REMEDIES FOR VIOLATION OF HUMAN RIGHTS

(Women & Children)

CIVIL REMEDIES: AGAINST HARASSMENT

Modern-day India has a growing number of working women. According to the 2011 census,
the share of women in the workforce has reached 25.51 per cent. To address the issue of
sexual harassment that women face in employment, the Government of India enacted the
Sexual Harassment (Prevention, Protection and Redressal) Act, 2013 (“Sexual Harassment
Act”) and the Sexual Harassment (Prevention, Protection and Redressal) Rules, 2013,
(“Sexual Harassment Rules”). Sexual Harassment Act Despite being a signatory of the
United Nations Convention on the Elimination of Discrimination against Women
(“CEDAW”), India did not have specific legislation to address the problem of gender-based
harassment faced by women in workplaces. The case of Vishakha v. State of Rajasthan
brought to light the dire lack of legislation. In this landmark judgment, the Supreme Court
issued directions commonly known as the Vishakha Guidelines to tackle the problem. The
Sexual Harassment Act was finally enacted in 2013 after a nationwide outcry for the better
protection of women in India following the rape of a young girl in Delhi in December 2012.

The Sexual Harassment Act is an important legislation that can be utilised by women for
greater security. The following are key highlights of this law.

• This Act protects every woman in India, whether employed or not, at all workplaces.

• An “aggrieved woman” is defined as any woman of any age, irrespective of her

employment status, who has been subjected to sexual harassment.

• “Sexual harassment” is defined broadly as any unwelcome verbal or non-verbal conduct of

a sexual nature that is direct, or possibly, even implied.

• The employer of a workplace is responsible to provide protection and assistance to the

aggrieved woman.

• Every employer employing more than ten people must constitute an Internal Complaints
Committee to address complaints of sexual harassment.
1
Page

©Legal Education Awareness Foundation 2017

• Penal consequences of sexual harassment can include fines, reprimands and even
termination from employment.

While the Sexual Harassment Act is a civil law, it is worth mentioning here that an aggrieved
woman has the right to file a criminal complaint in addition to seeking a remedy for
harassment under this law. Such a complaint can be filed under the Indian Penal Code, 1860
(“IPC”). The Sexual Harassment Act even makes it the duty of an employer to render all
assistance to an aggrieved woman if she chooses to file such a criminal complaint.

CRIMINAL REMEDIES: AGAINST HARASSMENT

The outburst of crimes against women calls for the renovation of existing laws that provide
greater security to women. The Criminal Law (Amendment) Act, 2013, (“the CAA”) was
enacted by the Government to recognise and address certain specific crimes against women,
and penalties for the same. Section 254 of the Indian Penal Code, 1860 loosely terms offenses
against women under the phrase “outraging the modesty of a woman”. The CAA broke down
this phrase by adding the following list of crimes against women:

• Acid attacks – Section 326 A and 326 B: A person who throws or administers acid on
another person causing damage or deformity, is liable for imprisonment not less than ten
years, which may even extend to life imprisonment. An attempt to throw acid is now
punishable with imprisonment from five to seven years.

• Sexual harassment – Section 354 A: Unwelcome behaviour of a sexual nature from a man
towards a woman constitutes the offence of sexual harassment, and is punishable by
imprisonment up to three years as well as with a fine.

• Act with intent to disrobe a woman – Section 354 B: Using criminal force on a woman by a
man, or abetting such an act, with the intention of disrobing or compelling her to be naked is
an offence punishable with imprisonment of not less than three years, which may extend to
seven years, and a fine.

• Voyeurism – Section 354 C: Watching a woman engaged in private activities (which the
woman does not expect anyone to be watching her) by a man, is an offence, punishable with
imprisonment between one and three years for the first time, and between three and seven
years with a fine, in case of subsequent convictions
2
Page

©Legal Education Awareness Foundation 2017

• Stalking – Section 354 D: Under the new law, any man who follows, contacts, or even
attempts to contact and interact with a woman repeatedly after clear indication that she is not
interested, amounts to stalking. Stalking of a woman by a man is punishable with
imprisonment of up to three years for the first time, and five years for subsequent
convictions.

• Rape – Sections 375 and 376 A: A person who has committed an offence of sexual
assault10 that results in the death of the victim or causes the victim to be in a vegetative state,
is punishable with imprisonment of not less than twenty years. The punishment may extend
to a complete life imprisonment, or even death. Also, the law specifically mentions that the
perpetrator must be a man and the victim, a woman.

Dowry death

Dowry and dowry-related deaths continue to be a menace in Indian society even today. The
legislature enacted the Dowry Prohibition Act, 1961 (“Dowry Prohibition Act”) to end the
practice of dowry, and combat the serious crime of dowry deaths.

The Dowry Prevention Act prohibits the give-and-take of dowry through the following
crucial provisions:

• Any person giving, taking, or even abetting the give-and-take of dowry will be punished
with imprisonment up to five years and with a fine.

• The demand for dowry by parents or relatives of the groom, or even the bride will be
punished with imprisonment up to two years and with a fine of up to rupees ten-thousand14.

• The Code of Criminal Procedure, 1973, (“CrPC”) shall apply to the offence of dowry and
consider it a serious offence.

The IPC provides penal consequences for the crime of causing dowry death under Section
304 B. According to this section, a dowry death is where a woman dies due to burns or other
bodily injuries (abnormal circumstances) within the first seven years of her marriage. The
essential ingredients required for the application of this section are that:

• The victim was subject to cruelty or harassment by her husband, or his relatives preceding
her death;
3

• Such cruelty, or harassment, was in connection with a demand fordowry, and

Page

©Legal Education Awareness Foundation 2017

• Such cruelty or harassment occurred within seven years of the marriage.

When Section 304 B is read with the relevant provisions under the Indian Evidence Act,
1872, (“the Evidence Act”) (namely, Sections 113 A and 113 B) a presumption of guilt can
be raised if death has occurred within seven years of the marriage.

RELIEF FROM DOMESTIC VIOLENCE

Before moving on to the subject of maintenance rights, let us take a quick look at the
provisions in the IPC, which address the problem of domestic violence and cruelty. Section
498 A of the IPC states that the husband or a relative of the woman’s husband subjecting the
woman to ‘cruelty’ shall be punished with imprisonment of up to three years, and fine.

Cruelty here means:

• such wilful conduct which 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; or

• harassment of the woman with a view to make her or her relations meet any unlawful
demand for any property or valuable security, or is on account of her failure to meet such
demand.

CRIMINAL LAW

The CrPC provides that a man who has the means to maintain his deserted wife or ex-wife
(who has no means to provide for herself) cannot refuse to pay such maintenance. All
women, irrespective of their religion, can avail of this provision.

To be eligible for the grant of maintenance under the CrPC, the applicant (woman) must fulfil
two conditions:

• Firstly, such a wife or an ex-wife must not have re-married; and

• Secondly, she must be unable to maintain herself and the children of wedlock, if any.

Recently, courts have interpreted the provision to include even some relationships between
men and women outside of marriage. The Supreme Court in Abhijit Bhikaseth Auti v. State
of Maharashtra and Others observed that it is not necessary that the woman claiming
maintenance be a wife. Even a woman in a live-in relationship may seek maintenance. The
state government of Maharashtra has even proposed in a report that “Section 125 [CrPC]
4
Page

©Legal Education Awareness Foundation 2017

should be amended so as to include a woman who was living with the man as his wife for a
reasonably long period, during the subsistence of the first marriage.”

Civil remedies for maintenance are available under various personal laws, which are based on
an individual’s religious affiliations.

HINDU LAW

There are two personal laws that can provide the relief of maintenance to Hindu women.
Firstly, the Hindu Adoption and Maintenance Act, 1956 (“HAMA”) provides the definition
for maintenance as “provision for food, clothing, residence, education, and medical
attendance and treatment”.

Under the HAMA, maintenance can be claimed by other ‘dependents’ of a Hindu man as
defined under Section 21, which include:

• unmarried daughters for marriage expenses;

• both parents, if they are unable to maintain themselves;and

• interestingly, even an issue-less step-mother.

In the case of a Hindu widow, who cannot maintain herself nor be maintained from the estate
of her deceased husband, maintenance shall be provided by:

• her parent(s), or

• her child(ren) who have attained majority, or

• her father-in-law, if she is unable to receive support from her parent(s)

or child(ren)

Under Section 25 of the Hindu Marriage Act, 1955 (“HMA”), a Hindu wife can claim
maintenance from her husband, but such marriage must necessarily be a valid marriage in the
eyes of the law. Irrespective of whether she seeks separation or divorce, she is entitled to
maintenance for the duration of her lifetime from her husband where she can prove any one
of the following grounds:

• her husband has deserted, or wilfully neglected her; or

5

• she was treated with cruelty by her husband; or

Page

©Legal Education Awareness Foundation 2017

• the husband suffers from an incurable disease such as leprosy or any other infectious
disease;

• the husband has another wife (who is alive);

• the husband has kept a concubine;

• the husband has converted to another religion and thus, has ceased to be a Hindu; or

• any other cause which would justify her to live separately from her own husband.

The right to maintenance has the following exceptions:

• That the wife has indulged in an adulterous relationship, or

• that the husband and wife have both decided to live separately by mutual consent, or

• if the wife is not longer a Hindu by conversion to any other religion.

The Supreme Court had explained in Mangatmul v. Punni Devi that the concept of food,
clothing and other such necessities were to be included under the basic need for ‘roof over the
head’.

‘Right to residence’ has also been held as part of a wife’s right to maintenance, which
inevitably extends to a divorced wife as well. This includes where the wife may be living
separately (given a just cause), according to the Supreme Court .

Under Section 24 of the HMA, a wife can seek ‘interim maintenance’ pendente lite40 on the
basis that the claimant has no independent income of her own to cover the expenses.

Another important aspect of the Hindu law of maintenance is that where there are children
involved, legitimate and illegitimate, both parents are equally responsible to maintain such
minor child(ren).

Whe re the child is a girl, the parents are firstly obligated to maintain hernot only till she
reaches majority, but also until she is married. Secondly, the expenses of the marriage of the
daughter are also the duty of the parents. In addition, after the marriage of a minor daughter,
if she is unable to maintain herself, such daughter can also claim for maintenance from her
parents.
6
Page

©Legal Education Awareness Foundation 2017

MUSLIM LAW

In order to protect the rights of divorced Muslim women, the Muslim Women (Protection of
Rights on Divorce) Act, 1986 (“Muslim Women Act”) came into force. This law provides a
Muslim woman the right to claim maintenance after a divorce is obtained. According to
Section 3 of the Muslim Women Act, a divorced Muslim woman shall receive her mahr and
her other personal properties at the time of divorce, and shall also be entitled to:

• a reasonable and fair provision and maintenance paid to her within the iddat period from her
former husband;

• a reasonable and fair maintenance provided by her former husband, for two years from the
respective dates of birth of children if the children live with her and she looks after them;

• the amount should equal the sum of mahr or dower agreed at the time of her marriage or at
any time after that, according to Muslim law; and

• the woman’s personal properties and should include all the items given to her for the
marriage (including gifts received before, during or after the marriage received from the
bride’s or the groom’s side).

In the case of Daniel Latifi and Another v. Union of India, the Supreme Court once and for
all settled the constitutional validity of the Muslim Women Act. The court held that a Muslim
husband is liable to pay maintenance to his divorced wife, even beyond the iddat period. It
also held that a divorced Muslim woman who cannot maintain herself or her child(ren) can
proceed to claim maintenance from her relations, or even from the State Wakf Board under
Section 4 of the Act.

SPECIAL MARRIAGES

Marriages and divorces between persons who belong to differing religions can be registered
under the Special Marriage Act, 1954, (“SMA”). Section 37 of the Act provides the right of
maintenance (permanent alimony) to women whose marriages are registered under the SMA.

In the interest of justice, the court may modify or rescind the order of maintenance based on
changes in circumstances and if the court is satisfied that the wife has either re-married or is
not leading a chaste life.
7
Page

©Legal Education Awareness Foundation 2017

As you can now gather, maintenance can be sought under various personal laws applicable to
the individual, as well as under Section 125 of the CrPC. Seeking maintenance under
personal law is different from the proceedings provided in the CrPC. This means that a
woman can claim maintenance under personal law, as well as the procedure provided under
the CrPC. There is no conflict between the application of the civil and criminal proceedings
toward seeking maintenance. Also, criminal proceedings are neither limited to the religious
beliefs of the applicant, nor are they meant to serve as a punishment, as their primary focus is
to protect the woman (or other dependents) from destitution.

Thus, in a country like India, women-centric laws are required to curb the evident
discrimination against women and to enable them to claim rights as equals as guaranteed by
the Constitution. The rights and roles of women in family-related laws continue to be
disparate due to the lack of a uniform civil code58 and the continued application of personal
laws.

It is safe to say India has begun to legislate laws that apply to all women irrespective of their
religious backgrounds, such as the recently enacted Sexual Harassment Act, but their
implementation is yet to reflect a greater change in attitude towards women’s rights and their
protection.

8
Page

©Legal Education Awareness Foundation 2017