Handbook on Womens Rights

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ga ayaao

/ rajya maihlaa A aYT

KNOW YOUR RIGHTS Towards legal

EMPOWERMENT of

WOMEN

Adv. Susieben Shah

Ms. Shomita Biswas

Chairperson

Member Secretary

Maharashtra State Commission For Women

Members: Adv. Vijaya Bangde | Smt. Chitra Wagh | Dr. Asha Mirge | Smt. Asha Bhise | Smt. Usha Kamble | Smt. Jyostna Vispute

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KNOW YOUR RIGHTS Towards legal

EMPOWERMENT of

WOMEN Adv. Susieben Shah Chairperson Maharashtra State Commission For Women

Ms. Shomita Biswas Member Secretary

Members: Adv. Vijaya Bangde | Smt. Chitra Wagh | Dr. Asha Mirge | Smt. Asha Bhise | Smt. Usha Kamble | Smt. Jyostna Vispute

Foreword The main purpose behind publishing the book "Know your Rights" was primarily to make the laws simpler and bring clarity in understanding of such laws to the women living in both urban and rural setup. Complexities of laws have always perplexed an ordinary woman and many times due to this, in a way these laws remained ineffective and inaccessible to them. The Maharashtra State Commission for Women has made this endeavour to make laws related to women easier to comprehend through simple question-answer methodology. As this hand-book gives answer to most of the frequently asked questions by women facing various problems, it can also be used by counselors and NGOs to whom these women in distress generally approach. The Maharashtra State Commission for Women would extend its sincere thanks to Advocate Ms. Flavia Agnus, Director, Majlis for having prepared this hand book for the Commission.

Shomita Biswas, Member Secretary, Maharashtra State Commission for Women

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Greetings from Maharashtra State Commission for Women. A woman & her strengths are manifested in her different avatar s as a mother, daughter, wife, sister, widow, live in partners, as a minor girl, bride, concept of streedhan or bride of an NRI. However, while interacting with women from various sections of society, social workers, para-legals, teachers, students, housewives, I felt they lacked knowledge about their rights and therefore remed ies available to them. This book is an effort to reach out to them. "KNOW YOUR RIGHTS" is an essential resource book published with a view to enumerate the rights of a woman in a simple lucid manner in a friendly question\answer format. The topics covered provide an insight on women’s rights under the constitution and the functioning of the courts as well. I sincerely hope that all women will find this book useful whethe r they are working in a corporate environment, government office, or they are housewives, domestic workers or agricultural labourers. The book gives information about the basic rights of women in India. It is not a substitute for legal advice. Let us "KNOW OUR RIGHTS" as knowledge is power. Knowledge is empowerment.

Adv. Susieben Shah, Chairperson, Maharashtra State Commission for Women

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Dear Friends,


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CONTENTS I. Rights of Women as Citizens of India

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a. Introduction - An overview of our Constitution b. The Principles of Equality and Liberty Enshrined in our Constitution c. Our Institutions of Governance d. Legal Remedies of Public Interest Litigation and Habeas Corpus e. Heiararchy of Courts f. Explanation of some Legal Terms in Criminal Law

II. Matrimonial Rights of Women

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a. Right to live in the Matrimonial Home b. Right to claim Maintenance for self and children c. Protection under the Domestic Violence Act (Civil) d. Protection Against Dowry Harassment e. Right to file complaint against husband and/or in-laws for causing cruelty f. Rights against Husband's Bigamy / Adultery g. Matrimonial Laws and Remedies at a Glance h. Annulment of Marriage and Restoration of Conjugal Rights I. Decree of Divorce or Judicial Separation j. Use of surname after marriage and after divorce

III. Rights of Mothers to Custody of Children a. Situations where custody of children become contentious and precautions which women must take b. The Principle, the best interest of the child is paramount c. Rights of a non-custodial Parent

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IV. Rights of Muslim Women

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a. Right to Stipulate conditions in a Marriage Contract (Nikahnama) b. Rights Upon Marriage c. Pronouncement of a Valid Talaq and Rights Upon Divorce d. Right to Custody of Children and Property Inheritance

V. Rights of women in Invalid Marriages or Live-in 47 Relationships

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a. Rights of women if conditions of marriage have been violated or essential ceremonies have not been performed b. Registration of a Hindu Marriage c. Rights of children born within invalid marriages

VI. Rights of Women in 'NRI' marriages

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a. Problems faced by women in 'NRI' marriages b. Precautionary measures that must be kept in mind at the time of marriage c. Directions issued by the Ministry of Overseas Indian Affairs

VII. Rape and Sexual Offences a. Misconceptions, Precautionary Measures and Support Schemes b. Steps involved in Investigating a Rape Case c. Procedures Involved in a Rape Trial d. Protection to Victims during Investigation and Trial e. New Definitions of Rape and Sexual Offences f. Manodhairya Scheme for Financial Assistance

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VIII. Women's Right to Property


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a. Difference in the Character of Hindu and Muslim Property b. Property Rights of Muslim Women c. Property Rights of Hindu Women d. Concept of Matrimonial Property e. The Daughter's Rights to Reside in her Parent's home

IX. Rights of Working Women

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a. Special Protection to Women under the Labour Laws b. Rights under the Equal Remuneration Act c. Rights under the Maternity Benefits Act d. Preventing Sexual Harassment at Workplace

X. Reproductive Rights of Women

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a. Women's Right to Abortion b. Regulation of Sex Selective Abortions - PreConception and Pre-Natal Diagnostic Techniques Regulation Act (PCPNDT Act), 1994 c. Prohibition of Child Marriage Act, 2006 d. Rights of Surrogate Mothers and Children born in surrogacy e. Rights of Transgender Persons

XI. Special rights of women in the Criminal Justice System a. Explanation of Some Legal Terms of Criminal Law b. Rights of Women during Arrest and Detention c. Protection to Girls arrested during raids under Immoral Traffic (Prevention) Act

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Chapter I. Rights of Women as Citizens of India

a. Introduction - An overview of our Constitution The Constitution of India is a fundamental legal document which lays down the foundation for the governance for our country. It is a democratic form of government based on 'one person one vote' where people have the power to elect our Parliament and state legislatures, who are then entrusted with the power to rule us. It lays down principles and framework for governance and assigns roles to different institutions such as the executive, legislature and judiciary. The Constitution brought in a silent revolution as it laid down the principle that all people are equal before the law, and all laws and courts will treat everyone equally and will not discriminate against anyone. This helped to dislodge the caste system in the country and also to bring in changes in the existing system of feudal landlords in villages and the prevalent practice of bonded labour. Everyone irrespective of caste or social status was given a right to vote and elect a government. This was a major change which brought about a social revolution and paved the way for a more equal society. In addition, Parts III and IV which deal with Fundamental Rights and the Directive Principles of state policy, gave additional safeguards to people at the margins - women, children, scheduled castes and scheduled tribes. It protected important rights of equality, non discrimination, freedom, liberty, and protection to minorities. In order to increase political participation and improve economic status, it provided for reservation for women, children and marginalized communities. Further, it established the principle of rule of law. It protected citizens from arbitrary and excessive powers of the police, judiciary and the government. If Fundamental Rights are violated, the Constitution also gave the remedy to approach the Supreme Court or the High Court for striking down any law or rule that violated the fundamental rights of a citizen.

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b. The Principles of Equality and Liberty Enshrined in our Constitution What is meant by "Equality" under the constitution? One of the main pillars of the Indian Constitution is the principle of equality. Article 14 guarantees equality before the law and equal protection of the law to all its citizens. Articles 15 (1) and 16 (2) expand this principle further and prohibit discrimination on the basis of religion, race, caste, sex or place of birth. This ensures that there is no discrimination between men and women, upper castes and lower castes, rich and poor and all will be treated as equals before the law and will be provided equal protection of the law. Hence, if any law is passed or any action is taken to prevent women from taking up employment in government or public sector undertaking, such law or action by the relevant authority can be struck down by the Supreme Court or a High Court, as being against Constitutional provisions. Similarly paying women lower salaries for doing the same work even when they are qualified for it, is discriminatory and against the Constitutional guarantee of equality. Not employing Dalits or Muslims in certain categories of government jobs would also amount to discrimination. Why are special and additional provisions incorporated for the benefit of marginalized sections like women, children SC\ST? An important part of the scheme of equality is the special protection awarded by the Constitution for the protection of marginalised sections. Articles 15(3) (4) and 16 (3) (4) help to further strengthen the concept of equality by permitting the state to make special provisions for securing the rights of marginalized sections (women, children, schedule castes and schedule tribes) in order to help them to overcome the discrimination they have suffered for many centuries and to help them to become equal to others. This is called “positive discrimination”.

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This has helped the state to enact special laws for women and children such as the provisions for maintenance of women and children, protection against domestic and sexual violence, the Maternity Benefits Act, special protection for women under all labour laws, a special law to prevent sexual harassment at workplace, or reservations for women, scheduled castes or scheduled tribes for jobs and in elected bodies. Similarly a law to prevent atrocities against scheduled castes and scheduled tribes does not violate the provision of equality as it is meant to give additional protection to certain backward sections. These are all beneficial legislations meant to improve the status of marginalized people. Therefore while discrimination against women has been prohibited, there is nothing to prevent the state from making laws to provide them with extra facilities or for taking precautions to prevent their exploitation or abuse. What is meant by liberty and how is it protected? Articles 20-22 guarantee the right to life and liberty. They protect a citizen from the arbitrary power of the police to arrest a person and detain him in police custody. A citizen cannot be punished for the same offence twice and the punishment must be in accordance with the gravity of a crime. If found guilty, the person can be given the maximum punishment as mentioned in the Indian Penal Code and not more. The police cannot subject an arrested person to torture or treat him in an inhuman way. The accused must always be granted a fair trial and the opportunity to defend himself against all charges against him/her. The state must provide legal aid if the person cannot afford a private lawyer, without which the trial in court cannot proceed. These are some basic rights of people against use of excessive powers of the state. Right to life also includes the right to live in dignity, the right to education, the right to safety in public places, the right to earn a livelihood sufficient for a decent living, and the right to privacy. It also includes reproductive rights i.e. the right to become pregnant, to bear children, to decide the number of children, the right to abort unwanted pregnancy, to be or not to be a parent, to

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use or not use contraceptives, to be or not to be sterilized, etc. A mother's right to preserve her own health is superior to the right of an unborn child. The right to privacy includes the right to be free from unwarranted government intrusions in matters which are very personal and private. For instance in an interview for a job, a woman cannot be asked the date of her last menstrual period. What is the difference between fundamental rights and directive principles of state policy? If a fundamental right is violated, a citizen who is affected (or anyone else), can, in the public interest approach a higher court and get it struck down. The Directive Principles are not binding on the state, but these principles must reflect in all state policies. However, if these are violated, there is no right to go to court and get it struck down.

c. Our Institutions of Governance What are the three main pillars of governance? What role is prescribed to each of them under the Constitution? The three important institutions of governance are – the Parliament (Legislature), the executive and the judiciary. The Parliament which is a body of elected representative is entrusted with the task of making the laws which govern us. This is the political wing of governance. Members of the Parliament are chosen by citizens through elections based on the principle “one person one vote”. Hence we say that we are governed by a Parliamentary democracy. While the vote was denied to women in many developed countries for a long period and women had to struggle for their right to vote, in India, the Constitution, from its inception, secured women the right to vote. The Executive is generally referred to as the 'state' or the 'government' and is entrusted with the task of administration. This is the arm that will implement the laws passed by the Parliament.

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The judiciary has the task of protecting the rights of citizens and ensuring that the laws, and government action do not violate the fundamental rights of citizens. So it is called the “watch dog” of the Constitution. The judiciary is independent of the Parliament and the Executive so that it can function without fear or hindrance from the other two arms of governance. If the police misuse their power against any citizen and violate their fundamental rights, the judiciary can step in to take strict action against the police. If the Parliament passes a law which is unjust and is against the Constitutional principles of equality, freedom or liberty of a particular section of people, the courts have the power to strike it down as “unconstitutional”. What is meant by the “Panchayati Raj Revolution”? In 1993 through the 73rd and 74the amendment to the Constitution an important principle of reservations for women in local panchayats and municipalities was introduced. Initially the reservation was 33% but later it was increased to 50%. This has helped women to contest elections to local bodies. This has brought in a silent revolution and has greatly helped to improve women's political participation in the country. This is called the “Panchayati Raj Revolution”. Though the Bill to grant 33% reservation for women in state legislative assemblies and in Parliament was introduced in Parliament several times, due to opposition to it from various political parties, this could not be enacted. Hence the percentage of women in these bodies has remained consistently low with representation of only around 10% women.

d. Legal Remedies of Public Interest Litigation and Habeas Corpus What is Public Interest Litigation (PIL)? How can it be used to protect the rights of marginalized people? Our constitution gives all citizens the right to approach the court when their fundamental rights are violated. But in many instances, the person or class of people whose rights are violated, due to their poverty, illiteracy and socially

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disadvantaged position cannot approach the court to explain their plight as they lack the knowledge and resources to do so. Many a times social organizations (a local NGO etc.) or a journalist may take the case and write a letter to the Supreme Court or file a petition in the Supreme Court on behalf of the person whose rights are violated. This procedure of allowing any other person or organization to bring the fact of gross violation of rights of a disadvantaged group of persons or an individual is called Public Interest Litigation. The court verifies if it is done for personal gains or to advance a genuine cause. Sometimes the courts have also acted on the basis of a newspaper report and have asked the government to explain the situation. If any violations are noticed by the superior court, strict action will be taken. What is Habeas Corpus? How does this remedy protect the rights of people? Many a times when a person is arrested by police, the family gets no further news about the person and sometimes the person dies in police custody due to torture. So when details of a person who is arrested by police are not known, the relatives or friends can approach the High Court or the Supreme Court seeking the intervention of the court to direct the police to produce the missing person in court. The exact meaning of these Latin words is “produce the body” and the actual meaning is to produce the person physically in court (or his body if he has been killed in police custody). This is a very powerful weapon in the hands of the people against police atrocities.

e. Hierarchy of Courts How are rights enforced? The rights located in the Constitution and in various laws are enforced by our courts. The courts interpret the laws and apply them to the facts of each case. The Constitution lays down the hierarchy of courts and also the role and functions of each court. The lower courts are divided into civil and criminal. Appeal from a lower court lies with court immediately above it. Most states

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have a High Court. Appeal from High Courts lie with the Supreme Court which is the highest court in India. What is the hierarchy of our courts? The following diagram shows the hierarchy of the courts in our country. Supreme Court New Delhi High Courts Highest Court at State and UT Level (There are total 24 High Courts In India ) Calcutta High Court

Gujarat High Court

Bench in Bombay

Bombay High Court

Bench in Aurangabad

Madras High Court

Bench in Goa

Uttar Pradesh Court

Bench in Nagpur

At District Level

Civil Courts

Criminal Courts

Court of Sessions District Court or City Civil Court (in Mumbai)

Judicial Magistrate - First Class (JMFC) Metropolitan Magistrate (MM) (In Metropolitan Cities)

Civil Judge Sr. Division Judicial Magistrate - Second Class

Civil Judge Jr. Division

Executive Magistrate

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f. Explanation of some Legal Terms in Criminal Law The criminal proceedings start with the filing of a complaint. The power of the police officer to investigate the crime is based on whether the offence is of a serious type or a lesser serious type. Accordingly the offences are categorized as bailable and non-bailable, cognizable and non-cognizable and compoundable and non-compoundable. Difference between a bailable and a non-bailable Offence: If a person is arrested for a bailable offence, the police can immediately release him on personal surety. He/she does not have to be produced in court. Non-bailable offences are of a more serious type, which invoke higher punishment (imprisonment for a period of three or more years). In such cases the police does not have the power to grant bail. Serious crimes such as rape, murder, dowry death, cruelty to wives, etc. come within its purview. However, even in these cases, when the accused person is produced before the magistrate, he/she has a right to file an application for bail, and the magistrate has the power to grant him/her bail. If he/she does not have a lawyer the person is entitled to legal aid for the purpose of making this application. If the person is apprehensive that he will be arrested for a criminal offence, he/she file an application for anticipatory bail in advance and avoid the arrest for a limited period of time. If anticipatory bail is granted, even if an FIR is registered, the police will investigate the matter without arresting the accused. Cognizable and Non-cognizable Offences Offences are also further categorized as cognizable and non-cognizable. The following table provides the difference between these two types of offences

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Difference between Cognizable and Non-cognizable: Category

Cognizable

Non-cognizable

Seriousness of offence

When it is a serious offence

When it is a less serious offence

Police Investigation

Police will investigation

Police can investigate only by the order of a Magistrate

Register for Recording

FIR Register

NC Register

Document copy you will get

FIR (First Information Report)

NC complaint

Arrest

Accused / accomplice will be arrested without a warrant. They can then apply for bail. Bail will be granted at the discretion of the magistrate / judge, depending upon the gravity of the crime, the chances of intimidating the witnesses or the type of influence the accused person has in the area

Accused / accomplice will not be arrested. Police may call the accused and warn him.

Outcome

The Police will investigate It creates evidence of the and collect evidence. If harassment the woman is t h e r e i s s u f f i c i e n t facing. evidence, they will file Charge Sheet and trial will commence.

Jurisdiction

In a cognizable offence the jurisdiction of the police station is immaterial to get a complaint registered under the FIR register.

In order to get a noncognizable offence registered it is essential to ensure that the crime has taken within the jurisdiction of the police station.

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Offences such as rape, sexual harassment of women or violating their modesty, dowry death, abetment to suicide, cruelty to wives, causing grievous hurt, etc. are all cognizable offences, where the police are bound to register the FIR and start the investigations. If an offence is non-cognizable, then the police cannot start the investigations. The person would have to approach the magistrate court and seek directions for the police to start the investigation. Simple assault, abuse, etc. come within this category. The main reason why an NC complaint is filed is to create a record (proof) of violence which will help the person in case the person has to file a criminal complaint later. For instance, if the husband is abusive or threatens to throw the wife out of the house, she can approach the police station and register an NC complaint. Later if she want to file for divorce on the ground of cruelty, the NC complaint will provide the proof that the woman was also subjected to cruelty and abuse earlier. Compoundable and Non-compoundable Offences The criminal law permits some minor offences to be “compromised” or “settled” between the parties. A detailed list of these is provided under Section 320 of Cr,.PC. These are termed as “compoundable” offences. However, major offences such as rape, murder, decoity, dowry death, cruelty to wives, etc. cannot be compromised between the parties. Only the higher courts, i.e. the concerned High Court or the Supreme Court has the auhority to compound these offences. Hence these are termed as “non-compoundable” offences.

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Chapter II. Matrimonial Rights of Women

Introduction In India, upon marriage, women leave their parental homes and live in the home provided by the husband or by his family members. This home is called her matrimonial home. (In fact traditionally it is believed that after marriage a woman has rights only in her husband's home and not in her parental home, though legally the position is now changed and today women have a right of residence in both parental as well as the matrimonial home.) The contract of marriage creates a legal obligation upon the husband and his family members to provide a shelter and maintenance to the wife. In our society, a woman is perceived as a home maker, in addition to all other roles she may be required to perform. So while women have the burden of managing the house, cooking for the family, raising the children and tending to the sick, their chances of earning an adequate income to support themselves or even the chances of retaining their pre-marriage jobs are constrained. Hence when economic support is withdrawn due to a matrimonial conflict, most women are rendered destitute. The situation becomes dismal when they have the additional burden of caring for their children. Women's right to shelter and maintenance is located within this conceptual framework. There are various legal provisions which are meant to safeguard the rights of the wife in her husband's home and to ensure that she can live there with dignity and safety. The husband and his family cannot deprive her of these rights. They cannot harass a wife for dowry and inflict violence upon her. If a situation of domestic or sexual violence arises, the wife can avail of legal remedies under criminal as well as civil laws. The wife also has a right to file for divorce and opt out of the marriage. She also has a right to custody of her children.

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National Insurance Co. Ltd. vs. Minor Deepika (2009) 6 MLJ 1005 Madras High Court “The UNICEF in 2000 noted that 'unpaid care work is the foundation of human experience'. The care work is that which is done by a woman as a mother. The woman herself will be the last person to give this role an economic value. But when we are evaluating the loss suffered by the child because her mother died in an accident, we must give a monetary value to the work of a caregiver, for after all, the home is the basic unit on which our civilised society rests...". In the following sections, we shall explore these rights in a simple, questionanswer format for easy reference so everyone can understand the options which the law provides to women. Note: All women, across religions and regions are entitled to the rights discussed below, unless specifically mentioned otherwise.

a. Right to live in the Matrimonial Home What is a matrimonial home? When a woman is married, she acquires the right to live in her husband's home. This home becomes the woman's matrimonial home. Even if it is not owned by her husband and is in the name of his parents or siblings, she still has a right to reside in this house and she cannot be thrown out of this house. A widow cannot be thrown out from the house in which she was living with her husband, after her husband's death. It does not matter if the house was not owned by her husband. The term used in the Protection of Women from Domestic Violence Act (Domestic Violence Act or DV Act, for short) is “shared household”

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A shared household is where the woman resides or has resided (i.e. has left or has been thrown out) with the man in a domestic relationship [S. 2(s) of the DV Act]. It does not matter that the shared household is not owned by either the woman or the man i.e. the house is on lease / license or joint family property. This right is protected under S. 17 of the Domestic Violence Act. If she is thrown out the court can pass an order to put her back in the home. The court can also ask the respondent to provide alternative accommodation if the woman does not want to return to a violent home. How can a woman protect this right? In order to protect this right, a woman must first believe that by virtue of her marriage, she has acquired a right to reside in her husband's home and she cannot be dispossessed from this home. Most often, women lose their right to their matrimonial home because they themselves do not believe that they have a right to reside there. Even when they are asked to leave the home, they must believe that they have a right to reside in the home and this right can be protected by law. This is the first step. Only when women believe this, the right can be protected by law. If there is an apprehension that she will be thrown out of this house, she must approach a magistrate's court under the provisions of the Domestic Violence Act and obtain an order of injunction to restrain her husband or his family members from dispossessing her (throwing her out) from her matrimonial home (Ss.17, 19 of DV Act). This will secure her right of residence in this house. In the event that the husband or his family members violate this order they will be liable for punishment under the Domestic Violence Act. (S.31 of DV Act). A woman will be deprived of this right only when an alternate accommodation of a permanent nature is provided for her. Until such time, her right to reside in the matrimonial home will be protected by the court.

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Caution: The term 'right of residence' cannot be construed to mean ownership rights or right to a share in the property. Women's right to property is discussed under a separate section. In India we do not have a right to matrimonial property which is owned by the husband or his family members. However, despite this limitation, the right of residence is an important right for most women, and this right is protected under the Domestic Violence Act.

b. Right to claim Maintenance for self and children What is Maintenance? The law imposes a legal obligation on the husband to provide maintenance to his wife. If he fails to provide for her, the wife can approach the court for an order of maintenance. Chaturbhuj vs. Sita Bai I (2008) DMC 22 SC (Supreme Court) “The objective of maintenance proceedings is to prevent vagrancy by compelling those who can provide support to those who are unable to support themselves and who have a moral claim to support. It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife. It gives effect to fundamental rights and the natural duties of a man to maintain his wife, children and parents who are unable to maintain themselves.” The term “maintenance” is the amount required for a decent living, including cost of food, shelter (if the same is not provided by the husband), travel, requirements of health care, educational, extra curricular and recreational expenses of children, and other sundry expenses. Who can claim maintenance? Under our law, the wife, minor children, major children who suffer from physical or mental disabilities, unmarried major daughters and aged parents are entitled to maintenance as they are unable to maintain themselves.

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Can the wife claim maintenance for her children along with herself? Yes, the wife can claim maintenance for herself and her children. If the children are living separately along with their mother, they also have an independent right to claim maintenance from their father. If a woman is working, can she still claim maintenance? Even if a woman is working, she can claim maintenance, if her husband's income is substantially more than her income and she is unable to maintain herself or her children from that income. If the husband and wife are earning the same amount, she cannot claim maintenance from him. But in such a situation, women can claim maintenance for their children. Can a woman who is living with her husband claim maintenance? Yes, if her husband is not providing her maintenance while she is living in the same house with him, she has a right to claim maintenance. Can women claim maintenance during divorce? Yes. If a woman files for divorce, in the same petition, she can also claim interim and permanent maintenance for herself and for her children. Along with this she also needs to make a separate application for interim maintenance which can be taken up at the initial stage and decided so she will start getting some maintenance while her petition for divorce is pending in the court. If her husband has filed for divorce, as soon as she received the papers, she can immediately file an application for interim maintenance which will be heard and decided first as a preliminary issue. Is a woman entitled to claim maintenance after her divorce? Yes. Even after divorce, if she has not received a lump sum amount as alimony, which is adequate to meet her expenses, she can claim maintenance from her husband until she remarries.

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If during litigation, the husband agrees to take the wife back will she still be entitled to maintenance? Usually, in order to prevent an order of maintenance being passed against him, the husband may volunteer to take the wife back or may even file proceedings for “restitution of conjugal rights”. If a woman is keen to reconcile with her husband, she may accept this offer, but if there is a history of violence, then she must exercise caution before accepting it, because once an order is passed dismissing the petition on the ground that the parties have reconciled, it will be difficult for the woman to start the proceedings all over again, as it would be deemed that she has condoned (or forgiven) the husband his ealrier acts of cruelty. Hence, it is adviseable to stipulate certain conditions or even keep the proceedings pending in the court for a few months, to ensure that the husband is sincere in his offer of reconciliation and is not doing so only to avoid payment of maintenance, before the earlier petition is withdrawn. What is the criterion to decide the amount of maintenance? The amount of maintenance awarded should be sufficient to meet the regular household expenses, children's educational, medical, recreational expenses, to pay the rent of the dwelling house, etc. It should be sufficient to meet the basic needs of a person. Here the standard of life that a person is used to is also taken into consideration. For instance if the husband is very rich and the wife is used to that life style she will be given a higher amount than a person earning a modest income where the wife is used to a modest life. Hence it is important to collect evidence to prove the husband's lifestyle and income such as type of house, area of the house, type of car or two wheeler, property details, trips to foreign countries etc. The exact amount is decided as per the income of the husband and the needs of the wife and children.

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Tips: Many a times, husbands try to show that their earnings are far less than their actual income by showing old salary slips or by hiding their additional income. So it is necessary for the wife to get all the information before approaching the court, and collect the necessary details – recent salary record, bank statements, income from business or from family property, income tax returns etc. What needs to be stated clearly if a woman wants maintenance? The application must clearly mention the following:— The date on which the husband stopped maintaining; — Details of the husband's earnings, his lifestyle, how much he spends; — Details of all the needs of the wife and children including daily expenses, groceries, rent, tuition fees, medical bills, clothes and other necessities, expenses during festivals, recreational expenses, travel expenses and any other special needs; and — If the wife has any income that also must be mentioned and then it must be stated how it is not sufficient to maintain herself and her children. Tips: If the wife's income is of casual nature, daily wage or occasional income, etc. it cannot be calculated as “income”. Hence this need not be mentioned. Income means regular income through permanent employment. The amount which is claimed for the wife and that which is claimed for each child per month must be clearly mentioned separately. Tips: For quick relief it is necessary to file a separate application for interim maintenance, along with the main application. Only then will the interim maintenance be granted. If filed under the Domestic Violence Act, it is advisable to file Form III along with Form II for interim reliefs. But since the D.V. Act is liberal, without Form III, it is still possible to ask for interim reliefs during the proceedings.

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Is it necessary to file for divorce while filing for maintenance? No. If the woman does not wish to file for divorce, she can make an application only for maintenance. This can be done under the provisions of S.125 Cr.PC or under the Domestic Violence Act without filing for divorce. Note: Section 125 of Code of Criminal Procedure (Cr.PC) is a very old provision under which a neglected wife and children are entitled to claim maintenance. Earlier only a sum below Rs.500/- could be awarded under the section. In 2001 this ceiling was removed and now there is no limit to the amount which can be claimed under this section. This is a very powerful section as the husband can be arrested if he does not comply with order of maintenance. What are the other legal provisions for claiming maintenance? Maintenance can also be claimed under all personal laws while claiming matrimonial reliefs such as divorce, judicial separation, annulment of marriage or restitution of conjugal rights. (See subsections (g), (h) and (i), later in this section). Hindu women can also claim maintenance under S.18 of the Hindu Adoption and Maintenance Act. The divorced Muslim women can seek the relief of “fair and reasonable provision” which is a lump sum amount under the Muslim Women (Protection of Rights upon Divorce) Act, 1986. This is discussed later in the chapter on Muslim women's rights.

c. Protection under the Domestic Violence Act (Civil) What is “domestic violence” under the Protection of Women from Domestic Violence Act? The term “domestic violence” under Domestic Violence Act includes physical, emotional, sexual and economic violence (S.3). The following is an explanation of these terms.

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Physical violence - beating, kicking, slapping, etc Emotional violence - abusing, using derogative words, demanding dowry, humiliating her because she does not have children or has only girl children, or because she is not good looking or she has not brought enough dowry, etc or threatening to throw her out of the house or threatening that she will not be provided any money for her or her children's maintenance, etc. Sexual violence forcing the wife to have sex when she is not in a position to have sex (e.g. during menstruation or soon after delivery/ abortion), forcing her to watch pornography, filming her nude and then circulating these video clips, threatening to bring other women into the house to have sex with them in her presence, forcing the wife to have sex with other men, etc. Economic abuse means neglecting to maintain the wife, not giving her money for her maintenance, throwing her out of the house and not providing any shelter or maintenance, not retuning her dowry, stridhan or jewellery etc. The husband has to pay for the woman's regular household expenses and for the children's expenses. If he does not pay her regular maintenance or abandons the wife, it would amount to domestic violence under this Act. What rights does this Act give women? The Act gives women the right to live a life free from violence. It protects the right to shelter in the following ways :Right to an order of protection: If there is a threat of violence, the woman can get an order of protection, restraining the husband and his family members from committing violence on her. Even if she is living in her own father's house and if she is afraid that the husband may assault her or come to her place of work and humiliate her, she can ask for a “stop order” (injunction) to restrain him from coming anywhere near her (S.18). Right to live in the same house: The husband, father-in-law or even the father of a woman / girl cannot throw her out from the house where she is living or has lived (S.19).

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Right to claim Maintenance: As explained above, the woman has a right to claim maintenance under this Act (S.20). Right to custody: No one can take away the children from the mother, not even the father. If such a threat is there, she can go to court and get an order to protect her right. If her child is taken away forcibly from her custody she can approach the police or the court to get her child back (S.21). Right to claim compensation: If the woman has suffered any harm or injury due to domestic violence she has a right to claim compensation for it under the Act (S.22). Note: The woman has the right to take with her all her belongings i.e. clothes, jewelry, valuables, money etc. This is her stridhan. She can take help to retrieve her belongings from a local NGO, the police or the court.The remedy is also available under S.19 (8) of the D.V.Act. If her husband or in laws do not return her belongings (stridhan) at the time of leaving the home, she can also file a police complaint under section 406 of the IPC. This is explained later in the section, Protection Against Dowry Harassment. Against whom can the woman get the orders under this Act? A woman can get orders under this Act against her husband, father-in-law, brother-inlaw etc. She can also get orders against the female relatives of the husband such as mother-in-law or sister-in-law, if they have contributed to causing domestic violence to the woman. Every woman can claim relief under this Act, irrespective of their religion, including Muslims as the Act stipulates that any woman can claim reliefs under this Act. The Act defines the Aggrieved Person in very broad terms as “Any woman/child facing domestic violence from an adult male with whom she shares a domestic relationship and is living/has lived within a shared household [S.2(a)].

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Who should a woman approach to file a complaint? The woman can approach the Protection Officer, a private lawyer, a legal aid lawyer or a local NGO to help her in approaching the court to protect her rights. She can also go to a police station and the police will refer her to the Protection Officer in the area. If she is injured she can go to a hospital and the hospital will help her to reach the police or the protection officer of the area. What advice should be given to the woman before she files her complaint? The woman must be advised that when she is leaving the house where she has lived with her husband or in laws, she must take with her, her belongings and valuables, her children, her documents such as her educational certificates, copy of other documents such as birth or marriage certificate, caste certificate, husband's bank pass book, or bank statement, contract of employment, etc. Caution: The woman must collect evidence before leaving or filing the complaint to support her statements. This could include medical reports of injuries, earlier complaints to police, etc. Also documents such as house papers to prove ownership of house, ration card, 7/12 extract (saat-baara utara) as proof of land ownership or income from the land, any other proof to show husband's income etc, are important to prove the husband's income. Who is a 'Protection Officer' under the Act A 'Protection Officer' (PO) is a government officer designated or appointed by the Ministry of Women and Child Development, who is entrusted with the duty of providing all kinds of support to the woman including helping her to approach the court, taking her to a shelter home if she needs shelter, taking her to a hospital if she needs medical help or helping her to access other government schemes to help women. The total number of Protection Officers in Maharashtra are around 670. This number includes the officers who are designated as Protection Officers as well

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as those specially appointed as Protection Officers. Today each district in Maharashtra has a Protection Officer who is specially appointed. How to approach a court for an order? Each time a woman is beaten and she approaches the Protection Officer, a Domestic Incident Report (DIR-Form I) is prepared. This provides a proof of domestic violence. All the necessary columns for collecting the basic information are given in this format. For instance – Name of the Victim: Name of the abuser: Relationship with him: Details of the recent incident of abuse / violence: The place where the incident occurred: Nature of injury: Previous incidents of violence: Tips: Other forms of violence faced by the woman earlier must also be mentioned to strengthen the case. For instance, if she is beaten today or yesterday but the husband has also threatened to throw her out of the house earlier, or has not been giving money for her maintenance, that must also be mentioned. Clarification: A DIR is filled every time a woman approaches a protection officer. But if she wants to approach the court, two more forms have to be filled up which are called Applications. These are also included in the DV Act as Form II and Form III. These forms along with the DIR (Form I) have to be filed in the court. If the woman has gone directly to a private lawyer, then the lawyer will prepare a detailed application and also an application for interim reliefs. In such case there is no need to approach a protection officer and obtain a DIR.

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If she has any evidence then that can also be mentioned (for instance if earlier a police complaint was filed by her or if she has gone to the hospital when she was injured due to the beating, etc.) All proofs of husband's income can be attached if the woman is seeking an order of maintenance under the DV Act. In the end, it must be clearly stated as to what type of remedies she is seeking (e.g. protection, maintenance, residence, custody of child, etc.) How long will it take to obtain an Order? This Act is supposed to provide quick reliefs. The court dates are given at short intervals. It is possible to get an interim order within a month of filing the proceedings. Though the final orders are supposed to be given within 60 days, due to technical difficulties and workload of the court, this does not usually happen. But the final order can be expected within one year of filing and an interim order can be expected at least within two months.

d. Protection of Women Against Dowry Harassment What is the meaning of Dowry? Section 2 of the Dowry Prohibition Act (DPA), 1961 defines “dowry” as any cash, jewelry, valuables, or property which the husband or his family members demand from the bride's parents at the time of marriage, as a consideration of marriage. This term also includes demands made subsequent to the marriage from the bride or her parents. Is demanding dowry an offence? Yes, it is a serious offence under the Dowry Prohibition Act, 1961 (S.3 of the Act). It is punishable with a minimum of five years' imprisonment and a fine of Rs.15, 000/- or equal to the value of the dowry demanded or paid. Who can register a complaint under this Act? The woman herself, her parents, the police, Dowry Prohibition Officer appointed under S.8-B of the Act, or even a non-governmental organization on behalf of the woman, can register a complaint.

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Which are the Provisions Related to Dowry Related Violence in the Indian Penal Code (IPC)? After the anti-dowry in early 1980 several women's organisations demanded stringent punishment for husbands and their family members if they caused any dowry related violence to a newly married bride. If a woman died in her matrimonial home within seven years under unnatural or suspicious circumstanced, a special legal provision was incorporated which is termed as S.304B – Dowry Death. If a woman committed suicide due to harassment for dowry within seven years of her marriage, S.306 of IPC-Abetment to Suicide can be invoked. If the woman was harassed for dowry or was treated with cruelty, S.498A can be invoked. In this case, there is no limitation of seven years after marriage. If her stridhan is not returned to her, S.406 can be invoked, along with S.498A. The following table indicates the punishment that can be awarded under these sections. IPC Sections

Description of Offence

Maximum Punishment

Minimum Punishment

S.304-B

Dowry Death

Life Imprisonment

7 years

S.306

Abetment to Suicide

10 Years

-----

S.498-A

Cruelty to Wives

3 Years

-----

S.406

Criminal Misappropriation of Trust

3 Years

-----

Despite widespread campaigns against dowry and the stringent laws, why has the menace grown? In our society the social status awarded to the girl's family is much lower than that awarded to the groom's family. Since the need to get the daughters married is overwhelming, the bride's family is not able to refuse the demand for dowry at the time of marriage. They fear that if they don't give dowry, their daughters won't get married. So the parents of the bride prefer to meet the

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demands of the groom's family in order to get their daughters married, as having an unmarried daughter at home is considered a social stigma. What is the remedy? The problem is not with the gifts which are given to the bride from her parents or from her husband's family. The problem is that the woman does not have control over these items and they area considered as the property of the husband and his family. This attitude must be changed. Girls must be advised that the gifts given at the time of marriage are her exclusive property and if she has been forced to leave the matrimonial home due to domestic violence, she has a right to take these with her. What precautionary measures must be taken at the time of marriage? The girl's parents must take the following precautions at the time of their daughter's marriage to secure her future: — The girl and her family members must refuse the marriage proposal from a groom or his family members if they make demands for dowry at the time of marriage negotiations. — The parents are free to give gifts to their daughter at the time of marriage out of love and affection for her. The gifts given by relatives, friends and even by the husband or his relatives belong exclusively to the bride, and constitutes her stridhan. A list of these gifts received at the time of marriage must be made and the bride, the groom and their parents must sign this document and it must be kept safely with the girl's family or a trusted friend, so that there is no dispute regarding the gifts received as stridhan later. — If after the marriage is arranged, valuables or cash is demanded as dowry or gifts, the marriage preparations must be stopped and a complaint under the Dowry Prohibition Act must be immediately be registered. (See the later section regarding property rights of women for a further discussion on this issue.)

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— Rather than cash gifts, relatives must be encouraged to give cheques in favour of the girl at the time of marriage and this should be deposited either in her own separate account or in a joint account in the name of the bride and the groom. — All valuables and jewelry which belongs to the bride must be kept in a locker which is in her exclusive name or which is in the joint names of herself and the groom, which she has the right to operate. — If after marriage the girl is harassed for more dowry, she must communicate this to her parents through letters or emails. The parents of the girl may meet the groom and his family members to sort out the differences and if they cannot be resolved, the girl must be given a choice to return to her parents' home. — In the event that the bride is thrown out of her matrimonial home, she must take with her all her jewelry and valuables. — In case this is not possible, at the time of leaving or soon thereafter, she must lodge a complaint to the police mentioning the fact of harassment for dowry and also give the police a list of valuables that are left behind in the husband's home. The police can register a case under the Dowry Prohibition Act as well as under S.498A and S.406 of IPC and help the girl to immediately retrieve her belongings and valuables from the husband's residence. (These IPC provisions are discussed later in this section.) — If at this stage no compromise is possible the girl can also initiate proceedings under the Domestic Violence Act for her civil rights such as maintenance, residence, return of belongings etc. What is Stridhan? The gifts given to the bride out of love and affection by her parents or relatives constitute her stridhan. The gifts given to the bride by her husband and/or his relatives also constitute her stridhan. The term “Stridhan” means a woman's property and she has exclusive control over it. Even if it is kept with her husband or his parents, when a woman demands it, it must be given back to her.

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How can a woman claim her Stridhan if it is in the possession of her husband or in-laws? In many families, the stridhan property is kept in the custody of the mother-inlaw or the husband. If they refuse to give it back to her, when she demands, or when she is leaving the matrimonial home, it is an offence under S.406 of IPC - Criminal Misappropriation of Trust. If the woman lodges a complaint with the police, the police will immediately call the husband / his family members to the police station and request them to return the jewelry and valuables. If they refuse, the police will file a case under S.406 of IPC and arrest them and also get an order to search and seize the valuables from the premises or bank lockers etc.

e. Right to file complaint against husband and/or in-laws for causing cruelty (Criminal) What is cruelty to a wife under the Criminal Law? Section 498A of IPC defines cruelty as follows: If a husband or his relatives, harass a woman for dowry, or cause any physical or mental harassment which causes harm to her life, limb or sanity, it amounts to cruelty. Is it a serious offence? Yes. It is a serious offence. The punishment under it is not much, the maximum punishment is only three years. But the offence is cognizable, non-bailable and non-compoundable. The police have the power of immediate arrest, even without a court warrant. This causes a great deal of humiliation to the husband and his family members. Once filed, the complaint cannot be easily withdrawn. The parties need to approach the High Court for quashing. Once a complaint under this section is filed, it is difficult to reconcile the marriage.

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Can this section be used to address general physical and mental cruelty inflicted on a married woman? Yes. This section can be used for dowry related harassment as well as for any physical or emotional harassment caused to the wife as it can be seen from the definition of this provision. Section 498-A: Husband or relatives of husband of a woman subject her to cruelty. - 'Whoever, being husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation - for the purpose of this section 'Cruelty' means (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or heath, whether mental or physical of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or in on account of failure by her or any person related to her to meet such a demand. What are the problems faced by women to register cases under this Section? Usually the police refuse to register cases under this section unless specific allegations of dowry demands are included in the complaint. But now slowly this misconception is changing. But even now, the police do not register the case straight away. The couple is first sent for counseling, and the police only registers the complaint if the dispute is not resolved. How can cruelty be proved? Cruelty can be proved in various ways such as complaints to the police, medical records, letters written to her parents by the girl, phone calls, phone messages, statements of friends or neighbours, etc.

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Is forced sex in marriage (marital rape) within the purview of this section? Yes, forced sex amounts to sexual violence and is included within the term, “cruelty”. So forced sex will come within the purview of this section and if there are any such complaints of this nature, the police must immediately file the complaint and arrest the husband. (Though S.498A does not specifically define sexual violence as cruelty, but uses broader general term as 'any physical or mental harassment which causes harm to her life, limb or sanity', rape / sexual violence would come within its scope.) Clarification: Under the present rape law, marital rape does not come within the scope of Section 376 – Rape. Hence it is beneficial to women who are victims of marital rape to bring it within the purview of S.498A Cruelty to Wives. How can this type of cruelty be proved? The woman must file a complaint immediately after she has been subjected to sexual violence. It will help if she undergoes medical examination. If there are injuries on her body, it will help to prove physical or sexual cruelty. Caution: It may not be easy to register a complaint of sexual abuse under S.498A, though technically it is possible. Hence those assisting the victim would have to be persuasive and hold their ground with the police. If the police officer, himself or herself, is sensitive, the task will be easier.

f. Rights against Husband's Bigamy / Adultery What are the Rights of a wife against proven bigamy of the husband? A wife can initiate criminal proceedings against the husband if she has proof that he has committed bigamy, under S.497 of IPC. However, only the first wife can file a complaint under this section. She has to initiate proceedings in a magistrate's court to prosecute the husband under this section. The proceedings take a very long time and there are very few convictions under this section. However, initiating the procedure does exert certain pressure on the husband and also creates social stigma.

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How is bigamy proved? The offence of bigamy has to be proved very strictly. The wife has to prove that the essential ceremonies of marriage were according to the Hindu Marriage Act such as saptapadi (seven steps round the sacred fire). It is not sufficient to prove bigamy by birth certificate of children, in case he has fathered children from the new relationship. Courts tend to be lenient towards the husband who has committed bigamy. What other remedies does a wife have against the husband's adultery or bigamy? The wife can get a civil injunction restraining the husband from bringing the woman with whom he is having an affair or whom he has married, into the matrimonial home. The injunction can be obtained under the provisions of the Domestic Violence Act. She can also claim compensation for the mental trauma caused to her by her husband. The wife has a right to live separately and claim maintenance from her husband. If the husband initiates proceedings for restitution of conjugal rights against the wife for living separately, the fact that he is in an adulterous or bigamous relationship is a complete defence for the wife and a husband will not be granted a decree of restitution of conjugal rights against her. The husband's adultery or bigamy is also a ground for divorce for the wife.

g. Matrimonial Laws and Remedies at a Glance Matrimonial laws or Family Law in India have evolved within the the framework of religion though many are today codified and enacted by the Parliament. All major communities in India have their own personal laws which govern the procedure for getting married. They also stipulate the essential condictions for marriage and the forms of solemnsing the marriage. Though they differ from each other in some asepcts, there are many commonalities among them. The major matrimonial laws which are followed in India are as follows:

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Hindus - The Hindu Marriage Act, 1955 (HMA) (All denominations of Hindus including Budhhists, Jains, Sikhs, Neo-Buddhists, Brahmo Samajis, Arya Samajis, Prarthana Samajis, or even the newer sects are governed by this law.) Muslims - The Muslim Law (ML) (uncodified). This is based on the Quran and the Sharia. The major sects have their own different laws, i.e. Shias, Sunnis, etc. A part of Muslim Law is also codified. The codified law which governs Muslim marriages is - The Dissolution of Muslim Marriages Act, 1939 (DMMA) Christians - The Indian Christian Marriage Act, 1872 and the Divorce Act, 1869 (DA) All Christian sects are governed by these laws. In addition they may be bound by their own religious laws and procedures. Parsis - The Parsee Marriage and Divorce Act, 1939 (PMDA) In addition, we also have a secular and civil law which anyone can opt for. This is called the Special Marriage Act, 1954 (SMA) All laws also provide for legal remedies either to enforce the marriage contract or to dissolve the marriage. Annulment of Marriage, Restitution of Conjugal Rights, Judicial Separation and Divorce are remedies available under the respective personal laws under which the parties were married. The following table gives an overview of these remedies. Both the husband and the wife can avail of these remedies. The following table provides a glimpse of the relevant sections. Matrimonial Remedies

HMA

SMA

Annulment

S.11/12

S. 24 / 25

Restitution of Conjugal Rights

S. 9

S. 22

Uncodified

S.32

S. 36

Judicial Separation

S.10

S.23

No remedy

S. 22

S. 34

Divorce

S.13

S.27

Uncodified & DMMA

S.10

S. 32

ML

DA

Uncodified S. 18/19

PMDA S. 30

Note: Maintenance under Personal Laws: When claiming any of the above remedies, an application for maintenance can also be filed along with it, as an ancillary (additional) relief.

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h. Annulment of Marriage and Restoration of Conjugal Rights What is Annulment of Marriage? If the marriage suffers from a legal defect (if any of the essential conditions have not been followed), the marriage can be annulled by the party who has suffered. For instance, if the consent of the wife has been obtained by misrepresenting that the husband is a bachelor, while in fact he is married, the wife can approach the court for a decree of annulment. In some cases, the marriage is invalid per se and in some cases it is valid, until the party approaches the court for a decree of annulment. For instance, the stipulated age for marriage under the Hindu Marriage Act is 18 years. If a girl is married before she is 18, she or the husband can choose to annul this marriage within two years of marriage. But if this is not done, the marriage will be valid. The ground of non-consummation must be proved very strictly with medical evidence. The ground of insanity is available only if the insanity is severe and obstructs the person from performing the duties within marriage. Further it must be in existence from the time of marriage till the time of filing the petition for divorce. This ground also must be proved strictly with medical evidence. What is Restitution of Conjugal Rights? How is this remedy used? Since marriage gives the parties the right to each other's company, if one spouse leaves the company of the other, the aggrieved party can approach a court and seek an order for the other person to return to the matrimonial home. If the husband has thrown the wife out of the house, the wife can initiate proceedings for direction from the court to the husband, to take her back into the matrimonial home. The remedy is also used by husbands, when the wife, who is living separately, files for maintenance. In order to escape from an order to pay maintenance to the wife, many times the lawyer may advice the husband to file for this remedy. This causes additional harassment to the wife as she would have to fight two different cases in court.

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What are the legal provisions under which this remedy can be obtained? HMA

SMA

ML

DA

PMDA

S.9

S.22

Uncodified

S.32

S.36

Note: If the wife can prove that the husband has not maintained her, that he has been abusive or violent towards her, or if he is in an adulterous or bigamous relationship, she will not be asked to return to her husband's home. She will be allowed to stay separately and the husband will be asked to pay maintenance to her and the children who are living with her. But if she herself wants to reconcile she can use this opportunity to go back to the matrimonial home and she can also stipulate conditions such as the husband will maintain her or that he will not commit any acts of domestic violence against her.

i. Divorce or Judicial Separation What is divorce? When the marriage bond between the husband and the wife is dissolved either through a court decree or a customary practice, the parties become free to marry another partner. This final dissolution of the matrimonial bond is called “divorce”. What are the legal provisions for obtaining a decree of divorce? HMA

SMA

DMMA

DA

PMDA

S.13

S.27

S.2

S.10

S.31/32

What are the Conditions under which divorce may be obtained? If either the husband or the wife does one of the following acts, the other partner has the right to claim divorce on that ground. — has a sexual relationship with another person or marries another person (commits adultery or bigamy)

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—

commits acts of cruelty towards the other,

— does not maintain the other person or abandons the other person — suffers from mental illness from the time of marriage till the marriage is dissolved — converts to another religion This is called a “divorce on fault ground”. The party approaching the court has to prove the matrimonial fault, i.e. adultery, desertion or cruelty against the other party. Only then a decree will be granted in favour of the party who has approached the court for the relief. Note: Though there are many grounds under different laws, the ground that is most often used in modern times is “cruelty”. The courts have given a very broad definition to cruelty and every act including adultery, desertion, etc. can be brought within it. Hence there is no need to prove any other ground and the process becomes much easier. What is “Divorce by Mutual Consent”? If both the parties agree to obtain divorce with consent (without fighting) they can approach a court together and ask for a divorce. They don't need to make any allegations against each other. Under which legal provisions can the parties obtain a divorce by mutual consent? As per the personal laws which govern the parties, the relief can be obtained under the following sections HMA

SMA

ML

DA

PMDA

S.13B

S.28

Uncodified

S.10 A

S.32 B

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What are the essential conditions for obtaining a divorce by mutual consent? — The Petition can be filed only after one year of marriage; — The parties must be staying separate for one year prior to filing the Petition (or at least they should not be in a sexual relationship for one year prior to filing); (For Christians it is 2 years) — They must make effort to resolve their differences and these efforts must have failed; — They must state that both have jointly agreed with consent to dissolve their marriage; — They have resolved all their disputes regarding return of maintenance, lump sum settlement, shelter, return of stridhan, custody of children / access to them, etc. jointly and amicably. (This must be listed down carefully with the help of friends or well wishers.) Note: The procedure for obtaining a divorce by mutual consent is very simple. The Petition can be only of about 4-5 pages. (Format for the same can be obtained from court typist). The consent terms must be attached. Six months after filing, the parties must appear again in court and file another affidavit that they are firm about their decision to obtain the divorce. Thereafter, a decree of divorce will be issued. Since the procedure is simple, it can be done by the parties themselves without engaging a lawyer. But engaging a lawyer is helpful. However the parties need not have two separate lawyers. The same lawyer can represent both the parties. An NGO can help to negotiate the terms and conditions and if the procedure is properly explained, the parties can approach the court on their own without the help of a lawyer. Can parties obtain divorce outside of a formal court? Yes, many castes and communities have their caste panchayats, a community panchayat or a jamaat. A divorce obtained through this is also valid.

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It is always advisable to have a written document signed by the person who is dissolving the marriage, for use in any later proceedings. The uncodified Muslim law also provides for this relief which is called Mubarraa. If both the parties approach the qazi for a divorce, the same can be granted by the qazi to the parties. What rights does the wife have after a divorce? — The wife can ask for maintenance from the husband, for herself and her children. She can either ask for a monthly sum or for a lump sum settlement including shelter for herself and her children. — She can also claim custody of her children, maintenance for them and for marriage expenses of their daughters. — She has the right to ask for a division of the matrimonial home or property that was purchased jointly, like savings, investments, land or house, etc. Even if the property is in the sole name of the husband but the wife has contributed to it in economic or non-economic ways, she has a right to claim her share in it. (In such a case, she would have to prove her contribution to the matrimonial property.) — She can also continue to live in the house in which the two had lived together during their marriage. She can also claim for division of the property so she can continue to live in one part of the house. (In order to protect this right, it will be better to get a specific mention of the same in the decree of divorce or in the consent terms filed before the court.) — The wife has no right to the property which the husband inherits from his family. However, the children will continue to have a right in the property that their father What is Separation? What are the rights of a woman after the separation? If the husband and wife do not want to live together, they can live separately, without getting a divorce. So the marriage is valid and they cannot marry

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another person. During the period of separation there is a chance that they may resolve their differences and begin to live together again and save the marriage. The separation can be through a court decree, through a family settlement or just by living separately. If it is through a court decree, then it is called “judicial separation”. The wife can claim maintenance for herself and her children during the separation period. Even if it is through mutual agreement it is better to record this in writing with the signature of both parties. This document is useful to save the wife from any legal proceedings which the husband may initiate against her to bring her back (for example, a petition for “Restitution of Conjugal Rights”). Legal Provisions for obtaining a decree of judicial separation HMA

SMA

ML

DA

PMDA

S.10

S.23

Uncodified

S.22

S.32/S.34

During separation, a husband cannot force sexual relationship upon his wife. If he does this, this will amount to rape under section 376B of the Indian Penal Code.

j. Use of surname after marriage and after divorce Does a woman need to change her surname after her marriage? No there is no law which requires a woman to change her surname after marriage or even to take the husband's first name as her second name, as is being done among some Maharashtrian communities. Some women follow the tradition of retaining their own maiden surname and adding the husband's surname to theirs. But the right to choose a name of one's own choice is a fundamental right and anyone can exercise this right. They can either choose to retain their own pre-marriage surname or change it to their husband's surname. The choice is entirely theirs.

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Does a woman have a right to have separate bank account, in her maiden surname? Will it pose a legal problem for her? No if a married woman chooses to continue with her maiden surname, then she can use this name in all her documents including her certificates, bank accounts, PAN Card, passport etc. It will not create a problem. But it is necessary to have a single identity and not change the name selectively in some documents to the married surname (for example, in the passport) and retain the maiden surname in some other documents (for instance the PAN Card or bank account). This may prove problematic. So it is better to be clear and maintain uniformilty. What is the process for changing the name or surname? The process for changing the name or surname is very simple. This can be done by going to the Government Printing Press or any other government office authorised to do so, and fill up the prescribed form. There is a small fee for this service. It may take around two months for the notification regarding change of name to appear in the official gazette. Thereafter, two original copies of the gazette notification will be sent to the concerned person at the address which has been given in the prescribed form. This original gazette notification will entitle the person to make necessary changes in the bank account and in all other official document. Even when some official documents such as the school leaving certificate or graduation certification carry the old surname, the person can attach a copy of the gazette notification to establish the link that the person has changed the name through an official and approved process. So this wont cause any problems in future. (I myself, as well as many of my clients have gone through this process of name change.) Can a woman continue to use her married surname after her divorce or is it mandatory to revert back to her maiden surname after her divorce? Yes, there is absolutely no bar against continuing to use the married surname after divorce. If a woman has been married for many years, all her documents will be in her married surname. If she is working, her employment contract and other documents may also be in this name. She may even have created an

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identity for herself in the public sphere. Reverting back to her maiden surname or adopting any other surname will cause her great problems. The woman may not want to declare the fact that she is a divorcee to the whole world by changing her surname. If the children are in her custody, the children will have the father's name and if she changes her surname, then she and her children will have different surnames. So in order to avoid all these additional hassles, the divorced woman may choose to continue with her married surname. Her husband cannot object to it. Officials like the passport authorities also cannot insist that a woman must revert back to her maiden surname or in the alternative, she must produce a letter from the husband that she has his permission to continue to use his surname. Such a procedure is illegal and can be challenged in court. If the custody of the child is with the mother, is it necessary to have the father's name in all official documents such as the school records, bank accounts, etc. as the “guardian” of the child or seek his permission for all decisions concerning the children after the divorce? If the custody of the child is given to the mother in the divorce decree she has a right to take all decisions regarding the welfare of the child, unless there is a special clause that all major decisions regarding the welfare of the child will be taken jointly. The notion that only the father is the “natural guardian” of the children is archaic and is based on old English law. However, it is no longer valid. The Maharashtra government has brought in the necessary changes in this direction. Despite this, several officials who are unaware of it may demand that the forms should be signed by the absentee father, though the husband has not been involved in the care and upbringing of the child. However, it is important for women to stand firm and demand their rights. If they carry with them copies of newspaper reports regarding this issue, or find some relevant documents on the internet, it will help to strengthen their case. (Please note that the issue of a mother's right to the custody of her children is discussed in detail in the next chapter.)

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Chapter III. Rights of Mothers to Custody of Children

Introduction Right of custody of their children is a very important concern for women facing domestic abuse. Due to the fear of losing custody of their children, many women continue to live in violent relationships and are afraid of taking legal recourse to end the violence. Since earlier the father was considered as the “natural guardian” there is a belief prevalent in society that the children belong to the husband and his family and the woman has no claim over them and that her role is confined to only taking care of them. When women leave their matrimonial home, they are often warned that they will not be able to get custody of their children and further, they will not be even able to meet them. But over years, due to sustained struggle from the women's movement, the law is changed and today the woman is considered as the joint natural guardian of her children and also considered as the primary care taker of her children. The courts also consider that she will be the best suited person to take care of her children. In this section, women's right to custody and the ways in which this right can be secured is explained.

a. Situations where custody of children becomes contentious and precautions which women must take What right do women, as mothers, have over their children? A wife, along with her husband, has the right of custody and guardianship over her children. As the primary care taker of her children, she is responsible for their care and protection. Hence she is entitled to their custody and guardianship. When does the issue of custody of children arise? The issue of custody of children arises if due to a dispute between the spouses, if either of the parties or both, wish to live separately from each other.

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When she is separating from her husband, how can the woman retain the custody of her children? If she is separating from her husband, the best way to retain custody of the children is for the wife to take the children along with her when she is leaving her matrimonial home. If the children are already residing with the mother, usually interim custody will be retained with the mother, even if the husband approaches the court for custody of the children. It is important for any one advising the woman (e.g. lawyer, NGO member, counselor etc.) to give women accurate advise regarding this, to avoid unwarranted anxiety about the issue of securing the legal custody of their children later during court proceedings. Why don't women usually take the children along with them? This is because women think that if they take their children with them, the husband may file a police complaint against them that they have kidnapped the children. However, the police have no right to do this as she is the mother and hence she is also the natural guardian of her children. A case of kidnapping cannot be filed against a natural guardian. Is it possible for the woman to take custody of her child after she has left the home? If a woman h*as not taken her children with her when she is leaving the house, it is possible to take the custody later. This can be done with the help of a member of a local Mahila Mandal / NGO, a social worker, or the local police, soon after she has left the home. If the child left behind is very young and cannot live without the love and care of the mother, or if the woman is breast feeding her child, this must be done at the earliest. If there is a long gap after the woman has left the home, it will not be possible to take custody in this manner, as the child may get used to living with the father and his family and may not wish to come with the mother. In such a situation it is advisable to approach the court for appropriate orders.

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Caution: If the child is attached to the husband or his mother and does not wish to come with the mother, it will not be possible to take the custody of the child. Always remember that the child's wishes and well being are the most important factors in matters of custody. Can the husband file a police complaint against her for kidnapping the child? No, if the child wants to be with the mother and the mother wishes to have the child with her, the husband cannot file a case of kidnapping against her as she is the natural guardian of the child. However, only the mother alone has a right to take custody of her child. No one else can do it on her behalf, but a support person or a social worker can help her or accompany her. At times the police may refuse to help the woman and may insist on a court order. If the child is living with the mother, how can she safeguard her right? It is important to file a petition for custody / guardianship and then secure an immediate ad-interim / interim order of custody. This will safeguard her rights.

b. The Principle, the best interest of the child is paramount What is the main principle which the courts rely upon while deciding the matter of the custody of children? The only principle which is applied while deciding the custody of children - the best interest of the child is important. (This principle enshrined in the United Nations Declaration of the Rights of the Child is relied upon by Indian Courts while determining the parental rights for custody of children.) This means the custody must be given to the person who is best suited to take care of the child or to the parent who is the primary caretaker of the child. In the Indian setting, usually this person is the mother.

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What factors are considered by the court while deciding the 'best interests of the child'? The love and care given to the child is the most important factor. The general growth of the child, the child's well being, progress in school, child's own preference, the atmosphere in the home - these are some of the factors which are considered while deciding the 'best interests of the child'. Generally, whoever has physical custody of the child at the point of approaching the court usually gets to retain the custody. However, this rule is not rigid and if the situation so demands, custody can be changed from one parent to the other, as per the court order. Usually, if the child is older, while changing the custody, the court will ascertain the views of the child. Caution: If a woman is facing domestic violence and she is desirous of leaving her matrimonial home to escape from violence, she must be given correct advice that she has a right to take her children along with her, and that she does not require a court order to do this. Is it true that the law considers the father as the 'natural guardian' of the children and hence his right over the children as superior to that of the mother? No this is not true. This was the belief earlier. Within the patriarchal family system, the father was considered as the 'head of the family' and the 'natural guardian' of the children. Both the wife and the children belonged to the husband; but gradually this belief changed. Now our law considers both father and mother as equal partners in marriage and also considers them as equal guardians of their children. The father's rights over the child are not superior that of the mother. However, traditional values still prevail and many people still endorse this anti women view and legally incorrect view. Is it true that the mother's rights over the custody of a child under five years is superior to that of the father? Yes, this is true. This is because a young child needs the love and care of the mother and hence the law considers that the mother is better equipped to look

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after a child of tender age. The child may also be breast fed by the mother. Depriving the child of the mother's love and care may cause great trauma and anxiety to the child. In such cases, if the mother is thrown out, the police can help the mother to get immediate custody of the child, to save the child from being subjected to such trauma. If the mother is employed, will she still be given custody of the child? This is a general misconception that prevails in society. People feel that if the woman is employed, she will not get custody of the child as she has no time to look after the child and the father's mother may be more suitable to look after the child. But this is not true. The right of the mother is superior to that of the husband's mother. A woman will not be deprived of the custody of the child just because she is working or has a demanding job. If the father is very affluent and if the mother does not have sufficient means to bring up the child, will she lose custody of the child? Even if the father is very affluent, a mother will not be deprived of the custody of her child only on this ground. It is usual in our society that the father has better financial resources in most cases, and the woman may have been a housewife all her life. She may not even have the requisite qualifications to earn an adequate income. But this factor alone cannot be taken into consideration while deciding the issue of custody of the child. The one who is able to provide the best love and care for the child will be the only deciding factor. At times people feel that if the mother is unemployed she may not get custody as she does not have the financial resources to bring up the child. However, since the legal obligation to provide for the child is primarily with the father, the fact that the mother does not have sufficient means to provide for the child will not be considered as a major obstacle while awarding her the custody of her child. So, the bottom line is that it does not matter if the woman is employed or unemployed.

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If the husband accuses the wife of committing adultery, will she be entitled to claim custody of her children? Accusing the wife of adultery or of loose moral character is the usual ploy adopted by the husband or his lawyer to deprive the wife of her right to custody of children because they are under a misconception that a woman who has committed adultery will not be entitled to custody of her children. But the factual position is that the issue of custody of child will be decided only on who is the main care taker of the child, what kind of environment the mother is able to provide for the well being of the child and not on whether she has committed any matrimonial fault. Since this ploy is used routinely by lawyers, courts do not give it serious consideration. However, many women get traumatized when they find that such baseless allegations are leveled against them. It is best to ignore these allegations and focus on the core issues regarding custody. If the mother remarries after her divorce will she lose the custody of her child? No, if she has been looking after the child well, she will not lose custody when she remarries. When the court decides on the matter of custody, the court will look only at the best interests of the child. The child's wishes will be taken into consideration. If the child is happy with the mother, the mother will not be deprived of the custody of her child upon her remarriage. Even the local (or caste) panchayat or the jamaat cannot force the mother to give up the custody of her child upon her remarriage. If this happens, she must not comply with the order, and instead immediately must file an application for custody under the Domestic Violence Act and protect her rights.

c. Rights of a non-custodial Parent If custody of the child is given to one parent, what right does the noncustodial parent have? It is important that the child has the love and care of both the parents. It is necessary for the healthy upbringing of a child. Hence if one parent is given custody, the other parent will be given the right of access. This means if the

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child is living with the mother, the child may meet the father on a regular basis i.e. once a week, on a Sunday or once a fortnight during the weekend, etc. Similarly during the holidays, the father will be given some days to spend with the child. Sometimes the holidays are divided equally between the parents. Usually the court issues strict guidelines regarding the timings for access, which both parties must strictly comply with. What care should the parents take so that the child grows up in a healthy environment? The parent who has custody of the child must look after the child's physical and emotional needs well so that the child's personality develops well. The educational needs of the child are also an important factor and the parent who has custody must ensure that all educational needs of the child are met according to the standard of life enjoyed by the parents. It is also important for the child to have the love of both the parents. One parent should not poison the mind of the child against the other parent. Anyone who is advising the parties must keep this point in mind in the overall interest of the child.

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Chapter IV. Rights of Muslim Women

Introduction The Muslim women's rights of marriage and divorce differ from Hindu women's rights to some extent. However, rights under some general laws such as the Domestic Violence Act, are similar to both Hindu, Muslim and women from other communities. The rights of Muslim women regarding marriage, divorce and inheritance are located in the Sharia, which is the general law applicable to Muslims. Some of these rights are also located in the Quran and hence are called Quranic rights. Some part of Muslim Law is codified e.g. The Dissolution of Muslim Marriages Act (DMMA) 1939 and the Muslim Women (Protection of Rights after Divorce), 1986. Since some of the legal provisions governing Muslim marriage and divorce, differ from other personal laws, there is a great deal of confusion surrounding Muslim Law of Marriage. Hence they are discussed separately here. Among the many positive rights which a Muslim woman has is the right to 'mehr' and the right to stipulate conditions in the marriage contract. Despite these positive aspects, a popular misconception prevails that Muslim women have no rights. There is also a misconception that Muslim women do not approach a civil court for their rights and they can only approach the local qazi for their rights. A third misconception prevails that after divorce a Muslim woman is not entitled to maintenance. Some also believe that a Muslim woman has no right to claim relief under the provisions of the Domestic Violence Act. These misconceptions lead to denial of rights of Muslim women because many times even social workers and lawyers subscribe to these misconceptions. In this section the accurate legal position concerning the rights of Muslim women is explained in detail and in a simple language.

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a. Right to Stipulate conditions in a Marriage Contract (Nikahnama) Do Muslim women have the right to stipulate conditions in the Nikahnama? Yes. Since the Muslim marriage is a contract, the bride can stipulate conditions in the Nikahnama or through a separate document called Kararnama to protect her rights. Marriage laws governing Hindus, Christians and Parsis, etc. do not recognize the right to enter into pre-nuptial contracts. This is unique to Muslim law. At the time of her marriage, the bride can stipulate that the husband will pay her a fixed amount every month as maintenance or for her personal expenses (karch- e- pan daan), or give her the assurance that he will not remarry during the subsistence of her marriage, or in the event of a divorce, she will be entitled to custody of the children, or that he will provide her with a separate residence in the event of his remarriage or divorce, etc. If the husband violates the conditions, the wife can pronounce divorce. This is called “delegated right of divorce” (or talaq-e-tawfitz). This is a very powerful tool available to a Muslim woman through which she can secure her rights during the marriage. This right is mentioned in the Holy Quran. However, due to the ignorance and misconception that prevails, this right is very seldom used. What is Mehr? How is it stipulated? Mehr is an amount which the groom agrees to pay the bride, as a consideration of marriage and as a mark of respect to her. This right is given to ensure that the bride feels secure in her husband's home. It is an integral part of a Muslim marriage. The mehr amount is decided mutually and is mentioned in the nikahnama. The husband has to pay the amount stipulated at the time of marriage itself, or thereafter, but in any case, before the divorce. Mehr can be stipulated in cash, gold coins, jewelry, property, residential premises, or even a share in the business. Unfortunately this important right

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has been allowed to corrode, and is reduced to a token amount, while the Hindu custom of dowry has gained popularity. It is important to resist this trend as dowry is un-Islamic. Women should be made aware of their right to a substantial amount of mehr as their future security as this is Islamic and sanctioned in the Holy Quran. If the husband dies without paying mehr, his wife can claim it from his property. A custom of relinquishing this right at the time of the husband's death prevails among some communities, and is referred to as 'mehr maaf karna'. But the courts have held that a woman cannot be forced to relinquish her right in this manner when she is in a state of distress. Even if she does this, she will still be entitled to claim the amount. [Even if subsequently the marriage is registered under the Special Marriage Act, the woman will be entitled to the Mehr amount which is pending as the same is a contractual obligation which the husband entered into at the time of performing the nikah and was liable to pay it at the time of marriage or soon thereafter.] Once the nikah is performed, can a Muslim couple register their marriage under a civil law? Yes. If any marriage is registered under the Special Marriage Act, at any time, either before or after a religious ceremony, the parties are governed by the provisions of the Special Marriage Act and not by their respective personal laws. (Ss. 15 and 16 of the Special Marriage Act) For example, if the couple wants to get divorce, then they would have to approach a court for divorce and the triple talaq will not be valid. A Muslim husband who marries under the Special Marriage Act also will not be able to marry more than one wife.

b. Rights Upon Marriage What are the maintenance and residence rights of a married woman? A Muslim woman who is married but is abandoned by her husband, can claim maintenance under S.125 Cr.PC or under the Protection of Women from

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Domestic Violence (PWDV) Act, 2005. If her husband divorces her by sending her a talaqnama while her case is pending in court, she will be entitled to maintenance and other reliefs until the validity of such a talaq is proved in a court of law. (This issue is discussed later.) Even thereafter, she will be entitled until her husband pays her mehr, returns her belongings, and gives her a lump sum amount as settlement. If a Muslim man marries again what right does the previous wife have? Though a Muslim man is permitted to marry up to four wives, he is mandated to treat them equally and provide residence, maintenance and dignity to each of them. If the Muslim husband does not maintain any of his wives, the concerned wife can obtain a decree of dissolution of marriage on the ground of cruelty under the “Dissolution of Muslim Marriage Act” enacted in 1939. If the husband has contracted that he will not marry another wife, and he violates this condition, the wife is entitled to pronounce divorce. She need not approach a court. However, she can approach a Qazi to have a written document to this effect. She can also claim maintenance under S.125 Cr.PC or under the Domestic Violence Act. Does a Muslim woman have the right to approach a court just like a Hindu woman? Yes, Muslim women have the same right as Hindu women to enforce their legal rights in a civil court. Many Muslim women approach the courts for claiming their rights under general laws, as well as under the Muslim Law. Muslim women also have the choice to approach the darrul qaza (shariat court) or a qazi (an Islamic judge) to enforce their rights.

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c. Pronouncement of a Valid Talaq and Rights Upon Divorce Is it true that once a Muslim husband pronounces talaq, the wife cannot challenge it and all her rights including her right to residence and maintenance are extinguished? No this is not true. The woman can challenge the divorce on the ground that it was not pronounced as per the stipulations in the Holy Quran. It is important to understand the legal strategies adopted by husbands' lawyers in applications for maintenance filed by their wives. When a woman (Hindu or Muslim) files an application for maintenance, in response, usually a Hindu husband files for restitution of conjugal rights, asking the wife to return to him so that he can escape from the liability of paying her maintenance. On the other hand, a Muslim husband in advised to submit that he has divorced his wife by pronouncing talaq and hence he is not liable to pay her maintenance. But courts can see through such manipulative tactics and do try to protect women by granting them maintenance. But it is important for women themselves to be aware of their own rights and it is important for their lawyers to argue their case correctly. What are the essential ingredients of a valid talaq? The Quran stipulates many conditions for a valid talaq including payment of iddat, return of mehr and personal belongings, which have been upheld by our courts. It is important that there should be a meeting between the two families or well wishers, to resolve the dispute and only if the negotiation fails, can the husband pronounce divorce. The pronouncement has to be public and when the husband is fully conscious of his actions. Talaq cannot be pronounced in haste or in a drunken state when the husband is not fully conscious of his action. The wife must also be in a state of purity. Hence talaq cannot be pronounced during her menstrual periods of if she is pregnant. A talaqnama sent by post, courier, fax or a message conveyed through an SMS does not constitute a valid talaq. The wife can file for maintenance without accepting the talaq. The following is the leading case on this issue.

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Caution: The plea of divorce in the written statement is a legal ploy adopted on behalf of the husbands by their lawyers due to the common misconception which prevailed even among legal scholars and women's groups that a Muslim husband is not liable to pay maintenance to his deserted wife if he pleads that he has divorced her. However, most High courts and the Supreme Court have come to the rescue of Muslim women and set right the harm that was being caused to them. If the woman herself also desires a divorce, is it advisable for her to accept the talaqnama sent by post? Yes it is a good strategy to accept the talaqnama, if she herself is also desires of a dissolution of her marriage and wants to be free. It will save the trouble of initiating proceedings on her own. Can a Muslim woman claim maintenance or 'settlement' after her divorce? A divorced Muslim woman has the right to approach the court for a lump sum (full and final) settlement under the Muslim Women (Protection of Rights of Divorce) Act, 1986, (Muslim Women's Act or 'MWA' for short). The amount depends on the wife's future needs and also takes into account her status during marriage. In addition, if her rights of a fair and reasonable settlement are not fulfilled, she can continue to claim maintenance under other legal provisions. The landmark ruling of the Supreme Court pronounced in 2001 which upheld a Muslim woman's right to a fair and reasonable settlement for life at the time of divorce is summarized below: Danial Latifi vs. Union of India, (2001) 7 SCC 740 While upholding the Constitutional validity of the Muslim Women's Act, the Supreme Court affirmed that the Act has substituted the earlier right of recurrent maintenance under S.125 Cr.PC with a new right of a lump sum provision to be made and paid to the woman soon after her divorce within the iddat period. If the husband fails to make the settlement, a divorced Muslim woman has the right to approach the magistrate's court for enforcement of the right under S.3 of the Act.

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Shabana Bano vs. Iman Khan, AIR 2010 SC 305 While upholding the rights of a divorced Muslim woman to claim maintenance under S.125 Cr.PC, the Supreme Court commented that where social legislations enacted to secure the rights of needy women are concerned, adherence to rigid rules of procedure and evidence should be avoided. Note: In addition, a married and a divorced Muslim woman has the right to approach the court for protection, residence, maintenance and custody of children under the Domestic Violence Act. It is a good legal strategy to use the provisions of both these Acts together so that a woman will be entitled to interim (immediate) maintenance under the PWDV Act, which will help to expedite the process of obtaining a final order of a lump sum settlement under the Muslim Women's Act. Is it true that the Muslim woman has no right to dissolve her marriage; that she must wait for her husband to pronounce talaq? No, this is not true. A Muslim woman can dissolve her marriage in two ways. She can approach the qazi for 'khula'. The qazi will give notice to the husband to appear before him. If the husband does not respond, the qazi can grant the woman khula and she will be free. She can also obtain a legal divorce in a qazi court which is called Faskh. She also has the right to approach a civil court for a decree of dissolution of marriage under the Dissolution of Muslim Marriages Act. If a Muslim woman seeks 'khula' does she forego all her economic rights including her right of mehr? A divorced Muslim woman can approach the court for her rights under the Muslim Women's Act and claim her economic rights including her right of mehr, maintenance for the iddat period, return of her belongings and lump sum settlement. The fact that the marriage is dissolved through talaq, khula or a court decree is not relevant. In all the situations her right to claim relief under

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the Muslim Women's Act remains intact and she can approach the court for enforcement of this right. Can a Muslim couple get divorce by mutual consent? Yes. If the couple agree, they can approach a qazi for a divorce by mutual consent which is called Mubarraa. This can be done at the office of the Qazi or the Jamaat. If the husband pronounces talaq in anger but then feels sorry and wants to reconcile with his wife, is it necessary for the wife to marry another person, consummate the marriage and then get divorced from that husband, then marry the first husband, in order for the couple to start living again as a husband and wife? This practice is called 'halala' which was observed in the traditional Muslim law. But our courts have held that such practice is not valid. There are many cases where such a situation has arisen and the religious leaders have obstructed the couple from living together again. However, the courts have held that it amounts to encroaching into the fundamental freedom of a couple to continue cohabitation with each other. The courts have held that only a couple can decide to separate and no one can force this upon the couple. Even the religious heads or community leaders cannot force the couple to separate using outdated religious precepts.

d. Right to Custody of Children and Property Inheritance Is it true that under Muslim law, the custody of a male child over seven years and the female child over 13 years must be given to the father? This is a commonly held misconception. Operating under this mistaken belief, Muslim women are reluctant to obtain a divorce or claim their economic rights as they fear that they might lose the custody of their children. It is important to understand that the child is not the 'property' of the father. Courts only consider the best interest of the child while deciding issue of child custody. The religion

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or the rights of the parents is not the deciding factor. If the mother has looked after the children well, the courts will not disturb the custody by handing over the child to the father. Even if the local jamaat forces the woman to give up the custody of the son who is above seven years, to her husband, the wife has a right to resist this. In order to protect herself, she can also file for her child's custody under the Domestic Violence Act and get an order that the child cannot be taken out of her custody. Does a Muslim woman have a right to inherit her father's property? Yes, a Muslim woman's right to property is well established as it was recognized in the seventh century. Under Muslim law the woman is considered as a fixed sharer of her father's property. Though her right is not equal to her male counterpart, it is half of what the male will inherit. An important principle of Muslim law is that the male head of the family cannot make a will and deprive the female members of their right to property. The right to make a will under Muslim law is a limited right. The rest of the property must devolve on the legal heirs. Hence women have a better chance of inheriting at least the stipulated share.

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Chapter V. Rights of Women in Invalid Marriages or in “Live-in” Relationships Introduction Many a times women are involved in relationships which lack legal validity. Sometimes even though they are aware that their marriage is not valid under the law, due to the assurance from the men that they will treat the women just as legally wedded wives, and bestow upon them the status of a ''wife' under the law, the women feel reassured and continue in these invalid relationships. Such women are oblivious of the fact that if these men refuse to provide them with maintenance, and if they need to approach the court for claiming the right of maintenance, these men (or on their behalf, their lawyers) may argue that since their earlier marriage has not been dissolved, the second marriage is invalid, and hence, the women are not entitled to maintenance as they do not come within the purview of the legal definition of 'wife' under the law. Women in such situations have to endure a great deal of humiliation and are traumatized by this denial of marriage from the man who they have loved, trusted and from whom they have borne children. While the law is not very clear on the issue of whether such women are entitled to maintenance, there are some positive rulings which have viewed the rights of women in such relationships in a compassionate manner from the perspective of human rights. There are other judgments which have held that if the relationship is of a long duration and the family and community have accepted them as husband and wife, the marriages are legal and the women are entitled to their rights. Since the practice is widespread and many women suffer due to the deceit of the man who exploits the woman by pretending that the relationship is a legal marriage, the Domestic Violence Act tried to protect the rights of such women by stipulating that women in “marriage like relationships” are entitled to rights under the Act. However, there are also some other judgments which are contradictory and which have referred to such women in derogatory terms as

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“mistresses” and “concubines” while denying them their basic right of maintenance and shelter. In this section we will examine the rights of such women and the legal provisions which come to their aid.

a. Rights of women if conditions of marriage have been violated or essential ceremonies have not been performed In order to understand what invalid marriages are, we first need to understand the conditions of a valid marriage. The essential conditions of a valid Hindu marriage are stipulated in S.5 of the Hindu Marriage Act which are as follows: — Both parties must be Hindus. — The groom must be above 21 years of age and the bride must be above 18 years. — Both parties must give their free consent to the marriage. (They must not suffer from mental illness which prevents them from giving valid consent.) — They must not be within prohibited degrees of relationships or “sapinda” relationship (seven degrees from the male side) if it is not an accepted norm of the communities to which the parties belong. (S.5 of the Hindu Marriage Act) Among many communities marriages between uncle and niece or first cousins are customary. If such a custom exists, the marriage is valid, and the stipulation against such marriages does not apply to them. If at the time of marriage the bride or groom is below the stipulated age, is the marriage void? No. If the boy is under 21 years or the girl is under 18 years, the marriage is not void. It is a valid marriage. But if either of them so desire, they can get out of the marriage by approaching a court or a panchayat and get the marriage annulled (dissolved). So it is a voidable marriage (S.12 of the Hindu Marriage Act). However, this must be done within two years of attaining the permissible

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legal age for marriage. If the couple fails to do this, the marriage will still be valid and cannot be declared void on this ground later. However, even if the marriage is dissolved, it will not absolve the husband from his legal obligation towards his wife and children. The wife will have the right to claim maintenance against her husband and the children will have rights against their father including maintenance and the right to inherit property. By dissolving the marriage both, the husband and the wife, will have the right to marry another person of their choice. (This is clearly stated in the Child Marriage Restraint Act, 2006) If at the time of marriage, either the husband or wife had another spouse living, will the marriage be valid? If at the time of marriage, either of the parties had another wife or husband living, then the marriage will not be valid, but if the earlier marriage is dissolved by panchayat the second marriage is valid. It is not necessary to dissolve the earlier marriage only through a court decree as we are governed by both statutory and customary laws and practices. Hence, even a divorce obtained through the intervention of the caste panchayat is valid. If the man and woman have lived together for a long time, the woman's right to reside in the same house can be protected under the Domestic Violence Act. The husband or his relatives cannot throw her out. If there are children from this union, they have the right to claim maintenance and the right to inherit their father's property. Is 'saptapadi' (seven steps round the holy fire – vivaha homa) an essential ceremony of a Hindu marriage? No. Among Dalits, Buddhists, backward castes, and tribal communities, the ritual of 'saptapadi' is not observed. In some communities a garland is exchanged, or the husband wraps white cloth or ties black beads around her neck or applies sindhoor on her forehead, or some other rituals are followed. Some communities may have only a customary wedding meal or

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refreshments. If the marriage is performed as per the customary rites of either of the parties, it is valid. Note: It is important to keep this in mind as often, when the wife approaches the court for maintenance, the husband or his lawyer may plead that since some essential ceremony were not performed, the marriage is not valid and hence the wife is not entitled to claim maintenance. If the husband did not disclose his earlier marriage while marrying a second time is the wife entitled to maintenance? Yes. A recent Supreme Court judgement has held that if a husband did not disclose his earlier marriage to the woman and married her on a false assurance that he is single, then the woman is entitled to maintenance. Badshah vs. Urmila Badshah Godse, 2014 (1) SCC 188 While upholding the right of the woman for maintenance under S.125, Cr.PC, in a case where the marriage between the parties had been proved, but the husband had suppressed his earlier marriage and had fraudulently led her to believe that he was single and hence competent to marry, the Supreme Court held that the husband cannot be permitted to deny the benefit of maintenance to the wife by taking advantage of his own wrong. The court held that for the purpose of granting maintenance, the woman must be treated as a wife. The court further held that while dealing with applications for maintenance of destitute wives or hapless children, the Court is dealing with the marginalized sections of the society. The purpose of this provision is to achieve 'social justice' which is the Constitutional vision, enshrined in the Preamble of the Constitution of India. Therefore, it becomes the bounden duty of the courts to advance the cause of social justice and secure the rights of the disadvantaged sections.

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b. Registration of a Hindu Marriage How to register a Hindu Marriage? A Hindu Marriage has to be registered in the office of the Registrar for Registration of Births, Marriages and Deaths, at the sub-registrar's office, at the taluka level or at the office of the village panchayat. While approaching this office, it is necessary to take proofs of age and residence of the concerned parties, two photographs of the groom and bride each, a photograph of the marriage ceremony, the wedding invitation card, a certificate from the priest who performed the ritual or a certificate from the Hall where the marriage was performed. Three persons from each side are also required to sign as witnesses to the marriage. Once the marriage is registered, a certificate called the “Memorandum of Marriage” will be issued which will form proof of the marriage having been performed. Is it necessary to register a Hindu Marriage? No, it is not necessary to register a Hindu marriage as a non-registered marriage is valid (S.8 (2) of the Hindu Marriage Act). But registration is advisable as it provides a clear proof of the marriage having been performed. It will not be easy for the husband to deny that the woman is the legally wedded wife. What is an 'Arya Samaj' wedding? The Arya Samaj came up as part of the reform movement among the Hindus during the 19th century. It abolished Brahminical rituals such as saptapadi and other Hindu traditions and attempted to modernise the religion. But this term is used in modern times totally out of context and is used to perform hasty marriages by lawyers and marriage bureaus (vivaha karyalayas) flouting the essential ingredients of the Hindu law. But if parties to the marriage are not Arya Samajis, then a wedding performed in this type has a chance of being declared as invalid in a court. This is often used by couples who are in haste to get a marriage certificate, but do not want to fulfill the requirements of registering their marriage under the Special Marriage Act such as the

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mandatory one month period of waiting, after the initial notice is issued, before the marriage can be registered. Caution: It is better to avoid such short cuts as it may prove harmful in the long run. Please register the marriage as prescribed by the law. Can a marriage performed as per the Hindu rites be Registered under the Special Marriage Act? Yes. The Special Marriage Act is a secular Act and any two persons can register their marriage under it. Even a marriage which is registered under any other personal laws or under any other religious ceremony can be re-registered under the Special Marriages Act.[S.15-16 of the Act] Caution: It is compulsory to register a marriage under this Act if a Hindu marries a non-Hindu, i.e. a Christian, Muslim or Parsee. If this is not done, the marriage is not valid and the wife may lose her rights. Many women suffer because they do not follow the simple procedures stipulated under the law and do not take due precautions at the appropriate time. What is the procedure of registering a marriage under the Special Marriage Act? In order to register the marriage, at least one of the parties to the intended marriage must approach the office of the Registrar of Marriages at least one month prior to the intended date of marriage and give notice of the intention of the parties to get married. Proof of age and residence is required (i.e. ration card, school leaving certificate etc.) Photographs of the parties are also required. On the day of registration of marriage, the bride and groom must approach the office of the Registrar of Marriages along with three witnesses from each side. The Deputy Registrar of Marriages or anyone under his/her authority will administer the oath of marriage to the couple and then they have to sign in the register maintained by this office. The Officer who administered the oath and the witnesses must also sign in the register maintained by the Marriage Registrar. After the marriage, the parties will be issued a marriage certificate. This is a clear proof of a valid marriage having been performed and

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the parties cannot easily wriggle out of this marriage on the ground that essential ceremonies were not performed. [The procedure is stipulated in detail in Sections 5 to 13 of the Special Marriage Act, 1954] Once a marriage is performed in this way, the parties will be governed by the rules of the Special Marriage Act regarding divorce and a court decree will be necessary to get a valid divorce. Clarification: A Hindu or a Muslim marriage which is performed as per their respective rituals can be registered under the Special Marriage Act subsequently, even after many years of marriage. At times, when people need visas to travel abroad, the authorities request for a “marriage certificate”. At that point, the couple approaches the authorities to register their marriage under this Act. How can a Hindu marriage be proved? A Hindu marriage can be proved with the help of wedding photographs, video recording of the wedding, wedding invitation card, by witnesses who were present at the wedding, etc. If it has been a few years after marriage, it can also be proved by their children's birth certificates, hospital records, voter ID cards, ration card Aadhar card, bank pass book which lists the same address of the parties, bank nomination, PF nomination, 7/12 land record extracts (saat baara utara) where the wife's name is listed, etc.

c. Rights of Children born within Invalid Marriages What happens to the children when the parent's marriage is not valid? Do children of the second wife have any rights? Earlier there was a difference between a child from a legal marriage and a child born outside a legal marriage. The child born within a valid marriage was termed as a “legitimate” child and a child born outside the valid marriage was termed as “illegitimate” child. The illegitimate child was deprived of the rights to inherit the property of the father. But now the difference between legitimate and illegitimate child has been abolished and the child in an invalid or void

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marriage or born outside of marriage has the same right to claim maintenance and to inherit the property of the father. Hence, even though the marriage is invalid, the children of the second wife can claim maintenance from their father and also inherit the property of the father. (S.16 of the Hindu Marriage Act) What are the rights of children born out of the wedlock against their parents? All children born out of invalid marriages or outside of wedlock, casual relationships are considered as legitimate and have rights against their father. In fact, now there is no difference in law between the rights of a child born within the marriage or outside of a marriage. All children are deemed to be legitimate children of their parents and they acquire rights against both their father and mother. They can claim maintenance and residence from their father as any other child born within the marriage. The children also have the right to use the surname of either of their parents. In case of doubt, they also have the right to approach the court and ask the man to undergo DNA test to prove paternity. What are the inheritance rights of children against their father? All children have a right to inherit their father's property. As stated above, there is no difference between a legitimate and illegitimate child and hence, a child born outside the wedlock has the right to inherit the property of their father in the same way as a child born within marriage. (S.16 of the Hindu Marriage Act) Does a woman who is not married but has lived with a man have any rights? Yes, the Protection of Women from Domestic Violence Act recognises the right of a woman who has lived with a man in a marriage-like relationship. But to claim any rights, it is necessary that the couple has lived as husband and wife for a long time, and the society should accept them as a married couple. If this can be proved, the woman will have rights as though she is the legally married wife of the man. She will have the right to claim maintenance, residence, protection, etc. [S.2 (f) of the DV Act]

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Chapter VI. Rights of Women in “NRI Marriages”

Introduction In a globalised world, marriages across nationalities are becoming a common feature. As many Indians are seeking employment and residence in developed countries, and are still keen to obtain Indian brides, such marriages between two persons one of whom is an Indian citizen and the other a foreign national are becoming quite common. Sometimes these marriages are conducted in haste without taking due precautions or without finding the antecedent of the groom. When the bride joins the husband in a foreign country she encounters many problems of adjustments in a foreign country. In addition, she also may face issues of domestic violence. Since the rights of a wife to reside in a foreign country depends upon the legal status of her husband in that country, and since she does not have any citizenship rights independent of her husband, her vulnerability increases. Due to cultural barriers she may also not be in a position to seek help. Many a times she is also reluctant to communicate with her parents about her difficulties and even when she does communicate, they may not be in a position to come and rescue her. Young women, placed in such situations, may experience great depression and may even develop suicidal tendencies. This has become a major concern for our government who has tried to take some precautionary measures and has also laid down certain guidelines which the parents must follow before marrying their daughters to Indian men abroad. In this section, some concerns of this phenomenon termed as “NRI Marriages” are discussed.

a. Problems faced by women in “NRI Marriages” What are NRI Marriages? The term “NRI Marriages” is used in the context of a marriage between an Indian who resides overseas, in a foreign country, and marries a person from India, under the Indian matrimonial laws. Most NRI marriages involve men who

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are citizens of foreign countries and Indian women who may have never left India. They were abandoned soon after the marriage, or may have migrated after their marriage or might have returned to India due to desertion or cruelty meted out to them by their husband in the foreign country. What are the different problems an “NRI Bride” encounters? An “NRI Bride” encounters many different problems in addition to a lot of problems a woman in a conflict marriage faces if she is living in India. Some of them are listed below:1. After marriage, the couple may reside abroad but due to a matrimonial conflict between the spouses, the wife may return to her parental home in India and seek legal remedies. 2. There are also situations, where, after the marriage, the groom returns to the country of his residence, leaving the bride behind in India to await the legal documents to facilitate her passage to the 'promised land', which may never come. 3. There may also be situations where the children born in a foreign country become citizens of that country, while the mother remains an Indian citizen. If the spouses are living under two different legal regimes, there may be confusion regarding the legal principles to be applied in a given situation. 4. In all societies, violence against women manifests in many forms, in national, and increasingly, in transnational spaces. Transnational abandonment of wives constitutes an emerging face of violence against women, both by its intent and effect. In countries where there are no safety nets, abandonment of women jeopardises women's social and economic struggle. Immigrant women or women married to migrated men constitute a particularly vulnerable group. Even in countries where social and legal recourses may be available to abandoned women who are citizens, immigrant women may not be entitled to the same benefits or may find it

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difficult to access these provisions. However, when wives are abandoned in such situations, their access to legal remedies as well as economic relief becomes severely compromised. Women may also face additional problems such as: — Language — Food — Culture — Lifestyle — Time zone differences — Homesickness — Climate — Financial and social preconceptions — Employment — Lack of Medical facilities and health insurance Women, as a vulnerable group, remain in danger of being abandoned by the people who are responsible for their care, particularly in countries that have no social safety nets. It is not only widows who are vulnerable, but also married women who are discarded by their husbands. What are the issues of citizenship and culture an “NRI Bride” faces? Usually “NRI Brides'” residence in a foreign country is a legal incident arising from the fact of marriage. They have a dependent status and do not qualify for an independent status as the citizen of the particular country where the husband has obtained citizenship. Women also become extremely vulnerable as they are uprooted from their native family surroundings and become devoid of all kinship and peer group support networks. Usually they are not familiar with the language / culture of the country of migration.

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Further, if the wife has entered the foreign country as a “dependent wife” and lacks the legal status to take up independent employment, economically she become totally dependent upon her husband. The husband acquires not only total emotional and financial control but also holds the key to the women's legal status of residing in the country of migration. This makes them particularly susceptible to dowry harassment, physical, verbal, mental and sexual abuse. Families of the bride often have no way to check on the credentials of the groom and this often leads to problems later on. There have been cases of men contracting bigamous marriages or of misrepresenting their income, family background, etc. How is the situation dealt with in the US? In the United States, a policy is now being implemented which allows such women to pursue their immigration status based on filing a self petition as a 'battered spouse' of a US citizen or a Green Card holder. The basic criteria is to show that they were married to US citizens or Green Card holders in good faith, they were subjected to cruelty, they lived with the abusers, and are of moral character. What are some of the other ways in which this problem is dealt with? At times, applying the standards of the country of residence regarding divorce may violate the principles of equity and natural justice as far as women are concerned. This is particularly true for dependent wives who are subjected to torture and violence due to exorbitant demands for dowry and are driven out of their residence. In such situations, the courts have recognized the vulnerability of women trapped within this situation and have used innovative legal dictum, discretionary powers and principles of natural justice to bring some solace by expanding the parameters of women's rights. Issues of custody of children and enforcing maintenance orders have also been extremely problematic. This forces the wife to return to India, leaving the children in custody of the husband. Later in divorce proceedings, it is easy for the husband to obtain legal custody of the children and the wife has no

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recourse to fight for the custody of her children, and she is even deprived of her basic right of visiting her children. Maintenance orders granted by Indian courts remain mere paper decrees as they are very difficult to enforce in a foreign country.

b. Precautionary Measures that must be kept in mind at the time of marriage It helps to be as vigilant as possible in all marital proposals. This is all the more relevant when the parents of a girl wish to marry her to a man from abroad, even when they know very little about his background. Following are some precautionary measures that the parents must keep in mind while accepting a groom from abroad. 1. Do not take any decision in haste and do not get pressurized to do so for any reason whatsoever. 2. Do not finalize matters over long distance, on phone or through e-mails. Carry out background checks. 3. Do not blindly trust any bureau, agent, tout or a middleman. 4. In case matrimonial negotiations take place via matrimonial sites, verify the details and authenticity of the particulars submitted about the groom. 5. Do not agree to forged papers or enter into any fake transactions for any reason or on any pretext. 6. Do not make matrimony a passage to greener pastures abroad by falling prey to lucrative schemes to migrate to another country or promises of getting green card through marriage. 7. Do not get pressurized in taking impulsive decisions of marriage proposal with an NRI because of the promise of a perfect life.

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8. Do not finalize matters in secrecy; publishing the proposal amongst the near and dear ones, friends and close relatives could help you in getting vital information which you may not be able to collect otherwise. 9. Do not agree to having only registered marriage or to getting the marriage solemnized in a far off place. 10. Do not be coerced into acceding to dowry or any other unreasonable demand made by or on behalf of your husband in order to end your desertion. Inform officials immediately if being forced to do so. 11. Do not remain quiet, if faced with desertion or any other cruelty by husband and/or in-laws whether in India or abroad. Approach the authorities. 12. Do not agree to the marriage taking place in the foreign country. 13. Do not be forced into participating in legal action in the country of your husband's residence. You can file a case in India and cannot be forced to defend a case filed against you by your husband abroad - especially divorce. India has more women-friendly laws than many other countries. 14. Do not panic if your husband obtains divorce in the other country with or without your knowledge since it is not valid in India. It is valid in India only if you participate in that case. 15. Do not defame husband and/or in-laws without evidence as they may slap a defamation case against you. Speak only the facts at the right forum before police/lawyer/social worker/court, etc. 16. Do not be vindictive and take law in your hands. Never resort to violence or any illegal act to settle scores with deserter husband and/or in-laws. Approach government authorities in case of any problem in the marriage. Do not file false/frivolous complaint.

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c. Directions issued by the Ministry of Overseas Indian Affairs The following is the list of precautionary measures issued by the Ministry of Overseas Indian Affairs which should be taken into account before marrying an NRI to avoid unfortunate situations in a foreign country. Be well aware of cultural, social and legal aspects of entering into marriage 1. Prepare yourself for a married life, which is going to be in a new and unfamiliar environment/country. 2. Try to know your spouse well, learn about where he/she lives before you arrive there and develop reasonable expectations. Communication is the key to a successful marriage. Understand what you are getting into. 3. Blindly getting into marriage may cost you both financially and emotionally. 4. It is very important to know about current laws related to Indian marriages. Indian personal laws are strongly applied even in the case of marital discord outside India. 5. Learn about the Domestic Violence law that has been passed by the legislature. 6. If not for any valid reason, one spouse wants to come out of the marriage (even in the first year); it can lead to several years (typically over 5 years) of a rigorous legal battle, if the other spouse contests the case. 7. Acquire an in-depth knowledge of “mental cruelty and dowry harassment” under section 498A of the Indian Penal Code. 8. Acquire knowledge of child custody, maintenance pay, restitution of conjugal rights, other criminal law provisions relating to Dowry Act as well as important provisions of Indian Penal Code such as giving and

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fabricating false evidence (section 191 & 192); punishment for voluntarily causing hurt (section 323); defamation and punishment (for defamation sections 499 & 500). 9. Do not misuse laws to get foothold in another country or to wrongly punish somebody. Verification of Antecedents/Documents Verify if the status of the spouse is actually as represented, especially with regard to the following particulars: 1. Marital status: if he is single, divorced, separated. 2. Employment details: qualification and post, salary, address of office, employer and their credentials, Immigration status. 3. Immigration status: type of visa, eligibility to take spouse to the other country. 4. Financial status (to be verified with the employer) 5. Properties said to be owned, residential address, family background 6. Criminal antecedents, if any 7. Family background Check the following documents relating to the spouse 1. Visa, passport 2. Voter or alien registration card 3. Social security number 4. Tax returns for the preceding 3 years 5. Bank account papers

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Contact the following 1. Indian embassy in foreign country 2. Employer of the person 3. Local Indian associations and networks of Indian citizens 4. Friends and relatives in that country Insist on the following 1. Insist on a registered marriage along with the religious marriage to be solemnized in India with adequate proof like photographs etc. Registration certificate should be carried at all times. 2. Insist on keeping in touch with the bride even after the marriage on phone and e-mail and through local friends and relatives and alert yourself if at any point there is any reluctance or difficulty in this. 3. When doing the paperwork for the issue of a visa and other required formalities at your end-keep all the original papers with yourself 4. Leave photocopies of all important documents including your passport, visa, bank and property documents, marriage certificate and other essential papers and phone numbers with parents or other trustworthy people in India or abroad. In case they are lost/forcibly taken away/mutilated/destroyed by or at the instance of spouse or in-laws, the copies will come in handy; if possible, keep a scanned soft copy with you and any other person you trust so that it can be retrieved if necessary. 5. Try to keep a photocopy of your husband's personal details including passport, visa, property details, license number, social security number, voter or alien registration card, among others. 6. Ask for an affidavit from the spouse stating present marital status. 7. Have a bank account in your exclusive name near your residence that you can use in case of an emergency.

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8. Keep a list of contact details of neighbors, friends, relatives, husband's employer, police, ambulance, and the Indian embassy or high commission, if abroad. 9. Insist on health insurance cover before arriving in the new overseas residence. 10. Regular and meaningful communication between the two persons to be married and their family is a must. 11. Make sure that the two persons to be married meet personally and interact freely and frankly in a comfortable atmosphere to make up their minds as many times as they feel necessary. 12. Rely on the gut feeling and communicate amongst yourselves, if any, if you sense anything is wrong or amiss. Always keep communication amongst yourselves easy and open. 13. Particularly, don't part with your passport. Keep at least one copy of the passport. 14. Publicize the marriage and have a social marriage ceremony. Precautions for the Bride in a Foreign Country 1. Try to arrange for a bank account for the bride in the foreign country for her to be able to withdraw money in emergency. 2. Equip the woman to take help in emergencies by providing her with contact details like phone numbers and e-mail ids of police and other state authorities, helplines and legal aid bodies in the foreign country as well as of the Indian Embassy there, especially the Indian welfare offices, if appointed there. It would also help her to know the contact details of social support groups and networks. 3. Equip the woman with knowledge of the laws of the foreign country and the rights she enjoys there, especially against any form of abuse or

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neglect, including domestic violence and the need to get a residence permit and other protection as a victim of domestic violence or abuse. 4. Equip the woman with professional/vocational qualifications and skills to be independent. 5. Equip the woman with the social skills to be able to develop contacts with the neighbors and make friends in the foreign country. 6. Whenever it is possible, the spouse going abroad should learn the language of the country where they are going to reside after marriage.

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Chapter VII. Rape and Sexual Offences

Introduction Rape has been an important concern for the women's movement in India. After the infamous ruling of the Supreme Court in the Mathura rape case (Tukaram vs. State of Maharashtra, AIR 1979 SC 185) where two police men, who had raped a 16 year old tribal girl in a police station, were acquitted on the false ground that there was consent, there have been demands for bringing changes in the rape law to make it more responsive to the needs of victims. Some amendments to the archaic laws were brought about in 1983. Since then there have also been several changes in criminal procedures, police manuals, etc. which have given strict guidelines that women cannot be arrested at night and that they cannot be retained in police custody at night. But the stringent provisions did not have the desired impact of reducing the incidents of rape in the country as the following table reveals:- concerns of this phenomenon termed as “NRI Marriages” are discussed. Reported Cases of Rapes in India 1990

1994

1995

1996

1997

1998

9,518

12,351

13,754

14,846

15,330

15,031

2000

2005

2007

2008

2010

2011

16,496

18,359

20,737

21,467

22,172

24,206

The gang rape of a young medical student in a moving bus in Delhi in December, 2012 came as the last straw. The incident was followed by wide spread protests and demands for further changes in the rape law. In this section, all the issues which come up during a rape trial are discussed and the recent changes brought about are clearly explained.

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a. Misconceptions, Precautionary Measures and Support Schemes What is Rape / Sexual Assault? The older definition of rape under S.376 of IPC was “forcible penetration of the vagina (female sexual organ) by the penis (male sexual organ) of a man”. But after the recent amendment to the Criminal Laws in 2013 and the enactment of a special law to deal with child sexual abuse in 2012, the definition of rape has been widened and includes penetration of any body part such as anus, mouth (oral sex) or urethra by any body part such as tongue, fingers, etc. Insertion of objects such as sticks, rods, etc. into these body parts is also considered as rape. For child sexual abuse, the word “rape” has been replaced by the term “sexual assault” and there are different degrees of sexual assault listed under this Act. Sexual abuse of both male and female children is brought within its purview. (The legal definitions are discussed later in this section.) What are some of the important aspects we need to remember regarding rape? There is a lack of basic knowledge about how to respond when the offence of rape occurs. There are also many prevailing misconceptions about rape and also a lot of reluctance to report a case to the police. Delay in reporting a case results in loss of valuable evidence. The following points will help us to understand the issue better and also help us to take some important precautions. Preserve all evidence: As far as possible, the victim should not have a bath or wash herself or wash the clothes which she was wearing at the time of the offence. It is very difficult to do this because the natural instinct after rape is to clean oneself and to wash the clothes to wipe out the feeling of violation that the offence of rape brings about. But it is better to resist it. The place where the crime was committed also must not be disturbed. This is important as it may contain critical evidence to prove the offence, which the police will collect when they start investigating the case.

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Do not delay the filing of the FIR: Due to the stigma attached to the offence, the family takes time to consider whether to report the offence to the police or to hush up the matter. There are several levels of consultations that take place within the family and even at the community level. The social and economic status of the rapist or his connection with authorities and influential people also matters. If the rapist is wealthy, or has high social standing, and the victim is from a poor family, there will be a great reluctance to report the crime. Similarly, if he is a relative or a neighbor, there will be reluctance. Due to this sometimes cases are not filed until many days after the crime. Caution: Delay in filing the complaint will result in loss of crucial evidence and it may be difficult to prove the case later. Go to a hospital directly and start the treatment: Instead of going to the police station, it is better to go directly to a public hospital or even to a local health centre, and get immediate medical treatment. This will help not only to preserve crucial evidence against the accused, but avert any infectious or dangerous disease or avert pregnancy. Parents, relatives, friends, social workers etc may accompany the victim for the medical examination. The FIR can be lodged from the hospital itself. A public or even a private hospital is bound to treat rape victims and they cannot refuse admission. It is their duty to then inform the police who will come to the hospital to record the statement of the victim. Anyone can get raped. Rape can happen anywhere: There is a general belief that rape is committed only by strangers in lonely places and dark corners. But the statistics for Maharashtra for 2012 reveal that 94% of the reported cases are by known persons. Fathers, step fathers, uncles, grand fathers, brothers, brother-in-law, other relatives, neighbours, teachers, doctors, police, boyfriends, his friends, etc are among the people listed among “known persons” who commit rape. [Even husbands commit rape, but this does not get recorded as rape, but it can be filed as an offence under S.498-A IPC cruelty to wives – as discussed in the earlier section, Rights of a wife.]

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All rapes are not violent, especially those committed by known persons Many a times the rape of a young girl is detected much later, when she is about 5-6 months pregnant. When she approaches the hospital to find out why she has missed her menstrual period, the fact that she has been raped is detected. So be alert and look for signs of any disturbance, anxiety or unusual behavior in a child. Penetration by penis into vagina is not important to prove rape: After the recent amendment to rape laws, it is not important to prove penetration of the penis into the vagina. All other sexual activity such as inserting fingers, or objects such as rods, sticks etc. into the vagina, anus or inserting penis into anus or mouth (oral sex) also constitutes rape. (The legal definitions are discussed later in this section.) The victim need not go to the Police Station to lodge an FIR - a relative, friend or social worker can lodge it: The victim may be traumatized after the rape or she may be injured or she may be very scared to go to the police station and narrate the incident to the police. A woman police officer, in civilian clothes, must visit her residence or meet her at any place where she is comfortable and record her statement. They must not come in police uniform so that the victim is not scared to narrate the incident to them. Are there any government schemes or support mechanisms for a rape victim? Yes. Recently the Maharashtra State has launched the Manodhairya scheme to provide financial support to victims of rape and acid attacks. The victims in all cases of rapes and acid attacks which occur after 2nd October, 2013 will be eligible under this scheme. District Compensation Boards have been set up under the District Collector (or District Magistrate) to verify the claim and sanction the amount. As soon as an FIR is filed, a copy of the same will be sent to the District Women and Child Development officer who will inform the Board and the amount will be sanctioned within a fortnight of filing the FIR. The final outcome of the trial is not relevant for claiming compensation. This

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amount is in addition to what the court may sanction as compensation or the compensation available under other government schemes. The government will also designate an officer or a social worker from an NGO on its panel as a support person to help the victim during the investigation and trial procedures. The victim can also have her own lawyer. If she has no financial resources, she can ask the state to provide her a lawyer from the legal aid panel.

b. Steps Involved in Investigating a Rape Case What are the stages involved in a rape case? The stages involved in a Criminal trial are:— Lodging of an FIR — Investigation — Trial — Judgment What is the meaning of an FIR? What should it include? The First Information Report (FIR) is an important document as the criminal investigation starts only after an FIR is lodged. It is not necessary for the victim herself to lodge the FIR. A relative or even a social worker or a well wisher can lodge the FIR. It can also be lodged by a police officer, if he/she knows about the offence. The FIR must contain a full description of the crime and the name of the person (if known) who committed the crime. The date, time, place, etc. as well as names of eye witnesses must be accurately stated. It must be read out so that the person understands what is written in it. If the person is not known, it must contain an accurate description of the person – age, complexion, height and built, type and colour of clothes he was wearing, etc.

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After the FIR is recorded, the complainant must sign the document and a copy will be provided to the complainant. Anyone who lodges the FIR will be called to court as a witness and will have to state what has been recorded in the FIR before the judge. Can the Police Refuse to Register an FIR? The police cannot refuse to register an FIR regarding a serious offence such as rape. If the police refuses to register the complaint, on the ground that the incident wasn't reported earlier, then the victim or her relatives must not give up. They must pursue the matter further and ensure that the FIR is filed. Even if a considerable period of time has passed since the incident of rape or molestation, the police cannot refuse to lodge the FIR and investigate the offence. What steps must be taken if the police refuses to register the FIR? If the duty officer refuses to register the FIR, meet the senior inspector who is in charge of the police station. If he also refuses, complain to the officer who is in charge of the area (Deputy Superintendent of Police / Deputy Commissioner of Police) in writing. If this does not work, three different strategies can be adopted. File a written complaint with his superior. If an organization is involved, ask them to take the matter to the higher level of the police, file a complaint in the magistrate's court and request the magistrate to direct the police to take action or approach a journalist and report about the callousness of the police in not recording the FIR. If the newspaper publishes a report, public pressure gets built up and the police will be held accountable and start acting immediately. This last strategy is the cheapest, quickest and works best. Note: You can also intimate to the Maharashtra State Women's Commission (MSWC). The Commission will immediately act on the complaint and investigate into the matter. The Commission is a quasi judicial body and has the power to summon the concerned police officer, enquire into the matter regarding non-registration of FIR or direct the officer to take immeidae action in the matter.

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What precaution and procedure is to be followed during the medical examination of a rape victim? In rape cases, the medical report is an important document and hence a victim who approaches a hospital, either private or public, must be given immediate treatment and forensic evidence must be collected. A doctor cannot refuse to do this. The victim must be taken to the hospital for medical examination at the earliest and in any event, not later than 24 hours from the time of recording the FIR. After this the medical evidence will lose its value. The victim must be examined by a lady doctor. If a lady doctor is not available, then the presence of a female staff or nurse in the examination room is essential. Family members should also be allowed to be present during the examination. Even if the medical report does not prove rape, the case must be filed and investigated by the police. Rape is a crime and not a medical condition, hence the doctor cannot be the sole expert regarding the commission of the crime. The only statement that can be made by the medical officer is whether there is evidence of recent sexual activity and whether there is any physical injury. Whether or not an offence of rape is committed is for the police to investigate and the court to decide after considering all the evidence produced before it. If the victim wants only treatment and does not want to be examined physically or internally, the doctor has to concede to her wishes. Consent of the victim is mandatory under S.164 A of the Cr.P.C and the victim cannot be made to undergo medical or internal examination against her wish. The primary role of the doctor is to provide care, not to provide evidence for a criminal trial. The doctor must keep this in mind. Two Finger Tests are Banned: Under various Supreme Court guidelines and the recent medical protocols issued by the Ministry of Public Health, Government of Maharashtra the “two finger tests” is banned. (The procedure of inserting fingers into the vagina of the victim for asserting the elasticity of the vagina to ascertain her past sexual history is very painful, degrading and

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humiliating to the victim.) Despite this, the medical officers still routinely conduct these tests. These tests are not only painful but they are used to discredit the victim and cast aspersions on her character during the cross examination in court by defense lawyers. The victim has a right to have a free copy of the medical report. What are the other steps involved in the investigation? Recording Statement of the Victim: If the victim herself has not filed the FIR, her statement will be recorded in detail later. She must inform the police about the offender – whether it was her father, friend, neighbor or a stranger. She must also describe what the person did – inserting penis, inserting objects, anal sex, oral sex etc. She can narrate the incident to the police in the language that she is the most comfortable in. Generally a female officer will record the statement. If a female officer is not recording the statement, she may request for one. Visiting the Scene of the Crime: The police will take the victim to the place of the offence in order to understand what exactly happened and to collect evidence. If at home, the bed sheet, mat, towel, soap (with which the victim / accused washed themselves), clothing worn at the time of the crime, mobile phone, etc. will be seized and sealed. If the offence has taken place in a field or forest, grass, twigs, mud samples, etc, will be collected. Seizing the Material from the Scene of the Crime: When any material is taken in possession by the police (seized by the police) there should be independent witnesses known as “panchas” who will sign a document stating that they have seen the police seizing the material. They will also have to depose in court later during the trial. So it is important to have reliable people as “panchas”. Releasing the Accused on Bail: The accused person who is arrested will be produced before the magistrate or the sessions court depending upon the nature of the crime. He has a right to apply for bail when he is produced in

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court. The PP or the lawyer for the girl must argue against the bail if there is a risk of witnesses getting intimidated. In most cases of rape and child sexual abuse the accused is not granted bail until the trial is over and in such cases, the trial is usually carried out expeditiously and is over within one year from the period of filing the FIR. Identifying the Accused: If the accused is an unknown person, it is important that a clear description of the accused is given at the time of lodging the FIR. After the police have arrested the accused, they may ask the Special Executive Magistrate (SEM) or any person of a similar or comparable ranking to organize a test identification parade in a neutral place in the presence of “panchas”, and the victim will have to identify the accused from a group of around 8 persons. Recording Statements of other Witnesses: The Police will record the statements of other witnesses and persons connected to the incident. Collecting Medical and Forensic Reports: The police will also collect reports from the hospital as well as the forensic department which will form part of the police investigations. Before conducting any tests or collecting blood samples, it is mandatory for the doctor to obtain the consent of the victim (S.164A, Cr.PC). What is a Charge sheet? After completing the investigations, if there is sufficient evidence to proceed with the trial, the police will file a charge sheet and submit it before the trial court. Thereafter, the case will no longer be with the police but the matter will be taken up by the court and the trial will start. The rape trial is usually conducted by a sessions court (a higher court than the magistrate's court). If there is no sufficient evidence to proceed with the trial the police will file a “failure report” and the case will be closed.

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c. Procedures Involved in a Rape Trial What is the procedure to be followed in a rape trial? When the case comes up for hearing in the sessions court, the sessions judge will scrutinise the charge sheet filed by the police and frame the charge. The accused will be asked if he wants to plead guilty or not guilty. If he pleads guilty he will be convicted and sentenced. If he pleads not guilty, a date for the trial to start will be fixed. The public prosecutor will conduct the trial on behalf of the state (police) based on the charge sheet that is filed. The Investigating Officer (IO) of the concerned police station will help the public prosecutor. The first person to be examined in the court will be the person who has filed the FIR – usually it is the victim herself or her mother. The victim is an important witness in a rape trial. Conviction will depend upon her evidence as well as other documentary evidence such as medical and forensic reports. There will also be many other witnesses including her relatives and other eye witnesses, the person who filed the FIR, the police who recorded the FIR, etc. Each person who gives evidence will be cross examined by the lawyer for the accused, called the defense lawyer. The entire trial may last for about one or two years. At the end of the trial, the final judgment will be delivered and either the accused will be convicted if the offence of rape is proved, or he will be acquitted if it is not proven. If the accused is convicted he will be punished according to the stipulations in the Indian Penal Code (IPC) which include imprisonment and fine. Part or whole of the fine can be awarded to the victim as compensation. Protection to the victim during the trial Attending court and giving evidence is the biggest anxiety a rape victim experiences. If she is well prepared, her anxiety will be reduced and she will be

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able to give better evidence in court which will help in proving the offence and in convicting the accused. If there is a support person who is well versed with the court room procedures, it will greatly help in reassuring the victim / survivor and helping her to depose with confidence and without contradictions. This will also help in securing conviction. When a victim is giving evidence in court before the judge, the procedure will be held “in camera” i.e. behind closed doors (where the general public, other lawyers or reporters, or even male police officers are not to be allowed to remain present. Only those related to the case are allowed to be present.) As far as possible, the judge, the public prosecutor, the court staff, and even the court peon will be women. The accused and his lawyer will also be present but a screen will be placed between the victim and the accused so that she does not see him directly in front of her when she is giving evidence. The defense lawyers cannot ask insulting or humiliating questions during the trial. The victim's past sexual history cannot be used as evidence in a rape trial. The public prosecutor or the judge can object to such kind of questioning. If she feels tired she need not stand in the witness box but she can ask for a chair to sit down. She can ask for water. If she is feeling sick, faint or unwell she can ask for an adjournment. If she cannot understand a question put by the defense lawyer, she can ask the judge to explain it to her in a simple language. If a child under 18 (girl or boy) is sexually abused, the trial will be in a special court constituted under the POCSO Act, which will not have the appearances of a formal court room. The proceedings can be held in the judge's chamber which will look like any ordinary room where everyone including the judge will wear informal clothes. Even while the victim is waiting, the victim must be given a separate place to sit so that his/her privacy and confidentiality is maintained. The victim must be given refreshments if he/she is waiting for a long time. There should be frequent breaks during the trial. The defence lawyer cannot ask questions directly to the victim but must give the questions in writing to the

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judge who will then examine the relevancy of the questions and ask only those questions which he believes are relevant.

d. Protection to Victims during Investigation and Trial Maintaining the dignity and respect of the victim, her care, treatment and rehabilitation are the most important factors in a case of sexual crime, not just the final outcome of the trial. Our criminal justice system will be judged by the care and compassion shown to the victims of sexual crimes and not by its rigour and efficiency in convicting the accused. How is the dignity and privacy of the victim to be protected during investigation and trial? The police must maintain a woman's right to privacy while recording her complaint / statement. A woman officer must record her statement in a safe and secure area that is not crowded. If there is no woman officer present, the male officer must record the statement in the presence of a woman police constable. At all times the victim's privacy, confidentiality and dignity must be maintained. The identity of a rape victim cannot be revealed by the police or the media. S. 228-A of IPC makes the disclosure of a victim's identity a punishable offense. Printing or publishing the name or any matter which may make known the identity of a woman against whom an offense has been committed is punishable. This is done to prevent the woman from being stigmatised and further humiliated in her neighbourhood, place of work or by the media. Under S.164 of Cr.PC, a victim's statement can be recorded before a judicial magistrate (JMFC or MM) in confidence and kept in a sealed cover to be used during the trial. The court can rely upon this statement as though it has been given on oath at the trial court. When the trial starts, the police must keep the victim informed about the progress of the case and give sufficient notice regarding when she will be called

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to court to give evidence. When the date is approaching, she will be asked to read the copy of her statement made to the police to refresh her memory. If a support person is appointed, the victim must be taken to court in advance and shown the court room, etc, and must be explained the procedure in court. This is called a “court familiarization visit”. This can also be done by the social worker of a designated NGO or a support person (a government official who has been appointed to perform this role). The public prosecutor must meet the victim before the trial and explain what to expect during the trial and prepare her to answer questions which may come up during the cross examination. This will help to put the victim at ease.

e. New Definitions of Rape and Sexual Offences What are the special measures to deal with child sexual abuse? In 2012 a separate Act was passed to deal with issues of child sexual abuse, Protection of Children from Sexual Offences Act (POCSO), 2012. The Act gave a broad definition of sexual abuse so that many kinds of non penetrative sexual acts could be punished under it, it also prescribed stringent punishment and provided child friendly procedures for investigation and for conducting trial. Why was it enacted? There were many cases where children were subjected to sexual abuse of various kinds such as touching private parts, inserting fingers and other objects into the vagina, anus, etc. and forcing anal and oral sex, creating pornographic material and circulating it. In order to bring all these different kinds of sexual offences under a single statute, this Act was passed. The Act has helped to bring into focus the widespread phenomenon of child sexual abuse in our country.

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What are its special features? — It provides protection to both boys and girls under the age of 18 years. — The law is gender neutral and both men and women can be punished under it. — The word 'rape' is replaced by 'sexual assault'. — The Act provides for special measures to protect the victim both at the stage of investigation and trial. — It provides for mandatory reporting and renders non-reporting an offence. What are the different categories of offences and the prescribed punishment for the same? The following table contains the relevant section, the type of offence which is punishable and the prescribed punishment for the same. Section


Punishment

S. 4

Penetrative Sexual Assault

Minimum seven years imprisonment, Maximum imprisonment for life and fine

S. 6

A g g r a v a t e d Pe n e t r a t i v e M i n i m u m t e n y e a r s Sexual Assault imprisonment, Maximum imprisonment for life and fine

S. 8

Sexual Assault

Minimum three years imprisonment, Maximum imprisonment for life and fine

S. 10

Aggravated sexual assault

Minimum five years imprisonment, Maximum seven years and fine

S. 10

Sexual Harassment

Maximum three years and fine

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Punishment

S. 14

U s e f o r p o r n o g r a p h i c Maximum five years and fine purposes (The Punishment varies depending upon the severity and role of the person in commission of the offence)

S. 15

Storing of pornographic Maximum three years and material involving a child for fine commercial purposes

S. 17

Abetment

Same as the punishment provided for offence which is abetted

S. 18

Attempt

One-half of imprisonment of the description provided for the offence or, as the case may be, one-half of the longest term of imprisonment provided for the offence committed

S. 21

Failure to report the offence

Maximum six months or fine or both

S. 22

False Complaint or False Maximum six months or fine Information or both

S. 23

Confidentiality

Minimum six months, Maximum one year or fine or both

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Section


IPC Sections at a glance IPC Sections Description S. 376

Rape which also includes all types of forcible and invasive sexual assaults

S. 377

Unnatural Sex (applicable to boys over 18 who are violated by anal or oral sex)

S. 354

Violating Modesty

S. 509

Insulting with obscene gestures and words

When and why were IPC provisions concerning rape and sexual offences amended? After the gruesome rape and murder of a student in a bus in Delhi there were public protests which led to an amendment of the IPC sections dealing with rape and sexual crimes. These amendments broadened the definition of rape and hence, today there is not much difference between the IPC provisions of rape and sexual crimes and the provisions under POCSO. What are the important developments within the law dealing with sexual offences after the recent amendments? Earlier only when there was penetration of the penis into the vagina it was considered to be rape. All other kinds of sexual abuse were not considered serious and they were treated as minor offences, i.e. molestation or unnatural sex. Now the definition has been widened to include the following actions as well: — Penetration not just of the vagina (female sexual organ) but also mouth (oral sex) anus (anal sex or unnatural sex) or urethra — Penetration not only by the penis (male sexual organ) but also by objects such as sticks, rods, etc. and other body parts such as fingers, tongue, etc.

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What is the difference between POCSO and IPC provisions regarding sexual offences? While the definition of the offence of rape / penetrative sexual assault is the same under both the enactments, the procedures for investigation and trial are more child friendly under POCSO. These cases will be dealt with by a special court. Another major difference is that while S.376 IPC can be invoked only in cases of women who are sexually violated, POCSO can be applied to girls as well as boys who are under 18 years of age. What is meant by aggravated forms of rape / sexual assault? Aggravated sexual assault consists of three types - committed by persons in authority, causes grave injury or harm or in aggravated circumstances. — When the offence is committed by a person in authority – police, army, government officials, wardens, and superintendent of jail and shelter homes, etc., by doctors in hospitals, teachers in schools, or by any person in the family such as fathers, uncles or anyone residing in the same household as the victim, etc. — When the sexual acts causes grave injury, permanent disability, illness, pregnancy, etc, or if the victim child is below 12 years — Aggravated circumstances include situations of gang rape, rape during communal violence or caste conflicts, etc., repeat offenders, etc. The punishment for aggravated types of assault is harsher – a minimum of 10 years and a maximum of life imprisonment. What is the new definition of Rape under IPC The new definition of rape is in section 375 which includes — Penetration of the penis, to any extent, into the vagina, mouth, urethra or anus of a woman or if he makes her to do so with him or any other person; or

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— Insertion to any extent, any object or a part of the body other than the penis, into the vagina, the urethra or anus of a woman or if he makes her to do so with him or any other person; or — Manipulation of any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any body part or if he makes her do so with him or any other person; or — If he applies his mouth to her vagina, anus, urethra or makes her to do so with him or any other person. The above acts amount to rape if they are committed without the consent and against the will of the woman. What are the situations in which even if consent is given, it is not a valid consent? Even if the consent of the woman is given to the above acts, it will amount to rape under the following circumstances: — When consent has been obtained by putting her or any person in whom she is interested, in fear of death or hurt. — When the man knows that he is not her husband and she gives consent because she believes him to be her husband. — When she is unable to understand the nature and consequence of the act to which consent is given due to intoxication, administration of any stupefying or wholesome substance or due to certain mental unsoundness wherein she is unable to understand the act to which she gives her consent. When is the offence of rape considered as “aggravated”? S. 376 (2) states that under the following circumstances the offence of rape shall also be committed and the punishment prescribed for the same is more stringent.

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— By Police Officers — By Public Servants — By Armed Forces — By Management or staff of a jail, remand home, women or children's institute — By Management or staff of hospitals — By a relative, guardian or teacher or a person in a position of trust and authority — During communal or sectarian violence — Rapes a woman, knowing her to be pregnant — Rapes a woman below 16 years — Rapes a woman who is incapable of giving consent — Rapes a woman over whom he is in a position of control or dominance — Causes grievous bodily harm, maims, disfigures, endangers the life of the woman — Rapes her repeatedly What are the newer sections which are included in the Criminal Law Amendment Act, 2013? The newer sections that were added are 376A, 376B, 376C, 3876D and 376E. The explanation for each of these is given below. S.376A Injury which causes the death of the woman or causes the woman to be in a persistent vegetative state During the commission of the offence of rape, if a man inflicts an injury which causes the death of the woman or causes the woman to be in a persistent

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vegetative state, then such an act shall be punishable with a stringent punishment. S. 376B Sexual Intercourse by husband upon his wife during separation If a husband, living separately (with or without a decree of separation) from his wife has sexual intercourse with his wife, without her consent shall be punished with a stringent punishment. S. 376C Sexual Intercourse by a person in authority If a man who is in a position of authority or fiduciary relationship with a woman or public servant or superintendent /manager of a jail, remand home or other place of custody or management / staff of a hospital, abuses his position or seduces a woman under his charge or in his premises to have sexual intercourse with him, then he shall be punished for the offence of rape, with a stringent punishment. S. 376D Gang Rape If a woman is raped by two or more persons constituting a group or acting in furtherance of a common intention, then each person is said to have committed the offence of rape and shall be liable to be punished with a stringent punishment. S. 376E Repeat Offenders If a man has been previously convicted for an offence under Ss. 376, 376A or 376D, then such person shall be punished with a stringent punishment. What is meant by non penetrative sexual assault? When the act does not involve penetration of any object, but involves only touching a person with sexual intent, touching of private parts, or humiliating a person by disrobing, parading naked, molesting, etc it amounts to non penetrative sexual assault. Under POCSO this is a special category. But under IPC, the various offences are listed under Section 354 – violating modesty.

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This also includes offences such as stalking (consistently following a person), voyeurism (peeping or photographing while the woman is having a bath, changing her clothes, or using the toilet), disrobing a woman or child or parading them naked, showing pornography, creating storing or distributing pornographic material involving a particular woman or child, etc. insulting a woman or a child using abusive language, etc. What is the wider definitions of 'sexual offence' under IPC? S. 354 Assault or criminal force to a woman with intent to outrage her modesty If a man assaults or uses criminal force on any woman with the intention of outraging her modesty or knowing that it is likely to outrage her modesty, then he shall be punished under this section. S. 354A Sexual Harassment If a man makes physical contact and advances, demands or requests for sexual favours, shows pornography against the will of a woman or makes sexually coloured remarks, then he shall be punished under this section. S. 354B Assault or criminal force to a woman with intent to disrobe If a man assaults or uses criminal force against a woman with the intention of disrobing her or compels her to be naked, he shall be punished under this section. S. 354C Voyeurism If a man watches or captures the image of a woman in a private act or disseminates such an image, he shall be punished under this section. A private act includes an act where the victim does not expect to be observed by the man or any other person at his behest. (If the victim consents to the capture of the image but not to dissemination, then only the dissemination shall be punishable.)

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S. 354D Stalking If a man follows or contacts (or attempts) a woman despite a clear indication of disinterest by her, or monitors the use of internet, email or other electronic communication by her, then he shall be punished under this section. Are obscene words, gestures and acts also punishable? Yes. They are punishable under S.509 of IPC which states that if a man utters any word, sound, gesture, exhibits any object with the intention that it is heard or seen or intrudes the privacy of a woman, then he shall be punished under this section. What are the rights of a woman under the IPC, eve teasing / stalking, voyeurism, etc. after the recent amendments to IPC? After the recent amendment to IPC, the sections 354 and 509 have been amended and also newer provisions have been added to Section 354. So if a woman is violated by any of these acts she can immediately approach the police and file a complaint. The following table will give a clear understanding of the new offences which are included under Sections 354 and 509 of IPC. IPC Section

Punishment

S. 354

Imprisonment for minimum one year, maximum five years and fine, or both

Sexual Harassment

S. 354A

Imprisonment for three years, and fine, or both

Assaulting or use force to disrobe a woman or parading her naked

S. 354B

Imprisonment for minimum three years, and maximum seven years and fine, or both

Voyeurism - peeping into the private space of a woman (while she is bathing or changing)

S. 354C

Imprisonment for minimum one year, Maximum: three years and fine, or both

Crime Outraging the modesty of a woman (Physically)

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Stalking – following a w o m a n c o n s i s t e n t l y, physically or by sms or emails, or through letters, emails, phone calls, sms etc Eve-teasing

IPC Section

Punishment

S. 354D

Imprisonment for minimum one year, and maximum three years and fine, or both

S. 509

Imprisonment for maximum three years and fine, or both

What are the rights of a woman when her obscene/derogatory pictures are shown in social media/facebook? The woman can file a complaint under the above IPC section and she can also register the complaint under the provisions of offences under the IT (Information Technology) Act. In every district there are special police stations to register complaints under the IT Act. Abetment and Attempt to commit the above offences is also punishable and is covered above. What are the other protections given to women? Her confidentiality must be maintained by the media. Disclosing her uidentity is punishable. Confidentiality to be maintained by Media It shall not be lawful for any person to print or publish any matter in relation to proceedings under Ss. 376, 376A, 376B, 376C, 376D, 376E except with the previous permission of the Court. S. 327 (3) Cr.PC The ban on printing or publication of trial proceedings as mentioned above may be lifted, subject to maintaining confidentiality of name and address of the parties. S. 327 (3) proviso Cr.PC.

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Crime


A victims's Character or Character of the Victim and Past Sexual History cannot be used as evidence during a rape trial — In the prosecution of an offence under Ss. 354, 354A, 354B, 354C, 354D, 376, 376A, 376B, 376C, 376D, 376E or an attempt to commit such an offence, evidence of the character of the victim or her previous sexual experience with any person shall not be relevant for the issue of consent or the quality of consent. S. 53A IEA — In a prosecution of an offence under Section 376, 376A, 376B, 376C, 376D, 376E or an attempt to commit the same, it shall not be permissible to adduce evidence or put questions in cross examination to the victim about her general immoral character or previous sexual experience with any person for proving consent or quality of consent. S. 146 IEA Onus of Proof is on the Accused with regard to Consent Under S. 376 (2) where sexual intercourse by the accused is proved and the question of consent arises, if the victim states in her evidence before the Court that she did not consent, then the court shall presume that she did not consent. S.114A IEA. What is the time frame to be observed by various agencies Medical Examination: Within 24 hours of receiving information of such an offence it is mandatory for the Police to send the victim for a medical examination to a registered medical practitioner. S.164A, Cr.PC Charge sheet: The Investigating Officer should submit the charge sheet to the Judicial Magistrate within 14 days of recording the FIR. Maharashtra Police Manual Rule 212 (2) Trial: The proceedings of the trial shall be continued from day to day until all witnesses are examined, unless the Court finds the adjournment necessary and records reasons for the same. S. 309 (1) Cr.PC. The trial shall as far as possible be completed within two months for the date of filing the charge sheet. S. 309 (1) Proviso Cr.PC

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f. Manodhairya Scheme for Financial Assistance When was the scheme launched? The Government of Maharashtra launched the Manodhairya Scheme on 2nd October, 2013. Why was it launched? It was launched to provide financial assistance and facilitate rehabilitation of a victim of sexual crime and acid attack. Who can apply for compensation under the scheme? All cases filed and incidents after 2nd October 2013 Victims of Rape (S. 376, S. 376 (2), S. 376 A, B C, D E) or their legal heirs Victims of Child Sexual Assault (POCSO Act, 2012 S. 3, S.5) or their legal heirs Victims of acid attack or their legal heirs (S. 326, S. 326A) What is the amount of compensation which can be awarded? The amount varies from Rs.50,000/- to Rs.3,00,000/- depending upon the seriousness of injuries caused and the aggravated nature of the offence. When will the amount be given to the victim? The amount will be disbursed within 15 days from the date of receiving the information by the Board. Who will implement the scheme? District Criminal Injuries Relief and Rehabilitation Board which are set up in every district is responsible for implementing the scheme.

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What is the Composition of the District Criminal Injuries Relief and Rehabilitation Board? 1.

District Collector

Chairperson

2.

ACP nominated by Superintendent of Police (rural) or Commissioner of Police (urban)

Member

3.

District Medical Officer

Member

4.

District Government Pleader and Chief Public Prosecutor

Member

An expert (preferably woman) worked for empowerment of women and children, from the social field.

Member

District Women and Child Development Officer

Member Secretary

5.

6.

What is the procedure for distributing the amount? No

Offence

Time

1.

Rape

75% will be kept as fixed deposit for a period of three years and 25% will be given to the victim / guardian to be used for expenses.

2.

Acid Attacks 75% of the amount for treatment and 25% will be kept in fixed deposit.

3.

Child victim Amount to be used for development of the child. illiterate District Board to decide amount to be deposited in the child's minor account.

4.

Minor victim 75% of the amount will be kept in Fixed Deposit and given to the child at 18 years. 25% of the amount can be used for the child's welfare

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What is the District Trauma Team To aid and assist the rape and acid attack victim and their families in order to overcome the trauma caused by the assault. The team would provide immediate medical relief, emotional counseling, assistance in filing of FIR and follow up. Besides, the cell would also act as the co-coordinating agency for the services like, medical, mental health, shelter, vocational training, financial assistance to the victims. Free legal service will be provided to the victim from the time the complaint is lodged in the police station. The lawyer would help in opposing bail applications of the accused and also assist the Public Prosecutors in the preparation of charge sheet and arguments etc. They would also help the victim by preparing her to face court proceedings. Who are the members of the District Trauma Team Support Person (For Child – District Child Protection Unit / Probation Officer. For Adult – District Protection Officer): The support person will be the point of contact for the victim and shall assist the victim through the process of investigation and trial and provide support, reassurance and guidance. — The other persons in the team are as follows — The designated Police officers — The designated Medical Officer (Private or Representative from Dist. Govt Hospital) — Counsellor - (Private or Representative from Dist. Govt. Hospital) — Lawyer - (Private or Representative from Legal Aid)

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Chapter VIII. Women's Right to Property

Introduction The Hindu Succession Act, 1956 is the first attempt to provide property rights to daughters. Prior to this, Hindu law did not grant daughters as rights as it was assumed that the daughter will leave her natal family and reside in her husband's house and she will have rights in that household - rights of residence and maintenance and if she became a widow she also had limited rights to the property held by her husband. One important aspect of women's rights campaigning has been for the introduction of a law to protect the rights of Hindu women. Now, despite this right having been achieved, Hindu families continue to deprive their daughters of the right to inherit parental property by making a will in favour of their sons. Relatively, a Muslim woman's rights are more secure as they have a fixed share in the property of their fathers. But we often see that it is routine to deprive daughters of their rightful share in their parental property.

a. Difference in the Character of Hindu and Muslim Property What are the main difference in the characteristics of Hindu and Muslim Property? Hindu Law recognizes two types of property - Separate or Self Acquired Property and Joint Family Property, which is also known as HUF (Hindu Undivided Family) Property. Amongst Muslims (and also among Christians, Parsees and others) there is no concept of HUF property and all property irrespective of whether it is earned or ancestral, is treated as the separate property of a person who owns it. It is also important to know that amongst tribes there is no concept of self owned or joint property and property is owned by the clan and the notion of community property or common land prevails. Most North Eastern States and some tribal belts are governed by different rules of property control.

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What are the special characteristics of HUF Property? Traditionally, HUF property could not be sold, gifted or willed away as it was held jointly with all male members of the family (known as coparceners) for the benefit of the family. This was mainly agricultural property and was retained within the family from one generation to the next, for many generations. Upon the death of a male member, the remaining male members (coparceners) became joint owners of the property. Women as wives, daughters, mothers and widows could not own this property, but they had the right to be maintained from the produce of this property. All expenses of education, marriage and funeral had to be met from the earnings of the HUF property. What are the characteristics of Property Laws of Muslims? Amongst Muslims, all property is considered as the separate property of the person owning it. Not more than one third of the property can be willed or gifted away and the heirs will inherit the property. The shares are determined by Quranic principles and the rules governing the Sunni and Shia sects.

b. Property Rights of Muslim Women Under Muslim Law, how is a woman's share determined as per Quranic principles? Under Muslim law the woman is considered as a fixed inheritor of her father's property. But her right is not equal to her male counterpart, it is half of what the male will inherit. What is a 'Will'? A 'Will' is a legal document through which the owner of property can express his/her wishes regarding the distribution of the owner's property after his/her death. The document must contain a detailed list of all property and must contain clear instructions regarding its distribution including charitable purposes etc. The beneficiaries need not be legal heirs. Through this process

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all property can be given to one or some legal heirs, depriving the other legal heirs or all property can be given to a charitable cause or a distant relative who is not a legal heir. The document must be signed by the person making it in the presence of two witnesses. The person making the will must be in a good mental state. It should be executed with the free will and consent of the person without anyone exerting any undue influence or pressure. Usually, this document is registered, but even if it is not registered it remains valid. This is a concept of English law. Traditionally both Hindu and Muslim law did not recognize it. But it was given validity under Hindu Law after the Hindu Succession Act was passed. The concept could be applied only to the separate property of a person and not to HUF property.

c. Property Rights of Hindu Women What are the Inheritance Rights of Hindu Women? Under Hindu Law, women had no right to inherit property until 1956. In 1956, under much opposition from various sections, the Hindu Succession Act of 1956 was passed which gave widows and daughters equal rights to inherit the property of their husbands / fathers. But women were not given rights over the HUF property (ancestral property). When property rights were granted to Hindu women, the men were granted the right to make a will for the separate property, hence, the rights awarded to women were rendered illusory, which existed only in the statute but not in reality. To remedy this, in 2005 an amendment was made to the Hindu Succession Act, and women were made coparceners (or joint holders) in the HUF property. So today, women have equal rights in both HUF Property as well as separate property. This almost seems as though women have greater advantage as they have dual rights – rights in their parental home as well as in their matrimonial home. Despite this, rather unfortunately, very few women actually get their due share in the family property.

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How are women disinherited of their rights to property? Though women have equal rights to the property of their husbands / fathers, this principle applies only if the man dies without making a Will. If the man has made a Will, and given the property only to his sons, then the principle of equal inheritance will not apply and property will devolve as per the stipulation in the Will and not as per the rules of the Hindu Succession Act. Also a custom followed by many business or landed families is to give the daughter gifts at the time of her marriage and obtain her signature on a document stating that she has received her share in the family property and she will not claim any further rights in the property after her marriage. Through this process her rights are extinguished. Can the Will be Challenged? The Will can be challenged only if it is made fraudulently by forging the signature or by using undue influence or if it is made when the person making it was very ill and not in a conscious state of mind. It cannot be challenged if it is made when the person making it was in full control of all his faculties. Why do women sign documents giving away their right over their property to their brothers? Most women are extremely reluctant to fight for their rights in their parental home as it will make them appear like greedy women. They also feel that if they fight for their right to property, then their parents and their brothers will not support them if they face problems in their husband's home. So, though Hindu women are given rights to property in their parental home, very few women exercise this right. Also the legal battle to claim property rights against their family members is a long drawn affair and they may not have the economic and emotional strength to sustain it. Rather than enforcing their right to landed property, they are happy to accept gifts from their families at the time of festivals and family functions and are content to have the security of feeling that they are welcome in their native family home.

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What can be done to change this situation? Both men and women need to have greater awareness and acceptance about women's right to property inheritance. Rather than approaching the courts, it is better to have negotiations and settlements regarding women's share in their native family property. At times women are happy to accept a lesser share and accept cash or valuables instead of agricultural land or a share in family business. But they need to be aware of their rights and the need to establish these rights. Only then will they be able to negotiate. Even the negotiator or mediator must be aware of women's rights to property and must not view those women who are staking a claim to their property as 'greedy' women.

d. Concept of Matrimonial Property What is matrimonial property and why is it important to women? After marriage, traditionally, women do not prefer to claim share in the property in their native home, but prefer to have equal rights to the property in their husband's home and prefer to claim this right. Most often they are deprived of this right as the husband is considered to be the sole owner of the property which stands in his name. If she becomes a widow then to some extent her rights are protected. However, during the subsistence of marriage, the wife has no right. During marriage and after divorce, her only right is to maintenance. In most countries the property acquired after marriage is considered as the joint family property of the couple. But this is not the law in India. So, the husband and his family think that they can throw the wife out of the home if there is any dispute or after divorce. Due to this, women become poor / destitute after divorce or separation. Hence, it is important to secure the property rights of women after marriage. How are women's right protected by the Protection of Domestic Violence (PWDV) Act?

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This Act has introduced the concept, 'shared household' and has protected the right of women as daughters, wives, widows and divorcees to reside in the

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home in which they have been residing after marriage or in their father's home. But the provision does not give women any right to a share in this property. It only protects their right to reside in these premises so they are not rendered shelter less. Is there any move to give legal recognition to the concept of matrimonial property in India? Recently there has been a movement to introduce the notion of matrimonial property in a limited sense, in cases where the husband wishes to obtain a divorce on the ground of irretrievable breakdown of marriage (no fault divorce). But this will apply only to very few cases and only those under the Hindu Marriage Act and Special Marriage Act, and not in all cases. How else can women's right to property be protected? It is important that in all negotiations women's right to some share in the husband's property and their right to a shelter must be negotiated. Some government schemes have been introduced where women are given recognition as joint owners of property when land is distributed and the land 'pattas' are given in joint names. It is important for women to be aware of these schemes and they must ensure that their names are added to all land records. When there is a settlement for separation, the woman should be given her share in the property and the negotiator must insist on it during the negotiations on behalf of women.

e. The Daughter's Rights to Reside in her Parent's home What right does a daughter have against her parents? A daughter has the right to be loved and to be treated equally alongside her brother (if any). She has a fundamental right to education and the right to choose her own occupation or profession. She has a right not be forced into marriage when she is a minor. Even when she is a major she has the right to choose her own partner and her parents cannot force her to marry a man against her wishes.

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She also has a right to inherit her parents' property along with her brother in equal share. After the amendment to the Hindu Succession Act in 2005, a Hindu daughter is also a coparcener and has an equal right, just like her brother, in the ancestral property of her parents. If her marriage breaks down, she has a right to return to her parents home and reside with them. How can a daughter enforce her right of residence in her parental home? If the daughter is being threatened by her parents that she will be thrown out of her parental home, she can approach the magistrate's court and ask for an injunction restraining the parents from throwing her out. If she is unmarried and not earning, she also has a right to claim maintenance from her parents. At times when a girl elopes with her boyfriend, the parents file a case of rape against the boy in order to pressurize her to end the relationship and agree to marry the boy of her parent's choice. In such a situation, the girl can inform the police that she has gone with the boy out of her own choice and that it is not a case of rape or kidnap. If she feels that she is not safe in her parent's house she can even ask to be moved into a shelter home until she is able to marry the boy of her choice.

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Chapter IX. Rights of Working Women

Introduction The Constitution of India mandates that women must be treated as equals and prohibits any discrimination against women in all areas, including education, vocational training, skill development and employment. In order to ensure that women get a fair and adequate opportunity of employment, the constitution also mandates reservation for women in educational institutions and in employment in the public sector. Our Constitution also protects the rights of women workers by ensuring that their health and safety is duly protected in the course of employment, particularly those of pregnant women and breast feeding mothers. The Constitution also safeguards the dignity of women workers and ensures that they are provided a safe working environment free of sexual harassment. In order to fulfill the Constitutional mandate all labour laws contain special provisions regarding the health and safety of women workers by regulating their working hours and by reducing the burden women have to carry. In order to ensure equality the law also mandates that both men and women will be paid the same wages for the same or similar type of work. Recently, a special law has been enacted to protect women against sexual harassment at the workplace. The rights of women under different labour laws are discussed in this section.

a. Special Protection to Women under the Labour Laws What are the special laws which are enacted to provide adequate protection to women workers? The following laws are specially enacted to provide further protection to women workers:— The Equal Remuneration Act;

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— The Maternity Benefits Act; and — The Protection of women from Sexual Harassment Act. They are applicable only to women and have been enacted to provide special protection and safety for the special needs of women. Does enacting special law for women amount to discrimination? No, enacting special laws for women does not amount to “discrimination”. The power to enact special laws for women is given to the legislature under Article 15 (3) of the Constitution which stipulates that providing for additional safeguards to women is not discriminatory but will enhance the principle of equality, as it will help women to overcome the wrongs they have suffered for centuries.

b. Rights under the Equal Remuneration Act How does the Equal Remuneration Act safeguard women's Rights? Under the provisions of this Act, every employer is under a legal obligation to pay the same wages for men and women if they perform the same work or work of a similar nature. Even if it is being performed at different places, the salary has to be the same. An employer cannot discriminate against women while recruiting unless employment of women is prohibited or restricted by law. Thus, in matters of recruitment, promotions, training and transfer, the employer is prohibited from discriminating against women. Who is responsible for ensuring that the provisions of the Act are strictly followed? The responsibility of ensuring that the provisions of the Act are strictly followed and also that there is no discrimination between men and women in the sphere of recruitment, promotions and training lies with the employer. It is also the responsibility of the employer to maintain proper registers, documents or muster rolls, etc. which can be scrutinized by the labour officer of the district.

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Any woman who faces discrimination in these aspects can file a complaint before the labour officer of her area.

c. Rights under the Maternity Benefits Act What rights does this Act give women? According to the provisions of this Act, every woman worker is entitled to maternity benefits at the rate of the average daily wage for the period of her actual absence, which is a period immediately before the day of the delivery, the actual day of delivery,to the period immediately after the delivery. Overall a pregnant woman is entitled to 12 weeks of paid leave, six weeks before her delivery and six weeks after her delivery. To whom does this Act apply? This Act applies to all women in the organised sector such as factories, mines, planatations etc. It is also applicable to every shop and establishment in which ten or more persons are employed or were employed, on any day of the preceding 12 months. The State Government is empowered to apply the provisions of this Act to any other establishment, whether industrial, commercial, agricultural or otherwise, by giving a notice of not less than two months. Does the Act also provide for safety measures for women during pregnancy? It protects women from performing physically intense activities which may hinder the normal development of the foetus, which is likely to cause miscarriage or adversely affect their health, during the period of one month immediately preceding the period of six weeks, before the date of expected delivery and during any period of six weeks before her delivery, if she does not avail of her leave during this period. During the last stages of pregnancy, women should not be assigned any difficult work which may affect the pregnancy.

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Are women also protected during illness caused by pregnancy or during delivery? The Act stipulates that any woman employee suffering from illness arising out of pregnancy, delivery, pre-mature child birth, miscarriage, medical termination of pregnancy or tubectomy operation is entitled to leave with wages at the same rate as maternity benefits for a maximum period of one month. This leave period is in addition to the period of absence allowed to her for any other reason, as applicable under the Act. Does Maternity Benefit cover miscarriage and Medical Termination of Pregnancy (MTP)? From 1995, the benefits of this Act have been extended to cover miscarriage as well as MTPs. Hence, even after an abortion a woman can claim the benefit of this Act. So in case of miscarriage or MTP, the woman is entitled to leave with wages at the same rate that she is entitled to maternity benefits, for a period of six weeks immediately after such an event. Is she entitled to any concessions after her delivery when she resumes work? The employer is mandated to provide a crèche for her to keep her child near her place of work and the woman is entitled to two nursing breaks to feed the child after she resumes work. Is a woman entitled to any leave during the family planning operation (tubectomy)? In case of family planning operation (tubectomy), the woman employee is entitled to leave with wages at the rate of maternity benefits for a period of two weeks immediately after the operation.

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d. Preventing Sexual Harassment at Workplace When was the new law against sexual harassment at workplace enacted? The special law against sexual harassment at the workplace was enacted in 2013. Why was this law enacted? In response to a writ petition filed by an NGO in Jaipur, Vishaka, after the famous Bawri Devi case (where she was raped by five men while working on a government programme), the Supreme Court in 1997 had issued certain guidelines which were known as the Vishaka Guidelines. The Supreme Court had mandated that all government and public and private sector establishments must set up internal complaints committees where women workers could file complaints if they were sexually harassed, and the employer was bound to conduct an enquiry and prescribe punishment to the person who caused such harassment to the woman. The Supreme Court stipulated that the guidelines must be followed until a law is passed to replace the guidelines. As a follow up, in response to the sustained campaign by women's group, the Act, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, was enacted in 2013. Whom does this Act apply to? This Act applies to all government, public sector and private sector undertakings as well as small scale units which constitutes the unorganized sector. What does the Act do? The Act prescribes clear procedures regarding the composition of the “Complaints Committees” which must be set up to enquire into the complaints filed by women. The Act also lays down the procedure to be followed while conducting the enquiry.

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What constitutes “sexual harassment” under the Act? The definition of “sexual harassment” is given under Section 2 (n) of the Act. It defines sexual harassment in very broad term as i.

physical contact or advances; or

ii.

a demand for sexual favours; or

iii. making sexually coloured remarks; or iv. showing pornography; or v.

any other physical, verbal or non-verbal conduct of a sexual nature.

What is the primary objective of this Act? The primary objective of this Act is to prevent sexual harassment at workplace. With this objective, section S.3(1) of the Act states that, “No woman shall be subjected to sexual harassment at any workplace.” How is a workplace defined? The definition of `workplace' under S.2 (o) of the Act is very wide and includes hospitals, institutes, any place visited in the course of a woman's employment, etc. The workplace in relation to the "unorganised sector" is defined in section 2 (p) of the Act and includes an enterprise owned by individuals or self-employed workers and engaged in the production or sale of goods or providing service of any kind whatsoever, and where the enterprise employs workers, the number of such workers is less than ten. By defining the dwelling place or a house as a workplace, the Act brings domestic workers within its purview Who can file a complaint under this Act? A woman, of any age whether employed or not, who alleges to have been subjected to any act of sexual harassment by the respondent can file a complaint. The Act is applicable also to agricultural workers and construction workers.

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Even a domestic maid of any age, who is employed in a private house can file a complaint against her employer or any other family member of the employer in that household. What is the procedure for lodging a complaint under the Act? The Act provides for Complaints Committees to be set up. Employers have to set up Internal Complaints Committees (ICC). The State Government must set up Local Complaints Committees in every district. A complaint of sexual harassment must be sent to the ICC or LCC. The Committee is duty bound to enquiry into the complaint and take action as per the provisions of the Act. What should be the composition of the ICC? It should have representation from the management as well as from the staff. At least half the members of ICC must be women. The Presiding Officer has to be a woman employed at a senior level at the workplace. It is mandatory to have one external member either from an NGO which is working on women's rights or a legal expert who is concerned with this issue. What protection can the complainant seek during the inquiry? The complainant is entitled to make a request to be transferred or make a request that the respondent (against whom she has filed the complaint) be transferred. She may also ask for leave or any other relief during the period of enquiry. Is it necessary to have an ICC in all workplaces, even if there has not been any instance of sexual harassment in the company or public undertaking? It is important that every workplace has a ICC even when there is no instance of sexual harassment (Section (g) of the Act). The Act provides for measures that are preventive – like awareness creation regarding women's rights, women's dignity and women's autonomy, so that instances of sexual harassment are minimized or completely done away with. It is illegal for the employer not to have an ICC and the fine may extend up to Rs. 50,000/-. In repeated offences,

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the fine will be double the amount. It may also result in withdrawing of registration / license. (S.26 of the Act) Are women in the unorganized sector entitled to relief under the Act? Yes, even the women who are working in the unorganized sector are also entitled to relief under this Act. For this purpose Complaints Committees must be set up at the District level under the authority of the designated District Officer. These are referred to as Local Complaints Committees (LCC). Women working in the unorganized sector can file complaints before the LCC for enquiring into the complaint. What is the Composition and Tenure of the Local Complaints Committee In Maharashtra, the District Collector is the designated officer who is responsible for setting up the Local Complaints Committee as per the following guidelines: (a) a Chairperson to be nominated from amongst the eminent women in the field of social work and committed to the cause of women; (b) one Member to be nominated from amongst the women working in block, taluka or tehsil or ward or municipality in the district; (c) two Members, of whom at least one shall be a woman, to be nominated from amongst NGOs or Associations committed to the cause of women or a person familiar with the issues relating to sexual harassment: — at least one of the nominees should, preferably, have a background in law or legal knowledge: — at least one of the nominees shall be a woman belonging to the Scheduled Castes or the Scheduled Tribes or the Other Backward Classes or minority community notified by the Central Government, from time to time;

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(d) the district women and child development officer, shall be the ex officio member. The tenure of the members of LCC shall be for three years. Can this committee receive complaints from women in the organized sector? Yes, The Local Committee can receive complaints of sexual harassment from establishments where the Internal Complaints Committee has not been constituted due to having less than ten workers or if the complaint is against the employer himself. [S. 6 (1)] How will women from the taluka be able to reach the LCC at the district level? In order to reach out to the women in the taluka or ward level, the District Officer can designate one nodal officer in every block, taluka and tehsil in rural or tribal area and ward or municipality in the urban area, to receive complaints and forward the same to the concerned Local Complaints Committee. Is there a time limit for making the complaint? Yes. A time limit of three months from the date of the incident (and if there are series of incident, from the last incident) is set for making the complaint. However, the Committee has the power to extend the time limit by another three months, if it is satisfied that the circumstances were such which prevented the woman from filing a complaint within the said period. If the aggrieved woman is unable to make a complaint in writing what is to be done? If the aggrieved woman herself cannot make the complaint, the Chairperson or any Member of the Local Committee shall render all reasonable assistance to the woman for making the complaint in writing.

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If the aggrieved woman is unable to make a complaint on account of her physical or mental capacity or death what is to be done? If the aggrieved woman is unable to make a complaint on account of her physical or mental incapacity or death, her legal heir, co-worker, relative, friend, or any other person can make a complaint on her behalf. Where the aggrieved woman is unable to make a complaint Rule 6 i on account of her physical incapacity, a complaint may be filed by: a. her relative or friend or b. her co-worker or c. an officer of the National Commission for Women or State Women's Commission or d. any person who has knowledge of the incident, with the written consent of the aggrieved woman ii on account of her mental incapacity a complaint may be filed by a. her relative or friend or b. a special educator or c. a qualified psychiatrist or psychologist or d. the guardian or authority under whose care she is receiving treatment or care or e. any person who has knowledge of the incident jointly with her relative or friend or a special educator or qualified psychiatrist or psychologist or guardian or authority under f. whose care she is receiving treatment or care; iii where the aggrieved woman for any other reason is unable to make a complaint, a complaint may be filed by any person who has knowledge of the incident with her written consent or

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iv where the aggrieved woman is dead a complaint may be filed by any person who has knowledge of the incident with the written consent of her legal heir. What is the first step the LCC must take after receiving the complaint? As a first step, at the request of the woman who has filed the complaint, the Local Committee, may, before initiating an inquiry, take steps to settle the matter through conciliation. (No monetary settlement shall be made as a basis of conciliation.) If a settlement is arrived the same shall be recorded and forwarded to the District Officer to take action as specified in the recommendation. The Local Committee shall provide the copies of the settlement as recorded to the aggrieved woman and the respondent. If a settlement is arrived at, no further inquiry shall be conducted by the Local Committee. How should the enquiry be conducted? During the enquiry the opposite party (Respondent or the person against whom the complaint is filed) must be given a chance to reply to the allegations. Both parties should be given an opportunity to produce documents or witnesses before the committee. The principles of natural justice must be followed. What action should the ICC or LCC take if allegations made by the woman are proved? After the enquiry, if allegations made by the woman are proved to be correct, the ICC / LCC may ask the employer / District Officer to: — Take action against the aggressor in accordance with the provisions of the service rules.

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— Deduct from the wages of the respondent the sum to be paid to the aggrieved woman for the mental trauma, loss of wages or career opportunity caused to her or for reimbursement of medical expenses incurred, etc. [S.13 of the Act] — Forward a complaint to the police to take action as per the relevant IPC sections If a woman does not get any relief before the ICC or LCC she can file a complaint before the Maharashtra State Women's Commission, which is a quasi judicial body. The MSWC has the power to summon the employer and also has the power to constitute a committee and conduct an enquiry.

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Chapter X. Reproductive Rights of Women

Introduction Various issues concerning sexual and reproductive rights of women are discussed in this section. Women's rights to abortion, and provisions of the Medical Termination of Pregnancy Act, regulation of sex selective abortions and provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques Regulation Act (PCPNDT Act), 1994, issues arising of surrogacy and rights of surrogate mothers, and also issues concerning rights of transgenders have increasingly become matters of concern for the government.

a. Women's Right to Abortion How are women's reproductive rights protected? Women's reproductive rights are protected under the Constitution. The right to live under Article 21 include the right to live in dignity which is inclusive of women's reproductive rights (i.e. the right to become pregnant, to bear children, to decide the number of children, the right to have an abortion, to use or not use contraceptives, to be or not to be sterilized, to be or not to be a parent, etc). A mother's right to preserve her own health is superior to the right of an unborn child. Do women in India have a right to a legal abortion? Yes women in India do have the right to legal abortion. In many countries women had to struggle very hard to get this right. In some countries like Ireland even today women do not have this right. But in India, a law was passed in 1971, the Medical Termination of Pregnancy (MTP) Act to secure for women the right to have legal and safe abortions in public hospitals. This was done to curb the practice of illegal abortions which were carried on rampantly by nonmedical professionals at a great risk to women's health.

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What is an abortion? Abortion is a medical procedure of removing the foetus from the uterus of a woman who is pregnant if she wishes not to have the child. This procedure must be carried out only by registered medical practitioners who are authorised to do it under the MTP Act and if not done in a proper condition it poses a risk to the woman's life. What are the conditions under which a pregnancy can be terminated? Pregnancy can be terminated in the first trimester (within 12 weeks) if a doctor is of the opinion that it is safe for the woman to undergo an abortion. Beyond 12 weeks and up to 20 weeks, the opinion of two doctors is required to perform the abortion. Beyond that a pregnancy cannot be terminated as it is very risky and may cause harm or even death to the pregnant mother. Hence it can be performed only in an extreme situation when it is necessary to abort the foetus to save the life of the mother. [S.3 (2) (a and b)] While deciding whether or not to perform the abortion, the doctors must ascertain the risk of harm to the health of the pregnant mother. The doctors' permission to perform the abortion must be recorded in writing. Whose consent is required for terminating pregnancy? If the woman is a major, i.e. above 18 years, she can consent to the abortion herself. If it is a child below 18 years or the person is incapable of giving valid consent (if the person is of unsound mind) the consent of the guardian is required [S.3 (4) (b)]. The consent of the husband is not required to undergo an abortion. Can the authorities disclose information about the woman who undergoes abortion under the Act? No, the doctors or the hospital authority cannot disclose to the public any information about the woman who undergoes termination of her pregnancy. This information has to be kept confidential. [S.7 (1) ( c)]

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b. Regulation of Sex Selective Abortions - Pre-Conception and Pre-Natal Diagnostic Techniques Regulation Act (PCPNDT Act), 1994 Why is the female foetus aborted in our society? Indian society carries within it a tradition of male preference. The great urge to have boys coupled with a high cost of living has led to a rise in sex-selective abortions. Unfortunately, provisions of the MTP Act are frequently abused in that many families invoke the Act to help them in carrying out abortions of female fetuses in later trimesters. The age old preference to have sons received a new boost due to this and gradually resulted in a skewed sex ratio. What has the government done to curb this trend? In order to curb this trend, in 1994, the Central Government passed a new law, known as the Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (PCPNDT Act for short). Since these tests are important to detect foetal abnormalities and genetic defects the tests could not be banned, they could only be regulated. Now the tests can be done only under very strict conditions and they cannot be used for the purpose of identifying and disclosing the sex of the unborn foetus. In order to curb the practice, it has now become necessary to register all sonography machines and also necessary to display very clearly that the hospital or the clinic does not disclose the sex of the unborn foetus. What is the punishment for misusing the provisions of this Act? Performing such tests is punishable by upto 3 years of imprisonment and a fine of upto Rs. 10,000/- for the first offence and upto five years of imprisonment and a fine of upto Rs. 50,000/- for the subsequent offence. Any doctor doing such a test is also liable to have his license for medical practice suspended for two years for the first offence and permanently after the second offence. (S.23)

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c. Prohibition of Child Marriage Act, 2006 When a girl is married at a young age it has several harmful effects. Most girls in poor households are malnourished. They are also vulnerable as they do not have education or vocational skills. Early marriage results in early pregnancy and further malnutrition. A malnourished mother gives birth to a malnourished child and the cycle continues. The child may also be subjected to physical and sexual exploitation in her husband's house and humiliated and subjected to domestic violence. Young children are unable to resist this exploitation. Studies have shown that if the child is in school till the higher grade, the chances of the child getting married at a young age are reduced. Several social reforms opposed against this custom in the 19th century. Even the women's organizations which were started in early twentieth century campaigned to have a law to restrain child marriages. So in 1929, the Child Marriage Restraint Act was passed which was amended many times thereafter. While this Act punished the people who were indulging in child marriage, under the Act the marriage was valid. Though the Hindu Marriage Act stipulates a minimum age of 18 for girls to get married, the marriages performed while the child is under 18 is not void, it is a valid marriage, but the girl has an option to get out of this marriage and to declare such marriage as void. Since child marriages have continued, another law was passed in 2006 to prohibit child marriages, called the Prohibition of Child Marriage Act. The main provisions of this law are as follows: The age for marriage for girls is 18 and for boys 21 years. If a child is married before the age, they can declare this marriage void within two years of marriage or after attaining majority (18 years) If the child is minor at the time of filing, the parent or guardian can start the process on their behalf.

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The marriage can be declared void even by the Child Marriage Prevention Officer (CMPO) who are appointed under the Act. The girl who was minor at the time of marriage has the right of maintenance and residence and the boy's parents are liable to pay for it. The child born in such a marriage is legitimate and has all rights against the father for maintenance and property inheritance. A child which was conceived during the marriage, and if the woman was already pregnant at the time of declaring the marriage void, even if born after the marriage is declared void, the child has all the rights as if the child was born in a valid marriage. The minor girl also has a right of custody and maintenance of her child. If the child has been kidnapped and married forcefully without her consent, the marriage is void. If a adult male marries a child, he is liable for punishment of two years or fine up to rupees one lakh or both. Any person who permits such a marriage or fails to prevent such a marriage, or even attends or participates in such a marriage is also punishable. The court can also issue injunctions prohibiting child marriages. The Act provides for the appointment of CMPOs across the country, whose role is to prevent child marriages, investigate complaints, and gather evidence to prosecute any violation of the law. The CMPO is in charge of creating awareness on the issue, furnishing statistics on child marriage to the State government, and petitioning the court for orders related to maintenance, custody and injunctions. The State government can ask any person who is an officer of a gram panchayat, a municipality or a public sector undertaking, or an employee of an NGO to assist the CMPO.

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d. Rights of Surrogate Mothers and Children born in surrogacy What is surrogacy? Surrogacy is a process through which a woman bears the child in her womb for the nine month period on behalf of a couple who is infertile or where the wife is not able to carry the foetus in her womb for the nine month period. Literally it amounts to “renting a womb”. Is surrogacy legal in India? Yes, India is one of the few countries where surrogacy is legal, but we do not have adequate laws to control and regulate the practice of surrogacy and to protect the rights of a surrogate mother. In some countries surrogacy is permitted only for altruistic purposes and not for commercial purposes. (e.g. in England, many states in the United States and Australia). In some countries the practice of surrogacy is banned altogether (e.g. Germany, Sweden, Norway and Italy). Why do Indian women opt for surrogacy? Surrogacy is projected as a profitable means for earning money for poor women in India. Illiterate poor women fall for this trap and opt for surrogacy without fully comprehending the risks involved. What are the problems faced by the parties during the process of surrogacy? Surrogacy is projected as an attractive proposition to a childless couple, as everyone stands to gain – a poor woman earns some money by renting out her womb, an infertile couple gets a child and the country earns foreign currency. But due to lack of adequate laws, not just the surrogate mother, but even the prospective parents get exploited as they do not have adequate legal protection. The child born out of this procedure has no rights and if any problem surfaces the child may just land up in an orphanage or the poor woman, who is the natural mother of the child may be forced to keep the baby at her own risk and expense.

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The real beneficiaries of this practice are the middlemen, the commercial agencies and the surrogacy centres who promote this practice as they earn a substantial amount in foreign exchange through this process. Although guidelines were issued in 2005 by the Indian Centre for Medical Research (ICMR) for accreditation, supervision and regulation of Assisted Reproductive Technology (ART) clinics, they are often flouted. What are the problems that a couple may encounter? Surrogacy may raise issues of citizenship, parentage and rights of the child. At times the country of the parents may not grant citizenship or nationality to the child. The foreign couple may get entangled in a prolonged legal battle to acquire the required travel documents to enable the child to travel out of India and may be forced to stay in India for many months to sort this out. There are instances where the child given to the adoptive parents is not genetically related to them and if they are not able to get the required travel documents they may abandon the child in India and may not have any legal recourse against this fraud. What type of problems women who opt to be surrogate mothers face? Most of the women who opt for surrogacy come from poor backgrounds and do not have adequate knowledge about their legal rights. At times, they are lured by the money the surrogacy offers and they may be forced into it by their husbands. There is no procedure for mandatory legal counseling or legal support to enforce their rights. During surrogacy women are kept in secluded places and are not allowed to go out except to visit the surrogacy centres for health check-ups. They are not allowed to visit their homes and the visits from their family members are regulated. They have no protection if they suffer miscarriage or any other medical problem due to the pregnancy or during the post delivery period. If the couple does not accept the child, the woman will be left with the baby, literally and she has no protection against either the intended parent or the surrogacy centre which lured her into this practice.

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What should be done to remedy the situation? In order to avoid surrogacy from becoming a commercial racket the government needs to step in and pass legislation and frame guidelines to protect the rights of the surrogate mother and the child born out of surrogacy. A bill to regulate all Assisted Reproductive Technology (ART) Centres has been framed in 2010 but it still needs to be given due consideration. This Bill seeks to provide a framework for surrogacy agreements and their legal enforceability. The surrogacy agreements are treated at par with other contracts under the Indian Contract Act 1872 and other laws applicable to these kinds of agreements. Both the couple/single parent and surrogate mother need to enter into a surrogacy agreement covering all issues, which would be legally enforceable. Some of the features of the proposed bill are that an authority at national and state level should be constituted to register and regulate the IVF clinics and ART centers, and a forum should be created to file complaints for grievances against clinics and ART centers. How are the rights of surrogate mothers protected through this Bill? In order to protect the health of the surrogate mother, the Bill stipulates that the age of a surrogate mother should be between 21-35 years, she should not have delivered more than five times, including her own children and a surrogate mother would not be allowed to undergo embryo transfer more than three times for the same couple. All the expenses including insurance of surrogate medical bill and other reasonable expenses related to pregnancy and childbirth should be borne by the parents. A surrogacy contract should include life insurance cover for the surrogate mother. The surrogate mother may also receive monetary compensation from the couple or individual as the case may be for agreeing to act as a surrogate mother. It is felt that to save poor surrogate mothers from exploitation, banks should directly deal with the surrogate mother, and the remuneration to be paid to the surrogate mother should be fixed by law.

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How are the rights of a child born in surrogacy to be protected? The surrogacy arrangement should also provide for financial support for the surrogate child in case the couple dies before delivery of the child, in the event of divorce between the parents and unwillingness to take delivery of the child. Guidelines dealing with the legitimacy of the child born through ART state that the child shall be presumed to be the legitimate child of the couple with all the attendant rights of parentage, support, and inheritance. The parents should be legally bound to accept the custody of the child irrespective of any disability in the child. If a foreigner or NRI is seeking surrogacy, they should enter an agreement with written guarantee of citizenship for the child from their government. Sex-selective surrogacy should be prohibited, and abortions should be governed by the Medical Termination of Pregnancy Act 1971.

e. Rights of Transgender Persons Who are transgender persons? The term, “transgender person” is used to denote people who have sexual characteristics of both genders or have the physical characteristics of one gender but identify with the opposite gender and feel that their bodies are trapped within a wrong gender identity. Persons known as hijras are transgenders who live within well established communities and are more visible in public places than most other type of transgender persons. Most hijras identify themselves as women but possess certain male sexual characteristics. They are thrown out of their families and live as outcastes away from the main stream in society. Since there is no guarantee of any means of livelihood, many resort to prostitution, begging and blessing people during religious ceremonies, births and weddings. What are the problems faced by transgender persons? Transgenders are often looked down upon with disgust or ridicule and are denied the fundamental human right to live a life as a human being. They lack basic rights which other citizens enjoy such as the right to vote or right to stand

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for election or even to have a ration card. They are discriminated against, and due to lack of education and employment opportunities, they live in abject poverty. What are the demands of transgender persons? One of the most important demands of the transgender community has been for the right to live with dignity, free of harassment and exploitation. Due to certain archaic laws, the community faces a great deal of humiliation and exploitation from the police and is subject to extortion. One of their basic demands is that such exploitation must stop. More recently there have been demands from the community that they should be legally recognized and that they should have right to enjoy the fundamental human rights such as health, education, voting, contesting elections, right of succession, marriage, parenting, adoption etc. What has been the response from the State? Due to their sustained campaign, it is now acknowledged that transgender persons have the right to “equality before the law and equal protection of the law”. Increasingly the concept that the human rights of transgender persons must be respected irrespective of gender orientation and gender identity according to international norms and law is also being accepted in the official discourse. Recently, the Maharashtra State's Women's Policy, 2013 gave special recognition to their rights and has accepted some of the following demands. It has now been proposed that the state should help them to achieve their own distinct gender based identity. It is also accepted that transgenders should be granted the rights of health, education, voting, right to contest elections, right of succession, marriage, parenting and adoption. Proposals to form a welfare board for the community to deal with issues such as setting up of a health programme, counseling centres, etc are also in place.

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Through a landmark ruling, the Supreme Court has awarded recognition to transgender persons as the “third gender”. This has greatly enhanced their legal status. It will now be mandatory for all institutions to provide this option in all their legal documents while determining the sex of a person.

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Chapter XI. Special rights of women in the Criminal Justice System Introduction The anti rape campaign following the adverse judgment in the Mathura rape case had raised awareness regarding the vulnerable situation of women who are brought to the police station as accused or suspects. The rape law amendments of 1983 rendered sexual abuse by policemen and other officials in authority a grievous crime and prescribed stringent punishment for violators. Apart from this there were several other cases where women were raped by police when they were detained in police custody which also received wide media publicity in the early eighties. The much publicized cases of Maya Tyagi, Rameeza Bee, Suman Rani were all cases concerning rapes by policemen. These incidents made it necessary to bring protective rules and guidelines to prevent sexual abuse of women in police custody. Recognising the vulnerability which most women face and in keeping with the Constitutional Provisions under Article 15 (3), the criminal law provides special protection to women. This includes special guidelines to protect women who approach the police stations to file an FIR, while recording their statements and even when women are the accused, during their arrest and detention. Every policeman is duty bound to ensure that women are treated with due respect. There is no exception to this rule. A male officer cannot touch the body of the woman even while arresting. Even a female officer who is arresting the woman is duty bound to maintain her dignity while arresting. She cannot be disrobed, touched inappropriately in her private parts, dragged by her hair or breasts or hand cuffed. In this section some legal terms used in criminal law are explained and the special protection given to women is explained.

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a. Explanation of Some Legal Terms of Criminal Law What is the difference between a Cognizable and Non-cognizable (N.C.?) Offences Offences are further categorized as cognizable and non-cognizable. The following table provides the difference between these two types of offences Difference between Cognizable and Non-cognizable Offence Category

Cognizable

Non-cognizable

Seriousness of offence

When it is a serious offence

When it is a less serious offence

Police Investigation

Police will investigate

Police can investigate only by the order of a Magistrate

Register for Recording

FIR Register

NC Register

Document copy you will get

FIR (First Information Report)

NC complaint

Arrest

Accused / accomplice will be arrested. They can then apply for bail

Accused / accomplice will not be arrested. Police may call the accused and warn him.

Outcome

The Police will investigate It creates evidence of the and collect evidence. harassment the woman If there is sufficient is facing. evidence, they will file a Charge Sheet and trial will commence.

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Category

Cognizable

Non-cognizable

Jurisdiction

In a cognizable offence the jurisdiction of the police station is immaterial to get a complaint registered under the FIR register.

In order to get a noncognizable offence registered it is essential to ensure that the crime has taken place within the jurisdiction of the police station.

Procedure to be followed if the offence is cognizable If the offence is serious (cognizable) the police will lodge an FIR. Thereafter it is the duty of the police to investigate the case, arrest the accused, collect evidence and send the case to the court for trial. The state will also conduct the trial through the public prosecutor. The investigation and trial must be conducted strictly according to the rules laid down in criminal laws i.e. IPC, Cr.PC and the Evidence Act. As per our law, the accused is presumed to be innocent until he is proved guilty. What is the difference between a bailable and non-bailable offence? If a person is arrested for a bailable offence, the police can immediately release him on personal surety. He does not have to be produced in court. Nonbailable offences are of a more serious type, which invoke higher punishment (imprisonment for a period of three or more years). In such cases the police do not have power to grant bail. But when the accused is produced before the magistrate on the next date, the magistrate has the power to grant him bail. If he does not have a lawyer, he is entitled to legal aid for the purpose of making this application. If the person is apprehensive that he will be arrested for a criminal offence, he can seek anticipatory bail in advance and avoid the arrest for a limited period of time and the police will investigate the matter without arresting him.

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b. Rights of Women during Arrest and Detention What are the rights of women with respect to search, seizure and arrest? A male officer cannot touch the body of the woman even while arresting. Even a female officer who is arresting the woman is duty bound to maintain her dignity while arresting. She cannot be disrobed, touched inappropriately in her private parts, dragged by her hair or breasts or hand cuffed. A relative or friend should be informed of her arrest. When arresting a woman, proper arrangement must be made for the care of her children. Pregnant women and those with infants must be provided with due care. Basic amenities and special protection required by women should be provided such as use of toilet and sanitary items. If a woman / girl has been illegally detained or arrested by the police then she can make a complaint to the magistrate, who can pass an order to restore her liberty under S. 98 of Cr.PC. No woman can be arrested /detained after sunset A woman cannot be arrested after sunset and before sunrise. Even if there is a woman constable accompanying the officers, the police cannot arrest a woman at night. In case the woman has committed a serious crime, the police have to obtain a written permission from the magistrate explaining the urgency of arresting her at night and only then can she be arrested. A woman cannot be called to the police station A woman must not be called to the police station for interrogation under S.160 of Cr.PC. She must be questioned at her home in the presence of a woman constable and family members or friends. Body Searches and search of personal items only by women officers Searching a woman's body and her personal items must be done only by women police officers under S.51 of Cr.PC. Family police must not act in an undignified or abusive manner so as to violate the woman's modesty.

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Special lock ups A woman cannot be detained in a police station at night. She must be shifted to a special women's lock up and if there are no special women's lock ups, they must be sent to a government protection home. Right to Bail When a woman is arrested for bailable offence, she has the right to be released immediately on bail. Her bail application has to be given priority over others. When a woman is arrested for a non-bailable offence and even if the offence is very serious (punishable by death penalty), the court has the power to release her on bail in accordance with Sec.437 of Cr.PC. Separate prisons for women offenders No woman should be kept in a general prison where male accused persons are lodged. There should be separate women's prisons and only women officials must be appointed to these prisons. Providing for the special biological needs of women According to the Prison Manual and many Supreme Court guidelines, the jail authorities are mandated to provide women for their special biological needs such as facility to maintain hygiene during menstrual periods, and clean sanitary napkins for their use. Pregnant women and those with infants must be provided special foods according to their requirements. They should also be provided with periodic medical examinations and treatment. Pregnant women should be taken to hospital for safe delivery at a proper time and there should be no undue delay in taking her to the hospital so that her life and the life of her unborn child is not at risk. Rights of young children living with their mothers in prisons Infants and very young children are allowed to be with mothers while the mothers are in prisons. They must be provided with special food such as milk, recreational facilities and primary, pre-primary education, etc.

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c. Protection to Girls arrested during raids under Immoral Traffic (Prevention) Act If a girl below 18 years of age is found to be soliciting as a prostitute, she cannot be treated as a criminal and produced before the regular criminal court. Such a girl must be treated as a Juvenile in conflict with law and must be produced before the Juvenile Justice Board and must be dealt with under Juvenile Justice (Care and Protection of Children) Act, 2000. The primary concern in all such cases must be rehabilitation of the girl child and not punishment for an offence. She cannot be treated as a criminal. If the girl is not found to be actively soliciting but is found in a brothel during the raid, she must be treated as a child in need of care and protection as defined under the Juvenile Justice Act and must be produced before the Child Welfare Committee. Girls who are being or are likely to be grossly abused, tortured or exploited for the purpose of sexual abuse or illegal acts such as trafficking, must be provided with utmost safety and the concern must be towards their protection and rehabilitation. They cannot be treated as criminals to be punished by the magistrate under provisions of ITPA.

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BE EMPOWERED. BE BRAVE. Incase of difﬁculty in registering a complaint Log on: http://mscw.maharashtra.gov.in Email: [email protected], [email protected], [email protected], [email protected], Family Counselling Center: 022-26590474 / 1322 / 0806 Fax: 022-26591541

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Sexual Harassment at Workplace

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Dowry Death

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Sexual Violence

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Marital Issues

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Dowry Harassment

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Domestic Violence

Adv. Susieben Shah

Dir: 022 26590739 Mob: 09821228125

Chairperson Maharashtra State Commission For Women

@shahsusieben susiebenshah

Members: Nagpur Region Adv. Vijaya Bangde 9823024286

Pune Region Smt. Chitra Wagh 9820424666

Amravati Region Dr. Asha Mirge 9881653599

Aurangabad Region Smt. Usha Kamble 9960617485

Nashik Region Smt. Jyostna Vispute 9421521702

Aurangabad Region Smt. Asha Bhise 9422071707

Ms. Shomita Biswas 022-26590050, Member Secretary Maharashtra State Commission for Women, Gruha Nirman Bhavan (MHADA Bldg) Mezzanine Floor, Bandra East, Mumbai - 400051

Handbook on Womens Rights

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