Violence Agianst Women

8/18/2019 Violence Agianst Women

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Violence against Women with Special Reference to Domestic Violence and

Workplace Violence- Mandar Lotlikar1

Abstract- A gender-eqal societ! wold be one where the word "gender" does not e#ist$

where e%er!one can be themsel%es& A societ! that is nable to respect' protect and

nrtre its women and children loses its moral moorings and rns adrift&

(ntrodction

Man and woman are two pillars of the social structure. Their roles, duties and rights are

complimentary and supplementary towards each other. If one of the pillars is weak, the other

cannot bear the burden of the society and the whole structure shall demolish. Man shouldn’texploit the woman. But ironically, it has happened and goes on happening. The present

society is still under the impression of age-old dogma that woman is inferior to man. The

wrong interpretation of religion has weakened the woman’s position in society. rong

customs, which are derogatory to the position of women, are still followed. oman has been

at the recei!ing end right from her home to her working place. "s a result, human rights of

women ha!e been fre#uently !iolated and crimes against women are on the rise. Time has

helplessly watched women suffering in the form of discrimination, oppression, exploitation,degradation, aggression, humiliation. In Indian society, the $edas glorified women as the

mother, the creator, one who gi!es life and worshipped her as a %&e!i' or (oddess. But their

glorification was rather mythical for at the same time, in India women found herself totally

suppressed and sub)ugated in a patriarchal society. Male !iolence against women is

worldwide phenomenon. *ear of !iolence is an important factor in the li!es of most women.

*ear of !iolence is the cause of lack of participation in e!ery sphere of life. There are !arious

forms of crime against women. +ometimes it is e!en before birth, some times in the

adulthood and other phrases of life. In the Indian society, position of women is always

percei!ed in relation to the man. omen in India constitute near about half of its population

and most of them are grinding under the socio-cultural and religious structures. ne gender

has been controlling the space of the India's social economic, political and religious fabric

since time immemorial.

1 The writer is a student of +..//.M. at (.0. 1are 2ollege of /aw, Margao

2 http344www.countercurrents.org4ran)an566775.htm

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Domestic Violence

What is Domestic Violence)

&omestic !iolence is the wilful intimidation, physical assault, battery, sexual assault, and4or

other abusi!e beha!iour as part of a systematic pattern of power and control perpetrated by

one intimate partner against another. It includes physical !iolence, sexual !iolence,

psychological !iolence, and emotional abuse. The fre#uency and se!erity of domestic

!iolence can !ary dramatically8 howe!er, the one constant component of domestic !iolence is

one partner’s consistent efforts to maintain power and control o!er the other.

&omestic !iolence is an epidemic affecting indi!iduals in e!ery community, regardless of

age, economic status, sexual orientation, gender, race, religion, or nationality. It is often

accompanied by emotionally abusi!e and controlling beha!iour that is only a fraction of a

systematic pattern of dominance and control. &omestic !iolence can result in physical in)ury,

psychological trauma, and in se!ere cases, e!en death. The de!astating physical, emotional,

and psychological conse#uences of domestic !iolence can cross generations and last a

lifetime.

5

Indian society is highly patriarchal. It not only discriminates between a son and a daughter

but also the former is highly preferred and latter unwanted. In many cases preference for a

male child is so intense that it results in the death of a female foetus. (ender discrimination

culminates into and is manifested in !arious types of !iolent practices within 'home'. +ince

'family' and 'home' denote 'pri!ate space', an area free from state as well as non-state

inter!entions, therefore, domestic !iolence has largely remained free from legal restraints and

remains e!en unacknowledged as a crime. 9!en if there were laws, !ictims were hardly

taking recourse to law as women are socialised right from their childhood in patriarchal

!alues. 2onse#uently !iolence within 'home' and by their own relati!es is not percei!ed as a

crime or something wrong by women themsel!es.

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*ow is Domestic Violence cased)

The roots of domestic !iolence and other types of !iolent relationships are linked to power

and control. If one partner feels the need to dominate the other in any shape or form, whether

it is physical, sexual, emotional, economic or psychological, then it is significantly more

likely a relationship will turn !iolent. 0esearch has shown that people with abusi!e

tendencies generally turn !iolent when they feel out of control.

"buse is a learned beha!iour, which, in some cases could ha!e been learned early on in

childhood. "n abuser may ha!e witnessed domestic !iolence in his or her home and

understood that !iolence was a means of maintaining control in the family unit.

In economic downturns, incidents of domestic !iolence increase exponentially. *actors

associated with economic downturns such as )ob loss, housing foreclosures or debt can

contribute to higher stress le!els at home, which can lead to increased !iolence. :

Who does Domestic Violence affect)

It doesn’t matter how long a couple has been together, how successful one or both of the

partners is or how lo!ing the relationship used to be, domestic !iolence can happen to

anyone. It can span age, sexual orientation, religion and gender, and affects people of all

socioeconomic backgrounds and education le!els. It can happen in opposite-sex and same-

sex relationships and can happen to intimate partners who are married, li!ing together, dating

or somehow estranged. " person does not ha!e to be married to be experiencing domestic

!iolence. &omestic !iolence also has a substantial effect on family members, especially

children.

9ach child is uni#ue and may respond differently to the abuse, but there are common short

and long-term effects that can impact a child’s day-to-day functioning. +hort-term effects can

include academic and beha!ioural problems, sleep disturbances and4or difficulty

4 http344www.)oyfulheartfoundation.org4learn4domestic-!iolence4about-issue4what-are-roots-domestic-!iolence

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concentrating. /ong-lasting effects can persist e!en after a child has grown up, like difficulty

trusting others and establishing relationships or ongoing depression

"lthough it is estimated that one in e!ery four women will experience domestic !iolence

within her lifetime, most incidents are ne!er reported to the police. ;eople may not report

these incidents for a !ariety of reasons, including3

• *inancial dependency

• +hared space

• ;rotecting children

• 9motional attachment

• +hame4*ear of being hurt further and4or being killed<

+ommon Signs,S!mptoms of %ictims of domestic %iolence• ;re!ents contact and communication with friends and family

• "ttempts to control what partner wears

• =as unrealistic expectations, like partner being a!ailable at all times

• Threatens to take away or hurt the children

• "cts like abuse is not a big deal, or denies it’s happening

• Intimidates with guns, kni!es or other weapons

• +ho!es, slaps, chokes, hits or forces sexual acts>

(nternational Legal Regime

ni%ersal Declaration of *man Rights' 1./0

?nited @ations since the drafting of the uni!ersal declaration of human rights, has guided the

organisation in its acti!ities for the promotion and protection of human rights e!er since. This

is most e!ident in the work of the ?nited @ations programme of "d!isory +er!ices and

Technical 2ooperation in the field of human rights. This programme has been engaged since

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&eclaration is the mine from which other con!entions as well as national 2onstitutions

protecting women’s rights ha!e been and are being #uarried.C

Declaration on the limination of discrimination Against Women' 1.23The (eneral "ssembly adopted this 2on!ention in 7A>C, considering that ?ni!ersal

declaration on =uman 0ights asserts the principle of non-discrimination and proclaims that

all human beings are born free and e#ual in dignity and rights and that e!eryone is entitled to

all the rights and freedoms set forth therein without any distinction of any kind, including any

distinction as to sex.

4he +on%ention on the limination of All 5orms of Discrimination against

Women 6+DAW7' 1.3.The 2on!ention on the 9limination of "ll *orms of &iscrimination against omen

D29&"E, adopted in 7ACA by the ?@ (eneral "ssembly, is often described as an

international bill of rights for women. 2onsisting of a preamble and 56 articles, it defines

what constitutes discrimination against women and sets up an agenda for national action to

end such discrimination.

The 2on!ention defines discrimination against women as F...any distinction, exclusion or

restriction made on the basis of sex which has the effect or purpose of impairing or nullifyingthe recognition, en)oyment or exercise by women, irrespecti!e of their marital status, on a

basis of e#uality of men and women, of human rights and fundamental freedoms in the

political, economic, social, cultural, ci!il or any other field.G

By accepting the 2on!ention, +tates commit themsel!es to undertake a series of measures to

end discrimination against women in all forms, including3

• to incorporate the principle of e#uality of men and women in their legal system,

abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination

against women8

• to establish tribunals and other public institutions to ensure the effecti!e protection of

women against discrimination8 and

7 &r. &e!inder +ingh, F=uman 0ights omen H /awGD"llahabad /aw "gency, *aridabad, 7st

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• to ensure elimination of all acts of discrimination against women by persons,

organiations or enterprises.

The 2on!ention pro!ides the basis for realiing e#uality between women and men through

ensuring women's e#ual access to, and e#ual opportunities in, political and public life --

including the right to !ote and to stand for election -- as well as education, health and

employment. +tates parties agree to take all appropriate measures, including legislation and

temporary special measures, so that women can en)oy all their human rights and fundamental

freedoms. The 2on!ention is the only human rights treaty which affirms the reproducti!e

rights of women and targets culture and tradition as influential forces shaping gender roles

and family relations. It affirms women's rights to ac#uire, change or retain their nationality

and the nationality of their children. +tates parties also agree to take appropriate measures

against all forms of traffic in women and exploitation of women.

2ountries that ha!e ratified or acceded to the 2on!ention are legally bound to put its

pro!isions into practice. They are also committed to submit national reports, at least e!ery

four years, on measures they ha!e taken to comply with their treaty obligations.

Declaration on limination of Violence Against Women' 1..8

The ?@ &eclaration on the 9limination of $iolence against omen was adopted by the

?nited @ations (eneral "ssembly in 7AA5. It co!ers physical, sexual and psychological

!iolence as well as !iolence both at home and elsewhere in society.

The definition of !iolence against women that the ?@ presents in the &eclaration is currently

the most widely accepted definition3

"ny act of gender-based !iolence that results in, or is likely to result in, physical, sexual or

psychological harm or suffering to women, including threats of such acts, coercion or

arbitrary depri!ation of liberty, whether occurring in public or in pri!ate life.’

The &eclaration states three categories of !iolence against women3 !iolence perpetrated by

the +tate, such as !iolence against women in custody and as part of warfare8 !iolence

occurring within the general community, including rape, sexual harassment, trafficking in

8 http344www.un.org4womenwatch4daw4cedaw4

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women and intimidation at work8 and !iolence in the family and in the pri!ate sphere, for

example incest and selecti!e abortions.

"ccording to the &eclaration, !iolence against women is rooted in the historically une#ual

power relations between women and men. It also explains that !iolence against women is

%one of the crucial social mechanisms by which women are forced into a subordinate position

compared with men.’

The ?@ member states are therefore urged to legislate against the !iolence, work

pre!enti!ely and impro!e the situation of !ictimised women.A

9ei:ing Declaration' 1..;

The Bei)ing &eclaration and ;latform for "ction was adopted by the *ourth orld

2onference on omen in 7AA


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The $iolence "gainst omen "ct D$""E was the first ma)or law to help go!ernment

agencies and !ictim ad!ocates work together to fight domestic !iolence, sexual assault, and

other types of !iolence against women. It created new punishments for certain crimes and

started programs to pre!ent !iolence and help !ictims.

The penalties for committing domestic !iolence may include3

• 2ommunity ser!ice

• *ines

• "nger management or inter!ention programs

• Lail

• 0estraining or protecti!e orders

• +uper!ised !isits with children

Lail time is usually imposed if there is serious bodily in)ury or a continuing pattern of

!iolence, or if the defendant has a criminal record. Incarceration times range from 56 days

to se!eral decades.77

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conditions are broken they can result in further criminal proceedings and a prison sentence of

up to fi!e years.7

(ndian Law on Domestic Violence

In India the problem of domestic !iolence has always been looked upon from the perspecti!e

of both criminal and ci!il laws. ?nder Indian ci!il law also se!eral pro!isions are a!ailable to

deal with different types of domestic !iolence.

$iolence against women is a centuries-old phenomenon that has been perpetrated in the name

of religion, social customs and rituals. The !iolence may manifest itself in different forms,

like child marriage, witch-hunting, honour -killing etc. Many a time !iolence against women

is due to defiance of the stereotyped role model of daughter, sister, wife and mother and, of

course, as daughter-in-law.

hile talking about India, it is 0a)a 0am-Mohan 0oy who can be called the pioneer of the

mo!ement for women's rights. =e was to a great extent responsible for bringing about socio-legal changes pertaining to the de-legitimisation of child marriage, sati and legitimisation of

widow remarriage. 0oy's mobilisation of =indu thought against the system of sati created the

necessary public opinion to make the practice a criminal offence in 7A

Though the term 'domestic !iolence' was not in !ogue in those reforms, ne!ertheless their aim

was indirectly responsible for making the woman's life more humane and protecting her

against domestic !iolence. 9!en during the colonial period there were pro!isions under the

I;2 and 2r;2 that aimed at pro!iding protection to women against !iolence.

?ro%isions on Domestic Violence in (ndian ?enal +ode and +riminal

?rocedre +ode

Till 7A5 there was no specific legal pro!ision pertaining to !iolence within home. =usbands

could be con!icted under the general pro!isions of murder, abetment to suicide, causing hurt

and wrongful confinement.

12https344www.cps.go!.uk4publications4prosecution4domestic4dom!KguideKforK!ictimsKandKwitnessesKfa#s.html

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In Section 8>/9, I;2, where the death of a woman is caused by burns or bodily in)uries or

occurs due to reasons other than normal circumstances within se!en years of her marriage

and if it is established that the wife is sub)ected to cruelty by her husband or his relati!es, the

death is termed as 'dowry death'. The husband or relati!es who sub)ect the wife to cruelty

is4are presumed to ha!e caused the dowry death and will ha!e to pro!e that the death was not

a result of the cruelty.

Sections 818-812, I;2--female infanticide or forcing the wife to terminate her pregnancy--

are also forms of domestic !iolence recognied as offences under the I;2.

"ccording to Section 8>;, I;2, often !ictims of domestic !iolence, especially brides

harassed for dowry, are dri!en to commit suicide. "betment of suicide of a delirious person is

an offence punishable with death or life imprisonment. "betment of suicide is also an offence

punishable with ten years imprisonment DSection 8>2E.

?nder Section 81., causing bodily hurt is a common form of domestic !iolence. The I;2

defines hurt as causing Jbodily pain, disease, pain or infirmity to any personG. " hurt may be

'grie!ous' if it results in serious in)ury such as a fracture, loss of hearing or sight, damage to

any member or )oint, etc. DSection 8=>E.

"nother common form of domestic !iolence is in the form of the wrongful restraint D Section8/.E or confinement DSection 8/>E of the spouse within her matrimonial home. ?se of force

and assault on the spouse, other common forms of domestic !iolence, are also punishable

under the I;2.

In 7A5, matrimonial cruelty was introduced as an offence in the I;2 D Section /.0A, I;2E.

2ruelty was defined as Fany wilful conduct which is of such a nature as is likely to dri!e the

woman to commit suicide or to cause gra!e in)ury or danger to life, limb or health Dwhether

mental or physicalE of the womanG. It includes harassment of the woman in connection with

demands for property and the like.

?rotection of Women from Domestic Violence Act' =>>;

The ;rotection of omen from &omestic $iolence "ct 66< is an "ct of the ;arliament of

India enacted to protect women from domestic !iolence. This "ct defines domestic !iolence

and pro!ides ci!il remedies for women facing of domestic !iolence in the form of protection

orders, residence orders, custody orders, monetary reliefs or compensation orders.

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Section 8 of the "ct says that any act, omissions or commission or conduct of the respondent

shall constitute domestic !iolence in case it

DaE harms or in)ures or endangers the health, safety of life, limb or well-being, whether

mental or physical, of the aggrie!ed or tends to do so and includes causing physical abuse,

sexual abuse, !erbal and emotional abuse and economic abuse8 or

DbE harasses, harms, in)ures or endangers the aggrie!ed person with a !iew to coerce

him or any other person related to her to meet any unlawful demand for any dowry or other

property or !aluable security8 or

DcE has the effect of threatening the aggrie!ed person or any person related to her by

any conduct mentioned in clause DaE or clause DbE8 or

DdE otherwise in)ures or causes harm, whether physical or mental, to the aggrie!ed

person.

?rimar! beneficiaries of this Act

Section =6a7 of the "ct will help any woman who is or has been in a domestic relationship

with the 'respondent' in the case.

It empowers women to file a case against a person with whom she is ha!ing a 'domestic

relationship' in a 'shared household', and who has sub)ected her to 'domestic !iolence'.

2hildren are also co!ered the act8 they too can file a case against a parent or parents who are

tormenting or torturing them, physically, mentally, or economically. "ny person can file a

complaint on behalf of a child.

"Respondent"

Section =6q7 says that any adult male member who has been in a domestic relationship with

the aggrie!ed person is the 'respondent'. The respondent can also be a relati!e of the husband

or male partner – thus, a father-in-law, mother-in-law, or e!en siblings of the husband and

other relati!es can be proceeded against.

?ersons who can take recorse to this law

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The law recognises li!e-in relationships. Thus, if a woman is li!ing with a man who abuses

her, she can take recourse to the pro!isions of this law e!en though she is not married to him.

"ccording to Section =6f7' any relationship between two persons who li!e, or ha!e at any

point of time li!ed together in the shared household, is considered a 'domestic relationship'.

This includes relations of consanguinity, marriage, or through relationships in the nature of

marriage' adoption, or )oint family. Thus, 'domestic relationships' are not restricted to the

marital context alone.

'&omestic relationships' also co!er sisters, widows, mothers, daughters, women in

relationships of cohabitation, single women etc. "ny widow or unmarried sister or daughter

who is harassed within the home can also resort to the new law.

The law also protects women in fraudulent or bigamous marriages, or in marriages deemed

in!alid in law.

Mechanism to implement the law

Section 0 of the law pro!ides for the setting up and function of ;rotection fficers.

These officers, to be appointed by state go!ernments, will be under the )urisdiction and

control of the court, and will be responsible to the court for monitoring the cases of domestic

abuse.

The ; will assist the court in making a &omestic Incident 0eport or an application for a

protection order on behalf of the aggrie!ed woman and4or child. ;s will ensure that

aggrie!ed people are pro!ided legal aid, medical ser!ices, safe shelter and other re#uired

assistance.

;s will ensure that necessary information on ser!ice pro!iders is pro!ided to the aggrie!ed

woman, and that orders for monetary relief are complied with.

Importantly, the ; can be penalised for failing4refusing to discharge his duty, with the

pro!iso that prior sanction of the state go!ernment is re#uired.

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+er!ice ;ro!iders are a !ital tool in the implementation of this act. +er!ice ;ro!iders, as

defined by the law, are pri!ate organisations recognised under the 2ompanies "ct4+ocieties

0egistration "ct.

They will ha!e to register with the state go!ernment as a ser!ice pro!ider to record the

&omestic Incident 0eport and to get the aggrie!ed person medically examined.

The +er!ice ;ro!iders will among other things ensure that the aggrie!ed person is pro!ided

accommodation in a shelter home, if she so re#uires. " +er!ice ;ro!ider is protected for all

actions done in good faith, in the exercise of the powers under this "ct, towards the

pre!ention of commission of domestic !iolence. They are, thus, protected by law and cannot

be sued for the proper exercise of their functions.

The new law, thus, recognises the role of !oluntary organisations in addressing the issue of

domestic !iolence. @(s working for women's rights can now register as +er!ice ;ro!iders

under the "ct.

Main rights of a woman as recognised b! this law

The "ct recognises a woman's right to reside in the shared household with her husband or a

partner e!en when a dispute is on. Thus, it legislates against husbands who throw their wi!es

out of the house when there is a dispute. +uch an action by a husband will now be deemed

illegal, not merely unethical.

9!en if she is a !ictim of domestic !iolence, she retains right to li!e in 'shared homes' that is,

a home or homes she shares with the abusi!e partner.

The law pro!ides that if an abused woman re#uires, she has to be pro!ided alternateaccommodation and in such situations, the accommodation and her maintenance has to be

paid for by her husband or partner.

The law, significantly, recognises the need of the abused woman for emergency relief, which

will ha!e to be pro!ided by the husband. " woman cannot be stopped from making a

complaint4application alleging domestic !iolence. +he has the right to the ser!ices and

assistance of the ;rotection fficer and +er!ice ;ro!iders, arranged under the pro!isions of

the law.

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" woman who is the !ictim of domestic !iolence will ha!e the right to the ser!ices of the

police, shelter homes and medical establishments. +he also has the right to simultaneously

file her own complaint under +ection :A" of the Indian ;enal 2ode.

+ections 7-5 pro!ide a large number of a!enues for an abused woman to get relief. +he can

get, through the courts, ;rotection rders, 0esidence rders, Monetary 0elief, 2ustody

rder for her children, 2ompensation rder and Interim4 9x parte rders.

If a husband !iolates any of the abo!e rights of the aggrie!ed woman, it will be deemed a

punishable offence. 2harges under +ection :A" can be framed by the magistrate, in addition

to the charges under this "ct.

Thus, an accused person will be liable to ha!e charges framed under both the old law and the

new one. *urther, the offences are cogniable and non-bailable. ;unishment for !iolation of

the rights enumerated abo!e could extend to one year's imprisonment and4or a maximum fine

of 0s 6,666.75

@dicial ?rononcements on Domestic Violence in (ndia

In Sa%ita 9hanot %& Lt&+ol&V&D&9hanot1/

The &elhi =igh 2ourt came to the conclusion that the petition under the &omestic $iolence

was maintainable e!en if the "ct of &omestic $iolence has been committed prior to the

coming into force of the "ct.

In Skrit Verma and Anr& %& State of Ra:asthan and Anr1;

The 0a)asthan =igh 2ourt, Laipur Bench dealt with the following < issues.

1E Women an eas! pre! to male ego

13 ;.1. &as, F;rotection of omen from &omestic $iolenceG, D?ni!ersal /aw ;ublishing 2ompany,

@ew &elhi, 5rd 9dition 676E ;g. 6-<

14 +;92I"/ /9"$9 ;9TITI@ D2rl.E @. 5A7> * 676

15 2r. 0e!ision ;etition @o. 757 of 677

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omen ha!e been sub)ected to !iolence, domestic or otherwise, throughout the pages of

history-whether they be =elen of Troy, or +ita of 0amayana, whether they be 2asandra of

Troy, or &ropadi of Mahabharata. omen ha!e been easy prey to the male ego, and

dominance. Much as the Indian 2i!iliation pays obedience to the feminine di!ine, but the

harsh reality remains that throughout the length and breadth of this country, women are

assaulted, tortured, and burnt in their daily li!es. The phenomenal growth of crime against

women has attracted the attention of the international community. The International

organisations took a serious look at the epidemic called Fdomestic !iolenceG.

=7 Beed for ?WDVA

In India, although the criminal law deals with domestic !iolence in the form of +ection :A-"I;2, but there was no pro!ision in the 2i!il /aw to deal with the said problem. In order to get

rid of the mischief of domestic !iolence, the ;arliament, in its wisdom, enacted the "ct,

which came into force on > ctober, 66>. The "ct is a social beneficial piece of legislation,

which should be gi!en as wide and as liberal an interpretation as possible.

87 Section =>- a powerfl tool for ensring gender eqalit! in economic terms

Thus, +ection 6 of the "ct is meant to ameliorate the financial condition of the aggrie!ed

person, who may suddenly find herself to be without a hearth and home. *inancially, the

aggrie!ed person may exist in a suspended animation, if she is neither supported by the

husband, nor by her parents. In order to protect women from such a pergutory, +ection 6

bestows a right to seek monetary relief in the form of compensation and maintenance. +ection

6, thus, is a powerful tool for ensuring gender e#uality in economic terms. +ection 6, does

not contain any exception in fa!our of the husband. In fact, it recognises the moral and legal

duty of the husband to maintain the wife.

/7 CBo law pro%ides that a hsband has to maintain a wife' li%ing separatel! from him'

irrespecti%e of the fact whether he earns or not Delhi *igh +ort& Sch an

obser%ation -clearl! contrar! to the pro%isions of law& *ence' this +ort respectfll!

disagrees&

In an era of human rights, of gender e#uality, the dignity of women is un#uestionable.

"rticles 7: and 7< of the 2onstitution of India recognise the dignity of women. The

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2onstitution empowers the ;arliament to enact laws in fa!our of women. *lowing from the

constitutional ranges, +ection 7< 2ode of 2riminal ;rocedure, +ection : =indu Marriage

"ct, +ection 6 &omestic $iolence "ct, ensure that women are paid maintenance by the

husband. +ection > of the "ct further lays down that the maintenance paid under the "ct,

would be in addition to maintenance paid under any other law being in force for the time

being. Therefore, the pro!isions of the "ct are supplementary to pro!isions of other law in

force, which guarantee the right of maintenance to the women. =ence, the obser!ations made

by Their /ordship of &elhi =igh 2ourt, in the case of +an)ay Bhardwa), that F@o law

pro!ides that a husband has to maintain a wife, li!ing separately from him, irrespecti!e of the

fact whether he earns or notG. +uch an obser!ation is clearly contrary to the pro!isions of law.

=ence, this 2ourt respectfully disagrees with the opinion of Their /ordship of the &elhi =igh

2ourt.

;7 Sensiti%it! of the @dges and recognition of moral and legal dt! of hsband to

maintain the wife&

The /aw has always stood to fa!our of the women. *or the /aw recognises their !ulnerability

for sur!i!al in the cruel world. omen, being a keeper of hearth in home, need to be

protected as they are the foundation of any society. If women are exposed to physical abuses,

to sexual exploitation, the !ery foundation of the society would begin to weaken. It is only

after recognising their importance, sociologically, that the ancient Indian +eers had opined

that F(ods dwell only in those houses, where women are respectedG. Thus, both the law and

society recognise a moral and legal duty of the husband to maintain the wife.

In Labhbhai 9abbhai Desaid %& State of E:arat12

The (u)arat high court while deciding the #uestion of interim custody of children remarked,F @ormally, custody of the minor children should be kept with the mother as it is the mother

who can take best care of the children. =owe!er, in the present case, this 2ourt could see that

the children do not ha!e slightest lo!e and affection towards their mother and hence, it will

take much time for the children to get ad)usted with mother and get proper care and attention.

=owe!er, as the children are already with the father and ha!e been taking much care and

caution by the father to the utmost satisfaction of children and in the best interest of the

16 20IMI@"/ 09$I+I@ ";;/I2"TI@ @. >6C of 67

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children almost in all respects, this 2ourt is of the !iew that if the custody of the children is

left with the father, the children would be more happier.G

In Sandh!a Mano: Wankhade %& Mano: 9himrao Wankhade F Grs&13

The +upreme 2ourt has held that Falthough section D#E defines a respondent to mean any

adult male person, who is or has been in a domestic relationship with the aggrie!ed person,

the pro!iso widens the scope of the said definition by including a relati!e of the husband or

male partner within the scope of a complaint. =on’ble "pex 2ourt further held that

legislature ne!er intended to exclude female relati!es of the husband or male partner from the

ambit of complaint that can be made under the pro!isions of 66< "ct. It is true that

expression FfemaleG has not been used in the pro!iso to +ection D#E also, but, no restricti!emeaning can be gi!en to expression Frelati!eG nor has said expression been defined to make

it specific to males only.

In ?&


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The "ct assumes that only women are !ictims. "s per this law, only a woman can file a

complaint against against a man. " man has no rights under this law.

"ccording to +ection 5DE of the "ct, the court concludes that the testimony of the

!ictim DwomanE is always true and there will be no need for any supporti!e e!idence to

pro!e that an offense has been committed. This is !ery dangerous for innocent men since

they are left with absolutely no remedy against the women who can anytime lodge false

complaints due to certain grudge or re!enge against them.

b7 ?otential chances of misse$

+econdly, there are potential chances of its misuse. If a woman lodges complaint that

there was a !erbal and emotional abuse by her husband, then she needs to pro!e nothing.

"ccording to +ection 7 of this "ct, a magistrate can take measures to protect the woman

from any acts of !iolence that are e!en likely to take place in the future. This means that

the woman get an upper hand in protection and the person against whom they ha!e

complained can be punished, e!en though he may not ha!e committed any act of !iolence

and there may be only a chance of occurrence of the !iolence in the future.

This "ct also says that the information regarding an act of domestic !iolence does not

necessarily has to be lodged by the woman herself but can be lodged by any person who

has reason to belie!e that such an act has taken place or is being so committed. That is

e!en the neighbours and relati!es can take an initiati!e on behalf of the !ictim. This is a

sheer in)ustice because anyone can lodge a complaint on behalf of the woman without any

authentic proof or e!idence.

The fact that the complaint lodged by a woman will be always treated as true and genuine

opens up potential chances of misuse where innocent men will be accused and implicated

of false charges.

c7 Definition of domestic %iolence$

The third drawback of the "ct is the definition of domestic !iolence

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"n insult is also considered as a domestic !iolence. It is true that differences may arise in

a marriage anytime since there may be lack of proper understanding between the couple.

Many people try to work on this and try to sort out their differences. hile some women

approach the court e!en for minor issues and thus, men feel threatened by the enactment.

This law will therefore lead to more di!orces and breakdown of a family.

The law at present is grossly inade#uate to tackle the problem of domestic !iolence. It

makes women more superior to men. "ccording to our 2onstitution, we all ha!e e#ual

rights, irrespecti!e of caste, creed, gender etc. This means that the law should offer e#ual

protection to both men and women. Moreo!er, the law needs to be made more practical

by defining what constitutes domestic !iolence punishable under this "ct. hen a person

who has not committed any crime is threatened under the law, it is a sheer in)ustice to that

innocent person.7A

19 http344www.indiastudychannel.com4resources47:67AA-+copes-for-misuse-of-&omestic-$iolence-"ct-66


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Se#al *arrasment of Women at Workplace

(ntrodction

+exual harassment is intimidation, bullying or coercion of a sexual nature, or the unwelcome

or inappropriate promise of rewards in exchange for sexual fa!ors. In some contexts or

circumstances, sexual harassment may be illegal. It includes a range of beha!ior from

seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault.

+exual harassment is a form of illegal employment discrimination in many countries, and is a

form of abuse Dsexual and psychologicalE and bullying. *or many businesses, pre!enting

sexual harassment, and defending employees from sexual harassment charges, ha!e become

key goals of legal decision-making. In contrast, many scholars complain that sexual

harassment in education remains a Jforgotten secret,J with educators and administrators

refusing to admit the problem exist in their schools, or accept their legal and ethical

responsibilities to deal with it.

+exual harassment of women at workplace, being offensi!e to human dignity, human rightsand gender e#uality has emerged as a fundamental crisis the world o!er. =uman dignity and

gender e#uality are uni!ersally considered to be not only fundamental human rights but also

essential to sustain economic, social, cultural and political progress nationally and

internationally.

=owe!er, discrimination on the ground of sex and gender in)ustice in political, social,

economic and cultural scenarios hampers

the growth and de!elopment at national and international le!el. Taking cogniance of the

repression and exploitation of women all o!er the world and considering the necessity of

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pro!iding gender e#uality and elimination of sexual harassment of women, a number of

efforts ha!e been made at the international le!el.6

(nternational Legal regime

nited Bations +harter

Taking cogniance of the fact that discrimination against women is a matter of global

concern, the need for including a specific statement regarding status of women under

international law was seriously #uestioned at the +an *rancisco 2onference D7A:


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The ?ni!ersal &eclaration of =uman 0ights mentions that all human beings are born free and

e#ual in dignity and rights and e!eryone is entitled to all the rights and freedoms set forth in

this &eclaration, without distinction of any kind such as race, colour, sex etc.

Legislati%e 5ramework

nited States of America- 5ederal +i%il Rights Act

+exual harassment in the workplace was first addressed through law in the mid-7AC6s at the

culmination of a campaign in the ?nited +tates to ha!e it recognied as a form of

discrimination under the *ederal 2i!il 0ights "ct.

"ny other discriminatory practices based on sex which limits, segregates or classifies the

employees so as to limit their employment opportunities comprises the unlawful employment

practice for the employer.

The sexual contact is also punished differently, depending upon the degree of force of the

kind of threat used. If a person knowingly engages in sexual contact with another person

without that person’s permission, he will be liable to be punished with fine or imprisonment

of not more than > months or both.

If the sexual contact had been an aggra!ated sexual abuse which is carried out by the use of

force or threat or fear of death, serious bodily in)ury or kidnapping, then the punishment may

be fine or imprisonment that can extend up to 76 years or both. If the sexual contact had been

a sexual act carried out by generating a fear of lesser in)ury than death, kidnapping etc. then

the punishment may comprise of imprisonment which may extend up to 5 years or fine or

both.

nited


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she is denied or afforded access to employment opportunities. It is also unlawful for a person

in relation to employment by him at an establishment to discriminate against a woman by

dismissing her or by sub)ecting her to any detriment.

n summary con!iction, the imprisonment for a term not exceeding than > months or a fine

not exceeding the statutory maximum or both is pro!ided for the commission of sexual

assault.5

Legal 5ramework in (ndia prior to Vishaka Eidelines

Before 7AAC, women experiencing += had to lodge a complaint under +ection 5


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• " demand or re#uest for sexual fa!ours

• +exually coloured remarks

• +howing pornography

• "ny other unwelcome physical, !erbal or non-!erbal conduct of a sexual nature, for

example, leering, telling dirty )okes, making sexual remarks about a person's body, etc

4he Vishaka gidelines categoricall! state that$

It is the duty of the employer or other responsible persons in the workplace or institution to3

• ;re!ent sexual harassment

• ;ro!ide mechanisms for the resolution of complaints

"ll women who draw a regular salary, recei!e an honorarium, or work in a !oluntary capacity

in the go!ernment, pri!ate sector or unorganised sector come under the pur!iew of these

guidelines.

+omplaints mechanism

• "ll workplaces should ha!e an appropriate complaints mechanism with a complaints

committee, special counsellor or other support ser!ices.

• " woman must head the complaints committee and no less than half its members

should be women.

• The committee should include an @(4indi!idual familiar with the issue of sexual

harassment.

• The complaints procedure must be time-bound.

• 2onfidentiality must be maintained.

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• 2omplainants4witnesses should not experience !ictimisation4discrimination during the

process.

?re%enti%e steps

• +exual harassment should be affirmati!ely discussed at workers' meetings, employer-

employee meetings, etc.

• (uidelines should be prominently displayed to create awareness about the rights of

female employees.

• The employer should assist persons affected in cases of sexual harassment by

outsiders.

• 2entral and state go!ernments must adopt measures, including legislation, to ensure

that pri!ate employers also obser!e the guidelines.

• @ames and contact numbers of members of the complaints committee must be

prominently displayed&

mplo!ers" responsibilities

• 0ecognise sexual harassment as a serious offence.

• 0ecognise the responsibility of the company4 factory4workplace to pre!ent and deal

with sexual harassment at the workplace.

•

0ecognise the liability of the company, etc, for sexual harassment by the employeesor management. 9mployers are not necessarily insulated from that liability because

they were not aware of sexual harassment by staff.

• *ormulate an anti-sexual harassment policy.

• 2onstitution of a complaints committee to in!estigate, mediate, counsel and resol!e

cases of sexual harassment.

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The range of penalties that the complaints committee can le!y against the offender should

include3

• 9xplicit protection of the confidentiality of the !ictim of harassment and of witnesses.

• " guarantee that neither complainant nor witnesses will be sub)ected to retaliation.

• ;ublishing the policy and making copies a!ailable at the workplace.

• &iscussing the policy with all new recruits and existing employees. Third-party

suppliers and clients should also be aware of the policy.

• 2onducting periodic training for all employees, with acti!e in!ol!ement of the

complaints committee.

?olice

• More ;20 !ans should be deployed to patrol educational institutions.

• "long the lines of women's helplines, college helplines should also be pro!ided and

its number should be prominently displayed.

• There should be police patrols around educational institutions at least for two hours

before and after college gets o!er.

• There is a need to impro!e relationships between the police and educational

institutions.

• 9!ery case of rape must be handled by a woman police officer.

• The attitude of the police needs to be made more positi!e towards the !ictim.

dcational instittions

• 9ducational institutions must ensure proper lighting in an around their premises, as

darkness is conduci!e to crime. The height of hedges must be reduced in campuses for proper !isibility.

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• "n internal security committee should be constituted by all educational institutions,

headed by the head of the institution, police officer and student representati!es who

must be in!ited for meetings to re!iew the security arrangements. If the need arises,

other go!ernment departments like the ;&, M2&, etc, may be in!ited to re!iew thesecurity arrangements.

• The internal security committee should ha!e monthly or bi-monthly meetings and

must maintain the minutes of the meeting.

• 9xperts should be in!ited to inspect the college area to assess the security needs and

arrangements on campus.

• 9ducational institutions must perform their administrati!e role for the security of the

students.

• +tudents must be gi!en proper training in self-defence.

• The telephone numbers of women's helplines must be pro!ided.

• 9ntry into educational institutions must be restricted. 9ntry should be through identity

cards.

• 2onstruction workers should not be allowed to stay on the premises of the institute

o!ernight.

• +afety gadgets should be pro!ided in hostels.

• 9ducational institutions could engage retired police officers on their security

committees4boards.

• &e-politicisation of the campus is a must8 institutions must ensure this.

• "wareness programmes on the safety and security of students must be conducted on a

regular basis.>

26 http344www.iiap.res.in4files4$isaka$s0a)asthanK7AAC.pdf

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@dicial ?rononcements on Se#al *arassment at Workplace

In Apparel #port ?romotion +oncil %& A&


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with either the factual findings regarding guilt or with penalty or punishment imposed by

departmental authorities.

In Roopan Deol 9a:a: %&


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official meeting on &ecember 7, 7AAA. +he extricated and informed her husband of her pain

and suffering and also to her other colleagues. But she did not lodge a formal complaint

assuming that it would tarnish the image of the go!ernment as a whole. +he sought the

inter!ention of chief minister when after a month the stress and mental agony became too

hea!y on her. =owe!er, she did not come up for the prosecution of the minister but simply

re#uested for a different working en!ironment and some action to be taken to protect the

modesty of women officers. Immediately after @etto’s case came to light, ;rakriti +ri!asta!a,

the di!isional forest officer, @ilambur 1erala lodged a complaint on 77 "pril 667, alleging

sexual harassment by same minister in *ebruary 7AA. The case was reported to the police

commissioner. Being new to the state ethos, she had felt too insecure to file an official

complaint then. "fter sometime troubles started for her as she started recei!ing constant

threat of gra!e nature from minister which became painful, unbearable and intolerable for

her. +he was compelled to file a written complaint after that under section 5


31/37

The present case arose when Medha 1otwal /ele, coordinator of "alochana, a centre for

documentation and research on women and other women’s rights groups, together with

others, petitioned the 2ourt highlighting a number of indi!idual cases of sexual harassment

and arguing that the $ishaka (uidelines were not being effecti!ely implemented. In

particular, the petitioners argued that, despite the guidelines, women continued to be harassed

in the workplace because the $ishaka (uidelines were being breached in both substance and

spirit by state functionaries who harass women workers !ia legal and extra legal means,

making them suffer and by insulting their dignity. The 2ourt was specifically re#uired to

consider whether indi!idual state go!ernments had made the changes to procedure and policy

re#uired by the $ishaka (uidelines and a number of earlier orders of the 2ourt.

The 2ourt stated that the $ishaka (uidelines had to be implemented in form, substance and

spirit in order to help bring gender parity by ensuring women can work with dignity, decency

and due respect. It noted that the $ishaka (uidelines re#uire both employers and other

responsible persons or institutions to obser!e them and to help pre!ent sexual harassment of

women. The 2ourt held that a number of states were falling short in this regard. It referred

back to its earlier findings on 7C Lanuary 66>, that the $ishaka (uidelines had not been

properly implemented by !arious +tates and &epartments in India and referred to the

direction it pro!ided on that occasion to help to achie!e better coordination andimplementation. The 2ourt went on to note that some states appeared not to ha!e

implemented earlier 2ourt decisions which had re#uired them to make their legislation

compliant with the $ishaka (uidelines.

It noted that some states had only amended certain aspects of their legislations rather than

carrying out all re#uired amendments and others had taken e!en less action. "ccordingly, it

held that the $ishaka (uidelines should not remain )ust symbolic but rather shall pro!ide

direction until the legislati!e enactment of the Bill, holding that a number of states had not

done anything re#uired to comply with the (uidelines.

4he Se#al *arassment of Women at Workplace 6?re%ention' ?rohibition

and Redressal7 Act' =>18

The "ct is enacted by the Indian ;arliament to pro!ide protection against sexual harassment

of women at workplace and pre!ention and redressal of complaints of sexual harassment and

for matters connected therewith or incidental thereto. +exual harassment is termed as a

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!iolation of the fundamental rights of a woman to e#uality under "rticles 7: and 7< of the

2onstitution of India and right to life and to li!e with dignity under "rticle 7 of the

2onstitution of India. +exual harassment is also considered a !iolation of a right to practice

any profession or to carry on any occupation, trade or business which includes a right to a

safe en!ironment free from sexual harassment.

Se#al *arassment

"ccording to +ection DnE sexual harassment includes any unwelcome acts or beha!iour

Dwhether directly or by implicationE such as physical contact and ad!ances, demand or

re#uest for sexual fa!ours, making sexually coloured remarks, showing pornography or any

other unwelcome physical, !erbal or non-!erbal conduct of sexual nature.

+ection 5 of the "ct pro!ides that no woman shall be sub)ected to sexual harassment at any

workplace. This section further pro!ides the circumstances which if present or connected

with any act or beha!iour of sexual harassment may amount to sexual harassment such as

implied or expressed promise to preferential treatment or implied or explicit threat of

detrimental treatment in her employment, implied or explicit threat about her present or

future employment, interference with work or creating an intimidating or offensi!e or hostile

work en!ironment, humiliating treatment likely to affect health or safety of a woman.

+omplaints +ommittee F +omplaint ?rocedre

(nternal +omplaints +ommittee$

The "ct makes it mandatory for e!ery employer to constitute an internal complaints

committee DJI22JE which entertains the complaints made by any aggrie!ed women. The

members of the I22 are to be nominated by the employer and I22 should consist of

iE " ;residing fficer,

iiE @ot less than two members from amongst employees preferably committed to the cause or

women or who ha!e had experience in social work or ha!e legal knowledge and

iiiE ne member from amongst non-go!ernmental organiations or associations committed to

the cause of women or a person familiar with the issues relating to sexual harassment.

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In order to ensure participation of women employees in the I22 proceedings, the "ct re#uires

that at least one-half of the members of I22 nominated by employer are women.

Local +omplaints +ommittee$

;ro!isions are pro!ided under the "ct to form /ocal 2omplaints 2ommittee D/22E for e!ery

district for recei!ing complaints of sexual harassment from establishments where the I22 has

not been formed due to ha!ing less than 76 workers or if the complaint is against the

employer himself.

+omplaint procedre$

The "ct stipulates that aggrie!ed woman can make written complaint of sexual harassment at

workplace to the I22 or to the /22 Din case a complaint is against the employerE, within a

period of three months from the date of incident and in case of a series of incidents, within a

period of three months from the date of last incident. If the aggrie!ed woman is unable to

make complaint in writing, reasonable assistance shall be rendered by the presiding officer or

any member of the I22 Dor in case the aggrie!ed woman is unable to make complaint in

writing to the /22, the reasonable assistance shall be rendered by the 2hairperson or any

member of the /22E for making the complaint in writing.

"s per the +exual =arassment of omen at orkplace D;re!ention, ;rohibition and0edressalE "ct, 675, in case the aggrie!ed woman is unable to make a complaint on account

of her physical incapacity, a complaint may be filed inter alia by her relati!e or friend or her

co-worker or an officer of the @ational 2ommission for oman or +tate omen's

2ommission or any person who has knowledge of the incident, with the written consent of

the aggrie!ed woman.

The +exual =arassment "ct also sets out the process to be followed for making a complaint

and in#uiring into the complaint in a time bound manner.

If an employer fails to constitute an Internal 2omplaints 2ommittee or does not comply with

any pro!isions contained therein, the +exual =arassment "ct prescribes a monetary penalty

of up to


34/37

punishment for such acts. " man committing an offence under this section is punishable with

imprisonment, the term of which may range between 7 - 5 years or with fine or both.57

Recent +ases of Se#al *arassment at Workplace

4arn 4e:palIs +ase

Tehelka founder and former editor Tarun Te)pal was charged by (oa police with rape, sexual

harassment and outraging modesty of a woman )ournalist in a lift of a fi!e-star hotel here in

@o!ember 675. Te)pal was charged under sections 5


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The +exual =arassment "ct only addresses the issue of protection of women employees and

is not gender neutral. Male employees, if sub)ected to sexual harassment, cannot claim

protection or relief under the law.

The definition of the %sexual harassment’, the words %!erbal, textual, physical, graphic or

electronic actions’ should ha!e been added in order for the purposes of clarity, as it would

co!er some of the technological de!elopments.

It may become a challenge for employers to constitute an I22 at Fall administrati!e units or

officesG. It may also become necessary for the employer to spend more time and efforts in

training members of the I22 who are to be replaced e!ery 5 years. There is also a lack of

clarity as to who shall be a chairperson of the I22 in absence of a senior le!el femaleemployee. "lso, in such cases, the composition of the committee members should ideally

ha!e been an odd number in order for the committee to arri!e at a decision based on ma)ority.

The I22 also needs to in!ol!e a member from Famongst non-go!ernmental organisations or

associations committed to the cause of women or who ha!e had experience in social work or

ha!e legal knowledge.G 9mployers may not be comfortable with such an external

representation, considering the sensiti!ities surrounding this issue and the need to maintain

strict confidentiality.

The law casts an obligation upon the employer to address the grie!ances in respect of sexual

harassment at workplace in a time bound manner, which in se!eral cases may not be

practically possible as the employees or witnesses in!ol!ed may not easily or readily co-

operate.

The law allows the employer to initiate action against the complainant in case of a false or

malicious complaint. This pro!ision, although meant to protect the employer’s interests, is

likely to deter !ictims from reporting such incidents and filing complaints, which may in turn

defeat the purpose for which the law was enacted.

+onclsion

$iolence against women is not a new phenomenon. omen ha!e to bear the burns of

domestic, public, physical as well as emotional and mental !iolence against them, which

affects her status in the society at the larger extent. The statistics of increasing crimes against

35


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women is shocking, where women are sub)ected to !iolence attacks at home, medical neglect,

sexual abuse of girl child, forced marriages, rapes, prostitution, sexual harassment at home as

well as work places etc. In all the abo!e cases women is considered as aggrie!ed person.

+imilarly sexual harassment at work is something that most people often face but not many

talk about openly. This is usually for the fear of losing their )ob, facing mockery at the hands

of the society, getting trapped in the ne!er ending )udicial proceedings or due to other unsaid

reasons.

+trong laws and public policies are essential steps toward combating such !iolence. But the

real solution lies in a culture shift, in the world, and in each of our homes. omen must not

accept, she must challenge. +he must not be awed by that which has been built up around her.+he must respect that woman in her which struggles for expression.

9(9L(GERA?*J

9ooks Referred$

7E &r. &e!inder +ingh, F=uman 0ights omen H /awGD"llahabad /aw "gency, *aridabad,

7st 9dition, 66


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E www.ncad!.org

5E www.)oyfulheartfoundation.org

:E www.un.org

E www.stop!aw.org

CE www.womenshealth.go!

E www.cps.go!.uk

AE www.indiastudychannel.com

76E www.sexualharassmenttraining.bi

77E shodhganga.inflibnet.ac.in

7E www.iiap.res.in

75E www.monda#.com

7:E www.thehindubusinessline.com

7

Documents

Violence Agianst Women