CHAPTER-1

INTRODUCTION
 1

CHAPTER-1

INTRODUCTION

WOMEN CONSTITUTE about one half of the global population,

but they are placed at various disadvantageous positions due to gender
difference and bias. They have been the victims of violence and
exploitation by the male dominated society all over the world. Ours is
a tradition bound society where women have been socially,
economically, Physically, psychologically and sexually exploited from
time immemorial, sometimes in the name of religion, sometimes on the
pretext of writings in the scriptures and sometimes by the social
sanctions. The concept of equality between male and female was almost
unknown to us before enactment of the Constitution of India. Of
course, the preamble of the Constitution which is the supreme law of
the land seeks to secure to its citizens including women folk, justice-
social, economic and political, liberty of thought, expression, belief,
faith and worship, equality of status and opportunity, and promote
fraternity assuring dignity of the individual.1

“Where women are respected, there dwell the Gods.” So says

our religious scriptures. Though men worship all the Goddesses yet
beat their wives, Women, from womb to the tomb from the time of sex
determination to the Sati, leap into the funeral flames of the former
husband are still suffering from the male domination syndrome, They
have always been the victims of untold miseries hardships and
atrocities caused and perpetrated by the male dominated society. It is
sad but unfortunately true that she has, even in her own home, given
rather a subordinate role to play. Her major concern is expected to be
catering to the comforts of the family as a dutiful daughter, loving

1 R.K. Bag, “Domestic violence and Crime Against Women: Criminal Justice Response in
India.” JILI volume 39, 1997.
Shobha Saxena, Crime Against Women and Protective Laws P. 7 (1999).
2

mother, obedient daughter-in-law and faithful and submissive wife. She

is perhaps everything except a human being at par with her
counterpart-the man. She possesses the same feelings, aspirations,
emotions, sense of satisfaction and frustration as her counterpart, but
the society has made her dependent either on her father, mother,
husband or son.

Violence against women is not a myth, but a reality. It exists and

exists everywhere. The problem of violence against women is as old as
the world in cosmologies, mythologies or legends. The type, frequency,
intensity and control of violence against women may vary from time to
time or place to place, but it is there everywhere. Even in India, where
women are thought to be highly esteemed, the problem of violence
against women is as old as Sita who was abducted by Ravan, or
Draupadi who was publicly tortured by Kauravas or Ahalya who was
turned into stone by her husband. Even today, various forms of
violence against women are prevalent in our society, though many
cases remain unreported due to cultural norms, apathy or ignorance.
They may manifest themselves directly in foeticide, female child
killings, bride-burning, dowry-murder, wife-battering, abduction, eve-
teasing, verbal abuses or verbal rebukes. Women, on many occasions,
are victimised by all sorts of discriminations, deprivations and
obstructions in goal achieving responses. These incidents may occur in
the family, offices, agricultural fields, industries or even public places.
Female child killing, dowry-murder, sati-pratha, witch-hunting are
unique violences against women in Indian Society. It sounds surprising
that on animal level, predatory aggression (killing and eating) occurs
between the species and not within the species, but a human being, the
highest on the evolutionary level, kills another human being of his
own species.3

Dr. Niroj Sinha, “Women and violence”, Vikas Publishing House Pvt. Ltd., New Delhi, 1989,
p. 16-17.
 3

The condition of Indian women is very much shocking. There are

certain special limitations due to India’s cultural and familial
background -the social, economical, and political conditions are also
responsible for women’s oppressions. They are the victim of the
circumstances which have been created due to gender discrimination
which persist in India from cradle to grave. This phenomenon, however
takes its rise from the declare of the Hindus, reaches its apex during
the Muslim, rule gradually tends to loosen its grip during British rule.

(I) HISTORICAL BACKGROUND

The Code of Manu directed that a wife should be considered of

no more importance than a chattel of her husband. ‘Whether a
drunkard, leper, sadist or wife beater, a husband is to be worshipped as
God.’ Those women who conformed to the code were raised to the
convenient pedestal of goddesses, the minority who did not, were
looked down upon as little better than sluts. During this period women
had no autonomous status. She could not own, inherit or deal with
property, She could not sue, she had no legal status apart from that of
her husband. Wife battery was treated as a private privilege of
marriage which did not warrant any state interference. The law, till
today, presumes that a husband has total sexual rights over his wife.

Ancient Hindu Law permitted husband to correct his wife by

beating her with a rope or split bamboo ensuring that no bones broke.
Over the centuries and even today, as we limp towards the 21st
century, society shamelessly accepts this violence by men in the name
of tradition. Aggression and violence are considered positive male
qualities. The man who is not assertive becomes the object of ridicule
‘henpecked’ as they call him. Women themselves accept the
subordinate role willingly without questioning the logic behind it.

In ancient India which may be called the Aryan Age of History,

women were respected as mothers, sisters & daughters as Manu said
“in the Code of Manu (Manusamriti) that “Yatra Nariyastu Poojyanti
4

Ramante Tatra Devatah”. But it was in principle or theory only and

was hardly in practice. They are the subjects of cruelty, ill-treatment
and all sorts of misbehaviors of males. Even Lord Ram rebuked Sita
when she was got freed from the claws of Ravana after the war of
Ramayana. Even Draupadi was divided by the five Pandawas
periodically for their sexual enjoyment, she was lost in royal gambling
to the kauravas who insulted her like beasts? Where as the orthodox
Hindu society still believes that the females have no rights to personal
liberty. Saint Tulsidas in his epic “Ram Charitar Manasa” declares the
women to deserve beating:’4 The males were to write the Codes for all
times and obviously women were given a subordinate position. Manu
Smriti (200 B.C.) prescribes duties and obligations towards her
husband which includes, “even if the husband is immoral and debauch
and lacks good qualities, the wife must still worship him as if he were
God himself. According to Manu, whatever wife earns, belongs to her
husband. Her ownership of wealth is on behalf of her husband. Women
have no capacity to own wealth as they themselves are treated as
chattel by men. Manu, the father of Hindu Dharam Sutra has said about
woman- “Pita Rakksati Kaumare Bharata Rakksati
Yauvalle/Raksanti Sthavire Putra Na Stri Svatalltrayamarhati.” i.e.
a woman is under the subjection of her father during childhood, when
married under her husband, after her husband under her sons, and if she
has no sons then under her agnatic relations because there is no woman
whatsoever who is fit to be independent.5 Roman civilization woke up
to democracy at the earliest times in history, yet the Romans did not
succeed in winning for their women, human legal rights. Women in
Greek, Roman, Spartan civilizations had to bear a great deal of
hardships. The Spartans often destroyed such women as could not be
expected to give birth to healthy children. With the result of that, the
proportion of women to men decreased to such an extent that one wife
had several husbands.

Manjula Batra, “Status of Women in Society”.

Manu Smriti, Ch. IX, Verse 3 (K. Hargovinda Shastri, Ed. 1965).
 5

Although Christianity claimed to have come as a blessing to men

and such was achieved in its initial stages, yet the basis of Christian
counter concepts about women were wrong. Women were hailed as
mother of evils, the root cause of sin and corruption. Therefore, no
starting could be achieved for women emancipation. Under the
influence of Christianity, women experienced depravity and
oppression. They were burnt at the stakes, after being tried as witches.
The fate of Joan of Arc is a remarkable example.

Arbians and other contemporary societies do not show very

hopeful pictures regarding women. In the Arbian scene, the condition
was dismal. There was no limit to the number of wives. Divorce was
most common. Men were free to tyrannize in whatever manner they
pleased. Women were also discriminated on the matter of guardianship
of property of her minor child. No education was favoured for women.

History is the testimony to the fact that discrimination of sex

always remained effective in particularizing one’s treatment. While
men and women these two are the wonderful creatures of nature whose
mutual understanding and cooperation are essentially needed to guide
the activities of the world, it is most unfortunate that throughout the
history Indian women remained victims of various forms of violent
actions induced by men’s society. Increasing rate of dowry deaths,
rape, wife battering, eve-teasing, prostitution and many latent and
manifest forms of tortures have disturbed the equilibrium of our living.
It is, however, a matter of satisfaction that there is a growing
awareness of this problem in our society. So now it has become an
agitating issue. The question is often asked as to why should a man
abuse a woman inflicting all sorts of physical injuries and occasionally
kill her? This seemingly simple question is not easy to answer. Several
factors account for this state of affairs with regard to women in this
society. Factors which are deep-rooted are numerous but most of them
are basically of socio-psychological nature.
6

(II) MODERN/ LATEST CONCEPT

The universal phenomenon of domestic violence has seriously

attracted the global attention during the past few decades. Violence
against women exists in almost every society irrespective of caste,
colour, sex, creed, status, religion, education etc. it is a hidden crime
committed within the fourwalls of the matrimonial homes and go
unreported. The poor victim of domestic violence, suffer in silence,
considering as their fate accompli. Often they fear social stigma,
involvement of family prestige, apprehension of possible relation,
financial dependency, future of children, attachment of religious
sentiments etc, because of which prefer to remain silent, then to make
such acts public, Inspite of hearing large number of legislations to
combat violence against women, the incidence of violence continue
unabatingly.

Violence against women is rooted in unequal power relations

between men and women in society and can be understood within a
gender framework. While sex is a biological category, gender is a
social construct and refers to widely shared expectations and norms
within society about appropriate male and female behaviour and roles.
While gender roles prescribed a strict division of labour, women are
expected to perform largely reproductive functions like maintenance of
the household, child care etc Gender roles also prescribe characteristic
of docility, unending patience and servility for women. Women are
judged and condemned by society if they go against the prescribed
forms of behaviours for them.

Hundreds of women are battered or even tortured and killed in

their homes but they go on living in traumatic situations because they
have no other place to go. A large number of victims have shunted
between their natal home and the matrimonial home several times
before finally becoming a victim of death. Women are emotionally
vulnerable and physically weak, they lack the legal right to live in the
 7
house where they had lived with the husband for years, after their
husband deserts or divorces them. Marriage deprives her of the rights
over the natal home.

Women are conditioned from birth to believe that they are

inferior to men. They accept the beatings from their husbands as their
fate and continue in violent relations for myriad reasons, the most
crucial being the fact that they are economically dependent on their
husbands. They slack the training and the skill to get jobs and attain
economic independence. Moreover, most of them have seen their
mothers and sisters being beaten so they believe, along with most of
the other males, that it is always their own fault, if nothing else they
must have done something to provoke him to deserve the beating.

Wife beating is perhaps the most prevalent form of violence

against women, but reliable statistics regarding this crime are not
available. Research in this area is relatively recent and current
estimates of the actual level of wife battery are culled only from
reported incidents to the police. These statistics present only the tip of,
the iceberg because most of the cases remain under cover of privacy.6
It is only in the last two decades that there has been an attempt,
however fragile, on the part of our legislators towards accepting the
family as a partnership of mutual trust and affection between equals,
rather than an enterprise subject to patriarchal control which is
indissoluble.7

Domestic violence is systemic and structural, a mechanism of

patriarchal control of women that is built on male superiority and
female inferiority’s ex stereotyped roles and expectations, and
economic, social, and political predominance of men and dependency
of women. Through violence men seek and confirm the devaluation and
dehumanization of women. It is a serious human right threat to women

6 Sobha Saxena, Crime against women and protective laws, Deep & Deep Publication Pvt. Ltd.,
2001 (Reprint), New Delhi, p. 174-176.
7 Ibid.
8

in every society - rich and poor. National Commission for Women

(NCW) in its report, “Violence Against Women in North East India”,
2005, it is estimated that at least 3 out of every ten women in India
face domestic violence Reporting of such cases is extremely low. One
of the major factors for this is the “culture of silence” if we see, the
order and cause of violence. Dowry is one of the most obvious causes
of domestic violence prevalent in India It is defined as any property or
valuable security given or agreed to be given, directly or indirectly, by
one party to marriage, or by parents of either party to marriage or by
any person to either party to the marriage or to any other person at or
before or at any time after the marriage, in connection with the
marriage of the said party. Being one of the most significant factors
responsible for violence against women it, results in harassment,
beating, and in many cases even murder. Dowry violence against
woman, in which she is subjected to harassment by her husband and his
family members, has been increasing since the last three decades. In
most of the cases dowry related violence goes unreported due to lack of
awareness, fear or retaliation, distrust of legal instruments or inability
to take legal measures that prevent the families from reporting to the
police.8

A central theme for the women’s movement all over the world
has been violence against women both in their homes and outside. This
is directly linked to their unequal position in a patriarchal society
cutting across both class and community. The first categories of
violence focussed on were rape and murder of young brides for dowry.
It was realised that there were other more brutal expressions of the
widespread phenomenon of domestic violence which included wife
beating, cruelty, torture and humiliation. This realisation made women
groups demand that wife abuse be treated as an offence too.

Sadhna Gupta and Pankaj Kumar, Legal News & Views, April, 2006, p. 7-8.
 9

The term domestic violence implies the incidents of familiar or

intimate battering having reference to an idealised family unit
functioning in a protected and secluded manner, appropriately shielded
from the public. This idealised conception, the rhetoric of inviolability
of family as an institution has shielded domestic violence behind an
iron curtain as an unacknowledged phenomenon behind the “closed
doors” of the family, a private matter between “inmates”, which is
neither a concern of public scrutiny nor of interventions.”9 The
Domestic violence manifests as verbal, physical or psychological abuse
often in forms that are more subtle than the violence elsewhere in
society. Familiarity with the perpetrator and filial values deter
resistance, “closed doors” alienate the victim from remedies resulting
in a convenient status quo where the victim reconcile and society can
connive. The reconciliation with subjugation, in the wake of limiting
social circumstances violates the case of human rights i.e. liberty and
human dignity. The hopelessness of their situation harms the woman
more than the violence itself as it erodes their personality and faith in
their own people. Ignoring the victim and not making any attempt to
provide solace or restitution is a challenge to human rights?10 The
victims inability to access the law makes legal remedies ineffective and
the four walls of the so-called “home” render the law incapable of
reaching the victims-which is even more tragic. Many of the victims of
domestic violence are at a risk of further violence or even death, when
they attempt to leave abusive relationships. Thus most incidents of
domestic violence go unreported because women are reluctant to bring
a complaint against a member of their own family.

A study of dowry gives rise to certain questions, one being, is

the unfulfilled demand for dowry the only reason for dowry-related
violence and death? Dowry violence against a woman may be seen as
viewing her as an individual found wanting in some respect. Dowry

9 Dr. Mrs. Mamta Rao, “Law relating to women & children”, Eastern Book Co., Lucknow
2005, p. 152.
10 Justice AS. Anand, “Victims of Crime- The Unseen Side” (1998) 1 SCC (J) 3.
10

dispute is used as a garb to undermine the value of the woman herself,

of taunting her for the sake of troubling her and showing her inferior
place. Kanwaljit Deol, a Police Commissioner who headed the first
ever Anti- Dowry Cell and Madhu Kishwar the editor of a popular
Indian feminist magazine Manushi, both closely involved with the fight
against dowry have each pointed out that the abuse of women over
dowry was inexorably linked with the wider issue of marital violence
and the general mistreatment of women and not dowry per se. Madhu
Kishwar phrases this issue well when she states that criticizing the
dowry, like criticizing her family, is a way of criticizing her, and the
package deal that she represents.11 Thus to some extent it can be held
that dowry is only one among many pretexts used by in-laws to
legitimize abuse against the woman and her position as such. To lay the
sole blame for all harassment and deaths of Indian women at the door
of dowry alone would be to run rough shod over a very complex and
deep-rooted social malady.

All these factors render the issue of domestic violence very

different from other forms of violence because of the women’s weak
and vulnerable position inside their home. It also explodes the myth
that women are subjected to harassment and violence on the streets and
at their workplace while the home is the safest ‘haven’ for them.

Unlike other offences, a woman is subjected to violence-by her

most intimate relatives. Therefore these categories require protection
of law which can stop violence going against them. Prior to 1983 the
issue of domestic violence was outside the domain of law. There was
no law for dealing with this menace. It was only recognized in
different matrimonial laws, where cruelty is valid ground for divorce
but there is was no provision for immediate relief to stop the violence
in the family. In 1983, the first attempt in this direction was made, a
review of section 498-A was introduced in the Indian Penal Code. This

11 Kishwar, M. (1988), “Rethinking dowry boycott.” In: No. 48 (Sep.- Oct. 1988), Manushi, p.
10-13.
 11
section deals with cruelty by husband or his relatives towards a
married woman.

The law is good in the sense that for the first time it addressed
the issue of cruelty against women separately. But it is not complete in
the sense that it provides for criminal trial of violence and is silent on
means for immediately stopping the violence occurring in the family.
Secondly, it covers only married woman, other intimate relationships
are outside its gambit. Also it does not protect the right to reside in
shared household which is a very important aspect.

The passing of the Domestic Violence Act, 2005 an important

marker in the history of the women’s movement in India which has
confronted the problem of domestic violence for well over two
decades. This enactment sets free the movement from the malaise that
has long plagued it, of attributing all categories of violence suffered by
women within their families to ‘dowry’ and widening the scope of the
term ‘domestic violence’. It acknowledges that domestic violence is a
widely prevalent and universal problem of power relationships, more
than the culture specific phenomenon called ‘dowry death’. More
importantly, it marks a departure from the penal provisions, which
hinged on stringent punishments, to positive civil rights of protection
and injunction.

While celebrating this, it is also an opportune moment to pause

and reflect on why and how several pro-women legislations in the past
have failed to protect women. Also to examine what are the provisions
in this new legislation that sets it apart and elevates this over all the
pro-women legislations of the past two decades and to raise some
uncomfortable questions. Are we going round in circles and entangling
ourselves in further legislative entanglements? Can we predict the,
myriad directions in which the Act will unfold in years to come? While
examining the legislative story of the past two decades, the paucity of

12
Act No. 43 of 2005.
12

women friendly legislation is evident. Getting these legislations

implemented in their true spirit and intent and making them relevant to
women at the fringes of society was too formidable a task.

In each case of cruelty, suicide or murder, the prosecution had to

prove not only a link but a close proximity to the dowry demand and
the incident of violence as the offences under the I.P.C. were framed in
the language of ‘down,’ i.e. dowry death (S.304-B), cruelty to wives
and dowry harassment (S.498-A) etc. If this could not be done, the
blame was placed squarely on the victim and she was branded a liar.
The gains of the Domestic Violence Act have to be assessed within this
social and legal background. The victims survivors will now be able to
access the legal system without having to plead ‘dowry linked’
1^
harassment.

Years and years have rolled and we are in 2009. And yet, for our
helpless and hapless women - hundreds and thousands of them - history
has ruthlessly repeated itself. The travails of the tyranny have taken
the tolls of these women unabated. We have learnt by our
constitutional mandate that social justice is the key-stone of the
Constitution. Equality before the law and equal protection of law
between male and female is the Constitutional Guarantee. But, in
reality and practice, it is a myth to the millions of these so-called
weaker sections, not only in India, but all over the world, violence
against women, including domestic violence, which mostly eludes the
eyes, is meanacing and mounting by the day. And this one is problem
of gravest magnitude that shocks the human conscience and shakes the
entire edifice of our social structure.14

This lack of ‘a differentiated’ self may push women to return to

violent relationships as they are conditioned to feel ‘whole’ only when
“in a marital relationship”. Violence is thus a function of inequality.

13 Flavia Agnes, Domestic Violence Act- A Portal of Hope, Legal News & Views, Nov. 2006, p.
12.
14 Sukumar Ray, Dowry, Domestic Violence and the Law, 2004 Cri. L. J. Journal, 193.
 13
Therefore, we need to make attempts directed towards further
capacitating women to enforce equality, wherefrom emerges their right
to argue against domestic violence.

In contemporary society men play more roles that accord

authority while women hold more subordinate positions. By being
continually reminded of their inferior status in their interactions with
others, women internalize that inferior status so thoroughly that they
are unaware of what their capabilities are, women are put back in ‘their
place’ should they venture out. Inferiority assumes familiarity and even
desirability - of home.

Through the exercise of male violence women’s subordinate

status and unequal power are apparently enforced and maintained and
reinforced by political and cultural institutions and economic
arrangements.

In societies which allocate to wives the responsibility for happy

families and husbands, women tend to think that it is their own
behavior which caused their husband’s violence. There is a possibility
that women seeking help realize that solutions to the man’s violence do
not reside in a change of their own behavior.

The first reaction to violence is that they may not anticipate it

will occur again. Therefore they believe in the potential to reform and
are committed to the relationship. Women may also have very rational
reasons for staying on in an abusive marriage - they may fear
retaliation against them or their children and may not be able to
financially support themselves. This inference is consistent with the
findings related to levels of employment and financial violence
experienced by women.15

The Lawyers Collective, “Domestic Violence- Organised Repression on Women,” July, 2006,
p. 8-10.
14

(III) AIMS AND OBJECTIVES

The present study is analytical, interpretative and descriptive in

nature and have following aims and objectives:-

1. To know the nature and extent of cruelty against women.

2. To know the efficiency of the preventive agencies and the laws

against cruelty with the recent judicial trends.

3. To find out the drawbacks and lacuna’s in the implementation of

present enactments for that.

4. To know the impact upon society by the abuse of the process of

law u/s 498-A, I.P.C..

5. To study the data pertaining to the cruelty against women and the
role of NCW and Crime Against Women (Cell).

6. To inculcate suggestions and precautionary measures regarding

the problem.

(IV) RESEARCH METHODOLOGY

This study is descriptive, interpretative and analytical in nature.

The doctrinal researches have been undertaken simultaneous. Further
appraisal has been done of various laws, agencies, N.C.W. and
N.H.R.C., Conventions and judicial pronouncements, regarding cruelty.

In order to make the study in its proper socio legal prospective,

the research study has been divided into eight chapters. The work on
the subject cannot proceed without making a study of the concept of
domestic violence and system of Dowry along with its relevant
incidents, which leads to cruelty against women and emerging
problems, this with the general introduction has been discussed as
under:
 15

Chapter-I: It is introductory in nature regarding domestic

violence which leads to cruelty to the women. It gives idea about
research study attempted to be done.

Chapter-II: deals with “Dowry Prohibition Act, 1961 as an

Instrument of Safeguard Against Cruelty”. The evolution of dowry, its
applications and implications has been discussed thoroughly.

Chapter-Ill: deals with “Cruelty under Section 498-A, Indian

Penal Code, 1860 and its various dimensions under Personal Laws”. In
this chapter the concept of cruelty with the help of latest judicial
trends alongwith malafide implementations of this sections have been
discussed thoroughly. The concept of cruelty under various personal
law has also been discussed.

Chapter-IV: deals with “The Role of the relatives of the

husband under Section 498-A, I.P.C., 1860”. The role played by the
relatives of husband in this chapter i.e. Mother, Father, Married Sisters
and their husbands, married brothers and their wives, unmarried sisters
and brothers, grand parents and distant relatives have been thoroughly
discussed with the help of latest case laws.

Chapter-V: deals with “The Abuse of Process of Law under

Section 498-A, I.P.C., 1860 and its impact upon society”. Now a days
one thing came to light that the concept of cruelty have been misuse
with the purpose of satisfying their personal grudge, so the chapter put
light on the present situation with latest case laws.

Chapter-VI: deals with “The study of data pertaining to the

cruelty against women and the Role of National Commission for
Women and the Crime Against Women(Cell). In this chapter the role of
NCW and CAW(Cell) and a comparative study of data of the state of
Haryana in respect of cruelty and other crimes against women from
year 2003-2006 and percentage of the crime under section 498-A,
I.P.C. in comparison to other I.P.C. (Cognizable) Crime against women
16
in each district of Haryana during the year 2006 and successful cases
dealt with by the NCW in respect of cruelty against women has been
thoroughly discussed.

Chapter-VII: deals with “The Recent Judicial Trends in India”.

The interpretation of cruelty from orthodox interpretation to modern
interpretation with a need of the hours with leading and latest case law
of various High Courts and Apex Court of India has been discussed
fully and the recent judicial trends on various topics has been
discussed separately.

Chapter-VIII: At last but not least conclusion has been drawn

and some suggestions have been made out.
 “Legislation cannot by itself solve deep-rooted
social problems. One has to approach them in another
way too, but legislation is necessary and essential, so
that it may give that push and leave that educative
factor as well as the legal sanctions behind it which
help public opinion to be given a certain shape. ”

-Pt. Jawahar Lai Nehru