1
RAJIV GANDHI NATIONAL UNIVERSITY OF LAW, PATIALA
CRIMINAL LAW PROJECT SEMESTER 5
Academic Year: 2020
TOPIC: Changing Dimensions and Scope of Criminal Law
pertaining to Offences against Women- Judicial Perspective
SUBMITTED BY: Anoorag Nayak SUBMITTED TO: Sharanjit Ma’am
ROLL NO.: 18206 Asst. Proff. of Law,
GROUP NO.: 34 RGNUL, Punjab.
SECTION: C
SEMESTER: 5th
2
TABLE OF CONTENTS
Introduction 3
Terminologies in recent Discourse 3
Global Nature of Violence against Women 4
Existing Data & Classification Pertaining to Offences against Women 4
Data on Crimes against Women 4
Classification of Gendered Violence/ Offences Against Women 5
Evolution of Laws pertaining to Offences against Women 6
What has been Done so Far: Existing Legislation and Changes 6
Changing Dimensions and Scope of Gendered Violence Legislation 8
A Case for Stronger Legislation 9
Judicial Perspective- The role of Courts & Landmark Cases 9
Justice Verma Committee Report- What Changes are Required? 10
Change in Mindset of Judiciary 10
Nirbhaya Case- Voices of Reaction 10
Mathura Rape Case- 11
Kathua Case 12
Shah Bano Case 12
Conclusion 13
Bibliography/ Sources/ Works Cited 14
3
Introduction
Offences against women are rampant in our society and the penal provisions to punish and deter
the offenders have gone a marked and significant change over the years. The study is going to
deal with the nuances of this evolution. This would be done mostly through case laws and
precedents.
The purpose of this study is to evaluate and analyze the various provisions regarding Offences
against women and also to track the landmark moments/judgements which helped in shaping
them. The goal is to bring out whether the law regarding these offenses and it’s judicial
interpretation has made women feel any safer than before in our country.
The question the author undertakes to answer through this paper is the following one- “Whether
the penal provisions regarding Offences against women and their judicial interpretation over the
years helped in curbing the incidence of rape and sexual harassment against women?”
There is a need to address structural inequalities that perpetrate and perpetuate violence, such as
rape, and for women's rights to have both political and social legitimacy.
Despite the mass public outrage and protest over the recent brutal gang rape and tragic death in
Delhi, rapes and attacks on women across the country remain unabated.There are no shortcuts as
regards rape, and the legal system has to work in ways that are accountable to the women of this
country. Impunity can no longer be tolerated.1
Terminologies in recent Discourse
The public uproar caused by India's sexual violence 'problem' has since led to the amendment of
laws aimed at tackling sexual violence.2 Disturbingly though, the Nirbhaya's death represents just
the tip of what seems to be an ever expanding iceberg of violence The term 'gendered violence'
hs gained currency to emphasize the gendered nature of much violence directed against women.
The term 'violence against women' (VAW), a term which feminist scholars have coined in order
to convey the message that violence is not gender-neutral is also in vogue.
Other terms which have gained currency within the literature include 'domestic violence' and
'intimate partner violence'. we use these phrases to reflect the potential for gender 'hostility'
during offences committed against women.
1
Flavia Agnes, "No Shortcuts on Rape: Make the Legal System Work", epw, 12 January 2013
2
BBC, 'Explaining India's new anti-rape laws' 29 December 2012 at http://
www.bbc.co.uk/news/world-asia-india-21950197 (last accessed 24 June 2013).
4
Global Nature of Violence against Women
Gender 'Hostility', Rape, and the Hate Crime Paradigm against women can be appreciated with a
recent report3 by the World Health Organisation highlighting that an estimated 35 per cent of all
women globally experience physical or sexual violence at the hands of a current or ex-partner.
If we consider the fact that 'gendered violence' relates not just to rape and physical violence but
also encompasses a wide variety of human rights abuses, including, inter alia, femicide,
trafficking of women and girls, forced prostitution, and honour crimes, we begin to appreciate
how VAW is a global problem of endemic proportions.4
Existing Data & Classification Pertaining to Offences against Women
Data on Crimes against Women
In 2012, the crimes against women reported by official statistics increased by 24.7%, compared
to those reported in 2008. Ranging from the so-called eve teasing and outright sexual harassment
on the street or workplace, to harassment for dowry, molestation in public transport vehicles, and
the often-reported rape, these crimes against women reflect the vulnerability and deep-rooted
problems related to the position of women in Indian society. Out of 28 states, 10 states reported
more than 10,000 cases of crime against women in 2011 putting states with both high and low
HDI (Human Development Index) and literacy rates in the list; probably an indication that
education and economic growth alone do not influence the occurrence of these crimes and
pointing towards socio-political and cultural factors. This can be further observed in the National
Crime Records Bureau (NRCB) statistics which show that cruelty by a husband or his relatives
(46.8%) and dowry-related crimes (7.1%) account for more than half of the crimes against
women.5
According to the NCRB, 24,923 cases of rape were reported in 20126 , amounting to one rape
every 22 minutes. A continuous increase in the reported cases of rape has been observed in the
period from 2009 to 2012 with more than 3% increase in the number of cases reported in 2012
over 2011. Nearly, 12.5% (3,125) of the total victims of rape were girls younger than 14 years,
23.9% (5,957) were in the 14–18 age group, 50.2% (12,511) were in the 18–30 age group and
12.8% (3,187 victims) were in the 30–50 age group.7 These statistics possibly do not capture the
3
World Health Organisation, Global and regional estimates of violence against women: Prevalence and health
effects of intimate partner violence and non-partner sexual violence (Geneva: WHO, 2013
4
C. Watts and C. Zimmerman, 'Violence Against Women: Global Scope and Magnitude' (2002) 359 The Lancet
1232
5
Government of India. Ministry of External Affairs. National Crime Records Bureau: Crime in India – 2012. 2012.
Available from: http://ncrb.nic.in/CD-CII2012/cii-2012/Snapshots-5312.pdf#page=1&zoom=auto,0,605
6
National Crime Records Bureau. Cases registered and their disposal under Crime against Women during 2010 –
11. 2011. Available from: http://ncrb.nic.in/CDCII2011/Additional table cii 2011/Cases registered and their disposal
under Crime against Women during - 2011final.xls [cited 31 December 2013].
5
actual numbers. While gross under-reporting could be one reason for this , the other reason is
that crimes such as gang rapes, stalking and acid attacks on women were not included in official
statistics of crime against women until the law was amended on 3 February 2013.8
Women from working-class, minority or lower-caste Dalit groups are particularly vulnerable to
sexual violence, and this can sometimes be in the context of riot or conflict situations. For
example, Dalit women from lower castes in some parts of the country are very vulnerable to
sexual violence from upper-caste men (NCRB, 2007).
A study conducted by People’s Union for Democratic Rights (PUDR), a Delhi-based civil
liberties group, looked at 10 cases of rape by police personnel and revealed that in most cases,
the victim was a working-class woman. In almost all cases, the accused was acquitted; some
have been reinstated in their old posts (PUDR, 1994). Communalisation and the social and
economic marginalisation of Muslims in post-independence India has resulted in sexual assaults
perpetrated on Muslim women, as was apparent in the anti-Muslim riots in Gujarat in 2002
National data also reveals that domestic violence is endemic , as are dowry demands at marriage
and son preference , leading to female infanticide, sex pre-selection and the abortion of female
foetuses.
But these figures represent only a tip of iceberg as a majority of cases remain unreported in the
media. Specially rape cases remain unreported both to the police and to the media because of
shame and humiliating situations. Therefore, the recorded rate of incidence cannot be said to
reveal the full magnitude of all the different kinds of crimes so far committed against women.
Even most women often try to hide the misbehaviours they meet from their husband and in-laws
and other male acquaintances and strangers. In India preference for a male child leads to cruel
misbehaviour with female members from or even before birth. Lately, the techniques invented to
determine the sex fetuses has led to abortion particularly of female foetuses in increasing
numbers, which leads to the decrease of female population in successive census reports.
Classification of Gendered Violence/ Offences Against Women
DOMESTIC VIOLENCE
The home is often equated with a sanctuary, a place where individuals seek love, safety, security
and shelter. For some women, the home is a place that imperils lives and breeds some of the
most drastic forms of violence perpetrated against girls and women. Violence is usually
7
Government of India. Ministry of External Affairs. National Crime Records Bureau: Crime in India – 2012. 2012.
Table 5(A) – Crime head-wise incidents of crime against women during 2008 – 2012 and Percentage variation in
2012 over 2011. Available from: http://ncrb.nic.in/CD-CII2012/cii-2012/Chapter 5.pdf
8
. The Gazette of India. Department of Publication, Ministry of Urban Development, Government of India.
Available from: http://xegazette.nic.in/RecentUploads.aspx?Category=1 [cited 16 December 2013].
6
perpetrated by males who are, or who have been in positions of trust and intimacy and power e.g.
husbands, fathers, fathers-in law, stepfathers, brothers, uncles, sons, or other relatives.
The Protection of Women from Domestic Violence Act (PWDVA), 2005 defines domestic
violence as any act, omission or commission or conduct of the respondent, which includes threat
or actual abuse.
SEXUAL HARASSMENT AT WORK PLACE
A social worker (BD) was gang-raped by a group of the upper class, influential men, because she
had tried to stop the practice of child marriage. The accused was acquitted by the trial court. This
inspired several women's groups and NGOs to file a petition in the Supreme Court under the
collective platform of Vishaka (Vishaka and others vs. State of Rajasthan and others)9. It is a
landmark case as it was the basis for Supreme Court guidelines on sexual harassment at
workplace.
DOWRY RELATED VIOLENCE
The age-old practice of dowry has persisted and driven many women to suicide. Harassment by
in-laws on issues related to dowry emerged as a risk factor for poor mental health. It is
characteristic of the Indian setting.10 Dowry related violence is on the rise in India. More than
5000 women are killed annually by their husbands and in-laws, who burn them in “accidental”
kitchen fires11 if their ongoing demands for dowry before and after marriage are not met. On an
average five women a day are burned, and many more cases go unreported.
Evolution of Laws pertaining to Offences against Women
What has been Done so Far: Existing Legislation and Changes
Difference in treatment between men and women by the state is totally prohibited on grounds of
religion race, caste, sex or place of birth. Article 21 is on right to live; right to live with human
dignity.
The National Commission for Women was set up as a statutory body in January 1992 under the
National Commission for Women Act, 1990 to review the constitutional and legal safeguards for
women; recommend remedial legislative measures, facilitate redress of grievances and advise the
Government on all policy matters affecting women.
9
Vishakha and others V. State of Rajasthan and others, AIR 1997 SC 3011 at 3012, 3013. 1997.
10
Kumar S, Jeyaseelan L, Suresh S, Ahuja RC. Domestic violence and its mental health correlates in Indian women.
Br J Psychiatry. 2005;187:62–7.
11
Florence: Innocenti Digest, No 6. UNICEF Innocenti Research Centre; 2000. United Nations International
Children's Emergency Fund (UNICEF). Domestic Violence Against Women and Girls. Magnitude of Problem; pp.
4–7.
7
The Supreme Court guidelines on sexual harassment at work place: For the first time, the Court
drew upon an international human rights law instrument, the CEDAW12 to pass a set of
guidelines. The Court defined sexual harassment at work place as any unwelcome gesture,
behavior, words or advances that are sexual in nature. “It shall be the duty of the employer or
other responsible persons in work places or other institutions to prevent or deter the commission
of acts of sexual harassment and to provide the procedures for the resolution, settlement or
prosecution of acts, of sexual harassment by taking all steps required.”
The legislation relating to violence against women comprises the Indian Penal Code (IPC), civil
law and special laws.
Dowry and dowry death: The Dowry Prohibition Act (DPA), 1961 applies to all people, Hindus,
Muslims, Christians, Parsis and Jews. Giving, taking or abetting the giving or taking of dowry is
an offence, which is punishable. Several states (Bihar, West Bengal, Orissa, Haryana, Himachal
Pradesh, and Punjab) amended the DPA to give it more teeth. The law was found to fail to stall
the evil.
Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances, within 7 years of marriage, and if shown that soon before her death,
she was subjected to cruelty or harassment by her husband or any relative of her husband for or
in connection with any demand of dowry, such death shall be called “dowry death” and such
husband or relative shall be deemed to have caused her death (IPC 304-B). 113-B Indian
Evidence Act, 1872, was inserted for the presumption as to dowry death.
Sexual offences: A man is said to have committed rape if he has sexual intercourse with a
woman against her will and consent; or with her consent when the man knows that he is not her
husband or when she thinks that he is her lawful husband; or with her consent when she is of
unsound mind or is intoxicated by herself or the man. However, sexual intercourse by a man with
his own wife, the wife not being under 15 years, is not rape (375 IPC).The latter provision seems
deficient as it does not include marital rape.
Voluntarily having carnal intercourse against the order of nature with any man, woman, or
animal is an offence for which the person shall be imprisoned for life and shall also be liable for
fine. This provision is hardly used (377 IPC).
Of cruelty by husband and relatives of husband: The willful conduct of the husband or his
relative that is likely to drive the women to commit suicide or cause physical or mental trauma to
her or harassment of a woman with a view to coercing her or any of her relative to meet any
unlawful demand for property would be punishable by imprisonment for 3 years and fine (498A
IPC).This is the most widely used provision against domestic violence.
12
The Convention on Elimination of all forms of Discrimination against Women (CEDAW), 1981
8
Other offences in mentioned in IPC are: Causing miscarriage (312 IPC), causing miscarriage
without woman's consent (313 IPC), death caused by an act done with intent to cause
miscarriage; if act was done without woman's consent (314 IPC), act done with intent to prevent
child being born alive or to cause it to die after birth (315 IPC) and causing death of quick
unborn child by act not amounting to culpable homicide (316 IPC).
The Family Courts Act, 1984: The Act was established with a view to promote conciliation in,
and secure speedy settlement of disputes relating to marriage and family affairs.
The Indecent Representation of Women (Prohibition) Act, 1986.: This Act prohibits the indecent
representation of women through advertisements or in publications, writings, paintings, figures
or in any other manner is prohibited.
The Commission of Sati (prevention) Act, 1987: This Act is for the prevention and glorification
of sati.
Protection of Women From Domestic Violence Act, 2005: The Protection of Women From
Domestic Violence Act (PWDVA), 2005 was enacted to provide for more effective protection of
the rights of women guaranteed under the constitution who are victims of violence of any kind
occurring within the family and for matters connected thereto. It recognizes 4 types of domestic
violence: Physical, verbal, and emotional (including not having a child or a male child, marrying
without consent), and economic (including violence related to stridhan, dowry, property) and
sexual (includes sexual abuse and marital rape).
Changing Dimensions and Scope of Gendered Violence Legislation
Though law reform in India, is quite visible, less attention is paid to legal femi nism, which
argues for the necessity of incorporating women-centred or gynocentric values in all major social
institutions including law.While women's demands for formal equality have, however, been met
and legal systems have even recognised protective discrimination in their favour, for majority of
women the role of law has been very limited in terms of women's problems of domination and
gender discrimination. This has led feminists to argue for the study of patriarchal instances of
law's oppression of women.
For instance, The Criminal Law (Amendment) Act of 1983, which came into effect in December
1983, inter alia, increased punishment for rape. It provided for a mandatory minimum sentence
of seven years imprisonment. It may be extended to a term of ten years or for life. However, it is
permissible for a court, for 'adequate and special reasons', to impose on a rape convict a lighter
sentence of imprisonment for a term less then seven years. However, a comparative glance,
though painful and disgusting, at the pre and post- 1983 Criminal Law Amendment Act,
(reported) incidences of rape in India eloquently demonstrate that the post- 1983 criminal law
has neither desisted rapists nor proved effective in combating rapes
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A Case for Stronger Legislation
Harsh punishments to perpetrators of rape (as revealed by the post- 1983 statistical scenario) or
sending them to gallows, though to some extent might console the victims of rape, their relatives
and women's groups, it would hardly arrest the dangerously increasing incidences of rape. It is a
matter of common experience that the efficacy of deterrent punishment, inter alia, is based on
fool proof investigation; speedy disposal and certainty of punishment. In India administration of
criminal justice, unfortunately is bridled with faulty, inadvertent or advertent, investigation of
rape cases; undue delay in disposal of rape cases, and poor conviction rates. Therefore, the
suggested death penalty, like the prevailing mandatory seven years imprisonment and the
permissible life imprisonment for rapists, in the present submission, would have a minimal
effect.
Surprisingly, criminal and penal policy in vogue (as well as proposed) exhibits its insensitivity to
the plight of rape victims and to their social, emotional as well as psychological rehabilitation. It
also overlooks the pressing need to restore their untold trauma and humiliation experienced
during the coercive sexual encounter. The Supreme Court of India aptly highlights such a
pathetic plight of victims of rape in administration of criminal justice. Rape, according to it, does
indeed pose a series of problems for the criminal justice system. "There are cries for harshest
penalties", it laments, "but often times such cries eclipse the real plight of the victim”13.
Instead of locating rape legislation primarily under the rubric of sexual violence, its
embeddedness in property and marriage regimes within systems of exchange and kinship must
be examined. In particular, the legal terrain reflects sex as a form of property that allows women
access to the material privileges of heteronormative conjugality and constructs reme dies that
seek to compensate or restore this order. Thus, protection from the state becomes problematic not
only because of the ways in which it inscribes gender in terms of the capital of marriage, but also
because the meaning of women's sexual agency is mediated by hegemonic scripts of sexuality
validated in legal encounters, both civil and criminal.14
Judicial Perspective- The role of Courts & Landmark Cases
Justice Verma Committee Report- What Changes are Required?
While suggesting some sweeping changes in the law, the Justice Verma Committee too has
highlighted the urgent need for establishing the rule of law and good governance. Challenging
the patriarchal framework that seeks "protection" of women, the committee's report stands by
and clearly rearticulates the constitutional vision of equality of all citizens of the country before
law - rich and poor, men and women, and people of different castes and ethnicities. It seeks to
13
Delhi Domestic Working Women's Forum v. Union of India & Ors, (1995) 1 SCC 14, at 18.
14
Basu, Srimati. “Sexual Property: Staging Rape and Marriage in Indian Law and Feminist Theory.” Feminist
Studies, vol. 37, no. 1, 2011, pp. 185–211. JSTOR, www.jstor.org/stable/23069892. Accessed 13 Sept. 2020.
10
address the roots of social inequality in the country, with gender equality being the particular
case in point here.
While there is, no doubt, need for further legal and police reform, over the last 30 years women's
movements have succeeded in securing a fairly comprehensive legal framework for the
protection of women from different forms of violence, including the prohibition of dowry,
female foeticide, and more recently domestic violence. Yet, violence remains pervasive across
all sections of Indian society, both in the privacy of the home and in public spaces of work and
leisure
Once rape has been committed, it confirms that all measures to stall violence have failed.
Reaction in the form of declaration of enhanced punishment is largely an expression of
helplessness and frustration. The emphasis should be on prevention and rehabilitation.
Change in Mindset of Judiciary
This is the need of the day. Indira Jaising, Additional Solicitor General of India, aptly stated “It's
time for India's courts to gaze inward and throw out deeply embedded patriarchal notions that
stop judgments from being fair to women. Sexism within the system has to go before it does
more damage in the country.”15 A High Court judge in Orissa in his judgment once famously
held “It was not possible for a man, acting alone, to rape a woman in good health.16
Nirbhaya Case- Voices of Reaction
On 13 September 2013, a New Delhi judge sentenced four men to death for the brutal gang rape
of a 23-year-old physiotherapy student. She died due to severe injuries suffered during the attack.
The barbaric nature of the crime appalled the country and brought worldwide attention to what
print media now calls the Rape crisis of India.17 Catalysed by the 2012 the Nirbhaya case, other
reforms are under consideration, including changes to the IPC. Legal reform alone, however, is
of limited value without broader social reform—a key finding of the Justice Verma Committee.
Discussion of violence against women in India invariably turns on particularly high-profile
cases, such as the Delhi case. Such incidents elevate these issues from obscurity and build up
public pressure for action.
When we look at the parliamentary and extra-parliamentary debates in the earlier part of that
year for amending the criminal law on rape, we are shocked to see how strong the voice of
reaction is. It is equally shocking that the government succumbs to it on many points, so that the
15
Jaising I. Blind to what, your honour. Times of India. 2013 Jan 6
16
Id.
17
Ghosh P. International Business Times; 2012. May 12, Delhi: the Center of India's growing rape crisis. Available
from: http://www.ibtimes.com/delhi-center-indias-growing-rape-crisis-705482
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effectiveness of what might have been a very important legal step to find justice for women
struck by violence is marred.
We may briefly consider two or three points in these debates and the manner in which they are
reflected in the law, legalising reaction. In the mass protests following the rape and subsequent
deathof a para-medical student in Delhi in December 2012, a section had raised the slogan of
death for rapists. This had been vociferously supported by some leaders of the far Right. But
most of the women's organisations and other civil organisations had been opposed to this. The
Verma Committee Report too had judiciously argued against death penalty for a rapist. The main
arguments against death penalty had been, firstly, the general position that justice must be
separated from revenge and we cannot take away life on the basis of the argument that 'rape is
worse than death' through a process of law; further, its effectiveness in preventing crime has not
been proved, apart from which it may lead to fewer convictions and to more rape victims being
murdered to destroy evidence.18
Anyway, even without additional clauses, under the present Indian Penal Code (IPC), it is
possible to invoke the death sentence for rape and murder. What is really needed for effective
disbursement of justice is that the administration and the judiciary should tighten up their
procedures to encourage women fighting for the redressal of their grievances. They must also try
earnestly to secure more convictions.
Mathura Rape Case-
Mathura, a tribal agricultural labourer from Maharashtra, aged around 14-16 years. She
developed a relationship with Ashok, the cousin of Nushi, her employer. Ashok and Mathura
decided to get married. On 26 March 1972, her brother, Gama, complained to the local police
that Mathura had been kidnapped by Nushi and Ashok. Nushi, Ashok, Mathura and Gama were
brought to the police station for questioning, and to record their statements. At 10.30 pm, when
they were leaving the police station, the head constable, Tukaram, and constable Ganpat held
Mathura back. She was subjected to rape by Ganpat and attempted rape by Tukaram. Mathura
came out of the police station and announced to the crowd outside that she had been raped. The
crowd surrounded the station and exerted enough pressure to ensure that a case of rape was
registered.
While the Sessions Court acquitted the accused, the Bombay High Court reversed the judgment,
and convicted sentenced Tukaram and Ganpat for rape. The court held that since the police were
strangers to Mathura, it was unlikely that ‘she would make any overtures or invite the accused to
satisfy her sexual desires’. Justice Koshal, Supreme Court, reversed the High Court judgment.
According to the judge, as there were no injuries shown in the medical report, the story of ‘stiff
resistance having been put up by the girl is all false’ and the alleged intercourse was a ‘peaceful
affair’. Justice Koshal dismissed Mathura’s testimony that she had raised an alarm, and further
18
Bhattacharya, Malini. “Can Law Help Women to Survive?” Social Scientist, vol. 42, no. 1/2, 2014, pp. 3–12.
JSTOR, www.jstor.org/stable/24372996. Accessed 13 Sept. 2020.
12
held that under s 375 IPC, only the ‘fear of death or hurt’ could vitiate consent for sexual
intercourse.
The Mathura case led to a major nationwide campaign on the issue of custodial rape, following
the open letter written in September 1979 by four law teachers – Upendra Baxi, Lotika Sarkar,
Vasudha Dhagamwar and Raghunath Kelkar – to the Chief Justice of India.
A few important issues that the letter raised need to be restated here. These are (a) the decision
sacrificed the human rights of women under the law and the Constitution - violation of dignity
and right of the raped woman; (b) the judgment had taken a moralistic position on "habitual
sexual intercourse"; (c) consent involves submission, but the reverse is not true. Absence of
resistance necessarily does not indicate consent; (d) there is a need to take into account the
socio-economic status, knowledge of legal rights, age of victim, access to legal services, the fear
complex that haunts the poor and the exploited in police stations in India; (e) the plight of
Mathura is as important as that of Golak Nath and Keshavananda Bharati; (f) the colonial and
male-dominated notions of what constitutes consent and burden of proof should be done away
with.19
Kathua Case
In January 2018, an eight-year-old girl in Rasana village near Kathua in Jammu and Kashmir
was abducted, raped and murdered by a group of men. The news of the shocking act led to
nationwide protests and calls for harsher punishment.
This led to the passing of the Criminal Law (Amendment) Act, 2018 which for the first time put
death penalty as a possible punishment for rape of a girl under 12 years; the minimum
punishment is 20 years in jail. Another new section was also inserted in the IPC to specifically
deal with rape on a girl below 16 years. The provision made the offence punishable with
minimum imprisonment of 20 years which may extend to imprisonment for life.
Shah Bano Case
The uniform civil code promised by the Constitution has been a casualty of this social reaction.
In the mid-1980s, the Supreme Court had given a verdict allowing Shah Bano, a
seventy-year-old divorced Muslim woman, the right to maintenance in accordance with the
provisions of the Indian criminal law. The then central government succumbed to the pressure of
Muslim fundamentalist groups and hastily passed a special law depriving Muslim women of the
benefits of the general law of maintenance, and leaving them at the mercy of their families or the
Waqf Board for their livelihood.
Daniel Latifi and other progressive lawyers succeeded in demonstrating the unconstitutionality
of this law and in bypassing it in a number of cases, allowed Muslim women the benefits of the
19
SEN, RUKMINI. “Law Commission Reports on Rape.” Economic and Political Weekly, vol. 45, no. 44/45, 2010,
pp. 81–87. JSTOR, www.jstor.org/stable/20787533. Accessed 13 Sept. 2020.
13
general law of maintenance. But at that communally charged moment in our history, the
so-called Protection of Muslim Women's Rights Act reinforced the division among different
religious groups in accordance with their customary laws. Customary laws came to be
re-invented as the insignia of religious, caste based or ethnic group identity. 20
On the other hand, this incident enabled the Hindu fundamentalists to raise slogans deploring the
narrowness of Muslim customary law and to advertise the Hindu Family Code, partially
reformed in the 1950s, as the model for a uniform civil code, ignoring the fact that the clause
enforcing monogamy in the 'reformed' Hindu Code had not led to a decline in the incidence of
Hindu males deserting one wife and taking another; such enforcement was foregrounded as the
major objective of a uniform civil code. This only enhanced communal divisiveness on the issue
Conclusion
It can be safely concluded that we have answered the folowing questions which we set out to
undertake in our analysis:
What changes can be brought about in our Laws to make women feel safer?
What are the lacunae or infirmities in the judicial perspective regarding these offenses?
By raising these pertinent questions and then trying to arrive at an answer based on analysis
conducted in the Chapters above, we have brought a nuanced understanding of the judicial
perspective on the issue.
It would be apt to conclude with the folowing proposition by our First PM Jawaharlal Nehru.
Legislation by itself would not suffice because violence against women is a deep rooted social
problem. It is worth quoting late Prime Minister, Jawaharlal Nehru, who remarked: “Legislation
cannot by itself normally solve deep rooted social problems. One has to approach them in other
ways too, but legislation is necessary and essential and hence that it may give that push and have
educative factors, as well as the legal sanctions behind it, which help public opinion to be given a
certain shape.”21
20
See 19.
21
Nehru JL. Speaking from the floor of parliament in the joint sitting of both houses on dowry prohibition bill,
1961 on May 6, 1961. In: Diwan P, Diwan P, editors. Dowry. 22nd ed. Allahabad (India): Allahabad Law Agency;
1961. pp. 78–84.
14
Bibliography/ Sources/ Works Cited
1. Nehru JL. Speaking from the floor of parliament in the joint sitting of both houses on dowry prohibition
bill, 1961 on May 6, 1961. In: Diwan P, Diwan P, editors. Dowry. 22nd ed. Allahabad (India): Allahabad
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