HANDBOOK ON WOMEN’S

LEGAL RIGHTS IN INDIA

A WORK OF INTERNSHIP PROGAMME AT JLJ LAW OFFICES

OCTOBER 2020
 ABSTRACT

The United Nation in its Millennium Summit of 2000 declared ‘Gender

Equality and Women Empowerment’ as one of its eight ‘Millennium
Development Goal’ to be achieved by the year 2015. However, these
goals are far from being realized in a country like India. In fact, often
women in India are deprived of their fundamental right to dignity also.
Women in a country like India are subject to different socioeconomic
and cultural conditions than men and face special obstacles to their
enjoyment of the same rights as men on an equal footing. The paper
attempts to grapple with the problems faced by women in India,
prevention of sexual harassment at workplaces, coparcenary rights of a
daughter, abortion and disclosure of sex and rape – “two finger test”.
And discuss the constitution provision and gender discrimination in
male dominated society. The research paper is developed based on
secondary data and adopted descriptive research methodology for this
purpose.

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 INDEX

S.NO TOPIC Page No.

1 INTRODUCTION 3
By – Shruti Priya Sharma
2 PROBLEMS FACED BY WOMEN IN INDIA 4-5
By – Janvi Malik
3 PREVENTION OF SEXUAL HARASSMENT AT 6-17
WORKPLACES
By- Masoom Reza, Dhruv Jain and Saksham Kumar
4 COPARCENARY RIGHTS OF DAUGHTER 18-25
By- Shruti Priya Sharma and Reetika Srivastava
5 ABORTION AND DISCLOSURE OF SEX 26-33
By- Sanjana Srivastava and Nikita Sharma
6 RAPE – “TWO FINGER TEST” 34-39
By- Anshuman Srivastava and Divva

7 CONCLUSION 40

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 INTRODUCTION

"Human rights are women's rights and women's rights are human rights, once and for all."
Over the last few decades there has been a substantial evolution in the status, rights and position
of women in the society. In a patriarchal society like ours the path to bring this radical change
was a challenging one. Since ancient times, women have fought to earn their place in the society,
as they were not allowed to have an identity of their own and were required to always be
submissive. The constitution of India came as a rescue as it enshrined the principle of gender
equality and talked about giving equal rights, status and respect to women in the society. The
gradual shift of status of women from being a man’s shadow to having an identity of her own has
been a revolutionary one. If it was not the creation of legal, bringing necessary amendments and
constant efforts by the women to grow and outshine, then the situation would not have been the
same today.

The objective of this paper is to answer the most sought-after question in today’s time that is
‘What are women’s legal rights’? The legal rights have been acquired by women after years of
struggle and perseverance. In almost all developing countries women have went from having no
status in the society to now having the same economic, political and egal rights as men. From
sexual harassment at workplaces to fighting for right in her father’s property, from protesting
against domestic violence and rapes to fighting for her right of abortion, a woman in India has
fought it all. This research paper will be highlighting the four major four major evolutions in the
rights of the women namely, sexual harassment at workplaces, daughter’s rights in father’s
coparcenary property, abortion and disclosure of sex and rape-two finger test. All these are four
major pillars in the democracy of women legal rights. Hence as rightly quoted by Hon’ble Justice
Leila Seth “We have the right to equality and if you teach people the right to equality and you
teach people that you don’t extinguish legal or sexual autonomy of a woman after marriage then
things will change.” India has certainly evolved and enhanced the position of women, but we are
still far away from a country where a woman resides peacefully with respect and no fear.

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 PROBLEMS FACED BY WOMEN IN INDIA
'Just as a bird cannot fly with one wing only, a Nation cannot march forward if the women are
left behind'. -Swami Vivekanand
The Indian history and culture have undergone drastic changes since ancient times. The East
India Company, however a blotch on the historic past of India, presented a few changes in the
general public, the significant one being in the overall set of laws of India and in bringing
together India as one country with one law. This cycle of presenting reformist laws in British
India goes back to 1829 when the then Governor General of India William Bentick abrogated the
insidious act of Sati. Women who have always been considered as inferior to men and a man’s
property have struggled to make a place for themselves in the society. The patriarchal mind set
of the medieval Indian society can be understood from the couplet of the famous Hindi poet
Tulsidas who described the status of women, in his writings, in following manner “dhor, ganwar,
shudra aur nari, ye sab taadan ke adhikari” which in its literal translation means that animals,
illiterate, untouchables and female deserve to be punished. Since ages a male child is preferred
by the families in India rather than a female child because of their thoughts that a male child
would contribute more to their family. This inclination towards a male offspring and child had
also been highlighted in our Upanishads and Vedas. This has led to grave problems for women
India, as the mindset of the people has still not changed over the years. Women are still facing
discrimination in all sorts be it at workplaces or being killed in the womb or rapes or domestic
violence, the list is endless.
The Equality for women was first perceived in India in 1925 by The Commonwealth of India
Bill, 1925, which had a clause stating "no exclusion or handicap on the ground of just sex",
alongside the arrangement that all people were to have equivalent right to the utilization of
"streets, courtrooms, and all different business environments or resort committed to the general
population". Thereafter the judiciary took it into its own hands delivering various judgments
recognizing the rights of the women
The earliest case in India pertaining to women right was Air India v. Nargesh Meerza where the
Supreme Court held that the regulation of Air India pertaining to termination of an air hostess if
she were to get pregnant within 4 years of service was held to be arbitrary and unconstitutional.
This judgment is etched in history of women rights as an apostle for organizations to regulate the
working condition of women on par with their male counterparts. 1
In Dattatraya v. State it was held that educational institutions established by the State
exclusively for women, or the reservation of seats for women in a college- does not offend
Article 15(1).2
In Rajesh Gupta v. State of U.P, the Court held that reservation of 50% of posts in favor of
female candidates is not arbitrary. 3

1 (1981) 4 SCC 335

2 AIR 1953 Bom 311
3 AIR 2005 SC 2540

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The case of Vishaka and Ors. v. State of Rajasthan and Ors. where the court laid down
guidelines to regulate the conditions of working women and directed that guidelines and norms
would be strictly observed in all workplaces for preservation and enforcement of right to gender
equality of working women.4
Three of the most prominent judgments of Supreme court Sabarimala case, Triple Talaq case and
case of Vineeta Sharma V. Rakesh Sharma, have brought an end to century old practice of
curtailing of women rights, the court recognized customs within the definition of ‘law’ as per
Article 13(3)(a) of the Constitution but declared the practices void as per Article 13(1), which
were found in derogation of Fundamental Rights. 5Justice Nariman and Justice U.U. Lalit in
Triple Talaq case applied the test for laws in force to recognize the custom of Triple Talaq as
falling within Article 13(3)(a), they held it unconstitutional on the narrower ground of it being
“manifestly arbitrary” as against Article 14. 6 And while delivering the verdict, Justice Arun
Mishra quoted an old proverb: “Once a daughter, always a daughter. A son is a son till he is
married. The daughter shall remain a coparcener throughout life, irrespective of whether her
father is alive or not.”7
Hence it is proved by all these above landmark judgements that the rights of a woman are as
significant as of a man and they cannot be curtailed or ignored. History has consistently
represented the significance of unbiased laws which has prompted a few changes in the social
structure of the society. Women empowerment is considered at par with the empowerment of the
world. Today no woman is considered less than a man, and both are equals in the eyes of law.
But still, it is a far-fetched dream to have a society where a woman is respected and considered
as equals. Woman have to prove herself at every step in her life to gain acceptance and reliance
which has continued since ages and is still continuing.
The Constitution of India not only grants equality to women but also empowers the state to adopt
measures of positive thoughts about women’s and their rights it also a tool for eradicating the
problems for women’s in India by this way the discrimination in favour of women for
neutralizing the cumulative socioeconomic, educational and political disadvantages faced by
them. Fundamental Rights, among others ensures equality before the law, equal protection to
laws, prohibits discrimination against any citizen on grounds of religion, race, caste, sex or place
of birth, and guarantees equality of opportunity to all citizens in matters relating to employment.
The goal today is to build a nation where equal treatment is meted out to everyone, and a woman
is as safe as a man while stepping out at any hour of night. The need here is to develop change in
societal notions and effective implementation of the laws.

4 (1997)6SCC241
5 (2019) 11 SCC 1
6 Shayaro Bano v. Union of India & Ors., (2017) 9 SCC 1
7 Vineeta Sharma v. Rakesh Sharma in Civil Appeal Diary No 32601 of 2018 (Judgment)

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 PROTECTION AGAINST SEXUAL
HARASSMENT OF WOMEN AT WORKPLACE
Women in India were traditionally con to remain at their household and even engage themselves
only in taking care of the young while the men were considered the breadwinners. Men being the
sole bread-winners of a family, these days are long bygone. Globalization has resulted in a
radical and significant transformation in the status of women worldwide in the patriarchal
society. On the other hand, due to the larger influx of women in the mainstream workforce of
India, even the sexual harassment at workplace has assumed greater dimensions and is growing
manifolds and at an alarming rate.

THE DEVELOPMENT THROUGH VARIOUS JUDICIAL PRONOUNCEMENTS : -

In the case of Vishakha v. State of Rajasthan 8 Bhanwari Devi (a social activist/worker) betwixt,
her protests to restrict a child marriage, got gang raped her right in front of her husband. The trial
court acquitted the accused. Bhanwari Devi, didn’t lose hope and along with a prolific and
bounteous succor from the fellow social workers and NGO filed a petition in the Supreme Court
under the name of “Vishakha”
The Vishaka Guidelines: - instituted by the Supreme Court of India in 1997.
In this landmark case there were certain set of guidelines that were intended to safeguard the
interests of women at the workplace. There are procedural guidelines which enumerate the
procedure to be followed in the instances wherein one is dealing with cases in nexus with the
sexual harassment of women.
● The employer as well as the other responsible persons in work places or other institutions
are under the responsibility to prevent or even to deter the commission of acts which are in
relation to sexual harassment and also to render the procedures for its resolution, settlement or
prosecution by taking all the necessary steps required.
● Definition of sexual harassment includes within its ambit any such unwelcome sexually
determined behavior (direct or implied) as:
a) Physical contact as well as advances;
b) Any form of demand or request for any sexual favors;
c) Sexually colored remarks of any kind;
d) Depicting pornography;
e) Any other form of unwelcome physical, verbal or even non-verbal conduct which is of a
sexual nature.

8 Vishakha v. State of Rajasthan (1997) 6 SCC 241

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● The Sexual Harassment of women at the workplace (prevention, prohibition and redressal)
Act, 2013 later ended up repelling the guidelines laid down in the Vishaka Case.
● All employers and even the persons in charge of workplace being in the public or the private
sector should take appropriate steps to prevent the instances of sexual harassment.
● Appropriate action in accordance with concerned criminal law by making a complaint with the
appropriate authority shall be initiated by the employer.
● Sexual harassment at workplace must always be informed, produced and circulate
●Disciplinary actions should be taken whenever required.
● The compliance mechanism as well as the workers’ initiative were enlightened.
●These guidelines are also to be followed by Private Sector’s employees. For its implementation
the Government should take the charge.
● All necessary and reasonable steps must be taken in case of harassment by the virtue of an act
or any omission by any third party.
● Furthermore, it shall be the duty of employer to take into consideration so as to render
assistance to the affected person and this aid and assistance must be in terms and preventive
action as well as support.
● Ultimately, these guidelines must have a congruence with the Protection of Human Rights Act,
1993.
In the case of Apparel Export Promotion Council v A.K Chopra 9 the Supreme Court found an
opportunity to follow its judgement in Vishakha. The Supreme Court in this case asserted that
sexual harassment ends up devastating the dignity of women.
In the present case, Apex Court widened the meaning of the word ‘Sexual Harassment’, and it
was held that physical conduct is not the sole requirement to result to an act like sexual
harassment. Furthermore, the Supreme Court acknowledged that harassment transcends physical
hindrances and the adverse effects which is a result of the mental harassment can be damaging at
par. The Apex Court’s progressive approach in the present case paved a way for transformation
in the regular stance of Indian Judiciary.

In the case of D.S. Grewal vs. Vimmi Joshi and Others, 10 D.S. Grewal, head of the School
Committee and Hitendra, vice principal of an Army School were the accused in this case. Vimmi
Joshi the victim was subjected to assault by Hitendra. The victim complained regarding the same
to the Chairman about Hitendra but the no heed was paid to it by D.S. Grewal and as a result of
which the victim lost her job.

9 Apparel Export Promotion Council v. A.K Chopra 1999 1 SCC 759

10 D.S. Grewal vs. Vimmi Joshi and Others, 2009 2 SCC 210,

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The present case depicts the shortcomings of the precedent laid down in the Vishaka case and
also about its adverse consequences.
Ultimately, the apex court decided to direct the High Court to form a committee which would be
by a group of 3 female members who would deal with the case. Additionally, the apex court
imposed the cost on the management team for payment of losses which were incurred by her.
The definition of sexual harassment in the present case was given the meaning and effect similar
to the Vishaka case.
In the case of Anita Suresh v. Union of India Justice Midha 11in the lieu of false Sexual
harassment being filed against the respondents, granted exemplary damages to them. The court
even directed the appellant Ms. Anita Suresh to pay a sum of ₹ 50,000 to the respondents as well
as the bar association of Delhi.
This landmark highlighted that that whenever one is falsely implicated of such heinous crimes it
leads to creation of an adverse impact up to a great extent on the accused as in spite of being
innocent he gets subjected to scrutiny by the masses which adds up to his misery and plight.
The false case of sexual harassment at workplace also existed in the case of Usha C.S v. Madras
Refineries.12 The allegations of sexual harassment made by the complainant in the present case
was merely a weapon in which she used it for promotion purpose as well as the study leave and
even for the payment, which was contrary to the express policy of the company.
Hence, by considering the above cases, it can be inferred that the precedent laid down in the
Vishaka Case is a Double Edged Sword.

FORMS OF SEXUAL HARASSMENT

According to the Equal Employment Opportunity Commission (EEOC), Sexual Harassment is
classified into two different parts which include-
1) “Quid Pro Quo” and,
2) “Hostile Work Environment”
“Quid Pro Quo” – “Quid Pro Quo” is a literal word which means “something for something”. It
means directly or indirectly seeking sexual favors or advances in return for benefits like promises
of promotion or, higher pay in the salary or, incentives or, academic achievements and etc. “Quid
Pro Quo” practice in the workplace when a manager or the other higher authority of the company
offers or merely hints to their employees that he or she will give appraisal (it can be in any form
such as increase in pay or, promotion or, incentives or, academic advancements etc.) in return for
that employee’s satisfaction of a sexual demand. It also occurs when the higher authority of the
management says to their employees that he or she will never be fired or expelled in return for
some type of sexual favor. This type of sexual harassment is also practiced in job interviews,

11Anita Suresh v. Union of India Justice Midha (2001) IILLJ 148 Mad, (2001) 1 MLJ 802
12 Usha C.S v. Madras Refineries (2001) IILLJ 148 Mad, (2001) 1 MLJ 802

8
when the interviewer makes a conditions on the applicant that, you will get a job in exchange or
favor of some sexual advances. To determine whether the superior authority did “Quo Pro Quo”
sexual harassment, most of the courts used to follow five-part test which include-
(1) That the employee belonged to a protected group or,
(2) That the employee was subject to unwelcome sexual harassment or,
(3) That the harassment complained was based upon sex or,
(4) That the employee’s reaction to the harassment complained of, affected tangible aspects
of the employee’s compensation, terms, conditions, or privileges of employment. The acceptance
or rejection of the harassment by an employee must be an express or implied condition to the
receipt of a job benefit or the cause of a tangible job detriment in order to create liability or,
(5) Respondent is superior.
“Hostile Work Environment” – “Hostile Work Atmosphere” is slightly different with “Quid Pro
Quo” it is the act done by the supervisors in the workplace and in the way that exposes a worker
to unwanted sexual behavior and making feel her uncomfortable by touching in an inappropriate
manner. “Hostile Work Environment” sexual harassment consists of actions that must humiliate
or, distress or, sufficiently offend the worker in the workplace. Some of the common examples of
“Hostile Work Environment” include: -
• Asking intrusive sexual questions or,
• Repeatedly telling dirty jokes or sexual stories or,
• Making sexually suggestive gestures or sounds or,
• Displaying pornography materials or contents or,
• Using sexual innuendos or comments or,
• Repeatedly doing inappropriate things such as touching or, rubbing or, groping someone
or, Patting, stroking, or, grabbing or, pinching one’s body or,
• Deliberately exposing private parts and so on.
Non-Direct Sexual Harassment or Indirect Sexual Harassment-
The “Quid Pro Quo” and “Hostile Work Environment” discussed above are common incidents of
what is known as, “Direct Sexual Harassment”. Indirect Harassment indicates that any sexually
colored action by a person that can have a negative impact on victim is considered as Indirect
Sexual Harassment. Basically, a victim of indirect sexual harassment can be someone that
overhears a lewd jokes or, read a letter or email that is sexual in nature or, can also come across
an inappropriate image or, photograph such as on a screensaver or in an email at workplace. In
addition, indirect harassment occurs when the act was not aimed at the employee but creates a
poisoned atmosphere or, put a secondary victim is offended by an unwelcomed conduct. A
person is subjected to indirect sexual harassment if-
• She overhears an offensive joke or remarks which are sexual in nature or,
• She accidentally sees an email that is sexual in nature or,

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 • She comes across offensive pictures displayed on a colleague’s desk or saved as a
screensaver or,
• She is part of a WhatsApp group, the participants of which share offensive images and
messages or,
• A co-worker gossips about them in their absence or,
• Witnesses someone being sexually harassed, for example, coming across derogatory
nicknames used for co-workers or passing sexist comments towards a co-worker and so
on.

LEGISLATIVE FRAMEWORK RELATING TO THE PREVENTION OF SEXUAL

HARASSMENT
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 (hereinafter referred as the POSH Act) extends to the 'whole of India'. 13The POSH Act
ensures that a woman will not be exposed to sexual harassment at her workplace. 14 It must be
noticed that for the invocation of the provisions of the Act, the occurrence of sexual harassment
ought to have occurred at the 'workplace'. The POSH Act is not a gender-neutral legislation and
it deals only with the protection of women. It is appropriate to take note of the fact that all the
offenses under the POSH Act are non-cognizable.15
WHO IS AN AGGRIEVED WOMAN AND EMPLOYEE?
The Act envisages the right of every woman to a safe and secure workplace environment
regardless of her age, economic status or employment status. Any woman who alleges to have
been subjected to any conduct of sexual harassment is an aggrieved woman. 16 The rights of
women working or visiting any workplace are protected irrespective the woman is employed in
the capacity of regular, temporary, ad-hoc, or daily wages basis. It must be noticed that the act
covers all women whether employed directly or through an agent including a contractor, with or
without the information on the principle employer. They might be working on a voluntary basis
or for salary or something else. Their terms of employment can be implied or expressed.
Additionally, she could be an associate, a contract worker, probationer, student, trainee, and
apprentice or called by some other such name. It must be noticed that the Act also covers a
woman who is working in a dwelling place. 17 According to the definition, it doesn't require the

13Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) ACT, 2013, Act No. 14, Acts
of Parliament, § 1(B).
14 The POSH Act, § 3.
15 The POSH Act, § 27.
16 The POSH Act, § 2(A).
17 The POSH Act, § 2(F).

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woman to be an employee, even a client/customer who might be sexually harassed at a
workplace can seek protection under the POSH Act.
WHAT IS A WORKPLACE?
The POSH Act has presented the idea of an 'extended workplace'. A workplace is defined as
“any place visited by the employee arising out of or during the course of employment, including
transportation provided by the employer for undertaking such a journey.”18 According to this
definition, a workplace includes both the organized and unorganized sectors. Similarly, it
includes all workplaces whether run by Indian or foreign organizations having a place of work in
India. As per the Act, the expression ‘workplace’ includes: 19
● Government associations, including Government organization and cooperative societies;
● Private sector organizations, venture, society, trust, NGO or service providers etc.;
● Providing services which are commercial, vocational, educational, sports, professional,
entertainment, industrial, health-related or financial activities, including production, supply,
sale, distribution or service;
● Hospitals/Nursing Homes;
● Sports Institutes;
● A dwelling place or house.
● Places visited by the employee (including while on travel) including transportation provided
by the employer.
At this juncture, it would be apt to understand the meaning of ‘unorganized sector’ as per the
POSH Act. It characterizes the Unorganized Sector as:20
• Any enterprise owned by an individual or self-employed workers engaged in the
production or sale of goods or providing services of any kind;
• Any enterprise which employs not more than 10 workers.
The Delhi Court held that 'the point and objective of formulating the Vishaka Guidelines were
clear to guarantee that sexual harassment of working women is prevented and any individual
liable of such an act is punished. Analyzing the spirit of the judgement, a narrow and pedantic

18 The POSH Act, § 2(O).

19 The POSH Act, § 2(O).
20 The POSH Act, § 2(P).

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approach cannot be taken and the following factors would have a bearing on deciding if the act
has happened in the 'workplace':21
● Proximity from the place of work;
● Control of the management over such a place/residence where the working woman is
living/residing; and
● Such a residence has to be an extension or contiguous part of the working place.

WHAT IS ‘SEXUAL HARASSMENT’ AT WORKPLACE?

The POSH Act describes 'sexual harassment ‘in line with the Supreme Court's meaning of
'sexual harassment' given in the Vishaka Judgment.22 Sexual Harassment includes any one or
more of the following unwelcome behavior (whether expressed or implied), namely: 23
● Physical contact or advances;
● A Demand or solicitation for a sexual favor;
● Making sexually colored comments;
● Showing pornography;
● Any other unwelcome physical, verbal or non-verbal behavior of a sexual nature.
Moreover, fundamentally, ‘quid Pro Quo’ and ‘hostile work environment’ are two forms of
sexual harassment. The following circumstances, among different conditions, if they take place
or are present in relation to or connected with any behavior of sexual harassment may be
considered as sexual harassment:24
● Implied or expressed promise of preferential treatment in employment;
● Implied or explicit threat of adverse treatment in employment;
● Implied or expressed danger about the present or future employment status;
● Interference with work or making an offensive or intimidating or hostile work environment;
or
● Humiliating treatment likely to affect the female employee’s health or safety.

21Saurabh Kumar Mallick V. The Comptroller & Auditor General of India & Another, (High Court Of Delhi) Civil Writ
Petition No. 8649 of 2007.
22 Vishaka and others V. State of Rajasthan, AIR 1997 SC 3011.
23 The POSH Act, § 2(N).
24 The POSH Act, § 3.

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The aforementioned discussion makes clear that the meaning of 'sexual harassment ‘under the
POSH Act is sufficiently wide to cover both explicit and inferred sexual conduct. The key
distinctive element is that the conduct is undesirable and unwelcome by the recipient.
In 2010, the High Court of Delhi supported the view that sexual harassment is a subjective
experience and held that the court will like to investigate harassment from the ‘complainant's
viewpoint’.25
WHO IS AN EMPLOYER?
An employer is defined as:26
I. The head of the department, organization, undertaking, establishment, enterprise, institution,
office, branch or unit of the Appropriate Government or local authority or such officer specified
in this behalf.
II. Any individual (whether contractual or not) responsible for the management, supervision and
control of a designated workplace not covered under clause (I).
III. An individual or a family (household) who employs or profits by the employment of a
domestic worker or women employee.
WHO IS A DISTRICT OFFICER (DO)?
State Governments will designate a District Magistrate/Additional District
Magistrate/Collector/Deputy Collector as a District Officer at the local level. 27 The District
Officer will be entrusted with the certain powers and functions under the Act at the district levels
(including every block, taluka, tehsil, ward, and municipality).
RESPONSIBILITIES OF THE EMPLOYER AND DISTRICT OFFICER:
Under the law, the employer/DO is entrusted with the task to make a workplace free from sexual
harassment. The following are the duties of the Employer/District Officers: 28
● Create and communicate a comprehensive and definite policy;
● Ensure awareness and orientation on the issue;
● Establish Complaints Committees in every workplace and district so every working woman
will get a mechanism for redress of her complaints;
● Ensure Complaints Committees are well prepared in both aptitude and capacity;

25 Dr. Punita K. Sodhi V. Union of India & Ors. , W.P. (C) 367/2009 & CMS 828, 11426/2009.
26 The POSH Act, § 2(G).
27 The POSH Act, § 5.
28 The POSH Act, § 19 and 20.

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● Prepare an annual report and report to the respective state government;
● District Officer will designate a nodal officer to receive complaints at the local level.

COMPLAINTS COMMITTEES:
An important component of the POSH Act is that it visualizes the setting up of a grievance
Redressal forum. The Act accommodates two sorts of complaints instruments: Internal
Complaints Committee (ICC) and Local Complaints Committee (LCC). 29 All Complaints
Committees must have 50% representation of women. The members of ICC or LCC will hold
their position not more than 3 years from the date of their appointment or nomination.
A) Internal Complaints Committee (ICC):
Every employer has to constitute an ICC through a written order. Where the office or managerial
units of a workplace are situated in different places, division or sub-division, an ICC must be set
up at every regulatory unit and office. 30
B) Local Complaints Committee (LCC)
The District Officer will establish an LCC in every district to empower women in the small
sector or unorganized establishments to work in an environment free from sexual harassment.
The LCC will get complaints:31
● From women working in an organization having not more than 10 workers;
● When the complaint is against the employer himself;
● From domestic workers.
The court rightly observed that there are three-fold benefits of establishing Complaints
Committee:32
● Ensured a place where women employees could look for redressal;
● Sent a crystal-clear gesture to the workplace that such complaints would be enquired into by
specifically assigned committee having external expertise;
● Prevented a series of litigation that followed.

29 The POSH Act, § 2(H) and (I).

30 The POSH Act, § 4.
31The POSH Act, § 6.
32Ms.G V. Isg Novasoft Technologies Ltd. Crl.R.C.No.370 of 2014 order dated 02.09. 2014. Original Petition No.463
of 2012.

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POWERS OF THE ICC/LCC:
The POSH Act specifies that the ICC and LCC will, while dealing with or enquiring into a
complaint of workplace sexual harassment, have similar power as vested in a civil court under
the Code of Civil Procedure, 1908 when trying a suit in respect of: 33
I. summoning and enforcing the attendance of any person and examining him on oath;
ii. Requiring the discovery and production of documents; and
iii. Any other matter which may be prescribed.
WHO CAN COMPLAIN AND WHERE?
By and large, where there are under ten workers, any woman employee can complain to the
Local Complaints Committee with the support of the Nodal Officer, when required. It is the duty
of the District Officer to assign an individual as the Nodal Officer in every block, taluka and
tehsil in rural or tribal areas and wards or municipalities in the urban areas, to receive the
complaints of workplace sexual harassment from women. The Nodal Officer is obliged to
forward all such complaints within seven days of its receipt to the concerned Complaints
Committee for suitable action.
WHAT SHOULD THE COMPLAINT CONTAIN?
The written complaint ought to contain a portrayal of each incident(s). It ought to incorporate
significant dates, timings and areas/locations; the name of the respondent(s); and the working
connection between the parties. An individual assigned to deal with the workplace sexual
harassment complaint is needed to give help with the writing of the complaint if the complainant
requires it.34
RIGHTS OF WORKERS/EMPLOYEE:
employee/worker has a right to expect - a trained and expert Complaints Committee, a time-
bound redressal mechanism, information secrecy, confirmation of non-retaliation, Counselling or
other support where required and assistance in case the complainant opts for criminal
proceedings.
RIGHTS OF THE COMPLAINANT:
The following are the rights of the aggrieved woman who institutes a complaint:
• An empathetic outlook of the Complaints Committee with the goal that she can state her
grievance in a fearless environment;

33 The POSH Act, § 11(C).

34 The POSH Act, § 9.

15
 • A copy of the statement, all the evidence and the submitted list of witnesses by the
respondent;
• Keeping her identity private all through the proceeding;
• Support, in lodging FIR in case she chooses to lodge criminal proceedings;
• In case of fear of intimidation from the respondent, her statement can be recorded in non-
presence of the respondent;
• Right to appeal, in case, not satisfied with the suggestions/discoveries of the Complaints
Committee.
RIGHTS OF THE RESPONDENT:
The following are the rights of the respondent:
• A patient hearing to present his case in a non-biased manner;
• A copy of the statement, all the evidence and the submitted list of witnesses by the
complainant;
• Keeping her identity private all through the proceeding;
• Right to appeal, in case, not satisfied with the suggestions/discoveries of the Complaints
Committee.
CONCILIATION:
Before starting action on a complaint, the ICC or LCC, on the demand of the aggrieved woman,
can try to resolve the matter between the parties through conciliation. Conciliation is an amicable
method of dispute settlement. After a complaint of sexual harassment has been filed, the
aggrieved woman may demand the ICC or LCC to settle the matter by conciliating between the
parties before commencement of the inquiry proceedings. However, a monetary settlement
should not be made as a basis of conciliation. 35 Once a settlement has been arrived at, the IC or
LC shall not proceed with an inquiry under the Act.
INTERIM RELIEFS:
If the complainant requests, the ICC or the LCC (as the case maybe) may prescribe to the
employer to give interim measures, for example: 36
● Transfer of the aggrieved woman or the respondent to some other workplace;
● Granting leave to the aggrieved woman up to a time of 3 months notwithstanding her
standard statutory/contractual leave entitlements;
● Restrain the respondent from reporting on the work performance of the aggrieved woman or
preparing her confidential report, which obligations might be moved to different employees.

35 The POSH Act, § 10.

36 The POSH Act, § 12.

16
PUNISHMENT AND COMPENSATION:
The POSH Act recommends the various punishments that might be imposed for committing an
act of sexual harassment:
● Punishment recommended under the service rules of the organization;
● If the organization does not have service rules, disciplinary action including written apology,
warning, reprimand, censure, withholding of promotion, withholding of pay rise or
increments;
● Undergoing a counselling session, or carrying out community service; and
● Deduction of compensation payable to the aggrieved woman from the wages of the
respondent.37 The POSH Act also provides the provision for payment of compensation to the
aggrieved woman.
CONFIDENTIALITY:
The Act forbids the publication or making known the substance of a complaint and the enquiry
procedures. Any violation of secrecy will bring specific consequences. 38
The Act prohibits publication/disclosure of: 39
• Contents of the complaint;
• Identity and address of complainant, respondent and witnesses;
• Information relating to conciliatory/enquiry procedures or proposals of the ICC/LCC;
• Action taken by the employer/DO.
MONITORING THE APPLICATION OF THE ACT:
Monitoring is a method to ensure the implementation of the Act on the ground. The act
prescribes the submission of Annual Reports with explicit information and explicit outcomes
where compliance is lacking. The Act mandates the Appropriate Government to monitor the
implementation of the Act. 40

37 The POSH Act, § 13.

38 The POSH Act, § 17.
39 The POSH Act, § 16.
40 The POSH Act, § 23.

17
 DAUGHTER’S RIGHT OVER FATHER’S PROPERTY
-Decoding the historic judgement by supreme court
“A son is a son until he gets a wife. A daughter is a daughter throughout her life,” Justice
Mishra quoted an old Irish saying while upholding the rights of a daughter even if the father died
before the enactment of the Hindu Succession (Amendment) Act, 2005. life”. The case has
established a strong foundation eradicating all previous discrepancies regarding the status of
daughters share in coparcener’s property.

1. INTRODUCTION
Our constitution’s one of the fundamental principles enshrines equality, but actual
implementation of the term equality is a far-fetched dream in the country. Ours being a
“patriarchal” society so the laws even highlight these age-old principles of patriarchy and failing
on the grounds of equality. Article 15 of the Indian constitution exhibits the “RIGHT TO
EQUALITY” which prohibits the discrimination of citizens on basis of religion, race, caste, sex
or place of birth. But there was an underlying confusion and ignorance regarding the
devolvement of property, whether it was to be devolved equally or not41. Disregarding the
fundamental right to equality we witness disparity in inheritance rights based on gender in India
since ages. This law was then amended on 9th September 2005, where section 6 of the HSA
came into effect thereby removing discrimination meted out to women by conferring on
daughters to equal rights with sons of inheritance in Hindu ancestral property. The Statement of
Object and Reasons of the Hindu Succession (Amendment) Act, 2005 provide clarity on the
2005 Amendment Act:
"3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession
Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as
the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a
dwelling house wholly occupied by a joint family until the male heirs choose to divide their
respective shares therein. It is also proposed to omit the said section so as to remove the
disability on female heirs contained in that section."
Despite this amendment there was lot of ambiguity in deciding the rights of women if the father
was not alive or when he passed away before the amendment. Lately, the apex court had finally
ended this confusion and controversy by a landmark judgment in Vineeta Sharma vs Rakesh
Sharma on 11 August 2020.

2. CO PARCENARY RIGHTS AND PROPERTY

Coparcenary is an important concept regarding the Joint Family property of a Hindu joint family
and is a smaller unit of a Hindu joint family. A Hindu joint family can have several members, but
not all members can be considered as coparceners. A coparcener is a term used for such

41 JN Pandey, Constitutional Law of India 83 ( 54th Ed. 2017)

18
members of a Hindu joint family who can assume heirship on the Joint Family property. Such
joint heirship constitutes a coparcenary. A Hindu joint family consists of the lineal descendants
traced to a common ancestor. Coparcenary property is the family property of a Hindu Undivided
Family (HUF) and coparceners are certain members of the joint family who hold an interest in
the property i.e. coparcenary property. In a Hindu family, there can be two types of property –
Self-acquired or self-earned property and Joint Family property and ancestral property.
Basically, a coparcener is the one who shares equally in the inheritance of an undivided property.
Joint Hindu Family consists of all male members, in addition to their wives, unmarried daughters
and widows but before Hindu Succession Act 1956 amendment of 2005, property rights and
undivided interest were generally given to lineal descendants from a common ancestor within
four degrees to only males of the family as coparceners. Four generation rule denotes that the
lineal male descendants of a person, up until the third generation (excluding himself), acquire an
interest in coparcenary property. It is vital to take note that Section 6 of the Act relates to
intestate succession wherein, succession occurs sans a will. So now what is the difference
between Ancestral and self-acquired property, well the former is divided equally amongst the
coparceners whereas the latter, the family member in ownership of the property is free to manage
the property upon his own free will. But both the Ancestral and self-acquired property may fall
under the ambit of coparcenary property. 42
A Hindu joint family consists of lineal descendants of a common ancestor. In other words, a
male head and his descendants, including their wives and unmarried daughters. A coparcenary is
a smaller unit of the family that jointly owns property. A coparcenary consists of a ‘propositus’,
that is, a person at the top of a line of descent, and his three lineal descendants — sons,
grandsons and great-grandsons.43
Prior to the enactment of the Hindu Succession Act of 1956 (Act of 1956), Hindus were
governed by shastric and diverse customary laws that varied by regions and castes. Different
schools governed succession practices, like Dayabhaga in Bengal; Mayukha in Bombay, Konkan
and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India
with slight variations. The law, as it stood then, retained the Mitakshara coparcenary property
and excluded females. Such exclusion was ipso facto discriminatory and oppressive. It negated
the fundamental right of equality guaranteed to women by the Constitution of India.
“This meant that with every birth, or death, of a male in the family the share of every other
surviving male would either be diminished or enlarged”
Provisions of substantive equality enshrined under Articles 14, 15(2), and (3) and 16 of the
Constitution of India not only inhibit discrimination against women but also provides a free hand
to the State to ensure protective discrimination in their favor 44. Despite the fact that the
conventional Hindu Law containing matters of progression was arranged in by the order of the

42 Section 6 in The Hindu Succession Act, 1956

43 Uttam vs. Saubhag Singh (2016) 4 SSC 68
44 Constitution of India JN Pandey

19
HSA, there was a glaring oversight in the statute in as much women kept on being denied of
equivalent property rights in ancestral property.

3. THE TWO SCHOOLS OF HINDU LAW:

The history documents are a proof that Hindu law is the most ancient and prolific law in the
world. The codified Hindu law, which is more than 6000 years old, lays down uniform laws for
all the Hindus in the society. It leaves no scope for the existence of two schools of Hindu Law in
the codified laws. Their relevance lies only in those areas in which there is no defined and
codified law. It was in the era of digests and commentaries that these schools originated in.
A. Mitakshara School: The Mitakshara School means a person associated with a particle of
the same body, which means a blood relation. As far as the coparcenary rights are concerned, in
Mitakshara School, it arises by birth hence coparcenary property is inherited as unobstructed
heritage (Apratibandha Daya). As a matter of practice, the lineal descendant of a common
ancestor in the male line up to four generations is considered as coparcener and is capable to
inherit and acquire an absolute share out of the undivided property. On the other hand, the
women did not have any coparcenary rights hence not entitled to acquire the ancestral property.

B. Dayabhaga School: Unlike Mitakshara School, the coparcenary rights under the
Dayabhaga School arise after the death of the ultimate head of the family hence coparcenary
property is inherited as obstructed heritage (Sapratibandha Daya). The Dayabhaga School being
a little liberal with ideas drew no fundamental difference between males and females and
extended coparcenary rights to women also. Hence females including widows and daughters
could inherit the ancestral property.

4. POSITION OF DAUGHTERS IN PRE-INDEPENDENCE ERA

PERTAINING TO INHERITANCE
a) Hindu Law of Inheritance Act, 1929: Hindu Law of Inheritance Act, 1929 45was the
primitive piece of legislation governing the intestate and unwilled succession of separate
property. Although the Act did not make any far-reaching change in the right of inheritance, but
it brought females into the mainstream by conferring inheritance rights to some extent. Hence, it
created a limited restriction on the prevailing rule of survivorship by granting inheritance rights
to three female heirs, namely – son’s daughter; daughter’s daughter; and sister.

45First legislation which properly dealt with inheritance

20
Certainly, the Act brought some remarkable changes to improve the position of daughters, but it
was not thoroughgoing enough to address the flaws and establish gender-neutral inheritance
rights.
b) The Hindu Succession Act, 1956: As far as coparcenary rights of daughters were
concerned, the newly enacted Hindu Succession Act, 1956 retained the concepts of the
Mitakshara School. Section 6 of the Act provided that only male members of a joint Hindu
family will be considered as coparceners and ultimately property will devolve according to the
rule of survivorship.

c) Hindu Succession (Amendment) Act, 2005: To address the issue and to extend the
coparcenary rights nationwide, irrespective of the marital status of daughters the 2004
amendment bill was assented and passed by both houses of the parliament to give a shape to The
Hindu Succession (Amendment) Act, 2005 which came into force on 9th September 2005. Under
the 2005 amendment provisions, Section 6 of the Act were altogether removed to insert the
provisions granting equal rights and liability to the daughters in coparcenary property by birth
irrespective of their marital status. These were the major changes in status coparcenary rights of
daughters after the 2005 amendment Act:
• Daughter of a coparcener shall have equal rights and liabilities by birth in the same
manner as the son.
• Daughters can also demand a partition of joint family property.
• At the time of partition, a daughter will get a share equal to son.
• Daughters can also dispose of their absolute interest in coparcenary by executing a will.
• For instance, if a female coparcener dies before partition, then in such case her children
are eligible to receive the share.
Amended section 6 of the HSA is a future and forward – looking provision which has at last been
given its true interpretation by the Supreme Court by enlarging the rights of daughter under the
Hindu coparcenary.

5. WHAT IS THE HINDU SUCCESSION ACT AMENDMENT OF 2005?

According to the Hindu Succession Act 1956, a daughter was not to be considered a coparcener.
However, the 2005 amendment vests equal rights and liabilities in daughters to her father’s
property despite becoming a member in her husband’s undivided family as well by modifying S6
of the Hindu Succession Act.
For instance, Ram, a father of three, passed away without leaving behind a will. His two sons,
Kabir and Karan would be deemed coparceners and possess an undivided interest in the property,
whereas his married daughter Aakriti would possess no such interest prior to the 2005
Amendment. Conversely, following the 2005 amendment, Aakriti would not only be considered
a member but also a coparcener and would receive similar interest in the property as Kabir and

21
Karan irrespective of her sex and marital status. This allows a woman to stake a claim upon
partition of the coparcenary property in her family of birth, even after marriage. It is important to
note that since the amendment allowed a woman to be a coparcener it automatically allows a
woman to be a Karta i.e. manager of the joint family. This essentially signifies that a daughter of
the house has equal share in the property irrespective of her date of birth or marital status.

6. WHY IS THE SUPREME COURT JUDGMENT IMPORTANT?

The 2005 amendment failed to provide clarity with respect to its applicability and scope.
A number of ambiguities and varied positions were taken by various courts on its scope in
relation to whether the daughter must be born prior to the amendment and whether it is an
inherent right by virtue of birth. The two benches of equal strength of the Supreme Court also
had opposing views and so the matter was referred to a larger bench. This riddle was resolved by
the Supreme Court in Vineeta Sharma v Rakesh Sharma 46by clarifying that the daughters gain
coparcenary rights upon their birth and do not lose it even after marriage.
Since the enactment date of The Hindu Succession (Amendment) Act, 2005 was September 9,
2005, the main confusion revolved around the issue that whether the coparcener father or his
daughter needs to be alive on the enforcement date i.e. September 9, 2005, for applicability of
the Section47.
In Prakash vs Phoolwati 48case, a two-judge Bench headed by Justice AK Goel held that the
benefit of the 2005 amendment could be granted only to “living daughters of living coparceners''
as on September 9, 2005 (the date when the amendment came into force). The apex court had
held that Section 6 was prospective in nature and would apply only if the coparcener and
daughter were both alive as on 9 September 2005.
In Danamma @ Suman Surpur & Anr. Vs Amar & Anr. 49, the apex court had held that Section
6 would apply retrospectively. In this case, the father had died in 2001, leaving behind two
daughters, two sons and a widow. The Court had held that “it is the very factum of birth in a
coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener
become coparceners by birth,” and, consequently, observed that the two daughters being
coparceners, were entitled to equal share in the coparcenary property even though the father was
not alive when the substituted Section 6 came into force in 2005.

46 (2019) 6 SCC 162

47 Ayush Verma, Tracing the history of coparcenary rights of daughters up to the recent verdict in Veenita Sharma
vs. Rakesh Sharma, Ipleaders (Oct, 21, 2020) https://blog.ipleaders.in/tracing-history-coparcenary-rights-
daughters-recent-verdict-vineeta-sharma-vs-rakesh-sharma/#Hindu_Succession_Amendment_Act_2005
48 (2016) 2 SSC 36
49 (2018) 3 SCC 343

22
The present ruling now settles the law and clarifies the intention of the 2005 legislation to
remove the discrimination as contained in section 6 of the HSA by giving equal rights to
daughters in the Hindu Mitakshara coparcenary property.

7. DECODING THE RECENT JUDGEMENT

The confusion was finally settled as the similar questions were raised before the Hon’ble
Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma & Others. The primary issue
was whether a daughter is entitled to coparcenary rights by birth or from the enactment date of
Amendment Act and whether the father needs to be alive at the execution date i.e. September 9,
2005, to activate the provision of the Amendment Act. Answering the issue, whether the
amended Section 6 will have retrospective effect or prospective effect Hon’ble Supreme Court
categorically held that it will be neither retrospective nor prospective but retroactive in nature
hence it will operate from a past event i.e. the birth of the daughter. Therefore, the coparcenary
right of the daughter will arise from the date of birth itself and not from the execution date of the
Amendment Act irrespective of the fact whether the father was alive at the execution date or the
daughter is born before the Amendment Act came into existence. Nature of coparcenary rights of
daughter shall be as same as the sons and daughter will have an equal share in the coparcenary
property as of sons in its true sense. But one exception to the rule is that, if the settlement is
taken place in a partition suit prior to 2005 through a registered deed, such case cannot be
reopened once implemented. Likewise, when a final order with reference to partition suit has
been passed by the competent court, the case cannot be reopened. But if only a preliminary order
has been passed, the case can be reopened. And a daughter can reopen a case which was settled
before 2005 if she was denied her legal right to inherit her legitimate share or if she was not
admitted as a coparcener during the partition suit. For this, she would need to challenge the
correspondent document or decree giving effect to such partition.
The main takeaway from this progressive judgement delivered by the Hon’ble Supreme Court
(on 11 August 2020 in Vineeta Sharma v. Rakesh Sharma in Civil Appeal Diary No 32601 of
2018 (Judgment) are: -
• The amended section 6 of the HSA makes the daughter a “coparcener in her own right”
and “in the same manner as the son”. The right has been conferred by birth and from the
commencement of the Amendment Act.
• The daughter who can claim property share may be born before or after the amendment
in 2005
• The amendment has retroactive application, i.e., although the amendment does not
operate retrospectively but its operation is based upon antecedent events. Therefore, the
rights for past events can be claimed only with effect from 9 September 2005.
• Since the right has been conferred by birth, it is not necessary that the father of the
daughter should be living as on date of the amendment.

23
 • However, the provisions protect the disposition or alienation, partition or testamentary
disposition which had taken place before 20 December 2004 which cannot now be
reopened.
• Partition has been defined in the Amendment Act as one bought about by a ‘decree of
Court’ or ‘effected by a registered instrument’. A special definition has been brought in
to avoid sham defenses to unjustly deprive the daughter of her share
• Therefore, even if a partition suit has been filed before the Amendment Act or a
preliminary decree for partition has been passed before the amendment Act, the rights of
the daughter can be taken into consideration till the date of the final decree.
• A high burden of proof is cast upon a person taking a plea of conclusive oral partition
prior to 20 December 2004. Such a plea ought to be supported by contemporaneous
documentary evidence such as public documents, appropriation of income, separate
occupation, consequent entry in revenue and the like. The intent of section 6 of the HSA
is only to accept genuine partitions that might have taken place under the prevailing law,
and are not set up as a false defense as the intent of the provision is not to jeopardize the
interest of the daughter and to take care of sham or frivolous transaction set up in defense
unjustly to deprive the daughter of her right as coparcener and prevent nullifying the
benefit flowing from the provisions as substituted. 50

8. CONCLUSION
The judgement is a major milestone in establishing women’s status, rights and position in the
society. Women who have always been denied to economic resources and are suppressed
throughout their life can have a sigh of relief after this landmark judgement. The Judgment can
truly be hailed as championing of women’s property rights in India. Empowering women is also
a step towards spurring the productivity and economic growth in any nation. The disavowal of
property rights to women come from profound established patriarchal thoughts in our society.
Daughters have for quite some time been asked and encouraged to forego their property rights
for harmony in the family. It is accepted that if property is given to the daughter, the property no
longer stays inside the family. Indeed, a contention such that 'a wedded daughter stops to be a
member from the dad's family and turns into a member of the family she is wedded into' (refer to
the old Hindi word of “Paraya Dhan”) is thoroughly believed. In fact, unfortunately an argument
to the effect that ‘a married daughter ceases to be a member of the father’s family and becomes a
member of her husband’s family’ was also urged before the Supreme Court in the present case.
The Supreme Court has in its landmark Judgment effectively discarded the old and regressive
social mores and provided a ray of hope in effecting much needed social change as regards
women’s property rights. The Judgment is also in consonance with the spirit of equality under
Article 14 of the Constitution.

50 Vanita Bhargava , Trishala Trivedi, Raddhika Khanna & Shweta Kabra, Decoding Daughters Coparcenary Rights,
The Daily Guardian (Aug 25, 2020, 6:13 AM IST) https://thedailyguardian.com/decoding-daughters-coparcenary-
rights/

24
Each little step towards women empowerment signifies a superior future that the world
anticipates appreciating. In spite of the reformist judgment, we may witness many families
refusing to share the property with their daughters. In this manner, the need of hour is to
ceaselessly put forth attempts to change the male centric mentality of society. The battle for an
equivalent space in the domain of family law does not end with the Judgment. It is for the people
to take forward to implement this judgement efficiently so that it does not remains just a decree
passed on papers. What is likewise required is to make and spread mindfulness and teach
individuals to change mentalities and to wholeheartedly acknowledge their daughter’s privileges
to property.

25
 ABORTION AND DISCLOSURE OF SEX
Abortion is one of the simplest medical treatments to be administered under the guidelines of the
World Health Organization (WHO). However, it is also the consequence of at least one in six
maternal deaths from complications when it is unsafe. In 2004, WHO analysis, based on
calculations and information from all countries, found that the broader the legislative framework
for abortion, the fewer deaths from unwanted pregnancies. In fact, research continues to show
that there are only six prime causes for legalizing abortion in most countries:
Ground 1 – life risk
Ground 2: rape or sexual assault
Ground 3 – extreme fetal anomaly
Ground 4 – danger to physical and sometimes mental health;
Ground 5 – on social and economic grounds
Ground 6 – upon request51
Politically and culturally, limitations on abortion have indeed been instituted for three major
reasons firstly that abortion was barbaric, and a lot of women were murdered by abortionists.
That was therefore a global health commitment to protect women who still obtained abortions
and sacrificed their lives doing so, as they mostly do today if they have also no recourse.
Abortion was considered immoral or a form of ethical perversion, and the laws were planned to
prosecute and present a danger.
Abortion was confined to the protection of foetal life under any or all cases. Since abortion
methods have become safe, laws against abortion make sense only for punitive and deterrent
purposes, or to protect foetal life over that of women's lives.52 While some convictions for illegal
abortions that cause injuries or death do take place, much more often than not existing legislation
are being used against those who have but provide safe abortions outside the law. Prior to 1971,
abortion was made illegal under Section 312 of the Indian Criminal Code of 1860, which
portrayed it as intentionally "caused miscarriage." 53 Other than in cases where abortion was
carried out to save a woman's life, it was a criminal offense and criminalized women / suppliers,
who knowingly miscarried a woman with a child facing three years in prison and/or a fine, and a
woman serving seven years in prison and/or a fine. 54 It was in the 1960s, when abortion was
legal in 15 countries that negotiations commenced on the legislative framework for abortion

51 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5473035/
52 Ibid
53 Bean, Christopher B. (March 2014). "Antebellum Jefferson, Texas: Everyday Life in an East Texas Town. By

Jacques D. Bagur. (Denton, TX: University of North Texas Press, 2012. Pp. 612. $55.00.)". Historian. 76 (1): 106–
107. doi:10.1111/hisn.12030_8. ISSN 0018-2370. S2CID 143926493
54 "The Indian Penal Code 1860" (PDF). Archived from the original (PDF) on 24 October 2018. Retrieved 20

June 2018.

26
procedure in India.55 The astonishingly escalated abortion rate had notified the Ministry of
Health and Family Welfare (MoHFW). And counter this, the government established together a
committee in 1964, chaired by Shantilal Shah, to arrive with recommendations to formulate an
abortion law for India. The Shah Committee was initiated by the government of India in 1964.
The Committee has carried out a comprehensive study of the socio-cultural, legal and medical
implications of abortion. In its 1966 report, the Committee proposed approving abortion in order
to avoid the loss of women's health and lives both at humanitarian and health grounds.
According to the research, there would be 6.5 million abortions every year in a population of 500
million – 2.6 million natural and 3.9 million induced. 56 It is approximated that 15.6 million
abortions take place every year in India. A significant portion of these would be likely to be fatal.
Unsafe abortion is the third largest factor of maternal deaths, with 10 women dying every day
and thousands more experiencing congenital malformations. The last large-scale study on
induced abortion in India was conducted as part of the abortion Assessment Project in 2002. 57
Studies as part of this project have reported an annual incidence of 6.4 million abortions in India.
Medical termination of pregnancy Act, 1971 was passed on 10.08.1971 and entered into force on
01.04.1972. This act was passed to control unwanted abortion in India and to minimize maternal
death due to scarce and inadequate facilities available for abortion. Abortion carried out under
this Act is called safe abortion. After the passage of the Medical Termination of the Pregnancy
Act in 1971, abortion has been legalized in India since 1971. This was brought to the attention of
the Ministry of Health and Family Welfare because of the increased incidence in abortion and
maternal death due to unsafe abortion. Later, the bill was turned into an Act with the consent of
the President. It has been provided that no licensed medical practitioner who has acted in
compliance with the provisions of this Act can be convicted under the Indian Penal Code.
COMPREHENSIVE ABORTION CARE (CAC)
This concept was first introduced by a Non-Profit Organization – Ipas Development Foundation
(IDF) in the year 2000. IDF is working to train obstetricians, gynecologists and general medical
practitioners for the purpose of offering high quality CAC services to pregnant women in
partnership with 12 State Governments. The aim of this concept is to reduce the number of
unintended pregnancies, abortion and maternal mortality. This concept was strongly supported
by the MTP Act, 1971.58

55 c D, Gaur, K (1991). "Abortion and the Law in India". dspace.cusat.ac.in. Retrieved 20 June 2018.

56 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5953198/
57 "The abortion assessment project--India: key findings and recommendations". Reproductive Health
Matters. 12 (24 Suppl): 122–129. doi:10.1016/S0968-8080(04)24009-5. ISSN 0968-
8080. PMID 15938165. S2CID 7911826.
58 Medical Practitioners Act, 1971

27
SALIENT FEATURES OF ACT
• This act draws towards the termination of certain pregnancies by the registered medical
practitioners and the connected matters.
• This act explains the registered medical practitioner as defined in the Cl. (h) of Section 2
of the Indian Medical Council Act, 1956. Accordingly, a registered medical practitioner
is one whose name has been registered in the State Medical Register and who has
practiced or trained in gynecology and obstetrics. (Section 2)
• It explains the circumstances under which the abortion can be done by the medical
practitioner. (Section 3)
• It also provides the place where the termination of pregnancy can be made. (Section 4)
• It clearly mentions who has the power to make rules and regulations to this act. (Section
6 & 7)
• This act also renders protection for the action taken in good faith by Registered Medical
Practitioners. (Section 8)

GROUNDS FOR TERMINATION

The termination of pregnancy is authorized where the pregnancy is induced by abuse and the
continuation of pregnancy is harmful to the mental health and physical health of pregnant
women.
The termination of pregnancy is approved when the pregnancy has occurred due to the failure of
the contraception and the continuation of the pregnancy is detrimental to the physical and mental
health of the woman.
Termination is permitted if the continuation of pregnancy presents a danger to the life of
pregnant women. The termination of pregnancy is permitted if there is a serious risk that may
lead to physical and mental problems due to extreme disability if the infant is born under these
circumstances.
Termination may only be carried out in government hospitals and places licensed by the
Government. It shall be added to the position approved by the District Level Committee, headed
by the Chief Medical Officer or the District Health Officer. Given that the Committee is
comprised of 3-5 members, including the Chairperson. The termination of pregnancy by a non-
registered medical practitioner or a gynecologist or obstetrician shall be punishable with strict
imprisonment for a period of not less than 2 years and not more than 7 years.
Punishment for the owner of a place which is not licensed by the Government for the medical
terminal of pregnancy shall be punished with strict imprisonment for a duration of 2-7 years.

28
WHO CAN TERMINATE?
1. Termination of the pregnancy may be done after the issuance of a letter by a registered
medical practitioner if the length of the pregnancy is less than 12 weeks.
2. Termination of pregnancy may be done after the issuance of a letter by two registered
medical practitioners if the length of the pregnancy is more than 12 weeks and less than
20 weeks.
3. If the period of pregnancy is more than 20 weeks the permission of the court is necessary
for termination. The Court may decide either to provide or reject the plea on the opinion
of the medical specialist and on the plea requested.

PLACE FOR TERMINATION

Termination of pregnancy shall be done only in the places mentioned in this act and not
anywhere else.
1. The hospital established or maintained by the Government.
2. The place which is established by the Government for the purpose of this Act.
CONSENT REQUIREMENT
Minor & Lunatic:
For those who have not attained the age of majority (i.e. 18) according to the Indian Majority
Act, 1875 and those who are lunatic according to the Indian Lunatic Act, 1912, the consent of
his/her guardian is necessary for abortion.
Unmarried:
Pre-marital or prenatal sex is strongly discouraged in India, but it is evident many young men
and women engage in sex before the marriage. When unmarried girl is above 18 years in these
cases her own consent is adequate for termination of pregnancy. However, for unmarried under
age of 18, the guardian consent is necessary.
Rape Victims:
The written consent of the raped victim alone is sufficient for the termination of pregnancy. The
abortion in these cases is performed even after the period of 20 weeks of pregnancy with the
prior permission of the court. The court generally permits the abortion in this situation because
the continuation of the pregnancy may affect the mental health of the women.
Married:
The consent of the pregnant women alone is adequate for termination of pregnancy. Though she
is married, the consent of her husband is not necessary according to this act. The Act thus
renders freedom for the women to take decision in abortion since it is wholly connected with her

29
mental health. Most of the abortion related to married women arises due to the failure of
contraceptives and it is admissible as the ground for abortion.
POWER TO MAKE RULES:
The Central Government of India may make any rules to this act by announcing a notification in
the Official Gazette. The rules thus made by the Government should be ratified by both the
houses of the Parliament. Provided that any modifications shall not prejudice the validity of
anything previously done in this act.
POWER TO MAKE REGULATIONS:
The State Government has the power to make regulations regarding this act. The State
Government by regulation shall provide the requirements and prohibition of certain acts
necessary under this act. Any person willfully breach these regulations shall be liable with fine
which may extend up to one thousand rupees.
AMENDMENTS:
1. This act was first amended in 2002. After that the act can also be called as the Medical
Termination of Pregnancy (Amendment) Act, 2002.
THIS ACT INCLUDES:
• The alternation of the word lunatic to ‘mentally ill person’ in section 2 of the principal act
(Medical termination of Pregnancy Act, 1971). The mentally ill person is defined as the
person who is in need of treatment by reason of any mental disorder other than mental
retardation by this Act.
• Termination can be done only in the government hospitals and in the places approved by
the Government. It is added with a place approved by the District Level Committee in
which the Chief Medical Officer or the District Health Officer is the chairperson.
Provided that the committee shall consist of 3-5 members including the Chairperson.
• Termination of pregnancy done by other than the registered medical practitioner or the
practitioner in gynecology or obstetrics shall be punished with rigorous imprisonment for
a period which is not less than 2 years and not more than 7 years.
• Punishment for the owner of the place which is not approved by the Government for the
medical terminal of the Pregnancy shall be punished with rigorous imprisonment for the
period 2-7 years.
2. Recently the Union Cabinet has approved the Medical Termination of Pregnancy
(Amendment) Bill, 2020, and was passed by the Lok Sabha on 17 March 2020. The bill
was introduced by the Minister Harsh Vardhan. It is the fourth Amendment bill followed
by the MTP Bill 2014, 2017 and 2018.
The changes planned to be amended in the MTP Act, 1971 by the amendment bill, 2020 are
as follows:

30
 • The Medical Termination of Amendment Bill, 2020 seeks to extend the pregnancy period
limit from 20 weeks to 24 weeks.
• The draft bill seeks the requirement of opinion from one register medical practitioner if
the length of pregnancy is up to 20 weeks.
• It also proposes the requirement of opinion of two medical practitioners if the length of
pregnancy is 20 weeks to 24 weeks.
• The draft replaces the term ‘married woman or her husband’ in the Section 3 with ‘any
women or her partner’. Thus, the bill clearly supporting the abortion of unmarried
women.
• The bill brings that name and other particulars of women whose pregnancy has to be
terminated shall not be revealed except to a person authorized in any law in force. And
also provides that anyone who contravenes this provision will be punishable with
imprisonment up to 1 year or with fine or with both.
CASE LAWS:
1. Alakh Alok Srivastava vs, Union Of India W.P © No. 565/2017 –

In this case the petitioner was a minor 10-year-old pregnant rape victim. She was 32 weeks
pregnant i.e. 4 months and above. Here, the court did not allow her to terminate the child. The
Medical Board took the opinion that at that point, the continuation of the pregnancy was less
risky for the applicant than termination. During the course of the trial, the Court requested the
direct establishment of permanent medical boards in the States by the Centre to review
expeditiously the petitions for termination after 20 weeks of pregnancy, and the Centre provided
directions.

2. Savita Sachin Patil vs. Union of India No.121/2017

In this case, in compliance with Article 32 of the Constitution of India, Mrs. Savita Sachin Patil
approached the Court to obtain orders from the respondents to allow her to undergo medical
termination of her pregnancy. The applicant is 37 years old and as of 25.2.2017 she is 26 weeks
pregnant. This is also expressed in the medical report obtained on 25.2.2017 from the Office of
the Dean and Director (ME & MH), Seth G.S. Medical College & KEM Hospital, Parel,
Mumbai. It was discovered in the medical investigation that the petitioner was infected with
Trisomy 21, a disease that induces extreme physical and mental retardation of the embryo, most
generally referred to as Down Syndrome. Two essential considerations are involved, as with all
such situations- (I) risk to the life of the mother and (ii) risk to the life of the fetus. Since the
fetus had too many complications and could even risk the life of the mother, hence the court
granted the permission to terminate the pregnancy. Lastly the court gave the judgment in favor of
the mother saying “if the mother desires to end this pregnancy, the intrinsic danger to her welfare
with procedural inventions can be tolerated with prior informed consent, so there is an increased

31
risk of termination of the pregnancy after 20 weeks, as is the case at hand. This is, however, a
special case and a decision on its particular merits has been drawn”

3. Murugan Nayakkar vs. Union of India & Ors. W.P. (C) No. 749/2017

The applicant, who is a 13-year-old girl and a survivor of suspected rape and sexual assault,
preferred to end her pregnancy with this written petition. Taking into account the age of the
applicant, the damage she experienced as a result of the sexual assault and the pain she is
undergoing at present and, above all, the report of the Medical Board appointed by this Court, it
is necessary to allow her to terminate her pregnancy. It was often considered that termination at
this point of pregnancy or term delivery would pose similar risks to the woman. The Board has
shared the belief that the baby born will be preterm and have its own complications that would
need admission to the Neonatal Intensive Care Unit (N.I.C.U.). It was decided by the court that
termination of pregnancy is to be allowed keeping in mind the age of the petitioner and other
necessary criteria’s like health if the pregnancy is continued etc.

4. Mamta Verma vs. Union of India

In compliance with Article 32 of the Constitution of India, the petitioner Mamta Verma, aged 26,
approached this Court to seek guidance from the respondents to allow her to undergo medical
termination of her pregnancy. Having found that her fetus was afflicted with anencephaly, a
condition that renders foetal skull bones unformed and is both untreatable and likely to cause the
infant's death at or shortly after birth, she apprehended the risk to her existence. This state is
often recognized as endangering the life of the mother. Since looking over the Ultrasonography
results, the Committee claims that there is no point in pursuing pregnancy since the foetus has
ANENCEPHALY, which is not consistent with life and would bring significant mental harm to
her during pursuing pregnancy. We were told that the foetus is without a skull and will thus not
be able to survive. It is further argued that the plaintiff recognizes that her pregnancy is
unhealthy and that there is a high chance of foetal mortality. The foregoing Medical Board
determined, following examination by the applicant, that her actual pregnancy is 25 weeks and 1
day. The foetus's state is not consistent with living. The medical data strongly shows that because
the foetus would not be able to survive outside the uterus without a skull, there is no point in
allowing the pregnancy to run its full course. Importantly, it is stated that the continuation of
pregnancy will pose serious mental harm to the petitioner and if she is permitted to undergo
termination of her pregnancy, no additional risk to the life of the petitioner is involved. The court
gave the judgement in favor of the mother and the termination of her pregnancy is to be done by
the medical practitioners who checked her previously.

32
 5. Tapasya Umesha Pisal vs. Union of India

Pursuant to Article 32 of the Constitution of India, the petitioner Tapasya Umesh Pisal, aged 24
years, has approached this Court seeking instructions from the respondents to enable her to
undergo medical termination of her pregnancy. Having found that her foetus was afflicted with
tricuspid and pulmonary atresia, a cardiac defect in the foetus, she apprehended the risk to her
existence. The foregoing Medical Board tested the applicant and confirmed that she was in her
24th week of pregnancy as of 07.08.2017. She was accompanied by her husband, and if born
alive, they are conscious of the cardiac anomaly and the baby's accompanying morbidity. In the
medical reports it was found that, a foetus with tricuspid and pulmonary atresia with narrow
pulmonary arteries is diagnosed as having a hypoplastic right heart. High morbidity and
mortality have been recorded for the operations that would be required on the foetus. It is also
stated that these children do not attain normal oxygen level after the surgeries and will remain
physically incapacitated. Even after corrective procedures, the life span of these children is
reduced, as defined in medical literature. The pediatrician has confirmed that with elevated
morbidity and mortality after birth, it tends to be an isolated complex congenital heart condition.
A complete absence of the right ventricle and pulmonary and tricuspid valve atresia was
confirmed by the radiologist. Hence, it was found that (I) the duration of the pregnancy would
entail a risk to the pregnant woman's safety or a significant physical or mental health accident,
(ii) If the infant is born, there is a considerable possibility that it will suffer from such physical or
emotional defects as to be severely handicapped. Under these cases, it is impossible for us to
deny the petitioner's consent to seek pregnancy surgical termination. Was allowed to be born, it
is certain that the foetus will have a short life span and severe handicaps that cannot be
prevented. It seems like the child would probably not mature into an adult. In view of its
severity, the court found it necessary to allow the applicant to seek medical termination of her
pregnancy in the interests of justice and, in particular, in compliance with the terms of the
Medical Termination of Pregnancy Act, 1971.

33
 RAPE: A CRIME AGAINST SOCIETY

INTRODUCTION
Rape is considered highest forms of crime experienced by women in all sectors of the society
which can have a deteriorating effect on a woman’s life. It is incorporated under Section 375 of
the Indian Penal Code, 1860. The pain and agony suffered by a rape victim is beyond
imagination. Therefore, letting them undergo the same pain by way of two finger test, just to
ensure their sexual state is merely illogical and inhumane. Under this topic, we are going to
discuss about the two finger test in light of the well-known case of Lilu @ Rajesh and anr v.
State of Haryana59. Furthermore, the stance of the judiciary in the commission of offence of
rape is also discussed with reference to the recent Hathras Case.

TWO-FINGER TEST – AN UNNECESSARY EVIL

A two-finger test or virginity test is the practice and process of determining whether a girl or
woman is a virgin; i.e., whether she has never engaged in sexual intercourse. The test involves an
inspection of the hymen, on the assumption that it can only be torn as a result of sexual
intercourse. The hymen is defined as “the thin membrane of skin that may stretch across part of
the vagina opening”. An opening in the hymen allows the menstrual flow to pass out of the body.
Most girls are born with a hymen, although some are born without it. However there are “many
doctors who say that the hymen is not a good indicator of sexual virginity” for several reasons: a
girl may have been born without a hymen, the hymen can easily be ruptured during normal
physical activities or sport and the hymen can be stretched open by the use of tampons. This test
is done by the doctor when he inserts two fingers into the vagina of the victim. 60 The test helps in
determining laxity and the sexual activity of the victim i.e. whether the victim is sexually active
or not. This test would help in verifying whether the hymen is broken or not. Insertion of one
finger with strain into the vagina shows that the victim is a virgin whereas easy or smooth
insertion of two fingers in the vagina shows that the female is habituated to sexual activity. The
reports of these kinds of tests were usually submitted by the doctors to the lawyers who used
them as evidence to defend their clients. The process as a whole is unjust for the women and is
ethically wrong also.61

UNDERSTANDING THE ETHICS OF THE TEST

The Gujarat HC has held that the two-finger test to check the virginity of rape victims is
unconstitutional. It directed the trial courts & doctors to bear this in mind because “it violates the
right of the victim of sexual assault to privacy, physical & mental integrity & dignity”. The High

59
Lillu v. State of Haryana, (2013) 14 SCC 643.
60
Ayush Verma, Why as the too-finger test banned? IPLEADERS (Oct. 17, 2020, 11:00 AM),
https://blog.ipleaders.in/why-was-the-two-finger-test-banned.
61
Aman Garg, Two-finger Test: Transgression into Dignity, Privacy and more, THE CRIMINAL LAW BLOG (Oct.
16, 2020, 10:00 AM), https://criminallawstudiesnluj.wordpress.com/2020/02/26/two-finger-test-transgression-into-
dignity-privacy-and-more.

34
Court observed so on the aspect of consent by rape survivor in a “unique appeal” filed by the
state government. The High Court convicted one Rameshchandra Panchal from Kadi town for
rape nearly 25 years after he was exonerated by a trial court “by mistake” in 1995. The victim
was a minor, but the court by mistake counted that she was above 16 & recorded Panchal’s
acquittal on the basis that the sexual relations between Panchal & the victim were with her
consent. Panchal, however, was punished with a seven-year jail term for abduction of the girl
under sections 363 & 366 of Indian Penal Code. 62
The Bench of Justices J.B. Pardiwala and Bhargav D. Karia said the test was in direct conflict
with the proviso to Section 146 of the Indian Evidence Act, which stipulated that “in prosecution
for rape or attempt to commit rape, it shall not be permissible to put questions in the cross-
examination of the prosecutrix as to her general immoral character.”63

CURRENT STATUS IN INDIA

Experts opined that the two-finger test or PV test is absolutely not necessary since forensic
evidences can be collected without doing finger test. Maharashtra Government has done away
with finger test on rape victims saying such test is nonscientific most of the time, often resulting
in hurdles in investigations and miscarriage of justice. The Usha Mehra commission was
constituted by the union government on 26 December 2012 to inquire into the different aspects
of the brutal rape and assault incident of the girl on 16 December 2012 on the streets of Delhi.
Planning Commission's working group headed by secretary, women and child development
ministry, in its report in January, 2012 recommended abolition of this test in order to protect
victims of sexual abuse from further mental trauma. Hon’ble Supreme Court of India had held
that the two-finger test on a rape victim violates her right to privacy, and asked the government
to provide better medical procedures to confirm sexual assault. In January 2013, the Justice
Verma committee - set up to frame stricter anti-rape laws after the brutal gang-rape and murder
of a medical student on a moving bus in Delhi - had criticized the two-finger vaginal
examination. In March 2014, the Department of Health Research (DHR) along with Indian
Council of Medical Research (ICMR) with the help of experts formulated a set of national
guidelines for dealing with criminal assault cases, to put an end to the “horrendous” medical
process.64
Delhi government had issued an advisory to its hospitals stating that Per Vaginal (PV)
examination, also referred to as 'two-finger test', for rape survivors can be conducted with their
consent. The advisory, based on a 14-page document made by an expert panel, claims doctors
cannot be made to function under the constraint of a complete ban of this examination.
"(Banning) may not only prove detrimental to her health but may also result in injustice," it adds.

62
Mahesh Langa, Rape cases: Gujarat HC holds ‘two-finger test’ unconstitutional, violative of victim’s right to
privacy, THE HINDU (Jan. 20, 2020, 02:07 PM), https://www.thehindu.com/news/national/rape-cases-gujarat-hc-
holds-two-finger-test-unconstitutional-violative-of-victims-right-to-privacy/article30682866.ece.
63
Ibid.
64
Ateriya N, The validity of Two Finger Test in India: Is It a Violation of Women’s Human Rights? IJFP 417, 418
(2019), https://www.thehindu.com/news/national/rape-cases-gujarat-hc-holds-two-finger-test-unconstitutional-
violative-of-victims-right-to-privacy/article30682866.ece.

35
After issuing circular to hospitals to conduct two-finger test on rape victims and facing criticism,
the Delhi government decided to revoke it by banning two finger test is completely for sexual
assault victims in Delhi.
A report by Human Rights Watch highlights the use of this practice. The test is “unscientific,
inhuman and degrading” and a second assault on traumatized women and raised concerns about
Indian courts bringing views of rape victims' general moral character into their rulings. The
report was released in Mumbai on September 6, 2010. The Criminal Law (Amendment) Act
2013 introduced a more comprehensive definition of “sexual as-sault” and rules for procedures
and evidence for trials in cases of sexual assaults.65
In the case of Lilu @ Rajesh and anr v. State of Haryana66, the Supreme Court ruled that the
two-finger test is unconstitutional. It violates the right of rape survivors to privacy, physical and
mental integrity and dignity. Thus, this test, even if the report is affirmative, cannot ipso facto,
give rise to presumption of consent. In view of International Covenant on Economic, Social, and
Cultural Rights 1966 and the United Nations Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power 1985, rape survivors are entitled to legal recourse that
does not traumatize them or violate their physical or mental integrity and dignity. They are also
entitled to medical procedures conducted in a manner that respects their right to consent. Medical
procedures should not be carried out in a manner that constitutes cruel, inhuman, or degrading
treatment and health should be of paramount consideration while dealing with gender-based
violence. The State is under an obligation to make such services available to survivors of sexual
violence. Proper measures should be taken to ensure their safety and there should be no arbitrary
or unlawful interference with their privacy.

HATHRAS CASE
Recently a heart wrenching incident has occurred in Hathras, U.P wherein a 19 year old Dalit
woman was allegedly raped by four men. According, to the dying declaration given by the
woman she was raped by four men.
She was allegedly tortured and gang-raped by four men on September 14 in UP's Hathras
district. It is alleged that the perpetrators cut off the victim’s tongue to ensure that she cannot
give testimony to the police. They repeatedly threatened her family for several days. After the
incident, she was recovered from the fields in a critical condition. Her family members admitted
her to a hospital in Aligarh for treatment. Later, she was shifted to Safdarjung Hospital Delhi,
where she succumbed to her injuries the next day. Her body was cremated by the police against
the wishes of her family in the wee hours of September 29. The victim's family said that they
were not allowed to perform her last rites. The Lucknow Bench of the Allahabad High Court has

65
Id. at 419.
66
Supra note1.

36
taken suo moto cognizance and has asked the concerned police officials to explain their
version67.
The police stated that since the forensic laboratory result did not show the presence of semen
samples in the body, therefore no rape happened with the woman. 68 In this regard, it is pertinent
to note that to prove the offence of rape, it is not necessary to establish the presence of sperm
samples in the body of woman. The explanation to Section 375, puts a clear stance that
penetration is sufficient to constitute the sexual intercourse necessary to prove the offence of
rape.
There are plethora of judgements made by the apex court and various high courts stating this
aspect in unequivocal terms. In Ladka Pola v. State of Delhi69, the Supreme court affirmed the
decision of the High Court which held that presence of semen was not necessary to prove the
commission of rape.
The High Court has referred to the following passage from Modi in Medical Jurisprudence and
Toxicology:
“Thus, to constitute the offence of rape it is not necessary that there should be complete
penetration of penis with emission of semen and rupture of hymen. Partial penetration of the
penis within the Labia majora or the vulva or pudenda with or without emission of semen or
even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite
possible to commit legally the offence of rape without producing any injury to the genital or
leaving any seminal stains.”70
In this case, The SC approved the course of action adopted by the High Court.
In another matter of Wahid Khan v. State of Madhya Pradesh71, the apex court held that even a
slight penetration will suffice to make out an offence of rape and depth of penetration is
immaterial.
In State of UP v. Babulnath72, the Supreme Court observed:
“…to constitute the offence of rape it is not at all necessary that there should be complete
penetration of the male organ with emission of semen and rupture of hymen. Even partial or
slightest penetration of the male organ within the labia majora or the vulva or pudenda with or
without any emission of semen or even an attempt at penetration into the private part of the
victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is

67 Manu Sebastian, Hathras Case: Presence of Sperm Not Necessary to Prove Rape; UP Police Claim contrary To
Law, LIVE LAW (2 Oct 2020 10:14 AM), https://www.livelaw.in/know-the-law/hathras-case-presence-of-sperm-
not-necessary-to-prove-rape-up-police-claim-contrary-to-law-163856.
68 Id.
69
Ladka Pola v. State of Delhi, (2014) 2 SCC 592.
70 JAISING P. MODI, A TEXTBOOK OF MEDICAL JURISPRUDENCE AND TOXICOLOGY 584 (21st ed.

1988).
71 Wahid Khan v. State of Madhya Pradesh 2010 (2) SCC 9.
72 State of UP vs Babulnath (1994) 6 SCC 29.

37
quite possible to commit legally the offence of rape even without causing any injury to the
genitals or leaving any seminal stains”.
Penile- vaginal entry is not cardinal to constitute rape and even penile access towards vagina,
without entry into the vagina would constitute rape, if penis gets physical contact with any of the
external portions of the female genital organ, such as, vulva, labia majora etc. Even, an attempt
at penetration into vagina would amount to accessing of the vagina and even a slight penetration
into vulva or labia majora would amount to "rape", although there is no Penetration of the male
genital organ within the labia majora or the vulva. It has nothing to do with the emission of
semen. Even an attempt at penetration into the private part of the victim whether it is completely,
partially or slightly, will be counted as the commission of offence of rape under Section 376 of
Indian Penal Code, 1860. Furthermore, ejaculation is not necessary to constitute the offence of
rape.73
Furthermore, it is also settled law that the testimony of the rape-victim does not need
corroboration and that the conviction can be possible solely on the basis of that. There are a
plenty of precedents of courts holding the accused guilty for rape on the basis of the dying-
declarations of the rape victims.

OCULAR EVIDENCE v. MEDICAL EVIDENCE

It is a settled principle of the evidence law that in case of any kind of inconsistency between
medical evidence and ocular evidence, the latter will prevail. 74 The primary reason behind this is
that medical evidence is only in the nature of an opinion. It has only corroborative value under
Section 45 of the Evidence Act which makes expert evidence admissible. 75
The SC observed in The SC observed in Ramanand Yadav v. Prabhu Nath Jha76 :
“.it is trite law that oral evidence has to get primacy and medical evidence is basically
opinionative. It is only when the medical evidence specifically rules out the injury as is claimed
to have been inflicted as per the oral testimony, then only in a given case the court has to draw
adverse inference”.
Her statements have also been reportedly recorded by the Magistrate under Section 164 of the
Code of the Code of Criminal Procedure. 77 The statements of the victim in relation to the gang
rape are admissible in evidence as dying declaration under Section 32(1) of the Indian Evidence
Act.78 There is one more medical record which can eventually corroborate her dying declaration.
That is the post-mortem report prepared by Safdarjung Hospital, New Delhi on September 29,

73Tarkeshwar Sahu v. State of Bihar 2006 (8) SCC 560.

74 Manu Sebastian, Hathras Case: How Victim's Oral Evidence Demolishes Forensic Report? LIVE LAW (7 Oct
2020 1:10 PM), https://www.livelaw.in/columns/hathras-case-how-victims-oral-evidence-demolishes-forensic-
report-164092.
75
State of U.P. v. Hari Chand, 2009 (13) SCC 542.
76
Ramanand Yadav v. Prabhu Nath Jha And Ors., (2003)12 SCC 606.
77
The Code Of Criminal Procedure, Act No. 2 Of 1974, Section 164.
78
The Indian Evidence Act, Act No. 1 Of 1872, Section 32(1).

38
which manifests the presence of multiple healed wounds at the hymen and the anal orifice
region. It may be noted that the post-mortem took place 15 days after the date of the crime.
Furthermore, the victim has reportedly given three consistent versions to the police, the doctor
and the magistrate about the gang rape committed on her by the four accused persons. In
comparison to these consistent statements, the forensic report, which is primarily based on a
swab collected eight days after the crime, that too after the body was washed and wiped multiple
times, looks unreliable. The forensic evidence in the instant case does not seem to be reliable
enough to discredit the oral evidence, according to the yardsticks laid down by the precedents. It
is also pertinent to note that dying declarations can be the sole basis for convictions, even
without any independent corroboration. 79
In State of U.P. v. Pappu @ Yunus & Anr.80, the Court held that a prosecutrix complaining of
having been raped is not an accomplice after the commission of crime. No rule of law states that
a rape survivor’s testimony cannot be acted upon without corroboration in material particulars as
she stands on a much higher pedestal than an injured witness.

CONCLUSION
Crime against women in general and rape is increasing rapidly these days. It is quite paradoxical
that while we are celebrating women's rights in all spheres, we barely show concern for her
honor. It is a gloomy reflection on the attitude of indifference of the society towards the violation
of human dignity of the victims of sex crimes. The court of justice has many times emphasized
that must not forget that a rapist not only violates the victim's privacy and personal integrity, but
inevitably causes serious psychological and physical harm in the process. Therefore, such cases
need to be dealt sternly and severely. 81 Furthermore, subjecting rape victims to two finger-test
without their consent is unjustified.
Additionally, denying a rape victim her right to dignified cremation after death and cremating
her without her parent’s permission is a shameful act of police. If the protectors of law
themselves try to deny a rape survivor justice, then what can we expect from other people of the
society.

79
Kusa v. State of Orissa, 1980 2 SCC 207.
80
State of U.P. v. Pappu @ Yunus & Anr., AIR 2005 SC 1248.
81 Bodhisatwa Gautak v. Subhra Chakraborty, 1996 SCC (1) 490.

39
 CONCLUSION

The struggle for making a place in the society for a woman is continuing and will go on for
several generations. What has changed over the years is the perspective of the people, and the
strong determination and perseverance that the woman have showed throughout. A woman today
can be so diversified yet balanced, that she can take over companies as efficiently as she
manages a house. The enforcement of legal rights of a woman has played a significant role in
bringing this radical change. From granting the status of equality in the constitution to equal
rights in her father’s property the journey of this change has been remarkable. Still because of
the existence of demons in our society a woman not safe even inside her own house. Lack of
education, increasing population, unemployment and lack of awareness, all these factors
contribute to the increasing crime rate against the woman in the country. What is required is a
better environment, stringent laws and their effective enforcement to make this country a better
and safe place for women.

40