UNIT 12 VIOLENCE AGAINST WOMEN -

DOWRY, RAPE AND FEMALE

FOETICIDE

Structure
12.1 Introduction
12.2 Objectives
12.3 Meaning of Violence Against Women
12.4 Dowry
12.5 Rape
12.6 Female Foeticide
12.7 Summary
12.8 Terminal Questions
12.9 Answers and Hints
12.10 References and Suggested Readings

12.1 INTRODUCTION
Violence affects the lives of millions of women worldwide, in all socio-economic
and educational classes. It cuts across cultural and religious barriers, impeding
the right of women to participate fully in society. Violence against women varies
from domestic abuse, female foeticide, dowry death and rape to child marriages
and female circumcision. All are violations of the most fundamental human rights.

In a statement to the Fourth World Conference on Women in Beijing in September

1995, the then United Nations Secretary-General, Boutros Boutros-Ghali, said
that violence against women is a universal problem that must be universally
condemned. The issue of the advancement of women's rights has concerned the
United Nations since the Organisation's founding. Yet the alarming global
dimensions of female-targeted violence were not explicitly acknowledged by
the international community until December 1993, when the United Nations
General Assembly adopted the Declaration on the Elimination of Violence against
Women.

Until then, most Governments tended to regard violence against women largely
as a private matter between individuals, and not as a pervasive human rights
problem requiring State intervention. In view of the alarming growth in the number
of cases of violence azainst women throughout the world, the Commission on
Human Rights adopted resolution 1994/45 of 4 March 1994, in which it decided
to appoint the Special Reporter on violence against women, including its causes
and consequences. In this particular Unit we will discuss provisions and legal
issues relating to dowry, rape and female foeticide.

5
Offences Against Women
and Dalit 12.2 OBJECTIVES
After reading this unit, you should be able to:
•
.
assess the enormity of violence against women;
• examine legal issues relating to violence against women;
• analyse legal responses to violence against women;
• identify recent reforms suggested by National Commission of Women;
• identify reforms suggested by Law Commission of India;
• analyse how society and courts have responded to violence against women;
• describe lacunas of legal provisions relating to violence against women; and
• suggest reforms to check violence against women.

12.3 MEANING OF VIOLENCE AGAINST WOMEN

Article 2 of the Declaration on the elimination of Violence Against Women
says that violence against women shall be understood to encompass but not limited
to ... Physical, sexual and psychological violence occurring in the family, including
battering, sexual abuse of female children in the household, dowry related
violence, marital rape, female genital mutilation and other traditional practices
harmful to women, non-spousal violence and violence related to exploitation.

Violence by men against women is a longstanding problem and remains

widespread. Violence against women are of various types. They find mention in
many enactments. Although Women may be victims of any of the general crimes
such as 'Murder', 'Robbery', Cheating', etc, only the crimes which are directed
specifically against Women are characterised as 'Crimes Against Women'. These
are broadly classified under two categories-

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

i) Rape (Sec. 376 IPC)
ii) Kidnapping & Abduction for specified purposes (Sec. 363 - 373 IPC)
iii) Homicide for Dowry, Dowry Deaths or their attempts (Sec. 302/304-
B IPC)
iv) Torture - both mental and physical (Sec. 498-A IPC)
v) Molestation (Sec. 354 IPC)
vi) Sexual Harassment (Sec. 509 IPC)
vii) Importation of girls (upto 21 years of age) (Sec. 366-B IPC)
2) The Crimes under the Special & Local Laws (SLL)
The gender specific laws for which crime statistics are recorded throughout
the country are -
i) Immoral Traffic (Prevention) Act, 1956
ii) Dowry Prohibition Act, 1961
iii) The Child Marriage Restraint Act, 1929

6 iv) Indecent Representation of Women (Prohibition) Act, 1986

 v) Commission of Sati (Prevention) Act, 1987 Violence Against Women -
Dowry, Rape and Female
Foeticide
These are the main offences against women. Certain offences are general against
all women and certain offences are applicable in respect of married women. In
this Unit we will discuss provisions relating to dowry, rape and female foeticide.

12.4 DOWRY
Demand for dowry is one of the major factors responsible for domestic violence.
Dowry has been referred to as a social cancer. a cruel custom and an insult to.the
dignity of women. It has been crystallized in our society and despite legislation,
dowry harassment and dowry deaths are increasing every year among all social
categories.

So far as origin of dowry is concerned, the custom of Kanyadan (giving the

daughter in marriage) followed by varadakshina (gift to the bridegroom at the
time of marriage) may have given rise to dowry. It is in the Rig Veda that one
comes across the concept of kanyadan. It was a custom in ancient times to give
dakshina (obligatory gifts) after any type of daan (voluntary gifts), hence, the
tradition of varadakshina following kanyadan J •

The Atharva Veda refers to a royal bride bringing with her the dowry of 100
cows. Draupadi, Subhadra and Uttara also brought with them rich presents of
horses, elephants and jewels from their parents" .It is said that Rishi Karav gave
a number of gifts to his daughter, Shakuntala when she married King
Dushyant' .This was known as Varadakshina (gift to the bridegroom) but it was
a voluntary practice without any coercive overtones, basically out of affection.

Under Section 14 of the Hindu Succession Act, 1956, the property of the female
Hindu is her absolute property. Women also have every right over the property.
Hence, the very fundamentals of dowry as in the ancient times do not apply in
the present situation, but there has been ever growing demand both at the time of
marriage and even thereafter which has gravely affected the status of women" .
This is because of social attitudes which refuse to recognise women as equal
human beings. In fact the low status of women along with rising consumerism
and greater inequality seem to refuel the taking and demanding of dowry" .

Women's organisations have demanded changes in the property laws to give

equal rights to women so that women could have a better economic status and
could more easily reject dowry. Though, this demand has been acceded to, dowry
continues to be the only property which a woman receives from her parental
home.

The practice of dowry has become an important problem in marriage resulting in

cruelty to married women. The evils of dowry have become so pernicious that a
large number of women are bring murdered, burnt, or assaulted every year on
the altar of dowry" .

1 Advani, P. : Crime in Marriage: A Broad Spectrum, 1994.

2 Dewan, V.K; Law Relating to Offences Against Women, 1996, p. 97.
3 Nangia, J.N., Dowry, 1985.
4 Dewan, V.K., Law Relating to Offences Against Women, 1996, p. 97.
5 Singh, Kirti, 'Dowry Violence and the Law', In Women and Politics of Violence, ed. By
Taisha Abraham, 2002, p. 248.
6 Sinha, Dr. Niroj, Women and Violence, 1989, p. 83. 7
Offences Against Women While the introduction of the new dowry laws resulted in several cases being
and Dalit
filed and heard in courts the phenomenon of dowry continues to grow. This is
reflected by the steady rise of dowry cases every year in the crime charts.
According to official statistics the cases of dowry deaths (Sec. 302, 304B IPC)
have increased by (8,172)1.0% in the year 2008 over the previous year (8,093).
27.4% of the total such cases reported in the country were reported from Uttar
~,.

Pradesh (2,237) alone followed by Bihar (1,210) (14.8%). The highest rate of
crime (1.3) was reported from Bihar and Haryana each as compared to the National
average of 0.7.

Under the Dowry Prohibition Act the cases of dowry have decreased by 1.2%
(5,555) in the year 2008 as compared to the previous year (5,623).23.7% cases
were reported from Orissa (1,316) followed by Bihar (1,288) accounting for
23.2% of total cases at the National

level. The highest crime rate was also reported from Orissa at 3.3 as compared to
0.5 at the National level,"

These statistics are not only a comment on the inability of the law to tackle the
issue but also on the actual existence of the problem.

A) Dowry Deaths: Provisions Under Criminal Law

Many women have been killed by their husbands or relatives out of greed for
more dowry. To deal with this problem, the offence of dowry death was included
in the IPC. The legislature introduced stringent provisions under the Section
304B, IPC and Section U3B Evidence Act in 19868• These provisions were
introduced so that the person committing such inhuman crimes on married woman
could not escape liability, where evidence of a direct nature is not readily available.

The primary requirement for finding the accused guilty of an offence under Section
304B, IPC, are that the death of the deceased was caused by bums of bodily
injuries, which occur otherwise than under normal circumstances, within seven
years of her marriage and that soon before her death, she was subjected to cruelty
or harassment by the accused for or in connection with a demand for money.
Unless there is evidence of dowry demand, Section 304B cannot be attracted.

The concept of cruelty or harassment has to be taken from the explanation to Section
498A IPC. Cruelty or harassment need not be physical. Even mental torture would

7 Crime in India, National Crime Records Bureau, MHA, Govt. of India, 2008
8 Section 304B of the IPC reads as under:
I) 304 B Dowry Death - where the death of a woman is caused by any bums or bodily injury
or occurs otherwise than under normal circumstances within seven years of marriage and
it is shown that soon before the death, she was subjected to cruelty or harassment by her
husband or any relative of her husband for, or in connection with, any demand for dowry,
such death shall he called 'dowry death' and such husband or relative shall be deemed to
have caused her death.
2) Whoever commits dowry death shall be punished with imprisonment for a term which
shall not be less than seven years but which may extend to imprisonment for life.
Section ll3B of the Evidence Act reads as under:
113B Presumption as to dowry death - when the question is whether a person has commit-
ted the dowry death of a woman and it is shown that soon before her death such woman
had been subjected by such person to cruelty, harassment for, or in connection with, any
demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation: for the purposes of this section, 'dowry death' shall have the same meaning
8 as in S 304B of the Indian Penal Code (45 of 1860).
in the facts and circumstances of a given case amount to cruelty or harassment Violence Against Women -
Dowry, Rape and Female
under Section 498A IPC. The term 'wilful conduct' means conduct wilfully done; Foeticide
this may be inferred by direct or indirect evidence. In Pawan Kumar v. State of
Haryana' , the court held that taunting the woman for not bringing dowry, amounts
to mental torture. Further, if there is a quarrel a day before her death, this would
constitute wilful act of cruelty both within the meaning of Section 498A and
304B, IPc.

Dowry deaths occur within the four walls of the house, therefore the concept of
deemed 'dowry death' was introduced by the 1983 amendment. In order to invoke
the legal presumption under Section 113B of the Evidence Act, it is necessary to
prove that the deceased was subjected to cruelty or harassment. Further, the
presumption under Sections 113B and 304B only apply if the offence takes place
within seven years of marriage. The sections read in conjunction shift the burden
of proof from the prosecution on to the husband or his relatives accused of the
offence. This is a departure from the normal rule of evidence and was introduced
to strengthen the hands of the prosecution. The provision of Section 113B is
mandatory in nature. In State of Punjab v. IqbaI Singh'"; the Court opined that
Section 113B could be applied retrospectively as it is procedural in nature.

There can be no direct evidence available for the offence of dowry death, therefore
the courts must rely upon circumstantial evidence and infer from the material
available. The Court in C V Govindappa v. State of Karnataka" held that the
conduct of the husband in not trying to put out the flames and not taking her to
hospital will be taken as circumstance against the husband. 12 •

B) Dowry Prohibition Act,1961

The Dowry Prohibition Act of 1961 is a very small Act which consists of only
eight sections (two more sections were added later during the amendments).
Section 2 of Dowry Prohibition Act 1961 defines dowry, it means property or
valuable security give or agreed to be given in connection with the marriage.
Dower or Mahr is not dowry under Muslim Personal law. Gifts that are given to
a woman during her marriage are not dowry. They are her own personal property
and she has an absolute right over them. Dowry need not be directly given. For
example, property given in someone else's name or given by someone who is
not woman's parent or her husband's parents is still considered. An agreement to
give property may count as dowry even if has been negotiated between people
who are not related to her.

The Act of 1961 laid down a very narrow definition of dowry as "property given
in consideration of marriage and as a condition of the marriage taking place".
The definition excluded presents in the form of cash, ornaments, clothes and
other articles from its purview. The definition also did not cover money asked
for and given after marriage. Both giving and taking dowry was an offence. The
maximum punishment was six months and / or a fine of Rs. 3,000. To make
matters more complicated, prior sanction of the government was necessary for

9 (1998) 3 SCC 309.

IQ (1991) 3 SCC l.
11 (1998) 2 SCC 765.

12 See Also, State of UP v. Ramesh (1996) 10 SCC 360 - duty of the court to scan through the

. evidence on the anvil of human conduct, probabilities extending all doubts in favour of the
accused. Also see Balaram v. State of Bihar (1997) 9 SCC 338.
9
Offences Against Women prosecuting a husband who demanded dowry. Complaints had to be filed within
and Da!it
a year of the offence and only by the aggrieved person.

The ineffectiveness of the Act was manifested at different levels. In Shankar

Rao v. L. V. Iadhav" Bombay High Court held that a demand for Rs. 50,000
from the girl's parents to send the couple abroad did not constitute dowry. The
judgment held that since the girl's parents had not agreed to give the amount
demanded at the time of marriage and as such it would be denied as 'consideration
for marriage' .Anything given after marriage would be dowry only if it was agreed
or promised to be given as consideration for the marriage. The absurd
interpretation was in total contrast to the spirit of the Act and defeated the very
purpose for which it was enacted.

Amendment Act, 1984

To plug some of the loopholes of the Act, a pri vate member's bill was introduced
in Parliament by Pramila Dandavate, M.P. in June 198014• The bill was referred
to the Joint Committee of both the houses. The findings of the Committee were
that the definition of 'dowry' was too narrow and vague; the Act was not being
rigorously enforced. The stipulation that complaints could be filed only by the
aggrieved party within a year from the date of the offence narrowed down its
application. Also, punishment of imprisonment for six months and! or fine upto
Rs. 5,000 was not formidable enough to serve as a deterrent.

The Committee suggested that the words 'in consideration for the marriage' ought
to be totally deleted from the definition of dowry. The committee also felt that
the explanation which excluded presents from definition of dowry nullified the
objective of the Act. It recommended that the gifts given to the bride should be
listed and registered in her name. In case she dies during the first five years, the
gifts should be reverted back to her parents. In case she is divorced, the gifts
should also revert back. The presents could not be transferred or disposed of for
a minimum period of five years from the date of marriage without the prior
permission of the family court or on an application made by the bride. These
provisions were aimed at ensuring the bride's control over the gifts. The committee
also recommended the appointment of Dowry Prohibition Officers for the
enforcement of the Act!".

Unfortunately, the bill which was introduced in 1984 failed to take into
consideration some ofthe positive recommendations ofthe Committee. The main
features of the amended Act was that it substituted the words 'in consideration
of marriage" for the words "as consideration for the marriage" would make the
definition too wide. The suggestions of imposing a ceiling on gifts and marriage
expenses did not find a place in the Act.

The important feature was the increase in punishment to five years and a fine
upto Rs. 10,000 or the value of dowry whichever is more. But again, the section
did not apply to presents given to the bride or to the bride groom. The one year
limitation period was removed and it was now possible for girl's parents, relative

13 (1983), 4 SCC 231.

14 Singh, Gayatri, 'Dowry Prohibition Law', The Lawyers Grey, 1986, p. 1.
15 Excerpts from the Report of the Joint Committee of the Houses to examine the question of the
working of the D.P.A. 1961.
10
or a social work institute to file a complaint on her behalf. The requirement of Violence Against Women -
Dowry, Rape and Female
prior sanction of the government for prosecuting a husband who demands dowry Foeticide
was dropped and dowry was made into a cognizable offence.

Amendment Act, 1986

The Act was again amended in 1986 to make it even more stringent. The fine
was increased to Rs. 15,000. The burden of proving the offence was shifted to
the accused and dowry was made into a non-bailable offence. A ban was imposed
on advertisements. If the woman died an unnatural death, her property would
devolve on her children and in the event of her dying childless, would revert
back to her parents. In fact, all the loopholes pointed out by the committee were
now plugged. The Act also amended the IPC and created a new category of
offence called 'dowry deaths', Section 304B16•

In spite of all these amendments, Dowry Prohibition Act, 1961 is designated as

a teeth less Act. The failure of prosecution in dowry cases and leniency of our
judiciary in awarding punishments to dowry offenders, abnormal delay in trial
procedure turn into blessings for dowry offenders. They get the advantage of
dowry but get no punishment in the long drawn legal battle" .

The main reason for failure of this law can be that it was passed hurriedly without
arousing "social preparedness" amongst people by wide publicity and public
could not be educated regarding the object of this law and its utility for common
welfare.

Self Assessment Questions

I) Discuss the meaning of violence against women and its various forms.

2) What is 'dowry' and 'dowry death'? Discuss provisions given in criminal

law to fight the menace of dowry death.

16 Misra, Preeti, 'Efficacy of Law to Check Domestic Violence Against Women (A Socio-Legal
Study), Unpublished Dissertation, Lucknow University, 1993-94, p. 86.
17 "Crimes", Vol. 11 1995, p. 525.
11
Offences Against Women
and Dalit 12.5 RAPE
These days crime against women in general and rape in particular is on the
increase. Rape is not merely a physical assault. It is often destructive of the
whole personality of the victim. A murderer destroys the physical body of the
victim, a rapist degrades the very soul of the helpless female. 18 It is the only
crime, perhaps, where instead of being sympathised with a victim is socially
ostracised and morally degraded with a lifelong stigma on her dignity and
character. The mental torture is deep and agony unbearable. In such a state, the
victim tries to get justice by appealing to the courts, hoping against hope that
justice will be done to her.

According to the National Crime Records Bureau, which reflect the social
degeneration, an increasing trend in cases of rape (Sec. 376 IPC) has been observed
during 2004-2008. Rape cases reported increase of 0.7%in 2005 over 2004, an
increase of 5.4% in 2006 over 2005, an increase of 7.2% in 2007 over 2006 and
an increase of 3.5 % in 2008 over 2007. Madhya Pradesh has reported the highest
number of Rape cases (2,937) accounting for 13.7% oftotal such cases reported
in the country. However, Mizoram has reported the highest crime rate 7.8 as
compared to National average of 1.9. Rape cases have been further categorised
as Incest Rape (Sexual harassment by own family members) and other Rape cases.

Incest rape cases have decreased by 23.7% from 405 cases in 2007 to 309 cases
in 2008 as compared to 3.5% increase in overall Rape cases. Madhya Pradesh
(52) has accounted for the highest 16.8% of the total such cases reported in the
country.

There were 21,485 victims of Rape out of 21,467 reported Rape cases in the
country. 9.2% (1,970) of the total victims of Rape were girls under 15 years of
age, while 16.3% (3,496) were teenaged girls (15-18 years). 57.2% (12,299)
were women in the age group 18-30 years. 3,584 victims (16.7%) were in the
age-group of 30-50 years while 0.6% (136) was over 50 years of age. Offenders
were known to the victims in 91.0% of Rape cases (19,542 out of21,467). Parents/
close family members were involved in 1.6% (309 out of 19,542) of these cases,
neighbours were involved in 33.1 % cases (6,462 out of 19,542) and relatives
were involved in 5.4% (1,065 out of 19,542) cases."

A) Definition of Rape
"Rape means insofar as the law is concerned the slightest degree of penetration
by the male sexual organ of the female sexual organ (which) will be sufficient to
constitute intercourse without anything more occurring.'?" In English Law,
Section 1 ofthe Sexual Offences (Amendment) Act, 1976 gave statutory force
to the definition formulated by the House of Lords in Director of Public
Prosecutions v. Morgan",

This section provides that a man commits the actus reus of rape if he has unlawful
sexual intercourse with a woman who at the time of intercourse does not consent

18 (1996) 2 SCC 384.

19 National Crime Records Bureau, Ministry of Home Affairs, Govt. ofIndia, Delhi, 2008.
20 Gary Scanlan and Christopher Ryan in Introduction to Criminal Law, P. 208.
21 (1976) AC 182: (1975) 2 All ER 347.
12
to it. The intercourse must be per vaginam. The absence of woman's consent is Violence Against Women -
Dowry, Rape and Female
an essential feature of actus reus of rape. As to intercourse, Section 44 of the Foeticide
Sexual Offences Act, 1956 provides that on the trial of any offence under this
Act, it is necessary to prove sexual intercourse (whether natural or unnatural)
upon proof of penetration only.

The Indian law on rape evolved almost entirely on the basis of Common Law
Definition.
The offence of rape is defined in Chapter XVI of the IPC. It is an offence affecting
the human body. In that chapter, there is a separate heading for sexual offences
which encompasses Sections 375 and 376, 376-A to 376-D, IPC. Sections 375
and 376 have been substantially changed by the Criminal Law (Amendment)
Act, 1983 which also introduced several new sections, namely, 376-A to 376-D.
These sections were introduced to stop sexual abuse of women in custody, care
and control by various categories of persons, which though not amounting to
rape were nevertheless considered highly reprehensible. The amended sections
stand as:

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

Firstly-Against her will;

Secondly-Without her consent;

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

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

Fifthly-With her consent, when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication, or the administration by him personally
or through another of any stupefying or unwholesome substance, she is unable
to understand the nature and consequences of that to which she gives consent;

Sixthly-With or without her consent, when she is under sixteen years of age.

Explanation-Penetration is sufficient to constitute the sexual intercourse

necessary to the offence of rape. .

Exception-Sexual intercourse by a man with his own wife, the wife not being
under Fifteen years of age, is not rape."

Custodial Rape

The Criminal Law (Amendment) Act, 1983 introduced new Sections in the IPC,
namely, Sections 376-A to 376-D to stop sexual abuse of women in custody,
care and control by various categories of persons. Custodial rape may be
committed by a police officer, public servant, person on the management or staff
of a jailor a remand home or other place of custody for women and children or
by one on the management or staff of a hospital.
13

I
Offences Against Women In all cases of custodial rape the person takes advantage of his official position.
and Dalit
It is an aggravated form of rape calling for a sentence sterner than ordinary rape.
Hence for combating the evils of custodial rape, rape on pregnant woman, girls
under twelve and gang rape, a minimum punishment of ten years imprisonment
has been prescribed.

In State of Maharashtra v. Chandra Prakash Kewalchand+, it was held that if

the girl says in custodial rape that she did not give consent, the Court shall presume
that she did not consent. The question before the Court was whether a crime
committed by a person in authority should be approached by the Court in the
same manner as in any other case involving a private citizen. The infrastructure
of our criminal investigation system recognises and protects the right of a woman
to decent and dignified treatment at the hands of investigating agencies. Misuse
of power by them cannot be treated as an ordinary situation.

Marital Rape
In the exception to Section 375, IPC, sexual intercourse by a man with his own
wife, the wife not being under fifteen years of age, is not rape. The wife's 'consent'
is based on the common law rule of marital exemption. However, this concept
has undergone a change and marital rape is now an offence in the USA, Sweden,
Denmark, Australia and the U.K. though not in India."

In R. v. R. (Rape: Marital Exemption)" the House of Lords widened the scope

of criminal liability by declaring that a husband could be charged as the principal
offender in the rape of his wife. This decision seems to have obliterated the
protection of the husband from such prosecution under the doctrine of marital
exemption. This exemption was based upon a belief under which the wife was
regarded as the husband's chattel. She was supposed to have given a general
consent to her husband as a natural implication of the marriage. This has now
become an outmoded view of marriage."

B) Section 376 Punishment for Rape

1) Whoever, except in the cases provided for by Sub-section (2), commits rape
shall be punished with imprisonment of either description for a term which
shall not be less than seven years but which may be for life or for a term
which may extend to ten years and shall also be liable to fine unless the
woman raped is his own. wife and is not under twelve years of age, in
which case, he shall be punished with imprisonment of either description
for a term which may extend to two years or with fine or with both:

Provided that the Court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a term
of less than seven years.

2) Whoever,-

a) being a police officer commits rape-

22 Vide S. 114-A, Evidence Act. Ram Kumar v. State of H.P., 1995 Supp (4) SCC 67. Karnel
Singh v. State of M.P (1995) 5 SCC 518.
23 G.B. Reddy: Women & Law.

24 (1991) 4 All ER 481 (HL).

14 25 Ratanlal & Dhirajlal: Indian Penal Code.

 i) within the limits of the police station to which he is appointed; or Violence Against Women -
Dowry, Rape and Female
ii) in the premises of any station house whether or not situated in the police Foeticide
station to which he is appointed; or
iii) on a woman in his custody or in the custody of a police officer
subordinate to him; or
b) being a public servant, takes advantage of his official position and
commits rape on a woman in his custody as such public servant or in
the custody of a public servant subordinate to him; or
c) being on the management or on the staff of a jail, remand home or
other place of custody established by or under any law for the time
being in force or of a women's or children's institution takes advantage
of his official position and commits rape on any inmate of such jail,
remand home, place or institutions; or
d) being on the management or on the staff of a hospital, takes advantage
of his official position and commits rape on a woman in that hospital;
or
e) commits rape on a woman knowing her to be pregnant; or
f) commits rape on a woman when she is under twelve years of age; or (g)
commits gang rape, shall be punished with rigorous imprisonment for
a term which shall not be less than ten years but which may be for life
and shall be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned
in the judgment, impose a sentence of imprisonment of either description for a
term of less than ten years.

Explanation i-Where a woman is raped by one or more in a group of persons

acting in furtherance of their common intention, each of the persons shall be
deemed to have committed gang rape within the meaning of this subsection.

Explanation 2-'Women's or children's institution' means an institution whether

called an orphanage or a home. for neglected women or children or a widows'
home or by any other name, which is established and maintained for the reception
and care of women or children.

Explanation 3-'Hospital' means the precincts of the hospital and includes the
precincts of any institution for the reception and treatment of persons during
convalescence or of persons requiring medical attention or rehabilitation.

Death Sentence or Sentence

By the amendment of 1983, now the minimum punishment for ordinary rape is
seven years' imprisonment but a Court for adequate and special reasons to be
recorded can impose a sub-minimum sentence. This minimum rule however is
not applicable to rape of one's own wife aged below 12 years. For custodial
rape, gang rape and rape of a pregnant woman knowing about her pregnancy,
and the rape of a girl below 12, it is obligatory to impose a sentence of ten years.
The Court has normally no discretion to award a sentence less than the said
minimum. Nonetheless Parliament was not oblivious of certain very exceptional
situations and hence, to meet such extremely rare contingencies, it made a
departure from the said strict rule by conferring discretion on Courts:
15
Offences Against Women 1) if there are adequate and special reasons,
and Dalit
2) such reasons should be mentioned in the judgment.

C) Judicial Interpretation
1) Mere Penetration is enough for the offence of rape
In State of Ke rala v. Kundumkara Govindam'", it was held that the crux of offence
under Section 376, IPC is rape and it postulates a sexual intercourse. The word
intercourse means sexual connection. This Kerala decision explaining the word
penetration states that it means access or through. It has also been held in
Ghanshyam Mishra v. State" and Nathuram v. State of Haryana'" that the depth
of penetration is immaterial.

2) Absence of any injury does not mean Consent

Absence of Injury.-In Pratap Mishra v. State of Orissa'" and Laiq Singh v.
State of U'P'"; the Supreme Court delivered a judgment which went unnoticed
by various NGOs. In both cases women were raped and the accused were acquitted
by the Supreme Court after consecutive convictions in two subordinate courts
.on the ground that absence of any injury on the prosecutrix indicates consent of
the prosecutrix.
In 1978, the Supreme Court again pronounced another like judgment against a
conviction of the Bombay High Court under Section 375, IPC and acquitted the
accused in Tukaram v. State of Maharashtra" , popularly known as the Mathura
trial. Here, the Sessions Judge found the evidence insufficient to convict the
accused. The Bombay High Court reversed the finding and sentenced the accused
to rigorous imprisonment.
The Supreme Court reversed the decision of the Bombay High Court and held
the accused not guilty on three grounds:
1) There were no injuries shown by the medical report. The alleged intercourse
was a peaceful affair;
2) The Court disbelieved the testimony that she had raised alarm;
3) The Court held that under Section 375, IPC, only fear of death or hurt can
vitiate consent for sexual intercourse. There was no such finding recorded
and therefore since the girl was "habituated to sexual intercourse" there
was consent.
This time the judgment was not accepted silently. There were marked protests
and the case led to amendments in the existing penal provisions to make them
more effective in providing justice to the victims.
After the much criticised Mathura Trial, the Supreme Court decision in Rafiq v.
State of U.p32 resulted in the conviction of the accused despite non-existence of
any injury on the victim who was raped while she was sleeping.

261969 CriLJ 818.

27 1957 Cri LJ 469.
28 1994 Cri LJ 1095 (Se).
29 (1977) 3 SCC 41: 1977 SCC (Cri) 447
30 (1970) 2 SCC 561: 1970 SCC (Cri) 502.
31 (1979) 2 SCC 143: 1979 SCC (Cri) 381.
32 (1980) 4 SCC 262: 1980 SCC (Cri) 947: 1980 Cri LJ 1344 (SC).
16
3) Presumption as to absence of consent Violence Against Women -
Dowry, Rape and Female
As the case law developed there was a firm tendency to regard marks of physical Foeticide
injury resulting from a struggle as the only proof of want of consent. The Law
Commission (84th report) therefore recommended a new Section 114-A to be
inserted under the Indian Evidence Act which runs as follows:

"In a prosecution for rape under clause (a) to clause (J) of sub-section (2) of
Section 376 of IPC (45 of 1860), where sexual intercourse by the accused is
proved and the question is whether it was without the consent of the woman
alleged to have been raped and she states in her evidence before the Court that
she did not consent, the Court shall presume that she did not consent."

In Nawab Khan v. State of M.PY, the prosecutrix stated in her evidence that she
did not consent to the sexual intercourse. The Court accordingly held that by
virtue of this section 'the burden of proving consent shifted to the accused.

4) Unchastity of women cannot be a defence in cases of rape

In the MathurG; Trial=, one of the reasons for the judgment was that Mathura
was a person of easy virtue and therefore the happenings were with her consent.

In Prem Chand v. State of Haryana>, the Supreme Court reduced the minimum
sentence of 10 years for rape to five years on account of the ·"conduct" of the
raped girl. The raped girl was a woman of easy virtue. This decision caused a
stir, an agitation and a movement by woman's organisations led to gross criticism
of the Supreme Court.

In State of Maharashtra v. Madhukar N. Mardikar"; responding to the voice of

various women activists, the Supreme Court laid down that even a prostitute has
a right to privacy. "The unchastity of a woman does not make her 'open to any
and every person to violate her person as and when he wishes'. She is entitled to
protect her person if there is an attempt to violate it against her wish. She is
equally entitled to the pr-otection oflaw. Therefore, merely because she is a woman
of easy virtue, her evidence cannot be thrown overboard".

5) Corroboration of Testimony
The Supreme Court has held that a woman who has been raped is not an
accomplice. If she was ravished she is the victim of rape and if she has consented,
there is no rape. The true rule of prudence requires that, in every case, the
advisability of corroboration should be present in the mind of Judge and that
must be indicated in the judgment. But corroboration can be dispensed with by
the Judge if in the particular circumstances of the case before him, he himself is
satisfied that it is safe to do SO.37

In State of Punjab v. Gurmit Singh'", it was held by the Supreme Court that
unless there are compelling reasons which necessitate lo?king for corroboration

33 1990 Cri U 1179.

34 (1979) 2 SCC 143: 1979 SCC (Cri) 381.
35 1989 Supp (1) SCC 286: 1989 SCC (Cri) 418
36 (1991) 1 SCC 57.
37 Rameshwar State of Rajasthan, 1952 SGR 377. Also Sidhesvar Ganguly v. State of West,
Bengal, AIR 1958 SC 143.
38 (1996) 2 SCC 384: 1996 SCC (Cri) 316. 17
Offences Against Women of victim's statement, the Courts should find no difficulty in acting on the
and Dalit
testimony of a victim of sexual assault alone to convict an accused when her
testimony inspires confidence and is found to be reliable. Seeking corroboration
of her statement before relying upon the same, as a rule, amounts to adding
insult to injury.

Explaining further in State of Rajasthan v. Noore Khan'", it was laid down that
there is no rule of law that testimony of a rape victim cannot be acted upon
without corroboration in material particulars. Her testimony has to be appreciated
on the principle or probabilities just as the testimony of any other witness; a high
degree of probability having been shown to exist in view of the subject-matter of
a criminal charge. However, if the Court finds it difficult to accept the version of
the prosecutrix on its face value, it may search for evidence, direct or
circumstantial, which would lend credence to her testimony. Credence, short of
corroboration, as understood in the context of an accomplice would do.

In Camera trial
Section 327 of the Code of Criminal Procedure, 1973, stipulates that a trial should
be in an open court where the general public should have access to it. A majority
of rape cases went unreported because of this section of the CrPC. In a number
of cases, the trauma of humiliation in the process of cross-examination was
unbearable.

The Law Commission in its 84th Report," went into various questions relating
to "Rape and its Allied offences: Some questions of Substantive Law and
Procedure". The Commission weighed the pros and cons of the demand for an in
camera trial in the light of the fact that an open court is an essential ingredient of
a fair trial but at the same time recommended an amendment in Section 327,
CrPC. The government drafted the Criminal Law (Amendment) Bill, 1980 on
the basis of the Law Commission's recommendations and in 1983, publishing or
making known the identity of a rape victim became an offence under Section
228-A of the Indian Penal Code, 1860. Section 228-A thus prevents social
victimisation or ostracism of the victim of a sexual offence. In R. Lakshmi Pathi
v. S. Ratnalingham" , the accused was alleged to have revealed the name of the
rape victim in their newspaper for which the complaint was filed.

The Apex Court in State of Punjab v. Gurmit Singh'", considering the proviso to
Section 327, CrPC requiring conducting of trials under Sections 376, 376-A to
376-D, IPC in camera, held that:

"When trials are held in camera it would not be lawful for any person to print or
publish any matter in relation to the proceedings in the case, except with the
previous permission of the Court as envisaged by Section 327(3), CrPC. ... The
anonymity of the victim of the crime must be maintained as far as possible
throughout."

39 (2000) 5 SCC 30: 2000 SCC (Cri) 898. State of Sikkim v. Padam Lall Pradhan (2000) 10
SCC 112: 2000 SCC (Cri) 1217 See also Rafiq v. State ofU.P. 1980 Cri LJ 1344 (SC);
Bharwada Bhoginbhai'Hirjibhai v. State of Gujarat(1983) 3 SCC 753.
40 Submitted in 1980.
41 1998 Cri LJ 3683 (Mad).
18- c. 42 (1996) 2 SCC 384. ?'
D) Redefining Rape Laws in India to Save Children from Sexual Abuse Violence Against Women -
Dowry, Rape and Female
In a public interest litigation, Sakshi v. Union of India'" . the petitioner contended Foeticide
that interpretations of Sections 375 and 376, IPC and other sections are not
consistent with the current state of affairs in society. The Apex Court, in view of
the rise in crime and the growing menace of sexual abuse of children, requested
the Law Commission to examine the issue and the feasibility of making
recommendations for amendment of the Penal Code or of dealing with the
problem of sexual abuse of children in any other manner.

Rape is defined in India as intentional, unlawful sexual intercourse with a

woman without her consent. The essential elements of this definition under
Section 375 ofthe Indian Penal Code are 'sexual intercourse with a woman' and
the absence of consent. This definition therefore does not include acts of forced
oral sex, or sodomy, or penetration by foreign objects; instead those actions are
criminalized under Section 354 of the IPC, which deals with 'criminal assault
on a woman with intent to outrage her modesty' and Section 377 IPC, covering
'carnal intercourse against the order of nature'.

The narrow definition of rape has been criticized by Indian and international
women's and children's organisations, who insist that including oral sex, sodomy
and penetration by foreign objects within the meaning of rape would not have
been inconsistent with any constitutional provisions, natural justice or equity.
Today broader interpretations are needed to protect victims, and also to serve
justice.

In Sakshi v. Union of India, the Supreme Court did not ~nterpret the provisions
of Section 375 IPC to include all forms of penetration such as penile/vaginal
penetration, penile/oral penetration, penile/anal penetration, finger/vagina
penetration, finger/anal penetration, and object/vaginal penetration within its
ambit.

A plain reading of Section 375 of the IPC would make it apparent that the term
"sexual intercourse' has not been defined and is, therefore, subject to and is
capable of judicial interpretation. And the Section also does not in any way limit
the term penetration to mean penile/vaginal penetration. Limiting the
understanding of "rape" to abuse by penile/vaginal penetration only, runs contrary
to the contemporary understanding of sexual abuse law and denies majority of
women and children access to adequate redress in violation of Article 21 of the
Constitution.

A purposive approach is being adopted in some of other countries so that the

criminals do not go untouched on mere technicality of law. Even international
law now says that rape may be accepted as "the sexual penetration, however
slight, of the vagina or anus of the victim by the penis of the perpetrator or any
other object used by the perpetrator; or of the mouth of the victim by the penis of
the perpetrator; by coercion or force or threat of use of force against the victim
or a third person."

Redefining Rape
After a careful review of the rape law in vogue and an intensive deliberation
with Sakshi v. Union of India, the National Commission for Women and the

43 (1996) 6 SCC 591: 1999 SCC (Cri) 1159

19
Offences Against Women
other organizations, the Law Commission in its 172nd report submitted to the
and Dam
Government of India recommended, inter alia that the law relating to 'rape' be
made gender neutral, wider and more comprehensive to bring it in tune with the
~urrent thinking. The Criminal Law Amendment Bill 2010 aims to substitute
the word rape for sexual assault.

So the proposed re-cast Section 375 would read as:

Section 375: A man is said to commit "sexual assault" if he-
a) penetrates the vagina, the anus or urethra or mouth of any woman with
i) any part of his body; or
ii) any object manipulated by such man except where such penetration is
carried out for proper hygienic or medical purposes;
b) manipulates any part of the body of woman so as to cause penetration into
the vagina, the anus or the urethra of the offender by any part of the woman's
body;
c) introduces any part of his penis into the mouth of woman, under the
circumstances falling under any of the following six descriptions:-
Firstly-Against her will.
Secondly- Without her consent
Thirdly- With her consent when such consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.

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

Fifthly- With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or
through another of :ll1Y stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that action to which she gives consent.

Sixthly- With or without her consent, when she is under eighteen years of age
Explanation I - Mere penetration is a sexual assault within the meaning of this
section.
Explanation IT - For the purposes of this section "vagina" shall also include
labia majora.
Exception - Sexual intercourse by a man with his own wife, the wife not being
under eighteen years of age, is not sexual assault.
Rape obviously is a very serious crime with severe trauma to the victim. The
victims of rape are generally women. Proposal for reforms of the fifteenth Law
Commission seems to be a progressive gender-neutral rape law in India. It, if
favorably responded to, by the legislature, would not only make the substantive
rape law free from the century, but would also take the rape law in a new
progressive direction in the new millennium.

20
 Violence Against Women -
Self Assessment Questions Dowry, Rape and Female
Foeticide
3) How 'Rape' has been defined under the Indian Penal Code,1860?
Whether a woman can be accomplice in a crime of rape?

4) Explain development of law with regard to presumption as to absence

of consent in rape cases.

12.6 FEMALE FOETICIDE

A girl child is perhaps the most socially disadvantaged of all demographic groups.
At every stage of her life cycle from conception to adulthood, she is vulnerable
to human rights abuses. It is noteworthy that every year about 15 million girls
are born in India and despite being biologically stronger than boys, almost one
quarter of this number does not see their 15th birthday due to female foeticide
and female infanticide.

A life time of systematic gender bias for the Indian girl child begins in the mother's
womb itself. Sex-linked abortions have become rampant. Middle class and upper
class families go for omnioscientists (foetus test which will reveal the gender of
the child in womb). Actually, this test is a boon in the Medical field, which
enable the doctors to know about the congenital diseases. But, by using it for a
wrong purpose, people have turned it into a curse" .

The traditional met~od of getting rid of the unwanted girl child was female
infanticide where the female baby was done away with after birth in various
ways - by either poisoning the baby or letting her choke on husk or simply by
crushing her skull und-r a charpoy. With the advancement of medical technology,
sophisticated techniques can now be used to get rid of her before birth. Through
ultrasound scans and amniocentesis, the sex of the foetus can be determined
during the pregnancy of the woman and the foetus is aborted if found to be
female".

44 1993(2) SCJ Jour. 65.

45 The Lawyers Collective. November 200), p. 4. 21
Offences Against Women In several countries, prenatal diagnostic techniques are employed exclusively
and Dalit
for detection of genetic and other congenital disorders. Nevertheless, in India,
ever since their origin they are being misused mainly for sex determination
purposes leading to sex selective abortions.

The practice of sex determination through ultrasound largely started dominating

the scene since 1970s and early 1980s, especially in Punjab and Haryana. Slogans
like "Boy or a Girl", "Spend 500 now, save 5 lakhs later" flooded the entire
Punjab, Haryana and Rajasthan belt during the eighties. Dramatic reduction of
birth rates since the eighties coupled with reliable and cheaper ultrasound
machines in the nineties, enabled the accessibility of foetal sex testing to a much
larger population across the country contributing to the intensification of son
preference in our patriarchal society" .

Prenatal sex determination tests are a basic Human Rights' violation. Female
foeticide is an extreme manifestation of gender violence against women.
According to National Crime Records Bureau a total of 73 cases of Foeticide
were reported in the country during 2008 as compared to 96 in the year 2007
indicating a significant decline of 24.0% in these cases. Punjab has reported the
highest number of such cases (24) followed by Rajasthan (10). These two States
together have accounted for 46.6% of total such cases reported in the country" .

A) Legislative Provisions Against Female Foeticide:

In our country female foeticide has always been regarded as social, moral and
legal wrong. In spite of having legal prohibitions, the parents are deterred with
the birth of a girl child in the family. Under Penal Code, 1860 stringent penalties
have been laid down for causing miscarriage whether it has been caused with or
without the consent of the woman". A woman who causes herself to miscarry
may also be punished. The IPC even provides punishment whosoever before the
birth of any child does any act with the intention of thereby preventing that child
from being born alive" but under certain situations the right to abortion has
been recognised under the Medical Termination of Pregnancy Act, 1971.
Section 3 of this Act provides for the termination of pregnancy by a registered
medical practitioner only where its continuance would invoke a risk to the life of
the pregnant woman or grave injury to her physical or mental health or where
there is a substantial risk that if the child was born it would suffer from such
physical or mental abnormalities as to be seriously handicapped. Where the
pregnancy is alleged to have caused by rape or as a result of failure of contraceptive
used by a married woman or her husband, it would be presumed to constitute a
grave injury to the mental health of the pregnant woman. But in practice this Act
has provided a licence to every registered medical practitioner to terminate

46 The Lawyers Collective, November 2001, p. 5.

47 Crime in India (2008) NCRB, MHA, Govt of India, p95
48 Indian Penal Code, 1860, S 312 & S 313.
49 Section 315 of Indian Penal Code says "whoever before the birth of any child does any act
with the intention of thereby preventing that child from being born alive or causing it to die
after its birth and does by such act prevent that child from being born alive, or causes it to die
after its birth, shall if such act be not caused in good faith for the purpose of saving the life of
the mother, be punished with imprisonment of either description for a term which may extend
to 10 years or with fine or both.
Section 316 of Indian Penal Code punishes offences against children in the womb where the
pregnancy has advanced beyond the stage of quickening and where the death is caused. afrc,
22 the quickening and before the birth of the child.
pregnancy whether it is a fit case within the exception or not. There is no method Violence Against Women -
Dowry, Rape and Female
to check whether the reasons specified for termination of pregnancy are true or Foeticide
not. De-regularisation has resulted into a new type of criminal behaviour practiced
by the medical practitioners. The government being concerned only with its family
planning prograrnmes became a willing party to this so called legalised female
foeticide. Amniocentesis technology added fuel to the fire when after detecting
the sex of the foetus, selective abortions were caused. The problem of female
foeticide became so acute that activists group, media persons and intellectuals
demanded State intervention.

In mid-eighties matter became a major campaign issue. A concerted campaign in

Mumbai under the banner of 'Forum against sex-determination and sex-pre-
selection', resulted in the Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act,1994 (hereinafter referred to as the Act). It came
into force on January 1, 1996. Rules have also been framed under the Act. The
Act prohibits determination and disclosure of the sex of foetus. Realising the
grave implications of the misuse of prenatal diagnostic techniques, Parliament
attempted to limit the use of the same only for medical purposes. The government
realised that the abuse of techniques, which were originally used to detect genetic
disorders or chromosomal abnormalities or congenital abnormalities or sex-linked
diseases, were leading to female foeticide which was discriminatory against the
female sex and also affected the dignity and status of women. It also prohibits
any advertisements relating to pre-natal determination of sex and prescribes
punishment for its contravention. The person who contravenes the provisions of
this Act is punishable with imprisonment and fine.

Objectives of Pre-Natal Diagnostic Techniques (Regulation and Prevention

of Misuse) Act, 1994
The Act provides for the regulation of the use of prenatal diagnostic techniques
for the purpose of detecting genetic or metabolic disorders or chromosomal
abnormalities or certain congenital malformations or sex-linked disorders and
for the prevention of the misuse of such techniques for the purpose of prenatal
sex determination leading to female foeticide. The legislation seeks to achieve
the following objectives:

1) Prohibition of the misuse of prenatal diagnostic techniques for determination

of sex of foetus leading to female foeticide;
2) Prohibition of advertisement of the techniques for detection or determination
of sex;
3) Regulation of the use of techniques only for the specific purposes of detecting
genetic abnormalities or disorders;
4) Permission to use such techniques only under certain conditions by registered
institutions;
5) Punishment for violation of the provisions of the Act; and
6) To provide deterrent punishment to stop such inhuman acts of female
foeticide.

Some Important Features of the PNDT Act

The scheme of Pre-Natal Diagnostic Techniques (Regulation and Prevention of
Misuse) Act, 1994 is such that it consists of 34 Sections spread over eight chapters.
23
Offences Against Women The Act regulates genetic counselling centres, laboratories, clinics and also
and Dalit
prenatal diagnostic techniques. It envisages the establishment of a Central
Supervisory Board and Advisory Committee. It calls for the registration of Genetic
Counselling Centres, Genetic Laboratories or Clinics. The Act also prescribes
penalties for the offences mentioned therein and gives the power to make rules.

Definitions
Some important terms have been explained in Section 2 of the Act. PNDT Act
has defined certain Centres/Clinics where these sex-determination tests may be
carried out.

Genetic Counselling Centre: Section 2(c)

'Genetic Counselling Centre' means an institute, hospital, nursing home or any
place, by whatever name called, which provides for genetic counselling to
patients."

Genetic Laboratory: Section 2(e)

" 'Genetic Laboratory' means a laboratory and includes a place where facilities
are provided for conducting analysis or tests of samples received from Genetic
Clinic for prenatal diagnostic tests."

Prenatal Diagnostic Procedures: Section 2(i)

" 'Pre-natal diagnostic procedures' means all gynaecological or obstetrical or
medical procedures such as ultrasonography, foetoscopy, taking or removing
samples of amniotic fluid, chorionic villi, blood or any tissue of a pregnant woman
for being sent to a Genetic Laboratory or Genetic Clinic for conducting prenatal
diagnostic tests."

Prenatal Diagnostic Tests: Section 2(k)

" 'Pre-natal diagnostic tests' means ultrasonography or any test or analysis of
amniotic fluid, chorionic villi, blood or any tissue of a pregnant woman conducted
to detect genetic or metabolic disorders or chromosomal abnormalities or
congenital anomalies or haemoglobinopathies or sex-linked diseases."

Regulation
Chapter 2 and 3 provides for the Regulation of Genetic Counselling Centres/
Laboratories/Clinics and Pre-Natal Diagnostic Techniques Pre-Natal
Diagnostic Techniques

i) Regulation of Genetic Counselling Centres/Laboratories/Clinics

Chapter 11of the Pre-Natal Diagnostic Techniques (Regulation and Prevention
of Misuse) Act, 1994 provides that no Genetic Counselling Centre, Laboratory
or Clinic shall conduct or employ any person who does not possess the prescribed
qualification to help in conducting activities relating to prenatal diagnostic
techniques unless they are registered under the Act. Such techniques have also been
prohibited to be conducted at a place other than the registered place. (Section 3)

ii) Regulation of Pre-Natal Diagnostic Techniques

Section 4 of Pre-Natal Diagnostic Techniques (Regulation and Prevention of
Misuse) Act, 1994 permits the use of prenatal diagnostic techniques only for
24
 Violence Against Women -
detecting chromosomal abnormalities, genetic metabolic diseases, Dowry, Rape and Female
haemogiobinopathies, sex-linked genetic diseases, congenital anomalies or any Foeticide
other abnormality that may be specified.

Section 4 mentions the conditions when the prenatal diagnostic technique

can be used. The conditions are:
1) When the pregnant woman is above 35 years of age.
2) Where the pregnant woman has already undergone two or more spontaneous
abortions or foetal loss.
3) Where the pregnant woman has been exposed to potentially dangerous agents
like drugs, radiation, infection or chemicals.
4) Where the pregnant woman has a family history of mental retardation or
physical deformities such as spasticity or any other genetic disease.

The Act keeps it open for any other condition to be added as essential.
Thus the regulations provide that if a woman is pregnant and is tested Rh +ve
pre-diagnostic technique may be legally applied to determine whether the child
is also positive or not. If there is any chromosomal deformity this technique is
permitted and may be of use to find out any foetal abnormality. Because the
conditions have been specified, no relative or husband can seek or encourage the
conduct of any prenatal diagnostic techniques.

Prohibitions
Sections 5 and 6 prohibit the determination or communication of the sex of the
foetus.

i) Determination of sex of foetus

Section 6 prohibits Genetic Centres, Laboratories and Genetic Clinics from
conducting any prenatal diagnostic technique tests including ultrasonography
for determining the sex of a foetus. The same prohibitions apply to an individual
also.

ii) Communication of sex of foetus

When otherwise, for determining any abnormality, the prenatal diagnostic
techniques are used and the sex of the foetus is known Section 5 specifically
prohibits communication of sex of foetus to the pregnant woman or her relatives.
Any form of communication by words, signs, etc. is prohibited.

Guidelines before using Pre-Natal Diagnostic Techniques

Section 5 lays down certain conditions which have to be fulfilled before carrying
out a prenatal diagnostic technique on a pregnant woman. These are:

1) Obtain her consent after giving her an explanation in the language she
understands.
2) Give her a copy of her written consent.
3) Explain the side effects and consequences of using the technique on the
pregnant woman.
It has been specified that unless and until these conditions are fulfilled no prenatal
diagnostic test can be carried out. 25
Offences Against Women Authorities under PNDT Act
and Dalit
Central Supervisory Board
Sections 7-16 deal with the Central Supervisory Board under Chapter IV. The
sections give the details of constitution, term of members, meetings of the Board,
Vacancies, Temporary Association of persons, Appointment of officers,
authentication of orders and other instruments of the Board, Disqualifications,
eligibility and functions of the Central Supervisory Board.

i) Constitution
The Act empowers and directs the Central Government to constitute an authority
called the Central Supervisory Board consisting of a Minister and Secretary of
Ministry of Family Welfare, two members representing the ministries of Women
and Child and Law and Justice, Director-General of Health Services, and ten
members, two each from amongst eminent medical geneticists, gynaecologists
and obstetricians, paediatricians, social scientists and representatives from
Women's Welfare Organisations. Apart from these, three women members of
Parliament and four members are to be appointed by the Central Government
(Section 7).

ii) Functions of the Board

Section 16 of the Act assigns the following functions to the Board:
a) to advise the Government o~ policy matters relating to the use of prenatal
diagnostic techniques;
b) to review the implementation of the Act and the rules made there under and
recommend changes in the said Act and rules to the Central Government;
c) to create public awareness against the practice of prenatal determination of
sex and female foeticide;
d) to lay down Code of Conduct to be observed by persons working at Genetic
Counselling Centres, Genetic Laboratories and Genetic Clinics.

Appropriate Authority
The Central Government under Section 17 has been given power to appoint one
or more Appropriate Authority for each Union and the State will appoint such
authority for the whole of the State or part of it for fulfilling the purposes of the
Act, having regard to the intensity of the problem of prenatal sex determination
leading to female foeticide.

The functions assigned to the Appropriate Authority are:

1) to grant, suspend or cancel registration of a Genetic Counselling Centre,
Laboratory or Clinic;
2) to enforce standards prescribed for such Centres, Laboratories or Clinics;
3) to investigate complaints of breach of the provisions of this Act;
4) to seek and consider the advice of the Advisory Committee on applications
for registration and on complaints for suspension or cancellation of
registration.

26

I
Advisory Committee Violence Against Women -
Dowry, Rape and Female
The Central or State Government shall constitute an Advisory Committee for Foeticide
each Appropriate Authority to aid and advise the Appropriate Authority in the
discharge of its functions.

The Advisory Committee, according to Section 17(6), shall consist of: -

1) Three medical experts who may be gynaecologists, obstetricians,
paediatricians and medical geneticists;
2) one legal expert;
3) one officer from the department of information and publicity of the State
GovernmentfUnion Territory;
4) three eminent social workers, and at least one out of these three to be from
a women's organisation.

Applications for registration or any complaint for suspension/cancellation of

registration shall be considered by the Advisory Committee either on the request
of the Appropriate Authority or on its own.

Registration of Genetic Counselling Centre, Laboratory or Clinic

Under Section 18 of the Act, every Genetic Counselling Centre, Laboratory or
Clinic must be registered under the Act before its commencement. No person
shall open any centre unless such registration is made separately or jointly. The
application for registration is made to the Appropriate Authority, who, after
holding an inquiry and satisfying itself regarding -compliance with the
requirements and also having regard to the advice given by the Advisory
Committee, may grant a certificate of registration under Section 19. If after inquiry
and affording opportunity of being heard and for reasons to be recorded, it is
found that the requirements have not been complied with, the Appropriate
Authority may reject the application for registration.

The certificate of registration has to be renewed as per the manner prescribed

and has to be displayed by the Genetic Counselling Centre, Laboratory or Clinic.

Cancellation of Registration
The Appropriate Authority is vested with powers under Section 20 to cancel or
suspend a registration if it is found that such a centre has misused diagnostic
techniques.

The Appropriate Authority may issue a show-cause notice to a centre as to why

its registration should not be suspended or cancelled for reasons mentioned in
the notice. The action against the centre may be on:

1) a complaint, or
2) suo motu.

If after the advice of the Advisory Committee and after giving the offender a
reasonable opportunity of being heard, the Appropriate Authority is satisfied
that there has been violation of the provisions of the Act, it may suspend or
cancel the registration as it may deem fit. If it is required in public interest the
Appropriate Authority may also suspend the registration without notice.
27
Offences Against Women Appeal Against Cancellation of Registration
and Dalit
An appeal can be made against the order of suspension or cancellation under
Section 21, within thirty days to:

1) Central Government, or
2) State Government whichever is appropriate.

Prohibition of Advertisement Relating to Sex Determination

Section 22 of the Act provides that, no person, organisation or Genetic Centre
should advertise in any form facilities available for prenatal determination of
sex at such centres or laboratories. Therefore, no publicity can be given as to the
existence or availability of the facility. Publicity includes publishing or distribution
of notices, circulars, labels, wrappers or other documents and includes visible
representations made by light, sound, smoke or gas.

If an advertisement is given in contravention of the above provision, the same is

punishable with imprisonment up to 3 years or with fine up to Rs 10,000.

Offences and Penalties

The seriousness of the offences committed under this Act is reflected by Section
27 which makes every offence under this Act cognizable, non-bailable and non-
compoundable. Section 28 of the Act specifies that no court other than that of a
Metropolitan Magistrate or Judicial Magistrate of the First Class shall try any
offence under this Act. These courts shall take cognizance of offences under the
. 'Act only on complaint made by:

1) the Appropriate Authority or any officer authorized by the Central or State

Government, or
2) a person who has given not less than 30 days notice of offence to the
Appropriate Authority and of his intention to make a complaint.

Penalties have been provided for the violation of the Act by Genetic Centres or
Laboratories and the persons seeking aid of such centres and companies.
Notwithstanding anything in the Indian Evidence Act it has been laid down in
Section 24 that unless the contrary is proved, the court shall presume that a
pregnant woman was compelled by her husband or relative to undergo prenatal
diagnostic tests and such person shall be liable for abetment of the offence. Thus,
special protection has been given to a pregnant woman taking into consideration
the fact that for a mother her child is important and not its sex.

If the Appropriate Authority has reasons to believe that an offence is being

committed under the Act, power to search and seize records at all reasonable
times has been conferred. It has also got the power to examine any record, register,
document, book, pamphlet, advertisement or any other material object found
therein. Such acts have been protected by the Act under Section 31 if taken in
good faith.

Power to make rules

The Act confers power on the Central Government to make rules for carrying
out the provisions of the Act. The rules may provide for, inter alia, the minimum
qualifications of persons employed at Genetic Counselling Centres or
28
 1
Laboratories, facilities, equipments and other standards to be made available by Violence Against Women -
Dowry, Rape and Female
these centres, the form in which. consent of a pregnant woman has to be obtained Foeticide
under Section 5, the form and manner in which application has to be made for
registration, manner in which seizure of documents shall be made and the manner
in which the seizure list shall be prepared.

The Board has also been granted powers to make regulations with the previous
sanction of the Central Government. The Rules and Regulations so made shall
be laid before each House of Parliament while it is in session.

Recently, PNDT Act and Rules have been amended in 2002 keeping in view the
emerging technologies for selection of sex before and after conception and
problems faced in the working of implementation of the ACT and certain
directions of Hon'ble Supreme Court after a PIL was filed in May, 2000 by
CEHAT and Ors, an NGO on slow implementation of the Act. These amendments
have come into operation with effect from 14th February, 2003.

Following provisions have been made for the purpose by Amendment Act of
2002-
a) Mobile vans which used to provide door to door service of sex selection
. have been banned by adding an explanation to Section 2(d) of PNDT Act.
Now the term 'Genetic Clinic' also includes a vehicle, where ultrasound
machine or imaging machine or scanner or other equipment capable of
determining sex of the foetus or a portable equipment which has the potential
for detection of sex during pregnancy or selection of sex before conception,
is used.

b) The person conducting ultrasound on a pregnant woman is required to keep

a complete record thereof in the clinic in the manner prescribed (proviso to
Section 4(3)).

c) Sex selection on a woman or a man or on both or on any tissue, embryo,

conceptus, fluid or gametes destined from either or both of them is prohibited
(Section 3-A).

d) Sale of any ultrasound machine, or imaging machine or scanner or any other

equipment capable of detecting sex of foetus to any Genetic Counselling
Centre, Genetic Laboratory, Genetic Clinic or any other person not registered
under the Act is prohibited (Section 3-B).

e) No person including the person conducting pre-natal diagnostic procedures

shall communicate to the pregnant woman concerned or her relatives or
any other person the sex of the foetus by words, signs or in any other manner
(Section 5(2)).

f) Permission for the use of pre-natal diagnostic techniques for the purpose of
detection of specific genetic disorders or abnormalities can not be given
unless the person qualified to do so is satisfied for reasons to be recorded in
writing (Section 4(3)).

g) Act expressly prohibits selection of sex before or after conception, by any

means (Section 6(c)).

h) Registration of any medical practitioner who contravenes any of the

provisions of the Act or rules made there under may be suspended or his 29
Offences Against Women name may be removed from the register of the State Medical Council
and Dalit
concerned for a period of five years or permanently as the case may be, on
the report of appropriate authority (Section 23(2».

The present Act hopes to be much more stringent in nature and endeavours to
control sex selection of the foetus even at the pre-conception stage. But it will be
too early to comment on its effectiveness to control female foeticide in India.

It has already been pointed out that no legislation can be effective however
stringent it may be unless it is socially acceptable. Female foeticide, too, cannot
be checked until gender biasness remains in the society

B) Judicial Concern

Activists through intervention of the Supreme Court are compelling State

Governments to initiate action against ultrasound centres encouraging female
foeticide under the Pre-Natal Diagnostic Techniques (Regulation and Prevention
of Misuse) Act, 1994.

Expressing concern over this issue the Supreme Court in CEHAT v. Union of
India" moved in to stop illegal sex determination and directed all States to
confiscate ultrasound equipment from clinics that are being run without licences.
The Health Secretaries of Punjab, Haryana, Delhi, Bihar, Uttar Pradesh,
Maharashtra, Gujarat, Andhra Pradesh, Kerala, Rajasthan and West Bengal were
present to explain the steps taken to implement the Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994.

Supreme Court directed the State Governments to take immediate action if such
machines were being used in clinics without licence. The court said that the
machines are to be seized and sealed for the time being and the authorities should
not grant certificate of registration if the application form is not complete.

The Court also asked She manufacturers of ultrasound machines - Philips,

Symonds, Toshiba, Larsen and Toubro and Wipro Ge - to give the names and
addresses of the clinics and persons in India to whom they sold these machines
in the last five years "This," the court said, "would help the government find out
whether these clinics or persons were registered."

Again in a resumed hearing the Supreme Court warned that health secretaries of
States failing to implement its orders banning sex determination of foetus would
be required to be present before the court in the next hearing.

Shocked at the slackness of the Union and the State Governments, the Supreme
Court in CEHATv. Union of India" again asked the authorities to file within six
weeks status reports regarding implementation of Pre-Natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994.

It asked the authorities to implement the Act and prosecute clinics, centres and
laboratories which aid and abet identification of the sex of the foetus illegally.

When counsel for certain States said that the authorities have issued warnings to
several such unregistered centres having ultrasound facilities, the Bench expressed
surprise and wondered "whether the implementing authorities are aware of law?"

50 (2001) 5 SCC 577.

30 51 (2001) 5 SCC 577.
"The Act provides for prosecution and not warning. Authorities under the Violence Against Women -
Dowry, Rape and Female
provision of the Act are not empowered to issue warnings and allow these centres Foeticide
to continue their illegal activities."
It also rebuked the Union Government for not setting up an Appropriate Authority
to implement the Act. The court remarked that it should have set up the authority
five years ago.

It is the attitude of the government towards a crime which hits at the dignity of a
woman even before conception. There has to be a concerted effort by all to stop
this inhuman treatment of the female foetus. By the intervention of the Apex
Court, prosecutions have been launched against the offenders but, in all cases, it
is the will, to protect the dignity of women which will ultimately succeed.

In CEHAT v. Union of India", further directions were issued by the Supreme

Court. The Centre and State Governments were directed to issue advertisements
to create awareness in the public that there should not be any discrimination .
between male and female child, and to publish annually the reports of appropriate
authorities for the information of the public. National Monitoring and Inspection
Committee is to continue to function for the effective implementation of the
Act. Certain States were directed to appoint State Supervisory Boards and multi-
member appropriate authorities.

Self Assessment Questions

5) Discuss female foeticide along with factors responsible for it. Whether
PNDT Act has been successful in curbing female foeticide?

6) Explain offences and penalties enumerated under PNDT Act as amended

up to date.

12.7 SUMMARY
• Violence against women is nothing but the infringement of most fundamental
human rights.
• Violence against women varies from domestic abuse, female foeticide, dowry
death, molestation and rape to child marriages and female circumcision.

52 (2003) 8 SCC 398. 31

Offences Against Women • Demand for dowry is one of the major factors responsible for domestic
and Dalit
violence, despite legislation, dowry harassment and dowry deaths are
increasing every year among all social categories.
• The legislature introduced stringent provisions under the Section 304B, IPC
and Section 113B Evidence Act in 1986 to deal with the offence of dowry
death.
• The Dowry Prohibition Act was introduced in 1961 to fight the menace of
dowry and it has been amended twice in 1984 and 1986.
• Section 2 of Dowry Prohibition Act 1961 defines dowry, it means property
or valuable security give or agreed to be given in connection with the
mamage.
• The Act was amended in 1986 to make it even more stringent. The fine
increased to Rs. 15,000. The burden of proving the offence is shifted to the
accused and dowry has been made into a non-bailable offence.
• According to the National Crime Records Bureau, an increase of 3.5% has
been noticed in rape cases in 2008 (20,737cases) over 2007 (21,467cases)
under Sec. 376 IPC.
• The offence of rape is defined in Chapter XVI of the IPC. It is an offence
affecting the human body. Section 375 defines rape and 376 punishment for
rape. Criminal Law (Amendment) Act, 1983 introduced several new sections,
namely, 376-A to 376-D defining custodial rape.
• In the exception to Section 375, IPC, sexual intercourse by a man with his
own wife, the wife not being under fifteen years of age, is not rape. Marital
rape is now an offence in the USA, Sweden, Denmark, Australia and the
U.K. though not in India.
• It has been judicially recognized that mere Penetration is enough for the
offence of rape and absence of any injury does not mean consent on the part
of woman.
• Section 114-A of the Indian Evidence Act provides for presumption as to
absence of consent on the part of woman.
• Unchastity of woman cannot be a defense in case of rape for the perpetrator
of crime.
• In State of Punjab v. Gurmit Singh (1996), it was held that unless there are
compelling reasons which necessitate looking for corroboration of victim's
statement, the Courts should find no difficulty in acting on the testimony of
a victim of sexual assault alone to convict an accused.
• Section 228-A prevents social victimization or ostracism of the victim of a
sexual offence. publishing or making known the identity of a rape victim is
an offence under Section 228-A of the Indian Penal Code, 1860. Trial for
rape victims is to be held in camera.
• With Sakshi v. Union of India, the National Commission for Women and
the other organizations, the Law Commission in its 172nd report
recommended to the Government of India that the law relating to 'rape' be
made gender neutral, wider and more comprehensive.
• Criminal Law Amendment Bill 2010 aims to redefine the word rape as
'Sexual Assault' under Section 375 IPC.
32
• Prenatal diagnostic techniques were evolved exclusively for detection of Violence Against Women -
Dowry, Rape and Female
genetic and other congenital disorders. Nevertheless, in India, ever since Foeticide
their origin they are being misused mainly for sex determination purposes
leading to sex selective abortions.
• According to National Crime Records Bureau a total of73 cases of Foeticide
were reported in the country during 2008.
• Medical Termination of Pregnancy Act, 1971 provided a licence to every
registered medical practitioner to terminate pregnancy whether it was a fit
case within the exception or not.
• Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)
Act,1994 prohibits determination and disclosure of the sex of foetus. Act
prohibits any advertisements relating to pre-natal determination of sex and
prescribes punishment for its contravention.
• Every Genetic Counselling Centre, Laboratory or Clinic must be registered under
the Act. The Appropriate Authority is vested with powers to cancel or suspend
a registration if it is found that such a centre has misused diagnostic techniques.
• Recently, PNDT Act and Rules have been amended in 2002 keeping in
view the emerging technologies for selection of sex before and after
conception.
• In CEHAT v. Union of India (2003) 8 SCC 398, Supreme Court issued
directives to the government of India to take measures for combating female
foeticide.

12.8 TERMINAL QUESTIONS

1) What amendments have been made in Dowry Prohibition Act, 1961? What
measures would you like to suggest to make it more effective?
2) Explain the role played by court, NGO and Law Commission of India in
redefining 'Rape Laws' to save children from sexual abuse.
3) Discuss in detail important provisions of PNDT Act, 1994.

12.9 ANSWERS AND HINTS

Self Assessment Questions
1) Violence against women is not limited to mere physical but also extends to
sexual and psychological violence occurring in the family, including
battering, sexual abuse of female children in the household, dowry related
violence, marital rape, female genital mutilation etc. Refer to Section 12.3
of the unit.
2) Section 2 of Dowry Prohibition Act 1961 defines dowry, it means, property
or valuable security give or agreed to be given in connection with the
marriage. In criminal law stringent provisions have been introduced under
Section 304B, IPC and under Section 113B Evidence Act in 1986 to deal
with dowry deaths. Refer to Section 12.4 A of the unit.
3) A man commits the actus reus of rape if he has unlawful sexual intercourse
with a woman who at the time of intercourse does not consent to it. A woman
cannot be an accomplice in an offence of rape. Refer to Section 12.5 A of
the unit for detail.
33
Offences Against Women 4) Before the case law developed there was a tendency to regard marks of
and Dalit
physical injury as the only proof of want of consent. In 1983 a new Section
114-A was inserted under the Indian Evidence Act to provide for presumption
as to absence of consent in rape cases. Refer to case law given in Section
12.5 C of unit.

5) Refer to Section 12.6 of the unit.

6) Refer to Chapter VII of the PNDT Act, 1994.

Terminal Questions
1) Dowry Prohibition Act, 1961 has proved to be a teeth less Act though
amended twice in 1984 and 1986. The failure of prosecution in dowry cases,
leniency of judiciary in awarding punishments to dowry offenders and
abnormal delay in trial procedure have been fatal for the Act. For detail See
. Section 12.4

2) Refer to case of Sakshi v. Union of India and See Section 12.5 D of the unit.

3) Refer to Section 12.6 A of the unit.

12.10 REFERENCES AND SUGGESTED READINGS

1) Rao, Mamta, "Law Relating to Women and Children", Eastern Book Co.,
Lucknow, 2005.
2) 172nd Report of Law Commission of India on Review of Rape laws, 2000.
3) Draft of Criminal Law Amendment Bill 2010.
4) Pre Conception and Pre-Natal Diagnostic Techniques (Regulation and
Prevention of Misuse) Act,1994 (Bare Act, Latest).
5) Bhatnagar, J.P., "Law Relating to women and Their Rights", New Delhi,
Ashoka Law House, 2000.
6) Misra, Preeti, "Domestic Violence-Legal Control and Judicial Response",
Deep & Deep Publications Pvt. Ltd., New Delhi, 2006.
7) Gandhi, B.M.,"Indian Penal Code", Eastern Book Co., Lucknow, 2005.
8) Ratan Lal & Dheeraj Lal, "Indian Penal Code", Wadhwa PUblications, New
Delhi, 2005.
9) Saxena, Shobha, "Crimes Against Women and Protective Laws", Deep &
Deep Publications Pvt. Ltd., New Delhi, 1995.
10) Ahuja, Ram, Violence Against Women, Rawat Publications, Jaipur, 1998.
11) Sinha, Niroj (ed.), Women and Violence, Vikas Publishing House, New
Delhi, 1989.
12) Reddy, G.B., Women and the Law, Gogia Law Agency, Hyderabad, 2001.

See Case Laws:

Shobha Rani v. Madhukar Reddy (1988)1 SCC 105

Tukaram v. State of Maharashtra (1979) 2 SCC 143: 1979 SCC (Cri) 381.
CEHAT v. Union of India, (2003) 8 SCC 398.
Sakshi v. Union of India ,(1996) 6 SCC 591: 1999 SCC (Cri) 1159
34