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

190

17. The Plantation Labour Act, 1951 (amended by Acts Nos. 42 of

1953, 34 of 1960, 53 of1961, 58 of 1981and 61 of 1986)

18. The Cinematograph Act, 1952

19. The Mines Act 1952

20. The Special Marriage Act, 1954

21. The Protection of Civil Rights Act 1955

22. The Hindu Marriage Act, 1955 (28 of 1989)

23. The Hindu Adoptions & Maintenance Act, 1956

24. The Hindu Minority & Guardianship Act, 1956

25. The Hindu Succession Act, 1956

26. The Maternity Benefit Act, 1961 (53 of 1961)

27. The Beedi & Cigar Workers (Conditions of Employment) Act,

1966

28. The Foreign Marriage Act, 1969 (33 of 1969)

29. The Indian Divorce Act, 1969 (4 of 1969)

30. The Contract Labour (Regulation & Abolition) Act, 1970

31. The Medical Termination of Pregnancy Act, 1971 (34 of 1971)

32. Code of Criminal Procedure, 1973

33. The Equal Remuneration Act, 1976

34. The Bonded Labour System (Abolition) Act, 1979

35. The Inter-State Migrant Workmen (Regulation of Employment

and Conditions of Service) Act, 1979

Page 203: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

191

36. The Family Courts Act, 1984

37. The Muslim women Protection of Rights on Dowry Act 1986

38. Mental Health Act, 1987

39. National Commission for Women Act, 1990 (20 of 1990)

40. The Protection of Human Rights Act, 1993 [As amended by the

Protection of Human Rights (Amendment) Act, 2006–No. 43 of

2006]

41. Juvenile Justice Act, 2000

42. The Child Labour (Prohibition & Regulation) Act

43. The Pre-Natal Diagnostic Techniques (Regulation and

Prevention of misuse) Act 1994

Page 204: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

192

3.8 THE IMMORAL TRAFFIC (PREVENTION) ACT, 19561:

The Immoral Traffic (Prevention) Act or PITA is a 1986 amendment of

legislation passed in 1956 as a result of the signing by India of the

United Nations' declaration in 1950 in New York on the suppression of

trafficking. The act, then called the All India Suppression of Immoral

Traffic Act (SITA), was amended to the current law. The laws were

intended as a means of limiting and eventually abolishing prostitution in

India by gradually criminalising various aspects of sex work.

The main points of the Act are as follows:

1. Sex Workers: A prostitute who seduces or solicits shall be

prosecuted. Similarly, call girls cannot publish phone numbers to

the public. (imprisonment up to 6 months with fine, point 8)

Sex worker also punished for prostitution near any public place

or notified area. (Imprisonment of up to 3 months with fine, point

7)

2. Clients: A client is guilty of consorting with prostitutes and can

be charged if he engages in sex acts with a sex worker within 200

yards of a public place or "notified area". (Imprisonment of up to

3 months, point 7) The client may also be punished if the sex

1 NOTES : This Brief has been developed on the basis of the Immoral Traffic (Prevention) Amendment Bill, 2006

introduced in Lok Sabha on May 22, 2006. The Bill has been referred to the Parliamentary Standing Committee on Human Resource Development (Chairperson: Shri Janardan Dwivedi) which is scheduled to submit its report within three months. The Suppression of Immoral Traffic in Women and Girls Act, 1956 was renamed as the Immoral Traffic (Prevention) Act in 1986. The Act was amended to cover all persons, male or female, who are exploited sexually for commercial purposes. Fact Sheet on Prostitution and Trafficking in Human Being, April 2005, Ministry of Industry, Employment and Communications, Government of Sweden (see http://www.sweden.gov.se/content/1/c6/01/87/74/6bc6c972.pdf). Petra Ostergen, (2004), "Sexworkers Critique of Swedish Prostitution Policy," (see http://www.petraostergren.com/content/view/44/38).

Page 205: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

193

worker is below 18 years of age. (From 7 to 10 years of

imprisonment, whether with a child or a minor, point 7)

3. Pimps and Babus: Babus or pimps or live-in lovers who live off a

prostitute's earnings are guilty of a crime. Any adult male living

with a prostitute is assumed to be guilty unless he can prove

otherwise. (Imprisonment of up to 2 years with fine, point 4)

4. Brothel: Landlords and brothel-keepers can be prosecuted,

maintaining a brothel is illegal. (From 1 to 3 years imprisonment

with fine for first offence, point 3) Detaining someone at a

brothel for the purpose of sexual exploitation can lead to

prosecution. (Imprisonment of more than 7 years, point 6)

5. Procuring and trafficking: A person procures or attempts to

procure anybody are liable to be punished. Also a person who

moves a person from one place to another, (human trafficking),

can be prosecuted similarly. (From 3 to 7 years imprisonment

with fine, point 5)

6. Rescued Women: The government is legally obligated to provide

rescue and rehabilitation in a "protective home" for any sex

worker requesting assistance. (Point 21)

Public place in context of this law includes places of public religious

worship, educational institutions, hostels, hospitals etc.1 A "notified

1 Notes : On December 12, 2002, India became a signatory to the UN Convention against Transnational Organised

Crime, which includes the Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children (see Protocol at http://www.ohchr.org/english/law/pdf/protocoltraffic.pdf). The existing legal framework to combat trafficking includes the following. The Indian Penal Code, 1860: Sections 363, 363A, 366A, 366B, 367, 368, 370, 371, 372, 373, 374. These sections deal with kidnapping (including for begging, for marriage, and for procuring minor girl for illicit intercourse), slavery, buying and selling minors for prostitution, and unlawful compulsory labour.

Page 206: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

194

area" is a place which is declared to be "prostitution-free" by the state

government under the PITA. Brothel in context of this law is a place

which has two or more sex workers (2a). Prostitution itself is not an

offence under this law, but soliciting, brothels, madams and pimps are

illegal.

The Child Labour (Prohibition and Regulation) Act, 1986; The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act 1979; The Bonded Labour System (Abolition) Act, 1976; The Contract Labour (Regulation and Abolition) Act, 1970; The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. In 2003, over 600 sex workers in Chakla Bazar, Surat, were forcibly evicted from their homes by the police. Report of National Commission of Women - See more at: http://www.indiatogether.org/2006/oct/law-immoral.htm#sthash.JrUt4Rzf.dpuf

Page 207: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

195

3.9 THE DOWRY PROHIBITION ACT, 1961 1

The dowry prohibition act 1961 was enacted by Parliament in India on

20/05/1961 in whole country except Jammu & Kashmir. As per this act

giving and taking of dowry is prohibited.

The dowry is known as the property or any property that can be valued is

given (directly or indirectly) OR agreed to be given during the marriage

by one party to other party OR by one person to other person. This does

not include Dower or Mahr in the case of persons to whom the Muslim

Personal Law (Shariat) applies. This is applicable at or before or any

time after the marriage.

After the enactment of this law, dowry giver and receiver both will be

punished for imprisonment that will not be less than 5 years and a fine of

Rs 15,000/- or equal to the amount of such dowry whichever is more.

However, if court finds that imprisonment for the period less than 5

years is justified in special circumstances then same can be considered.

However, if presents given to the bride and bridegroom during the

marriage are excluded from the above dowry condition provided list of

the same is prepared as it is mentioned in the Dowry Act 1961.

As per this act, there is penalty for demanding dowry from the parents or

their relatives or guardian of bride or bridegroom. The penalty in such

case may be for imprisonment from 6 months to 2 years and fine of upto

Rs 10,000/- is applicable. However, in special circumstances, courts may

1 Def : The payment of a dowry gift, often financial, has a long history in many parts of the world. In India, the

payment of a dowry was prohibited in 1961 under Indian civil law and subsequently by Sections 304B and 498A of the Indian Penal Code. These laws were enacted to make it easier for the wife to seek redress from harassment by the husband's family. Anti-dowry laws have been criticized by men's rights groups, who accuse women and their families of misusing the laws. In India, there are civil laws, criminal laws and special legislative acts against the tradition of dowry. Someone accused of taking dowry is therefore subject to a multiplicity of legal processes.

Page 208: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

196

reduce the imprisonment below 6 months also. This is Section 4 of the

Dowry Act.1

As per the Dowry Act, the advertisement by either party for demanding

dowry in print media, electronic media or any other media is prohibited.

This is Section 4 A.2

1 Ref: Amend dowry law to stop its misuse, SC tells govt". The Times Of India. 17 August 2010.

2 Ref : Misuse forces a review of dowry law". Hindustan Times. 2011-02-28. Retrieved 2013-02-18.

Page 209: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

197

3.10 OTHER PROVISIONS :

If any agreement has been made between the two parties then that shall

be void and will not be applicable.

Every offence under this Act shall be non-cognizable, bailable and non-

compoundable. Thus a person/party found guilty shall have right to get

bail.

If dowry is received by a other person, who is not related to married

women, then that dowry should be handed over to the women (or her

heirs) within one to marriage if it was received before marriage. If dowry

was received during or after marriage then it should transferred within

one year to such receipt. If the dowry was received when the woman was

a minor then this should be transferred within one year after she has

attained the age of eighteen years.

This is Section 6 (1) If a person fails to transfer such property in

prescribed time limit, as stated in above para, then he shall be punishable

upto the period of six months or fine of Rs 5000/- Or both. But he has to

return such property even in case of punishment/fine.

This is section 6 (2) If a women, dies before receiving above mentioned

property then her heirs are entitled in the same way as she was within

time limit specified.

This is section 6 (3) State government may appoint as many Dowry

Prohibition Officers as it thinks fit for implementation of Dowry Act.

The jurisdiction of each such officer may be defined and power to be

exercised as the act. Such officer shall ensure complete implementation

of this act in true sense. Officers may collect evidences in case of

committing offense.

Page 210: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

198

The Central Government as well as State Government may, by

notification in the official Gazette, make rules for carrying out the

purposes of this Act. But both have separate powers to for making these

rules.

Page 211: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

199

3.11 THE INDECENT REPRESENTATION OF WOMEN

(PROHIBITION) ACT, 19861:

The Act punishes the indecent representation of Women , which means

“the depiction in any manner of the figure of a woman; her form or body

or any part thereof in such way as to have the effect of being indecent, or

derogatory to, or denigrating women, or is likely to deprave, corrupt or

injure the public morality or morals. It states that no person shall publish

or cause to publish or cause to be published or arrange to take part in the

publication or exhibition of any advertisement which contains indecent

representation of women in any form. 'In the Act, advertisement'

includes any notice, circular, label, wrapper or other document and also

includes any visible representation made by means of any light, sound,

smoke or gas.

The Amendment suggested by the National Commission for Women

suggests to amend the definition to “advertisement' includes any notice,

circular, label, poster, wrapper or other document and also includes any

visible representation made by means of any laser light, sound, smoke,

gas, fibre, optic electronic or other media” It states that no person shall

produce or cause to be produced, sell, let to hire, distribute, circulate or

send by post any book, pamphlet, paper, slide, film, writing, drawing,

painting, photograph, representation or figure which contains indecent

representation of women in any. The Commission has also suggested the

addition of the word “Derogatory2” along with “indecent”.

3

1 Ref : The Indecent Representation of Women (Prohibition) Act was passed by Indian parliament in 1986. This

prohibits indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner.In January 2013, three Punjabi singers, Jazzy B, Yo Yo Honey Singh and Daljit Dosanjh were arrested in India under this act for indecent representation of women through their songs 2 Def : Showing a critical or disrespectful attitude.

3 Ref : http://wcd.nic.in/irwp.htm

Page 212: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

200

In Section 6 on Penalty, the words 'and with fine which may extend to

two thousand rupees' shall be substituted with the words 'and with fine

which may extend to ten thousand rupees' and the words 'in the event of

a second or subsequent conviction with imprisonment for a term of not

less than six months but which may extend to five years and also with a

fine not less than ten thousand rupees but which may extend to one lakh

rupees' shall be substituted with the words 'in the event of second or

subsequent conviction with imprisonment for a term of not less than six

months but which may extend to five years and also with a fine not less

than fifty thousand rupees but which may extend to five lakh rupees'.

In the Kamasutra Advertisement, Milind Soman and Madhu Sapre too

had faced similar mix of charges. Similar charges were raised against the

Editor of Anandabazar Patrika, Aveek Sarkar, and the Publisher in a trial

court in Kolkata relating to the reproduction of a nude photograph of

former tennis player Boris Becker and his fiancée in Sportsworld

magazine, published by the group in May 1993. According to the

National Crime Records Bureau claims a decrease of cases of Indecent

Representation of women -decreased by 46.5% (from 2,917 in 2005 to

1,562 in 2006). While it is Andhra Pradesh that has recorded 86.2

percent of cases at in the National level under the Act.In April 2006, a

Madurai court issued non-bailable warrants against Sen and Shilpa

Shetty for "posing in an obscene manner" in photographs published by a

Tamil newspaper. The report stated that the two actresses had failed to

comply with earlier summonses for the same reason, hence the issuance

of the warrants. The petitioner submitted that the paper had published

"very sexy blow-ups and medium blow-ups1" in its issues December

1 Ref : In April 2006, a Madurai court issued non-bailable warrants against Sen and Shilpa Shetty for "posing in an

obscene manner" in photographs published by the Tamil newspaper Dinakaran, owned by Sun Group.

Page 213: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

201

2005 and January 2006 issues, and which allegedly violated the Indecent

Representation of Women (Prohibition) Act 1986, Young Persons

(Harmful Publications) Act 1956, and the Indian Penal Code Section 292

(Sale of Obscene Books). The petitioner further demanded that the

images should be confiscated under the terms of the Press and

Registration of Book Act 1867.

3.12 THE COMMISSION OF SATI (PREVENTION) ACT,

1987 (3 OF 1988):1

Maja Daruwala traces the history of sati legislation in India and analyses

the Central Sati Prevention Act in this context.

Four months after the Roop Kanwar incident at Deorala, the focus of

attention shifted to the need for central legislation to stamp out the

oppressive practice of Sati. Two rallies in Delhi, Rajasthan women

activists, MP's in the State and at the Centre all called for stringent

legislation against Sati. By 1 October, the Rajasthan Legislature had

already promulgated an ordinance against Sati which is now a State Act

passed by assembly and upheld by the Rajasthan High Court. By the

New Year, the Commission of Sati (Prevention), Act had passed through

both houses with a minimum of debate or amendment.

The report stated that the two actresses had failed to comply with earlier summons for the same reason, hence the issuance of the warrants. The petitioner submitted that the paper had published "very sexy blow-ups and medium blow-ups" in its December 2005 and January 2006 issues, and which allegedly violated the Indecent Representation of Women (Prohibition) Act 1986, Young Persons (Harmful Publications) Act 1956, and the Indian Penal Code Section 292 (Sale of Obscene Books). The petitioner further demanded that the images should be confiscated under the terms of the Press and Registration of Book Act 1867. In January 2007 outgoing Chief Justice Y.K. Sabharwal confirmed that Sen had written to him in order to enunciate guidelines against frivolous lawsuits against artists, but refused her plea on the grounds that she should have filed a formal petition instead of writing a letter 1 Ref : Sati (Prevention) Act, 1987 is law enacted by Government of Rajasthan in 1987. It became a federal legislation

with the enactment of The Commission of Sati (Prevention) Act, 1987 by Government of India in 1988. The Act seeks to prevent Sati practice or the voluntary or forced burning or burying alive of widows, and to prohibit glorification of this action through the observance of any ceremony, the participation in any procession, the creation of a financial trust, the construction of a temple, or any actions to commemorate or honor the memory of a widow who committed sati. Sati was first banned under Bengal Sati Regulation, 1829.

Page 214: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

202

The particular barbarism of consigning a vibrant life to the flames of a

funeral pyre has always provoked the rulers of India to prevent this

horror, despite the spurious sanctity that has come to be attached to the

practice.

Historically, efforts to prevent Sati by formal means were extent even

before the Moghul rulers came to power. Under the Delhi Sultanates

(circa 1325) permission had to be sought prior to any Sati. In time this

check against compulsion became a mere formality. In any case Hindu

women from royal families continued to burn unchecked. Humayun

tried, but withdrew a royal fiat against Sati. Akbar insisted that no

woman could commit Sati without the specific permission of his

Kotwals.

They were instructed to delay the woman's decision for as long as

possible. Pensions, gifts and rehabilitative help were offered to the

potential Sati to wean her away from committing the Act. Children were

strictly forbidden from the practice. The later Moghuls continued to put

obstacles in the way but the practice carried on in the areas outside Agra.

In their own sphere of influence the Portuguese, Dutch and French

banned Sati but efforts to stamp out Sati were formalised only under

Lord William Bentinck 1after 1829.

British Regulation

The British were by no means certain of their approach to the custom no

matter how abhorrent they found it. Following Moghul example, for a

while they tried to regulate it by requiring that it be carried out in the

presence of their officials and strictly according to custom.

1 Ref : Lieutenant-General Lord William Henry Cavendish-Bentinck, GCB, GCH, PC (14 September 1774 – 17 June 1839),

known as Lord William Bentinck, was a British soldier and statesman. He served as Governor-General of India from 1828 to 1835.

Page 215: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

203

Perhaps Bentinck was spurred on to Legislation by the unacceptable rise

in Satis in his province, Bengal. In the 10 years between 1815 and 1825,

the figure had doubled to 639 deaths by burning. He was certainly egged

on by the constant entreaties of the missionaries and encouraged to

action by the sea change being wrought amongst an influential section of

Hindus led by Raja Ram Mohan Roy's Brahmo Samaj.

Despite this, Bentinck approached the question with caution. He sent

circulars to 58 of his administrators to discover whether the army would

revolt, whether legislation was advisable and whether Hindu resistance

could be contained. The consensus of opinion was that the army would

pose no problem.

Finally, within 18 months of having assumed the governorship of

Bengal, Lord William Bentinck passed the Sati Regulation, XVII of

1827 on 4 December. The regulation was clear, concise and unequivocal

in its condemnation of Sati, declaring it illegal and punishable by the

criminal courts. It made zamindars, petty land owners, local agents and

officers in charge of revenue collection especially accountable for

immediate communication to the officers of their nearest police station

of any intended sacrifice of the nature described. In case of willful

neglect the responsible officer was liable to a fine of Rs.200 or 6 months

in jail for default.

Immediately on receiving intelligence that a sacrifice was to take place,

the police daroga accompanied by others was to go to the spot and

declare the gathering illegal, prevail upon the crowd to disperse, explain

that any persistence was likely to make them all liable to a crime and if

necessary prevent the Sati from taking place or go and inform the nearest

magistrate of the names and addresses of all those present. If the

Page 216: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

204

sacrifice was over, a full and immediate inquiry had to be undertaken in

the same way as for any unnatural death.

Most significantly the regulation eschewed any debate about

voluntariness which has so much in the forefront of the Sati debate in

1987. Aiding and abetting a sacrifice whether voluntary or not was to

deemed culpable homicide. Punishment was at the discretion of the court

according to the nature and circumstances of the case. No justification

was to be made that the victim desired to sacrifice. The death penalty

was specially spelled out for any violence or compulsion or helping or

assisting in burning of a widow while she laboured under a state of

intoxication or stupefaction or because any other cause impeded her free

will. In such cases the court was instructed to show no mercy.

3.13 FUNDAMENTAL OPPOSITION

Even before the regulation was out, some three hundred orthodox Hindus

petitioned Lord Bentinck to stop the abolition. They pleaded that the

practise of "self-immolation1", was not merely a sacred duty but a

"privilege" of believers. Bentinck 2however would not relent.

The sequence of events that followed are and eerie precursor to the

events after Roop Kanwars Sati in 1987. Orthodox Bengali Brahmins

formed themselves into the Dharma Sabha, just as today we have the

Dharam Raksha Samiti in Rajasthan. In all they collected more than

Rs.30,000/- a huge sum in those days, to fight the Regulation all the way

upto the highest court. By contrast Raja Ram Mohan Roy was given

1 Ref : Self-immolation refers to setting oneself on fire, often as a form of protest or for the purposes of martyrdom. It

has centuries-long traditions in some cultures, while in modern times it has become a type of radical political protest. Michael Biggs compiled a list of 533 "self-immolations" reported by Western media from the 1960s to 2002, though in this work his definition is generalized to any intentional suicide "on behalf of a collective cause. 2 Ref : Lieutenant-General Lord William Henry Cavendish-Bentinck, GCB, GCH, PC, known as Lord William Bentinck,

was a British soldier and statesman. He served as Governor-General of India from 1828 to 1835.

Page 217: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

205

Rs.5000/- to assist the Government in their representations before the

Privy Council in England. Both sides gathered petitions and

pamphleteered extensively.

In 1832 the appeal was heard by the Privy Council. The petitioners

argued that it went against the basic assurance given in George III

Statute 37 whereby the Hindus were assured complete non-interference

with their religion. The abolitionists argued that there was really no

freedom of religion that could go beyond what was "compatible with the

paramount claims of humanity and justice.1" Of 7 privy councillors,

three finally voted against Bentinck's regulation but finally it was

upheld.

With the last hurdle cleared, Madras and then Bombay followed suit

with their own legislation banning Sati. Slowly local rulers who came

under the yoke of the British also conceded legislation against Sati in

conformity with the British regulations. The rulers of Jaipur banned it in

1846.

1 Ref : Maja Daruwala (advocate practising in the Delhi High Court.) traces the history of sati legislation in India and

analyses the Central Sati Prevention Act in this context, Courtsy: The Lawyers January 1988

Page 218: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

206

3.14 INDIAN PENAL CODE

The 1833 Charter to the East India Company empowered the

government to make laws for British India with due respect for native

custom and usage. T.B. Macaulay, brilliant academician and lawyer was

given the brief of formulating a comprehensive criminal code of

universal application through the entire subcontinent. He had no doubt in

his mind that Sati was a barbarous practice which could brook no

justification. But the administration of 1860 and the Law

Commissioners, who revised the first draft, were unnecessarily alive to

the sensitivities of high caste brahmanical feeling and watered down the

murder provisions in their relation to Sati by enacting exception 5 of

section 300.

Under this, a mitigation was provided for murder when "the person

whose death is caused, being above the age of 18 years, suffers death or

takes the risk of death with his own consent." Despite this concession

under the IPC, taking of life is absolutely prohibited to everyone in every

circumstance. But Punishment varies depending on the nature and

circumstances of the offense.

If on the facts, the ritualistic public burning or burying alive of a woman

is shown to be involuntary, it is murder plain and simple (Section 300

IPC 1860). In the unlikely event that the woman was a willing

participant, her death still amounts to culpable homicide (Section 299 or

via exception 5 of Section 300) or at the very least to abetment to suicide

(Section 306). Even where a Sati is deemed to be a suicide i.e. voluntary

self-killing, the presence of any intoxicant or anything which in fact

inhibits free will makes the abettor as culpable as if he had helped

Page 219: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

207

murder the victim (section 305 IPC). The punishment for this is exactly

the same as for murder.

Where the Sati is incomplete, a person helping to achieve it is caught by

the attempt sections of the IPC. Depending again on the circumstances,

the crime may be attempt to murder (section 307); attempt to culpable

homicide not amounting to murder (Section 308); or abetment to suicide

punishable with one year's imprisonment and attempt to commit suicide

which is an offence for the woman as well.

Under the present IPC no one who abets a Sati should escape the

consequences of his acts. Abetment can take the form of instigation,

conspiracy to do an act or make an illegal omission, intentional aiding,

or wilful misrepresentation or wilful concealment (Section 107). Again

depending on the facts, the aider could be abetting murder, culpable

homicide. Form all the above it is clear that there are enough and more

laws on the statute books to punish those guilty of making any human

sacrifice including widow burning.

Fresh Sati Legislation

Despite this, the Central government has passed the Commission of Sati

Prevention Act of 1987. Women groups had been asked for suggestions.

Had the Central government taken time to consider and passed judicious

amendments to the present laws which are compatible and in consonance

with the general jurisprudence of the country, the anomalies that have

now arisen would not have come about.

While an entirely new act has the advantage of bringing under one,

enactment scattered offenses so as to form a ready code, it also fuels the

belief that there was no law against Sati in the first place. A special law

again Sati related offenders also has the disadvantage of elevating a run

Page 220: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

208

of the mill criminal to the status of a conscientious offender. Specific

legislation also provides a rallying point for pro-Sati lobbyists and a

readymade cause in the name of religion and identity. Though the High

Court at Rajasthan has already upheld the constitutionality of the State

legislation which the Central law copies, both acts undoubtedly suffer

from all the ills of hastily drafted and ill-considered legislation.

Burden of Proof

The least attractive feature of the new law is Section 16, which reverses

the burden of proof on to the accused. Under the philosophy or criminal

law adopted in India and used uniformly throughout the Penal Code,

each accused is innocent until proven guilty. In every case the

prosecution must prove its case positively beyond reasonable doubt. The

only argument for shifting the burden of proof sometimes put forward is

that the prosecution is so extremely disadvantaged in some

circumstances that there would be absolutely minimal chance of catching

the culprit. In statutory minimal chance of catching the culprit. In

statutory cases where burden of proof is shifted, the offenses are

relatively minor and the accused has a generally easy time proving his

innocence.

In the public, even tamasha atmosphere of a sati, witnesses are available;

independent, corroborative evidence is there for the authorities to gather

and there is no justification for reversing the burden of proof for a mere

abettor to sati when a brutal sadistic or psychotic murderer in any other

circumstances has the full protection of the law requiring the prosecution

to prove its case in each and every particular.

If the new law had been in the form of an amendment in the homicide

sections of the IPC, declaring that henceforth all Satis (or any ritual

Page 221: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

209

killings) shall be presumed to be as murder unless otherwise established

by the defense, the problem of women killers getting off lightly for

merely abetting to suicide would have been solved.

The woman herself in this case would have always been the victim. But

under the new act a woman who attempts Sati is herself liable to

punishment for 6 months jail.

Abetting Sati

Without the principal there can be no abettor so the new act in its

muddled way has to treat the woman as an offender in order to catch all

those who take part in the commission of a Sati.

Justice requires that the punishment fit the crime. The Penal Code while

absolutely forbidding all killing carefully differentiates between degrees

of moral opprobrium society attaches to a crime. This is reflected in the

punishments handed out for different types of killing.

The new Sati Act throws these fine and necessary distinctions to the

winds.

Section 4 first of all obfuscates the difference between abetment to a

crime and the principle offender. It lumps together all sorts into a single

section entitled 'Abatement of Sati'. It punishes both the person who

actually prevents or obstructs a widow from saving herself from being

burnt or buried alive in the same measure as a person who participates

"in any procession in connection with the commission of Sati".

Yet the degree of guilt is totally varied. In fact the man who intoxicates a

woman or prevents her getting out of the fire is not an abettor at all but a

murderer and should be treated as such. The bystander may be deemed

an abettor and should be punished accordingly.

Page 222: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

210

It does not mean that an abettor to the attempt would go free. Abetment

to Sati 1can cover a wide variety of activities, such as standing around

shouting 'sati mata ki jai' and attending a ceremonial killing. The degree

of culpability should matter but under the new law the latter person is as

liable to the death sentence as the person who actually holds down the

widow and prevents her from escaping from the pyre.

The bystander at a Sati ceremony is now certainly more disadvantaged

than the gruesome murderer or his aide is under the ordinary law. In their

case at least the prosecution must prove the case beyond reasonable

doubt.

Under the Indian Penal Code what is worrisome is the willingness of the

authorities to treat cases of widow burning as suicide rather than murder

or culpable homicide, because by its very definition a classic Sati is self-

immolation. The result is that abettors are let off comparatively lightly

and escape the ignominy and moral opprobrium that attaches to these. Of

course a great deal depends on the willingness of the police to pursue

inquiries and lodge an appropriate FIR. Even in the Roop Kanwar case,

one cannot help but feel that but for the hue and cry raised, the matter

would not have been taken up and under the murder sections of the IPC.

1 Ref : (1) Notwithstanding anything contained in the Indian Penal Code, if any person commits sati, whoever abets the

commission of such sati, either directly or indirectly, shall be punishable with death or imprisonment for life and shall also be liable to fine. (2) If any person attempts to commit sati, whoever abets such attempt, either directly or indirectly, shall be punishable with imprisonment for life and shall also be liable to fine.

Page 223: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

211

Glorification

The new Sati Act forbids any glorification of sati, makes it punishable

with upto 7 years imprisonment and a possible fine of Rs.30,000/-

(Section 5). Glorification" in relation to the practice of Sati includes,

among other things, "the observance of any ceremony or the taking out

of a procession in connection with the Sati or the creation of a trust or

the collection of funds for the construction of the temple with a view to

perpetuating the honour of, or to preserve the memory of the person

committing Sati."

Under the IPC 'glorification' before an act of Sati could be dealt with

under the incitement to crime and violence sections. But 'glorification'

after an act of Sati is not covered.

In a democracy legislation has always to try to maintain the fine balance

between freedom of speech and its abuse. The naked opportunism seen

after the Deorala incident has undoubtedly provoked this part of the

legislation, as well as Section 19 which disqualifies people'

representative from elections if convicted under the Act. It also tries to

prevent unscrupulous candidates from using the Sati issue to make their

political fortunes. The danger of preventing the lunatic fringe from airing

their views lies in their ability to go underground with them and also

clouds the limits of democratic debate.

The commercialisation aspect of Sati has been directly dealt with. But

even today donation received by the perpetrators of a crime can be

confiscated under the general rule that no man may benefit from the fruit

of his crime. Donations at the Sati sthal are liable for confiscation if it is

thought they will be used for an illegal purpose, like building a temple

against the public policy. Such donations when they are in the hands of a

Page 224: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

212

committee can also be diverted away from their illegal purpose under

Section 92 of the Civil Procedure Code. This allows the court to direct

how trust monies may be used if the purpose for which they have been

collect fails for intervening illegality. At the behest of the Advocate-

general or any person interested, the money can be diverted for purposes

such as widow rehabilitation.

There is still room for more specific legislation to discourage the

commercial success of tamashas like Sati. An amendment to the Income

Tax Act removing exemption from charitable donations made to temples

which commemorate or have come up as a consequence of an ancient or

recent Sati, will at least discourage large donors. Specifically excluding

Sati temples from benefits given to charitable institutions will also

discourage them.

The tremendous attention and debate that a single events at Deorala

generated is evidence of the ability of the women’s movement to bring

about positive changes through sustained agitation. But even at the

height of lobbying for some kind of legislation it was never anyone’s

case that liberation for women from years of oppression could be

brought only through essentially illiberal legislation, by robbing others

of their legitimate rights. If the old law under the IPC were but enforced

no new jumbled legislation would be necessary.

Hopefully there will never be another Sati and the entire discussion here

will be academic. But recent experiences both of the lack of political will

to implement existing legislation and the determination of the Rajput’s to

defy the law suggest that whatever Central laws may be enacted, may

end up honoured more in the breach than in the letter.

Page 225: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

213

3.15 PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE

ACT, 2005:1

This year's monsoon session of Parliament was marked by the passage of

the Protection of Women from Domestic Violence Act 2005 hailed as

the first significant attempt to recognise domestic abuse as a punishable

offence, to extend its provisions to those in live-in relationships, and to

provide for emergency relief for the victims, in addition to legal

recourse. In perhaps the first case under the Act, the Tamil Nadu police

last week arrested a man following complaints of harassment from his

wife.2

What is this law all about? Will it prevent incidents of violence against

women? Sheela Bhatt demystifies the provisions of Protection of

Women from Domestic Violence Act 2005.

Why do we need a new law for domestic violence?

Of all forms of criminal behaviour, domestic violence is among the most

prevalent and among the least reported.

One reason for this anomaly is that till 2005, remedies available to a

victim of domestic violence in the civil courts (divorce) and criminal

courts (vide Section 498A of the Indian Penal Code) were limited. There

was no emergency relief available to the victim; the remedies that were

available were linked to matrimonial proceedings; and the court

proceedings were always protracted, during which period the victim was

invariably at the mercy of the abuser.

And, relationships outside marriage were not recognised.

1 Ref : Dewan, Anjali. "Proceeding of Strategising Gender Mainstreaming Workshop held on 6th March, 2013 at H.P.

Institute Of Public Administration (HIPA), Fairlawn (Shimla)". Himachal Pradesh Institute of Public Administration. p. 5. Retrieved 4 October 2013. 2 Ref : Datta, Damayanti (4 December 2006). "The new laws of marriage". India Today. Retrieved 29 March 2013.

Page 226: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

214

This set of circumstances ensured that a majority of women preferred to

suffer in silence. It is essentially to address these anomalies that the

Protection of Women From Domestic Violence Act 2005 was passed.

Who are the primary beneficiaries of this Act?

Women and children. Section 2(a) of the Act will help any woman who

is or has been in a domestic relationship with the 'respondent' in the case.

It empowers women to file a case against a person with whom she is

having a 'domestic relationship' in a 'shared household', and who has

subjected her to 'domestic violence'.1

Children are also covered the act; they too can file a case against a parent

or parents who are tormenting or torturing them, physically, mentally, or

economically. Any person can file a complaint on behalf of a child.

Who is defined as 'respondent' by this law?

Section 2 (q) says that any adult male member who has been in a

domestic relationship with the aggrieved person is the 'respondent'. The

respondent can also be a relative of the husband or male partner – thus, a

father-in-law, mother-in-law, or even siblings of the husband and other

relatives can be proceeded against.2

Do you have to be married to take recourse to this law?

Significantly, the law recognises live-in relationships. Thus, if a woman

is living with a man who abuses her, she can take recourse to the

provisions of this law even though she is not married to him.

1 Ref : orabjee, Soli (5 November 2006). "SUNDAY DEBATE: Is verbal abuse domestic violence? No". The Times of India.

Retrieved 4 October 2013. 2 Ref : Sandhu, Veenu (5 November 2006). "Men running scared now". Hindustan Times. Retrieved 4 October 2013.

Page 227: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

215

According to section 2(g), any relationship between two persons who

live, or have at any point of time lived together in the shared household,

is considered a 'domestic relationship'.

This includes relations of consanguinity, marriage, or through

relationships in the nature of marriage, adoption, or joint family – thus,

'domestic relationships' are not restricted to the marital context alone.

'Domestic relationships' also cover sisters, widows, mothers, daughters,

women in relationships of cohabitation, single women etc. Any widow

or unmarried sister or daughter who is harassed within the home can also

resort to the new law.

The law also protects women in fraudulent or bigamous marriages, or in

marriages deemed invalid in law.

How does the new law define domestic abuse?

Section 3 of the law says any act/conduct/omission/commission that

harms or injures or has the potential to harm or injure will be considered

'domestic violence'.

Under this, the law considers physical, sexual, emotional, verbal,

psychological, and economic abuse or threats of the same.

Even a single act of commission or omission may constitute domestic

violence -- in other words, women do not have to suffer a prolonged

period of abuse before taking recourse to the law.

The law says any definition of domestic violence must detail the fact that

it is a human rights violation. Further, the law details the different forms

of violence faced by women, and ensures that such interpretations are

not left solely to the discretion of the judges.

Page 228: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

216

How does the law define the various forms of abuse, to forestall such

individual interpretation?

Physical Abuse is defined as any act or conduct which is of such a nature

as to cause bodily pain, harm, or danger to life, limb, or health, or an act

that impairs the health or development of the person aggrieved, or that

includes assault, criminal intimidation and criminal force.

Sexual Abuse is any conduct of a sexual nature that abuses, humiliates,

degrades, or otherwise violates the dignity of the person. The law also

covers instances where a woman is forced to have sexual intercourse

with her husband against her will.

Verbal and Emotional Abuse has been defined as any insult, ridicule,

humiliation, name-calling and such acts. A woman who is insulted and

ridiculed for, say, not being able to conceive, or for not having produced

a male child, can now take recourse to this law. Any repeated threats to

cause physical pain to any person in whom the person aggrieved is

interested – in other words, if say the abuser were to threaten the

children, or relatives, of the aggrieved party – will also be covered under

this head.

Economic Abuse is a very forward-thinking, important part of this

definition. The deprivation of economic or financial resources to which

the aggrieved woman or child is entitled under law or custom, or which

the person aggrieved requires out of necessity, can be claimed under the

provisions of this law; withholding such resources now falls under the

category of economic abuse. This provision comes into play in instances

of marital disputes, where the husband tends to deprive the wife of

necessary money as a weapon. The law also sees a husband who sells off

his wife's jewellery and assets as being guilty of economic abuse.

Page 229: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

217

A husband, under this provision, cannot dispose of household effects,

cannot alienate her from her assets or any other property in which the

aggrieved person has an interest or entitlement by virtue of the domestic

relationship. A husband may not sell or use stridhan (dowry) and/or any

other property jointly or separately held by the wife.

How does the law ensure that a wife who takes legal recourse in the

event is not intimidated or harassed?

An important addition to the law ensures that an aggrieved wife, who

takes recourse to the law, cannot be harassed for doing so. Thus, if a

husband is accused of any of the above forms of violence, he cannot

during the pending disposal of the case prohibit/restrict the wife's

continued access to resources/ facilities to which she is entitled by virtue

of the domestic relationship, including access to the shared household. In

short, a husband cannot take away her jewellery or money, or throw her

out of the house while they are having a dispute.

What are the main rights of a woman as recognised by this law?

The law is so liberal and forward-looking that it recognises a woman's

right to reside in the shared household with her husband or a partner

even when a dispute is on thus; it legislates against husbands who throw

their wives out of the house when there is a dispute. Such an action by a

husband will now be deemed illegal, not merely unethical.

Even if she is a victim of domestic violence, she retains right to live in

'shared homes' – that is, a home or homes she shares with the abusive

partner. Section 17 of the law, which gives all married women or female

partners in a domestic relationship the right to reside in a home that is

known in legal terms as the shared household, applies whether or not she

has any right, title or beneficial interest in the same.

Page 230: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

218

The law provides that if an abused woman requires, she has to be

provided alternate accommodation – and in such situations, the

accommodation and her maintenance has to be paid for by her husband

or partner.

The law, significantly, recognises the need of the abused woman for

emergency relief, which will have to be provided by the husband. A

woman cannot be stopped from making a complaint/application alleging

domestic violence. She has the right to the services and assistance of the

Protection Officer and Service Providers, arranged under the provisions

of the law.

A woman who is the victim of domestic violence will have the right to

the services of the police, shelter homes and medical establishments. She

also has the right to simultaneously file her own complaint under Section

498A of the Indian Penal Code.

Sections 18-23 provide a large number of avenues for an abused woman

to get relief. She can get, through the courts, Protection Orders,

Residence Orders, Monetary Relief, Custody Order for her children,

Compensation Order and Interim/ Ex parte Orders.

If a husband violates any of the above rights of the aggrieved woman, it

will be deemed a punishable offence. Charges under Section 498A can

be framed by the magistrate, in addition to the charges under this Act.

Thus, an accused person will be liable to have charges framed under both

the old law and the new one. Further, the offences are cognisable and

non-bailable. Punishment for violation of the rights enumerated above

could extend to one year's imprisonment and/or a maximum fine of Rs

20,000.

Page 231: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

219

How does the law define 'shared household'1?

According to Section 2(s), a household where the aggrieved person

lives/lived in a domestic relationship, either singly or along with the

respondent, is a shared household.

This applies whether the household is owned or tenanted, either jointly

by the person aggrieved and the respondent, or by either of them, where

either the person aggrieved or the respondent or both jointly or singly

have any right, title, interest or equity.

Shared household also includes a household which may belong to the

joint family of which the respondent is a member, irrespective of

whether the respondent or person aggrieved has any right, title or interest

in the shared household.

However, the ownership pattern of the household cannot be affected by

the Act In other words, the fact that a woman lives in a home legally

owned by her husband does not under the Act alter the legality of

ownership; it does not for instance transfer that ownership in whole or

part to the wife.

What new mechanisms have been recommended to implement the law?

Section 8 of the law provides for the setting up and function of

Protection Officers.

1 Ref : The concept of shared household as defined in the Domestic Violence Act may have to be expanded in view of a

recent ruling by the Supreme Court, which noted that it has been drafted in a "clumsy" manner. In a judgment on the recently notified Protection of Women from Domestic Violence Act 2005, a two-member Bench of the apex court expressed that Section 2(s) of the Act, which gives right of residence to a married woman in a shared household, is not "properly worded and appears to be the result of clumsy drafting." But at the same time, the Judges held, "...we have to give it an interpretation which is sensible and which does not lead to chaos in society." -Ref more at http://www.indianexpress.com/news/sc-order-calls-for-change-in--shared-household--definition/19624/#sthash.BTp7ZHoy.dpuf

Page 232: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

220

These officers, to be appointed by state governments, will be under the

jurisdiction and control of the court, and will be responsible to the court

for monitoring the cases of domestic abuse.

The PO will assist the court in making a Domestic Incident Report or an

application for a protection order on behalf of the aggrieved woman

and/or child. POs will ensure that aggrieved people are provided legal

aid, medical services, safe shelter and other required assistance.

POs will ensure that necessary information on service providers is

provided to the aggrieved woman, and that orders for monetary relief are

complied with.

Importantly, the PO can be penalised for failing/refusing to discharge his

duty, with the proviso that prior sanction of the state government is

required.

Service Providers are a vital tool in the implementation of this act.

Service Providers, as defined by the law, are private organisations

recognised under the Companies Act/Societies Registration Act.

They will have to register with the state government as a service

provider to record the Domestic Incident Report and to get the aggrieved

person medically examined.

The Service Providers will among other things ensure that the aggrieved

person is provided accommodation in a shelter home, if she so requires.

A Service Provider is protected for all actions done in good faith, in the

exercise of the powers under this Act, towards the prevention of

commission of domestic violence they are, thus, protected by law and

cannot be sued for the proper exercise of their functions.

Page 233: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

221

The new law, thus, recognises the role of voluntary organisations in

addressing the issue of domestic violence. NGOs working for women's

rights can now register as Service Providers under the Act.

What happens next?

The government has passed the law; it now needs to put in place the

mechanism of implementation. To this end, the government has to

provide funding to encourage the registration of Service Providers who

will need the protections of this new law.

The government will also have to initiate a widespread campaign for

public awareness. It will also need to implement training programs to

sensitise the police, media and judiciary to the dimensions, scope and

functioning of this new law.

Page 234: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

222

3.16 THE PROTECTION OF WOMEN AGAINST SEXUAL

HARASSMENT AT WORK PLACE BILL, 2010:1

The Bill lays down the definition of sexual harassment and seeks to

provide a mechanism for redressing complaints. It provides for the

constitution of an ‘Internal Complaints Committee’ at the work place

and a ‘Local Complaints Committee’ at the district and block levels. A

District Officer (District Collector or Deputy Collector), shall be

responsible for facilitating and monitoring the activities under the Act.

Highlights of the Bill2

The Bill defines sexual harassment at the work place and creates a

mechanism for redressal of complaints. It also provides safeguards

against false or malicious charges.

Every employer is required to constitute an Internal Complaints

Committee at each office or branch with 10 or more employees. The

District Officer is required to constitute a Local Complaints Committee

at each district, and if required at the block level.

The Complaints Committees have the powers of civil courts for

gathering evidence.

The Complaints Committees are required to provide for conciliation

before initiating an inquiry, if requested by the complainant.

Penalties have been prescribed for employers. Non-compliance with the

provisions of the Act shall be punishable with a fine of up to Rs 50,000.

1 Ref : ""The Sexual Harassment Bill undermines the innovative spirit of Vishaka" – Naina Kapur, Lawyer and Equality

Consultant". Bar and Bench. 1 March 2013. Retrieved 2 March 2013. 2 Ref: "The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 Published in

The Gazette of India". Press Information Bureau. Retrieved 26 April 2013.

Page 235: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

223

Repeated violations may lead to higher penalties and cancellation of

licence or registration to conduct business.

Key Issues and Analysis

There could be feasibility issues in establishing an Internal Complaints

Committee at every branch or office with 10 or more employees.

The Internal Complaints Committee has been given the powers of a civil

court. However, it does not require members with a legal background

nor are there any provisions for legal training.

The Bill provides for action against the complainant in case of a false or

malicious complaint. This could deter victims from filing complaints.

Two different bodies are called ‘Local Complaints Committee’. The Bill

does not clearly demarcate the jurisdiction, composition and functions of

these Committees.

Cases of sexual harassment of domestic workers have been specifically

excluded from the purview of the Bill.

Unlike sexual harassment legislation in many other countries, this Bill

does not provide protection to men.

India finally enacted its law on prevention of sexual harassment against

female employees at the workplace. The Sexual Harassment of Women

at Workplace (Prevention, Prohibition and Redressal) Act, 2013

Page 236: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

224

(“Sexual Harassment Act1”) has been made effective on April 23, 2013

by way of publication in the Gazette of India.

The statute has been enacted almost 16 years after the Supreme Court of

India, in its landmark judgment in Vishaka and others v. State of

Rajasthan (“Vishaka Judgement”)1 , laid down guidelines making it

mandatory for every employer to provide a mechanism to redress

grievances pertaining to workplace sexual harassment and enforce the

right to gender equality of working women (“Guidelines”). Codification

of the requirements is a much-awaited development and is a significant

step towards creating awareness on the issue of workplace sexual

harassment and ensuring women a safe and healthy work environment.

1

Page 237: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

225

Background1

The Supreme Court of India, in 1997, in the Vishaka Judgment, for the

first time, acknowledged sexual harassment at the workplace as a human

rights violation. The Supreme Court relied on the Convention on the

Elimination of All Forms Discrimination Against Women, adopted by

the General Assembly of the United Nations, in 1979, which India has

both signed and ratified. In its judgment, the Supreme Court outlined the

Guidelines making it mandatory for employers to provide for

sympathetic and non-retributive mechanisms to enforce the right to

gender equality of working women.

As per the Vishaka Judgment, the Guidelines, until such time a

legislative frame work on the subject is drawn-up and enacted, have the

effect of law and the Guidelines are to be mandatorily followed by

organizations, both in the private and government sector. While there

were several attempts made to enact a law on this subject previously, the

Sexual Harassment of Women at Workplace (Prevention, Prohibition

and Redressal) Bill, 2012 was eventually passed by the Lower House of

the Parliament (Lok Sabha) on September 3, 2012, then passed by the

Upper House of the Parliament (Rajya Sabha) on February 26, 2013 and

received the President’s assent on April 22, 2013.

Sexual Harassment - objective of the Law, meaning and prohibition

The Sexual Harassment Act has been enacted with the objective of

providing women protection against sexual harassment at the workplace

and for the prevention and redressal of complaints of sexual harassment.

Sexual harassment is considered as a violation of the fundamental right 1 Ref : AIR 1997 SC 3011

Section 2(o), Sexual Harassment Act, 2013 Section 354A, Indian Penal Code, 1860 Published in the Official Gazette on April 2, 2013

Page 238: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

226

of a woman to equality as guaranteed under Articles 14 and 15 of the

Constitution of India (“Constitution”) and her right to life and to live

with dignity as per Article 21 of the Constitution. It has also been

considered as a violation of a right to practice or to carry out any

occupation, trade or business under Article 19(1)(g) of the Constitution,

which includes a right to a safe environment free from harassment.

The definition of sexual harassment in the Sexual Harassment Act is in

line with the Supreme Court’s definition in the Vishaka Judgment and

includes any unwelcome sexually determined behaviour (whether

directly or by implication) such as physical contact and advances,

demand or request for sexual favours, sexually coloured remarks,

showing pornography, or any other unwelcome physical verbal or non-

verbal conduct of sexual nature.

The Sexual Harassment Act stipulates that a woman shall not be

subjected to sexual harassment at any workplace. As per the statute,

presence or occurrence of circumstances of implied or explicit promise

of preferential treatment in employment; threat of detrimental treatment

in employment; threat about present or future employment; interference

with work or creating an intimidating or offensive or hostile work

environment; or humiliating treatment likely to affect the lady

employee’s health or safety may amount to sexual harassment.

Salient features of the Sexual Harassment Act

Scope : The ambit of the Sexual Harassment Act is very wide and is

applicable to the organized sector as well as the unorganized sector. In

view of the wide definition of ‘workplace’, the statute, inter alia, applies

to government bodies, private and public sector organisations, non-

governmental organisations, organisations carrying on commercial,

Page 239: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

227

vocational, educational, entertainmental, industrial, financial activities,

hospitals and nursing homes, educational institutes, sports institutions

and stadiums used for training individuals. As per the Sexual Harassment

Act, a workplace also covers within its scope places visited by

employees during the course of employment or for reasons arising out of

employment - including transportation provided by the employer for the

purpose of commuting to and from the place of employment2 .

The definition of ‘employee’ under the Sexual Harassment Act is fairly

wide and covers regular, temporary, ad hoc employees, individuals

engaged on daily wage basis, either directly or through an agent, contract

labour, co-workers, probationers, trainees, and apprentices, with or

without the knowledge of the principal employer, whether for

remuneration or not, working on a voluntary basis or otherwise, whether

the terms of employment are express or implied.

Internal Complaints Committee and Local Complaints Committee : The

Sexual Harassment Act requires an employer to set up an ‘Internal

Complaints Committee’ (“ICC”) at each office or branch, of an

organization employing at least 10 employees. The government is in turn

required to set up a ‘Local Complaints Committees’ (“LCC”) at the

district level to investigate complaints regarding sexual harassment from

establishments where the ICC has not been constituted on account of the

establishment having less than 10 employees or if the complaint is

against the employer. The Sexual Harassment Act also sets out the

constitution of the committees, process to be followed for making a

complaint and inquiring into the complaint in a time bound manner.

Interim Reliefs : The Sexual Harassment Act empowers the ICC and the

LCC to recommend to the employer, at the request of the aggrieved

employee, interim measures such as (i) transfer of the aggrieved woman

Page 240: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

228

or the respondent to any other workplace; or (ii) granting leave to the

aggrieved woman up to a period of 3 months in addition to her regular

statutory/ contractual leave entitlement.

Process for Complaint and Inquiry : Please refer to the following

flowchart which provides, in brief, the process to be followed by the

aggrieved employee to make the complaint and by the employer to

inquire into the complaint. The law allows female employees to request

for conciliation in order to settle the matter although a monetary

settlement should not be made as a basis of conciliation.

Action against Frivolous Complaints : So as to ensure that the

protections contemplated under the Sexual Harassment Act do not get

misused, provisions for action against “false or malicious” complainants

have been made.

Employer’s Obligations

In addition to ensuring compliance with the other provisions stipulated,

the Sexual Harassment Act casts certain obligations upon the employer

to, inter alia, provide a safe working environment display conspicuously

at the workplace, the penal consequences of indulging in acts that may

constitute sexual harassment and the composition of the Internal

Complaints Committee organise workshops and awareness programmes

at regular intervals for sensitizing employees on the issues and

implications of workplace sexual harassment and organizing orientation

programmes for members of the Internal Complaints Committee treat

sexual harassment as a misconduct under the service rules and initiate

action for misconduct.

The employer is also required to monitor the timely submission of

reports by the ICC.

Page 241: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

229

If an employer fails to constitute an Internal Complaints Committee or

does not comply with any provisions contained therein, the Sexual

Harassment Act prescribes a monetary penalty of up to INR 50,000

(approx. US$1,000). A repetition of the same offence could result in the

punishment being doubled and / or de-registration of the entity or

revocation of any statutory business licenses.

Page 242: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

230

3.17 AMENDMENTS TO THE INDIAN PENAL CODE

As a result of the growing importance of the issues relating to sexual

harassment and protection of female employees in India, a new section3

was added to the Indian Penal Code, 1860 through the Criminal Law

(Amendment) Act, 2013, which enlists the acts which constitute the

offence of sexual harassment and further envisages penalty / punishment

for such acts. A man committing an offence under this section is

punishable with imprisonment, the term of which may range between 1 -

3 years or with fine or both. Since the amendment criminalizes all acts of

sexual harassment, employers shall be required to report any offences of

sexual harassment to the appropriate authorities.

Analysis

The Sexual Harassment Act is a much awaited development and a

significant step towards ensuring women a safe and healthy work

environment. We however list below some issues in relation to this new

legislation.

The Sexual Harassment Act only addresses the issue of protection of

women employees and is not gender neutral. Male employees, if

subjected to sexual harassment, cannot claim protection or relief under

the law.

The definition of ‘aggrieved woman’ does not make a reference to

victimization (on the part of the employer) of the employee who has

made the complaint of harassment, which would be fairly common in

such situations. This was in fact an important recommendation of the

Standing Committee. The definition of the ‘sexual harassment’, the

words ‘verbal, textual, physical, graphic or electronic actions’ should

Page 243: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

231

have been added in order for the purposes of clarity, as it would cover

some of the technological developments.

It may become a challenge for employers to constitute an ICC at “all

administrative units or offices”. It may also become necessary for the

employer to spend more time and efforts in training members of the ICC

who are to be replaced every 3 years. There is also a lack of clarity as to

who shall be a chairperson of the ICC in absence of a senior level female

employee. Also, in such cases, the composition of the committee

members should ideally have been an odd number in order for the

committee to arrive at a decision based on majority.

The ICC also needs to involve a member from “amongst non-

governmental organisations or associations committed to the cause of

women or who have had experience in social work or have legal

knowledge.” Employers may not be comfortable with such an external

representation, considering the sensitivities surrounding this issue and

the need to maintain strict confidentiality.

The law casts an obligation upon the employer to address the grievances

in respect of sexual harassment at workplace in a time bound manner,

which in several cases may not be practically possible as the employees

or witnesses involved may not easily or readily co-operate.

The law allows the employer to initiate action against the complainant in

case of a false or malicious complaint. This provision, although meant to

protect the employer’s interests, is likely to deter victims from reporting

such incidents and filing complaints, which may in turn defeat the

purpose for which the law was enacted.

In case the allegation has been proved, the Sexual Harassment Act

allows the ICC to recommend to the employer to deduct from the

Page 244: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

232

respondent’s salary such sums it may consider appropriate to be paid to

the aggrieved woman. However, there may need to be made certain

corresponding changes to the Payment of Wages Act, 1936 of India,

which restricts the nature of deductions that may be made from an

employee’s salary.

The Sexual Harassment Act does not stipulate any monetary liability on

the employer in case of harassment on the part of an employee against

another female employee. Infact, in developed countries like the US,

although there is no codified law on sexual harassment or workplace

harassment, based on case law that prohibit workplace discrimination,

there is vicarious liability cast upon the employer in certain cases.

Considering that India has a diverse set of religions, cultures, castes,

languages, etc. the government also needs to start focusing on providing

protection for some of the other forms of harassment, which is fairly

common in several of the developed countries.

Page 245: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

233

4 Judicial

efforts

towards

women

protection

Page 246: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

234

4.1 EFFORTS OF SUPREME COURT OF INDIA

Delhi Gang rape case1 :

All Sessions courts should hold daily trial and complete the whole

exercise in two months. Within a few days of the gruesome December 16

assault in the Capital, the Supreme Court has directed all Sessions courts

in the country to conduct rape trials daily and complete the process in

two months from the date of commencement of examination of

witnesses.

“In particular, when examination of witnesses has begun, it shall be

continued from day to day until all witnesses in attendance have been

examined, unless the court finds adjournment beyond the following day

necessary for reasons to be recorded,” said a Bench of Justices Swatanter

Kumar (who has since assumed charge as Chairperson of the National

Green Tribunal2) and Ibrahim Kalifulla.

The Bench, referring to regular adjournments being sought, said: “We

are distressed to note that it is almost a common practice and regular

occurrence that trial courts flout the said command with impunity. Even

when witnesses are present, cases are adjourned on far less serious

reasons or even on flippant grounds.”

Adjournments were granted for the asking, quite often to suit the

convenience of the advocate, the Bench said. “We make it clear that the

1 Ref : SC No. 114/2013 State Vs. Ram Singh and another. FIR No. 413/2012 P.S. : Vasant Vihar, New Delhi.

13.09.2013(2.30PM) Present : Shri Dayan Krishnan , Shri Rajeev Mohan & Shri A.T.Ansari, Ld. Spl. Public Prosecutor for the State, assisted by Sh.Madhav Khurana,Advocate. Shri V.K.Anand Ld. Counsel for accused Mukesh. Shri Vivek Sharma, Shri Manoj Tomar and Shri Sada Shiv, Ld. Counsels for accused Pawan. Shri A.P Singh, Shri V.P. Singh and Ms. Geeta Ld. Counsels for accused Vinay Sharma & accused Akshay @ Thakur. Shri Rajeev Jain, Ld. Amicus Curie. 2 National Green Tribunal Act, 2010 (NGT)is a federal legislation enacted by the Parliament of India, under India's

constitutional provision of Article 21, which assures the citizens of India the right to a healthy environment. The tribunal itself is a special fast-track court to handle the expeditious disposal of the cases pertaining to environmental issues.

Page 247: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

235

legislature has frowned upon granting adjournments on that ground. At

any rate, inconvenience of an advocate is not a ‘special reason’ for

bypassing the mandate of Section 309 of the Cr.PC [power to court to

adjourn proceedings].”

The Bench directed all High Courts to issue circulars to subordinate

courts to strictly adhere to the prescribed procedure to ensure speedy trial

and also rule out any manoeuvring taking place by granting an undue,

long adjournment for the mere asking. “When witnesses of a party are

present, the court should make every possible endeavour to record their

evidence and they should not be called back again. Work fixation of the

court should be so arranged as not to direct the presence of witnesses

whose evidence cannot be recorded. Similarly, cross-examination should

be complete immediately after the examination-in-chief and, if need be,

within a short time thereafter. No long adjournment should be allowed.”

The Bench said: “We hope and trust that the High Courts would take

serious note of the directions issued in the decisions reported in the

Rajdeo Sharma case1, which has been extensively quoted and reiterated

in the subsequent decision of this court reported in the Shambhu Nath

case2, and comply with the directions at least in the future years. In this

respect, the High Courts will also be well advised to use their machinery

in the respective State Judicial Academy to achieve the desired result.

Don’t blame tools

The Bench said: “It is no justification to glide on any alibi by blaming

the infrastructure for skirting the legislative mandates embalmed in 1 Ref : Supreme Court of India, Raj Deo Sharma vs The State Of Bihar on 22 September, 1999, Bench: M.Srinivasan,

M.B.Shah. PETITIONER: RAJ DEO SHARMA Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT:22/09/1999 BENCH: M.Srinivasan, M.B.Shah. 2 Fref : Supreme Court of India, State Of U.P vs Shambhu Nath Singh And Ors on 29 March, 2001 Author: Thomas

Bench: K Thomas, R Sethi CASE NO.: Appeal (crl.) 392 of 2001 PETITIONER: STATE OF U.P. Vs. RESPONDENT: SHAMBHU NATH SINGH AND ORS. DATE OF JUDGMENT: 29/03/2001 BENCH: K.T. Thomas & R.P. Sethi

Page 248: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

236

Section 309 of the Code. A judicious judicial officer who is committed

to his work could manage with the existing infrastructure for complying

with the legislative mandates. The precept in the old homily that a lazy

workman always blames his tools is the only answer to those indolent

judicial officers who find fault with the defects in the system and the

imperfections of the existing infrastructure for their tardiness in coping

with such directions.”

The Bench was dismissing an appeal filed by Akil alias Javed and

Murslim, who were awarded life imprisonment in a case of robbery and

causing the death of Salvinder. The appeal was directed against a Delhi

High Court judgment, which confirmed the trial court order.

It is almost a common practice that trial courts flout command with

impunity Advocate’s inconvenience is no ‘special reason’ for bypassing

mandate of Section 309 Cr.PC

Relevant Portion of the Judgement

We have referred to the above legal position relating to the extent of

reliance that can be placed upon a hostile witness who was not declared

hostile and in the same breath, the dire need for the Courts dealing with

cases involving such a serious offence to proceed with the trial

commenced on day to day basis in de die in diem until the trial is

concluded. We wish to issue a note of caution to the trial Court dealing

with sessions case to ensure that there are well settled procedures laid

down under the Code of Criminal Procedure as regards the manner in

which the trial should be conducted in sessions cases in order to ensure

dispensation of justice without providing any scope for unscrupulous

elements to meddle with the course of justice to achieve some unlawful

advantage. In this respect, it is relevant to refer to the provisions

Page 249: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

237

contained in Chapter XVIII of the Criminal Procedure Code where under

Section 231 it has been specifically provided that on the date fixed for

examination of witnesses as provided under Section 230, the Session’s

Judge should proceed to take all such evidence as may be produced in

support of the prosecution and that in his discretion may permit cross-

examination of any witnesses to be deferred until any other witness or

witnesses have been examined or recall any witness for further cross-

examination.

Under Section 309 of Cr.P.C. falling under Chapter XXIV it has been

specifically stipulated as under:

“309. Power to postpone or adjourn proceedings.—(1) In every inquiry

or trial, the proceedings shall be held as expeditiously as possible, and in

particular, when the examination of witnesses has once begun, the same

shall be continued from day to day until all the witnesses in attendance

have been examined, unless the court finds the adjournment of the same

beyond the following day to be necessary for reasons to be recorded.

Provided that when the inquiry or trial relates to an offence under

Sections 376 to Section 376 D of the Indian Penal Code (45 of 1860), the

inquiry or trial shall, as far as possible, be completed within a period of

two months from the date of commencement of the examination of

witnesses.

If the court, after taking cognizance of an offence, or commencement of

trial, finds it necessary or advisable to postpone the commencement of,

or adjourn, any inquiry or trial, it may, from time to time, for reasons to

be recorded, postpone or adjourn the same on such terms as it thinks fit,

for such time as it considers reasonable, and may by a warrant remand

the accused if in custody:

Page 250: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

238

Provided that no Magistrate shall remand an accused person to custody

under this section for a term exceeding fifteen days at a time:

Provided further that when witnesses are in attendance, no adjournment

or postponement shall be granted, without examining them, except for

special reasons to be recorded in writing:

Provided also, that no adjournment shall be granted for the purpose only

for enabling the accused person to show cause against the sentence

proposed to be imposed on him.

Explanation 1 – If sufficient evidence has been obtained to raise a

suspicion that the accused may have committed an offence and it appears

likely that further evidence may be obtained by a remand this is a

reasonable cause for a remand.

Explanation 2 – The terms on which an adjournment or postponement

may be granted include, in appropriate cases, the payment of costs by the

prosecution or the accused.”

In this context it will also be worthwhile to refer to a circular issued by

the High Court of Delhi in Circular No.1/87 dated 12th January 1987.

Clause 24A of the said circular reads as under: “24A disturbing trend of

trial of Sessions cases being adjourned, in some cases to suit

convenience of counsel and in some others because the prosecution is

not fully ready, has come to the notice of the High Court. Such

adjournments delay disposal of Sessions cases.

The High Court considers it necessary to draw the attention of all the

Sessions Judges and Assistant Sessions Judges once again to the

following provisions of the Code of Criminal Procedure, 1973, Criminal

Rules of Practice, Kerala, 1982 and Circulars and instructions on the list

Page 251: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

239

system issued earlier, in order to ensure the speedy disposal of Sessions

cases.

1.(a) In every enquiry or trial, the proceedings shall be held as

expeditiously as possible, and, in particular, when the examination of

witnesses has once begun, the same shall be continued from day to day

until all the witnesses in attendance have been examined, unless the

court finds the adjournment of the same beyond the following day to be

necessary for reasons to be recorded. (Section 309 (1) Crl.P.C.).

(b) After the commencement of the trial, if the court finds it

necessary or advisable to postpone the commencement of, or adjourn,

any inquiry or trial, it may, from time to time, for reasons to be recorded

postpone or adjourn the same on such terms as it thinks fit, for such time

as it considers reasonable. If witnesses are in attendance no adjournment

or postponement shall be granted, without examining them, except for

special reasons to be recorded, in writing. (Section 309 (2) Cr.P.C.).

2. Whenever more than three months have elapsed between the date

of apprehension of the accused and the close of the trial in the Court of

Sessions, an explanation of the cause of delay, (in whatever court it may

have occurred) shall be furnished, while transmitting the copy of the

judgment. (Rule 147 Crl. Rules of Practice).

3. Sessions cases should be disposed of within six weeks of their

institution, the date of commitment being taken as the date of institution

in Sessions Cases. Cases pending for longer periods should be regarded

as old cases in respect of which explanations should be furnished in the

calendar statements and in the periodical returns. (High Court Circular

No. 25/61 dated 26th October 1961).

Page 252: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

240

4. Sessions cases should be given precedence over all other work

and no other work should be taken up on session’s days until the sessions

work for the day is completed. A Sessions case once posted should not

be postponed unless that is unavoidable, and once the trial has begun, it

should proceed continuously from day to day till it is completed. If for

any reason, a case has to be adjourned or postponed, intimation should

be given forthwith to both sides and immediate steps be taken to stop the

witnesses and secure their presence on the adjourned date.

On receipt of the order of commitment the case should be posted for trial

to as early a date as possible, sufficient time, say three weeks, being

allowed for securing the witnesses. Ordinarily it should be possible to

post two sessions cases a week, the first on Monday and the second on

Thursday but sufficient time should be allowed for each case so that one

case does not telescope into the next. Every endeavour should be made

to avoid telescoping and for this, if necessary, the court should

commence sitting earlier and continue sitting later than the normal hours.

Judgment in the case begun on Monday should ordinarily be pronounced

in the course of the week and that begun on Thursday the following

Monday. (Instructions on the list system contained in the O.M. dated 8th

March 1984).

All the Sessions Judges and the Assistant Sessions Judges are directed to

adhere strictly to the above provisions and instructions while granting

adjournments in Sessions Cases.

In this context some of the decisions which have specifically dealt with

such a situation which has caused serious inroad into the criminal

jurisprudence can also be referred to. In one of the earliest cases reported

Page 253: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

241

in Badri Prasad V. Emperor1 – (1912) 13 Crl. L.J. 861, a Division Bench

of the Allahabad High Court has stated the legal position as under:

“….Moreover, we wish to point out that it is most inexpedient for a

Sessions trial to be adjourned. The intention of the Code is that a trial

before a Court of Session should proceed and be dealt with continuously

from its inception to its finish. Occasions may arise when it is necessary

to grant adjournments, but such adjournments should be granted only on

the strongest possible ground and for the shortest possible period…..

In a decision reported in Chandra Sain Jain and others V. The State –

19822 Crl. L.J. NOC 86 (ALL) a Single Judge has held as under while

interpreting Section 309 of Cr.P.C.

“Merely because the prosecution is being done by C.B.I. or by any other

prosecuting agency, it is not right to grant adjournment on their mere

asking and the Court has to justify every adjournment if allowed, for, the

right to speedy trial is part of fundamental rights envisaged under Art. 21

of the Constitution, 1979 Cri LJ 1036 (SC).”

In the decision reported in The State V. Bilal Rai and others 3– 1985 Crl.

L.J. NOC 38 (Delhi) it has been held as under: “When witnesses of a

party are present, the court should make every possible endeavour to

record their evidence and they should not be called back again. The work

fixation of the Court should be so arranged as not to direct the presence

of witnesses whose evidence cannot be recorded. Similarly, cross-

examination of the witnesses should be completed immediately after the

examination in chief and if need be within a short time thereafter. No 1 Ref : Allahabad High Court Emperor vs Badri Prasad on 24 March, 1922 Equivalent citations: (1922) ILR 44 All 538

Author: G Mears Bench: G Mears, P C Banerji JUDGMENT Grimwood Mears, C.J. 2 Ref : Supreme Court of India Akil @ Javed vs State Of Nct Of Delhi on 6 December, 2012 Bench: Swatanter Kumar,

Fakkir Mohamed Kalifulla CRIMINAL APPEAL NO.1735 OF 2009. 3 Ref : Delhi High Court Sudhir Bale vs Bilal Rai And Ors. on 23 July, 1984 Equivalent citations: 1984 (7) DRJ 140, 1984

RLR 541 Author: D Khanna Bench: D Khanna JUDGMENT D.R. Khanna, J.

Page 254: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

242

long adjournment should be allowed. Once the examination of witnesses

has begun the same should be continued from day to day.”

In the decision reported in Lt. Col. S.J. Chaudhary V. State 1(Delhi

Administration) – (1984) 1 SCC 722, this Court in paragraphs 2 and 3

has held as under:

“2. We think it is an entirely wholesome practice for the trial to go on

from day-to-day. It is most expedient that the trial before the Court of

Session should proceed and be dealt with continuously from its inception

to its finish. Not only will it result in expedition, it will also result in the

elimination of manoeuvre and mischief. It will be in the interest of both

the prosecution and the defence that the trial proceeds from day-to- day.

It is necessary to realise that Sessions cases must not be tried piecemeal.

Before commencing a trial, a Sessions Judge must satisfy himself that all

necessary evidence is available. If it is not, he may postpone the case,

but only on the strongest possible ground and for the shortest possible

period. Once the trial commences, he should, except for a very pressing

reason which makes an adjournment inevitable, precede de die in diem

until the trial is concluded.

We are unable to appreciate the difficulty said to be experienced by the

petitioner. It is stated that his Advocate is finding it difficult to attend the

court from day-to-day. It is the duty of every Advocate, who accepts the

brief in a criminal case to attend the trial from day-to- day. We cannot

over-stress the duty of the Advocate to attend to the trial from day-to-

day. Having accepted the brief, he will be committing a breach of his

1 Ref : Supreme Court of India Lt. Col., S.J. Chaudhary vs State (Delhi Administration) on 17 January, 1984 Equivalent

citations: 1984 AIR 618, 1984 SCR (2) 438 Bench: Reddy, O Chinnappa PETITIONER: LT. COL., S.J. CHAUDHARY Vs. RESPONDENT: STATE (DELHI ADMINISTRATION) DATE OF JUDGMENT17/01/1984 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) VENKATARAMIAH, E.S. (J) MISRA, R.B. (J) CITATION: 1984 AIR 618 1984 SCR (2) 438 1984 SCC (1) 722 1984 SCALE (1)92

Page 255: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

243

professional duty, if he so fails to attend. The criminal miscellaneous

petition is, therefore, dismissed.”

In a recent decision of the Delhi High Court reported in State V. Ravi

Kant Sharma and Ors.1 – 120 (2005) DLT 213, a Single Judge of the

High Court has held as under in paragraph 3:

“3. True the Court has discretion to defer the cross- examination. But as

a matter of rule, the Court cannot orders in express terms that the

examination-in-chief of the witnesses is recorded in a particular month

and his cross-examination would follow in particular subsequent month.

Even otherwise it is the demand of the criminal jurisprudence that

criminal trial must proceed day-to-day. The fixing of dates only for

examination-in- chief of the lengthy witnesses and fixing another date

i.e. 3 months later for the purposes of cross-examination is certainly

against the criminal administration of justice.

Examination-in- chief if commenced on a particular date, the Trial Judge

has to ensure that his cross-examination must conclude either on the

same date or the next day if cross-examination is lengthy or can continue

on the consecutive dates. But postponing the cross- examination to a

longer period of 3 month is certainly bound to create legal complications

as witnesses whose examination-in- chief recorded earlier may insist on

refreshing their memory and therefore such an occasion should not be

allowed to arise particularly when it is the demand of the criminal law

that trial once commence must take place on day-to-day basis. For these

reasons, the order passed by the learned Additional Sessions Judge to

1 Ref : Delhi High Court Ravi Kant Sharma vs State on 12 October, 2011 Author: Badar Durrez Ahmed * IN THE HIGH

COURT OF DELHI AT NEW DELHI % Judgment delivered on 12.10.2011 + CRL.A. 357/2008 RAVI KANT SHARMA ... Appellant - versus - STATE ... Respondent Advocates who appeared in this case: For the Appellant : Mr Sushil Kumar, Sr. Advocate with Mr Sudarshan Rajan and Md. Qamar Ali For the Respondent : Mr Pawan Sharma, Standing Counsel for the State with Mr Kushagra Arora, Ms Laxmi Chauhan, Mr Harsh Prabhakar and Mr Mohit Mudgil AND + CRL.A. 486/2008 SHRI BHAGWAN SHARMA ... Appellant - versus - STATE ... Respondent

Page 256: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

244

that extent will not hold good in the eyes of law and therefore the same is

liable to be set aside. Set aside as such. Learned Additional Sessions

Judge should refix the schedule of dates of examination of prosecution

witnesses and shall ensure that examination-in-chief once commences

cross- examination is completed without any interruption.”

In a comprehensive decision of this Court reported in State of U.P. V.

Shambhu Nath Singh and others 1– (2001) 4 SCC 667 the legal position

on this aspect has been dealt with in extenso. Useful reference can be

made to paragraphs 10, 11 to 14 and 18:

“10. Section 309 of the Code of Criminal Procedure (for short “the

Code”) is the only provision which confers power on the trial court for

granting adjournments in criminal proceedings. The conditions laid

down by the legislature for granting such adjournments have been

clearly incorporated in the section. It reads thus:

The first sub-section mandates on the trial courts that the proceedings

shall be held expeditiously but the words “as expeditiously as possible”

have provided some play at the joints and it is through such play that

delay often creeps in the trials. Even so, the next limb of the sub-section

sounded for a more vigorous stance to be adopted by the court at a

further advanced stage of the trial. That stage is when examination of the

witnesses begins. The legislature which diluted the vigour of the

mandate contained in the initial limb of the sub-section by using the

words “as expeditiously as possible” has chosen to make the requirement

for the next stage (when examination of the witnesses has started) to be

quite stern. Once the case reaches that stage the statutory command is

1 Ref : Supreme Court of India State Of U.P vs Shambhu Nath Singh And Ors on 29 March, 2001 Author: Thomas Bench:

K Thomas, R Sethi CASE NO.: Appeal (crl.) 392 of 2001 PETITIONER: STATE OF U.P. Vs. RESPONDENT: SHAMBHU NATH SINGH AND ORS. DATE OF JUDGMENT:29/03/2001 BENCH: K.T. Thomas & R.P. Sethi JUDGMENT: THOMAS, J.

Page 257: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

245

that such examination “shall be continued from day to day until all the

witnesses in attendance have been examined”. The solitary exception to

the said stringent rule is, if the court finds that adjournment “beyond the

following day to be necessary” the same can be granted for which a

condition is imposed on the court that reasons for the same should be

recorded. Even this dilution has been taken away when witnesses are in

attendance before the court. In such situation the court is not given any

power to adjourn the case except in the extreme contingency for which

the second proviso to sub-section (2) has imposed another condition,

“Provided further that when witnesses are in attendance, no adjournment

or postponement shall be granted, without examining them, except for

special reasons to be recorded in writing”. (emphasis supplied)

Thus, the legal position is that once examination of witnesses started,

the court has to continue the trial from day to day until all witnesses in

attendance have been examined (except those whom the party has given

up). The court has to record reasons for deviating from the said course.

Even that is forbidden when witnesses are present in court, as the

requirement then is that the court has to examine them. Only if there are

“special reasons”, which reasons should find a place in the order for

adjournment that alone can confer jurisdiction on the court to adjourn the

case without examination of witnesses who are present in court.

Now, we are distressed to note that it is almost a common practice and

regular occurrence that trial courts flout the said command with

impunity. Even when witnesses are present, cases are adjourned on far

less serious reasons or even on flippant grounds. Adjournments are

granted even in such situations on the mere asking for it. Quite often

such adjournments are granted to suit the convenience of the advocate

concerned. We make it clear that the legislature has frowned at granting

Page 258: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

246

adjournments on that ground. At any rate inconvenience of an advocate

is not a “special reason” for bypassing the mandate of Section 309 of the

Code.

If any court finds that the day-to-day examination of witnesses mandated

by the legislature cannot be complied with due to the non-cooperation of

the accused or his counsel the court can adopt any of the measures

indicated in the sub-section i.e. remanding the accused to custody or

imposing cost on the party who wants such adjournments (the cost must

be commensurate with the loss suffered by the witnesses, including the

expenses to attend the court). Another option is, when the accused is

absent and the witness is present to be examined, the court can cancel his

bail, if he is on bail (unless an application is made on his behalf seeking

permission for his counsel to proceed to examine the witnesses present

even in his absence provided the accused gives an undertaking in writing

that he would not dispute his identity as the particular accused in the

case).

It is no justification to glide on any alibi by blaming the infrastructure for

skirting the legislative mandates embalmed in Section 309 of the Code.

A judicious judicial officer who is committed to his work could manage

with the existing infrastructure for complying with such legislative

mandates. The precept in the old homily that a lazy workman always

blames his tools, is the only answer to those indolent judicial officers

who find fault with the defects in the system and the imperfections of the

existing infrastructure for their tardiness in coping with such directions.”

Keeping the various principles, set out in the above decisions, in mind

when we examine the situation that had occurred in the case on hand

where PW.20 was examined-in-chief on 18.09.2000 and was cross

examined after two months i.e. on 18.11.2000 solely at the instance of

Page 259: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

247

the appellant’s counsel on the simple ground that the counsel was

engaged in some other matter in the High Court on the day when PW.20

was examined-in-chief, the adjournment granted by the trial Court at the

relevant point of time only disclose that the Court was oblivious of the

specific stipulation contained in Section 309 of Cr.P.C. which mandate

the requirement of sessions trial to be carried on a day to day basis. The

trial Court has not given any reason much less to state any special

circumstance in order to grant such a long adjournment of two months

for the cross-examination of PW.20. Every one of the caution indicated

in the decision of this Court reported in Rajdeo Sharma V. State of Bihar

1– 1998 Crl. L.J. 4596 was flouted with impunity. In the said decision a

request was made to all the High Courts to remind all the trial Judges of

the need to comply with Section 309 of the Code in letter and spirit. In

fact, the High Courts were directed to take note of the conduct of any

particular trial Judge who violates the above legislative mandate and to

adopt such administrative action against the delinquent judicial officer as

per the law.

It is unfortunate that in spite of the specific directions issued by this

Court and reminded once again in Shambhu Nath (supra) such

recalcitrant approach was being made by the trial Court unmindful of the

adverse serious consequences affecting the society at large flowing

therefrom.

Therefore, even while disposing of this appeal by confirming the

conviction and sentence imposed on the appellant by the learned trial

Judge, as confirmed by the impugned judgment of the High Court, we

direct the Registry to forward a copy of this decision to all the High

1 Ref : Supreme Court of India Raj Deo Sharma vs The State Of Bihar on 22 September, 1999 Bench: M.Srinivasan,

M.B.Shah. PETITIONER: RAJ DEO SHARMA Vs. RESPONDENT: THE STATE OF BIHAR DATE OF JUDGMENT: 22/09/1999

Page 260: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

248

Courts to specifically follow the instructions issued by this Court in the

decision reported in Rajdeo Sharma (supra) and reiterated in Shambhu

Nath (supra) by issuing appropriate circular, if already not issued. If such

circular has already been issued, as directed, ensure that such directions

are scrupulously followed by the trial Courts without providing scope for

any deviation in following the procedure prescribed in the matter of a

trial of session’s cases as well as other cases as provided under Section

309 of Cr.P.C.

In this respect, the High Courts will also be well advised to use their

machinery in the respective State Judicial Academy to achieve the

desired result. We hope and trust that the respective High Courts would

take serious note of the above directions issued in the decisions reported

in Rajdeo Sharma (supra) which has been extensively quoted and

reiterated in the subsequent decision of this Court reported in Shambhu

Nath (supra) and comply with the directions at least in the future years.

In the result, while we upheld the conviction and sentence imposed on

the appellant, we issue directions in the light of the provisions contained

in Section 231 read along with Section 309 of Cr.P.C. for the trial Court

to strictly adhere to the procedure prescribed therein in order to ensure

speedy trial of cases and also rule out the possibility of any manoeuvring

taking place by granting undue long adjournment for mere asking. The

appeal stands dismissed.

Page 261: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

249

4.2 TRIAL COURT CAN ISSUE DIRECTION TO INITIATE

DISCIPLINARY PROCEEDINGS AGAINST CORRUPT

IO, MEDICAL OFFICER

Court should leave no stone unturned to do justice and protect the

interest of the society as well . In case of Dayal Singh v. State of

Uttaranchal,1 (2012) 8 SCC 263 ,the investigating officer, as well as the

doctor who are dealing with the investigation of a criminal case, are

obliged to act in accordance with the Police Manual and the known

canons of medical practice, respectively. They are both obliged to be

diligent, truthful and fair in their approach and investigation. A default or

breach of duty, intentionally or otherwise, can sometimes prove fatal to

the case of the prosecution. An investigating officer is completely

responsible and answerable for the manner and methodology adopted in

completing his investigation. Where the default and omission is so

flagrant that it speaks volumes of a deliberate act or such irresponsible

attitude of investigation, no court can afford to overlook it, whether it did

or did not cause prejudice to the case of the prosecution.

It is possible that despite such default/omission, the prosecution may still

prove its case beyond reasonable doubt and the court can so return its

finding. But, at the same time, the default and omission would have a

reasonable chance of defeating the case of the prosecution in some

events and the guilty could go scot-free. We may illustrate such kind of

investigation with an example where a huge recovery of opium or poppy

husk is made from a vehicle and the investigating officer does not even

investigate or make an attempt to find out as to who is the registered

1 Ref : Supreme Court of India Dayal Singh & Ors. vs State Of Uttaranchal on 3 August, 2012 Author: S Kumar

Bench: Swatanter Kumar, Fakkir Mohamed Kalifulla REPORTABLE CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.529 OF 2010

Page 262: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

250

owner of the vehicle and whether such owner was involved in the

commission of the crime or not. Instead, he merely apprehends a cleaner

and projects him as the principal offender without even reference to the

registered owner.

Apparently, it would prima facie be difficult to believe that a cleaner of a

truck would have the capacity to buy and be the owner, in possession of

such a huge quantity i.e. hundreds of bags of poppy husk. The

investigation projects the poor cleaner as the principal offender in the

case without even reference to the registered owner.

Dereliction of duty or carelessness is an abuse of discretion under a

definite law and misconduct is a violation of indefinite law. Misconduct

is a forbidden act whereas dereliction of duty is the forbidden quality of

an act and is necessarily indefinite. One is a transgression of some

established and definite rule of action, with least element of discretion,

while the other is primarily an abuse of discretion. This Court in State of

Punjab v. Ram Singh 1[(1992) 4 SCC 54 : 1992 SCC (L&S) 793 : (1992)

21 ATC 435] stated that the ambit of these expressions had to be

construed with reference to the subject-matter and the context where the

term occurs, regard being given to the scope of the statute and the public

purpose it seeks to serve. The police service is a disciplined service and

it requires maintenance of strict discipline.

The consequences of these defaults should normally be attributable to

negligence. Police officers and doctors, by their profession, are required

to maintain duty decorum of high standards. The standards of

1 Ref : Supreme Court of India State Of Punjab And Ors vs Ram Singh Ex. Constable on 24 July, 1992 Equivalent

citations: 1992 AIR 2188, 1992 SCR (3) 634 Bench: Ramaswamy, K. PETITIONER: STATE OF PUNJAB AND ORS. Vs. RESPONDENT: RAM SINGH EX. CONSTABLE DATE OF JUDGMENT24/07/1992 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. AHMADI, A.M. (J) PUNCHHI, M.M. CITATION: 1992 AIR 2188 1992 SCR (3) 634 1992 SCC (4) 54 JT 1992 (4) 253 1992 SCALE (2)76

Page 263: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

251

investigation and the prestige of the profession are dependent upon the

action of such specialised persons. The Police Manual and even the

provisions of CrPC require the investigation to be conducted in a

particular manner and method which, in our opinion, stands clearly

violated in the present case. Dr C.N. Tewari, not only breached the

requirement of adherence to professional standards but also became

instrumental in preparing a document which, ex facie, was incorrect and

stood falsified by the unimpeachable evidence of the eyewitnesses

placed by the prosecution on record. Also, in the same case, the Court,

while referring to the decision in Awadh Bihari Yadav v. State of Bihar

[(1995) 6 SCC 31] noticed that if primacy is given to such designed or

negligent investigation, to the omission or lapses by perfunctory

investigation or omissions, the faith and confidence of the people would

be shaken not only in the law enforcement agency but also in the

administration of justice.

This results in shifting of avoidable burden and exercise of higher degree

of caution and care on the courts. Dereliction of duty or carelessness is

an abuse of discretion under a definite law and misconduct is a violation

of indefinite law. Misconduct is a forbidden act whereas dereliction of

duty is the forbidden quality of an act and is necessarily indefinite. One

is a transgression of some established and definite rule of action, with

least element of discretion, while the other is primarily an abuse of

discretion. This Court in State of Punjab v. Ram Singh [(1992) 4 SCC 54

: 1992 SCC (L&S) 793 : (1992) 21 ATC 435] stated that the ambit of

these expressions had to be construed with reference to the subject-

matter and the context where the term occurs, regard being given to the

scope of the statute and the public purpose it seeks to serve. The police

Page 264: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

252

service is a disciplined service and it requires maintenance of strict

discipline.

The consequences of these defaults should normally be attributable to

negligence. Police officers and doctors, by their profession, are required

to maintain duty decorum of high standards. The standards of

investigation and the prestige of the profession are dependent upon the

action of such specialised persons. The Police Manual and even the

provisions of CrPC require the investigation to be conducted in a

particular manner and method which, in our opinion, stands clearly

violated in the present case. Dr C.N. Tewari, not only breached the

requirement of adherence to professional standards but also became

instrumental in preparing a document which, ex facie, was incorrect and

stood falsified by the unimpeachable evidence of the eyewitnesses

placed by the prosecution on record. Also, in the same case, the Court,

while referring to the decision in Awadh Bihari Yadav v. State of Bihar

1[(1995) 6 SCC 31] noticed that if primacy is given to such designed or

negligent investigation, to the omission or lapses by perfunctory

investigation or omissions, the faith and confidence of the people would

be shaken not only in the law enforcement agency but also in the

administration of justice.

Where our criminal justice system provides safeguards of fair trial and

innocent till proven guilty to an accused, there it also contemplates that a

criminal trial is meant for doing justice to all, the accused, the society

and a fair chance to prove to the prosecution. Then alone can law and

order be maintained. The courts do not merely discharge the function to

1 Ref : Supreme Court of India :Awadh Bihari Yadav & Ors vs The State Of Bihar & Ors on 31 August, 1995 Equivalent

citations: 1996 AIR 122, 1995 SCC (6) 31 Author: Paripoornan Bench: Paripoornan, K.S. PETITIONER: AWADH BIHARI YADAV & ORS. Vs. RESPONDENT: THE STATE OF BIHAR & ORS. DATE OF JUDGMENT31/08/1995 BENCH: PARIPOORNAN, K.S.(J) BENCH: PARIPOORNAN, K.S.(J) RAMASWAMY, K. CITATION: 1996 AIR 122 1995 SCC (6) 31 JT 1995 (6) 248 1995 SCALE (5)74

Page 265: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

253

ensure that no innocent man is punished, but also that a guilty man does

not escape. Both are public duties of the Judge. During the course of the

trial, the learned Presiding Judge is expected to work objectively and in a

correct perspective. Where the prosecution attempts to misdirect the trial

on the basis of a perfunctory or designedly defective investigation, there

the Court is to be deeply cautious and ensure that despite such an

attempt, the determinative process is not subverted. For truly attaining

this object of a “fair trial”, the Court should leave no stone unturned to

do justice and protect the interest of the society as well.

Page 266: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

254

4.3 JUDICIAL RESPONSES TO DOMESTIC VIOLENCE1:

Although prosecutors and forensic doctors in countries in CEE/CIS 2

often have considerable control over the initiation and course of criminal

proceedings, judges can help protect victims and ensure batterer

accountability in many ways. In the courtroom, they enforce and

interpret existing laws; they may also have the ability to establish

courtroom policies and procedures that enhance victim safety. Outside of

the courtroom, judges are often community leaders, and can help shape a

community’s response to domestic violence by mobilizing other

professionals and through example.

Judges, like prosecutors and police, are also a critical part of a

coordinated community response; coordination of judicial responses with

those of other actors in the legal, medical and advocacy communities can

avoid inconsistent responses that undermine victim safety and batter

accountability.

1 Ref : BBC Monitoring International Reports (2003) Polish president starts European integration campaign, BBC

Monitoring International Reports, 20 June 2003. 2 CEE/CIS, Central Eastern Europe/Commonwealth of Independent States.

Page 267: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

255

4.4 ENFORCING LAWS

Judges can protect victim safety and increase batterer accountability by

enforcing existing laws. In many countries, general criminal laws for

assault are the only means available for sanctioning a batterer. Judges

can enforce the existing laws by treating assaults committed by partners

as serious crimes.

Similarly, prompt and consistent enforcement of civil orders for

protection, where these are available, is critical. Research indicates that

even a short time in jail for violations of protection orders highlights for

the abuser the seriousness with which the legal system will view

domestic abuse. Giving abusers “second chances” endangers the victim

and sends a message to both abuser and victim that the protection order

will not be enforced.

Judges can also inform batterers when the protection order is issued that

violations will be punished. Research indicates that pairing the order

with a verbal warning not only increases the likelihood that the batterer

will comply with the order, but also communicates to the victim (and to

all others in the courtroom) that she has a right to be free from violence

and that the community will not tolerate domestic violence. Judges can

also alleviate some of the threat of retaliation by emphasizing that the

issuance of a protection order is the responsibility of the court, not the

victim— thus also making clear that the abuse is not a “private” matter

but rather a community concern.

Page 268: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

256

4.5 EXERCISING DISCRETION

Judges may also have discretion in interpreting or enforcing the laws.

Sometimes judges exercise their discretion in ways that undermine

victim safety and batterer accountability. For example, in Poland, judges

routinely suspend sentences for domestic violence convictions. A

suspended sentence reinforces the batterer’s belief in his right to use

violence to establish power and control over his partner, as well as his

perception that such violence will not be punished.

From MAHR, A Report on Domestic Violence in Poland 4 (2002)1.

While prosecutors may have the authority to determine the charges

brought against a defendant, judges may be able to choose among

different penalties. Different sentences may be called for in different

contexts. For example, a monetary fine is often borne by the family of

the abuser; as a result, restitution—orders to the abuser to pay the victim

for lost wages, destroyed property, or medical expenses—may be more

appropriate. In some countries, such options may not be available. In

Uzbekistan, for example, research revealed that women were reluctant to

use the legal system because there were no sanctions available short of

fines or imprisonment.

From MAHR, Domestic Violence in Uzbekistan 25 (2000)2.

In these situations, creative approaches may be necessary to fashion a

remedy that ensures the safety of the victim while sanctioning the

batterer.

1 Red :Adapted from Judge Jerry J. Bowles, Judicial Response to Domestic Violence (2000); James Ptacek, Battered

Women in the Courtroom: The Power of Judicial Responses (1999); Richard Ducote, The Family Law Commentator 4 (1998); Gail A. Goolkasian, Confronting Domestic Violence: The Role of Criminal Court Judges 4 (1986). 2 Ref : Nowakowska, Urszula (2000) Government mechanism for the advancement of women, in: Urszula Nowakowska

(Ed.) Polish Women in the ’90s: The Report by the Women’s Rights Center (Warsaw, Centrum Praw Kobiet).

Page 269: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

257

Judges may also have discretion in family law matters. Divorce is one of

the only forms of legal relief available to battered women in many

countries; mandatory mediation not only places them in danger of

retaliation from the batterer, but may provide the batterer with

opportunities to intimidate and coerce. In some countries, such mediation

is mandatory, while in others it is discretionary. To the extent a judge has

discretion in requiring mediation, setting the length of time allotted to

mediation, or granting a divorce, judges should exercise this discretion

carefully. The dangers faced by victims in attempting to leave a

relationship should be recognized and reflected in any judicial ruling.

Finally, judges may also have the authority to make decisions about

applications for pre-trial release. Because victims of domestic violence

are most vulnerable when they attempt to leave a relationship, such

decisions should be based on the risk posed by release to the victim. In

criminal cases, judges may be able to deny release, impose conditions on

the release, or issue a no contact order to ensure that the abuser does not

attempt to retaliate against the victim. No contact orders in criminal

cases direct the abuser to stay away from the victim pending resolution

of the case. They are similar to orders for protection in some ways.

Page 270: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

258

4.6 ESTABLISHING POLICIES AND PROCEDURES

Judges may have the authority to establish courtroom policies and

procedures that can enhance victim safety. Batterers may attempt to

intimidate or even harm victims in the courtroom or on the way to or

from the courthouse. Judges may be able to ensure that victims are

provided with a separate waiting area; they may also be able to offer to

send an escort with the victim to her mode of transportation, or require

the batterer to delay his departure to ensure that he does not follow or

attack her. Metal detectors can be set up at courthouse entrances to

screen for weapons.

Judges may be able to establish policies or issue orders that require

victims to be notified prior to a defendant’s release. Women are in

significant danger of stalking and retaliatory violence after they seek to

use the legal system to protect themselves from abuse. Notifying a

woman that her batterer is about to be released can provide her with the

time she will need to plan for her safety.

Courthouse policies and procedures can also be revised to enhance

victim access. Courts can create emergency hours, establish multiple

locations at which victims can file for orders for protection, offer

multilingual services when necessary, and ensure that the courthouse and

courtrooms are accessible for people with disabilities. Judges may be

able to streamline courthouse procedures through the development of

common forms, checklists, and protocols, to shorten the time required to

obtain relief.

Courthouse policies and procedures can also be developed to increase

coordination between different agencies. Such procedures can, for

example, enhance post-conviction monitoring. If a batterer has been

Page 271: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

259

ordered to participate in a batterer’s treatment program, it may be useful

to provide ways for that treatment program to notify the court or another

law enforcement agency if the batterer fails to comply with his sentence.

Recent efforts to coordinate judicial responses in the United States have

focused on the use of web-based technology to share information.

Demeanor1

Judges can also affect victim safety and batterer accountability through

their demeanor. When seeking assistance through the legal system, many

victims fear retaliation from the abuser, intimidation by an unfamiliar

and complicated legal process, and disbelief by the presiding judge.

Being willing to listen, taking the women’s words seriously, considering

her needs, making eye contact—all are ways in which judges can counter

such fears. Judicial demeanor also sets the tone for the demeanor of other

courtroom personnel. If judges treat domestic violence cases seriously,

other criminal justice personnel are more likely to follow this lead.

1 Noun Outward behavior or bearing: "a quiet, somber demeanor". Synonyms demeanour - behavior - behaviour -

conduct - deportment

Page 272: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

260

4.7 ADVOCACY STRATEGIES FOR JUDICIAL REFORM

Advocates can use a number of different strategies to promote improved

judicial responses. Court monitoring, for example, helps to identify areas

of concern and increase the visibility of these issues. Regular observation

and reporting by community members on judicial responses increases the

visibility of these responses in a particular community, as well as of

domestic violence issues generally. Observing itself can also increase

judicial self-awareness; many judges may become more aware of their

own handling of domestic violence cases and the effect they can have on

perpetrators and victims simply because of the presence of outside

observers in the courtroom. Court monitoring also sends a message to

the legal system that domestic violence is a community priority.

Training of judges and other courtroom personnel (security, clerks, etc.)

can also have a significant impact on judicial responses to domestic

violence issues in the courtroom. Training can provide judges with the

information they need to better address the needs of battered women and

ensure batterer accountability. Such training can focus on challenging

the myths surrounding domestic violence, the effect of domestic violence

on victims, the needs of victims, victim experiences in courts, and the

impact of judicial demeanor on abusers. Training can help judges

become more sensitive to the needs of victims and the dynamics of

domestic violence. For example, judges should be aware of the fact that

a woman seeking to withdraw a protection order or a criminal case may

have been threatened by the abuser.

The American Judges Foundation and American Judges Association

offer a pamphlet for judges, Domestic Violence and the Courtroom:

Understanding the Problem . . . Knowing the Victim, that discusses

Page 273: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

261

forms of abuse, dynamics of domestic violence, and ways in which

judges can help protect victims of domestic violence. Portions of this

pamphlet may be particularly useful as hand outs in training sessions.

Safety and Accountability: The Underpinnings of a Just Justice System,

provides a detailed discussion of some of the barriers faced by battered

women in accessing the court system.1

1 Adapted from Judge Jerry J. Bowles, Judicial Response to Domestic Violence (2000); James Ptacek, Battered Women

in the Courtroom: The Power of Judicial Responses (1999); Richard Ducote, The Family Law Commentator 4 (1998); Gail A. Goolkasian, Confronting Domestic Violence: The Role of Criminal Court Judges 4 (1986).

Page 274: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

262

4.8 JUDICIAL INITIATIVES TOWARDS WOMEN

EMPOWERMENT

The development of a nation solely depends on the social status of

women. Women constitute almost one half of the globe's population.

Women have been victims of exploitations by male dominated society.

Women need to be empowered and men need to be oriented about their

obligations towards women. Women continue to be exploited. The

position is same everywhere wherever developed, the developing or

under developed. Women play major roles during various stages of their

life as a daughter, wife, mother and sister, etc. In spite of her

contribution to human beings, she still belongs to a backward class on

account of various social, political, economic and psychological barriers

and impediments.

On one side, woman is worshipped as goddess and on the other side she

is oppressed, suppressed, depressed, exploited and victimized by the

male dominated society. A report of the United Nations say that

"Women constitute half of the world population, perform nearly two

thirds of work hours, receive one tenth of the world’s income and own

less than one-hundredth per cent of the world's property." Women still

suffer from discrimination, exploitation and victimization. The need of

the hour is empowerment of women. Empowerment essentially means

decentralization of authority and power. It aims at getting participation

of deprived sections of people in decision-making process. It means

giving voice for voiceless.

Empowerment may mean equal status to women to develop her. Man

should give women opportunity and freedom to develop her. Women

empowerment looks at basic woman rights and attempts on organising to

Page 275: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

263

attain them. Women empowerment can influence not only their own

lives but also the lives of man and children. Women empowerment may

enhance their self-confidence and their ability and willingness to

challenge oppression. Women empowerment aims at eliminating

discrimination and challenging gender inequality. This essay discusses

the legislative and judicial initiatives towards women empowerment.

Judicial Initiative :

Though plethora of legislations exists, due to ineffective

enforcement, women are exploited by the male dominated society.

Male dominated society has found ways to circumvent the

provisions of the Act and act as a blockade against women

empowerment. Due to the failure of the legislations to protect

women, judiciary has come forward to protect women. In

protecting the women, the Indian Judiciary has removed all the

procedural shackles and has completely revolutionised

constitutional litigations. The judiciary has encouraged widest

possible coverage of the legislations by liberal interpreting the

terms. The judiciary has shifted from doctrine approach to the

pragmatic approach, which was conducive to all interests in the

society. The Courts have shown greater enthusiasm in granting the

constitutional provisions for all women. The judiciary by its

landmark judgments had filled up the gap created by the

Legislative machinery. The Judiciary had extended helping hands

to women. When the legislature had denied it, the higher judiciary

has shown concern for women’s right in recent times; it also had

been greatly influenced by the international declaration and

covenants on women’s rights.

Page 276: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

264

The vibrant judiciary has recently exalted the dignity of women by its

golden judgments. In Municipal Corporation of Delhi v. Female Workers

(Muster Roll) (AIR 2000 SC 1274)1, the Supreme Court extended the

benefits of the Maternity Benefit Act, 1961 to the Muster Roll (Daily

Wagers) female employees of Delhi Municipal Corporation. In this case,

the Court directly incorporated the provisions of Article 11 of CEDAW,

1979 into the Indian Law. In Chairman, Railway Board v. Chandrima

Doss (AIR 2000 SC 988)2, the Supreme Court awarded compensation of

10 lakhs to an alien woman under Article 21 of Constitution, who has

been a victim of rape.

In Githa Hariharan v. Reserve Bank of India (AIR 1999 SC 1149)3, the

Supreme Court interpreted Section 6(a) of Hindu Minority and

Guardianship Act, 1956 and Section 19(b) of the Guardians and Wards

Act, 1890 in such a way that father and mother get equal status as

guardians of a minor. In Mohammed Ahmed Khan v. Shah Bano (AIR

1985 SC 945)4, the Supreme Court granted equal right of maintenance

under Section 125 of Cr. P.C. 1973 to a divorced married woman

notwithstanding the personal law.

The Supreme Court also held that "large segments of society which have

been traditionally subjected to unjust treatment, women are one such

segment." In Charansingh v. Union of India (1979 Lab IC 633), the

1 Ref : Supreme Court of India Municipal Corporation Of Delhi vs Female Workers (Muster Roll) & ... on 8 March, 2000

Equivalent citations: AIR 2000 SC 1274, 2000 (2) ALT 34 SC Author: S S Ahmad Bench: S Ahmed, D Wadhwa 2 Ref : Supreme Court of India The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors on 28 January, 2000

Author: S Ahmad Bench: R.P.Sethi, S Ahmad PETITIONER:THE CHAIRMAN, RAILWAY BOARD & ORS. Vs. RESPONDENT: MRS. CHANDRIMA DAS & ORS. DATE OF JUDGMENT: 28/01/2000 BENCH: R.P.Sethi, S.Saghir Ahmad JUDGMENT: S.SAGHIR AHMAD, J. 3 Ref : Supreme Court of India Ms. Githa Hariharan & Anr vs Reserve Bank Of India & Anr on 17 February, 1999 Author:

Banerjee Bench: U C Banerjee PETITIONER: MS. GITHA HARIHARAN & ANR. Vs. RESPONDENT: RESERVE BANK OF INDIA & ANR. DATE OF JUDGMENT:17/02/1999 BENCH: Umesh C. Banerjee JUDGMENT: BANERJEE,J. 4 Ref : Supreme Court of India Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985 Equivalent citations:

1985 AIR 945, 1985 SCR (3) 844 Bench: Chandrachud, Y.V. PETITIONER: MOHD. AHMED KHAN Vs. RESPONDENT: SHAH BANO BEGUM AND ORS. DATE OF JUDGMENT23/04/1985 BENCH: CHANDRACHUD, Y.V. ((CJ)

Page 277: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

265

Delhi High Court expressed that women are a backward class as

compared to men. In Government of Andhra Pradesh v. P. B. Vijay

Kumar (AIR 1995 SC 1648)1, the Supreme Court has held that the issue

of reservation for women in State services was upheld under Article

15(3) of the Indian Constitution. In Municipal Corporation of Delhi v.

Female Workers (AIR 2000 SC 1274, 1281), the Supreme Court held

that a just social order could be achieved only when inequalities are

obliterated and women, which constitute almost half of the segment of

our society, are honoured and treated with dignity.

In Uttarakhand Mahila Kalyan Parishad v. State of Uttar Pradesh 2(AIR

1992 SC 1695), the Supreme Court struck down the discriminatory rules

of Education Department of Government of Uttar Pradesh. In Air India

v. Nargis Mirza (AIR 1981 SC 1829), the Supreme Court struck down

the discriminatory Rules of Indian Airlines. In Bodhisattwa v. Ms.

Subhra Chakraborty 3(AIR 1996 SC 922), the Supreme Court held that

rape is a crime against basic human rights.

In Vishakha v. State of Rajasthan 4(AIR 1997 SC 301), the Supreme

Court took a serious note of the increasing menace of sexual harassment

at workplace and elsewhere. Considering the inadequacy of legislation

on the point, the Court even assumed the role of legislature and defined

sexual harassment and laid down instruction for the employers. In

1 Ref: Supreme Court of India, Government Of Andhra Pradesh vs P.B. Vijayakumar & Anr on 12 May, 1995 Equivalent

citations: 1995 AIR 1648, 1995 SCC (4) 520 Author: M V Manohar Bench: M S V. PETITIONER: GOVERNMENT OF ANDHRA PRADESH Vs. RESPONDENT: P.B. VIJAYAKUMAR & ANR. DATE OF JUDGMENT12/05/1995 BENCH:MANOHAR SUJATA V. (J) 2 Ref : Supreme Court of India Uttarakhand Mahila Kalyan ... vs State Of Uttar Pradesh on 6 August, 1991 Equivalent

citations: AIR 1992 SC 1695, 1992 LablC 1788, 1993 Supp (1) SCC 480 Bench: R M I., M Kania 3 Ref : Supreme Court of India Shri Bodhisattwa Gautam vs Miss Subhra Chakraborty on 15 December, 1995 Equivalent

citations: 1996 AIR 922, 1996 SCC (1) 490 Author: S S Ahmad. Bench: A S S.PETITIONER: SHRI BODHISATTWA GAUTAM Vs. RESPONDENT: MISS SUBHRA CHAKRABORTY DATE OF JUDGMENT15/12/1995 BENCH: AHMAD SAGHIR S. (J) 4 Ref : Supreme Court of India Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997 Author: Verma Bench: S V

Manohar, B N Kirpal PETITIONER: VISHAKA & ORS. Vs. RESPONDENT: STATE OF RAJASTHAN & ORS. DATE OF JUDGMENT:13/08/1997 BENCH: CJI, SUJATA V. MANOHAR, B. N. KIRPAL

Page 278: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

266

Apparel Export Promotion Council v. A. K. Chopra 1(AIR 1999 SC

625), the Supreme Court found all facets of gender equality including

prevention of sexual harassment in the fundamental rights granted by the

Constitution. In C. B. Muthamma v. Union of India 2(AIR 1979 SC

1868) : 1979 Lab IC 1307, a service rule whereby marriage was a

disability for appointment to foreign service was declared

unconstitutional by the Supreme Court. In Shobha Rani v. Madhukar

3(AIR 1988 SC 121), the Supreme Court held that dowry demand was

held enough to amount to cruelty. In Prathibha Rani v. Suraj Kumar

(AIR 1985 SC 628), the Supreme Court upheld women’s right to the

Stridhana. In State of Punjab v. Gurmit Singh (AIR 1996 SC 1393), the

Supreme Court held that rape was held to be violative of the right of

privacy. In Bodhisathwa Gowtham v. Subhra Chakaraborty (AIR 1996

SC 622), the Supreme Court observed that rape was not only an offence

under the criminal law, but it was a violation of the fundamental right to

life and liberty guaranteed by Article 21 of Indian Constitution.

In Saveetha Samvedhi case ((1996) 1 SCR 1046), the Supreme Court

held that a married daughter was allowed accommodation in parental

house. In Delhi Domestic Working Women’s Forum v. Union of India

((1995) 1 SCC 14), the Supreme Court suggested the formulation of a

segment for awarding compensation to rape victims at the time of

convicting the person found guilty of rape. The Court suggested that the

Criminal Injuries Compensation Board or the Court should award

1 Ref : Supreme Court of India Apparel Export Promotion Council vs A.K. Chopra on 20 January, 1999 Author: D Anand

Bench: V.N.Khare PETITIONER: APPAREL EXPORT PROMOTION COUNCIL Vs. RESPONDENT: A.K. CHOPRA DATE OF JUDGMENT:20/01/1999 BENCH: V.N.Khare JUDGMENT: DR. ANAND, CJI : 2 Ref : Supreme Court of India C. B. Muthamma vs Union Of India & Ors on 17 September, 1979 Equivalent citations:

1979 AIR 1868, 1980 SCR (1) 668 Bench: Krishnaiyer, V.R. PETITIONER: C. B. MUTHAMMA Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT17/09/1979 BENCH:KRISHNAIYER, V.R. 3 Ref : Supreme Court of India, Shobha Rani vs Madhukar Reddi on 12 November, 1987 Equivalent citations: 1988 AIR

121, 1988 SCR (1)1010 Bench: Shetty, K.J. PETITIONER: SHOBHA RANI Vs. RESPONDENT: MADHUKAR REDDI DATE OF JUDGMENT12/11/1987 BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) RAY, B.C. (J) CITATION: 1988 AIR 121,1988 SCR (1)1010, 1988 SCC (1) 105 JT 1987 (4), 433 ,1987 SCALE (2)1008

Page 279: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

267

compensation to the victims by taking into account, the pain, suffering

and shock as well as loss of earnings due to pregnancy and the expenses

of child birth if this occurs as a result of rape.

In Gourav Jain v. Union of India1 (AIR 1997 SC 3012), the Supreme

Court laid down guidelines including the necessity of counselling,

cajoling, and coercing the women to retrieve from prostitution and

rehabilitate them.

Findings

The legislations, which take care of rights and privileges of women, are

numerous in number. But due to ignorance and illiteracy those

legislations cannot be properly enforced. The plethora of Indian

Legislations aims at women empowerment. The judicial decision

rendered by the Indian Courts depicts the active role played by the

judiciary to protect women from exploitation at a stage where

legislations are uniformed due to lack of adequacy of enforcement

machinery. The legislative and judicial initiatives have placed the

women in a better place in the society. Yet the woman in India has to go

for miles to achieve cent percent empowerment.

1 Ref : Supreme Court of India Gaurav Jain vs Union Of India & Ors on 9 July, 1997 Bench: K Ramaswamy PETITIONER:

GAURAV JAIN Vs. RESPONDENT: UNION OF INDIA & ORS. DATE OF JUDGMENT: 09/07/1997 BENCH: K. RAMASWAMY ACT: HEADNOTE: JUDGMENT: WITH WRIT PETITION (CRL.) NOs. 745-54 OF 1950

Page 280: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

268

4.9 PUBLIC INTEREST LITIGATION IN INDIA1

One of the earliest cases of public interest litigation was reported as

Hussainara Khatoon (I) v. State of Bihar2. This case was concerned with

a series of articles published in a prominent newspaper - the Indian

Express which exposed the plight of undertrial prisoners in the state of

Bihar.

A writ petition was filed by an advocate drawing the Court’s attention to

the deplorable plight of these prisoners. Many of them had been in jail

for longer periods than the maximum permissible sentences for the

offences they had been charged with. The Supreme Court accepted the

locus standi of the advocate to maintain the writ petition. Thereafter, a

series of cases followed in which the Court gave directions through

which the ‘right to speedy trial’ was deemed to be an integral and an

essential part of the protection of life and personal liberty.

Soon thereafter, two noted professors of law filed writ petitions in the

Supreme Court highlighting various abuses of the law, which, they

asserted, were a violation of Article 21 of the Constitution. These

included inhuman conditions prevailing in protective homes, long

pendency of trials in court, trafficking of women, importation of children

1 Public-Interest Litigation (PIL) is litigation for the protection of the public interest. In Indian law, Article 32 of the

Indian constitution contains a tool which directly joints the public with judiciary. A PIL may be introduced in a court of law by the court itself (suo motu), rather than the aggrieved party or another third party. For the exercise of the court's jurisdiction, it is not necessary for the victim of the violation of his or her rights to personally approach the court. In a PIL, the right to file suit is given to a member of the public by the courts through judicial activism. The member of the public may be a non-governmental organization (NGO), an institution or an individual. The Supreme Court of India, rejecting the criticism of judicial activism, has stated that the judiciary has stepped in to give direction because due to executive inaction, the laws enacted by Parliament and the state legislatures for the poor since independence have not been properly implemented. 2 Ref : Supreme Court of India, Hussainara Khatoon & Ors vs Home Secretary, State Of Bihar, on 9 March, 1979

Equivalent citations: 1979 AIR 1369, 1979 SCR (3) 532 Bench: Bhagwati, P.N. PETITIONER: HUSSAINARA KHATOON & ORS. Vs. RESPONDENT: HOME SECRETARY, STATE OF BIHAR, PATNA DATE OF JUDGMENT09/03/1979 BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. DESAI, D.A. CITATION: 1979 AIR 1369 1979 SCR (3) 532 ,1980 SCC (1) 98 CITATOR INFO :R 1981 SC 928 (4) ,D 1982 SC 710 (92), R 1983 SC 361 ((2)19),RF 1983 SC 465 (5,17),R 1983 SC 624( 10), R 1986 SC 180 (39) ,R 1986 SC 991 (5), RF 1992 SC1701 (29)

Page 281: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

269

for homosexual purposes, and the non-payment of wages to bonded

labourers among others.

The Supreme Court accepted their locus standi to represent the suffering

masses and passed guidelines and orders that greatly ameliorated the

conditions of these people.

In another matter, a journalist, Ms. Sheela Barse , took up the plight of

women prisoners who were confined in the police jails in the city of

Bombay. She asserted that they were victims of custodial violence. The

Court took cognizance of the matter and directions were issued to the

Director of College of Social Work, Bombay. He was ordered to visit the

Bombay Central Jail and conduct interviews of various women prisoners

in order to ascertain whether they had been subjected to torture or ill-

treatment. He was asked to submit a report to the Court in this regard.

Based on his findings, the Court issued directions such as the detention

of female prisoners only in designated female lock-ups guarded by

female constables and that accused females could be interrogated only in

the presence of a female police official.

Public interest litigation acquired a new dimension – namely that of

‘epistolary jurisdiction’ 1with the decision in the case of Sunil Batra v.

Delhi Administration2, It was initiated by a letter that was written by a

prisoner lodged in jail to a Judge of the Supreme Court. The prisoner

1 Ref : Epistolary Jurisdiction extended by the apex court is one of the most significant procedural innovations to secure

justice for all. Encouraging letter petitions is based on the idea of easy and effective access to all without any procedural burden. In order to avoid misuse of letter petitions under the guise of Public Interest Litigation, Public Interest Litigation and information cell, has been set up on Supreme Court of India with a full-fledged staff to deal with its epistolary jurisdiction. 2 Ref : Supreme Court of India, Sunil Batra vs Delhi Administration on 20 December, 1979 Equivalent citations: 1980 AIR

1579, 1980 SCR (2) 557 Bench: Krishnaiyer, V.R. PETITIONER: SUNIL BATRA Vs. RESPONDENT: DELHI ADMINISTRATION DATE OF JUDGMENT20/12/1979 BENCH: KRISHNAIYER, V.R. BENCH: KRISHNAIYER, V.R. PATHAK, R.S. REDDY, O. CHINNAPPA (J) CITATION: 1980 AIR 1579 1980 SCR (2) 557 1980 SCC (3) 488 CITATOR INFO :R 1981 SC 625 (7,8,11,12,14), R 1981 SC 746(3,4), R 1981 SC1767 (11,13,21,23), R 1982 SC 149(16), R 1982 SC 710(108,109) R1986 SC 180 (39)

Page 282: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

270

complained of a brutal assault committed by a Head Warder on another

prisoner. The Court treated that letter as a writ petition, and, while

issuing various directions, opined that:

“…technicalities and legal niceties are no impediment to the court

entertaining even an informal communication as a proceeding for habeas

corpus if the basic facts are found”.

Page 283: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

271

4.10 A defence of ‘judicial activism’1

The expansion of ‘judicial review’ (which is often described as ‘judicial

activism’) has of course raised the popular profile of the higher judiciary

in India. However, arguments are routinely made against the

accommodation of ‘aspirational’ directive principles within the ambit of

judicial enforcement. There are two conceptual objections against the

justiciability to these positive obligations.

The first is that if judges devise strategies to enforce the directive

principles, it amounts to an intrusion into the legislative and executive

domain. It is reasoned that the articulation of newer fundamental rights is

the legislature’s task and that the judiciary should refrain from the same.

Furthermore, it is posed that executive agencies are unfairly burdened by

the costs associated with these positive obligations, especially keeping in

mind that these obligations were enumerated as directive principles by

the framers on account of practical considerations. This criticism mirrors

the familiar philosophy of ‘judicial restraint’ when it comes to

constitutional adjudication.2

However, the second objection to the reading in of positive obligations

raises some scope for introspection amongst judges. It can be argued that

the expansion of justiciability to include rights that are difficult to

enforce takes away from the credibility of the judiciary in the long-run.

1 Ref : Christopher Wolfe, Judicial activism, Rowman & Littlefield, ISBN 0-8476-8531-4.

Judicial activism describes judicial rulings suspected of being based on personal or political considerations rather than on existing law. It is sometimes used as an antonym of judicial restraint.[1] The definition of judicial activism, and which specific decisions are activist, is a controversial political issue, particularly in the United States. The question of judicial activism is closely related to constitutional interpretation, statutory construction, and separation of powers. 2 Ref : Kmiec, Keenan D. (2004). "The Origin and Current Meanings of 'Judicial Activism'". Cal. L. Rev. 92: 1441, 1447.

"Schlesinger's article profiled all nine Supreme Court justices on the Court at that time and explained the alliances and divisions among them. The article characterized Justices Black, Douglas, Murphy, and Rutledge as the 'Judicial Activists' and Justices Frankfurter, Jackson, and Burton as the 'Champions of Self Restraint.' Justice Reed and Chief Justice Vinson comprised a middle group."

Page 284: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

272

The judicial inclusion of socio-economic objectives as fundamental

rights can be criticised as an unviable textual exercise, which may have

no bearing on ground-level conditions. In turn the unenforceability and

inability of state agencies to protect such aspirational rights could have

an adverse effect on public perceptions about the efficacy and legitimacy

of the judiciary.

The prescription of normative rights always carries the risk of poor

enforcement. However, the question we must ask ourselves is whether

poor enforcement is a sufficient reason to abandon the pursuit of rights

whose fulfilment enhances social and economic welfare. At this point,

one can recount Roscoe Pound’s thesis on law as an agent of social

change. The express inclusion of legal rights is an effective strategy to

counter-act social problems in the long-run. At the level of constitutional

protection, such rights have an inherent symbolic value which goes

beyond empirical considerations about their actual enforcement.

The colonial regime in the Indian subcontinent periodically made

legislative interventions to discourage retrograde and exploitative social

practices such as Sati (immolation of widows), prohibition of widow-

remarriage and child marriage. Even though there have been persistent

problems in the enforcement of these legislations, in the long run they

have played an important part in reducing the incidence of these unjust

customs. It is evident that in the short run even the coercive authority of

law may not be enough of a deterrent, but in the long run the very fact of

the continued existence of such authority helps in creating public opinion

against the same practices. In the same way the framers of our

Constitution sought to depart from the inequities of the past by

enumerating a whole spectrum of rights and entitlements.

Page 285: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

273

While the understanding of ideas such as ‘social equality’ and ‘religious

freedom’ is keenly contested in the legislative as well as judicial

domains, there is no doubt that constitutional rights have been an

important tool of social transformation in India. The enumeration of the

various civil liberties and protections against arbitrary actions by the

state are now identified as core elements of citizenship and violations

provoke a high standard of scrutiny both by the judiciary as well as civil

society groups.

The inclusion of entitlements such as universal adult franchise have

greatly reduced the coercive power of casteist and feudal social

structures and empowered political parties that represent historically

disadvantaged sections such as the Scheduled Castes (SC) and Scheduled

Tribes (ST). Even though practices such as untouchability, forced labour

and child labour have not been totally eradicated, our constitutional

provisions prohibiting the same are the bedrock behind legal as well as

socio-political strategies to curb the same. The Supreme Court of India

has further internalized the importance of laying down clear normative

standards which drive social transformation.

Its interventions through strategies such as the expansion of Article 21

and the use of innovative remedies in Public Interest Litigation (PIL)

cases has actually expanded the scope and efficacy of constitutional

rights by applying them in previously un-enumerated settings.

Furthermore, the Courts allow groups and interests with unequal

bargaining power in the political sphere to present their case in an

environment of due deliberation.

The dilution of the rules of standing among other features has allowed

the Courts to recognize and enforce rights for the most disadvantaged

Page 286: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

274

sections in society through an expanded notion of ‘judicial review’. Even

though the framers of our Constitution may not have thought of these

innovations on the floor of the constituent assembly, most of them would

have certainly agreed with the spirit of these judicial interventions.

Page 287: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

275

4.11 KHAP PANCHYAT1:

During the past few years, marriages within ‘gotra’ (clan) of the Jat

community have come into the limelight. Frequently, those couples who

have eloped have been brutally murdered by the diktats of the elders—

these are known as ‘honour killings’2. Many such incidents have

occurred in Haryana, Western Uttar Pradesh and the rural belt of Delhi.

These areas have reaped the fruits of modernization and access to

various facilities such as educational institutions, health centres,

modernized roads and multinational business establishments that have

encouraged foreign investment. There exists a vast gulf between this

modernization and the almost feudal mind sets of people like the ‘Khap

Panchayats’ who force couples who have entered intra-gotra marriages

to return to the community fold, even to the extent of forcing the couples

to live like siblings. A large number of such wedded couples have even

lost their lives. Thus, as per their gotra affinity, the Khap Panchayats

consider them as brother and sister. The Khap Panchayats try to

legitimize their actions by quoting historical antecedents of uncertain

origin to support their practices. They are of the opinion that the Khap

Panchayat is an age old institution, having its foundation in the early

medieval period.

1 Ref : The forms of governing society are that of the Sabha (Hindi: ) or samiti (Hindi: ), which mean

"gathering" and "assembly", respectively. The Sabhapati, the president of the Sabha, was an elected official 2 Def : An honor killing, or honour killing is the homicide of a member of a family or social group by other members,

due to the belief of the perpetrators that the victim has brought dishonor or shame upon the family or community. It is a traditional practice that occurs in various cultures. Victims of honor killings are killed for reasons such as refusing to enter an arranged marriage, being in a relationship that is disapproved by their relatives, having sex outside marriage, becoming the victim of rape, dressing in ways which are deemed inappropriate, or engaging in homosexual relations.

Page 288: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

276

Manoj-Babli honour killing case1:

The Manoj-Babli honour killing case was the honour killing of Indian

newly-weds Manoj Banwala and Babli in June 2007 and the successive

court case which historically convicted defendants for an honour killing.

The killing was ordered by a khap panchayat (khap), a religious caste-

based council among Jatts, in their Karora village in Kaithal district,

Haryana.

The khap passed a decree prohibiting marriage against societal norms.

Such caste-based councils are common in the inner regions of several

Indian states, including Haryana, Punjab, western Uttar Pradesh, and

parts of Rajasthan, and have been operating with government approval

for years. In any event, the state government expressed no concern about

the ruling of the khap panchayat.

The Khap panchayat's ruling was based on the assumption that Manoj

and Babli belonged to the Banwala gotra, a Jat community, and were

therefore considered to be siblings despite not being directly related and

any union between them would be invalid and incestuous. Nevertheless

the couple went ahead with their marriage, following which they were

abducted and killed by Babli's relatives.

In March 2010 a Karnal district court sentenced the five perpetrators to

be executed, the first time an Indian court had done so in an honour

killing case. The khap head who ordered but did not take part in the

killings received a life sentence, and the driver involved in the abduction

a seven-year prison term. According to Home Minister P. Chidambaram,

the UPA-led central government was to propose an amendment to the

1 Murder Reference No.2 of 2010Criminal Appeal No.479-DB of 2010 and Criminal revision No.2173 of 2010

Page 289: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

277

Indian Penal Code (IPC) in response to the deaths of Manoj and Babli,

making honour killings a "distinct offense"

Background

Manoj's and Babli's families lived in Karoran Village, Kaithal. Manoj's

mother, Chanderpati Berwal, had four children, of which Manoj was the

eldest. Chanderpati was widowed at the age of 37, when Manoj was only

Manoj owned an electronics repair shop at Kaithal and was the only

member of his family receiving income. Manoj's cousin, Narender, lived

with the family and worked in Panchkula.

Babli's mother, Ompati, also had four children, including eldest son,

Suresh, and Babli. Like Manoj, Suresh was the only earning member of

the family. Babli was still studying in school. Ompati is a widow.

Development of the relationship and subsequent marriage:

In 2005, Manoj and Babli began to show interest in each other. Manoj

was two years older than Babli. All residents of their Karora village

belong to the same caste of Banwala, a Jat community, and marrying

within the caste is considered a sacrilege. Chanderpati recalled, "We

knew about Babli long before they decided to marry each other. She

would call up often and I would sermonize to her about staying away

from Manoj, fearing the fallout of such an alliance. They were, however,

unconcerned and chatted for hours together. If I did walk into the room

while they were talking, Manoj would quickly disconnect the phone and

run off to avoid any questioning." She continued, "I even went to Babli's

house and told her mother that Manoj and Babli were seeing each other.

I asked her to dissuade Babli or quickly marry them before the word

spread."

Page 290: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

278

Two years later, on 5 April 2007, Chanderpati last saw Manoj. "He ate

his food and left to sleep at the shop since he had a class XII

compartment exam in English to take the next day. Unlike other days,

next morning, he did not show up." The following day Babli's uncle

arrived to speak with Manoj. According to Chanderpati, "He said he had

come to recover some money that Manoj had borrowed, had tea and left

when I told him that Manoj was away for an exam. We only discovered

late in the evening that Babli, too, was missing and the two had run

away." Manoj had eloped with Babli to Chandigarh and married her on

April at a Durga temple, their commitment to one another transcending

their willingness to abide by the societal norms.

Furious with the marriage, Babli's family asked for intervention from the

local khap panchayat, which annulled the marriage. The khap also

announced a social boycott on Manoj's family. Anyone who kept ties

with them would be fined ₨25,000. Ompati tried to persuade her family

that Babli did nothing dishonorable and that she and Manoj would move

back home soon.

Court appearance:

On 26 April, Babli's family filed a First Information Report (FIR) against

Manoj and his family for kidnapping Babli. On 15 June, Manoj went to

court with Babli, testifying that they had married in conformity with the

law and that he did not kidnap Babli. The judge ordered police protection

for the two. Chandrapati did not attend the trial so that Babli's family

would not be aware that Manoj and Babli were in town.

After the trial, Manoj and Babli, accompanied by a team of five police

officers assigned to them for protection, left for Chandigarh. The police

left them at Pipli and slipped away. Suspecting foul play, Manoj and

Page 291: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

279

Babli did not continue toward Chandigarh, instead boarding a bus for

Karnal. According to a statement filed by Chanderpati, later that day,

around 3:40 pm, she received a call from a Pipli telephone booth from

Manoj, who said that the police had deserted them, and Babli's family

members were trailing them, so they would try to take a bus to Delhi and

call her back later. Babli asked for acceptance from Chanderpati, who

replied affirmatively. That was the last time Manoj's family heard from

the couple.

On 20 June, Chanderpati's complaint regarding the kidnapping was filed

as an FIR at the Bhutana police station following media pressure on the

police.

Kidnapping and murder:

The couple's bus left for Delhi, but en route at 4:30 pm, Babli's relatives

stopped the bus near Raipur Jatan village, about 20 kilometres (12 mi)

from Pipli. They kidnapped the couple in a Scorpio SUV driven by

Mandeep Singh. Kuldip Thekedar, a road contractor, witnessed the

kidnapping and filed a complaint at the Butana police station in Karnal

district, giving the licence plate number of the Scorpio. Later,

Chanderpati ascribed the murder to the unauthorised withdrawal of the

couple's security team ignoring the orders given by the district and

sessions judge (DSJ) of Kaithal. Upon receiving no further news,

Chanderpati's nephew, Narendra Singh traced the contractor, and after he

was shown a photo of the couple, the contractor recognised the couple.

The family then understood that Manoj and Babli were the victims of the

kidnapping.

After the kidnapping, the couple were beaten. Babli's brother Suresh

forced her to consume pesticide, while four other family members

Page 292: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

280

pushed Manoj to the ground, her uncle Rajinder pulling a noose around

Manoj's neck and strangling him in front of Babli. They wrapped the

bodies in gunny sacks and dumped them in Barwala Link Canal in Hisar

district. On 23 June, nine days later, their mutilated bodies, hands and

feet tied, were fished out of the canal by Kheri Chowki police. After

autopsy, police preserved Manoj's shirt and Babli's anklet and cremated

the bodies as unclaimed on 24 June. On 1 July the family identified them

by the remnants of their clothing. The accused were subsequently

arrested.

Police discovered a number of articles in the Scorpio used to kidnap the

couple—parts of Babli's anklet, two buttons from Manoj's shirt, and torn

photographs of the couple. Manoj's purse was found on one of the

accused.

Page 293: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

281

4.12 COURT JUDGEMENT AGAINST KHAP1:

No Karnal lawyer would adopt the case, so Manoj's family had to find

lawyers from Hisar. Later on Adv. Sunil Rana from karnal accepted the

case, arguing on their behalf public prosecutor Sunil Rana and lawyers

Lal Bahadur, Surat Singh, Cornel Omparkash, and Rakesh Manjhu from

Hisar, Haryana. Bahadur argued that the couples' clothes recovered from

the canal and photographs from the Scorpio established that day's

happenings. Bahadur also cited the contractor's statement and the last

phone call from Manoj, in which Manoj had related that Babli's relatives

were trailing them. However, the contractor "turned hostile" and

withdrew his statement.2

Arguing for the defence was lawyer Jagmal Singh. He asserted that there

was no evidence against the accused and that it was all contrived by the

media, no evidence that the khap panchayat ever met to discuss the fate

of the couple, and no evidence indicating that Manoj and Babli were

dead. The cremated bodies recovered from the canal were never

confirmed to be those of Manoj and Babli.

On 29 March 2010, after 33 months of 50 hearings with 41 witnesses,

the karnal District court found the accused guilty of murder, kidnapping,

conspiracy, and destroying evidence under respective sections in the

IPC. The next day, 30 March, for the first time in Haryana state history,

a death penalty verdict was announced in the double murder case for the

five accused. All were related to Babli, and included her brother Suresh,

cousins Gurdev and Satish, paternal uncle Rajender, and maternal uncle

1 Ref : Conflicting reports exist as to when Ompati's husband died. According to the judge of the case, Vani Gopal

Sharma, her husband died two years before the murder.According to a quote from Ompati, her husband died of trauma after the murder. The Tribune reported that Ompati's husband had died when her "children were very young". 2 Ref : There were different reports of the number of khap panchayats comprising the maha khap panchayat. Some

sources reported 20,while others recorded 36,and one even said 200.

Page 294: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

282

Baru Ram. The leader of the khap panchayat Ganga Raj was given a life

sentence for conspiracy, while the driver, Mandeep Singh, held guilty of

kidnapping, was given a jail term of seven years. The court asked the

Haryana government to provide a compensation of ₨100,000 to

Chanderpati, who had filed the case. Ganga Raj was fined ₨16,000, and

the other six convict’s ₨6,000 each.

The court also accused six police personnel of dereliction of duty and

directed the SSP of Kaithal to take action against them. The personnel

included head constable Jayender Singh, sub-inspector Jagbir Singh, and

the members of the escort party provided to the couple. They claimed

that the couple wanted them to leave. The SSP's statement was that "it is

correct that the deceased couple had given in writing not to take police

security any further, but Jagbir Singh was well aware that there was a

threat to their lives from the relatives of the girl." The report stated that

Jayender informed Gurdev Singh of the location of the police and that of

Manoj and Babli over his mobile phone. Jayender was dismissed from

the police force, and both he and Jagbir were penalised by a cut of two

increments.

In her verdict, district judge Vani Gopal Sharma stated, "This court has

gone through sleepless nights and tried to put itself in the shoes of the

offenders and think as to what might have prompted them to take such a

step."Khap panchayats have functioned contrary to the constitution

ridiculed it and have become a law unto them."

Bahadur was satisfied with the decision, "Out of seven accused, five

have been given death sentences. This will send a strong message to the

public that law is greater than the khap."However, he was disappointed

that "the leader [Ganga Raj] got away with death penalty because he

intentionally disappeared during the killing." Narendra said, "We will

Page 295: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

283

appeal in High Court for death penalty to the main accused, Ganga Raj.

We respect the court's decision but he should be punished so that the

instigators of the crime get the punishment. Also it is important that it is

a very clear message so that no khap gives such directions, ever." Seema

seconded Narendra's concerns, "We would have been happier if the main

accused was also given the death sentence. The decision of the

panchayat was not justified and people should not to be allowed to

misuse their power. We have fought this battle alone when no one was

supporting us." She requested more security for her family, "They tried

to bribe us to withdraw the case then they threatened that they would kill

us if we didn't withdraw the FIR. Even after the decision we're afraid of

a backlash from the Khap Panchayat."

Page 296: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

284

4.13 SOME CASES OF HONOUR KILLINGS IN INDIA:

A number of such increasing cases like that of Ved Pal and Sonia have

shown the truth of the khap panchayats in India where these notorious

khaps have, in one way or the other, indulged in crimes by convincing

people on how they have invoked the ire of their respective khaps.

1. THE CASE OF MONICA AND RINKU, HARYANA1 :

In the Nimriwali village of Haryana, Monica (18) and her lover

Rinku, who belonged to the same Jat community were brutally

killed by the girl's father, brother, uncle and cousins, and were

hanged as exhibits in front of their house. The family members of

the girl gave a shape to this crime under the directions and

guidance of the Khap Panchayat. After the murder of Monica and

Rinku, the Supreme Court, on June 21, 2010 gave notices, to take

action against these rapidly increasing killings, to the Centre,

Haryana and six other State governments. But even this had no

effect on the situation.

1 Ref : Punjab-Haryana High Court Rinku @ Narender Kumar vs State Of Haryana on 4 March, 2010 Crl. Appeal

No.1416, 1523, 1665 & 1779-SB of 2003 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No.1416-SB of 2003,1. Rinku @ Narender Kumar .....Appellant v. State of Haryana .....Respondent ... Crl. Appeal No.1523-SB of 2003,2. Sandeep .....Appellant v. State of Haryana .....Respondent ...Crl. Appeal No.1665-SB of 2003,3. Dariya Singh .....Appellant v. State of Haryana .....Respondent ... Crl. Appeal No.1779-SB of 2003,4. Vinod Kumar .....Appellant v. State of Haryana .....Respondent Date of decision: 4 - 3 – 2010 Crl. Appeal No.1416, 1523, 1665 & 1779-SB of 2003 [2] CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr.B.R.Gupta, Advocate for the appellant in Crl. Appeal No.1416-SB of 2003. Ms.Monica Jalota, Advocate Amicus curiae for the appellant in Crl. Appeal No.1523-SB of 2003. Mr.D.N.Ganeriwala, Advocate for the appellant in Crl. Appeal No.1665-SB of 2003. Mr.J.V.Yadav, Advocate for the appellant in Crl. Appeal No.1779-SB of 2003. Mr.Ravish Kaushik, AAG, Haryana.

Page 297: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

285

2. THE CASE OF NIRUPAMA PATHAK,JOURNALIST-

JHARKHAND 1

In April 2010, in Jharkhand, even a woman journalist was made

subject to a ruthless murder in the name of honour. Nirupama, a

22-year old journalist, who comes from a Brahmin family, was in

love with a boy from another caste and thus, was brutally

murdered in the name of honour.

Even a journalist could not escape from this game of crime, then imagine

what the girls in villages have to go through every day?!

3. THE CASE OF SIVAKUMAR AND MEGALA, TAMIL NADU2 :

The menace of honour killings under the pressure of these khap

has undoubtedly spread its tentacles all over India. Yet another

story, shockingly from a South Indian State, and not north India

this time, in Tamil Nadu, goes where in Shivganga, a 20-year old

girl, Megala was told that she could not marry her lover, 24-year

old Sivakumar as they were related and so her family got their

daughter married somewhere else in June, 2010 from where she

eloped with her lover, ten days after the wedding. The couple was

finally traced by the family and Sivakumar was cruelly killed with

1 Ref : Jharkhand High Court ,Priyabhanshu Ranjan vs State Of Jharkhand on 30 April, 2013 IN THE HIGH COURT OF

JHARKHAND AT RANCHI Cr. M.P. No. 2351of 2012 Priyabhanshu Ranjan...................... Petitioner Versus State of Jharkhand ............ Opp. Party ......Coram: Hon'ble Mr. Justice R.R.Prasad ...... For the Petitioner : Mr. Shree Krishna Murari, Advocate For the State : Mr. APP.......3./30.04.2013 Heard learned counsel appearing for the petitioner and the learned counsel for the State. This application has been filed for quashing of the entire criminal proceedings of Koderma (T) P.S.Case No. 171/2010, including the order dated 25/07/2012, passed by the then Additional Chief Judicial Magistrate, Koderma, whereby and whereunder cognizance of the offence punishable under Section 306 of the Indian Penal Code, has been taken against the petitioner. 2 Ref : Madras High Court, Rajani Sivakumar vs Duraikannu on 25 January, 2010 DATED: 25.01.2010 CORAM: THE

HONOURABLE MS.JUSTICE R.MALA S.A.No.563 of 2003 & C.M.P.No.5013 of 2003 1. Rajani Sivakumar 2. Ramesh .. Appellants Vs. 1. Duraikannu 2. Ravi Mohan (for himself and as joint family manager) 3. Velambal (died) (Vide Memo recorded, dated 8.12.2009) .. Respondents Second Appeal against the judgment and decree dated 25.11.2002 in A.S.No.44 of 2002 on the file of the Principal District Court, Nagapattinam, against the judgment and decree dated 14.8.2001 in O.S.No.202 of 1997 on the file of the Additional Sub-Court, Nagapattinam. For appellants : Mr.Chandramouli, Senior Counsel for Mr.A.Muthukumar For respondents : Mr.S.V.Jayaraman, Senior Counsel for Mr.T.A.Shagul Hameed for RR-1 &amp

Page 298: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

286

sickles. The family justified the killing of her lover on the grounds

that she brought disgrace to their caste and family.

4. THE CASE OF RAVINDER, JHAJJAR DISTRICT 1:

In the Dhrana village of Jhajjar district, Ravinder Gehlawat had

“dared” to marry a girl from the Kadiyan gotra. The norms of

Kadiyan khap in 12 villages, which included Ravinder's village as

well, considered Kadiyan and Gehlawat to be of the same gotra

and of the same family, and thus considered Ravinder and his wife

to be related, as according to them they were brother and sister.

Ravinder and his family were threatened by the girl's family and

asked to leave the village. For this the Gehlawat family had 500

policemen protecting the dozen member of their family but in no

vain.

4.14 SUPREME COURT'S CRITICISM ON KHAP

PANCHAYATS:

On April 19 2011, Supreme Court wants a strict criminal action against

people forming and ruling in khaps, emphasizing that the khap

panchayats are illegal and the honour killings they enforce to be

“Barbaric and shameful”2, along with demanding action against the

police authorities and bureaucrats who fail to prevent them. According to

Supreme Court, these khap panchayats encourage honour killings or

other atrocities in an institutionalized way on boys and girls belonging to

different castes, who have been married or are going to get married. On

grounds that these khaps interfere with the personal life of the people, 1 Ref : Punjab-Haryana High Court Smt. Poonam vs Ravinder Hooda TA No. 274 of 2008 1 IN THE HIGH COURT OF

PUNJAB AND HARYANA AT CHANDIGARH TA No. 274 of 2008 Decided on : 15-04 -2009 Smt. Poonam ....Applicant VERSUS Ravinder Hooda....Respondent CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER 2 Ref : Venkatesan, J. (20 April 2011). "Stamp out khap panchayats: court". The Hindu (Chennai, India)

Page 299: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

287

Justice Katju said, “Atrocities in respect of personal lives of people

committed by brutal, feudal-minded persons deserve harsh

punishment”1.

Even after the continued cruel practices of these khaps for long and the

crucial judgement by the Supreme Court, the heads of these panchayats

have disapproved of the decision of the Supreme Court and said that they

have been denied justice. The supporters still stick to their view that

these Khap Panchayats have been there since time immemorial under

which laws have been formed by their forefathers for their own benefits

and protection, and that the khaps do not aim to and nor they have

harmed anyone. Even the Chief Minister supports this view. The Khaps

thus decided to file a review petition in the apex courts after hearing the

statement of the Supreme Court.

4.15 CONCLUSION:

Only in one honor killing case so far, has the court come down hard on

those involved. I refer the historic judgement above in case of Manoj-

Babli honor killing case of Kaithal Distict in Hariyana, where the khap

panchayat ruled that they belonged to the same gotra.

The law in any case can do only so much. What have to change are

attitudes and traditions. How can we talk of Independence or

empowerment, if on an issue as basis as marriage, women & men are

told they have no choice? And worse that defying tradition means

inviting the death penalty. How long such a situation be accepted by

civilized society? How many more women & men, must die before some

sense prevails?

1 Ref : J. Venkatesan (20 April 2011). "Stamp out khap panchayats: court". The Hindu - Issue New Delhi, April 20, 2011

(Chennai, India).

Page 300: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

288

5

Dowry Death-

Case study of

Jharkhand

State

Page 301: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

289

5.1 INTRODUCTION:

On May 23 this year, Anil Mahto (21) of Hazaribagh bludgeoned his 19-

year-old wife Dina Devi to death because her father failed to gift him a

two-wheeler. The couple had married barely a month before on April 28.

Same day, same city, a 19-year-old married woman, later identified as

Suman, was discovered in a water tank. Hazaribagh police suspected this

was also a dowry death.

In 2012, there were 309 dowry deaths in Jharkhand, according to the

National Crime Records Bureau. In 2011, it was 282 and in 2010, 246.

Police are yet to update 2013 figures in full, but with Sumans and Dinas

turning up dead, it is safe to assume that the shameful upswing is very

much on.

District-wise, in 2012, Dhanbad clocked the maximum dowry deaths —

49. Giridih, Palamau, Hazaribagh, East Singhbhum and Ranchi followed

with 32, 26, 23, 17 and 16, respectively.

In all, save Ranchi and Palamau, the corresponding numbers the

previous year were lesser. In 2011 for instance, Dhanbad clocked 33

dowry deaths, which is 16 less compared to 2012.

India prohibited dowry through legislation in 1961 but as the social evil

was sanctioned by custom, there was little impact. In 1986, Indian Penal

Code was amended to include section 304B, specifically against murder

Page 302: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

290

following harassment for dowry. Section 498A was added to define

“harassment and cruelty” meted out by husbands and in-laws.

It has taken another 25 years for families or married women to slowly

brave stigma, but if the rising dowry deaths in Jharkhand are any

indication, the tide against this evil is yet to turn.

State women’s commission chairperson Hemlata S. Mohan said the

social evil was entrenched in customs. “The problem can’t be uprooted

in isolation. We need to involve college students and NGOs. Eradicating

dowry deaths will be possible when we stress on the education of girls,”

she said.

Mohan said the commission would write to all deputy commissioners

and the superintendent of police in every district to ensure higher

conviction rates and swift penalty. “The last man and woman in society

needs to know that no one can get away scot-free in a dowry death,” she

said.

Sundari Tirkey, chairperson of Ranchi Zilla Parishad, said awareness and

attitudes had changed.

“Look, families of girls are not hushing up cases now. They are coming

forward. At the same time, much needs to change as families also

continue to save money for dowry. We need to brainstorm with

intellectuals, women’s organisations and government functionaries to

come up with a strategy to bring an end to dowry deaths as well as other

violence on women,” she said.

In spite of knowing that dowry is a dreadful things, people still commit

murder for dowry.

How should such crimes be treated?

Page 303: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

291

No amount of education will change these people.

They should be treated as the rarest of rare crimes and the death penalty

should be awarded.

We have a population of 1.2 billion, ie. 1,200,000,000.

There were 309 dowry deaths in Jharkhand in 2012

There are 28 states and 6 Union territories in India.

However some 50% of the states have almost zero dowry deaths.

Assuming that 309 is a representative figure for 17 states we would be

having around 5250 dowry deaths throughout India. Let us assume there

are an equal number of rapists.

That would bring the figure to 10500.

We can surely afford to lose these 10500 by hanging in our population of

1.2 billion.

It would be a deterrent to the rest of the population and remove a stigma

to India.

Unfortunately this will never be carried out for the politicians are the

main culprits together with the rich and super-rich who cause these

deaths.

Page 304: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

292

5.2 HISTORY OF DOWRY SYSTEM IN INDIA:

The dowry system is thought to put great financial burden on the bride's

family. It has been one of the reasons for families and women in India

resorting to sex selection in favour of sons. This has distorted the sex

ratio of the India (940 females per thousand males) and has given rise to

female foeticide. The payment of a dowry has been prohibited under The

1961 Dowry Prohibition Act in Indian civil law and subsequently by

Sections 304B and 498a of the Indian Panel Code.

Dowry was not a part of the Indian marriage before European influence

crept into the society. The earliest example of Europeans practicing the

dowry in India, the case of Mumbai, which was presented as part of the

dowry when Princess Catherine de Braganza of Portugal was married to

King Charles II in 1661. The native population disliked practicing

dowry, as they believed that this would lead "obliged to buy them

husbands". Writes Alex Knox, when addressed to David Doig, Lord

Provost of Montrose, "As I observed before, their marriages are all

conducted by the parents during the parties infancy, the expense of this

ceremony, which is considerable according to the ranks of the persons

married, is always from the bridegroom's family, nor is it customary to

give any fortunes with their daughters, because it should not be said they

were obliged to buy them husbands, for this custom it seems they despise

the Europeans very much."

Page 305: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

293

5.3 Law Against Dowry System:

Dowry became prohibited by law in 1961 with the purpose of prohibiting

the demanding, giving and taking of dowry. To stop the offences of

cruelty by husband or his relatives on the wife, section 498-A was added

in Indian Penal Code and section 198-A in the Criminal Procedure Code

in the year 1983.

Role of Dowry in Corruption:

According to one survey conducted by reputed Indian news magazine

India Today, over 90% of government servants actively seek and get

dowry in marriage. It is a common feature for unmarried government

servants to seek dowry relevant to the market rates of their post. These

rates are sky-high, with an estimate of dowry rates for a bachelor IAS

Officer (Indian Administrative Services) being as high as Rs 50 Lac to

Rs 5 Crore (up to USD 1 Million). These high rates are one of the

primary reasons for corruption as young IAS officers after marriage are

forced to take bribes to maintain their new lifestyle and match the

financial status of their wealthy in-laws.

Page 306: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

294

5.4 CASE STUDY ON DOWRY DEATH IN THE STATE OF

JHARKHAND:

Case Note1 :

Criminal – Dowry death – Sections 34 and 304 B of Indian Penal Code,

1860 - Deceased was married to appellant – Appellant use to harass

deceased for dowry – Deceased hanged herself – Trial Court convicted

appellant for offence under Section 304B/34 – Appeal dismissed by

High Court – Hence, present appeal – For applicability of Section 304 B

it is not relevant whether it is a case of homicide or suicide – Section

304B will be applicable when death of woman occurs within 7 years of

marriage and soon before her death she should have been subject to

cruelty and harassment in connection with the demand for dowry – Facts

revealed that deceased died within seven years of her marriage and she

had been harassed 10 -15 days before her marriage – ‘Soon before her

1 Ref : Equivalent Citation: AIR2007SC2154, 2007CriLJ3262, I(2007)DMC811SC, JT2007(7)SC77, 2007(6)SCALE568

IN THE SUPREME COURT OF INDIA Criminal Appeal No. 513 of 2006 Decided On: 08.05.2007 Appellants: Raja Lal Singh Vs. Respondent: The State of Jharkhand [Along with Criminal Appeal No. 514 of 2006] Hon'ble Judges: S.B. Sinha and Markandey Katju, JJ. Counsels: For Appellant/Petitioner/Plaintiff: P.S. Mishra and Sunil Kumar, Sr. Advs., Ashok Kumar Singh, Awanish Sinha, Anita Kanungo and Himanshu Shekhar, Advs For Respondents/Defendant: Manish Kumar Saran and C.P. Yadav, Advs. Subject: Criminal Subject: Family Acts/Rules/Orders: Indian Penal Code - Sections 34 and 304B Cases Referred: Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar MANU/SC/0076/2005; Satvir Singh and Ors. v. State of Punjab and Anr. MANU/SC/0588/2001; T. Aruntperunjothi v. State MANU/SC/8091/2006 Prior History: From the Final Judgment and Order dated 20.10.2005 of the High Court of Jharkhand at Ranchi in Crl. A. No. 974 of 2003 Citing Reference: Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar MANU/SC/0076/2005 Mentioned Satvir Singh and Ors. v. State of Punjab and Anr. MANU/PH/0887/1997 Dissented T. Aruntperunjothi v. State Mentioned

Page 307: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

295

death’ does not necessarily means that death must be within few days but

means that there should be a perceptible nexus between the death of

deceased and dowry related harassment inflicted on her – In absence of

alternative explanation from appellant for the cause of suicide it is to be

presumed that persistent demand for dowry led to her suicide – Thus no

reason to interfere with the conviction of appellant – Appeal dismissed.

Ratio Decidendi :

Dowry Death – In case of dowry death ‘soon before her death’ does not

necessarily mean that demand of dowry must be within few days of

death but means that there should be perceptible nexus between the death

of deceased and dowry related harassment inflicted on her.

JUDGMENT

Markandey Katju, J.

1. These two appeals have been filed against the common judgment

& order dated 20.10.2005 of the Jharkhand High Court in

Criminal Appeal Nos. 769 and 974 of 2003.

2. Heard learned Counsel for the parties and perused the record.

3. The facts of the case are that an FIR being Baghmare P.S. Case

No. 229/2000 was registered under Sections 304B/34 of the

Indian Penal Code against the three aforesaid appellants on the

basis of the information given by Dashrath Singh (PW5),

wherein it was alleged that his daughter Gayatri Devi (the

deceased) aged about 19 years, was married to the appellant Raja

Lal Singh on 24.4.2000 and he had given dowry according to his

capacity. His daughter came back after three months of her stay

at her inlaws' place and told him that her husband Raja Lal Singh,

her brother-in-law Pradip Singh and her sisterin- law (Gotni)

used to harass her for the demand of a 'Palang' (Bed) and a

Godrej Almirah. The informant assured his daughter to fulfill

Page 308: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

296

those demands in January, and then his daughter went to her in-

laws' place. It was further alleged that subsequently when he

went to see his daughter at her in-laws' place, she again told him

about the aforesaid demand of 'Palang' and 'Godrej Almirah' by

the appellants and then the informant talked to his son-in-law,

and his brother as well as his wife had promised them to fulfill

the demand in January.

4. It is said that on 28.11.2000 one Dunia Lal Singh came to the

village of the informant and informed him that his daughter has

died due to hanging. On this information, the informant along

with his sons Santosh Singh (PW3), Bhola Singh and Bhagirath

Singh went to village Behrakudar, i.e. the village in which his

daughter was married, and on reaching there he found that the

dead body of his daughter was lying on a Chauki kept in a room

at the upper floor of the building of the appellants. On being

asked, hisson-in-law stated that the deceased had committed

suicide by hanging herself with a ceiling fan by tying a Sari

around her neck. His son-in-law also told that since he was

sleeping in the room, he could see her hanging only in the early

morning when he woke up. On being further questioned by the

informant, his son-in-law could not give a satisfactory reply. The

informant suspected that his daughter was murdered by her

husband, the brother-in-law and sister-in-law, and a colour of

suicide was given to the whole occurrence of murder. The police

after investigation submitted a charge-sheet under Sections

304B/34 IPC. The cognizance was taken and the case was

committed to the Court of Sessions.

5. The defence was of false implication.

Page 309: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

297

6. In order to establish the charges, altogether eight witnesses were

examined on behalf of the prosecution and on behalf of the

defence also two witnesses were examined.

7. It appears that PW1 Ramesh Singh, PW2 Gobardhan Singh, PW3

Santosh Singh and PW4 Ashok Singh accompanied the

informant PW5 to the in-laws' place of the deceased. PW6 is

Shiv Pujan Singh, another son of the informant, who is a witness

of seizure and he also identified the handwriting of the deceased

written on her palm. PW7 is Dr. G.S. Prasad, who held post

mortem examination of the deceased and PW8 Kamta Singh, is

the Investigation Officer.

8. As stated earlier, on behalf of the defence also two witnesses

were examined. DW1 Bindeshwar Singh, was a co-villager and

neighbour of the appellants, who was examined to prove the

cordial relationship between the deceased and her husband. DW2

Mantu Singh, another co-villager of the appellant has stated that

the appellant Pradip Singh and Sanjana Devi were separate in

residence and mess with the appellant Raja Lal Singh, husband of

the deceased.

9. According to PW7 Dr. C.S. Prasad, who held the post mortem

examination of the dead body, the cause of death was due to

asphyxia as a result of hanging. The post mortem report was

proved by him and was marked as Ext.2. However, this witness

in his cross-examination stated that it was a case of suicidal

death.

10. The learned trial court on consideration of the oral and

documentary evidence adduced on behalf of the prosecution held

that the prosecution was able to establish the charge under

Sections 304B/34 IPC against all the three accused. Accordingly,

Page 310: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

298

the accused persons were convicted for the said offence and were

sentenced to undergo R.I. for a period of ten years each.

11. Against the aforesaid judgment of the trial court, the appellants

filed appeals before the High Court which were dismissed by the

impugned judgment. Hence, these two appeals.

12. As regards the appeal of Pradip Singh and his wife Sanjana Devi

being Criminal Appeal No. 514/2006, we are of the opinion that

the said appeal deserves to be allowed and the appellants therein

deserve to be acquitted by giving them the benefit of doubt.

13. It has come in evidence that Raja Lal Singh, appellant in

Criminal Appeal No. 513/2006 used to live on the first floor of

the building along with his wife, deceased Gayatri, whereas

Pradip Singh and his wife Sanjana Devi were living in the ground

floor. Admittedly, the deceased Gayatri was found dead due to

hanging on the first floor in the room of her husband. There is no

evidence to show that the appellant Pradip Singh and Sanjana

Devi had any hand in the incident which led to her death, and at

any event we are of the opinion that benefit of doubt has to be

given to them, as they were living on the ground floor of the

building in question.

14. No doubt, some of the witnesses e.g. PW5 Dashrath Singh, who

is the father of the deceased Gayatri, and PW3 Santosh Kr.

Singh, brother of the deceased, have stated that the deceased

Gayatri told them that dowry was demanded by not only Raja Lal

Singh, but also the appellants Pradip Singh and his wife Sanjana

Devi, but we are of the opinion that it is possible that the names

of Pradip Singh and Sanjana Devi have been introduced only to

spread the net wide as often happens in cases like 498-A and 394

IPC, as has been observed in several decisions of this Court, e.g.

Page 311: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

299

in Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar

MANU/SC/0076/2005 : 2005CriLJ1418 etc. Hence, we allow the

appeal of Pradip Singh and Sanjana Devi and set aside the

impugned judgments of the High Court and trial court in so far as

it relates to them and we direct that they be released forthwith

unless required in connection with some other case.

15. However, we are of the opinion that the appeal of Raja Lal Singh

has to be dismissed. Raja Lal Singh is the husband of the

deceased Gayatri and he used to live with her on the first floor of

the building in question. Hence, it was for him to explain how

Gayatri met with her death. She was found hanging by a Sari on

a ceiling fan in the very room where she used to live with her

husband Raja Lal Singh. Raja Lal Singh, however, did not enter

into the witness box to depose in this connection.

16. It is settled by a series of decisions of this Court that so far as

Section 304B is concerned, it is not relevant whether it is case of

homicide or suicide vide Satvir Singh and Ors. v. State of Punjab

and Anr. MANU/SC/0588/2001 : 2001CriLJ4625 , para 18.

17. It has been held in Satvir Singh (supra) that the essential

components of Section 304B are :

i. Death of a woman occurring otherwise than under

normal circumstances, within 7 years of marriage,

ii. Soon before her death she should have been subjected to

cruelty and harassment in connection with any demand

for dowry.

In the present case, Gayatri died about 7 months after her

marriage in April, 2000. Also, it has come in evidence that she

had been harassed for dowry 10 or 15 days before her death. This

has come in the evidence of her father PW5 and brother PW3

Page 312: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

300

and we see no reason to disbelieve them. She had earlier also

been subjected to harassment on account of demand for dowry

when she had gone to her parents' house in August, 2000, as has

come in the evidence of PW5 Dashrath Singh. Thus, in our

opinion, the ingredients of Section 304B IPC are satisfied in this

case1 .It may be mentioned that the words "soon before her

death'' do not necessarily mean immediately before her death. As

explained in Satvir Singh (supra), this phrase is an elastic

expression and can refer to a period either immediately before

death of the deceased or within a few days or few weeks before

death. In other words, there should be a perceptible nexus

between the death of the deceased and the dowry related

harassment or cruelty inflicted on her.

18. In the present case, we are of the opinion that there is a clear

nexus between the death of Gayatri and the dowry related

harassment inflicted on her. As mentioned earlier, even if Gayatri

committed suicide, Section 304B can still be attracted. A person

commits suicide in a fit of depression due to extreme

unhappiness. Thus, even if Gayatri committed suicide, it was

obviously because she was extremely unhappy, and unless her

husband gave a satisfactory alternative explanation for the

suicide we have to take it that it was the persistent demand for

dowry which led to her suicide. It is evident from the evidence

that Gayatri's father was a poor man and he did not have the

money to give the dowry immediately and he wanted time up to

January, 2001 so that he could collect some funds from

somewhere, but the appellant, Raja Lal Singh was heartless and

he wanted immediate compliance of his demand. Since that was

1Ref : [see also in this connection T. Aruntperunjothi v. State MANU/SC/8091/2006 : 2006CriLJ3290 ].

Page 313: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

301

not fulfilled, he either killed Gayatri or harassed her so much that

she was driven to suicide on account of the said dowry demand.

The writing on Gayatri's palm is, in our opinion, not very

relevant. In view of the above, we dismiss the appeal of Raja Lal

Singh.

19. Resultantly, Criminal Appeal No. 513/2006 filed by Raja Lal

Singh is dismissed while Criminal Appeal No. 514/2006 filed by

Pradip Singh and Sanjana Devi is allowed.

Page 314: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

302

5.4 SOME CASE STUDIES OF DOWRY DEATHS IN

JHARKHAND

1. Dwarika Mistry And Ors. vs State Of Jharkhand 1on 25 September,

2003

This appeal at the instance of the appellants named above is directed

against the impugned Judgment and order dated 13.6.1998 and 18.6.1998

respectively passed in S.T. No. 448 of 1998 by Sri Mishri Lal

Choudhury, 5th Additional Sessions Judge, Hazaribagh whereby and

whereunder they were found guilty for the offence punishable under

Section 304B/34 of the Indian Penal Code for causing the dowry death

of Kalamati Devi, the lawfully wedded wife of appellant Ajit Rana and

they were convicted and sentenced to undergo rigorous imprisonment for

ten years each. However, co-accused Gita Devi was found not guilty and

she was accordingly acquitted.

The prosecution case has arisen on the basis of the fardbeyan (Ext. 2) of

informant PW 7 Deoki Rana, the father of Kalamati Devi, the deceased

of this case recorded on 29.5.1998 at 18.15 hours at Bari of the house of

the appellants situate in village Chutiaro by PW 8 SI S.N. Prasad of

Muffasil P.S. Hazaribagh about the occurrence which is said to have

taken place on that very day in the said Bari of the house of the

appellants for causing the dowry death of Kalamati. The case against the

appellants was instituted by drawing of a formal FIR (Ext. 3) on that

1 Ref : Jharkhand High Court

Dwarika Mistry And Ors. vs State Of Jharkhand on 25 September, 2003 Equivalent citations: II (2004) DMC 375, 2004 (2) JCR 322 Jhr Author: V Narayan Bench: V Narayan JUDGMENT Vishnudeo Narayan, J

Page 315: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

303

very day at 22.15 hours which was received in the Court on 31.5.1998

empowered to take cognizance.

The prosecution case, in brief, is that Kalamati Devi, aged about 18

years, is the daughter of the informant and her marriage was solemnized

with appellant Ajit Rana in the month of April 1997. On the occasion of

her marriage, the informant had delivered Rs. 16,000/- to appellant Ajit

Rana, but in spite of that, there were ill will and differences between the

couple. It is alleged that PW 5 Bhuneshwar Mistry of the village of the

appellant came to the house of the informant at village Baheri and

informed him that dead-body of Kalamati has been recovered from the

well situate in the Bart of the house of the appellant and on this

information the informant in company of his brother PW 3 Triveni Rana

and his co-villagers went there and found her dead-body lying on a cot

under a tree near the well in the said Ban and on query he was informed

by appellants Budhni Devi and Dwarika Mistry that Kalamati Devi had

accidentally fell in the well as a result of which she had died. It is further

alleged that he went to the well aforesaid and found the well-curb

completely covered by the logs of wood and there was only a small

passage left in the well-curb for taking water by bucket and the rope of

the Lattha used for taking water from the said well was also found cut

and the rear portion of the said Lattha was also found damaged which

gave reasonable suspicion to him that all the appellants, who are the

father-in-law, mother-in-law and husband respectively of the deceased

along with acquitted accused Gita Devi who is the sister of appellant Ajit

Rana have committed the murder of Kalamati Devi and they have

thrown her dead-body in the well. It is also alleged that appellant Ajit

Rana was found missing from his house from the early morning of that

day.

Page 316: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

304

The appellants have pleaded not guilty to the charge levelled against

them and they claim themselves to be innocent and to have committed

no offence and that they have been falsely implicated in this case on

mere suspicion.

The prosecution has examined, in all, 9 witnesses to substantiate its case.

PW 7 Deoki Rana is the informant of this case and he is the father of

Kalamati Devi, the deceased in this case. PW 4 Girija Devi is the step

mother of the deceased. PW 5 Bhuneshwar Mistry is the resident of the

village of the appellants and they have turned hostile and do not support

the prosecution case. The evidence of PW 6 Tileshwar Prasad, a resident

of different village, and PW 1 Baldeo Kumar a co-villager of the

appellant has no relevancy in this case regarding the occurrence in

question. PW 3 Triveni Rana is the uncle of the deceased and PW 2

Muneshwar Rana is the agnate of the informant and their evidence is

relevant in this case in respect of alleged demand of dowry by the

appellants from the informant, though they are not the ocular witnesses

of the occurrence.

PW 9 Dr. D.L. Mandal has conducted the post-mortem examination on

the dead-body of the deceased and the post-mortem report per his pen is

Ext. 4 in this case. PW 8 Sheo Nath Prasad is the I.O. of this case. No

oral or documentary evidence has been brought on the record on behalf

of the defence.

Relying upon the testimony of PW 2 and PW 3 coupled with the

evidence of PW 9, the medical witness, and the objective finding of the

I.O. regarding the well-curb in question and the surrounding

circumstances of the case, the learned Court below came to the finding

that the death of the deceased is not a natural death and is otherwise than

under normal circumstances within 7 years of her marriage and there was

Page 317: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

305

demand of dowry and the deceased was subjected to cruelty soon before

her death and she was strangulated to death and her dead-body was

thrown in the well after committing her murder and in view thereof the

appellants were found guilty and convicted and sentenced as stated

above.

Assailing the impugned Judgment it has been submitted by the learned

counsel for the appellants that there is no averment in the fardbeyan (Ext.

2) of the informant regarding any demand of dowry and the deceased

having been subjected with cruelty for the fulfilment of demand of

dowry and PW 7 the informant and his wife PW 4 have not deposed

about any cruelty perpetrated on the deceased for the fulfilment of

demand of dowry and they have not at all supported the prosecution case

in respect thereof and there is no iota of legal evidence on the record that

soon before her death, the deceased was tortured, harassed, vexed or

treated with cruelty for the demand of dowry. It has also been submitted

that there is no legal evidence on the record that the appellants have ever

demanded any dowry either from the deceased or the informant or his

relatives.

It has also been submitted that even PW 3 and PW 2 in their cross-

examination have contradicted their evidence regarding any demand of

dowry by the appellants from the deceased or her father and his relatives

and torture of the deceased for fulfilment of the said demand. It has

further been contended that though the medical witness has found the

death of the deceased due to asphyxia caused by strangulation but there

is no evidence on the record to give an inclining of the fact that the

appellants have committed her murder and the witnesses who have taken

oath for the prosecution in this case have not even whispered in respect

thereof. It has also been submitted that charge has been framed in this

Page 318: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

306

case under Section 304B of the Indian Penal Code and no alternative

charge under Section 302 of the Indian Penal Code has been framed

against the appellant by the learned Court below. There is no evidence

on the record that the appellants have committed the murder of the

deceased and thrown her dead-body in the well. Lastly it has been

contended that there is no iota of legal evidence to connect or implicate

the appellants in this case for causing either the dowry death of the

deceased or her murder and on the contrary, there is evidence of PW 7

and PW 6 besides PW 3 and PW 2 that there was cordial conjugal

relationship between the deceased and her appellant husband and the

learned Court below did not meticulously consider the evidence on the

record in proper perspective and has been swayed by conjectures and

surmises and has gravely erred in coming to the finding the guilt of the

appellants. Thus, the impugned judgment is unsustainable. In support of

his contention reliance has been placed upon the ratio of the case of

Chando Devi v. The State of Bihar1, 2003 (1) East Cr C 493 (Pat) : 2002

Cri LJ 2783 and The State of Rajasthan v. Gyaneshwar and Ors2., 2002

Cri LJ 1312.

Refuting the contention aforesaid, it has been submitted by the learned

APP that the death of Kalamati is otherwise than under normal

circumstances within 7 years of her marriage in the Bart of her

1 Ref : Patna High Court

Chando Devi vs The State Of Bihar on 13 March, 2002 Equivalent citations: 2002 CriLJ 2783 Author: I P Singh Bench: I P Singh JUDGMENT Indu Prabha Singh, J. 2 Ref : Rajasthan High Court

The State Of Rajasthan vs Gyaneshwar And Ors. on 8 November, 2001 Equivalent citations: 2002 CriLJ 1312 Author: S K Garg Bench: S K Garg JUDGMENT Sunil Kumar Garg, J.

Page 319: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

307

matrimonial home and there is evidence on the record that there were

aberrations in her conjugal life and she was subjected to cruelty for the

demand of dowry and PW 3 and PW 2 in their evidence have stated in

respect thereof but later on in their cross-examination, they have

contradicted their testimony for the reasons that some settlement has

been arrived at between the informant and the appellants out of the

Court. It has also been submitted that the medical witness has opined that

the death of the deceased has been caused due to asphyxia as a result of

strangulation and after the commission of her murder her dead-body has

been thrown in the well and PW 8, the IO, in his objective finding has

totally ruled out regarding the accidental fall of the deceased in the well

leading to her death and thus the finding of the guilt arrived at by the

learned Court below does not suffer with any infirmity requiring an

interference therein.

It will admit of no doubt that Kalamati Devi, the deceased of this case, is

the lawfully wedded wife of appellant Ajit Rana and their marriage was

solemnized in the month of April 1997 and a sum of Rs. 16,000/- was

paid to the appellant at the time of her marriage. Appellants Dwarika

Mistry and Budhni Devi are the parents of appellant Ajit Rana. There is

also no denying the fact that the death of Kalamati Devi has taken place

on 29.5.1998 and her dead-body was recovered from the well situate in

the Bari of the house of the appellant PW 9 Dr. D.L. Mandal has

conducted the postmortem examination on the dead-body of the

deceased on 30.5.1998 at 17.45 hours and he has deposed not to have

found any external ante-mortem injury on her body, but on dissection of

the neck of the deceased he has found extravasation of blood into

adjacent muscle of neck and also laceration on the sheath of the carotid

artery and hyoid bone was found fractured. The medical witness also

Page 320: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

308

found larynx and trachea of the deceased - congested and they contained

frothy mucus. The medical witness has thus opined that the cause of the

death of the deceased is due to asphyxia as a result of strangulation. In

his cross-examination the medical witness has categorically deposed that

the injuries aforesaid cannot be possible by fall of a person on either a

stone or iron rod. PW 8, the IO has deposed to have inspected the place

of occurrence and found a well in the Bari of the house of the appellant

within the boundary walls from all the four sides. He has further deposed

that the well-curb was fully covered with wooden logs and there was

only an outlet for taking water from the well by a bucket. He has further

deposed that the rope fastened with the Lattha was found cut by sharp

cutting weapon and the hinder portion of Lattha was also found

damaged. The objective finding of the I.O stands corroborated as per the

evidence of PW 1 Baldeo Kumar, PW 2 Muneshwar Rana and PW 3

Triveni Rana in respect thereof. In view of the objective finding of the

IO read with the evidence of the aforesaid witnesses, the possibility of

the accidental fall of the deceased in the well while fetching water is

totally ruled out in this case. The medical witness has also categorically

deposed that death of the deceased is due to asphyxia as a result of

strangulation. Now a question arises as to whether the strangulation in

this case causing the death of the deceased is suicidal, homicidal or

accidental. It is relevant to mention here that suicidal strangulation is not

very common whereas accidental strangulation is rare and homicidal

strangulation is the commonest of the three forms. The existence of the

internal injuries of the neck of the deceased as found by the medical

witness, also totally rules out the case of the deceased committing

suicide by strangulation in the facts and circumstances in this case.

Accidental strangulation of the deceased is also totally ruled out in this

case. A person committing suicide by strangulation cannot fall in the

Page 321: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

309

well especially when the hole in the well-curb is so small that only a

bucket can be used for taking water. The circumstances surrounding the

well also totally rule out the possibility of accidental strangulation of the

deceased and her fall in the well. It is not possible for anyone to continue

a firm grasp of the throat while committing suicide as unconsciousness

supervenes immediately in case of self-strangulation. It appears in this

case that the deceased was strangulated to death and her dead-body was

thrown in the well. Therefore, it is a case of homicidal strangulation and

I see no reason to disagree with the objective finding of the medical

witness in respect thereof. However, the appellants are not being

prosecuted in this case under Section 302 of the Indian Penal Code and

no alternative charge has also been framed against them by the learned

Court below which may be due to inadvertence or the lacks of

knowledge of the basic tenets of the criminal jurisprudence. Be the case

as it may, the death of the deceased is definitely not a natural death and it

is otherwise than under normal circumstances within 7 years of her

marriage having taken place in the Bari of her matrimonial home in

village Chutiaro.

Therefore, the presumption of mandatory requirement under Section

113B of the Evidence Act may be drawn in this case regarding the dowry

death of the deceased provided it is proved by legal evidence on the

record that the deceased was subjected by the appellants to cruelty or

harassment soon before her death for or in connection with any demand

of dowry.

To constitute an offence under Section 304B, the following essentials

must be established:

(i) The death of a woman must have been caused by burns or bodily

injury or otherwise than under normal circumstances ;

Page 322: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

310

(ii) Such death must have occurred within seven years of her

marriage;

(iii) Soon before her death, the woman must have been subjected to

cruelty or harassment by her husband or by relatives of her

husband ;

(iv) Such cruelty or harassment must be for or in connection with

demand of dowry.

It is only when the aforementioned ingredients are established by

acceptable evidence such death shall be called dowry death and the

husband or his relatives shall be deemed to have caused her death.

A conjoint reading of Section 113B of the Evidence Act and Section

304B of the Indian Penal code shows that there must be material to show

that soon before her death the victim was subjected to cruelty or

harassment for or in connection with any demand of dowry. The

prosecution has to rule out the possibility of a natural or an accidental

death so as to bring it within the purview of the death occurring

otherwise than in normal circumstances.

The prosecution has to prove that soon before the occurrence there was

cruelty or harassment on the deceased for or in connection with any

demand of dowry and only in that case presumption operates. Suffice,

however, to indicate that the expression "soon before" would normally

imply that the interval should not be much between the concerned

cruelty or harassment and the death in question. There must be existence

of a link between the effect of cruelty based on the demand of dowry and

the concerned death and if the alleged incident of cruelty is remote in

time and has become stale enough not to disturb mental equilibrium of

the woman concerned, it would be of no significance.

Page 323: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

311

It is pertinent to mention here at the very outset that there is the averment

in the fardbeyan (Ext. 2) of the informant that he had paid Rs. 16,000/- to

appellant Ajit Rana on the eve of his marriage with the deceased and in

spite of that there were ill will and differences between him and the

deceased. There is no averment in the fardbeyan that the appellant Ajit

Rana or other appellants or any member of his family had ever

demanded any dowry either from the deceased or from the informant.

There is also no averment in the fardbeyan that the deceased was

subjected to cruelty for fulfillment of any demand of dowry by the

appellants. Let us now advert to the evidence on the record. PW 7

informant Deoki Rana has deposed that on getting information of the

death of the deceased, he had gone to the house of the appellant and he

had found the dead-body of the deceased kept lying near the well.

He has also deposed that on enquiry he learnt that she had fallen in the

well while fetching water as a result of which she has died. In his

evidence on oath, the informant has not deposed about demand of any

dowry either from the deceased or from him by the appellants and

treating the deceased with cruelty for the fulfillment of the said demand,

rather in his cross-examination, he has specifically deposed that the

appellants had never demanded any dowry from the deceased and there

was a very cordial conjugal relationship between the deceased and her

appellant husband and she had also very cordial relationship with the

other members of the family of the appellant.

He has also deposed that he has also no suspicion at all that the appellant

had caused the murder of the deceased PW 4 Girija Devi, the step

mother of the deceased, has deposed in her evidence that she had

accompanied the informant at the house of the appellant on Information

of the death of the deceased. She has also deposed that there was cordial

Page 324: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

312

relationship between the deceased and the appellants. In her cross-

examination she has further deposed that the appellants have never

demanded any dowry from the deceased. Both the witnesses are also

conspicuously silent in their evidence regarding any torture perpetrated

on the deceased in her matrimonial home soon before her death. PW 5

Bhuneshwar Mistry is a resident of village Chutiaro of the appellant and

he is the father of the husband of the sister of PW 4 Girija Devi and he is

closely related with the informant.

He has deposed that the deceased had a very cordial relationship with the

appellants in her matrimonial home. PW 1, though a resident of village

Behri 8 or 9 Kms. away from the PO village is the cousin of the

informant and he has deposed to have met the deceased a few days prior

to her death. PW 1, also does not say that the deceased had ever made

any complaint to her regarding any torture perpetrated on her in her

matrimonial home by the appellants for the demand of dowry. PW 6, a

resident of village Sakhiya, has deposed that he has knowledge of the

fact that the appellants had never made any demand of dowry from the

informant. PWs 7. 4 and 5 have been declared hostile by the prosecution.

It is pertinent to mention here that there was no reason for the

prosecution to declare them as hostile witnesses in this case, in view of

the fact that there was no averment at all in the fardbeyan of the

informant regarding treating the deceased with cruelty for or in

connection with demand of dowry.

However. PW 3 Triveni Rana, brother of the informant has deposed that

there was always a quarrel between the deceased and her appellant

husband for demand of dowry and her appellant husband always used to

demand money as dowry. He has deposed that the appellants used to

treat the deceased with cruelty when the said demand was not fulfilled

Page 325: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

313

which had led to a Punchayati and an agreement was reduced into

writing as per the verdict of, the Punchayat PW 3 has further deposed

that the deceased had also sent two letters to him in which it has been

stated that the appellants used to demand money from her as dowry. He

has further deposed that there was a promise by the informant to pay Rs.

30,000/- as dowry on the eve of the marriage of the deceased, but a sum

of Rs. 16,000/- was only paid to appellant Ajit Rana and a sum of Rs.

14,000/- was still due to be paid which could not be given to the

appellants due to the inability of the informant and for that there was

quarrel between the couple. PW 2 Bhuneshwar Rana, an agnate of the

informant, has also deposed that the deceased has been done to death due

to the non-fulfillment of demand of dowry. It is pertinent to mention here

that the two letters purported to be written by deceased to PW 3 are the

best evidence to prove the case of the prosecution but it is queer enough

as to why these letters were not brought on the record.

These letters are very relevant in this case to establish the fact of demand

of dowry by the appellants and also for treating the deceased with cruelty

in respect thereof. No explanation has been brought on the record as to

why those letters have been suppressed in this case. There is also no

evidence on the record to establish the fact that there was a Panchayati in

respect of the dispute between the informant and the appellants regarding

the demand of dowry and the verdict of the Panchayat having been

reduced into writing. No person participating in the said Panchayati had

also taken oath in this case. Therefore, the evidence of PW 3 and PW 2

lacks credence in respect thereof. Furthermore, the testimony of PW 3

and PW 2 stands contradicted as per the evidence of PW 7 read with

PWs 4 and However, PW 3 and PW 2 in their further cross-examination

on recall have given a death nail to their evidence regarding the torture

Page 326: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

314

on the deceased for the fulfilment of demand of dowry. PW 3 and PW 2

in the concluding portion of their cross-examination have specifically

deposed that the deceased had a very cordial relationship with her

appellant husband and the other appellants. PW 2 has also deposed that

the marriage of the deceased was performed with appellant Ajit Rana

about 15 or 16 years prior to the occurrence. It, therefore, appears from

the evidence of the witnesses of the prosecution referred to above that

there is no legal evidence on the record that the deceased was treated

with cruelty in her matrimonial home prior to her death for the

fulfillment of demand of dowry.

There is neither averment in the fardbeyan of the informant nor any legal

evidence on the record in respect thereof. There is also no definite

evidence on the record about ill treatment to the deceased at any time

having immediate proximity to the date of the death of the deceased on

29.5.1998 and in this view of the matter, the basic requirement of cruelty

or harassment soon before the death is absent in this case for the

applicability of Section 304B of the Indian Penal Code. The ratio of the

case of Chando Devi (supra) and the State of Rajasthan (supra) relied

upon by the appellant has their application in the facts and circumstances

in this case. It is equally pertinent to mention here that there is no ocular

evidence of any natural, competent and independent witness on the

record to give an inkling of the fact that the appellants have committed

the murder of the deceased and thereafter thrown her dead-body in the

well.

The circumstances emanating as per the evidence on the record also do

not support the fact that the appellants have committed the murder of the

deceased. There is also evidence on the record that the appellant Ajit

Rana was not present in his house on the day of the occurrence.

Page 327: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

315

Therefore, there appears no substance in the prosecution case that the

appellants had caused the murder of the deceased and thrown her dead-

body into the well. The ingredients to constitute the offence under

Section 304B are not at all established by acceptable evidence on the

record and in this view of the matter the death of the deceased in this

case cannot be called as dowry death. The learned Court below did not at

all meticulously scrutinize and scan the evidence on the record in proper

perspective and has committed a manifest error in coming to the finding

of the guilt of the appellants under Section 304B of the Indian Penal

Code.

There is merit in this appeal and it succeeds. The appeal is hereby

allowed. The impugned judgment of the learned Court below is hereby

set aside. The appellants are found not guilty for the offence under

Section 304B of the Indian Penal Code and they are, accordingly,

acquitted. Appellants Dwarika Mistri and Budhni Devi are discharged

from the liability of their bail bonds. Let appellant Ajit Rana be set free

forthwith, if not wanted in any other case.

Page 328: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

316

2. Case of Surendra Bengali alias Surendra Singh vs The State Of

Bihar (Now Jharkhand) on 30 June, 20091

Amareshwar Sahay, J. The appellant Surendra Bengali @ Surendra

Singh Rautela along with two other accused namely Deepak Deo and

Sudhir Ganjhu were put on trial. This appellant Surendra Bengali, was

charged under Section 302 of the Indian Penal Code for causing death of

Mahesh Pandey in furtherance of common intention with other accused

persons namely Deepak Deo and Sudhir Ganjhu, who were charged

under Sections 302/34 of the Indian Penal Code. This appellant was

further charged under Section 27 of the Arms Act for possessing Pistol

for using it illegally for firing at Mahesh Pandey.

Learned Trial Court, by its impugned Judgment dated 28.05.1999 in

Sessions Trial No. 46/1989, convicted the present appellant Surendra

Bengali, holding him guilty under Section 302 of the Indian Penal Code

and Section 27 of the Arms Act and sentenced him to undergo rigorous

imprisonment for life under Section 302 of the Indian Penal Code and

further for a period of Criminal Appeal No. 173 of 1999 (R)

Three years rigorous imprisonment under Section 27 of the Arms Act.

The other two accused Deepak Deo and Sudhir Ganjhu were acquitted

by the Trial Court holding that the prosecution failed to prove the

charges leveled against them. It is against this impugned Judgment of the

Trial Court, the present appeal has been filed by the appellant.

1 Ref : Criminal Appeal No. 173 of 1999 (R)

Against the Judgment and order dated 28.05.1999 passed by Shri Prabhat Kumar Jha, 7th Additional Judicial Commissioner, Ranchi in Sessions Trial No. 46 of 1989 Surendra Bengali alias Surendra Singh Routela... APPELLANT Versus The State of Bihar (Now Jharkhand) ... ... RESPONDENTS . PRESENT The Hon'ble Mr. Justice Amareshwar Sahay The Hon'ble Mr. Justice R.R.Prasad JUDGMENT C.A.V. On 19/05/2009 PRONOUNCED ON 30/06/2009

Page 329: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

317

The facts in short are that one Prem Kumar lodged a Fardbeyan on

23.07.1988 at 9:15 P.M. alleging therein that at about 9:00 P.M., he and

his maternal uncle namely Mahesh Pandey were in their house. At that

time, one Sudhir Ganjhu, a neighbour came and called Mahesh Pandey.

On such call, Mahesh Pandey went out of the house and went near

Vasundhara Cinema and started talking near a beetle shop. Immediately

thereafter, the accused Surendra Bengali and Deepak Deo came there on

a motorcycle which was being driven by Deepak Deo whereas the

appellant Surendra Bengali was a pillion rider. It is said that this

appellant Surendra Bengali fired two shots from his pistol on Mahesh

Pandey. Deepak Deo also shot one fire from his fire arm. Mahesh

Pandey, after receiving fire arm injuries, fell down on the ground and

thereafter, the accused persons fled away towards Kutcheri. Due to

firing, the people of the locality became terrorized and they started

fleeing away hither and thither. The cause of occurrence was said to be

enimity between Mahesh Pandey and Surendra Bengali (appellant). The

injured Mahesn Pandey was removed to Rajendra Medical College and

Hospital, Ranchi.

On the basis of the Fardbeyan, the case under Section 307, 326/34 of the

Indian Penal Code and Section 27 of the Arms Act was registered

against the three accused persons but when the victim Mahesh Pandey

died in course of treatment in the Hospital, subsequently, Section 302

was also added subsequently.

The Police took up the investigation and on completion thereof,

submitted chargesheet. Thereafter, cognizance of the Criminal Appeal

No. 173 of 1999 (R)

Page 330: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

318

Offence was taken and the case was committed to the Court of Sessions

where the charges were framed and thereafter, the accused persons were

put on trial.

In course of Trial, altogether six witnesses were examined on behalf of

the prosecution and some documents were also adduced in evidence

which were marked Exhibits.

The victim who was admitted in the Hospital for treatment, made a

Dying Declaration on 23.07.1988, which was recorded by the Judicial

Magistrate at 11:00 P.M. in presence of the treating Doctor.

Learned Trial Court, on the basis of the evidence and materials on

record, convicted and sentenced the appellant, as already noticed above.

Mr. H.S. Prasad, learned counsel appearing for the appellant, submitted

that the whole case of the prosecution hinges on the so called Dying

Declaration of the victim Mahesh Pandey which has been marked as

Ext.-3. The alleged Dying Declaration of the deceased was allegedly

recorded at Rajendra Medical College and Hospital, Ranchi on

23.07.1988 at 11:00 P.M.. He further submitted that the alleged two eye

witnesses P.Ws.-1 and 2 i.e. the mother and sister of the deceased did not

support the case of the prosecution and were declared hostile. P.W.-3 is

the Doctor who held the postmortem examination, whereas P.W.-4 is the

witness of seizure and P.W.-6 is the Investigating Officer, therefore,

there is no other material except the alleged dying declaration of the

victim to connect the appellant with the alleged occurrence.

Mr. H.S. Prasad, learned counsel further submitted that the Dying

Declaration is liable to be discarded from consideration as the same is

neither signed by the victim nor it bears the certificate of the Doctor to

the effect that at the time of making such declaration, the victim was in a

Page 331: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

319

fit state of mind to make such Criminal Appeal No. 173 of 1999 (R)

Statement

Lastly he submitted that the Dying Declaration ought to have been

recorded in a question and answer form which has not been done in this

case. In view of these serious infirmities, the dying declaration cannot be

taken into consideration for holding the appellant guilty for the charge.

There being no other evidence on record to corroborate the Dying

Declaration, the appellant deserves to be acquitted.

On the other hand, Mr. V.S. Sahay, learned APP for the State, submitted

that the Dying Declaration (Ext-3) made by the victim is itself sufficient

to convict the appellant since the same is perfectly legal and valid. He

submitted that the law does not require that the Dying Declaration should

bear the signature of the victim nor the dying declaration requires any

corroboration, if the Court finds it to be genuine and trustworthy.

Page 332: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

320

In view of the facts stated hereinabove and the points raised by the

parties, this Court has to consider as to:-

i. Whether a Dying Declaration can be made the sole basis to

convict an accused. If yes, when and under what

circumstances?

ii. What are the requirements for the admissibility of a Dying

Declaration in evidence?

iii. Whether Dying Declaration should require signature or the

thumb impression of the maker?

iv. Whether a certificate of the Doctor is essentially required

regarding the fact that the maker was in a fit state of mind to

make such statements/ declaration?

v. Whether Dying Declaration essentially requires corroboration

by other evidence.

For searching the answer to the above questions, let us examine the case

laws on this point.

Criminal Appeal No. 173 of 1999 (R)

The Supreme Court, as far back as in 1958, in the case of Khushlal Rao

Vs. State of Bombay1 reported in AIR 1958 SC 22, has held that in order

to pass the test of reliability, a dying declaration has to be subjected to a

very close scrutiny, keeping in view the fact that the statement has been

made in the absence of the accused who had no opportunity of testing the

veracity of the statement by cross- examination. But once, the Court has

come to the conclusion that the dying declaration was the truthful 1 Ref : Supreme Court of India

Kushal Rao vs The State Of Bombay on 25 September, 1957 Equivalent citations: 1958 AIR 22, 1958 SCR 552 Bench: Sinha, B P ,PETITIONER: KUSHAL RAO Vs. RESPONDENT: THE STATE OF BOMBAY DATE OF JUDGMENT: 25/09/1957 BENCH:SINHA, BHUVNESHWAR P. BENCH: SINHA, BHUVNESHWAR P. MENON, P. GOVINDA KAPUR, J.L. CITATION: 1958 AIR 22,1958 SCR 552

Page 333: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

321

version as to the circumstances of the death and the assailants of the

victim, there is no question of further corroboration. The necessity for

corroboration arises when in a given case, the Court comes to the

conclusion that a particular dying declaration was not free from

infirmity. (Emphasis is mine)

In a leading case of Harbans Singh and another Vs. The State of Punjab

1reported in AIR 1962 SC 439, the Supreme Court has held that it is

neither a rule of law nor of prudence that a dying declaration requires to

be corroborated by other evidence before a conviction can be based

thereon. (Emphasis is mine)

It is a settled law that Section 32(1) of the Evidence Act is exception to

the general rule that hearsay evidence is not admissible evidence unless

evidence is tested by cross examination. When a statement is made by a

person, as to the cause of death or any of the circumstances which result

in his death, in cases in which the cause of that person's death comes into

question, such a statement, oral or in writing, made by the deceased to

the witness is a relevant fact and is admissible in evidence. The

statement made by the deceased is called dying declaration. A dying

declaration made by person on the verge of his death has a special

sanctity as at that solemn moment, a person is most unlikely to make any

untrue statement. The shadow of impending death is by itself the

guarantee of the truth of the statement made by the deceased regarding

1 Ref : Supreme Court of India

Harbans Singh And Another vs State Of Punjab on 16 October, 1961 Equivalent citations: 1962 AIR 439, 1962 SCR Supl. (1) 104 Bench: Gupta, K Das PETITIONER: HARBANS SINGH AND ANOTHER Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT: 16/10/1961 BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. CITATION: 1962 AIR 439 1962 SCR Supl. (1) 104 CITATOR INFO : RF 1963 SC 200 (17) R 1965 SC 26 (19) R 1965 SC 257 (8)R 1970 SC1566 (5) F 1972 SC 622 (27,31) R 1973 SC 55 (19) R 1973 SC1204 (9) R 1973 SC2195 (8) F 1973 SC2622 (7) R 1974 SC 606 (8,9) R 1976 C1994 (6) R 1985 SC 416 (13)

Page 334: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

322

the causes or circumstances leading to his death. A dying declaration

enjoys almost a sacrosanct status as a piece of Criminal Appeal No. 173

of 1999 (R)

Evidence coming as it does from the mouth of the deceased victim. Once

the statement of the dying person and the evidence of the witnesses

testifying to the same passes the test of careful scrutiny of the courts, it

becomes a very important and a reliable piece of evidence and if the

court is satisfied that the dying declaration is true and free from any

embellishment such a dying declaration, by itself, can be sufficient for

recording conviction even without looking for any corroboration.

Reference in this regard may be made in the case of Kundula Bala

Subrahmanyam and Another Vs. State of Andhra Pradesh reported in

(1993) 2 SCC

In the case of P.V. Radhakrishna Vs. State of Karnataka reported in

(2003) 6 SCC 443, the Supreme Court has laid down certain principles

for acting upon a dying declaration. Relevant extracts from paras 10, 12

and 15 of the said Judgment are reproduced here-in-below.

"The general rule is that all oral evidence must be direct. The eight

clauses of Section 32 of Evidence Act are exceptions to the general rule

against hearsay. Clause (1) of Section 32 makes relevant what is

generally described as dying declaration, though such an expression has

not been used in any statute. It essentially means statements made by a

person as to the cause of his death or as to the circumstances of the

transaction resulting in his death. The grounds of admission are: firstly,

necessity for the victim being generally the only principal eyewitness to

the crime, the exclusion of the statement might deflect the ends of

justice; and secondly, the sense of impending death, which creates a

sanction equal to the obligation of an oath. The general principle on

Page 335: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

323

which this species of evidence is admitted is that they are declarations

made in extremity, when the party is at the point of death and when

every hope of this world is gone, when every motive to falsehood is

silenced, and the mind is induced by the most powerful considerations to

speak the truth; a situation so solemn and so lawful is considered by the

law as creating an obligation equal to that which is imposed by a positive

oath administered in a court of justice. The Criminal Appeal No. 173 of

1999 (R)

Principle on which dying declaration is admitted in evidence is indicated

in the legal maxim "nemo moriturus praesumitur mentiri - a man will not

meet his Maker with a lie in his mouth. (Para-10)(Emphasis is mine)

Though a dying declaration is entitled to great weight, it is worthwhile to

note that the accused has no power of cross- examination. Such a power

is essential for eliciting the truth as an obligation of oath could be. This

is the reason the court also insists that the dying declaration should be of

such a nature as to inspire full confidence of the court in its correctness.

The court has to be on guard that the statement of the deceased was not

as a result of either tutoring, or prompting or a product of imagination.

The court must be further satisfied that the deceased was in a fit state of

mind after a clear opportunity to observe and identify the assailant. Once

the court is satisfied that the declaration was true and voluntary,

undoubtedly, it can base its conviction without any further corroboration.

It cannot be laid down as an absolute rule of law that the dying

declaration cannot form the sole basis of conviction unless it is

corroborated. The rule requiring corroboration is merely a rule of

prudence. (Para-12) (Emphasis is mine).

Moreover, the state of mind was proved by the testimony of the doctor

who was present when the dying declaration was recorded. In the

Page 336: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

324

aforesaid background it cannot be said that there was any infirmity.

Further, if the person recording the dying declaration is satisfied that the

declaration is in a fit medical condition to make a dying declaration then

such a dying declaration will not be invalid solely on the ground that it is

not certified by the doctor as to the condition of the declarant to make

the dying declaration. (Para-15) (Emphasis is mine)".

So far as the question as to whether a dying declaration should be

recorded in a question answer form, the Supreme Court, in the case of

Ram Bihari Yadav Vs. State of Bihar and others reported in (1998) 4

SCC 517, has held that it cannot be said that unless the dying declaration

is in question answer form, it cannot be accepted. Having regard to the

sanctity attached to a dying declaration, as it comes from the mouth of a

dying person though, unlike the principle of English law, he need not be

under Criminal Appeal No. 173 of 1999 (R) apprehension of death, it

should be in the actual words of the maker of the declaration. Generally,

the dying declaration ought to be recorded in the form of questions and

answers, but if a dying declaration is not elaborate but consists of only a

few sentences and is in the actual words of the maker, the mere fact that

it is not in question-answer form, cannot be a ground against its

acceptability or reliability (Emphasis is mine).

On behalf of the appellant, a Judgment of the Supreme Court in the case

of Paparambaka Rosamma and others Vs. State of A.P. reported in

(1999) 7 SCC 695, has been cited in support of the contention that

certification of the Doctor is essentially required to show that the patient

was in a fit state of mind to make the statement and in absence thereof, a

dying declaration cannot be accepted.

No doubt this view was taken by the three Judges' Bench of the Supreme

Court, but the said decision has already been overruled by the

Page 337: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

325

subsequent five Judges' Bench of the Supreme Court in the case of

Laxman Vs. State of Maharashtra reported in (2002) 6 SCC 710 wherein,

it is held that the Judgment in the aforesaid case of Paparambaka

Rosamma and others Vs. State of A.P. (Supra) was not correctly decided.

The view taken in the case of Koli Chunilal Savji and Another Vs. State

of Gujrat reported in 1999 (9) SCC 562 has been upheld, wherein it was

held that the dying declaration of the deceased cannot be ignored merely

because the Doctor had not made the endorsement that the deceased was

not in a fit state of mind to make the statement in question.

In the aforesaid case of Koli Chunilal Savji and Another Vs. State of

Gujrat (Supra), the Supreme Court has also held that the requirements of

endorsement by a Doctor is only a matter of prudence and the ultimate

test is whether the dying declaration is voluntary and truthful. Before

recording the dying declaration, the Criminal Appeal No. 173 of 1999

(R) officer concerned must find that the injured was in a fit state of mind

to make the statement and if the Magistrate is satisfied about the

condition of the patient, such statement can be reliable.

In a recent decision of the Supreme Court in the case of Sher Singh and

Another Vs. State of Punjab reported in (2008) 4 SCC 265, the Supreme

Court, relying on its earlier decision in the case of Koli Chunilal Savji

and Another Vs. State of Gujrat (Supra) and Laxman Vs. State of

Maharashtra (Supra) held that the acceptability of a dying declaration is

greater because the declaration is made in extremity. When the party is at

the verge of death, one rarely finds any motive to tell falsehood and it is

for this reason, the requirement on oath and cross examination are

dispensed with in the case of dying declaration. Since the accused has no

power of cross examination, the Court would insist that the dying

declaration should be such a nature as to inspire full confidence of the

Page 338: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

326

Court in its truthfulness and correctness. It is for the Court to ascertain

from the evidence placed on record that the deceased was in a fit state of

mind and had ample opportunity to observe and identify the culprit.

The decision cited by the counsel for the appellant in the case of Arvind

Singh Vs. State of Bihar reported in (2001) 6 SCC 407 is not applicable

in the facts and circumstances of the present case since in that case, the

dying declaration was made by the victim - daughter only before her

mother implicating her husband and in-laws in a case of dowry death. It

was held in the said case that the mother of the deceased was an

interested witness and therefore, in such a case, medical certification of

the fitness of mind of the maker was held to be required whereas, in the

present case, the dying declaration has been made in the Hospital in

presence of the Doctor and has been recorded by the Judicial Magistrate,

who cannot be said to be an interested witness and therefore, this

Judgment of the Supreme Court is of no help to the appellant. Criminal

Appeal No. 173 of 1999 (R)

The other decision cited on behalf of the appellant i.e. the case of

Kanchy Komuramma Vs. State of A.P. reported in 1995 Supp. (4) SCC

118 is also not applicable in the facts of the present case since that was a

case of dowry death and the girl who received the burn injuries made the

dying declaration in presence of the Magistrate but the same was not

found reliable because the mother of the victim specifically stated that

the condition of the patient was not good and that she was not in a fit

condition. In such a situation, the dying declaration was held to be not

reliable, whereas, in the present case, the facts are quite different. In this

case, we do not find any infirmity in the dying declaration of the victim;

rather we are of the view that the dying declaration is genuine and

truthful.

Page 339: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

327

From the evidence led by the prosecution during the trial, it appears that

at the request of the Investigating Officer and and the orders of the Chief

Judicial Magistrate, Ranchi, P.W.-5 Subhash Chandra Prasad, Judicial

Magistrate, recorded the dying declaration of the victim Mahesh Pandey

at Rajendra Medical College and Hospital, Ranchi on 23.07.1988 itself at

11:00 P.M., wherein the victim specifically stated that he was shot at by

the appellant Surendra Bengali at 9:00 P.M. The victim spoke only few

sentences. The dying declaration was recorded in presence of the Doctor

attending the victim and he has also put his signature therein. The dying

declaration also bears the certificate of the Judicial Magistrate to the

effect that the statement was recorded by him and it was given by the

victim voluntarily at death bed and it was true statement.

P.W.-5, Judicial Magistrate, in his evidence, has specifically stated that

the Doctor had orally stated before him that the victim Mahesh Pandey

was in a fit state of mind to give the statement. The dying declaration has

been adduced in evidence and has been marked as Ext. - 3.

Criminal Appeal No. 173 of 1999 (R)

The dying declaration was made only after 2/3 hours of the occurrence

and the victim died in the morning of 25.07.1988, whereas, the post-

mortem was done on the same day. P.W.-1 Rampati Devi, the mother of

the deceased and P.W.-2 Tanuja Kumari, sister of the deceased, though

have been declared hostile by the prosecution since as stated by this

witness in them in their evidence, they did not see the assailants, but

from their evidence, at least this fact has been established that the

deceased came out of his house at the relevant time and date and within

half an hour, these two witnesses heard the sound of firing and on

hearing the sound of firing, they came out of their house and found

Mahesh Pandey lying injured due to fire arm injuries. Thereafter, the

Page 340: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

328

victim Mahesh Pandey was removed to the Hospital where in course of

the treatment, he died.

It was this appellant, who shot fire from his pistol on the deceased, has

clearly been stated by the victim in his dying declaration. The injuries

found on the person of deceased, as stated by the Doctor who held the

postmortem examination, fully corroborates the statements of the victim

made in the dying declaration.

The following injuries were found on the person of the deceased.

(i) Wound of enterance 1 x ½ cm. stitched on the left chest front 6

cm. below left nipple and 8 cm. left middle line. The projectile

passes through chest wall perforates the diagram intestine and

makes an exit wound 2 x 1 cm. on the left abdomen back, 6 cm.

left to middle line;

(ii) Wound of enterance 1 x ¼ cm. on the right abdomen upper part 3

cm. right to middle line, the projectile passes through abdominal

wall injured the stomach mesentery and makes an exit wound 1 x

½ cm. x 3 ¼ cm. on the left lateral chest. Criminal Appeal No.

173 of 1999 (R)

P.W.-5 - Shri S.C. Prasad, the Judicial Magistrate, stated in his evidence

that on 23.07.1988, he recorded the dying declaration of Mahesh Pandey

at Rajendra Medical College and Hospital, Ranchi at 11:00 P.M.

In cross examination, the Judicial Magistrate stated that he did not know

Mahesh Pandey from before. The victim was identified by the Doctor.

The Doctor stated before him that Mahesh Pandey was in a position to

make statement.

Page 341: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

329

The dying declaration not only contains the certificate of the Judicial

Magistrate certifying that the statement made by the declarant was

voluntary but it also contains the signature of the Doctor D.P. Bhadani

and Most. Rampati Devi (P.W.-1). However, Dr. D.P. Bhadani, in spite

of best efforts, could not be examined since he left Ranchi as has been

stated by the Investigating Officer P.W.-6 Arun Kumar Singh in his

evidence.

From a close scrutiny of the dying declaration made by the victim (Ext. -

3) wherein it has specifically been stated by the victim before the

Judicial Magistrate - P.W.-5 that the accused Surendra Bengali shot fire

on him. He also stated that Surendra Bengali had killed his brother also.

After stating these few sentences, the deceased uttered that he was

feeling serious pain in his abdomen and thereafter, did not say anything.

The Judicial Magistrate specifically stated that Dr. Bhadani, who was

attending the injured, told that the injured was capable of making the

Criminal Appeal No. 173 of 1999 (R) statements and thereafter he

recorded whatever was stated by the injured.

In view of the facts stated above, in our view, the genuineness and

truthfulness of the dying declaration made by the victim and recorded by

the Judicial Magistrate in presence of the Doctor cannot be doubted.

So far as the point rose on behalf of the appellant that the dying

declaration should contain the signature or the thumb impression of the

maker is concerned, in our view, the same is devoid of any merit. Under

Section 32 of the Evidence Act, when the statement is made by a person

as to the cause of his death, or as to any of the circumstances of the

transaction which resulted in his death, in cases in which the cause of

that person's death comes into question, such statements, oral or in

Page 342: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

330

writing, made by the deceased to the witness, is a relevant fact and is

admissible in evidence.

Section 32 and its Sub Clause (1) is quoted here-in- below:-

“Cases in which statement of relevant fact by person who is dead or

cannot be found, etc. is relevant.-

Statements, written or verbal, of relevant facts made by a person who is

dead, or who cannot be found, or who has become incapable of giving

evidence, or whose attendance cannot be procured, without an amount of

delay or expense which, under the circumstances of the case, appears to

the Court unreasonable, are themselves relevant facts in the following

cases:-

i. When it relates to cause of death. - When the statement is made by a

person as to the cause of his death, or as to any of the circumstances of

the transaction which resulted in his death, in cases in which the case of

that person's death comes into question.

Such statements are relevant whether the person who made them was or

was not, at the time when they Criminal Appeal No. 173 of 1999 (R)

were made, under expectation of death, and whatever may be the nature

of the proceeding in which the cause of his death comes into question.

In view of the discussions and findings above, we hold that

i. A dying declaration can be made the sole basis to convict an

accused if the Court comes to the conclusion that the dying

declaration is truthful and free from any infirmity;

ii. If the dying declaration is free from infirmity and is found to be

genuine and truthful, then no corroboration by any other evidence

is required;

Page 343: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

331

iii. If the person recording the dying declaration is satisfied that the

declarant is in a fit medical condition to make a dying declaration,

then a certificate of the Doctor regarding the mental fitness of the

declarant to make the dying declaration is not required.

iv. Generally a dying declaration should be recorded in a Question -

Answer Form but if a dying declaration is not elaborative and

consists of only a few sentences and is in the actual words of the

maker, such dying declaration which has not been recorded in a

Question - Answer form, cannot be rejected and it can be

accepted.

v. Under Section 32 of the Evidence Act, a dying declaration is not

required to be signed by its maker and even dying declaration

made orally is admissible in evidence.

In the present case, as already held above, the dying declaration made by

the victim Mahesh Pandey is found to be genuine and truthful and

without any infirmity and therefore, in our view, the learned Trial Court

has rightly relied on the dying declaration of the victim Mahesh Pandey

(Ext. - 3) and held the appellant guilty for committing his murder.

Criminal Appeal No. 173 of 1999 (R)

We do not find any error in the impugned Judgment of the Trial Court.

Accordingly, we hereby affirm the conviction and sentence passed by the

Trial Court.

Consequently, the appeal is found to be without any merit. The same is

hereby dismissed.

Jharkhand High Court, Ranchi

The 30th June, 2009

Page 344: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

332

Rohit Das And Anr. vs State Of Bihar (Now Jharkhand) on 18

August, 20041

This appeal is directed at the instance of the appellants against the

impugned judgment and order dated 27-9-1999 and 29-9-1999

respectively passed in Sessions Case No. 190 of 1998 by Shri Prabodh

Ranjan Dash, 3rd Additional Sessions Judge, Deoghar whereby and

whereunder the appellants were found guilty for the offence punishable

under Sections 304B and 201 of the Indian Penal Code and they were

each convicted to undergo rigorous imprisonment for seven years and

three year's respectively and also to pay a fine of Rs. 1000/- and in

default thereof to undergo further rigorous imprisonment for one month

and both the sentences were ordered to run concurrently. However, co-

accused Ughan Das and Bhudeo Das were not found guilty and they

were, accordingly, acquitted.

The prosecution case has arisen on the basis of the Fardbeyan (Ext. 3) of

P.W. 8 etkaha Das, the father of Mirkhi Devi, the deceased of this case,

recorded by S. I. Shivjee Prasad Singh, Officer-in-Charge of Madhupur

Police Station in village-Bangora, Police Station-Madhupur, District-

Deoghar on 31-7-1998 at 11.00 hours regarding the occurrence which is

said to have taken place a few days ago in village-Bangora, Police

Station-Madhupur and a case was instituted by drawing of a formal First

Information Report (Ext. 4) on that very day at 15.00 hours.

1 Ref : Jharkhand High Court

Rohit Das And Anr. vs State Of Bihar (Now Jharkhand) on 18 August, 2004 Equivalent citations: 2005 CriLJ 4, I (2005) DMC 420 Author: V Narayan Bench: V Narayan JUDGMENT Vishnudeo Narayan, J.

Page 345: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

333

The prosecution case, in brief, is that the marriage of Mirkhi Devi, the

daughter of P.W. 8, the informant, was solemnized with appellant-Rohit

Das one year prior to the alleged occurrence and in the said marriage Rs.

10,000/- and one cycle was given to the said appellant and after the

marriage the deceased had come to her matrimonial home with the said

appellant for leading conjugal life. It is alleged that after sometimes of

the marriage, appellant Rohit Das along with his mother appellant-

Sudami Das started making demand of radio, wristwatch, utensils,

clothes, she-calf and cash and they started subjecting the deceased to

cruelty and harassment for the fulfilment of the said demand.

The prosecution case further is that the informant brought the deceased

to his house from her matrimonial home about 20 or 25 days prior to the

occurrence where she has told him about the torture perpetrated on her

by the appellants and other co-accused persons for the fulfilment of

aforesaid demand in dowry and has also narrated that whenever she is

assaulted by the appellants, the other co-accused persons used to

instigate them for further assault. The deceased came back to her

matrimonial home in the company of P.W. 1 Bhim Das, her maternal

uncle after staying there for four or six days and said Bhim Das

requested and persuaded the appellants and other co-accused persons for

not treating her with cruelty but he was intimidated and told by them to

fulfil the aforesaid demands, failing which dire consequences shall

follow. It is alleged that the informant learnt on 30- 7-1998 that her

daughter Mirkhi Devi is dead and her dead body is lying in the well east

of village-Bangora and on the said informantion he came there with P.W.

1 Bhim Das and others and found the dead body of the deceased in the

well and the appellants and other co-accused persons had fled away from

their house.

Page 346: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

334

The appellants have pleaded not guilty to the charges levelled against

them and they claim themselves to be innocent and to have committed

no offence and that they have been falsely implicated in this case. It has

also been contended that the marriage of the deceased was never

performed with appellant-Rohit Das and she was a woman of easy

virtues roaming hither and thither with her paramours.

The prosecution has, in all, examined ten witnesses to substantiate its

case. P.W. 8 Ketkaha Das is the informant and the father of Mirkhi Devi,

the deceased in this case. P.W. 1 Bhim Das is the maternal uncle of the

deceased. P.W. 2 Rajendra Das is the son of P.W. 1 and his signature on

the inquest report (Ext. 2) is Ext. 1. P.W. 3 Gujari Devi is the wife of the

elder brother of P.W. 1 and P.W. 4 Raj Kumar Das and P.W. 5 Laxman

Das are her sons. P.W. 7 Champa Devi is the cousin sister of the mother

of the deceased. P.W. 6 Shakti Yadav, is a resident of village-Arahi

Police Station, Madhupur and he has been declared hostile by the

prosecution. P.W. 10 Dr. Anandi Kumar Jain has conducted the post-

mortem examination on the dead body of the de- ceased on 31-7-1998

and the post-mortem report per his pen is Ext. 5. P.W. 9 Sheojee Prasad

Singh is the Investigating Officer of this case and he has proved the

inquest report (Ext. 2), Fardbeayn (Ext. 3) and formal First Information

Report (Ext. 4).

In view of the evidence, oral and documentary on the record, the learned

trial Court has found the appellants guilty and convicted and sentenced

them as stated above.

Assailing the impugned judgment it has been submitted by the learned

counsel for the appellants that Mirkhi Devi, the deceased of this case,

was not married with appellant-Rohit Das and the deceased was the

lawfully wedded wife of one Kanchan Das of village-Mayurnath and the

Page 347: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

335

marriage between the deceased and Kanchan Das was still subsisting on

the day of the recovery of the dead body and there had been no divorce

between them. It has also been submitted that the marriage, if any, in the

Chumauna form of the deceased with appellant Rohit Das is unlawful

and ab initio void as the deceased as well as the appellant had their

respective spouse living.

It has further been submitted that Section 304B of the Indian Penal Code

has no application when the deceased is not the lawfully wedded wife of

appellant-Rohit Das and in support of his contention reliance has been

placed upon the ratio of the cases of Ramnarayan v. State of Madhya

Pradesh 1998 (3) Crimes 147 and Imtiyaz Khan alias Sonu v. The State

of Jharkhand, 2004 (2) JLJR 178 : (2004 Cri LJ 2560), It has also been

contended that the Investigating Officer has conducted the investigation

in the most perfunctory manner and he has presupposed the factum of

marriage between the deceased and appellant-Rohit Das on the basis of

the statement of the interested witnesses without examining any person

of village-Bangora as well as of village Mayurriath. It has further been

contended tjiat there is also no iota of legal evidence on the record to

evidence the fact that the deceased was subjected to cruelty and

harassment for the demand of dowry, if any; soon before her death and

on this score also no offence under Section 304B of the In Bian Penal

Code is made out against the appellants. It has also further been

submitted that this appellant has been falsely implicated in this case at

the instance of Karu Das who is the father-in-law of the son of P.W. 1

arid said Karu Das was inimical to acquitted co-accused Bhudeo Das.

Lastly, It has; been contended that the learned Court below did hot

meticulously consider the evidence on the record and has committed a

manifest error in coming to the finding of the guilt of the appellants.

Page 348: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

336

Iri contra, it has been submitted by the learned Additional Public

Prosecutor that the first Wife of appellant-Rohit Das had died leaving

behind three children and thereafter the marriage of the deceased with

appellant-Rohit Das has been performed in the Ghumauna form and the

deceased was deserted by her last while husband Kahchan Das and this

appellant in his bail application has stated about his marriage with the

deceased in Chumauna form. It has also Been contended that since the

marriage in the Chumauna form, the deceased was leading conjugal life

with the appellant in his home and he Was treated with cruelty and

harassment for the fulfilment of demand of dowry, and deceased has

died due to haemorrhage and shock because of the fracture injury on her

scalp caused by hard and blunt substance and to screen themselves the

appellants have thrown the dead body in the Well and there is sufficient

legal evidence on the record that soon before her death, the deceased was

subjected to cruelty and harassment for or in connection With demand of

dowry and her death has taken place within seven years of her marriage

with appellant-Rohit Das in Chumauna form. Lastly, it has been

contended that the Apex Court in the case of Reema Aggarwal v.

Anupam, 2004 (2) JLJR 40 (SC) : (2004 Cri LJ 892) : (2004 AIR - Jhar

HCR 1026) has observed that if the validity of marriage itself is under

legal scrutiny, the demand of dowry in respect of an invalid marriage

would be legally not recognizable, however; stich hairsplitting legalistic

approach Would encourage harassment to a woman over demand of

money and would destroy the purpose of the provisions and it would be

appropriate to construe the expression "husr band" to cover a person who

enters into marital relationship and under the colour of such proclaimed

or feigned status of husband subjects the woman concerned to cruelty

and in the absence of a definition of husband to specifically include such

persons who contract marriage ostensibly and cohabitate with such

Page 349: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

337

woman, is no ground to exclude them from the purview of Sections

304B and 498A of the Indian Penal Code and thus, the ratios of the cases

of Ramnarayan (supra) and Imtiyaz Khan alias Sonu (supra) have no

application in this case being contrary to the ratio of the Apex Court. '

Thus, there is no illegality in the impugned judgment requiring an

interference therein.

It is an admitted fact that Mirkhi Devi was earlier married with Kanchan

Das of; vjllage-Mayurnath and her marriage with Kanchan Das was

performed four or five years prior to the occurrence and said Kanchan

Das is still alive and their marriage has not been dissolved by divorce in

accordance with law- In this connection; evidence in paragraph 5 of

P.W. 8 Ketkaha Das, the father of the deceased, paragraph 11 of P.W. 1,

paragraphs 3 and 5 of P.W. 3 and paragraph 3 of P.W. 4 of. their

testimony is referred to. In paragraph 6 of his evidence, P.W. 8 has also

deposed that the deceased was living in his house for the last one year

prior to her marriage with appellant-Rohit Das. His evidence is further to

the effect that at the time of the marriage of appellant-Rohit Das with the

deceased his first wife, was already dead and appellant-Rohit Das had

two daughters and a son born of his first wife. However, in paragraph 2

of his evidence he has deposed that the deceased was lead ing happy

conjugal life in the early days of the marriage with appellant-Rohit Das

and his first wife. P.W. 1 in paragraph 8 of his evidence has deposed that

the first wife of appellant-Rohit Das was not present in his house when

the marriage of the deceased was performed with the appellant. It,

therefore, appears from the evidence referred to above that the deceased

had her spouse alive though she was living a deserted life at her parent's

house and under such circumstances her marriage in Chumauna form

was performed with appellant-Rohit Das. There is conflicting evidence

Page 350: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

338

on the record regarding the spouse of appellant-Rohit Das in existence

and alive at the time of the marriage of the appellant with the deceased in

Chumauna form. It is an admitted fact that the deceased was not

divorced by her formal husband Kanchan Das.

There is also evidence on the record that in the marriage of the deceased

with appellant-Rohit Das no religious rites were performed and Mandap

Was not made and there was total absence of participation of the priest

and the barber in the said marriage and the said marriage in Chumauna

form was performed in the house of P.W. 1, who is the maternal uncle of

the deceased. It, therefore, appears that the marriage of the deceased with

appellant Rohit Das was definitely unlawful and abinitio void, but in

view of the evidence on the record, it is crystal clear that the deceased

was living in the house of the appellants leading marital life as husband

and wife for the last one year prior to the occurrence. In the case of

Ramnarayan (supra) it has been observed that Sections 304B and 498A

of the Indian Penal Code presuppose the marriage of victim-woman with

offender husband and it must be shown that the victim-woman was the

legally married woman and the import of the provision could not be

extended so as to exclude a woman married, in fact, but whose marriage

was void and in view thereof, the accused husband was discharged and

the proceeding under Sections 304B and 498A of the Indian Penal Code

was quashed as the accused since could not been treated as husband of

the deceased woman. A Bench of this Court in the case of Imtiyaz Khan

alias Sonu (supra) has observed that since offence under Section 304B is

a serious one as it has severe penal provision, its ingredients must be

proved strictly and the standard of evidence to prove the marriage for

this section would be either in accordance with the provision of Personal

Law to which the parties belong or by the conduct under Section 50 of

Page 351: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

339

the Evidence Act and mere living together and having physical

relationship does not constitute a marriage.

Prior to the ratio of the case of Imtiyaz Khan alias Sonu (supra) the Apex

Court has settled the controversy regarding the concept of the marriage

for the purposes of Section 304B of the Indian Penal Code in the case of

Reema Aggarwal (supra). The Bench of this Court in the case of Imtiyaz

Khan alias Sonu (supra) has probably overlooked the ratio in the case of

Reema Aggarwal (supra) of the Apex Court, Therefore, the ratio of this

Court in the case of Imtiyaz Khan alias Sonu (supra) is per incuriam. The

Apex Court in the case of Reema Aggarwal (supra) has thus observed in

paragraph 12:-

"The concept of marriage to constitute the relationship of'husband' and

'wife' may require strict interpretation where claims for civil rights, right

to property etc. may follow or flow and a liberal approach and different

perception cannot be an anathema when the question of curbing a social

evil is concerned."

The Apex Court has further observed in paragraph 19 which runs thus at

Page 1032 of AIR - Jhar HCR :-

'The concept of "dowry" is intermittently linked with a marriage and the

provisions of the Dowry Act apply in relation to marriages. If the legality

of the marriage itself is an issue further legalistic problems do arise, if

the validity of the marriage itself is under legal scrutiny, the demand of

dowry in respect of an invalid marriage would be legally not

recognizable. Even then the purpose t'ot which Sections 498A and 304B,

IPC and Section 113B of the Indian Evidence Act 1872 (for short the

"Evidence Act") were introduced cannot be lost sight of. Legislations

enacted with some policy to curb and alleviate some public evil rampant

Page 352: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

340

in society and effectuate a definite public purpose or benefit positively

requires to be interpreted with certain element of realism too and not

merely pedantically or hyper-technically.

The obvious objective was to prevent harassment to a woman who enters

into a marital relationship with a person and later on, becomes a victim

of the greed for money. Can a per son who enters into a marital

arrangement be allowed to take a shelter behind smokescreen to contend

that since there was no valid marriage the question of dowry does not

arise? Such legalistic niceties would destroy the purpose of the

provisions. Such hairsplitting legalistic approach would encourage

harassment to a woman over demand of money. The nomenclature

"dowry" does not have any magic charm written over it. It is just a label

given to demand of money in relation to marital relationship. The

legislative intent is clear from the fact that it is not only the husband but

also his relation who are covered by Section 498A. Legislature has taken

care of children born from invalid marriages. Section 16 of the Marriage

Act deals with legitimacy of children of void and voidable marriages.

Can it be said that Legislature which was conscious of the social stigma

attached to children of void and voidable marriages closed eyes to plight

of a woman who unknowingly or unconscious of the legal consequences

entered into the marital relationship. If such restricted meaning is given,

it would not further the legislative intent. On the contrary, it would be

against the concern shown by the Legislature for avoiding harassment to

a woman over demand of money in relation to marriages. The first

exception to Section 494 has also some relevance. According to it, the

offence of Bigamy will not apply to "any person whose marriage with

such husband or wife has been declared void by a Court of competent

jurisdiction."

Page 353: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

341

It would be appropriate to construe the expression "husband" to cover a

person who enters into marital relationship and under the colour of such

proclaimed or feigned status of husband subjects the woman concerned

to cruelty or coerce her in any manner or for any of the purposes

enumerated in the relevant provisions - Sections 304B/498A, whatever

be the legitimacy of the marriage itself for the limited purpose of

Sections 498A and 304B, of the Indian Penal Code. Such an

interpretation, known and recognized as purposive construction has to

come into play in a case of this nature. The absence of a definition of

husband to specially include such persons who contract marriages

ostensibly and cohabitate with such woman, in the purported exercise of

his role and status as 'husband' is no ground to exclude them from the

purview of Section 304B or 498A, of the Indian Penal Code, viewed in

the context of the very object and aim of the legislations introducing

those provisions."

On the touchstone of the ratio of the Apex Court referred to above

coupled with the evidence on the record mentioned hereinabove,

appellant-Rohit Das falls under the expression of 'husband' by

solemnizing his marriage with the deceased in. the Chumauna form of

marriage and the appellant has entered into marital relationship with the

deceased under the colour of such proclaimed or feigned status of

husband and the absence of definition of husband to specifically include

such person to contract marriage ostensibly and cohabitate with such

woman in the purported exercise of his role and status as husband is no

ground to exclude them from the purview of Section 304B or 498A of

the Indian Penal Code.

Viewed in the context of the very object and aim of the legislations

introducing those provisions. The ratio of the case of Surjit Kaur v. Garja

Page 354: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

342

Singh, AIR 1994 SC 135 and Ramcharan Singh v. Smt. Sushila Devi,

1996 Cri LJ 4405, are of no avail to the appellants in the facts and

circumstances of this case in view of the ratio of the case of Reema

Aggarwal (supra). I, therefore, see no substance in the contention of the

learned counsel for the appellants in respect thereof.

There is no denying the fact that the dead body of the deceased was

found in the well east of village-Bangora at a distance of half a kilometer

from her matrimonial home and her death has occurred within seven

years of her marriage with appellant-Rohit Das and her death is

otherwise than under normal circumstances. P.W. 10 Dr. Anandi Kumar

Jain has conducted the post-mortem examination on the dead body of the

deceased on 31-7-1998 and his objective finding runs thus:

(ii) Whole body was swollen with foul smelling of gas and

maggots all over the body.

(iii) Forehead depressed at left portion over left eye.

(iv) Lips swollen and tongue caught between the teeth.

(v) Skin of hands and feet separated from the body, the manner

of gloves.

(vi) Hair from the skull separated due to putrefaction."

He has further deposed that on dissection he has found a fracture of

frontal bone on left side with laceration overlying scalp and bloodstains

was there. In paragraph 2 of his evidence, the medical witness has

categorically deposed that the injury on scalp appears to be by hard and

blunt substance, such as lathi or by hard substance and the time elapsed

since death is live days from the post-mortem examination. Ext. 5, the

post-mortem report further reveals that according to the medical witness,

the death of the deceased is due to haemorrhage and shock due to injury

on head of the deceased caused by hard and blunt substance. It is equally

Page 355: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

343

relevant to mention here that the medical witness has not found the

presence of water in the stomach of the deceased.

It, therefore, appears that the deceased has not fallen in the well

accidentally when she was alive rather her dead body was thrown in the

well. The existence of injury on the scalp of the deceased coupled with

absence of watery fluid in her stomach etc. totally rules out the

possibility of the accidental death of the deceased or suicide by her.

However, the death of the deceased has been surrounded by suspicious

circumstances which have occurred otherwise than under normal

circumstances during the subsistence of her marriage with appellant-

Rohit Das while she was living with him and the other appellant in her

matrimonial home. For drawing the presumption as mandated under

Section 113B of the Evidence Act in this case regarding the death of the

deceased it has to be proved by legal evidence on the record that the

death of the deceased has occurred within seven years of her marriage

and she was subjected by the appellants to cruelty or harassment soon

before her death for or in connection with demand for dowry.

In order to attract application of Section 304B, the essential ingredients

are as follows:-

(i) The death of a woman should be caused by burns or bodily injury

or otherwise than under normal circumstances;

(ii) Such death should have occurred within seven years of her

marriage;

(iii) She must have been subjected to cruelty or harassment for her

husband or any relatives of her husband;

(iv) Such cruelty or harassment should be for or in connection with

demand of dowry;

Page 356: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

344

(v) Such cruelty or harassment is shown to have been meted out to the

woman soon before her death."

It is only when the aforementioned ingredients are established by

acceptable evidence, such death shall be called dowry death and the

husband or his relatives shall be deemed to have caused her death.

Before adverting to the evidence on the record, it is essential to mention

the averments made in the Fardbeyan (Ext. 3) of the informant which is

to the effect that after the marriage of the deceased with appellant-Rohit

Das, both the appellants started making demand of radio, wristwatch,

utensils, clothes and she-calf besides cash and they started subjecting her

to cruelty for the fulfilment of the said demand.

There is further averment that 20 or 25 days prior to the occurrence, the

informant brought the deceased to his house where she has disclosed the

cruelty perpetrated on her by the appellants for the fulfilment of the

demands. There is also averment that after stay of four to six days in her

parent's house, the deceased returned to her matrimonial home in the

company of P.W. 1 Bhim Das where he had tried to dissuade the

appellants for not subjecting the deceased to cruelty but P.W. 1 Bhim

Das was intimidated to fulfil the demand of dowry failing which it shall

follow with dire consequences.

P.W. 8 Ketkaha Das, the informant and the father of the deceased, has

deposed that the deceased had led her happy conjugal life with appellant-

Rohit Das for some time after the marriage and thereafter she was

subjected to cruelty by appellant-Rohit Das and others for the fulfilment

of demand of clothes, one she-calf and utensils and also used to

intimidate her that if the demand is not fulfilled, dire consequences shall

follow. He has further deposed that a Panchayati was done to resolve the

matter but it did not bear fruit. His evidence is further to the effect that

Page 357: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

345

he brought the deceased from her matrimonial home where she lived for

eight days and returned to her matrimonial home in the company of P.W.

1 Bhim Das where Bhim Das was also intimidated that the nonfulfilment

of demand of dowry shall be visited by severe consequences. P.W. 1

Bhim Das has deposed that the appellants started making demand of

clothes, utensils, one she-calf and Rs. 5000/- in cash from the deceased

after the marriage and they started her treating with cruelty and also used

to assault her.

He has further deposed that P.W. 8 has brought the deceased to his

house. His evidence is further to the effect that he brought the deceased

to her matrimonial home after eight days of her stay in her parent's house

and in his presence demand of dowry was made and acquitted co-

accused persons had stated before him that if the demand is not fulfilled,

dire consequences shall follow. He has further deposed that eight days

thereafter deceased was done to death and her dead body was found in

thG well. In paragraph-9 of his cross-examination, he has deposed that in

the month of Jeth prior to the occurrence he had visited the house of the

appellants to dissuade them for not making demand of dowry but the

appellants had made the demand of dowry in his presence.

In paragraph 12 of his cross examination, he has deposed that the,

deceased was never assaulted in his presence but the deceased had told

him one month prior to the occurrence regarding the fact of assault

perpetrated on her by the appellants and he has also narrated the said fact

to the informant. P.W. 2 has also deposed regarding the demand of she-

calf and utensils and subjecting the deceased to cruelty by the appellants.

In paragraph 10 of his cross-examination, he has deposed that he has

lastly visited the house of the appellants about one year prior to the

occurrence and appellant-Rohit Das demanded a she-calf from the

Page 358: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

346

deceased in his presence and also intimidated her of dire consequences

and he has informed the parents of the deceased as well as his father in

respect thereof. P.W. 4 Raj Kumar Das has deposed that whenever he

met the deceased, she used to tell that the appellants always assault her

for the fulfilment of demand of dowry.

In para graph 5 of his cross-examination he has deposed that he had met

the deceased lastly five or six months prior to the occurrence. P.W. 5

Laxman Das has also deposed that he has once met the deceased at Devi

Chauk after her marriage with appellant-Rohit Das and she has told him

about subjecting her to cruelty and harassment by the appellants for the

fulfilment of demand of dowry. P.W. 7 Champa Devi has also deposed

that the deceased had told her about the cruelty and harassment

perpetrated on her by the ap pellants when she had come to her house in

village-Hussainabad. In paragraph 4 of her cross-examination, she has

deposed that she had come to her house in the company of appellant-

Rohit Das.

Therefore, there is sufficient and satisfactory evidence on the record to

show that the deceased was treated with cruelty and harassment for the

fulfilment of demand of dowry during the period of her conjugal life

with the appellants sometimes after the marriage and the cruelty and

harassment on her continued for the fulfilment of demand of dowry till

her death. It, therefore, appears that the deceased was subjected to

cruelty and harassment for the demand of dowry soon before her tragic

end. A reading of Section 113B of the Evidence Act along with Section

304B of the Indian Penal Code shows that there must be material to

show that soon before the death of the deceased, she was subjected to

cruelty or harassment. Prosecution has to rule out the possibility of

natural and accidental death.

Page 359: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

347

The expression "soon before" is very relevant where Section 113B of the

Evidence Act and Section 304B of the Indian Penal Code are pressed

into service. Prosecution is obliged to show that soon before the

occurrence there was cruelty or harassment and only in the case

presumption operates. Evidence in that regard has to be led by

prosecution. "Soon before" is a relative term and it would depend upon

circumstances of each case and no strait jacket formula can be laid down

as to what would constitute a period of soon before the occurrence. It

would be hazardous to indicate any fixed period, and that brings in the

importance of a proximity test both for the proof of an offence of dowry

death as well as for raising a presumption under Section 113B of the

Evidence Act. The expression "soon before her death" used in the

substantive Section 304B of the Indian Penal Code and Section 113B of

the Evidence Act is present with the idea of proximity test. No definite

period has been indicated and the expression "soon before" is not

defined. Suffice, however, to indicate that the expression "soon before"

would normally imply that the interval should not be much between the

concerned cruelty or harassment and the death in question. There must

be existence of a proximate and live link between the effect of cruelty

based on dowry demand and the concerned death. If alleged incident of

cruelty is remote in time and has become stale enough not to disturb

mental equilibrium of the woman concerned, it would be of no

consequence.

Page 360: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

348

In the case of Kans Raj v. State of Punjab1, 2000 (3) PLJR 68 (SC) :

(2000 Cri LJ 2993 : AIR 2000 SC 2324) it has been observed by the

Apex Court at Page 2332 of AIR:-

""Soon before" is a relative term which is required to be considered

under specific circumstances of each case and no strait jacket formula

can be laid down by fixing any time limit. This expression is pregnant

with the Idea of proximity test. The term "soon before" is not

synonymous with the term "immediately before" and is opposite of the

expression "soon after" as used and understood in Section 114,

Illustration (a) of the Evidence Act. These words would imply that the

interval should not be too long between the time of making the statement

and the death. It contemplates the reasonable time which, as earlier

noticed, has to be understood and determined under the peculiar

circumstances of each case. In relation to dowry death, the circumstances

showing the existence of cruelty or harassment to the deceased are not

restricted to a peculiar instance but normally refer to a course of conduct.

Such conduct may be spread over a period of time. If the cruelty or

harassment be demand for dowry is shown to have persisted, it shall be

deemed to be "soon before death" if any other intervening circumstance

Showing the non-existence of such treatment is not brought on record,

before the alleged such treatment and the date of death. It does not,

however, mean that such time can be stretched to any period. Proximate

1 Ref : Supreme Court of India

Kans Raj vs State Of Punjab & Ors on 26 April, 2000 Author: Sethi Bench: G Pattanaik, R Sethi, S V Patil. CASE NO.: Appeal (crl.) 688-90 of 1993 PETITIONER: KANS RAJ Vs. RESPONDENT: STATE OF PUNJAB & ORS. DATE OF JUDGMENT: 26/04/2000 BENCH: G.B. Pattanaik, R.P. Sethi, & Shivaraj V. Patil. JUDGMENT: SETHI,J.

Page 361: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

349

and live link between the effect of cruelty based on dowry demand and

the consequential death is required to be proved by the prosecution. The

demand of dowry, cruelty or harassment based upon such demand and

the date of death should not be too remote in time which, under the

circumstances, be treated as having become stale enough."

In the case of Hira Lal v. State 1(Govt. of NCT) Delhi, AIR 2003 SC

2865 : (2003 Cri LJ 3711) it has been observed by the Apex Court which

runs thus :-

"A conjoint reading of Section 113B of the Evidence Act and Section

304B, I.P.C. shows that there must be material to show that soon before

her death the victim was subjected to cruelty or harassment. Prosecution

has to rule out the possibility of a natural or accidental death so as to

bring it within the purview of the 'death occurring otherwise than in

normal circumstances'. The expression 'soon before' is very relevant

where Section 113B of the Evidence Act and Section 304B, I.P.C. are

pressed into service. Prosecution is obliged to show that soon before the

occurrence there was cruelty or harassment and only in that case

presumption operates. Evidence in that regard has to be led by

prosecution. 'Soon before' is a relative term and it would depend upon

circumstances of each case and no strait-jacket formula can be laid down

as to what would constitute a period of soon before the occurrence. It

would be hazardous to indicate any fixed period, and that brings in the

importance of a proximity test both for the proof of an offence of dowry

death as well as for raising a presumption under Section 113B of the

1 Ref : Supreme Court of India

Hira Lal And Ors. vs State (Govt. Of Nct) Delhi on 25 July, 2003 Equivalent citations: AIR 2003 SC 2865, 2003 (2) ALD Cri 184, 2003 CriLJ 3711 Author: A Pasayat Bench: D Raju, A Pasayat JUDGMENT Arijit Pasayat, J.

Page 362: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

350

Evidence Act. The expression 'soon before her death' used in the

substantive Section 304B, I.P.C. and Section 113B of the Evidence Act

is present with the idea of proximity test.

No definite period has been indicated and the expression 'soon before' is

not defined. A reference to expression 'soon before' used in Section 114,

Illustration (a) of the Evidence Act is relevant. Suffice, however, to

indicate that the expression 'soon before' would normally imply that the

inter val should not be much between the concerned cruelty or

harassment and the death in question. There must be existence of a

proximate and live link between the effect of cruelty based on dowry

demand and the concerned death. If alleged incident of cruelty is remote

in time and has become stale enough not to disturb mental equilibrium of

the woman concerned, it would be of no consequence."

Similar is the ratio laid down in the case of State of A. P. v. Raj Gopal

Asawa1, 2004 SCC (Cri) 1306 : (2003 Cri LJ 1791 : AIR 2004 SC 1933).

In view of the evidence on the record, it stands established in this case

that the death of the deceased had taken place within seven years of her

marriage and her death is an unnatural death otherwise than under

normal circumstances and there was a persistent demand of utensils, she

calf and cash etc. and lastly made few days prior to her tragic end and

she used to be subjected to cruelty for the fulfilment of said demand and

there is sufficient legal evidence on the record to establish the fact that

1 Ref : Supreme Court of India

The State Of Andhra Pradesh vs Raj Gopal Asawa And Anr on 17 March, 2004 Author: A Pasayat Bench: D Raju, A Pasayat CASE NO.: Appeal (crl.) 384 of 1998 PETITIONER: The State of Andhra Pradesh RESPONDENT Raj Gopal Asawa and Anr. DATE OF JUDGMENT: 17/03/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT:ARIJIT PASAYAT, J.

Page 363: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

351

soon before her death, the deceased was subjected to cruelty or

harassment by the appellants for the fulfilment of the said demands and

in this view of the matter, it cannot be said that the interval between the

concerned cruelty or harassment and the death of the deceased was

remote in time or it has become stale enough not to disturb the mental

equilibrium of the deceased in the facts and circumstances of this case

and, therefore, it is imperative for invoking the legal presumption as

envisaged in Section 113B of the Evidence Act. I have no reason to

disbelieve the evidence of P.W. 8 and P.W. 1 read with the evidence of

other witnesses referred to above and there is ring of truth in their

evidence.

Karu Das of village-Bangora is admittedly the Samadhi of P.W. 1. There

is no iota of legal evidence on the record to substantiate the fact that said

Karu Das has any semblance of enmity either against the appellants or

the acquitted co-accused persons and, therefore, in the facts and

circumstances of this case, the false implication of the appellants in this

case at the instance of Karu Das has no leg to stand. Therefore, the

defence version of the false implication of the appellants in this case

does not appear to be natural and probable. And last but not the least, the

non-examination of any person of village-Bangora in respect of the

prosecution case cannot be said to be an infirmity of the prosecution case

in the facts and circumstances of this case in view of the legal evidence

on the record subjecting the deceased with cruelty for the demand of

dowry till her tragic end. It cannot also be said that the Investigating

Officer has not properly conducted the investigation of this case. The

learned Court below has meticulously considered the evidence on the

record in proper perspective and has rightly come to the finding of the

Page 364: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

352

guilt of the appellants and I see no illegality in the impugned judgment

requiring interference therein.

There is no merit in this appeal and it fails. The impugned judgment is

hereby affirmed. The bail bonds of the appellants are hereby cancelled

and they are directed to surrender before the Court below to serve out the

sentence, failing which the learned Court below shall take all coercive

steps in accordance with law for apprehending the appellants to serve out

the sentence.

Page 365: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

353

In S.T.No.186 Of 1994 vs The State Of Jharkhand 1on 8 July, 2010

D.K.Sinha, J. The instant appeal is directed against the judgment of

conviction and order of sentence dated 22.02.2002 & 25.02.2002 passed

by the 2nd Additional Sessions Judge, F.T.C.-II, Garhwa in Sessions

Trial No. 186 of 1994 by which the appellant was convicted under

Sections 304B/201 of the Indian Penal Code and sentenced to undergo

Rigorous Imprisonment for 7 years and 2 years respectively. He was

further convicted under Section ¾ of the Dowry Prohibition Act and

sentenced to undergo Rigorous Imprisonment for 2 years. However, it

was directed that all the sentences would run concurrently.

The prosecution story in short was that the informant P.W. 1 Satyendra

Narayan Chaubey delivered his statement (Ext.1) at Nagaruntari Police

Station on 06.07.1993 at about 1.30 p.m. narrating, inter alia, that his

daughter Anita Devi (since deceased) was married to the appellant

Chandra Pal Pandey @ Gulab Pandey in the year 1990 according to

Hindu rites. After her marriage, she went to her matrimonial home

situated at village Jasa within the same police station from where she

used to visit her parental home at interval of about 2/3 months.

Whenever she visited her parental home, she complained against her

1 Ref : Jharkhand High Court

In S.T.No.186 Of 1994 vs The State Of Jharkhand on 8 July, 2010 Cr. Appeal (S.J.)No.110 of 2002 Against the judgment of conviction and order of sentence dated 22.02.2002 and 25.02.2002 respectively passed by the 2nd Additional Sessions Judge, Garhwa in S.T.No.186 of 1994. -------------- Chandra Pal Pandey @ Gulab Pandey. ... ... ... ... ...Appellant -Versus- The State of Jharkhand. ... ... ... ... ... ... ...Respondent ------------- For the Appellant: M/s A.K.Kashyap, Sr. Advocate & Lina Shakti, Advocate. For the State: Mr. Tapas Roy, A.P.P. ------------- C.A.V. on 06.04.2010 : Pronounced on 08.07.2010 -------------- PRESENT THE HON'BLE MR. JUSTICE DILIP KUMAR SINHA -------------

Page 366: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

354

husband-appellant about his illicit relationship with his brother's wife

(sister-in-law) and that her husband had also been demanding Rs.5,000/-

and a scooter, lest she was threatened that her life would be made

miserable at her matrimonial home. The informant expressed his

inability to fulfill such demand but his such inability did not attract the

sympathy of the husband. He further alleged that on 03.07.1993 his

daughter was assaulted and was poisoned to death. The accused persons

including the appellant cremated the dead body of his daughter without

informing the parents of the deceased and having been learnt about the

occurrence, he lodged information before the police. Pursuant to such

information, Nagaruntari P.S. Case No.74 of 1993 was registered for the

alleged offence under Sections 304B/201 of the Indian Penal Code on

03.05.1994 against the appellant Chandra Pal Pandey @ Gulab Pandey

and the wife of Sudama Pandey. However, after investigation charge-

sheet was submitted against both the accused Chandra Pal Pandey @

Gulab 2

Pandey and Rita Devi for the alleged offence under Sections

498A/302/201 of the Indian Penal Code as also under Section ¾ of the

Dowry Prohibition Act.

Charge against both the accused including the appellant was framed

under Sections 304B/201 of the Indian Penal Code as also under Section

¾ of the Dowry Prohibition Act. The contents were read over and

explained to the accused to which they pleaded not guilty and claimed to

be tried. The defence of the accused persons was of innocence.

Mr. A.K.Kashyap, learned Sr. Counsel initiated the argument by

submitting that the appellant was innocent and no offence much less

offence alleged under Sections 304B/201 of the Indian Penal Code or

under Section ¾ of the Dowry Prohibition Act could be attracted against

Page 367: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

355

him in the facts and circumstances of the case. The date, time and the

year of the marriage of the appellant with the deceased could not be

proved by the prosecution witnesses and for want of which, the appellant

should not have been convicted for the alleged charge. The informant

P.W. 1 father of the deceased has simply stated that Anita Devi was

married to appellant Chandra Pal Pandey @ Gulab Pandey some 8 years

ago according to the Hindu rites and rituals. Similarly, the mother of the

deceased P.W. 2 Smt. Sarsawati Devi was also consistent that her

daughter Anita was married some 8 years ago of her deposition.

Evidence of P.W. 1 informant was recorded on 2nd day of August, 1999

whereas the mother P.W. 2 deposed in the month of September, 1999.

None of the prosecution witnesses could be able to place the exact date,

month and year of the marriage so as to shift the burden under Section

113B of the Evidence Act upon the appellant. P.W. 3 Satyendra Pandey

and P.W. 4 Ram Khelawan Choudhary were consistent that she died

much beyond 8 years of her marriage due to illness and the prosecution

failed to discharge its burden to prove the ingredients of Section 304B

I.P.C. so as to shift the onus under Section 113B of the Evidence Act

upon the appellant. In Baljeet Singh & Another Vrs. State of Haryana,

reported in (2004) 3 S.C.C. 122, the Apex Court held, "The defence in

this case has unequivocally

challenged the correctness of the date of marriage, as stated by the

prosecution. It even examined defence witnesses in this regard. Be that

as it may, the question whether the defence has been able to establish its

version of the date of marriage is immaterial because in the first instance

it was for the prosecution to establish this fact which for reasons stated

above, it has failed to do. Both the courts below, thus, have clearly erred

Page 368: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

356

in shifting the onus of proving the date of marriage on the defence and

drawing a presumption against it."

Advancing his argument Mr. Kashyap submitted that no demand of

dowry was alleged to be made in the near proximity of the death of Anita

Devi as she was peacefully living at her matrimonial home and

according to P.W. 5 Dina Nath Chaubey, i.e. the brother of the deceased,

his sister (deceased) had conveyed a year prior to her death about the

demand of dowry and the torture that was extended to her by the

accused. The other prosecution witnesses were 3 silent as to the exact

period when Anita Devi had conveyed about the alleged demand of

dowry whether it was in the near proximity of her death or during early

post married period. The law was specific and the burden was heavy

upon the prosecution to establish that cruelty and harassment in

connection with demand for dowry was extended soon before the death

of Anita Devi and the prosecution in the instant case failed to prove it.

Similarly, the prosecution failed to prove that alleged harassment or

torture was extended in connection with demand of dowry in cash or

kind. In Biswajit Halder @ Babu Halder & Ors. Vrs. State of West

Bengal, reported in 2007 SAR (Criminal) 461, the Supreme Court of

India observed,

" If Section 304B IPC is read together with Section 113B of the

Evidence Act, a comprehensive picture emerges that if a married woman

dies in an unnatural circumstances at her matrimonial home within 7

years from her marriage and there are allegations of cruelty or

harassment upon such married woman for or in connection with demand

of dowry by the husband or relatives of the husband, the case would

squarely come under "dowry death" and there shall be a presumption

against the husband and the relatives.

Page 369: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

357

In this case we find that there is practically no evidence to show that

there was any cruelty or harassment for or in connection with the

demand of dowry. There is also no finding in that regard. This deficiency

in evidence proves fatal for the prosecution case. Even otherwise mere

evidence of cruelty and harassment is not sufficient to bring in

application of Section 304B IPC. It has to be shown in addition that such

cruelty or harassment was for or in connection with the demand of

dowry. Since the prosecution failed to prove that aspect, the conviction

as recorded cannot be maintained."

Mr. Kashyap, pointed out that P.W. 3 Satyendra Pandey, P.W. 4 Ram

Khelawan Choudhary and P.W. 13 Dinesh Pandey though were

unfavourable to the prosecution but were not declared hostile and these

witnesses were consistent that the relation between the husband-

appellant and the deceased Anita Devi was very cordial and that Anita

Devi died of illness at Referal Hospital, Nagaruntari. Her father P.W. 1

was informed about the death of Anita and pursuant to such information

he participated in the funeral of his daughter. The informant had again

visited that place after about 4/5 days of the death. The witnesses were

further consistent that the accused persons had never ever demanded

dowry from the parents of Anita within their knowledge. P.W. 4 Ram

Khelawan Choudhary was more specific who testified that poison was

not administered to Anita and that she died of illness. He further testified

that Anita was taken to the Referal Hospital, Nagaruntari on a Jeep for

her treatment where she died and a death certificate was issued by the

attending Doctor. The witness was consistent that no dowry was

demanded from the parents of Anita. He further deposed that since the

appellant refused to deposit Rs.50,000/- in the name of his own daughter,

who was only 1-2 years old as a security for her marriage, the instant

Page 370: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

358

case was brought about by the informant against the appellant and

another after due deliberation and consultation.

Mr. Kashyap, learned Sr. Counsel, pointed out that the appellant 4 has

been highly prejudiced for non-examination of the I.O. The I.O. had

interrogated a number of witnesses including the co-villagers of the

appellant, who were consistent in their statements recorded under

Section 161 Cr.P.C. that the informant was informed about the death of

his daughter Anita and he had participated in the funeral. However,

amongst them P.W. 3 and P.W. 4 had supported. This contention and the

appellant were denied the opportunity to attract his attention.

The defence had produced D.W. 1 Giriwar Pandey, who deposed that his

jeep was used in carrying Anita to Referal Hospital, Nagaruntari for

treatment where she died. Mr. Kashyap, learned Sr. Counsel, pointed out

that prior to her death Anita was treated by Dr. Sita Ram Gupta, who

was produced and examined as D.W. 2 before the Trial Court. D.W. 2

deposed that he was posted at Referal Hospital, Nagaruntari as Medical

Officer-in-Charge from 1989 to 2000. On 03.07.1993 while he was on

duty as Medical Officer-in-Charge, Anita Devi, wife of Chandra Pal

Pandey @ Gulab Pandey aged about 22 years was admitted at the

Referal Hospital at about 11.30 p.m. vide indoor registration page No.

84-85 at Sl. No. 111 which was recorded in the pen of duty nurse and the

page was proved and marked as Ext. A. The Doctor deposed that the

belly of the patient was swellen as she had suffered loose motion and she

died of abdominal destention which resulted into cardio respiratory

failure in the same night at about 1.30 a.m. He issued the death

certificate under his pen and signature on 16.08.1993 which was proved

and marked Ext. B and B/1. He further testified that emergency drugs

and drips were administered to her but she could not be saved and that

Page 371: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

359

no sign of poisoning appeared on her body. In the cross-examination

P.W. 2 admitted endorsement made in the said register that it contained

176 pages but he could not explain as to why the register had only 169

pages. He further admitted having not carried the bed head ticket of the

patient or the admission slip. No document was available with him while

deposing related to treatment that was given to Anita during her

admission at the Referal Hospital.

Concluding his argument Mr. Kashyap, learned Sr. Counsel, submitted

that the prosecution miserably failed to prove all the required ingredients

for constituting an offence under Section 304B of the Indian Penal Code

against the appellant for the reasons discussed above. On the other hand,

the appellant could be able to prove that Anita Devi died of illness and

she was quickly removed to Referal Hospital, Nagaruntari when her

condition deteriorated due to frequent loose motions where lifesaving

drugs and drips were administered but she could not be saved and died in

the mid night and this fact has been supported by the D.W. 2 who stood

to the test of his cross- examination and there was no reason to discredit

his credibility. The defence has proved indoor register as also the death

certificate issued by D.W. 2 which were not disputed even then the Trial

Court grossly erred by recording the judgment of conviction and order of

sentence which are liable to be set aside.

Heard Mr. Tapas Roy, A.P.P. appearing for the Respondent-State, who

strongly controverted the contention raised on behalf of the appellants

and submitted that the charges, as framed against the appellant, was

proved on the materials available on the record and that no cogent reason

has been assigned for and on behalf of the appellant so as to call for

interference in the judgment of conviction and order of sentence

recorded against him.

Page 372: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

360

There are certain admitted facts, such as, the appellant Chandra Pal

Pandey @ Gulab Pandey was married to Anita Devi and a daughter was

born to them from their wedlock, who was about 1-2 years at the time of

death of Anita Devi. She was cremated at her matrimonial home village.

The allegation of the prosecution was that Anita Devi was poisoned to

death, yet, without specifying the allegation but the defence case was

that she died of illness and she was cremated after informing her parents

and obtaining the death certificate. Admittedly, the cause of death could

not be established by the prosecution as no opportunity was given to the

prosecution for the postmortem examination of the deceased. The only

material that was available as to the cause of death was the evidence of

D.W. 2 Dr. Sita Ram Gupta, who treated Anita Devi at the Referal

Hospital, Nagaruntari as the indoor patient and according to him the

cause of death was cardio respiratory failure on account of abdominal

distention. He had issued the death certificate. The Investigating Officer

could not be produced and examined in the instant case for the reasons

best known to the prosecution. I find substance in the argument that the

appellant has been denied of the opportunity to cross-examine the I.O.

and attracting his attention towards the statements of the witnesses. The

objective finding of the Investigating Officer also could not be brought

on the record as to the place of occurrence and as to whether he had

recorded the statement of the nurse and doctor of the Referal Hospital,

Nagaruntari to find out the credibility of the defence that Anita was

removed to Referal Hospital in precarious condition for her treatment

where she died during her treatment. The condition precedent for

establishing an offence under Section 304B I.P.C. are as follows:-

(i) That a married woman had died otherwise than under normal

circumstances.

Page 373: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

361

(ii) Such death was within 7 years of her marriage and (c) The

prosecution established that there was cruelty and harassment in

connection with demand for dowry soon before her death.

Section 113B of the Evidence Act permits a presumption to be drawn

against the accused in regard to the dowry death provided the

prosecution establishes that soon before her death; the woman was

subjected to cruelty or harassment in connection with demand of dowry.

In the instant case, I find substance in the argument advanced on behalf

of the appellant that the prosecution failed to establish the time, date and

year of the marriage of the appellant with Anita. According to the

version of the 6 informant recorded in his Fard Bayan Anita was married

in the year 1999 with the appellant but this fact could not be

substantiated in the substantive evidence of any of the material witnesses

except in the statement of P.W. 1 father and P.W. 2 mother of the

deceased that Anita was married some 8 years ago. However, without

specifying even the month of the marriage and relying upon the decision

of Baljeet Singh & Another Vrs. State of Haryana (supra) referred to

here-in-before, an adverse inference can be drawn for the reason that

P.W. 3 Satyendra Pandey and P.W. 4 Ram Khelawan Choudhary were

consistent that Anita Devi died beyond 8 years of her marriage on

account of illness and the prosecution failed to discharge its burden so as

to shift the onus under Section 311B of the Evidence Act upon the

appellant.

As the informant P.W. 1 Satyendra Narayan Chaubey and the mother of

the deceased P.W. 2 Smt. Sarasawati Devi were consistent that whenever

Anita visited her parental home, she used to complain against her

husband that he had illicit relation with his "Bhabhi" (brother's wife) and

that the appellant had been extending torture as he had been demanding

Page 374: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

362

Rs.5000/- in cash and a scooter lest she was threatened that her life

would be made miserable, I find that the father of the deceased P.W. 1

admitted that no demand was made at the time of marriage of the

appellant with Anita nor any demand was raised prior to marriage. He

admitted having not given assurance to the accused that he would give

some amount after the marriage.

He admitted having received information regarding torture or harassment

being extended to his daughter after six months of her marriage in

connection with demand of Rs.5,000/- by the appellant and also his illicit

relation with his own sister-in-law Rita Devi. The witness further

admitted that he had not stated at the first instance in his Fard Bayan

about the illicit relation between Rita Devi and the appellant and in that

manner he tried to develop the prosecution case by adding new facts.

P.W. 1 accompanied the police officer to the village of the appellant

after delivering his statement at the police station and the villagers of the

appellant were interrogated to which some of them stated that the dead

body was cremated in the night itself. He further admitted that the

appellant was present in the white apron but the police did not arrest

him.

P.W. 2 Smt. Sarasawati Devi i.e. the mother of the deceased testified that

her daughter Anita expressed satisfaction when she returned back for the

first time from her matrimonial home and did not complain against

anyone but during her next visit she complained against her husband that

he was entangled with his sister-in-law and was demanding a vehicle as

well as Rs. 5,000/- in cash. P.W. 1 & P.W. 2 both were consistent that

they were informed by P.W. 6 Sanjeev Kumar Tiwari about the death of

Anita as also the cause of her death that poison was administered to her

by her in-laws. P.W. 6 Sanjeev Kumar Tiwari was admittedly, not the

Page 375: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

363

eye witness who deposed that in the year 1993 at about 9.30 a.m. while

he was there at Nagaruntari bus stand, he overheard that Anita Devi was

dead and that she was the daughter of Satyendra Narayan Chaubey.

When he came across Satyendra Narayan Chaubey i.e. the informant

(P.W.1) he narrated whatever he overheard at the bus stand. He admitted

having not stated as to how Anita Devi died. P.W. 6 Sanjeev Kumar

Tiwari was declared hostile and was cross-examined at length wherein

he stated that he had not communicated Satyendra Narayan Chaubey that

Anita was poisoned to death and that she was cremated in the night

itself. He expressed ignorance that Anita was taken to Hospital for his

treatment by her husband and she was cremated after obtaining her death

certificate. I find, therefore, that this witness did not support the

contention of the informant P.W. 1 that he derived information from this

witness about the cause of death of Anita Devi. There was no other

source of information for the informant Satyendra Narayan Chaubey as

to how his daughter Anita died except his presumption based upon

speculation that she was poisoned to death without any legal evidence to

presume her unnatural death. On the other hand, there was definite case

of the defence that Anita Devi died of illness and in support thereof the

death certificate issued by D.W. 2 Dr. Sita Ram Gupta has been proved.

The defence has further proved the entry made in the indoor patient

register of the Referal Hospital, Nagaruntari and that the prosecution

miserably failed to controvert or discredit the credibility of these

documents by any other evidence oral or documentary. The prosecution

failed to prove as to how Anita Devi died. Even if it is presumed that she

died within 7 years it could not be proved that death of Anita Devi was

caused by any burns or bodily injury or had occurred otherwise than

under normal circumstances.

Page 376: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

364

The prosecution further failed to prove that soon before her death Anita

Devi was subjected to cruelty or harassment by the appellant- husband

whereas the brother of the deceased P.W. 5 Deena Nath Chaubey

admitted in his cross-examination that his sister Anita had apprised about

the demand of dowry and the harassment caused to her a year prior to

her death whereas P.W. 1 and P.W. 2 were consistent that such fact was

communicated to her about 2/3 months prior to her death when she

visited her parental home and therefore the prosecution failed to

establish that such demand was made in the near proximity of her death.

The fact that Anita Devi died of illness at the Referal Hospital,

Nagaruntari has been proved by P.W. 2 as has already been discussed

hereinabove. The entire evidence collected on the record of Trial Court

tells a different story that Anita Devi did not die in the manner presented

by the prosecution as the allegation of poisoning could not be

substantiated.

Having regard to the facts and circumstances of the case, I find that the

materials available on the record of the Trial Court were not sufficient to

hold the appellant guilty for the alleged charge, rather a reasonable doubt

is created that the prosecution could not be able to prove all the required

ingredients for constituting an offence under Sections 304B/201 of the

India Penal Code as also of the Dowry Prohibition Act for the reasons

stated above. In the result, the judgment of conviction and order of 8

sentence recorded against the appellant cannot be sustained under law.

Accordingly, the appellant Chandra Pal Pandey @ Gulab Pandey is

acquitted in Sessions Trial No. 186 of 1994 arising out of Nagaruntari

P.S. Case No.74 of 1993 for his conviction under Section 304B/201 of

the Indian Penal Code as also under the Dowry Prohibition Act. The

Page 377: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

365

appellant is on bail, as such, his bail bond stands discharged and this

appeal is allowed.

Page 378: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

366

5.6 SPECIAL CELL TO CHECK CRIME AGAINST

WOMEN:

Seven-member committee formed to hear cases on second and fourth

Fridays of every month.

Cases of atrocities against the fairer sex will be handled with a firmer

hand from now on, thanks to a seven-member women cell that came into

existence a couple of days ago.

The cell — comprising deputy SP (headquarters)

Barnabas Tirkey, officer in charge of women’s police station Sheela

Kisko, principal of Ranchi Women’s College Manju Sinha, psychologist

Sadhana Kumari, two advocates of Jharkhand High Court Pinky Rai and

Sadhana Kujur, and journalist Bharti Ojha — has been formed at the

directive of National Women Commission.

The commission had sent the directive to all states on December 7, 2010.

The members, who will meet on the second and fourth Fridays of every

month, will deal with offences under sections 304(b), 304, 305, 306, 354

and 498 (A) of the IPC. Those seeking help from the cell will have to

submit their applications either at the women’s police station near

Saheed Chowk or at Trikey’s office at room No. 313 of the district

collectorate’s new building on any day.

Tirkey said a notification had already been published in vernacular

dailies on Saturday.

Page 379: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

367

“I have informed the members about our first meeting, scheduled on

Friday,” he said.

On the importance of the cell, Tirkey said it would help prevent misuse

of law and bring the real culprits to book. “Usually, it has been noticed

that when an FIR is lodged in a dowry case, all members of the

bridegroom’s family are made accused. This is misuse of the dowry act

and gives leeway to a real culprit to escape. Same thing happens in

several other cases of crime against women. The women’s cell will play

a crucial role in nailing down the real culprits and save the innocent from

harassment,” he said. Supporting Tirkey, Kisko said members of the cell

would first try to sort out the differences by summoning both parties and

counselling them. If the disputes or grievances still persist, they will

recommend registration of proper FIRs for legal action. “In the past three

years, several cases came before the women’s police station, but hardly

50 of them needed FIRs to be registered. Many times, the disputes were

resolved after proper counselling by reputable members of the society,”

she said.

However, no separate grant has been allotted for functioning of the cell.

“Funds are not required to run the cell as all the members have agreed to

render their service voluntarily,” said senior superintendent of police

Praveen Kumar.

Asked whether the number of members will be increased in the future,

he said that could happen if any one, especially a woman of high repute,

was ready to join the cell on their own.

According to data available with the criminal investigation department,

127 of 321 cases registered by the women’s helpline from April 2010 to

March 2011 were related to domestic violence. The total number of

Page 380: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

368

bigamy cases registered so far this year is 19 followed by 15 cases of

sexual abuse. Eight trafficking cases, six dowry-related cases and three

related to witchcraft have also been registered. Figures available with the

women’s police station say 22 cases of atrocities against women were

registered last year while this year, 14 cases have been lodged till now.

Page 381: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

369

6

Conclusion

Page 382: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

370

The law is an essential tool for advancing women’s and girls’ rights and

equality. A robust and effective legal system based on the rule of law is

central to assisting women to become equal partners in decision-making

and development. Over the last couple of decades, the international

community has invested substantially in programs aimed at

strengthening the rule of law in developing countries. Despite this

investment, the rule of law continues to mean very little for the vast

majority of women and girls.

Models, Strategies and Best Practices on Women’s Empowerment

explores some of the challenges and solutions for women’s access to

justice in diverse legal systems. It shows that women face structural and

cultural barriers to accessing justice – insufficient knowledge of rights

and remedies, illiteracy or poor literacy, and lack of resources or time to

participate in justice processes. This is all the more so as women usually

have intensive family responsibilities. Even where women can access the

formal justice sector, the outcomes of the process often fall far short of

those envisaged by international standards, particularly with regard to

property rights, inheritance, divorce and child custody, and spousal

abuse.

Focusing on legal empowerment as a way to improve both access to

justice and the quality of justice women receive, the study presents

strategies and best practices in both formal and informal justice systems.

Legal empowerment approaches share one core concept: using the law to

enable disadvantaged groups to access justice and realize basic rights.

They include legal education; legal aid services; support for non-

discriminatory dispute resolution fora to complement or supplement

informal systems; training of paralegals; and rights awareness.

Page 383: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

371

In considering whether such approaches can improve the quality of

justice women receive, Accessing Justice brings together a number of

IDLO-sponsored case studies in Afghanistan, India, Namibia, Rwanda,

Mozambique, Tanzania, Morocco, Papua New Guinea and the Solomon

Islands. These highlight a variety of lessons for development

practitioners, both in terms of engagement with the informal legal sector

and, more generally, for the use of legal empowerment and top-down /

bottom-up strategies. In an appropriate context, carefully designed legal

empowerment strategies may constitute a valuable contribution to

improving women’s access to justice. The case studies also confirm that

programs designed to address women’s rights in informal justice systems

remain a highly sensitive issue. These programs require thorough

knowledge of the social, economic, and political context in which the

informal system is operating.

Moreover, legal empowerment approaches in both the formal and

informal justice sectors are likely to be more sustainable when

i. They are locally owned; and

ii. When they are coupled with top-down reforms to ensure domestic

laws and regulations are in line with international legal standards

on gender equality.

Although women may be victims of any of the general crimes such as

‘murder’, ‘robbery’, ‘cheating’, etc, only the crimes which are directed

specifically against women are characterised as ‘crimes against women’.

Various new legislations have been brought and amendments have been

made in existing laws with a view to handle these crimes effectively.

These are broadly classified under two categories.

The crimes under the Indian Penal Code (IPC)

Page 384: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

372

i. Rape (Sec. 376 IPC)

ii. Kidnapping & abduction for specified purposes (Sec. 363 -

373 IPC)

iii. Homicide for dowry, dowry deaths or their attempts

(Sec.302/304-B IPC)

iv. Torture - both mental and physical (Sec. 498-A IPC)

v. Assault on women with intent to outrage her modesty (Sec.

354IPC)

vi. Insult to the modesty of women (Sec. 509 IPC)

vii. Importation of girl from foreign country (upto 21 years of

age) (Sec. 366-B IPC)

The crimes under the special & local laws (SLL)

Although all laws are not gender specific, the provisions of law

affecting women significantly have been reviewed periodically

and amendments carried out to keep pace with the emerging

requirements. The gender specific laws for which crime statistics

are recorded throughout the country are -

(i) Immoral Traffic (Prevention) Act, 1956

(ii) Dowry Prohibition Act, 1961

(iii) Indecent Representation of Women (Prohibition) Act,

1986

(iv) Commission of Sati Prevention Act, 1987

This year the crime rate for crimes committed against women has been

calculated using only female population based on RGI`s Mid-year

projected female population.

Page 385: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

373

Therefore ‘crime rate’ of year 20121 is not comparable to previous years’

‘crime rate’. Reported incidents of crime (Incidence- 2,44,270)

A total of 2,44,270 incidents of crime against women (both under IPC

and SLL) were reported in the country during the year 2012 as compared

to 2,28,650 in the year 2011 recording an increase of 6.4% during the

year 2012. These crimes have continuously increased during 2008 - 2012

with 1,95,856 cases in the year 2008, 2,03,804 cases in 2009 and

2,13,585 cases in 2010 and 2,28,650 cases in 2011 and 2,44,270 cases in

the year 2012. West Bengal with 7.5% share of country’s female

population has accounted for nearly 12.7% of total crime against women

by reporting 30,942 cases during the year 2012. Andhra Pradesh,

accounting for nearly 7.3% of the country’s female population, has

accounted for 11.5% of total crimes against women in the country by

reporting 28,171 cases in the year 2012.

Crime rate2

The rate of crime committed against women was 41.7 in 2012.

Assam has reported the highest rate of crime against women at 89.5

during the year 2012 as compared to 41.7 crime rate at the national level.

Trend analysis

The crime head-wise details of reported crimes during the year 2008 to

year 2012 along with percentage variation are presented in Table-6A

1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/

National Crime Records Bureau. Located at New Delhi as the attached office of Ministry of Home Affairs (MHA), Government of India, NCRB is mandated to empower the Indian Police with Information Technology for modernization of Indian Police. NCRB has the proud distinction of installing 762 server - based computer systems at every District Crime Records Bureau and State Crime Records Bureau, across the country, 'Crime Criminal Information system (CCIS)’ project, with a view to maintain a National - level Database of Crimes, Criminals and Property related to crime. 2 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/

Page 386: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

374

The crime against women during the year 2012 has increased by 6.8%

over the year 2011 and by 24.7% over the year 2008. The IPC

component of crimes against women has accounted for 95.2% of total

crimes and the rest 4.8% were SLL crimes against women.

The proportion of IPC crimes committed against women towards total

IPC crimes has increased during last 5 years from 8.9% in the year 2008

to 10.2% during the year 2012.

Crime head-wise analysis1

(IPC)

Rape (Sec. 376 IPC)

(Incidence- 24,923 Rate- 4.3)

A decreasing trend in rape cases has been observed during 2008 – 2009.

Thereafter an increasing trend in the incidence of rape has been observed

during the periods 2009 - 2012. These cases have reported a decline of

0.3% in the year 2009 over 2008, an increase of 3.6% in 2010 over 2009

and an increase of 9.2% in the year 2011 over the year 2010 and further

increase of 3.0% in the year 2012 over 2011. Madhya Pradesh has

reported highest number of rape cases (3,425) accounting for 13.7% of

total such cases reported in the country. Mizoram has reported the

highest crime rate of 20.8 as compared to national average of 4.3. Rape

cases have been further categorised as incest rape and other rape cases.

Incest rape

(Incidence- 392)

1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/

Page 387: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

375

Incest rape cases have increased by 46.8% from 267 cases in 2011 to 392

cases in 2012 as compared to 3.0% increase in overall rape cases.

Maharashtra (77 cases) has accounted for the highest (19.6%) of the total

such cases reported in the country.

Rape victims

There were 24,915 victims of rape out of 24,923 reported rape cases in

the country during the year 2012. 12.5% (3,125) of the total victims of

rape were girls under 14 years of age, while 23.9% (5,957 victims) were

teenaged girls (14-18 years). 50.2% (12,511 victims) were women in the

age-group 18-30 years. However, 12.8% (3,187 victims) victims were in

the age-group of 30-50 years while 0.05% (135 victims) was over 50

years of age. The details are given in Table-5.3. Offenders were known

to the victims in as many as in 24,470 (98.2%) cases. Parents / close

family members were involved in 1.6% (393 out of 24,470 cases) of

these cases, neighbours were involved in 34.7% cases (8,484 out of

24,470 cases) and relatives were involved in 6.5% (1,585 out of 24,470

cases) cases. The State /UT / City-wise details are presented in Table-6.3

Kidnapping & abduction1

(Sec. 363-373 IPC)

(Incidence- 38,262 Rate- 6.5)

These cases have reported an increase of 7.6% during the year as

compared to previous year (35,565 cases). Uttar Pradesh with 7,910

cases has accounted for 22.2% of the total cases at the national level.

Delhi UT has reported the highest crime rate at 25.3 as compared to the

national average of

1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/

Page 388: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

376

Dowry Deaths1

(Sec. 302, 304B IPC)

(Incidence- 8,233 Rate- 1.4)

The cases of dowry deaths have decreased by 4.5% during the year 2012

over the previous year (8,618 cases). 27.3% of the total such cases

reported in the country were reported from Uttar Pradesh (2,244 cases)

alone followed by Bihar (1,275 cases) (15.5%). The highest rate of crime

(2.7) was reported from Bihar as compared to the national average of

1.4. Torture (cruelty by husband or his relatives) (Sec. 498-A IPC)

(Incidence-1,06,527 Rate-18.2) ‘Torture’ cases in the country have

increased by 7.5% over the previous year (99,135 cases). 18.7% of these

were reported from West Bengal (19,865 cases) followed by Andhra

Pradesh 12.6% (13,389 cases) and Rajasthan 12.5% (13,312).

The highest crime rate of 47.8 was reported from Tripura as compared to

the national rate at 18.2. Assault on women with intent to outrage her

modesty (Sec. 354 IPC) (Incidence-45,351 Rate- 7.7) Incidents of

Assault on Women with Intent to outrage her Modesty in the country

have increased by 5.5% over the previous year (42,968 cases). Madhya

Pradesh has reported the highest incidence (6,655) amounting to 14.7%

of total such incidences. Kerala has reported the highest crime rate (20.9)

as compared to the National average of 7.7. Insult to the modesty of

women (Sec. 509 IPC) (Incidence- 9,173 Rate- 1.6)

The number of such cases has increased by 7% during the year over the

previous year (8,570 cases). Andhra Pradesh has reported 40.5% (3,714

cases) followed by Maharashtra 14.1% (1,294 cases) of total incidences 1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/

Page 389: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

377

during the year 2012. Andhra Pradesh has reported the highest crime rate

(8.7) as compared to the national average of 1.6. Importation of girl from

foreign country (Sec. 366-B IPC) (Incidence- 59) A decrease of 26.2%

has been observed in crime head as 59 cases were reported during the

year 2012 as compared to 80 cases in the previous year (2011).

Karnataka (32 cases) and West Bengal (12 cases) have together

contributed 93.2% of total such cases at the national level.

Crime-head wise analysis1

(Special laws)

Immoral Traffic (Prevention)

Act, 1956

(Incidence-2,563 Rate- 0.4)

Cases under this Act have registered an increase of 5.2% during the year

as compared to the previous year (2,435). The highest incidences of

19.5% (500 cases) of such cases were reported Tamil Nadu followed by

Andhra Pradesh 18.4% (472 cases).Goa has reported the highest crime

rate of 4.6 as compared to the National average of 0.2. Commission of

Sati Prevention Act,1987 (Incidence-Nil) No such case was registered

under this Crime Head in across the country during the year 2012.

Indecent Representation of

Women (Prohibition) Act, 1986

(Incidence- 141 Rate-Negligible)

A decrease of 68.9% was noticed in this crime head during the year 2012

as compared to the previous year (453 cases). Rajasthan with 62 cases

1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/

Page 390: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

378

has accounted for 44% of total such cases at the national level which has

also reported the highest crime rate of 0.2.

Dowry Prohibition Act1

(Incidence-9,038 Rate-1.5)

The cases under this Act have increased by 36.5% during the year 2012

as compared to the previous year (6,619 cases). 27.8% of cases were

reported from Andhra Pradesh (2,511) followed by Odisha (1,487 cases)

accounting for 16.5% of total cases at the national level. The highest

crime rate of 7.3 was reported from Odisha as compared to 1.5 at the

national level. Crime against women in cities (All-India- 2,44,270 Cities-

36,622) 53 cities having population over 10 lakh (See Chapter-2) have

been identified as mega cities as per population census 2011. A total of

36,622 cases of crimes against women were reported from these 53 cities

during the year 2012 as compared to 33,789 cases in the year 2011. The

rate of crime in cities at 47.8 was comparatively higher as compared to

the national rate of 41.7.

Among 53 cities, Delhi (5,194 cases) has accounted for 14.2% of total

such crimes followed by Bengaluru (6.2%) (2,263 cases), Kolkata

(5.7%) (2,073 cases), Hyderabad (5.2%) (1,899 cases) and Vijayawada

(5.2%) (1,898 cases). The crime rate was significantly higher in

Vijayawada, Kota, Kollam, Jaipur and Indore at 256.4, 130.2, 106.3,

98.1 and 88.8 respectively as compared to average (47.8) of mega cities.

Delhi city has accounted for 19.3% of rape cases, 23.1% of kidnapping

& abduction cases, 14.6% of dowry deaths and 10.9% of assault on

women with intent to outrage her modesty cases among 53 cities. Delhi

has reported 11.1% (1,870 cases) of incidences of cruelty by husband or

1 Source : National Crime Records Bureau (Ministry of Home Affairs) : http://ncrb.nic.in/

Page 391: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

379

his relatives. Vijayawada has reported 16.6% incidences of insult to the

modesty of women. Only 9 cases of ‘importation of girl from foreign

country’ at all India level have been reported from Kolkata. It is

worthwhile to mention that Chennai, Bengaluru, Hyderabad and Mumbai

have booked more cases under special & local laws among the mega

cities. 16.5% (193 out of 1,170) of cases under Immoral Traffic

(Prevention) Act and 11.0% (639 out of 5,836) of cases under assault on

women with intent to outrage her modesty was reported in Delhi alone.

Similarly, 50% (10 out of 20 cases) and 40% (8 out of 20 cases) of cases

of Indecent Representation of Women Act were reported in Jaipur and

Jodhpur respectively. 63.2% (633 out of 1,001) of cases under Dowry

Prohibition Act during the year 2012 were registered in Bengaluru city

alone.

LESSONS LEARNED

Legal empowerment strategies can be successfully used to improve

women’s access to justice in both formal and informal systems One of

the key problems for the achievement of gender equality lies in the

inability of many women to use existing legal standards to realize their

rights. Legal empowerment strategies, through legal literacy programs,

legal aid or alternative dispute resolution mechanisms, can help create a

‘culture of justice’ among women and ensure that principles of equality

and non-discrimination are not only enshrined in law, but also translated

into practice.

Evidence suggests that legal empowerment approaches to enhance

women’s access to justice may work well in a variety of legal settings,

Page 392: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

380

including informal ones. For example, the fluidity and dynamism of

informal justice systems can open up opportunities for modernization

and progressive reforms around women’s rights. Where women are

provided with a forum to discuss and (re)interpret cultural or legal

rules, the system may be open to positive transformation, particularly

when it is both women and men who are advocating for a

reinterpretation of such rules. Legal empowerment approaches may

also work in informal justice settings because the customary authority

of male leaders is generally connected to their ability to reflect the

values and interests of the community. Thus, while customary male

leaders often benefit from the status quo and resist positive change for

women, they may also have incentives to respond to community

expectations. In the same way, bottom-up legal empowerment

approaches targeting women can pressure community leaders to

reform discriminatory practices. When women are informed of their

rights and encouraged to discuss or challenge informal laws and

practices, they can put pressure on customary justice systems to better

protect basic rights.4 In turn, this can reduce power imbalances and

elite capture and improve the transparency of local government

decision-making.

Legal empowerment strategies are most effective where implemented

in conjunction with ‘top-down’ measures and through local partners

while the state legal system alone cannot cure gender injustice; it is a key

avenue for the achievement of gender equality. Law has the ability to

deter discriminatory practices against women with the threat of

punishment, and the capacity to influence and guide the behavioural

norms and social interaction between men and women. A well-

functioning and non-discriminatory legal system can also serve as an

Page 393: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

381

accountability mechanism to ensure the compliance of informal practices

with basic human rights standards and to prevent power abuses, while at

the same time enhancing the predictability of informal decisions.

Grassroots efforts to empower women are therefore more effective when

coupled with ‘top-down’ reforms aimed to ensure that justice systems,

whether formal or informal, are in line with international laws and

standards pertaining to gender equality. The presence of supportive

constitutions and national laws plays a critical role in ensuring the

effectiveness of legal empowerment interventions. Moreover, legal

empowerment projects are most likely to have an impact on women’s

access to justice and gender inequality if they creatively draw on local

knowledge and practices. This contributes to the legitimacy of the

reforms and ensures their eventual sustainability.

Barriers to women’s access to justice are multidimensional and go

beyond legal aspects Political, social, cultural, economic and

psychological barriers that obstruct women’s access to justice and legal

empowerment are found at every stage of the ‘justice chain’. The case

studies clearly indicate that the disempowerment of women is not simply

due to lack of knowledge of laws and legal procedures, but rather due to

a host of economic, social and cultural practices that perpetuate

inequality in the community and the society at large. Programs which

encourage women to object to discriminatory practices are unlikely to

provide meaningful relief unless the broader economic, social and

security context is addressed. Research indicates that legal empowerment

projects targeting women work best when combined with activities

addressing a rule of law culture, women’s economic autonomy and

discriminatory attitudes within the community. To this extent, while

legal empowerment is not the panacea to the wider problems of

Page 394: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

382

inequality, discrimination and the poverty of women, it can make a

positive contribution, which, if properly integrated with other initiatives,

will place women on a better trajectory towards effectively addressing

discriminatory practices.

Legal empowerment programs designed to address women’s access to

justice need to be context-specific Women’s experiences in the justice

system are diverse. There are no readymade formulas as to how women

can be empowered to assert their rights and act as agents of sustainable

social change. Rather, a number of questions should be asked: what is

the best entry point for women to be empowered to use the legal system

to advance their rights? What is the forum in which women’s core

concerns are dealt with? Is that system open to reform or would legal

empowerment have limited results in that context, due to deeply

entrenched gender stereotypes, vested interests in the status quo and

power inequities? Each intervention should carefully examine where the

opportunities are in a given context, whether that be in the formal or

informal justice system and whether that be in targeting procedural or

substantive aspects. Ultimately, projects designed to be pragmatic,

realistic and reflective of the local context demonstrate a higher rate of

success.

SUGGESTIONS:

Enhancement of women’s self-esteem, stopping their progress

from getting de-railed and getting their active participation in

constructive work, the attention of social and political authorities

is required to be focused on social mobilization and

transformation of outdated social values.

Page 395: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

383

Creating gender sensitization is necessary. People have to

overcome negative assumptions, prejudices and religious or social

practices, which had led to unproductive ethos. For it, a new way

of thinking, a new philosophy, a new kind of attitude is required

which regard all people, irrespective of gender, equal.

A woman herself should make efforts for her empowerment and

well-being – be it physical, emotional or spiritual and become an

‘enlightened woman’. She has to make herself capable of thinking

on her own about her well being, taking her own decisions

rationally without fear or favour and without being swayed away

by whims/fancies or emotions. She should be bold enough to

counter the reactionary customs and social inhibitions, which have

kept the Indian women in bondage and misery.

First and foremost task of the government is to make adequate

arrangements for the education of all women. It would bring

enlightenment and inculcate in them proper knowledge, attitude,

work-habits and skills, scientific temper and confidence and

courage to fight against evil social practices. Sound education

would make them capable to understand their rights and duties

enable them to take their decisions independently and to set their

priorities rightly for fulfilling their dreams at various stages of

their life. It necessitates providing a good and congenial

atmosphere for development of their personalities at home.

Achievement of freedom economic or otherwise should not lead

them to confusion or indiscipline. Freedom/liberty should be

utilized towards realisation of her own intellectual emotional,

motivational and physical potential as well as to fulfil familial,

social and national obligations properly. One must be free – not

Page 396: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

384

only to fulfil her own interests or needs or to live a life of luxury

and extravagance, but also to care for others.

Create supportive infrastructure for women to enhance their

confidence and ensure their security. Knowledge about the legal

infrastructure of the nation, especially the special legal measures

to protect them from atrocities and exploitation. Social and

political authorities are supposed to provide a good and congenial

atmosphere for development of women’s personalities and ccreate

supportive infrastructure for working women to enhance their

confidence and ensure their security.

Many laws have been enacted to eradicate social evils often

remain ineffective on account of the lack of political will, general

awareness in public, judicial insensitivity and bureaucratic apathy.

The law enforcement agency is neither very strong nor effective to

fight against the vested interests of powerful lobbies. Despite all

these legislations, efforts to uplift the status of woman and hue and

cry made by various organisations, many social evils harassing

woman still exist till today.

Legislations in favour of women should not remain just on papers.

Its honest and sincere implementation in real life is urgently

required as well. In most cases, women themselves do not raise

their voice against injustice or claim their legal rights out of love

and affection for their own people or to save honor of their

families. Net result is that they are deprived of their rightful place

within their families, society or nation.

Inspire women to join mainstream. Economic independence is

necessary to make women secure and restore their lost confidence.

It necessitates providing enough job-opportunities at appropriate

juncture of their lives and provide for them suitable atmosphere to

Page 397: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

385

work. There should be an enabling provision for women to secure

jobs without any age bar. It has been observed that by the time the

women (Housewives) are free from their motherhood liabilities,

all avenues to get suitable jobs according to their aptitude and

qualifications are closed to them. They do not find any

opportunity to work due to long gap incurred in their

academic/professional career while performing their social and

familial responsibilities.

Benefit of Open University and distance education programs could

be taken for preparing women-folk to join mainstream.

Arrangements of short term refresher training or coaching

programmes can solve the problem of filling the gap incurring

between their graduation from educational institutions and start of

a regular career. It would enable women to get employed again to

get employed again. The gap incurred in their career would not

block their way to enter into the mainstream.

Some women cannot afford to be chained to the daily nine to five

routine. Time constraints, family obligations or lack of the

required qualifications could be the possible resons. For women,

terms and conditions of employment should be of the nature,

which suits to their needs at different points of life. There should

be provision of work from home, part-time jobs or home based

income generating jobs. It could be created in areas like work of

house-keeping in the offices, designing, translation, research, food

and nutrition and interior decoration, journalism or photo

journalism, nursery teaching, textile designing, travel business etc.

It would not pose any additional burden on national government,

as emoluments would be related to work done.

Page 398: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

386

Special attention and measures/programs need to be taken for

utilizing the intellectual, emotional, motivational and physical

potential of women-folk. It could provide a substantial work force

with a high intellectual, emotional, motivational and physical

potential. The need paying special attention in case of women is

not required, because they are intellectually or otherwise

handicapped, for which lowering the standard would be necessary,

but because they are past the age which normally entitles one to

join the national reconstruction efforts through gainful

employment.

Government should be a little considerate for non-career women

having small children. Investing in improved opportunities for

women could contribute productively in the overall development

of the nation. Proper and careful nurturing of women folk would

not only help the women-folk, but benefit the society and the

nation as well. The government could be given economic

assistance in the form of social security to woman having one or

two small children (up to the age of 10-12). Or It could give them

some incentives such a rebate in taxes. Or it could ensure

opportunities to provide work at appropriate juncture of their lives,

i.e. when their children start going to schools and they are free to

some extent from the familial responsibilities.

The task of involving women in nation building activities needs national

determination and political will. They, in fact, represent a vast reservoir

of human resource, which still remains untapped and unutilized to a

great extent.

Page 399: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

387

BIBLIOGRAPHY

1. Books

i. D.N. Jha, Ancient India: An Introductory Outline (New Delhi: People's Publishing

House, 1981)

ii. A.S. Altekar, Position of wornen in Hindu Civilization (1938; New Delhi: Motilal

Banarassidass, 1959)

iii. R.C. Majumdar, Ancient India mew Delhi: Motilal Banarassidass, 1964)

iv. Ray Choudhiri, Social Cyultural and Economic History ofAncient India (New Delhi:

Surjeet Publications, 1978)

v. K.M. Kapadia, Marriage andFamily in India(1955; London: Oxford Univ. Press,

1966)

vi. O P.S. Joshi,Cultural History ofAncient India (New Delhi: S.Chand, 1978)

vii. I D.N. Jha, Ancient India: An Introductory Outline (New Delhi: People's Publishing

House,1981)

viii. Indra, Status of Women in Ancient India (Banaras: Motilal Banarassidass, 1955)

ix. K. M. Kapadia, Marriage & Family in India(1955; London: Oxford Univ.

Press,1966), p. 28.

x. Siddhartha Dash, Women Empowerment in India, Orissa Review, December, 2004,

page 56.

xi. Muslim law in India: Along with Muslim women (protection of rights on divorce) act,

1986 & Muslim women (protection... by Iqbal Gaya (1986)

xii. Protection of Women from Domestic Violence: Act & Rules: Act and Rules by P.K.

Das (Dec 2006)

xiii. The Measure of Woman: Law and Female Identity in the Crown of Aragon (The

Middle Ages Series) by Marie A. Kelleher (May 18, 2010)

xiv. Justice: What's the Right Thing to Do? by Michael J. Sandel (Aug 17, 2010)

xv. Equal: Women Reshape American Law by Fred Strebeigh (Feb 13, 2009)

xvi. Goody, Jack (1976). Production and Reproduction: A Comparative Study of the

Domestic Domain. Cambridge: Cambridge University Press.

Page 400: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

388

xvii. Goody, Jack (1976). Production and Reproduction: A Comparative Study of the

Domestic Domain. Cambridge: Cambridge University Press.

xviii. Stevan Harrell and Sara A. Dickey, [Dowry Systems in Complex

Societieshttp://www.jstor.org/stable/3773553], Ethnology, Vol. 24, No. 2 (Apr.,

1985),

xix. John L. Comaroff (1981), Rules and Processes, University of Chicago Press, ISBN 0-

226-11424-4

xx. Anderson, S. (2007). The economics of dowry and brideprice. The Journal of

Economic Perspectives, 21(4)

xxi. Charles Mwalimu (2007), The Nigerian Legal System: Public Law, Volume 1

xxii. Bride price: an insult to women, a burden to men?, BBC News (August 30, 2004)

xxiii. Goody, Jack (1976). Production and Reproduction: A Comparative Study of the

Domestic Domain. Cambridge: Cambridge University Press.

xxiv. Goody, Jack (1976). Production and Reproduction: A Comparative Study of the

Domestic Domain. Cambridge: Cambridge University Press.

xxv. Goody, Jack (1976). Production and Reproduction: A Comparative Study of the

Domestic Domain. Cambridge: Cambridge University Press.

xxvi. Goody, Jack (1976). Production and Reproduction: A Comparative Study of the

Domestic Domain. Cambridge: Cambridge University Press. pp.

xxvii. Yanagisako, Sylvia (1979). "Family and Household: The analysis of domestic

groups". Annual Review of Anthropology 8:

xxviii. Mann, S. (2008). Dowry Wealth and Wifely Virtue in Mid-Qing Gentry Households.

xxix. Tambiah, Stanley J. (1989). "Bridewealth and Dowry Revisted: The posit of women

in Sub-Saharan Africa and North India". Current Anthropology 30 (4): 426.

xxx. Schlegel, Alice; Eloul, Rohn (1988). "Marriage Transactions: Labor, Property,

Status".American Anthropologist 90 (2):

xxxi. Thompson, James C., Women in Babylonia Under the Hammurabi Law Code Women

in the Ancient World (2009)

xxxii. The Code of Hammurabi Robert Harper Translation (1923)

xxxiii. The Code of Hammurabi, Translated by L.W. King (1915), See Laws 137 through

164, and Laws 178 through 184

xxxiv. Hammurabi's Code and Babylonian Law Mindi Bailey (2007)

Page 401: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

389

xxxv. William Smith (1875), Dos, A Dictionary of Greek and Roman Antiquities, John

Murray, London;

xxxvi. Ferdinand Mackeldey (1883), Handbook of the Roman law: Volumes 1-2, Book III;

pages 419-430

xxxvii. Roger S. Bagnall et al. (Editor), The Encyclopedia of Ancient History

xxxviii. The Dowry in Ancient Rome James C. Thompson (2010), Women in the

Ancient World

xxxix. M. TVLLI CICERONIS PRO A. CAECINA ORATIO Cicero, Roman Law (in Latin,

use translator)

xl. The Library of History Diodorus Siculus, Book XXXI, Paragraph 27, Loeb Classical

Library Edition, page 385-387

xli. Nigel Guy Wilson. "Dowry". Encyclopedia of Ancient Greece. 2002.

xlii. Tambiah, Stanley; Goody, Jack (1973). Bridewealth and Dowry. Cambridge UK:

Cambridge University Press.

xliii. Tambiah, Stanley; Goody, Jack (1973). Bridewealth and Dowry. Cambridge UK:

Cambridge University Press.

xliv. Witzel, Michael. "Little Dowry, No Sati: The Lot of Women in the Vedic Period."

Journal of South Asia Women Studies 2,

xlv. MacDonell, Arthur and Keith, Arthur. Vedic Index: Names and Subjects, Indian Text

Series (John Murray, London, 1912),

xlvi. James G. Lochtefeld, The Illustrated Encyclopedia of Hinduism: A-M, Rosen

Publishing, ISBN 0-8239-3179-1; 203

xlvii. John Watson McCrindle (Translator), The Invasion of India by Alexander the Great

as described by Arrian, Archibald Constable & Co. (Westminster, UK): 280

xlviii. JW McCrindle (Translator), Megasthenes and Arrian, Trubner & Co (London): 222

xlix. CV Vaidya, Epic India, Or, India as Described in the Mahabharata and the Ramayana,

ISBN 978-8120615649

l. Edward Sachau (Translator), Bīrūnī, Muḥammad ibn Aḥmad, Alberuni's India (Vol.

2), Kegan Paul, Trench, Trübner & Co. (London, 1910.) Chapter LXIX: 154 ; see Al-

Hind too.

li. Edward Sachau (Translator), Bīrūnī, Muḥammad ibn Aḥmad, Alberuni's India (Vol.

2), Trübner & Co. (London, 1910.) Chapter LXXII: 164

lii. TAIPEI'S TROVE OF CHINESE ART, New York Times (12 January 1986)

Page 402: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

390

liii. Lü, B. (2010). Bridal dowry land and the economic status of women from wealthy

families in the Song Dynasty. Frontiers of History in China, 5(1), 106-124.

liv. Cooper, G. (1998). Life-cycle rituals in Dongyang County: time, affinity, and

exchange in rural China. Ethnology, pp 373-394

lv. Brown, P. H. (2009). Dowry and Intrahousehold Bargaining Evidence from China.

Journal of Human Resources, 44(1), 25-46

lvi. Adrian, B. (2004). The Camera's Positioning: brides, grooms, and their photographers

in Taipei's bridal industry. Ethos, 32(2), 140-163.

lvii. Marina Warner, From the Beast to the Blonde: On Fairy Tales And Their Tellers, pp.

213–4ISBN 0-374-15901-7

lviii. Carolyn Johnston Pouncey, The Domostroi: Rules for Russian Households in the

Time of Ivan the Terrible, p95 ISBN 0-8014-9689-6

lix. Olga Semyonova Tian-Shanskaia, Village Life in Late Tsarist Russia, p3-4 1993,

Indiana University Press, Bloomington and Indianopolis.

lx. Olga Semyonova Tian-Shanskaia, Village Life in Late Tsarist Russia, p66 1993,

Indiana University Press, Bloomington and Indianopolis

lxi. Gail MacColl and Carol McD. Wallace, To Marry An English Lord, pp. 166–7, ISBN

0-89480-939-3

lxii. "Convent", Catholic Encyclopedia

lxiii. Louis Auchincloss, False Dawn, p 42 ISBN 0-385-18021-7

lxiv. Louis Auchincloss, False Dawn, p 48 ISBN 0-385-18021-7

lxv. Ferraro, Gary P., and Susan Andreatta (2009). Cultural Anthropology: An Applied

Perspective. Cengage Learning. p. 224. ISBN 9780495601920.

lxvi. Deogaonkar, S.G. (2002). Native Americans And Native Indians. Concept Publishing

Company. p. 48. ISBN 9788170229094.

lxvii. Mangan, Jane E. (2005). Trading Roles: Gender, Ethnicity, and the Urban Economy

in Colonial Potosí. Duke University Press. p. 237. ISBN 9780822334705.

lxviii. Mangan, Jane E. (2005). Trading Roles: Gender, Ethnicity, and the Urban Economy

in Colonial Potosí. Duke University Press. p. 140. ISBN 9780822334705.

lxix. Socolow, Susan Migden (2000). The Women of Colonial Latin America. Cambridge

University Press. p. 83. ISBN 9780521476423.

lxx. Larry D. Eldridge, ed. (1997). Women and Freedom in Early America. NYU Press.

p. 116.ISBN 9780814721988.

Page 403: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

391

lxxi. Archaeologia Americana: transactions and collections of the American Antiquarian

Society, Volume 3. American Antiquarian Society, digitized by University of

Wisconsin at Madison. 1857. pp. 274–5.

lxxii. Mirza, Rocky M. (2007). The Rise and Fall of the American Empire: A Re-

Interpretation of History, Economics and Philosophy: 1492-2006. Trafford

Publishing. p. 83.ISBN 9781425113834.

lxxiii. Nazzari, Muriel (1991). Disappearance of the Dowry: Women, Families, and Social

Change in São Paulo, Brazil (1600-1900). Stanford University Press. p. 63. ISBN

9780804719285.

lxxiv. Nazzari, Muriel (1991). Disappearance of the Dowry: Women, Families, and Social

Change in São Paulo, Brazil (1600-1900). Stanford University Press. pp. 65–7. ISBN

9780804719285.

lxxv. Nazzari, Muriel (1991). Disappearance of the Dowry: Women, Families, and Social

Change in São Paulo, Brazil (1600-1900). Stanford University Press. p. 67. ISBN

9780804719285.

lxxvi. Nazzari, Muriel (1991). Disappearance of the Dowry: Women, Families, and Social

Change in São Paulo, Brazil (1600-1900). Stanford University Press. p. 73. ISBN

9780804719285.

lxxvii. Van Willigen, J., & Channa, V. C. (1991). Law, custom, and crimes against women:

The problem of dowry death in India. Human organization, 50(4), pages 369-377

lxxviii. Dalmia, S., & Lawrence, P. G. (2005). The institution of dowry in India: Why it

continues to prevail. The Journal of Developing Areas, 38(2), pages 71-93

2. Journals

i. Unicef, 1998.Children and Women in Pakistan: A situation Analysis. Political Printer

(Pvt.) Ltd., Islamabad.

ii. Reports of Commission of Inquiry for Women, Pakistan. August 1997.Islamabad.

iii. Quarterly Newsletter, Legislative Watch, Issue No.6&7. Aurat Publication &

Information.

iv. Article by S.M.Zafar, "Human Rights Environment in Pakistan".

v. Mumtaz, K & Shaheed, F., 1987. "Women of Pakistan: Two Steps Forward, One Step

Back?" Vanguard Books (Pvt.) Ltd., Lahore, Pakistan

Page 404: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

392

vi. Reddy G.B., Women and Law in India — Issues and Challenges, AIR 2003 Jour 331.

vii. Safeguarding women in secure psychiatric settings: an analysis of incidents and

practice over a three-year period Author(s): Andy Smith, (St Andrews Healthcare,

UK), Jackie Bird, (St Andrews Healthcare, UK), Clive Long, (St Andrews Academic

Centre, King's College London, Institute of Psychiatry, UK) Citation:Andy Smith,

Jackie Bird, Clive Long, (2011) "Safeguarding women in secure psychiatric settings:

an analysis of incidents and practice over a three-year period", Journal of Adult

Protection, The, Vol. 13 Iss: 1, pp.19 – 26

viii. Women's Empowerment, Issues, Challenges, and Strategies: A Source Book By

Hajira Kumar, Jaimon Varghese

ix. Protection of Women From Domestic Violence Law R.P.Kataria & Alok Saxena

Reprint, 2013

x. Commentaries on the Protection of Women from Domestic Violence Act, 2005

S.P.Sen Gupta 2011

xi. Commentary on Protection of Women from DOMESTIC VIOLENCE Act, 2005 &

Rules, 2006 D.K.Ganguly 2007, reprint 2012

xii. Commentary on Protection of Women from Domestic Violence Act, 2005 (with

Rules, 2006) N.K.Acharya (Advocate) 5th edition, 2011

xiii. An Exhaustive Commentary on the Protection of Women from DOMESTIC

VIOLENCE Act & Rules Anil Sachdeva 3rd edition, 2009

xiv. The Protection of Women from Domestic Violence Act, 2005 & 2006 Rules (Latest

Bare Act) Private Publication Latest Bare Act

xv. Law Relating to Protection of Women from Domestic Violence (alongwith Honor

Killing & A Glimpse of Rights Available to Women under Various Enactments)

Jyotsna William Shana 2011

xvi. The Protection of Women from Domestic Violence Act, 2005 with Rules and Allied

Laws (w.e.f. 26-10-2006) Ashok D.Ippe (Advocate) 2009

xvii. The Protection of Women from Domestic Violence Act, 2005 & Rules, 2006 (in

HINDI & ENGLISH) Hind Publishing House 2nd edition, 2007

xviii. Commentary on Protection of Women from Domestic Violence Act, 2005 (with

Rules, 2006) N.K.Acharya 2nd edition, 2007

xix. An Exhaustive Commentary on the Protection of Women from DOMESTIC

VIOLENCE Act & Rules Anil Sachdeva 2nd edition, 2008

Page 405: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

393

xx. Commentaries on Protection of Women from Domestic Violence Act with Rules and

Allied Laws Srivastava 2013

xxi. WOMEN AND WAR Power and Protection in the 21st Century Edited by Kathleen

Kuehnast, Chantal de Jonge Oudraat and Helga Hernes

xxii. But He Calls Me Blessed!: When the Unbelievable Happens to Believers by Sarah

Udoh-Grossfurthner (May 13, 2013)

xxiii. Tapping the Power Within: A Path to Self-Empowerment for Women by Iyanla

Vanzant (Aug 15, 2008)

xxiv. The Alphanista Guide To Living Like An Alpha Female: 20 Gutsy Tips of

Empowerment by Maryann Reid (Dec 8, 2012)

xxv. The Woman's Book of Courage: Meditations for Empowerment and Peace of Mind b

3. Reports and Gazettes

i. AlertNet, ‘The world's most dangerous countries for women’, TrustLaw,

ThomsonReuters Foundation, accessed on www.trust.org/trustlaw/news/factsheet-

theworlds- most-dangerous-countries-for-women retrieved on 6th February 2013

ii. BBC report on ‘How India treats its women’ dated 29 December 2012, www.bbc.com

retrieved on 12th February 2013

iii. NCRB, (2011), Crime in India: Compendium- 2011, National Crime Records Bureau,

Ministry of Home Affairs, Government of India, New Delhi

iv. NCRB, (2011), Crime in India: Statistics-2011, National Crime Records Bureau,

Ministry of Home Affairs, Government of India, New Delhi

v. Coomaraswamy, Radhika, (2005), ‘Human Security and Gender Violence’, Economic

and Political Weekly Vol. 40, No. 44/45 (Oct. 29 - Nov. 4, 2005)

vi. Prajanya Trust, (2010) GENDER VIOLENCE IN INDIA : A Prajnya Report 2010,

PrajanyaTrust, Chennai

vii. OXFAM, (2004), Oxfam Briefing Paper, August 2004, ‘Towards Ending Violence

against Women in South Asia’, OXFAM International, Washington DC

viii. Patel, C.L.,(1996), ‘Empowerment of Women and Law’, Central India Law Quarterly,

Vol. lX: IV, New Delhi

ix. Reuters, ‘India advances, but many women still trapped in dark ages’ quoted in

Page 406: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

394

AlertNet, Thomson Reuters Foundation, accessed on

www.trust.org/alertnet/news/feature-indiaadvances- but-many-women-still-trapped-

indark- ages/ retrieved on 6th February 2013

x. UNIFEM, (2010), Who Answers to Women? GENDER & ACCOUNTABILITY,

UNIFEM,New York City

xi. Wardak , Ariana, ‘Indian woman gangraped, set on fire by abusers’, TrustLaw,

Thomson Reuters Foundation, accessed on www.trust.org/trustlaw/news/indian-

womangangraped-set-on-fire-by-abusers-report retrieved on 6th February 2013

xii. ""The Sexual Harassment Bill undermines the innovative spirit of Vishaka" – Naina

Kapur, Lawyer and Equality Consultant". Bar and Bench. 1 March 2013. Retrieved 2

March 2013.

xiii. "The Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013 Published in The Gazette of India". Press Information Bureau.

Retrieved 26 April 2013.

xiv. "The Sexual Harassment of Women at Workplace (Prevention, Prohibition and

Redressal) Act, 2013". PRS Legislative Research. Retrieved 26 April 2013.

xv. Press Information Bureau, Government of India (4 November 2010). Protection of

Women against Sexual Harassment at Workplace Bill, 2010. Retrieved 13 September

2012.

xvi. Lawyer's Collective, Sexual harassment of women at workplace bill 2012 passed by

Lok Sabha, 6 September 2012.

xviii. The Telegraph (Calcutta) (18 April 2012). "Watch what you say". Retrieved 13

September 2012.

xix. Polanki, Pallavi (28 August 2012). "Bill against sexual harassment a boost to

domestic workers". First Post. Retrieved 13 September 2012.

xxi. New York Daily News (3 September 2012). "Lok Sabha passes bill against sexual

harassment in the workplace". Retrieved 13 September 2012.

xxii. "The Protection of Women Against Sexual Harassment at Work Place Bill, 2010".

PRS Legislative Research. Retrieved 19 March 2013.

xxiii. Nishith Desai Associates, Veena Gopalakrishnan, Ajay Singh Solanki and Vikram

Shroff, India’s new labour law - prevention of sexual harassment at the workplace

xxiv. The Hindu Parliament passes Bill to prevent sexual harassment at workplace 26

Page 407: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

395

February 2013

xxv. Shajan Perappadan, Bindu (4 September 2012). "Safety net at hand". The Hindu.

Retrieved 13 September 2012.

xxvi. CNN-IBN (5 September 2012). "India moves to protect women from sexual

harassment at work". Retrieved 13 September 2012.

xxvii. Manoj Mitta, Indian men can be raped, not sexually harassed, Times of India, 16

August 2012.

xxviii. White Women's Rights: The Racial Origins of Feminism in the United States by

Louise Michele Newman (Feb 4, 1999)

xxix. Elusive Equality: Women's Rights, Public Policy, and the Law by Susan Gluck Mezey

(Jul 31, 2011)

xxx. No Constitutional Right to Be Ladies: Women and the Obligations of Citizenship by

Linda K.

Page 408: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

vii

APPENDIX C

Map

6.1

Page 409: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

viii

Map

6.2

Page 410: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

ix

APPENDIX A

Page 411: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

x

Page 412: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

xi

APPENDIX

B

Page 413: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

xii

Page 414: THESIS - shodhganga.inflibnet.ac.in · thesis legal protection of women : an analytical study with special reference to dowry deaths in the state of jharkhand thesis submitted by

xiii