India

The Criminal Law (Amendment) Act replaced the Ordinance of the same name which was promulgated in the aftermath of the Kathua Rape case in Jammu & Kashmir region of India in 2018, which involved the rape and murder of an eight-year-old girl. The Act amended various provisions of the Indian Penal Code, Indian Evidence Act, and The Code of Criminal Procedure. Notably, the Act increased the minimum punishment for rape from seven years to ten years of rigorous imprisonment which is extendable to life imprisonment. The penalty for rape of a girl under 16 years of age has also been increased to 20 years of imprisonment extendable to life, a significant increase from the original term of 10 years. Rape of a girl under 12 years of age has been made punishable with imprisonment of minimum 20 years extendable to life or with capital punishment. Lastly, the gang rape of a girl under 12 years of age has been made punishable with life imprisonment or capital punishment. The Act includes measures related to bail restrictions, speedy trial, and strengthening prosecution.

Mrs. Neera Mathur had applied to work at Life Insurance Corporation of India (LIC). Upon clearing the written test and the interview, she was asked to fill a declaration form disclosing personal facts as to pregnancy (if any) and her menstrual cycle. Further, she was required to undergo a medical examination as prescribed by LIC. She submitted her declaration and also underwent a medical examination and was certified as being fit for the job. Thereafter, her training program commenced and on its completion, she received an appointment letter with the stipulation that she would be on probation for the first six months and her appointment would be confirmed subject to her performance being satisfactory. During her probation she applied for maternity leave which was granted. On her return to service she was discharged from employment on the grounds that her service was not satisfactory and that she had failed to disclose personal facts as to her pregnancy and menstruation in her declaration form. Mrs. Mathur appealed to the Supreme Court on the grounds that her right to equality guaranteed under Article 14 of the Indian Constitution had been violated by the arbitrary order of discharge. The Supreme Court ordered LIC to re-instate Mrs. Mathur and set aside the order of discharge on the grounds that there was no evidence to prove that her performance was unsatisfactory and the only reason for termination was her failure to disclose personal facts in her declaration that are not required to be disclosed to an employer. The Court stated that while India is moving forward to achieve the constitutional guarantee of equal rights for women, LIC seemed not to be moving with time. It further recommended that LIC delete such requirements from its declaration form and made a note of the fact that if one indirectly seeks to evade providing maternity leave and benefits to a female candidate by not hiring her if she is pregnant at the time of entering the service, the same may be open to a constitutional challenge.

Ms. Shah Bano Begum was married to a lawyer named Mr. Mohd. Ahmed Khan. They lived together for 43 years and had five children. In 1978, Mr. Khan threw Ms. Begum out of the shared household and Ms. Begum applied for maintenance from Mr. Khan under Section 125 of the Criminal Procedure Code, 1973 (Cr.P.C, 1973). Pending her application, Mr. Khan dissolved the marriage by pronouncing a triple talaq (divorce on the triple utterance of the word “talaq” by a Muslim husband) and paid Ms. Begum 3000 rupees as mahr (money/valuable property promised to a Muslim woman for her financial security under the marriage contract) and a further sum of maintenance for the iddat period (a period of 3 months that a Muslim woman has to observe before she can remarry after her divorce). Mr. Khan argued that Ms. Begum’s claim for maintenance should be dismissed as Ms. Begum had received the amount due to her on divorce under the Muslim personal law. The lower court granted Ms. Begum’s claim for maintenance, which was set at 179 rupees per month by the High Court in a revision application. Mr. Khan appealed to the Supreme Court in 1985 and the Court held that a payment made pursuant to personal laws cannot absolve a husband of his obligation to pay fair and reasonable maintenance under Section 125 Cr.P.C, 1973 and a husband can be liable to pay maintenance beyond the iddat period.

The Bombay Police Act, 1951 was amended in 2005 with the object of securing public order, morality, dignity of women, and reducing exploitation of women including trafficking of minor girls. Section 33A was inserted that prohibited performance of all types of dance in eating houses or permit rooms or beer bars. Section 33B was inserted that permitted three star hotels and Government associated places of entertainment to hold dance performances. The Indian Hotel & Restaurants Association filed a writ petition challenging Section 33A of the Bombay Police Act, 1951 before the Bombay High Court on the grounds that such prohibition: (a) discriminates against women employed to dance in eateries and bars and those employed to dance in three star hotels and government establishments; (b) interferes with their right to work and right to earn a livelihood, and thus is violative of the Indian Constitution. The Bombay High Court held that Section 33A is violative of Articles 14 (equality) and 19(1)(g) (right to work), of the Indian Constitution. The Government of Maharashtra filed an appeal before the Supreme Court and prayed that the terms “All dance” found in Section 33A be read down to mean “dances which are obscene and derogatory to the dignity of women” instead of striking it off altogether to ensure that the right to work of women is not interfered with. The Supreme Court upheld the judgement of the Bombay High Court. It declared that Section 33A violates Article 14 the Constitution of India on the ground that such law is based on an unacceptable presumption that the so-called elite (i.e. rich and the famous) have higher standards of decency, morality or strength of character than their counterparts who have to content themselves with lesser facilities of inferior quality in the dance bars. It declared that Section 33A violates Article 19(1)(g) on the ground that it interferes with the right of women to work and that, contrary to the ban’s purpose, it resulted in forcing some women into prostitution. The Court further urged the government to take affirmative action to ensure the safety and improve the working conditions of the persons working as bar dancers who primarily constitute of women.

The Cine Costume Make-up Artists and Hair Dressers Association of Mumbai (Association) was registered as a trade union under the Trade Unions Act, 1926. The Association’s by-laws prohibited qualified women make-up artists from becoming members of the Association based solely on their sex. Ms. Charu Khurana, a women make-up artist whose application for membership to the Association was rejected, challenged this prohibition on the grounds that it violated several rights under the Indian Constitution, including her rights to equality, to employment, and to a livelihood. Noting that gender justice is integral to the Indian Constitution, the Supreme Court struck down the Association’s by-laws as violating Articles 14, 15 and 21. Although the Court acknowledged that fundamental rights in India are enforceable only against the State and its authorities and not against purely private individuals or organizations, it found at the same time that a clause in the by-laws of a trade union registered under the Trade Unions Act, 1926, which is accepted by the Registrar of Trade Unions—a State authority under the Trade Unions Act—cannot violate the Indian Constitution.

Mrs. Hema Vijay Menon, a married woman and a highly qualified lecturer, lost her only son who was 15 years old. She and her husband decided to have a child through the means of In Vitro Fertilization (IVF). On the failure of the IVF procedure, she and her husband decided to have a child through surrogacy. On the birth of her baby through a surrogate, Mrs. Menon applied for maternity leave. The concerned government authorities disapproved her leave on the grounds that there was no provision of granting maternity leave to a mother who begets a child through surrogacy. The Bombay High Court held that a mother is entitled to avail of maternity leave under Maharashtra Civil Services (Leave) Rules, 1981, even though she begets the child through surrogacy, on the basis that the right to motherhood is a fundamental right to life guaranteed under Article 21 of the Indian Constitution and cannot be violated. This case is important because it recognized for the first time in explicit terms that the right to motherhood is a fundamental tenet of the right to life and thus deserves protection under Article 21 of the Indian Constitution.

The court held that the Legislative Assembly of the National Capital Territory of Delhi lacked the power to amend central statutes, thereby declaring the Court Fees (Delhi Amendment) Act of 2012, through which the Delhi government had sought to increase court fees payable in Delhi, as void. The court reaffirmed that only the Parliament is empowered to amend or repeal central statutes by virtue of Article 246(4), and the procedure prescribed under the Constitution for obtaining presidential assent must be strictly followed. In addition, the court observed that the Amendment Act adversely impacts fundamental rights and results in violation of Article 38 and 39A of the Constitution of India on various count, such as reducing women’s access to court.

A village man sexually assaulted an 11-year-old girl; he ran away when the girl’s aunt approached. In an attempt to avoid the stigma of a sexual attack, her family convened a village panchayat to resolve the dispute. The police were contacted when the panchayat was unsuccessful, and the girl did not have a medical examination until 80 hours after the attack. The exam found vaginal bruising but not penetration. Despite the delays, the Court upheld the conviction under § 376 of the Penal Code. This case is notable because the Court allowed a delay in filing the report and found that full penetration is not necessary for a rape conviction.

The Supreme Court held that a woman present for a gang rape did not share the common intention to rape and, therefore, could not be convicted of rape. According to §§ 375 and 376 of the Penal Code, only a man can commit rape, making it impossible for a woman to be convicted of a gang rape. This case is important because it raises the issue of how or when to hold women responsible for sexual violence against other women.

This case involved an appeal of a man’s lifetime imprisonment sentence. He was convicted of murdering his pregnant wife after she asked for money six months into their marriage. The Punjab & Haryana High Court reduced the sentence to 10 years rigorous imprisonment. The man’s mother was also awarded two years rigorous imprisonment. While the reduction in the husband’s sentence was issued, the Court directed all trial courts in India to ordinarily add § 302 to the charge of § 304B, so that death sentences can be imposed in such heinous and barbaric crimes against women.

On April 28, 1984 four or five men took Ms. Sitarani Jha from a bus stop to a house under construction and two of the men forcibly raped her. The trial court determined that the prosecution had not proven the case beyond a reasonable doubt. The case was appealed and the high court determined that the defendants were guilty under section 376/34 of the India Penal Code. The case was brought before the Supreme Court to determine if the high court erred in finding the appellants guilty of rape, because no physical injuries were found on the private parts of the victim’s body. The Supreme Court determined that the high court did not err. Ms. Sitarani jha was able to identify her attackers, and that a lack of injuries on the private parts of a rape victim were not enough to acquit an identified rapist.

A new bride was threatened by her in-laws if her family did not provide a greater dowry. When local villagers protested these threats, the husband’s family killed his new bride by burning her with kerosene. The main issue of the case was to determine how the elements of dowry-death should be proven at trial under amended Indian Penal Code. The trial court acquitted the defendant of dowry-death in taking a narrow statutory view. The Supreme Court reversed, holding that a death shall be called dowry-death when a woman dies from burns or bodily injury that would not occur under normal circumstances within seven years of marriage. The Court added it should be in consideration that soon before her death the woman was subject to harassment by her husband or any relative of his or in connection with any demand for dowry. Shifting this burden to the husband’s family and broadening the scope of dowry death provides prosecutors with more powerful tools to convict for dowry-death and is meant to curb the recent rise in dowry-related violence.

A young woman was riding home from work when she was attacked and raped by a group of men. While the woman was able to identify three of her assailants, due to falling unconscious, she was unsure of who had raped her. No Test Identification Parade was held. Upon examination, she was found with no bodily injuries. The Trial Court convicted six men finding common intention to commit gang rape. The Supreme Court affirmed in part and reversed in part. Three of the convictions could not be upheld because of the victim’s failure to identify them. The significance of this case, however, is the Court’s recognition that identifiable physical injury is not necessary to prove rape; the circumstances in which a victim is found can be sufficient. And the recognition that not all of the convicted must have committed the actual rape but need only have the intention to commit gang rape.

A fourteen-year marriage broke down when the husband became addicted to “vices”; he began to beat his wife and demand money of her parents. During a quarrel, with their children in the room, the husband killed his wife by hacking her with a sickle in her back and neck. The Trial Court convicted him and sentenced him to a life imprisonment, but he appealed, claiming that his children were too young to be competent witnesses. The Supreme Court held that there is no age restriction on competency. All people are competent to testify unless they cannot understand questions or give rational answers. The Supreme Court did reduce his sentence, however, to ten years, because the murder was done in a sudden act and not premeditated.

Immediately after a woman’s marriage, her husband and his parents harassed her for having an insufficient dowry. She was attacked on two occasions and prevented from seeing her two children. A few years later the husband filed for divorce and the woman filed a police report against her husband and his family for mental torture and dowry demands. The High Court initially allowed the case to continue and then quashed the proceedings and filed a petition against the woman claiming abuse of court. The woman appealed on the question of whether a criminal court can review its prior decisions. The Supreme Court set aside the High Court’s petition stating that the court was wrong to quash the woman’s proceedings when the High Court initially found that there was a prima facie case against the husband and family. Under the Indian Penal Code, a court does not have the power to alter its prior judgment.

Vimmi Joshi was the principal of a public school who alleged her superior had sent her love letters and made sexual advances towards her. She brought a complaint to the School Managing Committee and was asked to bring the complaint in writing. Subsequently, the Committee received two anonymous complaints against Joshi and her employment was terminated. She challenged the termination claiming sexual harassment. The High Court held that this was a clear case of sexual harassment and ordered disciplinary actions to be taken. The Supreme Court reversed and remanded the High Court’s decision because the Supreme Court had previously laid out guidelines for sexual harassment complaints in Vishaka v. State of Rajasthan; a complaint committee must have been formed to inquire into the complaint further. The Supreme Court held that since the High Court did not fully look into the matter, they could not have found that this was a clear-cut case of sexual harassment. The High Court was directed to appoint a three-member committee, which must be headed by a woman, to hear the case.

A husband killed his wife by stabbing her in the abdomen and was sentenced under Section 302 of the Indian Penal Code to life imprisonment. He appealed the sentence, claiming that the record clearly establishes that he only delivered a single blow to his wife in a sudden quarrel, and therefore conviction under Section 302 is not proper. The High Court dismissed the appeal but the Supreme Court reversed, holding that the husband’s actions in a sudden fight did not warrant life imprisonment. His sentence should have been brought under the fourth exception of Section 300, accounting for the heat of passion in a sudden fight, and accordingly his sentence was reduced to ten years.

The petitioners were charged and found guilty of dowry death. The Court upheld the conviction, holding that the evidence of cruelty necessary to create a presumption of dowry death may be less than or different from the level of evidence of cruelty necessary to uphold a charge of criminal cruelty. The two crimes are unrelated, despite using similar wordings, and a person may be convicted of dowry death without having committed criminal cruelty.

The Supreme Court ordered that all marriages be registered in order to prevent child marriage.

While traveling to her house, an 8/9 year-old girl was separated from her father and sister while in her family's fields. The defendant kidnapped and raped her under a nearby mango tree. The Supreme Court reversed a High Court's acquittal and found the defendant guilty of rape. The Supreme Court stated that the conviction could be upheld solely on the victim's testimony, despite her age, if it is believable and there is no evidence to discredit its trustworthiness.

A woman was kidnapped in broad daylight, taken to a forest, then gang-raped. The defense argued that the woman's injuries were not severe enough for her to have resisted multiple rapists. The Court held that a woman need not present evidence of resistance to support a charge of rape.

A woman committed suicide by hanging herself after being mistreated and abused by her husband, being subject to complaints about her dowry and held responsible for the death of her father-in-law because of her "evil luck" by her in-laws, and being subjected to other mental torture. In an action against the woman's husband and mother-in-law, the lower court had found insufficient evidence of systematic cruelty or physical or mental torture to sustain a conviction under 498 A of the Indian Penal Code, which provides that a relative of a woman that subjects that woman to cruelty may be imprisoned for up to three years. The Supreme Court reversed the lower court's holding, finding that the actions of the accused husband and mother-in-law did qualify as "cruelty" because their willful conduct was of such nature as was likely to commit the victim's suicide.

A case of gang-rape under public law because the accused were employees of the national railway. The case includes a discussion of the application of UN resolutions domestically, including the Declaration on the Elimination of Violence Against Women and the Universal Declaration of Human Rights. The Court concludes that the victim can recover under public law due to the violation of her fundamental rights, enshrined in the declarations and the Indian Constitution.

A woman, harassed by her husband and in-laws for additional dowry, committed suicide by jumping into a well with her baby. The trial court acquitted the accused because the prosecution did not prove the case. The Court reversed, holiding that if the facts necessary to create a presumption of dowry-death are shown, the burden of proof shifts to the defendant and not the prosecution.

A public interest litigation was initiated to urge the Indian government to address the issue of high levels of maternal mortality in the country. The Court ordered the government to correct discriminatory actions in programs intended to reduce maternal mortality, to report on what corrective steps will be taken to monitor and improve current programs, and to create additional programs if necessary.

After a marital dispute arose, the husband transferred ownership of the marital home to his mother in order to evade the 2005 Protection of Women from Domestic Violence Act which does not permit women to be forcibly dispossessed of their homes. The Court held that the subterfuge was insufficient to evade the law and ordered that the wife be allowed to live in the home until the dispute could be resolved. Here, the Supreme Court held that the shared household only includes homes which are owned or rented by the couple.

The petitioner, having been found guilty under the dowry prohibition act, charged that because the witnesses were all related, their testimony was insufficient to prove that he participated in a demand for dowry. The Court held that the testimony is sufficient to uphold a charge, and that evidence of a demand for dowry having been presented it is up to the defendant to prove that he did not participate in the demand—to prove an alibi.

A woman was kidnapped and raped by men who owed her father money. The police decided to drop the case because they believed the charge was invented to harm the father's debtors. The Court held that the father's relationship with the defendants was insufficient to invalidate the victim's testimony.

In this public interest litigation, an NGO that works on health issues challenged the government's failure to adequately address the issue of anti-girl child sex selection and the enforcement of the laws prohibiting prenatal sex identification. The Court ordered the government to respond with what it planned to do to address the problem.

In this public interest litigation, the case at issue concerned six women who were sexually assaulted and raped on a commuter train. The Court set out new requirements for police dealing with rape victims, including that victims be provided with legal representation, informing the victim of all her rights before questioning her, and protecting her anonymity during trial. The court also ordered that the criminal compensation board consider the totality of the circumstances, ranging from the emotional pain of the act itself to medical costs and emotional pain associated with any child that might result from the rape when setting out compensation to be paid.

In a case of domestic violence, under the 2005 Protection of Women from Domestic Violence Act, the Delhi High Court upheld the Magistrate Court's injunctive order to allow the wife and some of her family to remain in the marital home until the case was fully prosecuted.

A father alleged that his son-in-law had kidnapped his daughter. The daughter showed that she was of age and had married of her own free will. The court held that a family can have no control over who an adult chooses to marry.

A man took a six year-old girl into his house, removed her clothes and masturbated until he ejaculated on her stomach. The prosecution charged that he was found in the act of raping the girl, but the medical evidence showed that he could not have done so. The Court held that he could be found guilty of an "offence to modesty," which the court defined as any action that would be shocking the sense of decency of a woman. Here, the Court finds the perpetrator guilty despite India's inadequate criminal law to deal with sexual assault not amounting to rape.

Report by Lawyers Collective Women’s Rights Initiative (LCWRI), International Center for Research on Women (ICRW) and UN Trust Fund to End Violence Against Women on the implementation of India’s domestic violence law since its establishment in 2005 (2010).