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.
Women and Justice: Location
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.
Ms. Githa Hariharan was married to Dr. Mohan Ram and they had a son named Rishab. She applied to the Reserve Bank of India (RBI) for bonds to be held in the name of their minor son Rishab and had signed off as his guardian. The RBI sent back the application to her advising her to either produce the application signed by the father of Rishab or produce a certificate of guardianship from a competent authority in her favor. RBI was of the opinion that Dr. Mohan was the natural guardian of Rishab on the basis of Section 6(a) of the Hindu Minority and Guardianship Act, 1956 (HMGA). That provision stated that the father is the natural guardian of a Hindu minor child and the mother is the guardian “after” the father. Ms. Hariharan challenged the constitutional validity of this provision in the Supreme Court on grounds that it violated the right to equality guaranteed under Articles 14 and 15 of the Indian Constitution. The Supreme Court, relying on gender equality principles enshrined in the Indian Constitution, CEDAW and UDHR, widely interpreted the word “after” in the provision and upheld the constitutional validity of Section 6(a) HMGA, 1956. It held that both the father and mother are natural guardians of a minor Hindu child, and the mother cannot be said to be natural guardian only after the death of the father as that would not only be discriminatory but also against the welfare of the child, which is legislative intent of HMGA, 1956. This case is important because it established for the first time that a natural guardian referred to in the HMGA, 1956 can be a father or a mother: whoever is capable of and available for taking care of the child and is deeply interested in the welfare of the child, and that need not necessarily be the father.
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 Muslim Women (Protection of Rights on Divorce) Act, 1986 (MWPRDA, 1986) seemed to overrule the Supreme Court’s decision in Mohd. Ahmed Khan v. Shah Bano Begum. Pursuant to a prima facie reading of the MWPRDA, 1986, a Muslim husband was responsible to maintain his divorced wife only for the iddat period and after such period the onus of maintaining the woman would shift on to her relatives. The matter resurfaced before the Supreme Court in Danial Latifi v. Union Of India when the constitutional validity of the MWPRDA, 1986 was challenged on the grounds that the law was discriminatory and violative of the right to equality guaranteed under Article 14 of the Indian Constitution as it deprived Muslim women of maintenance benefits equivalent to those provided to other women under Section 125 of Criminal Procedure Code, 1973. Further, it was argued that the law would leave Muslim women destitute and thus was violative of the right to life guaranteed under Article 21 of the Indian Constitution. The Supreme Court, on a creative interpretation of the MWPRDA, 1986, upheld its constitutionality. It held that a Muslim husband is liable to make reasonable and fair provision for the future of his divorced wife extending beyond the iddat period. The Court based this interpretation on the word “provision” in the MWPRDA, 1986, indicating that “at the time of divorce the Muslim husband is required to contemplate the future needs [of his wife] and make preparatory arrangements in advance for meeting those needs” (at 11). This case is important because, it established for the first time that a Muslim husband’s liability to provide maintenance to his divorced wife extends beyond the iddat period, and he must realize his obligation within the iddat period, thereby striking a balance between Muslim personal law and the Criminal Procedure Code, 1973.
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 Parliament of India enacted the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition on Sex-Selection) Act of 1994 as a measure of preventing female feticides and as a form of affirmative action for women and girls to end discrimination against girl children in furtherance of the constitutional principle of equality under Article 15 of the Indian Constitution. The Supreme Court in 2001 and 2003 noticed a lack of effective implementation and misuse of the Act and thus had issued directions to the Union Government and the State Governments for its proper implementation. Having noticed a decline in the female child sex ratio as reported in the 2011 Census, the Court directed personal appearance of the Health Secretaries of the States of Punjab, Haryana, NCT Delhi, Rajasthan, Uttar Pradesh, Bihar and Maharashtra, to examine steps undertaken for effective implementation of the provisions of the Act as well as the various directions issued by the Court. The Court emphasized that women have the equal right of thinking, participating and becoming leaders in the society, stating that the purpose of the Act can only be realized when government authorities carry out their functions with commitment to and awareness about the role of women in a society. After a detailed analysis of the steps undertaken by the Union and the State Governments, the Court issued directions—including regular monitoring and reporting by authorities under the Act, faster disposal of cases filed under the Act, and suspension of licenses to practice for convicted doctors—to ensure implementation.
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.
Ms. Indra Sarma, an unmarried woman, left her job and began a “live-in” relationship with Mr. V.K.V. Sarma for a period as long as 18 years, despite knowing that he was married. Mr. Sarma abandoned Ms. Sarma in a state where she could not maintain herself. Under the Protection of Women from Domestic Violence Act, 2005, failure to maintain a woman involved in a “domestic relationship” amounts to “domestic violence.” Two lower courts held that Mr. V.K.V. committed domestic violence by not maintaining Ms. Sarma, and directed Mr. Sarma to pay a maintenance amount of Rs.18,000 per month. Thereafter, on appeal, the High Court of Karnataka set aside the orders of the lower courts on the ground that Ms. Sarma was aware that Mr. Sarma was married and thus her relationship with him would fall outside the protected ambit of “relationship in the nature of marriage” under the Protection of Women from Domestic Violence Act, 2005. On further appeal, the Supreme Court, while affirming the High Court’s order, created an exception to the general rule. The Supreme Court clarified that a woman who begins to live with a man who is already married to someone else, without knowing that he is married, will still be considered to be in a “domestic relationship” under the Protection of Women from Domestic Violence Act, 2005; thus, the man’s failure to maintain her will amount to “domestic violence” within the meaning of the Act and she will be eligible to claim reliefs such as maintenance and compensation. This case is important because it established for the first time such an exception and calls for legislative action to protect women like Ms. Sarma whose contributions in a joint household are often overlooked.
The court declared the current gate pass regime, which required litigants to provide a photo identification when entering the court premises, unconstitutional, because it violates the open court principle by restricting court access to only parties to cases listed on particular day or parties who seek to inspect the record in their cases. The Court noted that the gate pass application would disproportionately affect the economically weak, inter alia, women and children, to access courts.
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.
Children’s’ rights, child labor, forced labor, human trafficking, sexual abuse. Bachpan Bachao Andolan, a non-governmental organization in India submitted a petition to the Supreme Court of India to take action against the use of child performers in India’s traveling circuses. A study found that children were being trafficked from Nepal or taken from their homes, exploited as child laborers in these circuses, and subjected to mental, physical, and sexual abuse. In recognition that this practice was in violation of child labor laws and regulations on a child’s right to an education, among other national and international statutes, the Supreme Court gave an order to prohibit the employment of children in circuses, raid circuses to free children, and establish rehabilitation schemes for the child victims. This case is an important victory for children’s rights in India, where parents often sell their children to work at a young age, and also displays the willingness of the Supreme Court of India to hear petitions from NGOs, offering an important avenue for human rights reform.
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 man induced a girl to have intercourse with him on a false promise to marry her and then threatened to kill her and her mother. School records showed that the girl was less than 16 years of age. The Court held the man could not be convicted of rape for his false promise, but he could be convicted for the use of criminal force on a woman with intent to outrage her modesty. This case demonstrates that men can be criminally convicted for lying to a woman in order to have intercourse with her.
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.
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.
A man led a nine-year-old girl to a hill where he raped, strangled and murdered her. The girl’s sister testified that she saw her sister leave with the man and the mother later recovered the girl’s body from the hill and filed the police report against the accused. He was convicted and sentenced to death under Sections 376 and 302 of the Indian Penal Code. The man appealed, claiming that he should not be sentenced to death on circumstantial evidence alone. The High Court dismissed the appeal. The Supreme Court affirmed, holding that circumstantial evidence establishes the guilt of the accused, forming the conviction, but does not bear any relation to the sentencing. The Supreme Court defers discretion to trial judges in arriving at a proper sentence dealing with the subtleties of each case.
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.
Shortly after a couple wed, the husband and his relatives began treating the wife poorly and demanded dowry from her. The husband and his brother later strangled her with rope and his sisters held the wife’s arms. This led to her death. All of the accused were convicted and sentenced under Sections 302 and 498(a) of the Indian Penal Code. The aunt of the husband was also convicted and sentenced under 498(a) for alleged dowry-related cruelty, which can lead to a sentence of up to three years imprisonment. The aunt appealed her conviction, claiming that if she had been cruel it bore no relation to dowry. The High Court upheld the conviction, yet the Supreme Court reversed. The Supreme Court held that the purpose of Section 498(a) was to combat dowry-related death and cruelty. Because there was no evidence that the aunt had ever made a demand for dowry, rendering her conviction under Section 498 improper.
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.
The Trial Court convicted a man of raping a ten-year-old girl and sentenced him to ten years of imprisonment under Section 376(2)(f) of the Indian Penal Code. On appeal, the High Court reduced his sentence to seven years considering the convicted had already suffered a custodial sentence of six years, was young, and the only breadwinner in a family with two children. The Supreme Court, however, reversed the High Court’s reduction of the sentence because it fell below the statutory minimum. The Supreme Court held that the measure of punishment in a rape case cannot depend on the social status of the victim or the accused. It must depend on the conduct of the accused, the state and age of the victim, and the gravity of the criminal act. Crimes of violence upon women are to be severely dealt with. The proviso to Section 376(2) specifies that the court may, for special and adequate reasons, impose a sentence of less than ten years. However, the Supreme Court in the present case, found there to be no justifiable extenuating or mitigating circumstances available that would justify imposing a less-than-minimum sentence.
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.
The High Court reversed the trial court’s conviction of a man who had raped a four or five-year-old child. He had penetrated the vagina before two people stopped him. A physical exam showed her hymen was torn. A doctor also found a cut on the man’s penis consistent with an injury from forced sex. The Supreme Court reinstated the trial court’s conviction. This case is important because the Court stated that a rape conviction could be sustained solely on the basis of testimony of the victim. In addition, the Supreme Court stated that rape victims should not be treated like accomplices in a crime and that their testimony, instead, should be viewed as the testimony of an injured witness. The Supreme Court also stated that the testimony of a rape victim should receive “great weight.” In this case, however, the Supreme Court found that there was a great deal of corroborating evidence in addition to the testimony of the victim.
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 man and woman from different castes married. The woman’s brothers objected to the inter-caste marriage and lodged false complaints of criminal activity against the husband and his family. They also alleged the woman was not mentally fit, leading to her committal. The husband’s family members filed a petition to the High Court, and the High Court ordered them to appear before a sessions judge who would assess whether they had committed a crime. The family members petitioned the Supreme Court under Article 32 of the Constitution. The Court ended all proceedings pending against the husband’s family and the warrants against them. The Court held that the police and administrative authorities have a duty to protect individuals from harassment, threats, and violence based on an inter-caste marriage. In doing so, the Supreme Court stated that the Hindu Marriage Act does not ban inter-caste marriages and admonished violent acts in protest of inter-caste marriages.
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 man convicted of raping a six-year-old girl appealed his sentence of 10 years, alleging the child’s testimony should not have been accepted without corroboration. He also insisted his sentence was too harsh. A child’s testimony is acceptable as long as the court carefully evaluates it. Both the trial court and the High Court did this and found the child’s evidence reliable. The Supreme Court denied his appeal regarding the girl’s testimony but lessened his sentence to 5 years imprisonment with fines.
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.
A man raped a woman while she guarded her husband’s agricultural field. The woman and her husband filed a police report, and the man was arrested and convicted under §§ 450 and 376(1) of the Indian Penal Code and § 3(1)(xii) of the Scheduled Castes and Scheduled Tribes Prevention of Atrocities Act. The offender appealed his conviction on the grounds that the prosecution relied too heavily on the victim’s testimony. The Court denied his appeal. Emphasizing the stigma associated with incidents of rape, the Court reaffirmed Indian courts’ presumption that rape victims who file reports are telling the truth.
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.
A man convicted in part under § 306 of the Indian Penal Code appealed the charge of abetting his wife’s suicide. There was a history of dowry-related abuse, and the husband demanded another 40,000 rupees from his wife and her family before the she committed suicide by burning herself. The Court held that cruelty alone was not enough to convict the husband for abetment of suicide. Showing abetment requires proof of direct or indirect acts of instigation, conspiracy, or intentional aid. The man’s conviction was upheld on other grounds.
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 filed charges of domestic abuse against her husband and mother-in-law. The mother-in-law argued that she could not be charged under India's 2005 Protection of Women from Domestic Violence Act because the person to be charged is specifically defined as male. The High Court denied this claim, holding that although the law defines adult men as the primary defendants, it allows the complaint to charge a man's relatives as secondary defendants.
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.
This case involved a public interest petition filed by a group of NGOs for enforcement of the Constitution's protection of women's rights and international women's rights norms. The victim was gang-raped and before the rape had complained of 13 to the authorities, but there was no response. The court held that 13 is a violation of gender equity and the right to life and liberty and the government must provide safeguards to prevent such harassment from happening.
The Supreme Court ordered that all marriages be registered in order to prevent child marriage.
The Supreme Court of India found that the High Court had insufficient reason to overturn a rape conviction, holding that rape cases should be tried with the "utmost sensitivity" and the court must look at the "totality of the background" of the case.
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 police inspector contrived to have the fiance of a young girl locked up, and after doing so, went to her hotel room and raped her. The Supreme Court refuted the notion that testimony of a victim of sexual violence requires corroboration and found that courts should not be reluctant to accept the evidence of a rape victim, if under the totality of the circumstances appearing on the record of the case the victim does not have a strong motive to lie. A rape victim's evidence is to receive the same weight that would be given to any victim of physical violence. The Supreme Court noted that corroboration of the testimony of a woman who is a victim of sexual violence is not required except in extremely rare circumstances.
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 case of sexual assault where the accused was acquitted. The State appealed and the court determined that lack of physical evidence of rape and previous sexual activity on the part of the victim cannot be grounds for acquittal and the court restored the conviction. Also, the testimony need not be corroborated with additional evidence as long as there is an assurance of veracity.
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.
The Court held that extreme caution must be taken during the questioning of child witnesses: questions must not be long, complex, or confusing, breaks may be taken during the questioning if necessary, a screen may be used to block the child's view of the courtroom, and "a social worker or other friendly but ‘neutral' adult" may be present or even allowed to sit next to the child. Moreover, such questioning must be in camera.
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 case, a woman's in-laws repeatedly demanded additional gifts from her. As a result of this harassment, the woman committed suicide. The Court defined dowry as any demand for gifts in relation to marriage and dowry death as a death within seven years of marriage where there have been demands for dowry.
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 this public interest litigation, the Supreme court ordered the use of extensive measures to protect children during sexual abuse trials.
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 man attempted to have vaginal sex with an eight year-old girl, but did not break her hymen. The Court held that even the slightest penetration meets the definition for rape.
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.
A public interest litigation was initiated to change the definition of non-criminal sex from "hetero-sexual penile-vaginal" to "consensual sex between adults." The court granted the petition finding the criminalization of non-heterosexual sex violative of the constitution.
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 Supreme Court held that criminal penalties for suicide violate the constitutional right to life by amounting to a double punishment; specifically arguing that women who attempt suicide after abuse cannot be criminally penalized for their suicide attempt. Previously, Indian law carried criminal penalties for attempted suicide.
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.
In this public interest litigation, the Court reaffirmed that the equal pay for equal work provision of the constitution is valid, and that the employer, whether public or private, is responsible for enforcing it and taking prompt disciplinary action when violations occur.
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.
After a police raid on a brothel, four pimps were arrested and twenty-four women and girls were taken into custody. The magistrate ordered a medical examination to, among other things, determine the women's ages. The magistrate then ordered that the women 18 and over be released, and a few days later ordered the minor girls to be released. The magistrate explained that the girls had expressed a desire to be released. The Court held that this act was in violation of the Juvenile Justice Act, that only a child welfare board could determine how the girls were to be released. The Court then set forth guidelines for courts dealing with girls taken from brothels in the future. This case is significant because victims of trafficking may need counseling and other medical services in order to prevent their re-victimization.
Air India, a state-owned company, required female flight attendants to retire under three circumstances: (1) upon reaching 35 years of age, (2) upon getting married, or (3) upon first pregnancy. The Court struck the rules down, holding that these requirements constituted official arbitrariness and hostile discrimination.
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 man charged with domestic violence against his female live-in domestic partner challenged the law's use by an unmarried domestic partner. The court held that domestic violence by a man against a woman in any marriage-like relationship, or even relationships outside marriage, is subject to the law. This decision is notable given that many marriages in India are unofficial or not legally valid.
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 father married his 11–12 year old daughter to an adult man. When an NGO intervened, the father and "husband" argued that no money had been exchanged and that the girl would have a better life in marriage. The Court held that marriage of a minor girl is presumptively invalid unless the girl decides otherwise when she reaches 18 years of age.
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.
Ms. Saumya Ann and Mr. Thomas, who were Christians by faith, had applied for a decree of divorce by mutual consent under Section 10A of the Divorce Act. The lower court rejected the application because the Divorce Act requires that the filing couple shall have lived in separate residences for a minimum period of two years, but Ms. And Mr. Thomas had been living apart for only one year. On appeal, the couple argued that the law was a violation of their right to life and liberty guaranteed under Article 21 of the Indian Constitution. They also argued that such law was discriminatory and in violation of Article 14 of the Constitution because Hindus and Parsis were entitled to divorce by mutual consent after living apart for only a year. The Government argued that the law in question pertained to Christians and was their personal religious law, granting it complete insulation from any form of interference by courts. The Kerala High Court rejected the government’s contention. The Court held that the couple was entitled to seek a decree of divorce by mutual consent, that the requirement of two years violated the right to seek a divorce as guaranteed under Article 21 of the Indian Constitution, and that the constitutional right to equality includes the right to divorce as persons from other religions are. Instead of declaring the law unconstitutional, the Kerala High Court read down the two-year requirement to one year, like the laws applicable to Hindu and Parsi divorces. This case is significant because it demonstrates that customs and laws, even if religious in nature, can be invalidated if they violate the fundamentals rights guaranteed by the Indian Constitution.
In 2011, the Avon Global Center for Women and Justice hosted a conference in New Delhi, India on the theme “Gender-Based Violence and Justice in South Asia.”
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).
Lawyer's Collective of India Report evaluating the implementation of the Domestic Violence Act of 2005 in India.
Report by Campaign and Struggle Against Acid Attacks on Women (CSAAAW) on acid attacks in Karnataka, India.
This consultation paper written for the Law Commission of India discusses whether there is a need for a specific legal apparatus to provide relief to the victims of tragedies and manmade disasters.