You are on page 1of 37

Violence against Women with Special Reference to Domestic Violence and

Workplace Violence- Mandar Lotlikar1

Abstract- A gender-equal society would be one where the word 'gender' does not exist:
where everyone can be themselves. A society that is unable to respect, protect and
nurture its women and children loses its moral moorings and runs adrift.

Introduction
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 shouldnt
exploit 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 womans position in society. Wrong
customs, which are derogatory to the position of women, are still followed. Woman has been
at the receiving end right from her home to her working place. As a result, human rights of
women have been frequently violated 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 Vedas glorified women as the
mother, the creator, one who gives life and worshipped her as a Devi' or Goddess. But their
glorification was rather mythical for at the same time, in India women found herself totally
suppressed and subjugated in a patriarchal society. Male violence against women is
worldwide phenomenon. Fear of violence is an important factor in the lives of most women.
Fear of violence is the cause of lack of participation in every sphere of life. There are various
forms of crime against women. Sometimes it is even before birth, some times in the
adulthood and other phrases of life. In the Indian society, position of women is always
perceived in relation to the man. Women in India constitute near about half of its population
and most of them are grinding under the socio-cultural and religious structures. One gender
has been controlling the space of the India's social economic, political and religious fabric
since time immemorial.2
1 The writer is a student of S.Y.LL.M. at G.R. Kare College of Law, Margao
2 http://www.countercurrents.org/ranjan300113.htm
1

Domestic Violence
What is Domestic Violence?
Domestic violence is the wilful intimidation, physical assault, battery, sexual assault, and/or
other abusive behaviour as part of a systematic pattern of power and control perpetrated by
one intimate partner against another. It includes physical violence, sexual violence,
psychological violence, and emotional abuse. The frequency and severity of domestic
violence can vary dramatically; however, the one constant component of domestic violence is
one partners consistent efforts to maintain power and control over the other.
Domestic violence is an epidemic affecting individuals in every community, regardless of
age, economic status, sexual orientation, gender, race, religion, or nationality. It is often
accompanied by emotionally abusive and controlling behaviour that is only a fraction of a
systematic pattern of dominance and control. Domestic violence can result in physical injury,
psychological trauma, and in severe cases, even death. The devastating physical, emotional,
and psychological consequences of domestic violence can cross generations and last a
lifetime.3
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. Gender discrimination
culminates into and is manifested in various types of violent practices within 'home'. Since
'family' and 'home' denote 'private space', an area free from state as well as non-state
interventions, therefore, domestic violence has largely remained free from legal restraints and
remains even unacknowledged as a crime. Even if there were laws, victims were hardly
taking recourse to law as women are socialised right from their childhood in patriarchal
values. Consequently violence within 'home' and by their own relatives is not perceived as a
crime or something wrong by women themselves.

3 http://www.ncadv.org/need-help/what-is-domestic-violence
2

How is Domestic Violence caused?


The roots of domestic violence and other types of violent 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 violent. Research has shown that people with abusive
tendencies generally turn violent when they feel out of control.
Abuse is a learned behaviour, which, in some cases could have been learned early on in
childhood. An abuser may have witnessed domestic violence in his or her home and
understood that violence was a means of maintaining control in the family unit.
In economic downturns, incidents of domestic violence increase exponentially. Factors
associated with economic downturns such as job loss, housing foreclosures or debt can
contribute to higher stress levels at home, which can lead to increased violence.4
Who does Domestic Violence affect?
It doesnt matter how long a couple has been together, how successful one or both of the
partners is or how loving the relationship used to be, domestic violence can happen to
anyone. It can span age, sexual orientation, religion and gender, and affects people of all
socioeconomic backgrounds and education levels. It can happen in opposite-sex and samesex relationships and can happen to intimate partners who are married, living together, dating
or somehow estranged. A person does not have to be married to be experiencing domestic
violence. Domestic violence also has a substantial effect on family members, especially
children.
Each child is unique and may respond differently to the abuse, but there are common short
and long-term effects that can impact a childs day-to-day functioning. Short-term effects can
include academic and behavioural problems, sleep disturbances and/or difficulty

4 http://www.joyfulheartfoundation.org/learn/domestic-violence/about-issue/what-are-roots-domesticviolence
3

concentrating. Long-lasting effects can persist even after a child has grown up, like difficulty
trusting others and establishing relationships or ongoing depression
Although it is estimated that one in every four women will experience domestic violence
within her lifetime, most incidents are never reported to the police. People may not report
these incidents for a variety of reasons, including:

Financial dependency
Shared space
Protecting children
Emotional attachment
Shame/Fear of being hurt further and/or being killed5

Common Signs/Symptoms of victims of domestic violence

Prevents contact and communication with friends and family


Attempts to control what partner wears
Has unrealistic expectations, like partner being available at all times
Threatens to take away or hurt the children
Acts like abuse is not a big deal, or denies its happening
Intimidates with guns, knives or other weapons
Shoves, slaps, chokes, hits or forces sexual acts6

International Legal Regime


Universal Declaration of Human Rights, 1948
United Nations since the drafting of the universal declaration of human rights, has guided the
organisation in its activities for the promotion and protection of human rights ever since. This
is most evident in the work of the United Nations programme of Advisory Services and
Technical Cooperation in the field of human rights. This programme has been engaged since
1955 in assisting states, at their request, in the building and strengthening of national
structures which have a direct impact on the overall observance of human rights and the
maintenance of rule of law.
The Universal Declaration of Human Rights was adopted by the General Assembly in 1948.
It was hailed as a historic event of the greatest achievements of the United Nations. The

5 ibid
6 ibid
4

Declaration is the mine from which other conventions as well as national Constitutions
protecting womens rights have been and are being quarried.7

Declaration on the Elimination of discrimination Against Women, 1967


The General Assembly adopted this Convention in 1967, considering that Universal
declaration on Human Rights asserts the principle of non-discrimination and proclaims that
all human beings are born free and equal in dignity and rights and that everyone is entitled to
all the rights and freedoms set forth therein without any distinction of any kind, including any
distinction as to sex.

The Convention on the Elimination of All Forms of Discrimination against


Women (CEDAW), 1979
The Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), adopted in 1979 by the UN General Assembly, is often described as an
international bill of rights for women. Consisting of a preamble and 30 articles, it defines
what constitutes discrimination against women and sets up an agenda for national action to
end such discrimination.
The Convention defines discrimination against women as ...any distinction, exclusion or
restriction made on the basis of sex which has the effect or purpose of impairing or nullifying
the recognition, enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental freedoms in the
political, economic, social, cultural, civil or any other field.
By accepting the Convention, States commit themselves to undertake a series of measures to
end discrimination against women in all forms, including:

to incorporate the principle of equality of men and women in their legal system,
abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination
against women;

to establish tribunals and other public institutions to ensure the effective protection of
women against discrimination; and

7 Dr. Devinder Singh, Human Rights Women & Law(Allahabad Law Agency, Faridabad, 1 st
Edition, 2005) Pg. 32
5

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


organizations or enterprises.

The Convention provides the basis for realizing equality between women and men through
ensuring women's equal access to, and equal opportunities in, political and public life -including the right to vote and to stand for election -- as well as education, health and
employment. States parties agree to take all appropriate measures, including legislation and
temporary special measures, so that women can enjoy all their human rights and fundamental
freedoms. The Convention is the only human rights treaty which affirms the reproductive
rights of women and targets culture and tradition as influential forces shaping gender roles
and family relations. It affirms women's rights to acquire, change or retain their nationality
and the nationality of their children. States parties also agree to take appropriate measures
against all forms of traffic in women and exploitation of women.
Countries that have ratified or acceded to the Convention are legally bound to put its
provisions into practice. They are also committed to submit national reports, at least every
four years, on measures they have taken to comply with their treaty obligations.8

Declaration on Elimination of Violence Against Women, 1993


The UN Declaration on the Elimination of Violence against Women was adopted by the
United Nations General Assembly in 1993. It covers physical, sexual and psychological
violence as well as violence both at home and elsewhere in society.
The definition of violence against women that the UN presents in the Declaration is currently
the most widely accepted definition:
Any act of gender-based violence 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 deprivation of liberty, whether occurring in public or in private life.
The Declaration states three categories of violence against women: violence perpetrated by
the State, such as violence against women in custody and as part of warfare; violence
occurring within the general community, including rape, sexual harassment, trafficking in
8 http://www.un.org/womenwatch/daw/cedaw/
6

women and intimidation at work; and violence in the family and in the private sphere, for
example incest and selective abortions.
According to the Declaration, violence against women is rooted in the historically unequal
power relations between women and men. It also explains that violence against women is
one of the crucial social mechanisms by which women are forced into a subordinate position
compared with men.
The UN member states are therefore urged to legislate against the violence, work
preventively and improve the situation of victimised women.9

Beijing Declaration, 1995


The Beijing Declaration and Platform for Action was adopted by the Fourth World
Conference on Women in 1995. The Platform for Action reaffirms the fundamental principal
that the rights of women and girls are an "inalienable, integral and indivisible part of
universal human rights." The Platform for Action also calls upon governments to take action
to address several critical areas of concern, among them violence against women. The
Platform for Action states, "Violence against women is an obstacle to the achievement of the
objectives of equality, development and peace. Violence against women both violates and
impairs or nullifies the enjoyment by women of their human rights and fundamental
freedoms. The long-standing failure to protect and promote those rights and freedoms in the
case of violence against women is a matter of concern to all States and should be addressed.
The Beijing Platform for Action also requires all governments to develop strategies or
national plans of action to implement the Platform locally. The National Plans of Action for
each country outline specific activities that the national governments will undertake to
improve the situation of women, including addressing violence against women.10

Legislative Framework
United States of America- The Violence Against Women Act
9http://www.includegender.org/about-gender-equality/conventions/the-declaration-on-theelimination-of-violence-against-women/
10 http://www.stopvaw.org/beijing_declaration_and_platform_for_action
7

The Violence Against Women Act (VAWA) was the first major law to help government
agencies and victim advocates work together to fight domestic violence, sexual assault, and
other types of violence against women. It created new punishments for certain crimes and
started programs to prevent violence and help victims.
The penalties for committing domestic violence may include:

Community service

Fines

Anger management or intervention programs

Jail

Restraining or protective orders

Supervised visits with children

Jail time is usually imposed if there is serious bodily injury or a continuing pattern of
violence, or if the defendant has a criminal record. Incarceration times range from 30 days
to several decades.11
United Kingdom- Domestic Violence, Crime and Victims Act 2004
The Domestic Violence, Crime and Victims Act 2004 is an Act of the Parliament of the
United Kingdom. It is concerned with criminal justice and concentrates upon legal protection
and assistance to victims of crime, particularly domestic violence.
Restraining orders can be made after a defendant is convicted of any offence. It is even
possible to make a restraining order when the defendant has been found not guilty if the court
decides that there has been harassment in the case and the victim is in need of protection.
Restraining orders can include many conditions, including those which will prevent a
defendant from contacting the victim and also visiting home or work place. If these
11 http://www.womenshealth.gov/violence-against-women/laws-on-violence-against-women/
8

conditions are broken they can result in further criminal proceedings and a prison sentence of
up to five years.12

Indian Law on Domestic Violence


In India the problem of domestic violence has always been looked upon from the perspective
of both criminal and civil laws. Under Indian civil law also several provisions are available to
deal with different types of domestic violence.
Violence against women is a centuries-old phenomenon that has been perpetrated in the name
of religion, social customs and rituals. The violence may manifest itself in different forms,
like child marriage, witch-hunting, honour -killing etc. Many a time violence against women
is due to defiance of the stereotyped role model of daughter, sister, wife and mother and, of
course, as daughter-in-law.
While talking about India, it is Raja Ram-Mohan Roy who can be called the pioneer of the
movement for women's rights. He was to a great extent responsible for bringing about sociolegal changes pertaining to the de-legitimisation of child marriage, sati and legitimisation of
widow remarriage. Roy's mobilisation of Hindu thought against the system of sati created the
necessary public opinion to make the practice a criminal offence in 1829
Though the term 'domestic violence' was not in vogue in those reforms, nevertheless their aim
was indirectly responsible for making the woman's life more humane and protecting her
against domestic violence. Even during the colonial period there were provisions under the
IPC and CrPC that aimed at providing protection to women against violence.

Provisions on Domestic Violence in Indian Penal Code and Criminal


Procedure Code
Till 1983 there was no specific legal provision pertaining to violence within home. Husbands
could be convicted under the general provisions of murder, abetment to suicide, causing hurt
and wrongful confinement.
12https://www.cps.gov.uk/publications/prosecution/domestic/domv_guide_for_victims_and_witnesse
s_faqs.html
9

In Section 304B, IPC, where the death of a woman is caused by burns or bodily injuries or
occurs due to reasons other than normal circumstances within seven years of her marriage
and if it is established that the wife is subjected to cruelty by her husband or his relatives, the
death is termed as 'dowry death'. The husband or relatives who subject the wife to cruelty
is/are presumed to have caused the dowry death and will have to prove that the death was not
a result of the cruelty.
Sections 313-316, IPC--female infanticide or forcing the wife to terminate her pregnancy-are also forms of domestic violence recognized as offences under the IPC.
According to Section 305, IPC, often victims of domestic violence, especially brides
harassed for dowry, are driven to commit suicide. Abetment of suicide of a delirious person is
an offence punishable with death or life imprisonment. Abetment of suicide is also an offence
punishable with ten years imprisonment (Section 306).
Under Section 319, causing bodily hurt is a common form of domestic violence. The IPC
defines hurt as causing "bodily pain, disease, pain or infirmity to any person. A hurt may be
'grievous' if it results in serious injury such as a fracture, loss of hearing or sight, damage to
any member or joint, etc. (Section 320).
Another common form of domestic violence is in the form of the wrongful restraint (Section
349) or confinement (Section 340) of the spouse within her matrimonial home. Use of force
and assault on the spouse, other common forms of domestic violence, are also punishable
under the IPC.
In 1983, matrimonial cruelty was introduced as an offence in the IPC (Section 498A, IPC).
Cruelty was defined as any wilful conduct which is of such a nature as is likely to drive the
woman to commit suicide or to cause grave injury or danger to life, limb or health (whether
mental or physical) of the woman. It includes harassment of the woman in connection with
demands for property and the like.

Protection of Women from Domestic Violence Act, 2005


The Protection of Women from Domestic Violence Act 2005 is an Act of the Parliament of
India enacted to protect women from domestic violence. This Act defines domestic violence
and provides civil remedies for women facing of domestic violence in the form of protection
orders, residence orders, custody orders, monetary reliefs or compensation orders.

10

Section 3 of the Act says that any act, omissions or commission or conduct of the respondent
shall constitute domestic violence in case it
(a) harms or injures or endangers the health, safety of life, limb or well-being, whether
mental or physical, of the aggrieved or tends to do so and includes causing physical abuse,
sexual abuse, verbal and emotional abuse and economic abuse; or
(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce
him or any other person related to her to meet any unlawful demand for any dowry or other
property or valuable security; or
(c) has the effect of threatening the aggrieved person or any person related to her by
any conduct mentioned in clause (a) or clause (b); or
(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved
person.
Primary beneficiaries of this Act
Section 2(a) of the Act 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 having a 'domestic
relationship' in a 'shared household', and who has subjected her to 'domestic violence'.
Children are also covered the act; they too can file a case against a parent or parents who are
tormenting or torturing them, physically, mentally, or economically. Any person can file a
complaint on behalf of a child.
'Respondent'
Section 2(q) says that any adult male member who has been in a domestic relationship with
the aggrieved person is the 'respondent'. The respondent can also be a relative of the husband
or male partner thus, a father-in-law, mother-in-law, or even siblings of the husband and
other relatives can be proceeded against.
Persons who can take recourse to this law
11

The law recognises live-in relationships. Thus, if a woman is living with a man who abuses
her, she can take recourse to the provisions of this law even though she is not married to him.
According to Section 2(f), any relationship between two persons who live, or have at any
point of time lived 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 joint family. Thus, 'domestic relationships' are not restricted to the
marital context alone.
'Domestic relationships' also cover sisters, widows, mothers, daughters, women in
relationships of cohabitation, single women etc. Any 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
invalid in law.
Mechanism to implement the law
Section 8 of the law provides for the setting up and function of Protection Officers.
These officers, to be appointed by state governments, will be under the jurisdiction and
control of the court, and will be responsible to the court for monitoring the cases of domestic
abuse.
The PO will assist the court in making a Domestic Incident Report or an application for a
protection order on behalf of the aggrieved woman and/or child. POs will ensure that
aggrieved people are provided legal aid, medical services, safe shelter and other required
assistance.
POs will ensure that necessary information on service providers is provided to the aggrieved
woman, and that orders for monetary relief are complied with.
Importantly, the PO can be penalised for failing/refusing to discharge his duty, with the
proviso that prior sanction of the state government is required.

12

Service Providers are a vital tool in the implementation of this act. Service Providers, as
defined by the law, are private organisations recognised under the Companies Act/Societies
Registration Act.
They will have to register with the state government as a service provider to record the
Domestic Incident Report and to get the aggrieved person medically examined.
The Service Providers will among other things ensure that the aggrieved person is provided
accommodation in a shelter home, if she so requires. A Service Provider is protected for all
actions done in good faith, in the exercise of the powers under this Act, towards the
prevention of commission of domestic violence. 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 voluntary organisations in addressing the issue of
domestic violence. NGOs working for women's rights can now register as Service Providers
under the Act.
Main rights of a woman as recognised by this law
The Act recognises a woman's right to reside in the shared household with her husband or a
partner even when a dispute is on. Thus, it legislates against husbands who throw their wives
out of the house when there is a dispute. Such an action by a husband will now be deemed
illegal, not merely unethical.
Even if she is a victim of domestic violence, she retains right to live in 'shared homes' that is,
a home or homes she shares with the abusive partner.
The law provides that if an abused woman requires, she has to be provided alternate
accommodation 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 have to be provided by the husband. A woman cannot be stopped from making a
complaint/application alleging domestic violence. She has the right to the services and
assistance of the Protection Officer and Service Providers, arranged under the provisions of
the law.
13

A woman who is the victim of domestic violence will have the right to the services of the
police, shelter homes and medical establishments. She also has the right to simultaneously
file her own complaint under Section 498A of the Indian Penal Code.
Sections 18-23 provide a large number of avenues for an abused woman to get relief. She can
get, through the courts, Protection Orders, Residence Orders, Monetary Relief, Custody
Order for her children, Compensation Order and Interim/ Ex parte Orders.
If a husband violates any of the above rights of the aggrieved woman, it will be deemed a
punishable offence. Charges under Section 498A can be framed by the magistrate, in addition
to the charges under this Act.
Thus, an accused person will be liable to have charges framed under both the old law and the
new one. Further, the offences are cognizable and non-bailable. Punishment for violation of
the rights enumerated above could extend to one year's imprisonment and/or a maximum fine
of Rs 20,000.13

Judicial Pronouncements on Domestic Violence in India


In Savita Bhanot v. Lt.Col.V.D.Bhanot14
The Delhi High Court came to the conclusion that the petition under the Domestic Violence
was maintainable even if the Act of Domestic Violence has been committed prior to the
coming into force of the Act.
In Sukrit Verma and Anr. v. State of Rajasthan and Anr15
The Rajasthan High Court, Jaipur Bench dealt with the following 5 issues.
1) Women an easy prey to male ego

13 P.K. Das, Protection of Women from Domestic Violence, (Universal Law Publishing Company,
New Delhi, 3rd Edition 2010) Pg. 20-25
14 SPECIAL LEAVE PETITION (Crl.) NO. 3916 OF 2010
15 Cr. Revision Petition No. 131 of 2011
14

Women have been subjected to violence, domestic or otherwise, throughout the pages of
history-whether they be Helen of Troy, or Sita of Ramayana, whether they be Casandra of
Troy, or Dropadi of Mahabharata. Women have been easy prey to the male ego, and
dominance. Much as the Indian Civilization pays obedience to the feminine divine, but the
harsh reality remains that throughout the length and breadth of this country, women are
assaulted, tortured, and burnt in their daily lives. 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 domestic violence.
2) Need for PWDVA
In India, although the criminal law deals with domestic violence in the form of Section 498-A
IPC, but there was no provision in the Civil Law to deal with the said problem. In order to get
rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act,
which came into force on 26 October, 2006. The Act is a social beneficial piece of legislation,
which should be given as wide and as liberal an interpretation as possible.
3) Section 20- a powerful tool for ensuring gender equality in economic terms
Thus, Section 20 of the Act is meant to ameliorate the financial condition of the aggrieved
person, who may suddenly find herself to be without a hearth and home. Financially, the
aggrieved 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, Section 20
bestows a right to seek monetary relief in the form of compensation and maintenance. Section
20, thus, is a powerful tool for ensuring gender equality in economic terms. Section 20, does
not contain any exception in favour of the husband. In fact, it recognises the moral and legal
duty of the husband to maintain the wife.
4) No law provides that a husband has to maintain a wife, living separately from him,
irrespective of the fact whether he earns or not Delhi High Court. Such an
observation -clearly contrary to the provisions of law. Hence, this Court respectfully
disagrees.
In an era of human rights, of gender equality, the dignity of women is unquestionable.
Articles 14 and 15 of the Constitution of India recognise the dignity of women. The

15

Constitution empowers the Parliament to enact laws in favour of women. Flowing from the
constitutional ranges, Section 125 Code of Criminal Procedure, Section 24 Hindu Marriage
Act, Section 20 Domestic Violence Act, ensure that women are paid maintenance by the
husband. Section 26 of the Act further lays down that the maintenance paid under the Act,
would be in addition to maintenance paid under any other law being in force for the time
being. Therefore, the provisions of the Act are supplementary to provisions of other law in
force, which guarantee the right of maintenance to the women. Hence, the observations made
by Their Lordship of Delhi High Court, in the case of Sanjay Bhardwaj, that No law
provides that a husband has to maintain a wife, living separately from him, irrespective of the
fact whether he earns or not. Such an observation is clearly contrary to the provisions of law.
Hence, this Court respectfully disagrees with the opinion of Their Lordship of the Delhi High
Court.
5) Sensitivity of the Judges and recognition of moral and legal duty of husband to
maintain the wife.
The Law has always stood to favour of the women. For the Law recognises their vulnerability
for survival in the cruel world. Women, 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 very foundation of the society would begin to weaken. It is only
after recognising their importance, sociologically, that the ancient Indian Seers had opined
that Gods dwell only in those houses, where women are respected. Thus, both the law and
society recognise a moral and legal duty of the husband to maintain the wife.
In Labhubhai Babubhai Desaid v. State of Gujarat16
The Gujarat high court while deciding the question of interim custody of children remarked,
Normally, custody of the minor children should be kept with the mother as it is the mother
who can take best care of the children. However, in the present case, this Court could see that
the children do not have slightest love and affection towards their mother and hence, it will
take much time for the children to get adjusted with mother and get proper care and attention.
However, as the children are already with the father and have been taking much care and
caution by the father to the utmost satisfaction of children and in the best interest of the
16 CRIMINAL REVISION APPLICATION NO. 607 of 2012
16

children almost in all respects, this Court is of the view that if the custody of the children is
left with the father, the children would be more happier.
In Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade & Ors.17
The Supreme Court has held that although section 2(q) defines a respondent to mean any
adult male person, who is or has been in a domestic relationship with the aggrieved person,
the proviso widens the scope of the said definition by including a relative of the husband or
male partner within the scope of a complaint. Honble Apex Court further held that
legislature never intended to exclude female relatives of the husband or male partner from the
ambit of complaint that can be made under the provisions of 2005 Act. It is true that
expression female has not been used in the proviso to Section 2(q) also, but, no restrictive
meaning can be given to expression relative nor has said expression been defined to make
it specific to males only.
In P.K.Nagarajan v. N.Jeyarani18
The Madras High Court held that the husband is bound to maintain his wife and mere offer to
maintain is not sufficient, as opined by this Court. Ordinarily, the issue/question of
maintenance is to be determined in relation to the income of the husband. The burden shifts
on the Revision Petitioner/Husband when circumstances show that the 1st Respondent/Wife
is unable to maintain herself. Also that, the onus is on the Revision Petitioner/Husband to
show that the 1st Respondent/ Wife has ample means to maintain herself.
Shortfalls of The Protection of Women from Domestic Violence Act 2005
The Domestic Violence Act, 2005 was enacted with a view to give protection to women from
domestic violence. However, the misuse and abuse of the Act, is a matter of serious concern
for the courts today. A careful screening of the complaint is required to ensure that the
complaint so filed by a woman under this law is not manipulative or a measure to take
revenge against a man. Major drawbacks of this Act are as follows:
a) Preference to women:
17 (2011) 3 SCC 650
18 Crl.R.C.No.570 of 2013
17

The Act assumes that only women are victims. As per this law, only a woman can file a
complaint against against a man. A man has no rights under this law.
According to Section 32(2) of the Act, the court concludes that the testimony of the
victim (woman) is always true and there will be no need for any supportive evidence to
prove that an offense has been committed. This is very 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 revenge against them.
b) Potential chances of misuse:
Secondly, there are potential chances of its misuse. If a woman lodges complaint that
there was a verbal and emotional abuse by her husband, then she needs to prove nothing.
According to Section 18 of this Act, a magistrate can take measures to protect the woman
from any acts of violence that are even likely to take place in the future. This means that
the woman get an upper hand in protection and the person against whom they have
complained can be punished, even though he may not have committed any act of violence
and there may be only a chance of occurrence of the violence in the future.
This Act also says that the information regarding an act of domestic violence does not
necessarily has to be lodged by the woman herself but can be lodged by any person who
has reason to believe that such an act has taken place or is being so committed. That is
even the neighbours and relatives can take an initiative on behalf of the victim. This is a
sheer injustice because anyone can lodge a complaint on behalf of the woman without any
authentic proof or evidence.
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.
c) Definition of domestic violence:
The third drawback of the Act is the definition of domestic violence

18

An insult is also considered as a domestic violence. 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. While some women
approach the court even for minor issues and thus, men feel threatened by the enactment.
This law will therefore lead to more divorces and breakdown of a family.
The law at present is grossly inadequate to tackle the problem of domestic violence. It
makes women more superior to men. According to our Constitution, we all have equal
rights, irrespective of caste, creed, gender etc. This means that the law should offer equal
protection to both men and women. Moreover, the law needs to be made more practical
by defining what constitutes domestic violence punishable under this Act. When a person
who has not committed any crime is threatened under the law, it is a sheer injustice to that
innocent person.19

19 http://www.indiastudychannel.com/resources/140199-Scopes-for-misuse-of-Domestic-ViolenceAct-2005.aspx
19

Sexual Harrasment of Women at Workplace


Introduction
Sexual harassment is intimidation, bullying or coercion of a sexual nature, or the unwelcome
or inappropriate promise of rewards in exchange for sexual favors. In some contexts or
circumstances, sexual harassment may be illegal. It includes a range of behavior from
seemingly mild transgressions and annoyances to actual sexual abuse or sexual assault.
Sexual harassment is a form of illegal employment discrimination in many countries, and is a
form of abuse (sexual and psychological) and bullying. For many businesses, preventing
sexual harassment, and defending employees from sexual harassment charges, have become
key goals of legal decision-making. In contrast, many scholars complain that sexual
harassment in education remains a "forgotten secret," with educators and administrators
refusing to admit the problem exist in their schools, or accept their legal and ethical
responsibilities to deal with it.
Sexual harassment of women at workplace, being offensive to human dignity, human rights
and gender equality has emerged as a fundamental crisis the world over. Human dignity and
gender equality are universally considered to be not only fundamental human rights but also
essential to sustain economic, social, cultural and political progress nationally and
internationally.
However, discrimination on the ground of sex and gender injustice in political, social,
economic and cultural scenarios hampers
the growth and development at national and international level. Taking cognizance of the
repression and exploitation of women all over the world and considering the necessity of
20

providing gender equality and elimination of sexual harassment of women, a number of


efforts have been made at the international level.20

International Legal regime


United Nations Charter
Taking cognizance 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 questioned at the San Francisco Conference (1945).
Therefore, in order to weed it out, the Charter expressed the resolve of the people of the
world to strive and uphold fundamental human rights, dignity and worth of human person and
equal rights of men and women. The Charter lays down, inter alia, that the purposes of the
United Nations are to achieve international cooperation in solving international problems of
economic, social, cultural or humanitarian character and in promoting and encouraging
respect for human rights and for fundamental freedoms for all without distinction as to race,
sex, language or religion21

Universal Declaration of Human Rights, 1948


The Universal Declaration of Human Rights elaborates the prescription of the Charters equal
rights and is suffused with the notion of equality. The preamble recognizes the inherent
dignity and the equal and inalienable rights of all members of the human family as the
foundation of freedom, justice and peace in the world and reaffirms faith in the equal rights
of men and women.

20 http://www.sexualharassmenttraining.biz/sexual_harassment_training_Sexual-HarassmentWorkshop-History-of-Sexual-Harassment-Law.html
21 http://shodhganga.inflibnet.ac.in/bitstream/10603/78390/4/4_international%20efforts.pdf
21

The Universal Declaration of Human Rights mentions that all human beings are born free and
equal in dignity and rights and everyone is entitled to all the rights and freedoms set forth in
this Declaration, without distinction of any kind such as race, colour, sex etc.

Legislative Framework
United States of America- Federal Civil Rights Act
Sexual harassment in the workplace was first addressed through law in the mid-1970s at the
culmination of a campaign in the United States to have it recognized as a form of
discrimination under the Federal Civil Rights Act.
Any 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 persons permission, he will be liable to be punished with fine or imprisonment
of not more than 6 months or both.
If the sexual contact had been an aggravated sexual abuse which is carried out by the use of
force or threat or fear of death, serious bodily injury or kidnapping, then the punishment may
be fine or imprisonment that can extend up to 10 years or both. If the sexual contact had been
a sexual act carried out by generating a fear of lesser injury than death, kidnapping etc. then
the punishment may comprise of imprisonment which may extend up to 3 years or fine or
both.22
United Kingdom- The Sex Discrimination Act, 1975
In United Kingdom, sexual harassment is prohibited by the Sex Discrimination Act,
1975.However the term sexual harassment is not expressly found in the Act; nor is such
conduct expressly prohibited therein. But as the Act is essentially designed to deal with
discrimination on the ground of sex i.e. gender specific discrimination and sexual harassment.
The Sex Discrimination Act, 1975 provides that a person discriminates against a woman in
any circumstances if on the ground of her sex, he treats her less favourably than he treats or
would treat a man. The Act also declares that it is unlawful to discriminate against a woman if
22 ibid
22

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 subjecting her to any detriment.
On summary conviction, the imprisonment for a term not exceeding than 6 months or a fine
not exceeding the statutory maximum or both is provided for the commission of sexual
assault.23

Legal Framework in India prior to Vishaka Guidelines


Before 1997, women experiencing SHW had to lodge a complaint under Section 354 of the
Indian Penal Code that deals with the 'criminal assault of women to outrage women's
modesty', and Section 509 that punishes individual/individuals for using a 'word, gesture or
act intended to insult the modesty of a woman'. These sections left the interpretation of
'outraging women's modesty' to the discretion of the police officer.24
In Vishaka v. State of Rajasthan25
In 1997, the Supreme Court passed a landmark judgment in the Vishaka case laying down
guidelines to be followed by establishments in dealing with complaints about sexual
harassment. The court stated that these guidelines were to be implemented until legislation is
passed to deal with the issue.
As defined in the Supreme Court guidelines sexual harassment includes such unwelcome
sexually determined behaviour as:

Physical contact

23 ibid
24 Dr. Ritu Gupta, Sexual Harassment at Workplace (LexisNexis, Haryana, 1 st Edition, 2014) Pg.
27-30
25 AIR 1997 SC 3011

23

A demand or request for sexual favours

Sexually coloured remarks

Showing pornography

Any other unwelcome physical, verbal or non-verbal conduct of a sexual nature, for
example, leering, telling dirty jokes, making sexual remarks about a person's body, etc

The Vishaka guidelines categorically state that:


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

Prevent sexual harassment

Provide mechanisms for the resolution of complaints

All women who draw a regular salary, receive an honorarium, or work in a voluntary capacity
in the government, private sector or unorganised sector come under the purview of these
guidelines.
Complaints mechanism

All workplaces should have an appropriate complaints mechanism with a complaints


committee, special counsellor or other support services.

A woman must head the complaints committee and no less than half its members
should be women.

The committee should include an NGO/individual familiar with the issue of sexual
harassment.

The complaints procedure must be time-bound.

Confidentiality must be maintained.

24

Complainants/witnesses should not experience victimisation/discrimination during the


process.

Preventive steps

Sexual harassment should be affirmatively discussed at workers' meetings, employeremployee meetings, etc.

Guidelines 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.

Central and state governments must adopt measures, including legislation, to ensure
that private employers also observe the guidelines.

Names and contact numbers of members of the complaints committee must be


prominently displayed.

Employers' responsibilities

Recognise sexual harassment as a serious offence.

Recognise the responsibility of the company/ factory/workplace to prevent and deal


with sexual harassment at the workplace.

Recognise the liability of the company, etc, for sexual harassment by the employees
or management. Employers are not necessarily insulated from that liability because
they were not aware of sexual harassment by staff.

Formulate an anti-sexual harassment policy.

Constitution of a complaints committee to investigate, mediate, counsel and resolve


cases of sexual harassment.

25

The range of penalties that the complaints committee can levy against the offender should
include:

Explicit protection of the confidentiality of the victim of harassment and of witnesses.

A guarantee that neither complainant nor witnesses will be subjected to retaliation.

Publishing the policy and making copies available at the workplace.

Discussing the policy with all new recruits and existing employees. Third-party
suppliers and clients should also be aware of the policy.

Conducting periodic training for all employees, with active involvement of the
complaints committee.

Police

More PCR vans should be deployed to patrol educational institutions.

Along the lines of women's helplines, college helplines should also be provided 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 over.

There is a need to improve relationships between the police and educational


institutions.

Every case of rape must be handled by a woman police officer.

The attitude of the police needs to be made more positive towards the victim.

Educational institutions

Educational institutions must ensure proper lighting in an around their premises, as


darkness is conducive to crime. The height of hedges must be reduced in campuses for
proper visibility.
26

An internal security committee should be constituted by all educational institutions,


headed by the head of the institution, police officer and student representatives who
must be invited for meetings to review the security arrangements. If the need arises,
other government departments like the PWD, MCD, etc, may be invited to review the
security arrangements.

The internal security committee should have monthly or bi-monthly meetings and
must maintain the minutes of the meeting.

Experts should be invited to inspect the college area to assess the security needs and
arrangements on campus.

Educational institutions must perform their administrative role for the security of the
students.

Students must be given proper training in self-defence.

The telephone numbers of women's helplines must be provided.

Entry into educational institutions must be restricted. Entry should be through identity
cards.

Construction workers should not be allowed to stay on the premises of the institute
overnight.

Safety gadgets should be provided in hostels.

Educational institutions could engage retired police officers on their security


committees/boards.

De-politicisation of the campus is a must; institutions must ensure this.

Awareness programmes on the safety and security of students must be conducted on a


regular basis.26

26 http://www.iiap.res.in/files/VisakaVsRajasthan_1997.pdf
27

Judicial Pronouncements on Sexual Harassment at Workplace


In Apparel Export Promotion Council v. A. K. Chopra27
The respondent was working as a Private Secretary to the Chairman of the Apparel Export
Promotion Council, the appellant. It was alleged that, he tried to molest a woman employee
of the Council, who was at the relevant time working as a Clerk-cum-Typist. She submitted a
written complaint. The respondent was placed under suspension. A charge-sheet was served
on him to which he gave a reply denying the allegations. The Enquiry Officer after
considering the documentary and oral evidence and the circumstances of the case arrived at
the conclusion that the respondent had acted against moral sanctions and that his acts against
the woman employee did not withstand the test of decency and modesty. He therefore held
the charges levelled against the respondent as proved.
The respondent filed a Writ Petition in the High Court inter alia challenging his removal
from service. The writ petition was allowed and the respondent was directed to act upon the
decision of the Staff Committee.
The appellant challenged the Judgment and Order of the High Court in the Supreme Court
and the issue raised was whether the High Court has jurisdiction to interfere with the
disciplinary matters and punishment imposed by departmental authorities.
The Supreme Court held that in a case involving charge of sexual harassment or attempt to
sexually molest, the courts are required to examine broader probabilities of the case and not
get swayed by insignificant discrepancies or narrow technicalities or dictionary meaning of
the expression molestation. They must examine the entire material to determine the
genuineness of the complaint. The statement of the victim must be appreciated in the
background of the entire case.
It was further held that each incident of sexual harassment at place of work, results in
violation of fundamental right to gender equalities and right to life and personal liberty.
It was also further held that mere want of actual assault or touch by delinquent did not cease
to be outrageous. It amounts to sexual harassment and the court is not to normally interfere
27 AIR 1999 SC 625
28

with either the factual findings regarding guilt or with penalty or punishment imposed by
departmental authorities.
In Roopan Deol Bajaj v. KPS Gill28
A senior IAS Officer, Roopan Deol Bajaj took on to then Director General of Police of
Punjab when she was sexually harassed in a party in full view of her associates. Many of
them brushed aside her humiliation as a trivial incident. The entire political and
bureaucratic establishment threw its weight to protect the DGP and awarded him the Padma
Shri when the matter was sub-judice. The Police Establishment also tried to intimidate
Roopan Bajaj by spreading slander against her and isolating her for daring to protest.
The DGP was booked under sections 354 and 509 of the Indian penal Code. After being
found guilty by the Sessions Court as well as the High Court of Punjab and Haryana, he
appealed in the Supreme Court which upheld his conviction and directed him to pay Rs. Two
Lakhs as compensation to Roopan Deol Bajaj. The case dragged on for more than 18 years
and was the first instance where judiciary actually took a stand upholding womens right.
She was praised in media largely for filing a case against such a powerful officer of Police
and refusing to be cowed down. Also remaining true to the spirit of her struggle she donated
the fine of 200,000 levied by court on KPS Gill to a womans organization so that women
fighting under circumstances at least get some monetary help.
In Shehnaz Mudbhatkal v. Saudi Arabian Airlines29
Shehnaz was subjected to sexual harassment by her boss in 1985, and dismissed when she
complained to higher authorities. Her case was won in 1996 when the Bombay Labour Court
judged it to have been a case of unfair dismissal under the Industrial Disputes Act. It ordered
her re-instatement with full back payment, perks and promotions.
Case of Nalini and Prakriti
Nalini Netto, a senior IAS officer in Kerala was assaulted by the then Minister for transport,
Neelalohitadasan Nadar in his office in the Legislative assembly premises in the course of an
28 1996 AIR 309
29 1999 (1) BomCR 643
29

official meeting on December 21, 1999. She 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 government as a whole. She sought the
intervention of chief minister when after a month the stress and mental agony became too
heavy on her. However, she did not come up for the prosecution of the minister but simply
requested for a different working environment and some action to be taken to protect the
modesty of women officers. Immediately after Nettos case came to light, Prakriti Srivastava,
the divisional forest officer, Nilambur Kerala lodged a complaint on 11 April 2001, alleging
sexual harassment by same minister in February 1998. 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. After sometime troubles started for her as she started receiving constant
threat of grave nature from minister which became painful, unbearable and intolerable for
her. She was compelled to file a written complaint after that under section 354IPC demanding
the legal remedy for the offences of sexual harassment so committed. Government appointed
a committee to conduct a parallel enquiry. Several norms were violated as the sitting male
judge was appointed as its chairperson. Committee victimized Nalini consistently and insisted
to go for a public trial, though as per the Vishaka guidelines it has to be an in camera hearing.
However, the crime branch summoned Prakriti for evidence and her case was suo-motto
taken up by Human rights commission. The minister under pressure was forced to quit his
ministerial post but continued to be a member of Legislative assembly and even contested in
the election fully funded and supported by his party.
The charge sheet in Nettos case was filed by R.S. Mooshahary, former chief of the Crime
Branch CID, who first investigated the case. According to the charge sheet, the crime was
committed when Neelalohithadasan Nadar and Ms. Netto were alone in his ministerial
chamber. The former Minister had grappled with her and forcibly tried to kiss her. As per the
charge sheet, Ms. Netto had sustained injuries on her lips and the right index finger in the
melee.
The first class magistrate sentenced Nadar to 3 months imprisonment and a fine of 50000.
However, Additional Sessions Court acquitted him of the charges of harassment while
sentencing him of one year in jail in Prakritis case.
In Medha Kotwal Lele v. Union of India30
30 (2013) 1 SCC 297
30

The present case arose when Medha Kotwal Lele, coordinator of Aalochana, a centre for
documentation and research on women and other womens rights groups, together with
others, petitioned the Court highlighting a number of individual cases of sexual harassment
and arguing that the Vishaka Guidelines were not being effectively implemented. In
particular, the petitioners argued that, despite the guidelines, women continued to be harassed
in the workplace because the Vishaka Guidelines were being breached in both substance and
spirit by state functionaries who harass women workers via legal and extra legal means,
making them suffer and by insulting their dignity. The Court was specifically required to
consider whether individual state governments had made the changes to procedure and policy
required by the Vishaka Guidelines and a number of earlier orders of the Court.
The Court stated that the Vishaka Guidelines 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 Vishaka Guidelines require both employers and other
responsible persons or institutions to observe them and to help prevent sexual harassment of
women. The Court held that a number of states were falling short in this regard. It referred
back to its earlier findings on 17 January 2006, that the Vishaka Guidelines had not been
properly implemented by various States and Departments in India and referred to the
direction it provided on that occasion to help to achieve better coordination and
implementation. The Court went on to note that some states appeared not to have
implemented earlier Court decisions which had required them to make their legislation
compliant with the Vishaka Guidelines.
It noted that some states had only amended certain aspects of their legislations rather than
carrying out all required amendments and others had taken even less action. Accordingly, it
held that the Vishaka Guidelines should not remain just symbolic but rather shall provide
direction until the legislative enactment of the Bill, holding that a number of states had not
done anything required to comply with the Guidelines.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition


and Redressal) Act, 2013
The Act is enacted by the Indian Parliament to provide protection against sexual harassment
of women at workplace and prevention and redressal of complaints of sexual harassment and
for matters connected therewith or incidental thereto. Sexual harassment is termed as a
31

violation of the fundamental rights of a woman to equality under Articles 14 and 15 of the
Constitution of India and right to life and to live with dignity under Article 21 of the
Constitution of India. Sexual harassment is also considered a violation of a right to practice
any profession or to carry on any occupation, trade or business which includes a right to a
safe environment free from sexual harassment.
Sexual Harassment
According to Section 2(n) sexual harassment includes any unwelcome acts or behaviour
(whether directly or by implication) such as physical contact and advances, demand or
request for sexual favours, making sexually coloured remarks, showing pornography or any
other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Section 3 of the Act provides that no woman shall be subjected to sexual harassment at any
workplace. This section further provides the circumstances which if present or connected
with any act or behaviour 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 offensive or hostile
work environment, humiliating treatment likely to affect health or safety of a woman.
Complaints Committee & Complaint Procedure
Internal Complaints Committee:
The Act makes it mandatory for every employer to constitute an internal complaints
committee ("ICC") which entertains the complaints made by any aggrieved women. The
members of the ICC are to be nominated by the employer and ICC should consist of
i) A Presiding Officer,
ii) Not less than two members from amongst employees preferably committed to the cause or
women or who have had experience in social work or have legal knowledge and
iii) One member from amongst non-governmental organizations or associations committed to
the cause of women or a person familiar with the issues relating to sexual harassment.

32

In order to ensure participation of women employees in the ICC proceedings, the Act requires
that at least one-half of the members of ICC nominated by employer are women.
Local Complaints Committee:
Provisions are provided under the Act to form Local Complaints Committee (LCC) for every
district for receiving complaints of sexual harassment from establishments where the ICC has
not been formed due to having less than 10 workers or if the complaint is against the
employer himself.
Complaint procedure:
The Act stipulates that aggrieved woman can make written complaint of sexual harassment at
workplace to the ICC or to the LCC (in case a complaint is against the employer), 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 aggrieved woman is unable to
make complaint in writing, reasonable assistance shall be rendered by the presiding officer or
any member of the ICC (or in case the aggrieved woman is unable to make complaint in
writing to the LCC, the reasonable assistance shall be rendered by the Chairperson or any
member of the LCC) for making the complaint in writing.
As per the Sexual Harassment of Women at Workplace (Prevention, Prohibition and
Redressal) Act, 2013, in case the aggrieved woman is unable to make a complaint on account
of her physical incapacity, a complaint may be filed inter alia by her relative or friend or her
co-worker or an officer of the National Commission for Woman or State Women's
Commission or any person who has knowledge of the incident, with the written consent of
the aggrieved woman.
The Sexual Harassment Act also sets out the process to be followed for making a complaint
and inquiring into the complaint in a time bound manner.
If an employer fails to constitute an Internal Complaints Committee or does not comply with
any provisions contained therein, the Sexual Harassment Act prescribes a monetary penalty
of up to 50,000.
Section 354 was amended through the Criminal Law (Amendment) Act, 2013, which enlists
the acts which constitute the offence of sexual harassment and further envisages penalty/

33

punishment for such acts. A man committing an offence under this section is punishable with
imprisonment, the term of which may range between 1 - 3 years or with fine or both.31
Recent Cases of Sexual Harassment at Workplace
Tarun Tejpals Case
Tehelka founder and former editor Tarun Tejpal was charged by Goa police with rape, sexual
harassment and outraging modesty of a woman journalist in a lift of a five-star hotel here in
November 2013. Tejpal was charged under sections 354, 354-A (sexual harassment), 341 and
342 (wrongful restraint), and 376 (rape). Tejpal, was arrested on November 30th and had
since been lodged in Sada sub jail in Vasco. He was Granted bail by the Supreme Court in
July, 2014. The case is still pending in the Sessions Court, North Goa.32
Rupesh Samants Case
Two women journalists filed a First Information Report (FIR) against a senior journalist for
alleged sexual harassment,under section 354A (related to sexual harassment) at the Women's
Police Station in Panaji in September 2015. Rupesh Samant, Goa bureau chief of Press Trust
of India (PTI) was accused of allegedly stalking the two victims, sending them vulgar
messages via mobile phone and making sexual advances. This was done at Herald Cable
Network, a local cable channel where the two journalists earlier worked. The accused is
currently out on bail while the case is still pending for disposal.33
Shortfalls of the Sexual Harassment of Women at Workplace (Prevention, Prohibition
and Redressal) Act, 2013

31http://www.mondaq.com/india/x/348338/employment+litigation+tribunals/Overview+Of+The+Se
xual+Harassment+Of+Women+At+Workplace
32 http://www.thehindubusinessline.com/news/tehelka-case-tarun-tejpal-charged-with-rape-sexualharassment/article5698614.ece
33 http://indiatoday.intoday.in/story/senior-goa-journalist-booked-for-sexualharassment/1/483081.html
34

The Sexual Harassment Act only addresses the issue of protection of women employees and
is not gender neutral. Male employees, if subjected to sexual harassment, cannot claim
protection or relief under the law.
The definition of the sexual harassment, the words verbal, textual, physical, graphic or
electronic actions should have been added in order for the purposes of clarity, as it would
cover some of the technological developments.
It may become a challenge for employers to constitute an ICC at all administrative units or
offices. It may also become necessary for the employer to spend more time and efforts in
training members of the ICC who are to be replaced every 3 years. There is also a lack of
clarity as to who shall be a chairperson of the ICC in absence of a senior level female
employee. Also, in such cases, the composition of the committee members should ideally
have been an odd number in order for the committee to arrive at a decision based on majority.
The ICC also needs to involve a member from amongst non-governmental organisations or
associations committed to the cause of women or who have had experience in social work or
have legal knowledge. Employers may not be comfortable with such an external
representation, considering the sensitivities surrounding this issue and the need to maintain
strict confidentiality.
The law casts an obligation upon the employer to address the grievances in respect of sexual
harassment at workplace in a time bound manner, which in several cases may not be
practically possible as the employees or witnesses involved may not easily or readily cooperate.
The law allows the employer to initiate action against the complainant in case of a false or
malicious complaint. This provision, although meant to protect the employers interests, is
likely to deter victims from reporting such incidents and filing complaints, which may in turn
defeat the purpose for which the law was enacted.
Conclusion
Violence against women is not a new phenomenon. Women have to bear the burns of
domestic, public, physical as well as emotional and mental violence against them, which
affects her status in the society at the larger extent. The statistics of increasing crimes against
35

women is shocking, where women are subjected to violence 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 above cases women is considered as aggrieved person.
Similarly 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 job, facing mockery at the hands
of the society, getting trapped in the never ending judicial proceedings or due to other unsaid
reasons.
Strong laws and public policies are essential steps toward combating such violence. But the
real solution lies in a culture shift, in the world, and in each of our homes. Women must not
accept, she must challenge. She must not be awed by that which has been built up around her.
She must respect that woman in her which struggles for expression.

BIBLIOGRAPHY
Books Referred:
1) Dr. Devinder Singh, Human Rights Women & Law(Allahabad Law Agency, Faridabad,
1st Edition, 2005)
2) P.K. Das, Protection of Women from Domestic Violence, (Universal Law Publishing
Company, New Delhi, 3rd Edition 2010)
3) Indira Jaising & Monica Sakhrani, Law of Domestic Violence, (Universal Law
Publishing Company, New Delhi, 2nd Edition 2008)
4) Dr. Ritu Gupta, Sexual Harassment at Workplace (LexisNexis, Haryana, 1st Edition,
2014)
Websites Referred
1) www.countercurrents.org

36

2) www.ncadv.org
3) www.joyfulheartfoundation.org
4) www.un.org
5) www.includegender.org
6) www.stopvaw.org
7) www.womenshealth.gov
8) www.cps.gov.uk
9) www.indiastudychannel.com
10) www.sexualharassmenttraining.biz
11) shodhganga.inflibnet.ac.in
12) www.iiap.res.in
13) www.mondaq.com
14) www.thehindubusinessline.com
15) indiatoday.intoday.in

37