PUBLISHED PAPER@NATIONAL SEMINAR ON “JUSTICE FOR MEN’S RIGHTS; EMERGING ISSUES & CONCERNS”

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TITLE –
EXPLOITATION OF GENDER BIAS LAWS: A COMPARATIVE ANALYSIS OF MEN’S RIGHTS IN VARIOUS COUNTRIES

 

SUB THEME – GENDER BIASED LAWS

NAMES OF CO-AUTHORS –

1) DEEKSHA  AGRAWAL

NAME OF THE INSTITUTE: Vivekananda Institute of Professional Studies
E-MAIL:
deekshaagrawal247@gmail.com
POSTAL ADDRESS:
782, Skylark Appts, Sector-6, Plot No.-35, Dwarka, New Delhi-110075
CONTACT NUMBER:
9990100792

2) AMAN  CHOUDHARY

NAME OF THE INSTITUTE: Vivekananda Institute of Professional Studies
E-MAIL:
aman.choudhary563@gmail.com
POSTAL ADDRESS: D-251 Manglapuri Village Palam Colony New Delhi-110045
CONTACT NUMBER:
9899079001

HYPOTHESIS

There has been a failure on part of the Indian Judiciary and Legislature while protecting the rights of men in comparison to the rights of men in other countries.

ABSTRACT

In the absence of any systematic data, with more men falling prey to violence and fake accusations by women, it is important to understand and examine the issues of violence against men by women and associated factors. With changing gender roles and a rise in the feminist movement, the authors predict that this will lead to gender bias against men leading to sexism (favouring women) in the future which will have far reaching consequences and implications for the larger society and would threaten the relationship between both the recognized sexes. Domestic violence against men is a frequent and common occurrence which isn’t reported due to the non-acceptance of the same, since it is commonly perceived that in a patriarchal society; only a woman can be subject to domestic violence by her husband and her in laws. By comparing and contrasting the legal provisions, the paper attempts to examine the legal sanctity and to draw a comparative analysis between violence against women by men and violence against men by women in various countries including India, and thus, reflecting the failure of Indian Judiciary and Legislature while deciding and drafting gender neutral laws. There are various statutes available for the protection of Human Rights in India, but the authors have attempted to focus mainly on Indian Penal Code, 1860; Domestic Violence Act, 2005 and The Immoral Traffic (Prevention) Act, 1956. This paper is based on the authors’ research on the statutes of various countries in contrast to the statutes in India, interaction with male victims, international online sessions on the topics, case analysis, reference material and other secondary sources.

INTRODUCTION

UNICEF says gender equality “means that women and men, and girls and boys, enjoy the same rights, resources, opportunities and protections. It does not require that girls and boys, or women and men, be the same, or that they be treated exactly alike.”[1]

As of 2017, gender equality is the fifth of seventeen sustainable development goals of the United NationsGender inequality is measured annually by the United Nations Development Programme‘s Human Development Reports.

Similarly, men are increasingly working in occupations which in previous generations had been considered women’s work, such as nursingcleaning and child care. In domestic situations, the role of Parenting or child rearing is more commonly shared or not as widely considered to be an exclusively female role, so that women may be free to pursue a career after childbirth.

It is the vision that men and women should be treated equally in social, economic and all other aspects of society, and to not be discriminated against on the basis of their gender.[2] Gender equality is one of the objectives of the United Nations Universal Declaration of Human Rights.[3] World bodies have defined gender equality in terms of human rights, especially women’s rights, and economic development.[4][5]

 

 

 

INDIAN STATUTES

IPC[6]

According to the National Crime Records Bureau statistics, in 2012, nearly 200,000 people including 47,951 women were arrested on unestablished allegations of dowry offences. Surprisingly, only 15% of the accused were convicted.

In a recent study, it was found that out of 222 Indian men being surveyed, 16.1% had been coerced into having sex. Despite male rape not being researched as widely as female rape, there are several statistics to suggest that men are raped and the prevalence of male rape is wider than is generally presumed. Male rape happens, but is seldom reported. Undoubtedly, countries with gender-neutral rape laws reportedly have the lowest rates of rape in the world.

In purview of IPC there are various provisions which are considered anti-male but the authors will focus mainly on a) Rape Laws b) Dowry Death c) Outraging Modesty.

Rape

As per the definition of Rape under section 375 of the IPC, only women can be victims to the crime of rape and only a  man can commit the crime of rape. A woman is not punished even as an abettor in case of gang rape. If a man is raped by another man, he cannot initiate proceedings with respect to the same.

Crimes like rape and murder do not see age, caste, colour of skin, nationality and yes, even gender or sexual orientation. Rape is seen across the extremes of age, sex and geographical boundaries.

  1. A man having sexual intercourse without a woman’s will – No guideline as to prove a woman’s will here. She might have had consensual sex and still allege rape with a vindictive attitude.
  2. If a man has sex with a woman after promising marriage, he can’t break up with the woman. If he does, according to the laws in India, he’s a rapist. Reverse the genders and if a girl does the same, it will be labelled as ‘women empowerment.’
  • Age of consent: There is no age of consent for males. If a boy of 16 and a same-aged girl has consensual sex, the boy will be charged with rape.

Dowry Death

According to the general propaganda of Indian patriarchal society, every untimely or unnatural death of a married woman is termed as ‘dowry death’[7]. However, it is pertinent to note that IPC is silent on definition of dowry death which results in misuse of dowry death and thus it is made believe that all Indian men have an uncanny propensity to commit violence on their wives for money and property.

Justice Saldana’s remarks[8] are a testimony to the way these laws are being misused to the detriment of innocent citizens:
“…we need to sound a note of caution that the police and investigating authorities should not improperly and technically jump to the conclusion that merely because death has occurred that ipso facto a criminal offense has been committed. In as many as 44% of these cases prosecution is thoroughly unjustified. The consequences of these charges are extremely grave because the accused husband and invariably family members are placed under arrest. There are serious social and economic repercussions.”
The Supreme Court, in the case of Sushil Kumar Sharma v. Union of India[9], observed that such provisions are intended to be used as a shield and not an assassin’s weapon.

Outraging modesty

The authors would seek one’s attention to the lopsided provisions protecting solely women from crimes like Outraging Modesty[10], Sexual Harassment[11], Disrobing[12], Voyeurism[13] and Stalking[14]. The above mentioned offences can be committed only by a man and only against a woman.
The situation has become so adverse that if a man accidentally touches a woman at a public place and the woman protests even slightly, the man shall inevitably invite public outrage by fellow passengers, without even being given a chance to speak for himself.

An incident took place in New Delhi in August 2015 where, JasleenKaur, astudent of St. Stephens College posted a picture of a guy on his motorcycle and alleged that he passed some abusive or obscene comments on her.She also claimed that he harassed her in public area. After the investigation,Jasleen was found guilty as she exploited the power conferredon her by law. Sucha realexample proves that males are also being harassed by females. Harassment maynot be in a physical form,mental harassment can also be done to males.

Section 509[15] deals with words, gestures or acts intended to insult the modesty of a woman, and makes the perpetrator punishable with simple imprisonment for a term which may extend to one year, or with fine, or with both. On the face of it, such legislation is gender-biased, and another instance of the numerous such ‘women safeguarding’ laws.

A woman performing the same actions against a man that constitute ‘sexual harassment’ cannot be punished and the man who has been a victim to such an offence cannot seek help under the criminal law. A man can resort to the provisions of the IT Act,2000[16] for crimes like voyeurism. However, he can still not initiate criminal proceedings.

DOMESTIC VIOLENCE AGAINST MEN

The Preamble of Domestic Violence Act provides for more effective protection of the rights of women guaranteed under the constitution that are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto.[17] The preamble of this Statute presumes that all women are victims of violence of all kinds and this forms the basis of the provisions of the Act. The Act lacks the provisions pertaining to violence against men involving women perpetrators, unlike the concerning statutes of UK, USA and Australia.

In a recent judgment[18] of Supreme Court, the 2 judge bench had ordered to look into the authenticity of violence and dowry related cases under section 498A of IPC, and has laid down certain guidelines for the same, which are:

  1. Court has constituted a committee and every case related to dowry will go to this committee which gives this committee uncheck power and it can work as a justice dispensation system.
  2. No arrest will be done until the committee gives its report to the magistrate that shows the justice to the victim will be delayed.
  3. Committee members who act as a judicial body can be influenced and bribed by the accused.
  4. The judge’s discretion is based on nothing but his/her background and the judgment reflects that background.
  5. The precedence judges’ use also reflects their male-dominant view as most of the cases they used is to support their reasoning that 498A is being misused.

A few male victims of domestic violence were interviewed to delve better into the issue. One such person interviewed was Mr. Rajinder Kumar (name changed for confidential purposes). Mr. Kumar got married to his wife, Mrs. Anita Kumar (name changed to maintain anonymity) in the year 2002 and they had their first child in the year 2003. They were cohabiting and living a peaceful married life until the year 2011, when Mrs. Kumar started working as a data interpreter for the municipality which was whole heartedly supported and encouraged by Mr. Rajinder. In February 2011, Mr. Rajinder got suspicious when his wife started lying about her whereabouts and disrespected and disregarded him. He followed and enquired about her. As a result, he found out that his wife was having illicit relations with a shopkeeper from their locality, and when confronted she denied having any such relations. One day, he caught them red handed and she admitted having an extra-marital affair. He asked her to quit her job and started providing for her wholly, which she took unfair advantage of and started exploiting him by calling police on him over petty issues and implicated him several times in false cases of posing threat to her life and dignity. Due to the stress and trauma caused by the false allegations, Mr. Rajinder became a habitual smoker and started abusing alcohol, eventually leading to deteriorating physical and mental health. In 2015, she filed a case against him under section 498A of IPC, which got settled in mediation centre and Mr. Rajinder was directed by the court to pay Rs.12000 per month as maintenance to his wife. Her main motive was to extort property and money from her husband. In order to achieve her selfish motives, she again filed a false and rather exaggerated case in the year 2017 against her husband and his family members under section 12 of DV Act, wherein settlement was reached in the mediation centre on the last date of hearing, which was 07/04/2018. The case is listed for 05/11/2018 before the mediation centre for the final order.

MALE TRAFFICKING IN INDIA: ANALYSIS OF IMMORAL TRAFFIC (PREVENTION) ACT, 1956

The society associates sex trafficking with only women and thus we fail to highlight that men are targeted by the sex trafficking industry as well. If looked at the early literature, legislation and media coverage of sex trafficking, it appears that the commercial sexual exploitation of men and boys is a relatively new concept. It becomes hard to ignore that men and boys are subjected to commercial sexual exploitation, and they even outnumber female victims. To ignore these facts is not only inaccurate, but also dangerous – it has led to the oblivious abandonment of tens of thousands of victims.

India is also a destination for human trafficking. In the year 2016 alone, 8132 human trafficking cases have been reported. The states where the cases reported high are West Bengal, Rajasthan, Gujarat, Maharashtra and Tamil Nadu. The main purposes for human trafficking given in the NCRB report are Sexual exploitation, Forced Marriage, Forced Labour and Domestic servitude.[19]

In 2014, Tejaswini Pagadala analyzed Hyderabad’s male commercial sex workers. These men cater to high rich female clients who look for “cheap sex.”. Many of these young men which one finds on the streets are trafficked from more remote areas found in Uttar Pradesh, Rajasthan, and other rural outskirts. They have been victims of neglect, discrimination, and abuse. There are traditions and customs that harness this kind of toxic and dangerous environment for young men. Traditions reinforcing this persist, such as the “LaundaNaach,” which is often seen in various states where boys between the ages of 15 to 25 are taken from areas such as Bihar and Uttar Pradesh to perform a dance. A 2013 study by ECPAT-USA suggested that boys and men are rarely seen to be arrested for prostitution or rescued as victims of human trafficking.

The act does not seek to abolish prostitutes or prostitution per se and hence the practice of prostitution individually, independently and voluntarily by a woman does not constitute an offence. But it treats soliciting for prostitution and prostitution in public place as offences.

Although Section 8 of ITPA[20] talks about seducing or soliciting for purposes of prostitution, the provision specifically mentions the words ‘her person’, which means that whoever gets enticed or seduced by a female prostitute shall be punished with imprisonment which may extend to six months, or with fine which may extend to five hundred rupees, or with both; whereas the proviso to the section expressly provides that whoever gets enticed or seduced by a male prostitute shall be punished with imprisonment for a period of not less than seven days but which may extend to three months.

The ITPA is concerned with at least six different categories of people who are in some ways connected with prostitution. Each category is treated differently, subjected to different legal processes and punishments. The six categories addressed by the law includes:

  1. The procurer/ seducer.
  2. The brother keeper/manager or his/her assistant.
  3. Any person who allows or lets premises to be used for prostitution.
  4. Any person who lives on the earnings of a prostitute.
  5. The prostitute.
  6. The children of prostitutes.

According to Section 10A of ITPA, the facilities of corrective institutions are only accessible for female offenders, whereas there is no such facility for male offenders. This provision is based on the presumption that it is only females who are subject to prostitution and who should be sent to protective homes for the purposes of giving them the right to live with dignity and to reform themselves whereas, the males on the contrary are considered to be dominant and it is a common conception that they cannot be reformed.

FOREIGN STATUTES

UNITED STATES OF AMERICA

In the United States, the National Violence Against Women Survey carried out by the Department of Justice in 2000, surveyed 16,000 people (8,000 men and 8,000 women), and found that 7.4% of men reported physical assault by a current or former spouse. In 2013, the American Centers for Disease Control and Prevention (CDC) found that from a sample of 16,000 U.S. adults 29% of men had been a victim of IPV compared to 35% of women. A recent analysis of BJS data, for example, turned up that 46 percent of male victims reported a female perpetrator.

Immoral Trafficking

The US Code[21] provides under section 1583, the criminal liability of any person who kidnaps or carries away any other person for the purposes of selling into involuntary servitude. Further, sections 1590 and 1584 deal with trafficking of any person (male or female) for the purposes of involuntary servitude and selling of any person into any condition of involuntary servitude and willfully holding to involuntary servitude, respectively.

Rape Laws

The US Code provides for vast interpretation of rape laws. According to the definition clause[22] of the Code:

1.      ‘Sexual act’ not only covers penetration by penis, but also includes penetration through other forms, like – genital opening by hand or any object etc.

2.      “Sexual contact” means the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

According to sections 2241, 2242 and 2244, both males and females can commit the offence of sexual abuse and its aggravated forms, however due to the lack of specific legislation in the States of USA; the cases of male rape are not as much highlighted as those of female rape cases. Even though FBI recognizes male rape cases yet no judicial action can be taken in that regard.

Domestic violence

In lieu of the Code, “domestic assault” can be understood as an assault committed by any (current or former) spouse on the person with whom he/she is cohabiting, or has cohabited. Under the Domestic Violence laws in The USA, section 117[23] not discriminating on gender provides equal liability of both the sexes for any assault, sexual abuse, or serious violent felony against a spouse or intimate partner.

Under the Interstate Domestic Violence law, any person who travels in interstate or is present within the special maritime and territorial jurisdiction of the United States intending to kill, injure, harass, or intimidate a spouse, intimate partner, or dating partner, shall be punished. Also, any person who causes a spouse, intimate partner, or dating partner to travel in interstate or foreign by force, coercion, duress, or fraud, and who, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner, shall be punished.

Stalking

The Code includes in the definition of “spouse or intimate partner”, any person who shares a child in common with the target of the stalking, and a person who cohabits or has cohabited as a spouse or, any person who is or has been in a social relationship of a romantic or intimate nature.

According to the provisions of stalking[24] any person who intends to kill, injure, harass, intimidate, or place under surveillance another person, and engages in conduct that causes a reasonable fear of death or serious bodily injury in the mind of the victim. It also provides for the culpability of any person who causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to any person as provided by the provision.[25]

AUSTRALIA

According to the figures given by the Australian Bureau of Statistics’ (ABS) Personal Safety Survey (PSS), which is used extensively by domestic violence organizations, the last PSS was released in 2012 and was based on a survey group of about 17,000 men and women. In the 2012 PSS, about 33 per cent of people who had experienced domestic violence from a current partner in the last 12 months were men.

Domestic Violence

Domestic violence as defined by Family Law Act 1975[26][27]as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful”. The Act refers to acts of violence that occur between people who have, or have had, an intimate relationship in domestic settings. Domestic violence includes violence between partners of both sexes, including same-sex relationships. Although physical violence is commonly associated with domestic violence, other types of behaviors can include: sexual abuse; emotional abuse; stalking etc.

A report by Australian Institute of Health and Welfare in 2018 revealed that 1 in 6 women and 1 in 9 were physically or sexually abused before the age of 15. The same report revealed that 9,000 men employed homelessness services in 2016–17 due to domestic violence.[28]

In all jurisdictions, domestic violence includes assault/personal injury) and intentional damage to the protected person’s property, and threats of such behaviour. The ACT definition, however, includes conduct that is ‘harassing or offensive’ which may cover some situations of intimidation.[29]

Stalking

There is no offence of stalking, as such, under Commonwealth law. However, a court might grant an order or injunction for the protection of a person under s 68B or s114 of Family Law Act 1975 in connection with conduct that constitutes stalking.

Sections 60- 60E of the Crimes Act 1900[30] include stalking as an element of an offence. With the exception of s 60C, these are essentially assault provisions that include the act of stalking as an element of the assault. There is no definition of ‘stalk’ or ‘stalking’ in the Crimes Act.

Rape

Under the common law, rape was defined as carnal knowledge of a woman against her will and was subject to narrow and restrictive definitions of ‘sexual intercourse’. Statutory extensions and modifications to the common law crime of rape have been made in all jurisdictions to varying degrees,[31]but with resulting inconsistency across jurisdictions.[32]The penetrative sexual offence is no longer gender-specific and, despite some inconsistencies, generally includes penetration of the genitalia[33] by a penis, object, and part of a body or mouth.[34]

According to Crimes Act, Sexual Assault[35] means “A person who has sexual intercourse with another person without the consent of the other person.”

The Age of Consent in Australia is 16 years old. The age of consent is the minimum age at which an individual is considered legally old enough to consent to participation in sexual activity.

COMPARATIVE ANALYSIS

As per the study of authors on the rights of men in contrast to rights of women in India, USA & Australia, it can be analysed that Indian men are far from achieving  gender neutral laws whereas the US and Australian males enjoy equal rights and privileges as their female counterparts.

India has a very specific and limited approach while dealing with offences of rape, stalking, domestic violence etc., which results in unilateral paradigm of laws which only focuses to protect and prevent females. Unlike India, the other two countries have a wide and flexible approach towards these offences rendering them holistic in nature.

Indian law on Domestic Violence[36] does not recognise male victims and even presupposes that only a man can be a perpetrator against crime against women in the domestic sphere, thus there is lack of equivalent provisions for male victims of Domestic Violence. In contrary, the US & Australia not only recognises the violence against men by their intimate partners but also penalises the offensive domestic acts of their spouses or intimate partner.

In India, male rape and sexual assault is considered as a mockery of male victims whereas, it is dealt with strictly in US & Australia and stringent actions and punishments are prescribed under their respective statutes for the same. Sexual Offences in India are neglected when it comes to realisation and recognition of male victims as it clearly provides that only females can be the victims of rape etc. Inserting just the definition of penetration in the section of rape[37] strongly points out the gender biasness towards men as it presupposes that women can’t commit rape. However, according to the legislations of other two countries, the rape is considered as sexual assault with different degrees which does not discriminate between the victims and perpetrators.

The language used in the definition of stalking under the IPC[38]; renders it gender specific as it specifies that only a female can be stalked by a man, but it cannot be the other way round. Furthermore, the mere act of following or attempting to contact or monitoring the woman’s movements makes the man liable under the provision prescribed for stalking. This is not the case in US & Australia, as in both these countries the law related to stalking is gender neutral, thus ruling out the possibilities of any sort of illicit exploitation of men. In Australia, the crime of stalking does not have a distinct position under the Australian statutes and is considered part and parcel of the domestic violence provisions itself.  In US, the provisions of stalking have a serious outlook towards the stalkers as it provides for intention to kill, harass etc the victim (male/female).

Indian laws on trafficking not only include immoral trafficking but also contain provisions for prostitution. However, the Indian law fails to address and acknowledge the problems of male victims. The male prostitutes and trafficked men are not provided with any recreation and protection as the female victims. In the contrary, the US Code[39] does not highlight the problem of prostitution but it does contain several provisions for trafficking. Unlike India, the US Code addresses the problem of immoral servitude as a whole.

COMMENTS

The initiation of proceedings with respect to male victims are a farfetched thought since we don’t have any legislation protecting and preserving the dignity of a man at the grass root level. The autonomous bodies, which are the investigating authorities and police officers, act as a bridge between the Legislature and Judiciary while dealing with cases involving infringement of men’s rights.

As observed after interviewing the male victims of domestic violence and rape, the authors come to a conclusion that the police authorities are insufficient, and incapacitated while dealing with offences against male. Moreover, due to the lack of compassion towards the male victims, instead of providing the best recourse they often mock and neglect such cases.

In USA, although there are sufficient provisions[40] for male rape but they are not acknowledged, let alone appreciated while codifying state laws. Furthermore, the common code which runs across all states uniformly recognizes male rapes but the judiciary fails to implement them efficiently. It is pertinent to note that even after numerous provisions for safeguard of men’s right, the problem still persists as the cases go unreported and even the reported cases do not land in conviction. In order to curtail this issue, the FBI has recognized male rape and has formulated proper procedure for reporting of such cases.

The authors would like to suggest that before analyzing the present legislations and providing for the amendments, the first and foremost step should be to look into the efficient working and functioning of the investigating authorities (police, in context of India).The next step must be to form proper guidelines and teach the police officers to handle such cases and report them to the concerned authority as soon as possible (the authority which is yet to be established).

The Supreme Court in Rajesh Gupta v/s State of U.P.[41] provided certain guidelines for the arrest u/s 498A of IPC. The 2017 judgement provided some relief to the alleged offenders and marked a beginning in the evolution of men’s rights. However, this judgement was criticized by various feminist groups which led to the reversal of the order and the dissolution of Family Welfare Committee which was established to look into the case before the arrest was made u/s 498A of IPC. Therefore, it can be said that the feminist movement is overpowering the current legislation and putting a barricade in the development procedure of equal rights for both the sexes.

The Supreme Court laid down certain guidelines for protection of women against sexual harassment at workplace in the case of Vishakha v/s State of Rajasthan[42], which only protects women against sexual harassment at workplace and there have been no provisions for protection of men against sexual harassment at workplace, rendering the entire 2013 statute as gender biased. The authors, therefore, opine that either there should be corresponding legislations for men as well or, amends should be made to incorporate equal provisions for men as well, starting with removal of the word “women” from the statutes’ name like, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.[43]

The authors also observed that the laws of USA & Australia have a wider coverage area than those of Indian laws, which only protects and preserve the rights of women; neglecting those of men. The definitions as prescribed under certain statutes of both, USA & Australia are flexible enough that they cover both the sexes as both, victims as well as perpetrators. Thus, India must also try to widen certain definitions in order to include males as victims and females as perpetrators.

CONCLUSION

Legislative reform is only one of a number of mechanisms available to respond to problems arising from the response of the legal system to sexual assault. Nonetheless, to the extent that reform of the content of sexual offences can help ensure fairness through consistent expectations and treatment of sexual assault matters across jurisdictions.

Authors recommend that the definition of sexual intercourse or penetration should be broad and not gender-specific, and should be made more consistent across jurisdictions. The definition recommended below is in keeping with the shift away from historically gendered and restrictive definitions of sexual intercourse and is consistent with the definition in the Model Criminal Code.

 

NAME- ANYESA PAUL

INSTITUTE – AMITY INSTITUE OF ENGLISH STUDIES AND RESEARCH

DESIGNATION- PH.D SCHOLAR AND GRADUATE TEACHING ASSISTANT

GUIDE- DR.DIPANKAR SUKUL

E-MAIL- anweshapal96@yahoo.in

MOBILE NO- 9821637599

ABSTRACT

SEEKING AN ALTERNATIVE IDENTITY – QUESTIONING THE RIGHTS OF MEN AFTER THE PARTITION OF 1947

The tragedy of the partition encounter has given rise to fictional explorations with an attempt to define the inner turmoil and social complexes that plagued the subcontinent. The vast volume of partition fiction records the gruesome human disaster in the wake of partition. The incredible suffering and bewilderment of the people of the subcontinent has been a favorite theme of the Indian and the Pakistani writers. . Toba Tek Singh, Basti and East-West are some examples that give us an insight into the public frenzy, communal hatred, extreme disintegration and large scale sectarian violence. The transfer of Populations surrounding the Partition of India created at least 10 million refugees and resulted in at least one million deaths. The bounds of property loss were unknown and it could not talk about the devastation that took place. The creation of independent India and Pakistan came at a very high price that made the protagonists of these novels search for an alternative identity.

The Paper would talk about the main Protagonist of the above novels; seek their right to a happy life and abundance in their new lands. Throughout the Partition novels we see that the writers talk about the sufferings of women and children, we avoid the men who were also quite emotionally active during that time which made them question their identity and as such they are seen to strive for a better life. The current paper would address these protagonist who were looking for justice as they were homeless seeking a new identity. The characters are seen to undergo a transformation when they were helpless to see their near ones suffer. The Paper would question the rights to men’s happiness after the partition of 1947 took place.

SUB THEME- HOMELESNESS

 

 

 

SEEKING AN ALTERNATIVE IDENTITY – QUESTIONING THE RIGHTS OF MEN AFTER THE PARTITION OF 1947.

The creation of independent India and Pakistan in 1947 came at a heavy price. The communal violence between Muslims, Sikhs and Hindus led to the largest peacetime exchanges of population ever. The tragedy of the partition encounter has given rise to fictional explorations with an attempt to define the inner turmoil and social complexes that plagued the subcontinent. The vast volume of partition fiction records the gruesome human disaster in the wake of partition. The incredible suffering and bewilderment of the people of the subcontinent has been a favorite theme of the Indian and the Pakistani writers. Toba Tek Singh, Basti and East-West are some examples that attempt to give us an insight into the public frenzy, communal hatred, extreme disintegration and large scale sectarian violence. The novels have received worldwide recognition and admiration for documenting faithful representation of mutual hatred, mistrust and enormous upheavals culminating in the result of partition. Both the writers share the same theme of partition and post partition turbulence in their novels; they upheld their own unique mirrors to reflect upon the physical tortures and psychological outbursts that became the order of the day when the division of the subcontinent into Pakistan and India was announced. The novelists have provided human dimensions which bring to the event a sense of reality, horror and believability. Literature truly evokes the suffering of the innocent, whose pain is more universal and ultimately a vehicle of more honest reconciliation than political discourse. The transfer of Populations surrounding the Partition of India created at least 10 million refugees and resulted in at least one million deaths. The bounds of property loss were unknown and it could not talk about the devastation that took place. The creation of independent India and Pakistan came at a very high price that made the protagonists of these novels search for an alternative identity.

When we talk about the eminent writers of that period we can talk about writers like Sadat Hassan Manto, Intizar Hussain and Sunil Gangopadhay who not only dealt with the Partition violence but also narrated the events that occurred after the partition. Partition framed a way for the people of both the countries to believe in a single identity of either terming themselves as “Hindustanis” and “Pakistanis”. We see the characters of all these brilliant works undergo a form of transformation the moment they land up in their individual countries. A sense of grief, pain and loss accompanies them as they enter their new land. We have seen that people talk about the glory of the Partition War but we fail to understand the pain that these people underwent after the Partition as they crave for the essence of their motherland. The Partition narratives eventually talks about the history that the people cherish. They also talk about the valor and courage exhibited by the people of the nations to claim their independent states. In the process, we fail to understand the major transformation that all these characters undergo after the upheaval takes place and they are thrown to their respective lands. Partition Literature talks about the writers narrating about the sufferings of innocent woman and children which includes rapes, mass killing, tortures, abduction to bring the reader’s mind to the fact that they were the one to go through the utmost partition violence but we see that some of the writers fail to talk about the sufferings of men in the process or after the Partition.

When we talk about “Toba Tek Singh” we can sense that Sadat Hassan Manto brings before the audience a state where the “inmates of a lunatic asylum”[44] were to be transferred to their respective lands. The inmate’s fails to understand as to why they are being transferred to some other nation, the fact that they are a part of India does not leave their mind till the very end of the novel and as such they look confused and also develops bitter hatred towards their own nation and country people. The patients looks quite upset as we see that one lunatic claim, “ I want to live neither in Hindustan nor in Pakistan, I will live on this tree”[45] .This shows the unrest that strikes the minds of these people who claim to belong to their motherland. When we see the characters of Toba Tek Singh we find that he basically talks about the position of men in the context of Partition and also describes their discomfort. Their rights are brutally snatched away from them without their consent. The story further gets its voice when we see the main protagonist of the novel Bishan Singh who went mad at the day of the exchange of the lunatics as we see that the moment his turns come he looks for Toba Tek Singh but eventually lands up in a “no-man’s land” [46] in a flat face position . The land is termed as such because it neither belonged to the Hindus nor the Muslims. The respect that a lunatic developed for his country goes unnoticed by the people of that era. We see that with the normal people, the ones who are termed as lunatics served as a prey to the pangs of Partition. Sadat Hassan Manto is a brilliant writer who very beautifully projects the love of a countryman for his land and the respect that he bears for his Country. The sufferings of these lunatics are not recorded, their new identities were not welcomed by them instead they chose to deliver themselves to a plot where they can term themselves as orphans, who does not have any identity. The main protagonist was seldom seen to utter a line as “”Upri gur gur di annexe di be-dhiyana di mung di daal di Pakistan gornament.”[47], talks about his state of mind . In search of Toba Tek Singh, Bishan Singh lands up in a “no-man’s land”.

Basti by Intizar Hussain is another masterpiece which talks about the rights of men. Basti means “settlement”[48]and the story revolves round the main protagonist of the play named Zakir who further talks about lost love, disillusionment, tradition and family. Zakir is seen to settle down in Lahore as he talks about the future of the city. He is seen to talk a lot about his past city Rupnagar. We see Zakir as a young boy with an ideal childhood in the streets of peaceful town of Hindus and Muslims of India. Zakir’s life transforms when we his family moved to Pakistan. Not only we see the young boy struggling with his daily life in the new country but we also witness the uneasy and distressed adulthood of the same. It also plays an active part in the short war of 1971 accompanied by the street protests. Zakir is seen to talk about his love life many times when he wishes to be with her and remarks about the old days .We see the other characters of the novel equally participating in the emotional turmoil that is taking place in the same city when the locals of the city are seen to exchange a few words like “We are unlucky people”[49] while the other one claims “Was it good that Pakistan was created?”. We also see the young boys talk about their country as Afzal along with Zakir wants to decorate their new country with rose gardens and mango orchards but Zakir clears the air when he finally states NO to the question asked by his friend “Can’t we stop the Wars?”[50]. Basti is another example where Hussain talks about the unsatisfactory life accompanied by pain and distress that ran across the nation after Partition. We see the writers not only talk about their ways of understanding the pains of Partition but we also see them narrate the words of all the eminent people who couldn’t take the pangs of such an phenomenon. In other words we can sense that much of the population after the partition was highly offended by the decision taken by the higher authorities of creating an independent India and Pakistan and as such all the Protagonists of these brilliant works are seen to settle down for their forced Identity which was not cherished by them. The urge to get a glimpse of their own land is brilliantly given voice by all the writers of the Partition era.

When we talk about East-West by Sunil Gangopadhay, we see the same theme of dissatisfaction running around the nation when he unfolds his characters. East-West is a Bengali novel written during the time of Partition and it aims to look after the life of the civilians after the Partition. We see that it affected not only the people of those respective areas but also created a lot of problem to the different kinds of language generated at that point of time. The novel aims to talk about the different aspect of Partition on The People of “East” Pakistan. The country was divided according to its religious priority which created a major division of the Bengali culture and language. The “cultural”[51] identity of this race was taken from them especially in East Bengal where the “subjective inclination for a unified Bengali Culture”[52] remained and yet the propagators talked “such talk was out of place in East Pakistan”[53]. East –West talks about the large scale migration of the Bengali families who were not only thrown out of their lands but also the “landed gentry”[54] were impoverished. The concept of home becomes very predominant throughout the novel and especially gets its form by the introduction of the refugees from the “East-Bengal”. The central character of the novel Pratap sees his sister’s house taken over by a band of refugees, and his brother in law is also seen to die in the scuffle that led to that horrific event. He feels blocked as he sees that he cannot give any kind of justice to this massacre that happened before him. He claims that he is a refugee himself and as such there is no point of Protests. The theme of dispossession, impoverishment and upheaval becomes the major theme as the story progresses.

Pratap is also seen to suffer in his personal life when we see him  settling down for chicken instead of mutton to feed his kids, we also see him suffer a lot as he faces an economic sanction which  makes him buy “cheap” fish from the market in order to run his family. He stands as an example for all the other migrants who were highly dissatisfied with their lives and as such wished for a settlement where they can go back to their own land and get back their old life of satisfaction and contentment. We are introduced to the next character of the novel named Biswanath who never thought of money and claimed that money should only be thought of in dire need , is seen to strive hard for it as he comes down to a level where he looks for his day-to-day livelihood. Pratap is the main character who represents the perfect image of a well- cultured Bengali man but his class-consciousness kills him throughout the novel as he is seen to settle down for an ordinary life beyond his imaginations. Through the characters of Sunil Gangopadhay we can sense a high source of unsatisfactory life led by these men. They cherish for their old life which used to be full of comfort and satisfaction. The novel also talks about friendships and we also see the characters undergo a sense of loneliness as they miss their old friends. The novel is a clear representation of such sentiments which further talks about all the details related to the aftermaths of Partition.

We can term all these texts as a source or account of valid information shared with the reader’s which talks about the different kinds of reactions that these natives faced after they underwent the horror of Partition. Partition Literature clearly portrays the different kinds of problems these people suffered; the upheaval followed by the trauma thus leading the protagonists of the novels bear an identity which is totally new to them. Partition Literature portrays women to have suffered a lot of trauma and violence but the novels I talk about declares the fact that the rights of men were taken away from them. When they wanted to have a happy life with all the securities, we see that they suffer an absolute defeat where they do not believe in their existence and company. The right to happy life was brutally snatched away from these men and as such we see them to settle down for an alternative which makes them question their position as a man. The entire paper talks about these men striving to get their perfect life in the new land where they are left with their families. The writers of the Partition era shows us a series of events which makes us question humanity at first but also helps us to consider the position of men in the society where they are seen to strive for their rights to a happy life. People term woman and children as the worst sufferers of Partition, but we also see that not only men suffered when they saw their loved ones go through such a trauma but they were highly dissatisfied with their lives as they were not given their rights to happiness and freedom after the Partition of 1947. We can conclude by saying that “Justice for men’s right” was an old phenomenon which got its first voice during the time of Partition of India.

 

“JUSTICE FOR MEN’S RIGHTS; EMERGING ISSUES

& CONCERNS”

 

SUB-THEME: GENDER BIASED LAWS

TITLE OF THE PAPER: WHY SO UNJUST WITH MEN?

NAME OF THE AUTHOR: ANSHULI

B.B.A.LL.B (2nd Year)

NAME OF THE INSTITUTE: BANASTHALI VIDYAPITH

E-MAIL ADDRESS:  anshuli1303@gmail.com

POSTAL ADDRESS: Mr. Shashi Shekhar Sharma, Uma charan bose lane, Kharmanchak, Bhagalpur, Bihar, Pin code-812001

Why so unjust with men?

Abstract

We all talk about equal opportunity of all genders, but disappointingly when it comes to the Indian constitution, it is far from reality. True there was a time when there was need of making provisions for women’s safety but unfortunately some of these provisions are clearly iniquitous to men. For instance, only a man can be convicted of committing rape and the victim can only be a woman. In cases like sexual harassment, stalking etc. the executor is always assumed to be a man and the sufferer can only be a woman. In India, No one at this stage is looking into the matter that for an instance, there can be the situation where a man may also require the laws which are against men rapes, man’s sexual assault or the laws which are for men’s protection also. There are several laws which are in favor of female and their protection but these laws are somewhere and somehow acting against the males. In many situations, only the male member is considered to be guilty. These gender biased laws are a scandal to equality that we are skirmishing to achieve. There are several laws which are not in favor of men but no action is been taken against that. All have focused towards women safety and women protection and so sometimes the men’s have to suffer deliberately. If we see biologically then there is difference between female and male but other than that all are same a “human being” and the right to equality is provided to all human beings not only a single gender or else. Looking onto this, the author is going to discuss in details the laws which directly affect the gender equality by disregarding the rights of men, the laws which are to be called as “gender biased laws”. The paper will also discuss some methods or ideas that will suggest the policy measures to trim down gender discrimination by appropriate laws against men in India.

Keywords:  Section 375 and 376 of Indian penal code, Gender biasness, gender discrimination, etc.

 

INTRODUCTION

Gender biased laws are made for the benefit of the female gender. But this doesn’t mean that it limits the opportunities of the opposite sex. The main purpose of making these laws is to protect the female sex from any kind of ill treatment, injustice or cruelty which they often suffer during their lifetime and to punish the sinner. Article 15(3) of Indian constitution It states that nothing in this article shall prevent the state from making any special provision for women and children.[55]Now a question arises “what about men?” What if a man is in a similar problem that is been faced by a woman? Is there any law that supports men’s rights? In a case like Yusuf Abdul Aziz vs. State of Bombay[56], in 1951, one Mr. Yusuf Abdul Aziz, said before the Bombay high court that Section 497 of Indian penal code is unconstitutional as it works unequally between a man and a woman by making only the male member guilty for adultery. Similarly in case, Government of Andhra Pradesh vs. P.B Vijaykumar[57] where reservations are already made up to 30% for female gender. It was objected that the special provisions made for women are unlawful. And thus, causes inequity on basis of sex thus contradicting article 14 and article 15(1) which promotes equality.

Marriage is the coming together of two hearts; a marriage can remain successful if there is mutual trust, sense of understanding, love, affection and self sacrifice present in the couple. Once the structure is shaken the happy married life will be shattered into pieces. And if any one party files a wrong complain against the other party or his family all the qualities will be a waste and the married life will be shattered.  Under section 498 A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—

(a)any willful 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; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.[58]

A women and her parental family can charge husband and husband family members including all members of all age group. Anyone who is been charged in section 498 A can be arrested by the police without any initial investigation. Section 498 A and the dowry laws are now mostly been misused by the female sex. In such laws the burden of proof lies on the husband and husbands family members. The wife or her family member or any other social member can file a complaint against the husband or his family member for any kind of torture mentally or physically done to the wife.

Features of section 498 A of Indian Penal Code

  • The wrongdoer can be under arrest and send behind the bars without any warrant or inquiry.
  • Non-compoundable offence as the complaint cannot be withdrawn by the petitioner. And the chance of living together again diminishes.
  • The accused must appear in the court to request bail.

There are several reasons for the misuse of these laws. Some of the reasons may be due to low literacy rate in India. Many a time in the interest to get the monetary benefit many women are been forced by their family to file complaint against her husband. The literacy rate in India has a great influence on the misuse of the laws. There were many provisions made for the benefit of the female gender but it was not made against the male gender. It seems that the provisions for the protection of female have made the male gender to suffer. Fake Dowry charge, False Rape charge, False Domestic Violence charge, Fake Cruelty charge….and the list goes on….innumerable charges, innumerable sections of IPC. These are enough to destroy a person’s life, liberty, dignity, peace of mind and in some cases, livelihood.[59] People are now taking marriage as a contractual form rather than a religious sacrament. Due to the misuse of these laws many marriage comes to the end of the relationship, and many have already ended. And once the divorce takes place between the parties, we see that the small children are thrown to live with single parent either mother or father. And these have a great effect on the child’s overall development socially and morally. It has been observed that the children that live with single parent are mainly involved in illegal activities and they are less socially and morally well versed.

These laws were made to protect women from any kind of torture mentally or physically. But it has left a very bad taste because women’s not only uses these as there protection but also uses it for a weapon to harass there husband and family. So the misuse of these laws leads to a great negative impact on the society. The most familiar and intense exploitation a women can do to her husband and his family members is by making false charges of 498 A against her husband. There are many false cases where the court had found that these laws are been misused. Due to the misuse of 498-A lot of people including small children, old ladies and men are put behind the bars.[60] Due to this they have to suffer a lot physically and mentally. Like school going children leads to loss of their academics and sometimes also criminalizes their innocent minds. The laws are made equal for all. And all should be treated equally, as all are equal in the eyes of law. There should be some measures to provide remedy or say justice to the innocent, who is been falsely blamed. They should have the right to at least prove them, and chance to prove that they are innocent and have done nothing that has been reported. And children and old aged person should be provided with some grant.

There are some laws which are unfair towards men. Some of these laws are as follows:

  1. The father of the deceased doesn’t inherit property, but the mother does. – Under Hindu Succession Act of 1956, if the deceased has no will, the spouse, mother and children inherit the property belonging to the deceased. The father is only entitled if the deceased does not have a spouse, mother or children.[61]
  2. A boy is provided with maintenance only till he is 18, and a girl till she gets married. – Under the Hindu Adoption and Maintenance Act of 1956, it is the parent’s responsibility to a girl child’s maintenance till she decides to provide for herself or gets married.[62]
  3. Only a man is prosecuted for adultery – According to Section 497 of the Indian Penal Code, if the husband commits adultery with the wife of another man, he can be punished and legal proceedings can be conducted against him. But if the same is done by a woman, she cannot be punished; no legal proceedings can be conducted against her.
  4. Having sex with a girl with a promise to marry her if breaks, then the boy is called a rapist– If this happens there must be the consent of the girl, but then, Why only the boy is been made guilty of the act? According to the fourth point of Section 375 of the Indian Penal Code if a man has sex with a woman after promising marriage he can’t refuse with his promise and if he do so he will be considered as a rapist.
  5. A woman can file complaint without any evidence and throw her husband and his family member behind bars– It is totally fine to provide women with such provisions to protect themselves. But the thing that creates problem is that the misuse of the given provisions by the women. Let’s consider the number of reported false imprisonments.
  6. The punishment of sexual harassment for men is decided but what about a woman?– according to Section 354 A of the Indian penal code, a man can be punished with a 3 years of imprisonment or a fine for sexually harassing a woman, but there is no such laws for women.

Why so unfair, Indian constitution? By seeing some of the laws as stated above it is clearly seen that there is a biasness regarding gender in India. We should provide some justice to the male gender and give them the benefit of protecting themselves from any kind of wrong or false complaint. As we are aware of a increasing number of false cases filed by the women for men, now we can make some changes regarding the laws and make some changes regarding the benefit of both the gender. There are many cases, especially now a day’s relating to the harassment of men’s by the female colleges or female boss etc. These cases are now not given very much importance as it is the thinking that the chances of reality of this will be very low. Now a day it is a very important topic to be discussed. It is important to protect women from  any kind of  torture mentally or physically done by men. On the same time it is important to see that there is justice provided to both the parties. Right to be heard is been provided to every person. But why it is not followed in the above stated laws??

What do gender-neutral laws means?

Gender neutral laws means, all genders are equal in the eyes of law, either by explicitly stating every gender in law or by making the language of law gender neutral. For instance, under the POCSO Act, 2012, a child has been defined as “any person below the age of eighteen years,” without specifying any gender and using the word “any” denotes equality.[63]

Among the surplus of Indian laws, there are mostly gender specified laws related to women. Like for example Rape under section 375 in IPC        begins with “ a man is said to commit rape, if he…” it shows that they recognizes only a man as the wrongdoer and the women as a victim. So there is a need of equality of all gender. In western countries they follow gender neutral laws. All are treated equally and provided with a proper justice. In western countries women are also the executioner. And these all come into light only because it gets reported there. People have a broader view and they accept the facts that women can also be a perpetrator.

Can we follow gender-neutral laws?

Most of the other countries do not have a problem related to gender biasness. According to the situation prevailing in our country where there is male dominance, making law gender neutral will only add to the problem.

Rape, sexual harassment, domestic violence, custodial violence, adverse sex ratio, dowry-related murders of young brides, molestation are among the forms of violence faced by women in India.[64] In our mind it comes that if a women is arrested for some crime, it will be difficult to deal with them, their families with not financially support them to fight for litigation and if they are put behind bars for a long time their children will be neglected. So there may arise a lot of problem if we follow gender-neutral laws.

In favor

The Justice Verma Committee of 2012 favored gender neutral laws completely. Keeping in view the spirit of gender neutral laws, many changes and amendments were made in IPC, CrPC, and Evidence act. But it lasted for 58 days and was repealed and replaced by Criminal law (Amendment) Act 2013. Therefore, the current provisions stating stalking and sexual harassment become gender specific, where the man is the sole perpetrator and the women are the sole victims.[65] Any changes can be made only when there is a support of every member i.e. male, female. The women in the society should come and say that they are not higher in any intellect and therefore the laws should gender neutral. As women rights is been protected under Protection of Women from Domestic Violence Act, 2005. There should be laws to protect men rights.

Why domestic violence against men is not reported?

Most of the cases of domestic violence are not reported, so it is difficult to say the exact number of cases is actually there in the society. And it is more difficult to know that how many men are suffering from this type of violence. Most of the men do not report the violence done to them, due to the traditional gender role in society. The main reason for not reporting case is to admit or confess of falling victim to a woman. The other reason for the same could be the self esteem, full of masculine behavior, appearances and control of emotions. As it is known that, a man can control his emotions and feelings better than women. It would be harder as well as a matter of shame for men to disclose their suffering in a society where there is male dominance. This is the main reason to hide their feelings from the society. And this, not sharing of their feeling sometimes lead to their depression they start living in stress, loneliness and not able to share his feelings to anybody. And on the other hand there are not any proper laws made for men regarding these problems. Till there is a concept where males are considered to be perpetrator and women as a victim, the male victims will feel fear and uncomfortable reporting about domestic violence.

In India we hardly find any legislation that aims to protect men against domestic violence. Many other countries have laws for both men and women, so there is a gender neutral law and equality. In 2016, the Supreme Court Justices Korean Joseph and Rohinton F Nariman struck down the words, “adult male person” from Sec. 2(q) of the Domestic Violence Act, 2016. It was held that, “We, therefore, strike down the words ‘adult male’ before the word ‘person’ in Section 2(q), as these words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 Act,” This will include women as offenders from then onwards.[66]

In 2017, it was clear from a judgment in the court of Karnataka in case of Mohammed Zakir. The Court held, “If the said sub-section is read after deleting the expression ‘adult male’, it would appear that any person, whether male or female, aggrieved and alleging violation of the provisions of the Act could invoke the provisions under the Act. In that view of the matter, the petitioner’s complaint could not have been trashed on the ground that the Act does not contemplate provision for men and it could only be in respect of women”.[67]

The Supreme Court on 2nd July said that the laws are being misused by some women. The court prohibited police from arresting on basis of complaint. A proper procedure should be followed and investigation should be done after that only a person can be arrested.

CONCLUSION

We all know, since last two decades how the Section 498 A of IPC has been greatly misused making guiltless men and women to run into police station, look-ups and courts. And depriving a child from living a happy childhood. It is not that the laws for safety and security for women should not be made. The problem here arises is, the misuse of these laws. Many a times the life of a poor, wrongly accused person is distressed so badly that, the final decision they take is to commit suicide. Society is changing with time and so the values. There is a great need of making some changes in the legislation and try to provide equality to every gender.

Some measures that can be taken to overcome these kinds of matters are:

  • By not arresting before final judgment/order in case registered under section 498 A of IPC.
  • Some orders should be passed to stop random arrest of elderly people, small children, or pregnant sisters.
  • A strict action should be taken against those who file a wrong complaint. So that a fear of punishment can stop these false complains.
  • Some amendments is needed in many of the laws, so that the husbands and in-laws who are harassed can also file a complaint under an act.

We still need to modify many a things. And it should not be delayed as many innocents are being punished for doing nothing. A false report can spoil the life of that person against whom the complaint is filled. There is no doubt that we have to protect our society from the misuse of these laws. And this can happen if a correct measure is taken. And the person who file a false complain should be punished seriously so that no other person dares to do that again. Also just like women, men also deserve safeguard from close partner violence and cruelty, and also have a right of living a improved life as a men.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SUB-THEME  : “GENDER BIASED LAWS

TITLE OF THE PAPER: “ WHAT ABOUT MEN’S?”

AUTHOR :  ARTI AGARWAL (B.Com LLB)

SUB-AUTHOR : ARADHANA KUMARI (B.Com LLB)

UNIVERSITY: BANASTHALI VIDYAPITH

POSTAL ADDRESS: Aradhana Kumari (B.Com LLB) Room no. 79, Shri Shanta Grah, Banasthali Vidyapith, DIST- Tonk, PIN- 304022 Jaipur  Rajasthan.

E-MAIL: aradhana2697@gmail.com

: artia1033@gmail.com

CONTACT No. 7023567627, 9672275805

ABSTRACT

WHAT ABOUT THE MEN’S?

“ For a nation to become resilient, the citizens have to be empowered irrespective of their gender. We should all be part of the solution to end gender-based violence.”

Discrimination against Indian men is real and this is the matter of great concern. Not a single minister is ready to discuss about the same, be it Parliament, State Legislature or any public forum.

Yes, law for protection of women and their rights do exist, what about men..? Have we ever heard of any law protecting men’s right and dignity? I bet, we haven’t. It is the demand of time to come up with something, something that will help men to prove themselves that they are not culprit every time. There must be some law which should have strict action against women too.

Article 14 of The Constitution of India  talks about equality before law. India need really solid amendments in several laws in IPC and make them gender neutral. There are so many sections in IPC where the right of a men are betrayed. Like Section 375 where man can’t be raped. This law doesn’t care about consent and will of the man. Another Section 497 where only man is punishable for the offence of adultery. So, if wife cheats her husband, betray him and sleep with other man she will not be punishable. India has a strict law regarding dowry but if wife misuses anti-dowry law to harass husband and his family then there is no provision to punish her if it has been proved that accusation were false. If society says demand of dowry is wrong then it is also wrong to demand a groom having six digit salary and separate home.

Well, to be very true, even if the law comes into the Constitution, its mere existence wouldn’t be of much hell until and unless it is properly enforce and executed. Gender should not be considered for any legal decision, be it men be it women. Every one is equal and there should not be any special treatment for any existing human being.

INTRODUCTION

Nowadays violation of men’s rights has become a very common phenomenon though very few are ready to accept it. Unfortunately in a male dominated society, we are oppressed in many ways but that is a story untold or recognized as only taboo. Many people look at the top of society, to leaders in politics, business and the military and see men. They conclude, erroneously, that men rule the world. While some men dominate society it is not true that men generally dominate society. This is an example of the apex fallacy – looking at the most successful members of a group and judging the group by that standard.  What these people miss is that men also “dominate” at the bottom of society: majority of the homeless men performs the dirty, dangerous and difficult jobs that society relies upon.

Moreover, in the name of uplifting the vulnerable section of the society, namely women, different laws are enacted which eventually paved the way to the oppression of male members of the society. Many men are not even ready to accept it as it hurts their male ego. With the empowerment of women, feminism has arisen in our society in a negative way leading to an unacceptable imbalance between these two genders.

Violation of man’s rights is visible in two ways in our society. One is through legal way and another is social way. Since the liberation of our country, many laws are made in favour of women which are totally one sided. Recurrently it appeared on the newspaper that many women are committing suicide as her husband failed to provide her with dress or some other ornaments or she had an argument with her mother in laws or other family members. In this type of case usually a case of unnatural death should be filed. But in our country the common practice is to file a case under Section 306 of the Penal Code for abetting suicide. The problem is: none is ready to trust a man in the current society as there is a mind set up that husband is responsible for anything happens to his wife even though he has nothing to do with it. Moreover, even though the penal code is codified in 18th century it shows discrimination in favour of women. Section: 497 is a glowing example of it. It mainly deals with Adultery. It provides that if any man is found to have sexual intercourse with a woman who is presumed to be a wife of another, he will be guilt of an offence of adultery and will be punished with imprisonment which may extend to five years, or with fine, or with both. In such case the wife shall not be punished as an abettor. Point to be noted here is : though the intercourse is a consensual sex and has accomplished by

both party only male counterpart is held to be liable and the woman though committing serious breach of trust against her husband can get away without any punishment.

Another law is used to keep the male under pressure is the Dowry Prohibition Act 1961. It is often used to prevent a second marriage or to blackmail a person not to divorce his wife. Many times it is found that in order to harass a person 4-5 cases are given against him which include dower, maintenance custody bearing the cost of running etc. In these cases men become bankrupt. Another offence is also found where a group of perpetrators leaded by female mastermind target a wealthy male and get married to him. After 1-2 months the wife intentionally gives divorce and then claims the dower money. Later on they go for another big shot from whom they can cash in. There is no doubt that all these offences are only taking place because of the imbalance family and criminal law which are giving women an unfettered power to squeeze their male partner.

Recently a judgment passed by the Indian high court allowed a husband to divorce his wife if she forces him to be separate from his parents. This judgment shows how husbands are tortured and forced to leave their ailing parents for their wife. Emotional blackmailing, threat to commit suicide ,very often threat to file false case are given to the poor husband to split them from their parents and if he raises his voice, he is branded as an oppressor. Such a heinous act is so painful for both the parents and husband but often encouraged as sign of women liberation and in the name of women’s right. Family law is also an area where man’s right is totally ignored specially in case of custody. The courts seem to have a predetermined view that fathers cannot take good care of his children and it goes against the welfare of the children to deliver the custody to his father. Another alarming situation seems to be very imminent on the face of claiming the provision of marital rape by different women’s organization in our jurisdiction. If the reform is accepted, it would be a mortal blow for the men as it offers another easy opportunity for woman to bring false allegation of rape by her husband and thereby blackmailing him to bow to her decision.

 

“Are men not vulnerable? Do they not face discrimination? Can they not be victims”

“Just as you don’t have to be a woman to fight for women, similarly, you don’t have to be a man to fight for men. We don’t talk about atrocities against women because there are millions who are talking about it.”

Our fight at the moment is against the misuse of Section 498A of the Indian Penal Code which is a tough anti-dowry law.

India introduced Section 498A[68] in 1983 after a spate of dowry deaths in Delhi and elsewhere in the country. There were daily reports of new brides being burnt to death by their husbands and in-laws and the murders were often passed off as “kitchen accidents”.

“It was a law made with very noble intentions,” . “But a law that was made to save lives, has taken many lives.

Over the years, Section 498A has acquired the reputation of being the “most abused law in the history of Indian jurisprudence”.

With cases of divorce in India steadily rising, campaigners say that disgruntled women, aided by unscrupulous lawyers, routinely misuse the law to harass their husbands and their relatives.

It has also been questioned by the Supreme Court with one judge describing its misuse as “legal terrorism”, warning that it was “intended to be used as a shield and not as an assassin’s weapon”, and the National Commission for Women expressing concerns over its misuse.

As the law prescribes the immediate arrest of those named in a complaint, 2.7 million people, including 650,000 women and 7,700 children, were arrested between 1998 and 2015. The accused in some of the cases were as young as two years old and, in a particularly bizarre case, a two-month-old baby was hauled into a police station.

Perturbed by such reports, in July 2014, the Supreme Court ordered the police to follow a nine-point checklist before arresting anyone on a dowry complaint.

“The law has become a tool for extreme blackmail and extortion.”

We insist that laws must be gender neutral.

CRUELTY

 

The Section 498Aof the Indian Penal Code allowed the police to arrest the persons mentioned in the complaint without a warrant or without any investigation. The crime was non-bailable, so chances of getting a bail are low and husbands usually lost their jobs while in custody. On 2 July 2014, the Supreme Court of India in an order[69] stopped automatic arrests under the Section 498A. The Court directed the police to use the Section 41 of the Code of Criminal Procedure, 1973, which contains a checklist, to decide whether an arrest is necessary. The Court also stated that in all arrests the Magistrate must examine whether further detention was necessary. There is also no provision of withdrawing a complaint in case of reconciliation.

Of all arrests made the Indian Penal Code, 6% are made under the Section 498A. Of all crimes reported under the Indian Penal Code, 4.5% are filed under Section 498A, which is the highest barring theft and hurt. The police finds 9% to be false or under the wrong law. Of the cases that go to trial, only 15% result in conviction.

According to SIFF, these laws don’t follow conventional legal premises where a person is innocent until proven guilty. It has also pointed out that several of those who are arrested under this law are women themselves, i.e., female relatives of husbands.

 

DIVORCE AND CHILD CUSTODY LAW

 

The men’s rights activists in India claim that the divorce and child custody laws are biased against men. They say that this allows divorced wives to stop men from seeing their children for long periods of time. They have said that alimony should not be granted if the wife is the primary earner of the family and the law should see men capable of bringing up children.

In India, child custody is granted to the father only if the mother is mentally unstable or has left home leaving behind the child. At present, the matter related to custody in case of divorce is governed by two laws: Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956. But, both laws do not have any provisions for shared parenting or joint custody.

Under the Evidence Act, 1872, if a child is born within a marriage or within 280 days of dissolution of a marriage, then the child is considered legitimate and is entitled to child support and inheritance. At present, DNA paternity tests do not take precedence over this law. The courts may still choose to ignore the genetic evidence and ask a non-biological parent to pay for child support.

An organization named Children’s Rights Initiative for Shared Parenting (CRISP) has demanded better child access laws and has called the current custodial laws gender-biased. It has demanded amendments to the Guardians and Wards Act be amended to make shared parenting mandatory.

Swarup Sarkar of Save Family Foundation has speculated that now two out of three Indian couples actively share parenting. Kumar Jahagirdar, President of CRISP, has noted a growth in men who are the primary caregivers in the family.

DOMESTIC VIOLENCE

The literal meaning of the “Domestic Violence” is any violent or aggressive behavior of any person within the home as the word “domestic” dictionary meaning is relating to a running of a home or to family relation. Basically from the ages domestic violence has been committed against women but in today’s scenario men can also file for domestic violence which can come under the category of domestic abuse, family violence arising out of relationship such as marriage, family members, family friends, etc. and it can be in various forms such as physical aggressions, sexual abuse, emotional abuses, etc. Domestic violence arises when one intimate partner uses physical force, violence, coercion, threat, intimidation, isolation or emotional, sexual or economic abuse to maintain power and control over the other intimate person. There is no such physical act which characterizes domestic violence but it encompasses behaviors of abusing, false imprisonment, sexual abuse, etc. This form of violence is very common in India. But more cases of domestic violence is registered against men and women are victim. To prevent these atrocities against women at International and National level many efforts are being made so that these types of crimes can be controlled. The entire focus of domestic violence is on women as it  perceive notion that definitely men will be the perpetrator and women will be victim but the domestic violence against men is also increasing gradually in India. The supremacy of men in the society makes everyone believe that they are not vulnerable to domestic violence.

The problem arises in the interpretation of the word “feminism”. Generally, the word “feminism” means having equal rights for women as the men has and there should be no gender biasness. But today, feminism become all about woman superiority or women are superior to men and somehow competing with men in each sense to be in higher positions than him. Females should understand the true sense of word which is neither men nor women is superior but both should be equal and walk hand in hand. The change can be started by women of the society only as you can see in the case of the alimony issue, had a woman stood out and said to the man, we don’t need your money we are equal. That is what equality is for. An equal woman would have said don’t see us differently, we are just like how the men are. So, the beginning should be from women in the society to come forward and say that we are not at all superior in any sense. Therefore, the laws should be gender neutral in the case of Domestic Violence in India as Women rights has been protected in Protection of Women from Domestic Violence Act, 2005. Similarly, there should be law were men rights should be protected under the ambit of law.

According to men’s rights activists, the incidence of domestic violence against men in recent years has increased. The activists say that many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal.Two groups, the Save Indian Family Foundation (SIFF) and the Indian Social Awareness and Activism Forum (INSAAF), have demanded inclusion of men’s issues in the National Family Health Survey (NFHS) conducted by the Ministry of Health and Family Welfare to allow a better picture of the situation to emerge.

Marital Status of Suicide Victims in 2014
Marital status Male Female Transgender
Unmarried 17999 9820 6
Married 59744 27064 0
Widowed/Widower 1410 1304 0
Divorced 551 417 0
Separated 599 316 1
Others 5159 2339 6
Status not known 3367 1261 3
Total 89129 42521 16

SUICIDE

Save Indian Family Foundation (SIFF) has claimed that the suicide rate of married men is almost twice that of women, due to them being “unable to withstand verbal, emotional, economic and physical abuse” from their wives. SIFF has pointed to the National Crime Records Bureau (NCRB) data to show that suicide in married men is much higher than in married women.

Mithun Kumar, a researcher at SIFF, has said that police don’t take any action even if the suicide note of a man states that he was tortured by his wife and in-laws, but in case of a woman’s suicide her husband’s family is taken into custody without investigation. However, in a 2012 report published by the Million Death Study researchers, it was stated that since attempting suicide in India was a crime until 2014, suicides are under-reported, especially suicides of young married women. Because in case of the suicide of a married women, usually the husband and his family are held responsible if the suicide has occurs within seven years of marriage. Sometimes suicides are mis-categorised as accident deaths.

SEXUAL HARASSMENT

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is not gender neutral and applies to the protection of women only. Rajesh Vakahria, a member of SIFF, has pointed out the bill was originally gender neutral until Ministry of Women and Child Development and some NGOs intervened and changed the name. He said that it was an outdated concept to consider that only women suffer from sexual harassment.

According to 2010 survey[70], conducted by Economic Times synovate, “men are as vulnerable to sexual harassment as women” in India.

Khasi tribe

The Khasi tribe in Meghalaya state is matrilinear. The children take the mother’s surname, the sons have no rights to property, and a family without an heir usually adopts a girl. After marriage, a man moves into his wife’s house. Their way of life is protected under the Khasi Social Custom of Lineage Act of 1997. In 1990, the men in this tribe started a men’s liberation movement called Syngkhong Rympei Thymmai (Home Hearth Restructured). A previous movement started in the early 1960s died out due to lack of support. The current movement claims to have 2,000 members. According to them, due to a lack of responsibility or sense of purpose, boys are dropping out of schools, men are resorting to drugs and alcohol and dying before reaching middle age. The movement seeks, among other things, to have children take their fathers’ names and to end the system of property inheritance that favours female offspring.

CONCLUSION

Society is changing with time and so are the values. Men has started facing torture and harassment by women/spouse so the time has come to address their issue and problems as a social issue and develop appropriate strategies and interventions to cure this problem. They are no longer stronger than women now, but women come at the same footing as the men are.

“A gender-equal society would be one where the word ‘gender’ does not exist: where everyone can be themselves.” -Gloria Steinem

The Justice Verma Committee Report of 2012 has underlined the need of India to recognize different sexual orientations and recommended inclusion of transgender along with other genders, i.e. men and women while drafting gender-neutral laws. “However each of these requires to be codified distinctly and separately as victims and not clubbed together in a gender-neutral term, ‘person’,” said Vrinda Grover, a lawyer and a human right activist. The female dominated laws can be terminated only if, men as well as women in India understand equality. It’s possible only when their voice which will sort out this issue. It’s true that women were sexually harassed, it’s true that they were man-handled, subjected to dowry, etc . But in today’s scenario the men also face sexual harassment and domestic violence by their spouse, so the laws need to be changed as the society is progressing. “Crime has no gender and neither should our laws. Women commit crime for the same reasons that men do. The law does not and should not distinguish between criminals and every person who has committed an offence is liable to punishment under the Code,”

THE LAWS SHOULD BE GENDER NEUTRAL The meaning of gender neutral laws is that all genders are equal in the eyes of law, either by explicitly mention that every gender in law or by making the language of the law gender neutral. For example- under the POSCO Act, 2012 a child has been defined as “any person below the age of 18 years” in the Act there is no specification of gender and the word ‘any’ denotes the equality to all genders.

A men’s right movement (MRM) is now the demand of time .

 

MEN’S LIFE ISSUES IN INDIAN SCENARIO AN ANALYSIS REVIEW REPORT.

SURUCHI SHARMA  MSW, MAGD, CSWCJS

  1. S.K CHAKARBARTI

A.I.I.M.S NEW DELHI

DELHI UNIVERSITY , DELHI

INDIA.

ABSTRACT

The movement notes several issues as too genderized or with a bias against men in India. Men’s rights activists claim that anti-dowry laws in India are frequently being misused to harass and extort husbands, and attributed this to the high suicide rate among married men in India[2], which is almost twice that of women.They claim that the divorce and child custody laws are biased against men. According to them, the frequency of domestic violence against men has increased in recent years, and that many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal. Some men’s rights activists also consider rape reporting laws and sexual harassment laws in India to be unfair to men.

KEYWORDS : International Men’s Day ,  ATM , IPC , SIFF , INSAAF , NFHS.

The men’s rights movement is notably anti-feminist and made up of a variety of groups and individuals who focus on numerous social issues (including family law, parenting, reproduction, domestic violence against men and opposition to circumcision) and government services (including education, compulsory military …

The men’s rights movement in India is composed of various men’s rights organisations in India. Proponents of the movement support the introduction of gender-neutral legislation and repeal of laws that they consider are biased against men[1].

“International Men’s Day” is celebrated every year on 19th of November to mark pride and respect of men. Save India family is instrumental behind the inception of Men’s Day celebration, a lesser known event not keenly observed. However, it’s gradually gaining shape and gradually building reputation across the country. This year it’s being celebrated in 25 States and 50 Cities of the Country.

“International Men’s Day” A stunner which leaves most of us with thinking hats whether such a day exists. True to its words incidentally it exists and where some are elated others are astound and many bewildered. A celebration of “Men-hood”, a thanksgiving day to the men who exist for the existence of society and establish peace and harmony. Relentless services men offers in their lifetime, recognize the die hard efforts of selfless contributions made by them. It’s a reminisce of men’s rights which is inconspicuous. This is also to highlight society of its responsibilities towards men being abdicated.

Men’s right activists across the country observe this day as “Diwali” for Men. In present regime of enlightened activism and women empowerment, focus on human rights has been shifted to women’s right. Male role in highlighting the agony of women can never be ignored, however, here lies a catch where gender issues of women have been highlighted with utmost importance “Men’s rights” is subjugated.

Objective: To know About Men’s Life In Indian Scenario.

The movement notes several issues as too genderized or with a bias against men in India. Men’s rights activists claim that anti-dowry laws in India are frequently being misused to harass and extort husbands, and attributed this to the high suicide rate among married men in India[2], which is almost twice that of women.They claim that the divorce and child custody laws are biased against men. According to them, the frequency of domestic violence against men has increased in recent years, and that many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal. Some men’s rights activists also consider rape reporting laws and sexual harassment laws in India to be unfair to men.

1988–2005

The Indian men’s rights movement was started in 1988 in Delhi by Supreme Court advocate Ram Prakash Chugh to handle psychological abuse perpetrated by wives and false claims of dowry harassment by wives. The movement began as an organisation called “Society for Prevention of Cruelty to Husbands.”[3][4] Chugh himself faced problems in his marriage.[5] In 1996, the Purush Hakka Sanrakshan Samiti (Men’s Rights Preservation Society) was formed by Patil to help husbands falsely imprisoned in dowry cases and to help avoid divorces by counseling couples.[6] Sangyabalya, a helpline for husbands and families harassed by anti-dowry laws, was started in June 2003 by Arun Murthy in Bangalore. He started the helpline after his sister-in-law filed a dowry harassment case against his younger brother and his entire family was implicated.[7][8] “Save Indian Family” was founded on 9 March 2005 by the unification of a number of family’s rights organisations across India.[9] On 19 November 2007, the “Save Indian Family Foundation” (SIFF) celebrated International Men’s Day for the first time in India.[10][11]

2015–present

In August 2015, Amit Deshpande, one of the pioneers in India’s Men’s Rights Movement, delivered a speech at a TEDx event on the need for Men’s Rights and how men are victims of general social discourse of male-hatred, male-mocking or ‘Misandry’. It attempted to highlight the discrimination Indian men face, how patriarchy has been oppressive to them and questioned the stereotypes associated with sexual abuse, domestic violence and other such issues in which women are automatically assumed to be victims and men the assaulter. The talk urged everyone to shift the discussion to a point from where it is possible to see both sides objectively and not perceptively.[36]

In December 2015, the Mumbai-based Vaastav Foundation released a calendar called a “Malendar” marking male oriented days such as Father’s Day and International Men’s Day. Amit Deshpande the founder of Vaastav Foundation said that they were trying to raise awareness towards these days through positive images of men.[37]

During the 2016 Mumbai Marathon, about 150 men from Vaastav Foundation participated while dressed as ATMs. Amit Deshpande the founder of Vaastav Foundation said, “A man is forced to be an ATM for his family and if he fails to protect his wife or provide for her, he is immediately accused of mistreating her.” One of the most notable placards visible during the event read “Until men learn to express their pain, every story will always portray women as victims.” The participation with man dressed as ATM, the first of its kind, received coverage by the media worldwide.[38]

In 2017, the participation of Vaastav Foundation in Mumbai Marathon was grander with participation in larger numbers and with much bigger prop of a snake which they referred to it as a ‘snake of misandry that gobbles up innocent men’. The larger than life size snake had text of misused gender-discriminative criminal laws (namely anti-dowry laws, molestation, rape, section 377 of IPC and maintenance & alimony laws) on one side and the text of most concerning social & criminal issues faced by boys & men (viz. child-labour, boy’s education, male suicides, domestic violence on men, male rape and patriarchal burdens of being default protectors & providers) on the other side.

While displaying banners with text “Patriarchy Enslaves Men” and shouting slogans that meant “Would you marry? Would you go to prison?”, the activists equated marriage with entrapment. Their participation was widely covered by regional & national print & electronic media.

Issues

Anti-dowry laws

Main article: Dowry system in India

The men’s rights activists claim that the anti-dowry laws are being frequently misused to harass and extort husbands.[39][40][41] The high rate of suicide among married men in India is also attributed to harassment under these laws by the activists.[42] The practice of giving dowry was first criminalised in 1961 under the Dowry Prohibition Act, 1961 and later the Section 498A of the Indian Penal Code was introduced in 1983.[40] The Section 498A of the Indian Penal Code which deals with cruelty to a wife states that:

Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

For the purposes of this section, “cruelty” means:

(a) 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; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.[43]

Divorce and child custody laws :

The men’s rights activists in India claim that the divorce and child custody laws are biased against men.They say that this allows divorced wives to stop men from seeing their children for long periods of time.They have said that alimony should not be granted if the wife is the primary earner of the family and the law should see men capable of bringing up children.

In India, child custody is granted to the father only if the mother is mentally unstable or has left home leaving behind the child.At present, the matter custody in case of divorce is governed by two laws: Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956. But, both laws do not have any provisions for shared parenting or joint custody.

Proposed laws Marriage Laws (Amendment) Bill, 2010 :

In 2010, a proposed amendment to the Hindu Marriage Act would allow courts to decide compensation to wife and children from the husband’s inherited and inheritable property. The bill has provision for “irretrievable breakdown” of marriage where both parties must have lived apart for three years before filing for divorce. The bill would also allow the wife to oppose the dissolution of a marriage if it would leave her in financial hardship.

The SIFF protested against the 2010 amendment. According to Rajesh Vakharia, president of SIFF, this bill would encourage divorce and be costly to husbands, as they would have to part with their assets. He called the bill a regressive move, and stated that it jeopardizes the financial and social security of a man.He has pointed out that as most men marry after becoming financially secure, the possibility of losing their wealth and property would discourage men from marriage and feed the gynophobia in the society.

Domestic violence :

According to men’s rights activists, the incidence of domestic violence against men in recent years has increased. The activists say that many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal. Two groups, the Save Indian Family Foundation (SIFF) and the Indian Social Awareness and Activism Forum (INSAAF), have demanded inclusion of men’s issues in the National Family Health Survey (NFHS) conducted by the Ministry of Health and Family Welfare to allow a better picture of the situation to emerge.

Rape reporting laws :

Between 2001 and 2012, the number of reported rape cases rose from 16,075 to 24,923, however the conviction rate fell from 40.8 percent to 24.2 percent Some men’s rights activists point to the low conviction rates and claim that the lack of a penalty for falsely reporting rape has encouraged false cases.However, compared with other countries like Sweden, UK and France, India has a much higher conviction rate.

Suicide :

Marital Status of Suicide Victims in 2014[120]

Marital status   Male    Female Transgender

Unmarried       17999  9820    6

Married            59744  27064  0

Widowed/Widower      1410    1304    0

Divorced          551      417      0

Separated         599      316      1

Others  5159    2339    6

Status not known         3367    1261    3

Total    89129  42521  16

Save Indian Family Foundation (SIFF) has claimed that the suicide rate of married men is almost twice that of women, due to them being “unable to withstand verbal, emotional, economic and physical abuse” from their wives.SIFF has pointed to the National Crime Records Bureau (NCRB) data to show that suicide in married men is much higher than in married women.[121][122] Kumar V. Jahgirdar, president of Child Rights Initiative for Shared Parenting (CRISP), has attributed the suicides among married men on family stress.

Sexual harassment laws :

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is not gender neutral and applies to the protection of women only.[125] Rajesh Vakahria, a member of SIFF, has pointed out the bill was originally gender neutral until Ministry of Women and Child Development and some NGOs intervened and changed the name. He said that it was an outdated concept to consider that only women suffer from sexual harassment.[126]

Example Khasi tribe

The Khasi tribe in Meghalaya state is matrilinear. The children take the mother’s surname, the sons have no rights to property, and a family without an heir usually adopts a girl. After marriage, a man moves into his wife’s house. Their way of life is protected under the Khasi Social Custom of Lineage Act of 1997. In 1990, the men in this tribe started a men’s liberation movement called Syngkhong Rympei Thymmai (Home Hearth Restructured). A previous movement started in the early 1960s died out due to lack of support. The current movement claims to have 2,000 members. According to them, due to a lack of responsibility or sense of purpose, boys are dropping out of schools, men are resorting to drugs and alcohol and dying before reaching middle age.The movement seeks, among other things, to have children take their fathers’ names and to end the system of property inheritance that favours female offspring.

Organisations List In India :

Save Indian Family Foundation

Save Indian Family-Karnataka : http://www.sifkarnataka.org/

Save Indian Family : http://www.saveindianfamily.in/

All India Front Against Persecution by Wives (Akhil Bharatiya Patni Atyachar Virodhi Morcha)[5]

MyNation

Child’s Right and Family Welfare

Purush Hakka Sanrakshan Samiti

Gender Human Rights Society

Save Family Foundation

Confidare Research: A Bangalore-based organisation.

Men’s Rights Association

Conclusion :

A popular canard “men cannot be violated” and even if it’s assumed to be true it rarely happens. This theory is strongly imbibed in the society that voice of male victim is largely ignored. Indian Society has undergone serious metamorphosis. The male role is often maligned in the garb of patriarchy has left male issues subject to denial. The sensitization on female issues has government backing in edifying the society. Discomfiture of men is left unheard.

A serious question arises is “Do men need empowerment? Any failure of a relationship or professional life mortifies men. They are dumbfounded to be credited of this ignominy. India with a population of 65 crore men rescinds that men cannot face “cruelty”. As per UN survey, India is the world’s numero uno in the suicide of men and 5th highest state as per suicide rate. The exodus of male suicide is obstreperous leaving suicide note every 6 min in the nation. Married men’s progression to suicide has been exponential in past decade and has grossed to a whopping rate of a suicide every 8 min.

The essence of bias in lawmakers takes a preposterous assumption that man alone is responsible for the fragmenting family values. “Cruelty by husband on wife” defines highly misused law of IPC. Under similar circumstances what may be counted as cruelty by men on women it doesn’t seem to be the case the other way round if the same repertoire is performed by opposite sex. More than 2 lakh innocent men are thrown behind bars each year and 50 thousand women are pushed behind bars.

The denial of domestic violence on men is another feather in the cap. Where a misdemeanor is expressed as a felony for women a felony for men appears to a be a misdemeanor. The canard falls flat in the weighing scale of judiciary however innocent are victimized.

The sexual exploitation of men/male child has no takers either. Where a sexual violation of men cannot be challenged in the court of law as it does not have a provision, so are the cases of cruelty by wife on husband and domestic violence by women on men. Studies of women and child welfare ministry and UN both establish that sexual violation of the male child is 15% higher than the female child. 70% children fail to express their melancholy out of fear or embarrassment.

The legal apathy is such that a man finds himself handcuffed in front of gender biased laws and virtually has no representation or escape route to come out victorious from the web of biased laws unhurt. Less than 5% of fathers can secure a child custody in a failed relationship again adding vows to a father.

The bias is not just limited to judiciary it exists on the basic psyche of individuals, the general misconception assumes male as perpetrator and female as victims. Under the said frame the issues of men have been locked in the epitaph.

The positive role of men as a family builder a pillar of society a protector and provider and his relentless services is subdued. India breeds 17.5% of the population worldwide one of the safest nation for women, although misrepresented otherwise. However, the bias in society as a whole has left Indian men to think it’s high time to empower the male fraternity to address the growing imbalance will obfuscate the position of men as a whole.

“Men’s right are human rights” and marginalization of men can be addressed with equal sensitivity if not less as women issues. A government initiative of men’s ministry is a decade old demand, however, apathy towards male issues has not benefited the cause. This International “Men’s day” let’s raise a pledge, “Why not empower Men?”

 

Legal and constitutional safeguards against gender inequality in India: A Critical analysis”

 

Author: TalatAnjum

Designation: Research Scholar

Institution: Aligarh Muslim University, Aligarh.

Add: Room No-D116, Begum Sultan Jahan Hostel, Firdous Nagar, AMU, Aligarh.

Email: 786talat.anjum@gmail.com

Mobile No: +9457614836

‘Legal and constitutional safeguards against gender inequality in India:

A critical analysis’

Abstract

TalatAnjum*

“The soul has no Gender”

Clarissa Pinkola Estes

 

The phenomenon of Gender Inequality have been prevalent since time immemorial. Gender Inequality and Sex determination are closely related to each other. The reality of gender inequality in India is very complex and diversified, because it exists in every field like education, employment opportunities, income, health, cultural issues, social issues, economic issues etc. A number of cases have been registered and recorded against the sexual, physical or mental abuse of male. It is not only females who face discrimination but males can face a similar form of oppression. Many females take the advantages of the rights given to her. False abuse the rights given to them and register false cases against the husband and his relatives. We have laws but we are not implementing them strictly.So the number is increasing day by day. Though the Indian constitution provides equal rights and privileges for men and women and makes equal provision to improve their position and to enjoy the rights and opportunities guaranteed to them.

As on today it is a serious problem and it directly effects the sex imbalance in the country. Therefore, doing injustice to one section of society and justice to other is not acceptable in the country like India. Hence, a voice should be raised against the sexual abuse of both men and women and inequality should be eliminated from our country.Keeping in this view there is a need to do some research and identify the causes for gender inequality and make some concrete suggestions for effective implementation of laws and their loopholes. In this process, the article not only discusses the extent, causes and consequences of the problem, but also suggests some policy measures to reduce gender inequality in India.

Keywords:  Gender Inequality, Empowerment, Exploitation, Sex determination.

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*TalatAnjum-(Research Scholar) Department of Law, Aligarh Muslim University, Aligarh.

Email-786talat.anjum@gmail.com

Contact-7248750025

‘Legal and constitutional safeguards against gender inequality in India:

A critical analysis’

TalatAnjum

Introduction

“Achieving gender equality requires the engagement of women and men, girls and boys. It is everyone’s responsibility”

Ban Ki-moon

Gender Equality is not a women’s issue. It’s a Human issue. It affects us all.The phenomenon of Gender Inequality have been prevalent since time immemorial. There are various proofs that millions of selective deaths throughout the history. In the age knowledge Gender-based inequalities in India translate into greater importance being placed on the health and empowerment of males. Gender Inequality and Sex determination are closely related to each other. The main reason being the desire for a male child and low value associated with the birth of female child. The bias against female child in India is related to the fact that sons are called the income providers/supporters to the family. Love for male child is so much. From times immemorial daughters are being killed at birth or before birth but unfortunately if she is alive we find various ways to discriminate her throughout her life.

Our religious beliefs make women Goddess but we fail to recognize her as human being. We worship Goddess but we exploit girl child. Traditional and Patriarchal norms have relegated women to secondary status within the household and also at workplace. This drastically effects women’s health, financial status, education and political involvement. Women are commonly married at young age and quickly became mothers and are then burdened by stringent and financial responsibilities. They are typically malnourished as they are last members in the household to eat and the last to receive medical aid/attention. We are the society of people with double standards as far as our attitude towards women in concerned. Our thoughts and preaching are different from actions. Keeping in this view there is a need to do some research and identify the causes for gender inequality and make some concrete suggestions for effective implementation of laws and their loopholes thereby leading to the betterment of women in the society.

 

Gender Inequality:- ‘Gender’ is a socio-cultural term referring socially defined roles and behaviors assigned to ‘males’ and ‘females’ in a given society; whereas, the term ‘sex’ is a biological and physiological phenomenon which defines man and woman. In its social, historical and cultural aspects, gender is a function of power relationship between men and women where men are considered superior to women. Therefore, gender may be understood as a man-made concept, while ‘sex’ is natural or biological characteristics of human beings.

“Gender Inequality”, in simple words, may be defined as discrimination against women based on their sex. Women are traditionally considered by the society as weaker sex. She has been accorded a subordinate position to men. She is exploited, degraded, violated and discriminated both in our homes and in outside world. This peculiar type of discrimination against women is prevalent everywhere in the world and more so in Indian society.

Types of Gender Inequality: – According to Nobel Literature Prof. AmartyaSen[71], there are seven types of gender inequalities at present in India. Here is a brief explanation of all the types of gender inequality.

1) Mortality Inequality:- In this, Inequality between women and men directly involves matters of life and death, and takes the brutal form of unusually high mortality rates for women and a consequent preponderance of men in the total population, as opposed to the preponderance of women found in societies with little or no gender bias in health care and nutrition.

2) Natality Inequality: – In this kind of inequality a preference is given to boys over girls. It is ardent in many of the male dominated societies and these manifests in the form of parents wanting their newborn to be a boy rather than a girl. With the availability of modern techniques to determine the gender of foetus, sex selective abortions has become common in India.

3) Employment Inequality: – In terms of employment as well as promotion at work women often face greater handicap than men. This is clearly exemplified as men getting priorities in getting better work opportunities and pay scale than their female counterparts.

4) Ownership Inequality: – In many societies ownership of property can also be very unequal. Since ages the traditional property rights have favored men in the most parts of India. The absence of claims to property can not only reduce the voice of women, but also make it harder for women to enter and flourish in commercial, economic and even some social activities[72].

5) Special Opportunity Inequality: – Even when there is little difference in basic facilities including schooling, the opportunities of higher education may be far fewer for young women than young men. Indeed, gender biasness in higher education and professional training can be observed in India.

6) Basic-Facility Inequality: – Even when demographic characteristics do not show much or any anti-female bias, there are other ways in which women can have less than a square deal.

7) Household inequality: – There are often enough, basic inequalities in gender relations within the family or the household, which can take many different forms. Even in cases in which there are no overt signs of anti-female bias in, say, survival or son-preference or education, or even in promotion to higher executive positions, the family arrangements can be quite unequal in terms of sharing the burden of housework and child care.

Gender equality is the measurable equal representation of women and men. Gender inequality refers to unequal treatment or perceptions of individuals based on their gender. Though gender discrimination and sexism refers to beliefs and attitude in relation to the respective gender of a person. Such beliefs and attitudes are of a social nature and do not normally carry any legal consequences. Sex discrimination on the other hand, may have legal consequences. Socially, sexual differences have been used to justify different role for man and women. The reality of gender inequality in India is very complex and diversified, because it is present in many ways, fields and classes like education and employment opportunities, where mostly preference given to men.

Major Causes of Gender Inequality in India:-

 

Attaining gender justice is not an easy task in India. From time immemorial, a girl child has been considered as an unwanted entity and a burden whom the parents would not mind doing away with. Discrimination against women begins even before her birth. The gruesome evils of female feticide and infanticide prove how brutal the world could be to women. Traditional value system, low level of literacy, more house hold responsibilities lack of awareness, non-availability of proper guidance, low mobility, lack of self-confidence family discouragement and advanced science and technology are some of the factors responsible to create gender disparity in our society. The most important causes of gender disparity such as poverty, illiteracy, unemployment, social customs, belief and anti-female attitude and lack of awareness of women etc.

Legal and Constitutional Safeguards against Gender Inequality-

 

Our Constitution, the fountain head of all laws and the Organic law of the land, recognizes equality of the sexes and prohibits discrimination on the basis of sex. It also provides legislation to be made to confer more rights on women by making special provisions.The Preamble of the Constitution is “A key to open the mind of the makers of the constitution which may show the general purposes for which they made the Constitution.”[73] It declares the rights and freedoms which the people of India intended to secure to all citizens. The Preamble begins with the words “We, the People of India………..” which includes men and women of all religion, race, cast, sex etc. It wishes to render “Equality of status and of opportunity” to every man and woman. The Preamble again assures “Dignity of individuals” which includes the dignity of women. On the basis of the Preamble, several important enactments have been brought into operation, pertaining to every walk of life— family, succession, guardianship and employment — which aim at providing and protecting the status, rights and dignity of women.

Fundamental Rights Guaranteed under the Constitution:—

 

Part III of the Constitution, consisting of Articles 12 to 35, relating to Fundamental Rights, is considered the ‘heart’ of the Constitution. The fundamental rights are regarded as fundamental because they are most essential for the attainment by the individual of his full intellectual, moral and spiritual status. As per Justice P. N. Bhagwati says:

“These fundamental rights represent the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which every human being can develop his personality to the fullest extent.”[74]

Article 14 Equality before Law:-

Article 14 guarantees to every person the right to equality before the law or the equal protection of the laws within the territory of India. Though Article 14 permits reasonable classification, yet classification based on sex is not permissible.[75] Payment of equal pay for equal work has also been justified under Article 14. Unequal pay for materially equal work cannot be justified on the basis of an artificial classification between the two kinds of work and employment.[76] In the case of Mackinnon Mackenzie and Co. Ltd. v. Andrey (D)’ Casta[77], the question involved was getting of equal pay for equal work. Their Lordships also expressed the view that discrimination between male stenographers and lady stenographers was only on the ground of sex and that being not permissible. Article 14 has also been invoked to prohibit sexual harassment of working women on the ground of violation of the right of gender equality.[78]

Article 15Prohibition of discrimination on grounds of sex:-

 

Article 15 (1) prohibits the State from discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. In other words, all laws are to be applied to members of both sexes equally, and there is an express prohibition of discrimination on the ground of sex. A law which deprived a female proprietress to hold and enjoy her property on the ground of her sex was held violated of Article 15.[79]

Article 15(2) provides that no citizen shall, on the grounds only of religion, race, caste, sex, place of birth or any of them, be subjected to any disability, liability, restriction or condition with regard to (a) access to shops, public restaurants, hotels and places of public entertainment, or (b) the use of wells, tanks, bathing Ghats, roads and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of the general public.

The main object of Article 15 (3) is based on ‘protective discrimination’ keeping in view the weak physical position of women. The reason is that women’s physical structure and the performance of maternal functions place her at a disadvantaged position in the struggle for subsistence, and her physical well-being becomes an object of public interest and care in order to preserve the strength and vigour of the race.[80] This provision has enabled the State to make special statutory provisions exclusively for the welfare of women.

In the case of Dattatrayav. State of Bombay[81], the Bombay High Court held that the State can establish educational institutions for women only. Again in Yusuf Abdul Aziz v. State of Bombay[82], the Court upheld that the Section 497 of the IPC as valid by relying upon the mandate of Article 15 (3) of the Constitution. Even Section 354 of the IPC is not invalid because it protects the modesty only of women and Section 488 (now Section 125) of the Cr. PC. Is valid.  Although it obliges the husband to maintain his wife but not vice versa.[83] Similarly, Section 14 of the Hindu Succession Act, 1956 converting the women’s limited ownership of property into full ownership has been found in pursuance of Article 15 (3).[84]The guardianship right of women has undergone a sea change by this interpretation given by the Apex Court.[85]

Women is a weaker section of our society for whose upliftment Article 15 (3) is made which should be given widest possible interpretation and application subject to the condition that reservation should not exceed 50% limit as laid down in the case of IndraSawhaeyv. Union of India.[86] The Court has also upheld an Orissa Government Order reserving 30% quota for women in the allotment of 24 hours medical stores as part of self-employment scheme.[87]

 

Article 16 Equality of opportunity in matters of public employment:-

Explaining the relative scope of Articles 14, 15 and 16, Das, J. said:

“Article 14 guarantees the general right of equality; Articles 15 and 16 are instances of the same right in favour of citizens in some special circumstances.”[88]

Article 16(1) and (2) embody the general rule that the State shall provide equal opportunities for all citizens in matters relating to employment or appointment to any office under the State. The principle of equal pay for equal work is also covered by equality of opportunity in Article 16 (1).[89] Difference in the pay scales and promotional avenues between male and female employees is also prohibited by Article 16 (2).[90]

In the case of Miss C. B. Muthamma, IFS v. Union of India and others,[91] the constitutional validity of Rule 8(2) of the IFS (Conduct and Discipline) Rules, 1961 and Rule 18 (4) of the IFS (Recruitment, Cadre, Seniority and Promotion) Rules, 1961 was challenged before the Supreme Court. The Hon’ble Supreme Court held that these Rules are in defined of Article 14, 16 and 21 and Krishna Iyer, J. pronounced:

“That, our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz; our women, is a sad reflection on the distance between the Constitution in the book and the law in action.”[92]

In Government of Andhra Pradesh v. P.B. Vijaya Kumar,[93] the legislation made by the State of Andhra Pradesh providing 30% reservation of seats for women in local bodies and in educational institutions was held valid by the Supreme Court. At this juncture, it is also noteworthy to mention the case of Associate Banks Officers Association v. State Bank of India,[94] wherein the Apex Court held that women workers are in no way inferior to their male counterparts, and hence there should be no discrimination on the ground of sex against women. Recently, in Air India Cabin Crew Association v. Yeshaswinee Merchant,[95] the Supreme Court has held that the twin Articles 15 and 16 prohibit a discriminatory treatment but not preferential or special treatment of women, which is a positive measure in their favour. Further, in Vijay Lakshmi v. Punjab University,[96] it has been observed that Rules 5 and 8 of the Punjab University Calendar,Vol. III providing for appointment of a lady principal in a women’s or a lady teacher there cannot be held to be violated of either Article 14 or Article 16 of the Constitution. In this way, the Indian Judiciary has played a positive role in preserving the rights of women in the society.

Article 19 (1) (g) Freedom of Trade and Occupation:-

Article 19 (1) (g) of the Constitution guarantees that all citizens have the right to practice any profession or to carry on any occupation or trade or business. The sexual harassment in the exercise of this right at the work place amounts to its violation. In the case of Delhi Domestic Working Women’s Forum v. Union of India[97] is the best example.

The court held in another case that “Each incident of sexual harassment of women at workplace results in violation of fundamental rights of ‘Gender Equality’ and the ‘Right to Life and Liberty.’[98]

Article 21Protection of life and personal liberty:-

Article 21 contains “No person shall be deprived of his life or personal liberty except according to procedure established by law.”

The right to life enshrined in Article 21 of the Constitution also includes the right to live with human dignity and rape violates this right of women.[99] In the case of State of Maharashtra v.Madhukar Narayan Mandikar,[100] the Supreme Court has held that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when she likes. This article has also been invoked for the upliftment of and dignified life for the prostitutes. The Supreme Court has placed emphasis on the need to provide to prostitute opportunities for education and training so as to facilitate their rehabilitation.[101]

Sexual harassment at workplace is a violation of Article 21 of the Constitution and hence, the Apex Court of the Country, in the case of Vishakhav. State of Rajasthan,[102] has laid down detailed direction and guidelines on the subject which are to be strictly observed by all employers, public or private.

Article 23 Right against exploitation and prohibition of traffic in human beings:-

Article 23 (1) of the Constitution of India prohibits traffic in human beings and begar and other similar forms of forced labour. ‘Traffic in human beings’ means selling and buying human beings as slaves and also includes immoral traffic in women and children for immoral or other purposes.[103]

To curb the deep rooted social evil of prostitution and to give effect to this Article, the Parliament has passed The Immoral Traffic (Prevention) Act, 1956.[104] The Supreme Court has also held that traffic in human beings includes devadasis and speedy and effective legal action should be taken against brothel keepers.[105]

The Role of Directive Principles of State Policy in Protecting Gender Equality:-

Part IV of the Constitution from Articles, 36 to 51 contains what may be described as the active obligation of the State. These Directive Principles are ideals which are based on the concept of ‘Welfare State’ and they fix certain goals; social and economic; for immediate attainment by the Union and State Governments while formulating a policy or enacting a law. According to Article 39(a), the State shall direct its policy towards securing that the citizens’ men and women equally, have the right to an adequate means of livelihood.[106] Under Article 39 (d), the State shall direct its policy towards securing equal pay for equal work for both men and women.[107]

A very important and useful provision for women’s welfare and well-being is incorporated under Article 42 of the Constitution. Upholding, the claim of non-regularized female workers for maternity relief, the Court has stated:

“Since Article 42 specifically speaks of just and humane conditions of work, and maternity relief, the validity of an executive or administrative action in denying maternity benefit has to be examined on the anvil of Article 42 which though not enforceable at law, is nevertheless available for determining the legal efficacy of the action complained of.”[108]

Article 44 provides that the State shall endeavor to secure for the citizens, a Uniform Civil Code, throughout the territory of India. Placing, reliance on Article 44 by the Supreme Court in upholding the right of maintenance of a Muslim divorced women under Section 125 of the Cr.P.C has boomeranged resulting in a separate law of maintenance for Muslim female divorcee.[109]SarlaMudgalv. Union of India[110] is the backbone of this Article.

Fundamental Duties:-

Article 51-A under Part IV-A of the Constitution of India lays down certain Fundamental Duties upon every citizen of India, which were added by the 42nd Amendment of the Constitution in 1976. The later part of Clause (e) of Article 51-A, which relates to women,gives a mandate and imposes a duty on Indian citizens ‘to renounce practices derogatory to the dignity of women’.

Reservation of Seats for Women in Election to Local Bodies:-

 

The Parliament has succeeded in its efforts to provide for reservation of seats for women in election to the Panchayat and the Municipalities. Reservations of seats for women in Panchayats and Municipalities have been provided in Articles 243 D and 243 T of the Constitution of India. Part IX and IX A have been added to the Constitution by the 73rd and 74th Amendment Acts with Articles 243, 243 A to 243 D and Articles 243 P 243 ZG.

Other than these Constitutional safeguards, various protective Legislations have also been passed by the Parliament to eliminate exploitation of women and to give them equal status in society. For instance, the Sati (Prevention) Act, 1987 was enacted to abolish and make punishable the inhuman custom of Sati; the Dowry Prohibition Act, 1961 to eliminate the practice of dowry; the Special Marriage Act, 1954 to give rightful status to married couples who marry inter-caste or inter-religion; Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Bill (introduced in Parliament in 1991, passed in 1994 to stop female infanticide and many more such Acts. Furthermore, the Parliament time to time brings out amendments to existing laws in order to give protection to women according to the changing needs of the society, for instance, Section 304-B was added to the Indian Penal Code, 1860 to make dowry-death or bride-burning a specific offence punishable with maximum punishment of life imprisonment.

So there are varied legislative safeguards and protection mechanisms for women but the ground reality is very different. Despite all these provisions women are still being treated as second rate citizens in our country; men are treating them as an object to fulfill their carnal desires; crimes against women are at alarming stage; the practice of dowry is still widely prevalent; female infanticide is a norm in our homes.

Therefore, the provisions of International Conventions and norms are to be taken into consideration and guidelines to be observed at all work places or other institutions, until a perfect legislation is enacted to maintain gender equality in the human right perspective.

Conclusion and suggestions:-

There is a solution of every problem. For reducing gender inequality in India, we should offer high level of education to girls and increase women empowerment. We should also give them opportunity in active politics & social activities so that social integration in Indian society can be made. Government should make policies & strategies regarding stopping the sex identification & abortions. In context of above NGOs can also play an important role to eradicate Gender Inequality. Politicians should frame out policies for increasing social welfare development regarding this issue. The Campaign of our Prime Minister Mr. NarenderModi “BetiBachaoBetiPadhao” can be successful, when the mindset of Indian society will be changed towards women.At last let us conclude with these words of Justice R.C.Lahoti:

“Let the issue of gender injustice not be perceived as a war between the two sexes. Long before, when consciousness in society towards gender injustice was not present then resentment on the part of women was justified; but now the approach should be of complementing each other rather than competing on perceptions, which may not be real or may be non-existent. Societal bonds are based upon integration, mutual dependence and respect. They are not just contractual but based on deep organic unity”

 

 

Sub theme – Gender biased laws

Title of paper– Gender biased laws

Name of the author(s)-  Rahesha Sehgal and Udit Mallik

Name of the institute– Daulat Ram College and Amity University Jaipur

E-mail address–  sehgalrahesha1997@gmail.com and summymalik13@gmail.com

Contact number– 8968796917 and  8290939722

Abstract

The laws made in the Indian constitution though after a lot of amendments are fair towards women but unfortunately these are clearly unfair towards men.

Gender neutrality describes the idea that policies, language and other social institutions should avoid distinguishing roles according to people’s sex or gender.

This paper will deal with the following laws in India that blatantly discriminates against men.

According to the Indian penal code, Rape: Sec 375 IPC is something that only a man can do to a woman and there is no room for adult male victims which clearly states that all other forms of rape by women on women, women on men and men on men are outside it’s scope not just this, the paper will also draw light towards section 498A of the penal code that was passed to protect women against marital cruelty and dowry harassment, but this right is increasingly being misused by women to settle scores with their in laws and husband, in due process many innocent families have been victimized and imprisoned only on the basis of the allegations of the wife.

There are some glaring irregularities in the adultery law as per the IPC section 497, if the husband commits adultery with the wife of another man then he can easily be prosecuted but there is no such law that puts a woman committing the same crime behind the bars.

Though the Supreme Court has acknowledged the fact that most of these laws are biased but the government still has to act upon it.

All these laws though are instrumental in strengthening the position of women in the society like the Hindu marriage act under section 37 where both the man and the woman can claim permanent alimony and maintenance or the special marriage act.

The author(s) through this paper wants to show forth how there are various laws that have set the ball rolling towards having laws that are gender biased owing to discrimination against men.

Introduction

Gender biased laws are laws that don’t see men and women equal and are biased to either of the two, in this case , this research paper will talk about gender biased laws for women against men. Though there were provisions that were made to provide equality to women but some of these provisions are clearly unfair towards men.

Indian Penal Code (IPC) which is a comprehensive code intended to cover all substantive aspects of criminal law. It extends to the whole of India except the State of Jammu and Kashmir. The code was drafted in 1860 on the recommendations of first law commission of India established in 1834 under the Charter Act of 1833.

Gender neutrality describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people’s sex or gender, in order to avoid discrimination arising from the impression that there are social roles for which one gender is more suited than another.

Following are the laws that hint towards gender biased-ness.

  1. Rape (Sec. 375 IPC)

The crux of the offence of the rape under section 375, IPC is sexual intercourse by a man with a woman against her will and without her consent under anyone of the six circumstances mentioned below: –

  • Against her will,

(b) Without her consent,

(c)With consent obtained by putting her or any other person in whom she is interested under fear of death or of hurt,

  • With consent but given under misconception of fact that the man was her husband,
  • Consent given by reason of unsoundness of mind, or undue influence of intoxication or any other stupefying or unwholesome substance,
  • Woman under 18 with or without consent.

  1. Homicide for Dowry, Dowry Deaths or their attempts (Section 302/304-B IPC)

 

In brief there are four situations when a married woman is subjected to cruelty and harassment leading to the commission of an offense, that are the following-

First, when her husband or his family members subject the women to cruelty or harassment – section 498, IPC.

Secondly, if such cruelty or harassment was inflicted by the husband or relative for, in connection with, any demand for dowry immediately preceding death by burns and bodily injury or in abnormal circumstances caused her death within seven years of marriage, such husband or relative is deemed to have caused her death and is liable to be punished under section 304, IPC for dowry death.

Thirdly, if one intentionally causes woman’s death (section 300 clause, IPC), it would amount to murder punishable under section 302, IPC.

Fourthly, if the husband or any relative of her husband creates a situation which he knows will de-rive the woman to commit suicide and she actually does so within a period of seven years of marriage, the case would fall within the ambit of section 306, IPC (abetment to society).

In 1986 a new offense known as “dowry death” was inserted in the Indian Penal Code as section 304B by the Dowry Prohibition (Amendment) Act, 1986 (43 of 1986) with effect from November 19th, 1986. The provisions under section 304B, IPC are more stringent then provided under section 498A of the penal code. The offense is cognizable, non-bail able or trial by court of sessions.

Though there are a number of cases in which the wife fakes her dowry case/charge sheet so as to extract money from her husband or to take revenge from her in-laws.

Therefore, these laws that was made to safeguard women have been highly exploited by women, themselves.

  1. Molestation (Section 354 IPC)

Section 354 – Assault or criminal force to woman with intent to outrage her modesty whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to 2 years, or with fine, or with both.

Section 354, IPC has been enacted with a view to protect a woman against an indecent assault as well as to save that public morality and decent behavior. The section punishes and assault or use of criminal force to any woman with the intention or knowledge that the woman’s modesty will be out-raged.

In the case Rupan Deol Bajaj, the Supreme Court held that slapping a woman on her posterior amount to ‘outraging of her modesty’ within section 354 and 509, IPC. At a dinner party on July 18th, 1988 Mr K.P.S Gill, then director general of police, of the state of Punjab came and stood in front of Mrs Bajaj a senior of I.A.S officer so close that his legs were about four inches from her knees. He then asked her ‘to get up immediately’ and come along with him and on her objection slapped her on the posterior in the full presence of all the guests.

It appears the police did not initiate any action on the first information report of Mrs Bajaj and the high court of Punjab and Haryana allowed the petition of Mr Gill for quashing of F.I.R on the ground that matter being too trivial, it needs no action. Allowing the petition of Mrs. Bajaj, the supreme court held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to ‘outraging her modesty’ within section 354 and 509, IPC for it was not only an affront (disrespectful) to the nor-mal sense of feminine decency but also an ‘upfront of her dignity’.

The Indian penal court fails to adhere that molestation can happen to men as well, we come across molestation for men as well, there are many cases that we come across everyday of male rape but the mere fact that the court doesn’t consider that men can be molested is disappointing.

  1. Section 498A of Indian Penal Code was passed to protect women against marital cruelty and dowry harassment. A lot of rights are provided to women in this section which are explained above. This section allows the arrest of husband and his relatives immediately the complaint is filed and solely on the basis of allegations made by the wife, with-out any evidence and investigation. Offences under this section are non-bail able and accused gets punished by imprisonment even before the guilt is established. This is a right provided to women for their safety and protection and for fast relief. But unfortunately, it is increasingly being misused by women to settle scores with their in-laws and husband. Innocent families have been victimized and imprisoned only on the basis of allegation of wife. It has noted by several authorities that almost

 

  • percent of cases filed under section 498A are based on false accusations.

There is a huge requirement of revising Section 498A. Such laws will only give rise to its misuse by witty and clever women for their personal gains. Very less are the cases that real victims who are really being harassed by their husband and in-laws for the reason of dowry and other be able to report the cases and avail the remedy entitled to them. But there are many women who actually take advantage of these women protection laws and files fraud cases against their husband and families to get divorce or to harass the in-laws. Most cases have been recorded that women accuse their husbands of cruelty and dowry harassment, to make the divorce process easier and to get huge sum of money as alimony.

In the case of an accident or murder, law requires proof before action can be initiated against the accused. So why the law does allow innocent families to suffer merely on the basis of a false complaint. There’s an urgent need to look into the misuse of these laws. Our lawyers are also responsible for this misuse of women protection laws, as even after know the truth, they don’t counsel and advise them to not put a false case and resolve the issue amicably, and instead they take their case.

This law came into effect to prevent women against domestic violence, harassment for dowry and cruelty. And it is a very important law for the protection of women who seriously suffers all these violence in their homes. But there should be a major revision in the practice of arresting the husband and relatives without investigation irrespective of their ages and health. Most women misuse the law not only to extract money from their spouses, but also due to career constraints or adjustment problems faced by them after marriage.

At present, the accused is arrested as soon as a case is registered against him under Section 489A and the investigations are carried out later. Old and ailing parents and relatives of the have been jailed for such a long period without even investigating. There is a strong recommendation that since the nature of charges are very serious, it should be made a bail able offence and proper security to be given to the wife. These fraud cases and false al-legations are a result of corruption in our country.

After the marriage, we all have seen men to be always balancing between their mother and wife. These days, whenever there is a dispute between a husband and a wife, the society always points the man to be culprit and woman to be victim. All this is because the society has made a presumption that only a woman can be harassed and violated by a man, men are not subject to be harassed. But there are live examples of women who harass their husbands and keep them in fear. So, there is a strong requirement of gender laws to be changed.

  1. Hindu Succession Act 1956

Under this act, if the deceased has no will, the spouse, the mother and the children inherit the property belonging to the deceased. The father is only entitled if the deceased does not have a spouse, mother or children. This law gives a female owner of the property the full right to be the only owner of her property but there is no law as such for the male counterparts. While under Hindu maintenance act 1956, a boy is entitled the maintenance till he’s 18 but for a girl the maintenance is entitled till she’s married.

  1. 5. Adultery (Section 497 IPC)

Section 497 of IPC mandates that “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery and shall be punished. Issuing notice, the court would examine two aspects of the penal provision.

One, why does Section 497 treat the man as the adulterer and the married woman as a victim.

Two, the offence of adultery ceases the moment it is established that the husband connived or consented to the adulterous act. So, is a married woman the “property” of her husband or a passive object without a mind of her own?

“The provision (Section 497) really creates a dent in the individual independent identity of a woman when the emphasis is laid on the connivance or consent of the husband. This amounts to subordination of a woman where the Constitution confers (women) equal status,” the Supreme Court declared.

Further, only a husband or the person in whose care the husband has left his wife can file a complaint under Section 497. The petition challenges the validity of Section 198 (1) and (2) of the Code of Criminal Procedure which deems that only a husband can be an aggrieved party in offences against marriage like adultery and only he can go to court. Arguing for petitioner Joseph Shine, advocates Kaleeswaram Raj and Suvidutt M.S., submitted that the penal section was framed at a time when women were considered a man’s property. They have asked the court to annul Section 497 as unconstitutional.

The Constitution confers equal status to a man and a woman. The time has come when society has to realize that a woman is equal to her husband in every respect, Chief Justice Dipak Misra recorded in the order.

Justice D.Y. Chandrachud paraphrased the petitioner’s arguments that it amounts to a violation of a women’s fundamental right against discrimination under Article 15 when law “assumes a patronizing attitude to women.” “By presuming the woman to be a victim, has the law made a patronizing assumption” he asked.

Why is prosecution under Section 497 completely dependent on the husband’s word. So much so that, a woman can enter into an adulterous relationship if her husband consents. The debate in the court centered on the question whether Section 497 demeans a woman to the extent of her being considered the husband’s “commodity”.

“Does this relegate her to the level of a commodity?” Justice Chandrachud asked.

Terming the provision “quite archaic,” the court observed in the order that when society progresses, rights are conformed and a new generation of thoughts should spring forth.

The apex court had earlier on three separate occasions, in 1954, 1985 and 1988, upheld the constitutionality of Section 497.

Hence only a man is prosecuted for adultery.

  1. Unnatural Offences (Section 377 IPC)

The irony being a country that preaches Right to Equality for all its citizens, explicitly lets Section 377 decide the fate of its minority. Adding to the irony, the baggage that has been in existence from the 19th Century owing to the British marks the 50th anniversary of the abolition of the law in its own country and yet the loop continues in India. In simple words, Section 377 is an old-fangled law which makes gay sexual intercourse a crime punishable up to life imprisonment and curbs the Fundamental Rights guarded under Article 14, 15 and 21 of The Indian Constitution.

Despite all this, a ray of hope acting as a reassurance to millions still exists. The approach to the abolition of Section 377 hasn’t been that stagnant after all. The context in which the case is fought has changed over time even when the reason remains the same.

According to section 354A of the Indian penal code, a man can serve up to 3 years of imprisonment for sexually harassing a woman but there is no such law made for women.

  1. Special Marriage Act, Section 37 of the Indian penal code.

Under this act only women can claim permanent alimony and maintenance. Not just this divorce and child custody are generally against men and are biased towards women. There have been many cases in which the atrocities are conducted against men but it does not come in limelight because of the social norms.

  1. Men and the LGBTQ community.

In our drive to uplift women, we ignore the other two aspects of Gender Neutrality-the rights of men and members of the LGBT com-munity. The Oxford Dictionary describes ‘Gender Neutrality’ as an adjective that is suitable for, applicable to, or common to, both male and female genders. It describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people’s sex or gender and emphasizes on the equal treatment of men and women legally with no discrimination. It is a kind of society where equality will be established in its true sense and established not at the cost of any gender. Feminism in it truest sense embodies equal rights for men and women, all the special provisions for women were made to pull up their condition and give them a level playing field as to men. But protection at the cost of the other marginalized sections is not what it advocates.

There are two groups on the other side. Some laws in the name of protecting women are actively discriminatory toward men, and some laws don’t even recognize the existence of trans-genders, let alone their rights. Up till a few years ago, the ‘other’ gender did not find a place anywhere and was a hush-hush affair. Section 304B and 498A of the Indian Penal Code (IPC) are termed as the guardians of rights of married women as it provides for protection in cases of dowry death and cruelty against women, if the death is within seven years of marriage. The clear intention behind these sections is to fasten guilt on the husband, or in-laws, though they might not, in fact, have caused the death or injury. It has become a custom to claim that all the women have been ‘driven to suicide’ due to dowry harassment. Under these sections, even if the allegation is false, there will be a trial and the husband is considered guilty until proven innocent. The Supreme Court, in the case of Sushil Kumar Sharma v. Union of India, observed that such provisions are intended to be used as a shield and not an assassin’s weapon and termed it as ‘legal terrorism’.

Again, Section 375 of the IPC clearly states than only a man can commit the offense of rape on a woman. So, all other forms of rape by women on women, women on men and men on men are outside its scope. The immense social stigma attached to a rape victim is condemnable; however, isn’t it retrograde to assume the victims to only be women and the perpetrators to only be men? India’s anti-sodomy law, Section 377, is the only resort for male victims of sexual offences. However, the law is fraught with challenges. Even in cases where a male victim is assaulted by a male attacker, it is not actually considered as rape. The law does not outline any difference between consensual and non-consensual sex between male adults. It is biased towards members of the LGBT community by bringing their sexual activities under the umbrella of ‘unnatural sex’ and providing neither legal right nor remedy. Moreover, if a female is the perpetrator, the victim is left with no option to seek justice. Section 497 and 498 of the IPC also propagate discrimination, this time against both genders. Adultery can be committed only by a man, and not by a woman. If a man has sexual intercourse with a married woman and he does not have the consent of the husband of the woman for the sexual activity, such husband can prosecute the man only for adultery, not the adulterous wife. Further, Section 198 of the Code of Criminal Procedure, 1973 explicitly denies a husband the right to charge his wife with adultery and also denies a woman the right to charge her husband with adultery. Here, the wife is denied of any agency, and she can take no action against her husband, or her husband’s lover since women cannot be perpetrators, for adultery, although the husband can prosecute his wife’s lover, but not his wife. The consent of the man is given legal sanction as against the consent of the woman who obviously takes equal part in the sexual activity. The rationale behind not punishing the woman seems to be a perspective of seeing the woman as infantile and incapable of making a decision about her sexual behaviour, which seems to be a totally absurd concept in the present set of circumstances. Also, if the husband has an affair with an un-married (or divorced, or widowed) woman, no one can initiate any action against anyone.

It is interesting to note that in the Criminal Law (Amendment) Ordinance, 2013, the crimes of rape and sexual harassment were gender-neutral. The term ‘rape’ was removed entirely and was substituted with ‘sexual assault’. However, strong objections were raised by women’s groups and the Act ended up making the offences of rape and sexual harassment gender-specific. There are various propositions put forth by feminists in support of this regard, such as, men not being as vulnerable, them always wanting sex, women’s incapability to rape men, men not being similarly affected by rape, so on and so forth. Even the Criminal Law (Amendment) Ordinance, 2013, doesn’t recognize men’s’ rights in cases of stalking, unwelcome advances, disrobing and voyeurism.

Undoubtedly, countries with gender-neutral rape laws reportedly have the lowest rates of rape in the world. Crimes like rape and murder do not see age, caste, colour of skin, nationality and yes, even gender or sexual orientation. Rape is seen across the extremes of age, sex and geographical boundaries. All these facts indicate that there is a definite need to recognize and accept that men are raped, they also become victims of physical abuse and violence, and they deserve as much protection from such gross crimes, as women do. At a broader level, do not all crimes affect different types of victims in different ways? Yet, with a few exceptions, prosecution is based on the sameness of the crime, and not the sameness of the effect. The latter would essentially imply that certain victims are protected more than others, flying in the face of equality be-fore the law.

In order for such crimes to be recognized, what is important is that they must be reported substantially. An environment needs to be created where the plight of such men and trans-genders are also heard, without the fear of being ridiculed. It is only the development and application of a gender-neutral law that will be effective in improving the re-porting and registering of such crimes. The definition of rape must be reconsidered, sexual assault must be classified in accordance with various degrees of harm caused by each, and each must be defined in a comprehensive manner. Lastly, a system where one type of rape is given priority over others in the name of protecting women is self-defeating. Women and men (and other genders) need to unite and speak in one voice to build a culture against rape. In conclusion, it is important for us to recognize the rights of not only women, but also men and the LGBTQ community to ensure that the rights we ensure are also held up in reality and that the basic purpose of laws are maintained. Only then can we say with conviction that India has truly secured not only Gender Equality, but also Gender Neutrality.

Conclusion

All the laws mentioned above were made to protect women but unfortunately they have been immensely biased against men forgetting that equality of law means when both the genders are subjected to the same law. There are still various major laws that are not given to men like the sexual harassment of women at workplace which is not gender neutral and applies only to women, it is only an outdated concept that only the women are exploited at workplace. This paper strives to bring in notice that there are various unfair laws that are made against men.

Name:               Dr. Bhavana Sharma

Sub-theme:       Gender Biased Laws

Title:                 Gender Neutral Laws in India: Miles to go, Miles to go

Designation:    Principal, HIMCAPES School of Law, Badhera, Haroli, Una, H.P.

Institute:         HIMCAPES’ College of Law, Badhera, Haroli, Una, H.P.

Contact Details:  D/o Sh. Mahesh Chaudhary,

V.& P.O. Dilwan & Diara, The. Amb,

Distt. Una (H.P.)- 174316

Phone No.:           094180-30024 (Mob.), 070187-52448

Email ID:        bhavnabhardwajzm@gmail.com

GENDER NEUTRAL LAWS IN INDIA: MILES TO GO, MILES TO GO

Dr. Bhavana Sharma[111]

ABSTRACT: “Yatra naryastu pujyante ramante tatra devta” has been the culture of our society, but with the passing time the different evils prevalent in our society has degraded the status of women to such an extent that need arose to enact different laws to maintain her very dignity. So, the laws which establish the same, are germane and should be upheld because we still have a huge responsibility to apprise the still oblivious large section of the society of the bane it posses.

The Researcher in this paper wants to discuss that the gender-biased laws are not against men but they are to alleviate women from their drown-trodden position, these are fight against the constricted mentality of the society, so that all can enjoy equality in true sense. Whenever, there is need, our Courts (which are guardians of our rights) have interfered and have done with the laws which give unnecessary benefit to any one of these. But the day-to-day happenings, such as cases of rape of small girls, dowry deaths, eve-teasing, dress-codes for girls or even statements of  politicians, in our country clearly shows that we are not yet ready for gender-neutral laws. So, the researcher is of view that there are still miles to go to bring the gender-neutral laws in our society. We can say that with violence decreasing and the knowledge economy growing, society is making progress towards gender equality, but there’s a long way to go towards gender-neutral laws.

KEYWORDS: Gender, Neutral, Laws, Women, Status.

INTRODUCTION: Initially daughters of Vedic era were nurtured with love and affection but the innumerable invasions obliterated the culture. There was a considerable downfall in the socio-cultural and legal status of women. In the modern era few attempts to curb the barbaric attitude were made, but the initiative was not welcomed. Though, 62 years down the row, tables have turned. Sexual Discrimination has become despicable and punishable. The reforms have been possible only because of the legal initiatives. Various legislations and laws passed in the recent years have been instrumental in strengthening the position of women in society. Not only provisions favourable to women were incorporated in the Constitution when it was framed but various legislations like Dowry prohibition Act 1961, The Equal Remuneration Act 1986, The Hindu Marriage Act 1956, The Hindu Succession Act 1956, The Muslim Women (Protection of Rights on Divorce) Act, 1986, the commission of Sati (prevention) Act 1987, Protection of the Women from Domestic Violence Act 2005 have been introduced from time to time as required. Separate sections have been incorporated in the Indian Penal code, which deal with the offences committed against women. Though, such attempts have often been condemned and criticized as being gender biased and violative to the right of equality; but, the truth is that even such specious arguments cannot justify why daily news papers are coloured with articles on crimes committed against women, or why every another day dignity and integrity of a woman is sacrificed to meet an insatiable demand of the patriarchal society. Had the laws already implemented been executed in their letter and spirit, India would have been a different place to live in. Thus, it is much evident that the need of the hour is the stricter execution not the abolition of gender biased laws[112].

Indian Judicial system owes its existence primarily to customs and traditions, so do the discriminatory measures. Civil cases dealing with marriage, inheritance, divorce, succession, adoption, guardianship and maintenance are governed by personal laws of the communities. Often these personal laws give an inferior position to the women. Thus it can be happily contended that when the sacred laws only consider the women weaker and inferior then how can the neonate legislations raise them to a higher status? But, then shouldn’t we look into the actual sources of all these laws? Vedas are the oldest and the most sacred texts of the Hindu community. Nowhere in these texts is it mentioned that women were any less than men. They were not forced to sit behind four walls and confine themselves to household chores, instead they received education, took part in Shastrartha(debates), observed Brahmacharya and Upnayana and some even went to the battle field with their husbands. Women like Gargi, Maitri, Apala, Ghosha, have gained eternity. They were given equal legal rights and enjoyed equality of status unsurpassed ever since. A man was considered to be incomplete without his spouse and she was known as his ‘Ardhangini’. If this is basis of original Hindu society, then where is the space to contest the present day laws which are striving hard to help women regain their lost glory and position in the society?[113]
AIM AND OBJECTIVES: The aim and objective of the Paper are to find out that whether in reality time has come to bring into picture the gender-neutral laws. And to clarify that our laws does not give undue favour to one gender over another but the protection provisions has been made to bring equality so each one in our society should be able to live with dignity,

GENDER-BIASED INDIAN LAWS: There are certain laws that are being considered unfair towards men and these are as:

  1. The father of the deceased doesn’t inherit property, but the mother does: Under the Hindu Succession Act of 1956, if the deceased has no will, the spouse, mother and children inherit the property belonging to the deceased. The father is only entitled if the deceased does not have a spouse, mother or children.
  2. A boy is entitled to maintenance only till he turns 18, whereas a girl is entitled to maintenance till she gets married: Under the Hindu Adoption and Maintenance Act of 1956, it is the parents’ responsibility to a girl child’s maintenance till she decides to provide for herself or gets married.
  3. Only the man is prosecuted for adultery: According to Section 497 of the Indian Penal Code, if the husband commits adultery with the wife of another man, he can be prosecuted for the same. But if a woman commits adultery with the husband of another woman, she cannot be prosecuted.
  4. If a man has sex on the pretext of marriage and doesn’t marry, it amounts to rape: Yes, the fourth point of Section 375 of the Indian Penal Code states that if a man has sex with a woman after promising marriage, he can’t break up with the woman. If he does, according to the laws in India, he’s a rapist.
  5. If a guy under 16 years of age has consensual sex with a girl of his age, he’s a rapist: According to the sixth situation listed in Section 375 of the Indian Penal Code, if a 16-year-old guy and girl have sex, she’s been raped!
  6. If a woman is treated with physical or mental cruelty by her husband and his family, she can throw them behind bars: That’s perfectly fine and a good way to serve justice, but here’s the catch. Section 498 A of the Indian Penal Code says that the woman doesn’t need to give any evidence whatsoever. Fair enough, but let’s consider the number of reported false imprisonments.
  7. According to Indian law, a man serves up to 3 years jail or a fine for sexual harassment but what about a woman?: According to Section 354 A of the Indian Penal Code , a man can serve up to 3 years of imprisonment for sexually harassing a woman, but there is no such law made for women.
  8. Under the Special Marriage Act, only the wife can claim permanent alimony and maintenance: Under the Hindu Marriage Act, both the man and woman can claim permanent alimony and maintenance, but under Section 37 of the Special Marriage Act of 1954, it isn’t so.
  9. If the death of the woman is caused by burns or bodily injury within 7 years of marriage, it’s the husband’s fault: This has been stated in Section 304 B of the Indian Penal Code. Well, I’m sure there are innumerable cases of burning and other physical injuries, and most are just, but can’t it just be a house fire?[114]

GENDER BIAS IS DANGEROUS FOR MEN: Gender equality benefits all genders, not only women. Those fighting for women’s rights are not fighting against men, but fighting against sexism, which hurts both men and women. Find out how:

  1. Bias against “Gender-specific” professions – dancers, nurses etc.; A lot of men who get into professions like dancing, nursing etc. face ridicule. Men are expected to take up more ‘manly’ professions like IT/technical, fireman/police etc. Our society has already prescribed gender to many occupations – which can result in a bias for those that break this norm.
  2. Stigma for stay-at-home dads: India is still hugely orthodox when it comes to men staying at home looking after the children. If mothers immediately quit their jobs when a baby is due, then why can’t the father? Why isn’t the father allotted a paternity leave? It’s time we let go of this bias against dads and grant them the time they deserve with their children.
  3. “Men don’t cry – Be a Man! Be Tough!”: Men who cry are supposed to be ‘weak’. ‘Ladki jaise rota hai’.Being weak is considered to be feminine. Why do we deny men the right to be emotional? Besides, being a ‘man’ inadvertently means being aggressive, tough and strong. Fighting with men is supposed to be ‘a guy thing’ and we can all see that’s plain wrong. Men have feelings, men can feel fear and pain. If a man doesn’t want to fight he doesn’t have to be ridiculed. Let’s break away from distorted and in fact, violent ideas about masculinity.
  4. The myth that boys don’t get raped: According to a recent Government study in 2007, about 52% boys and 47% girls were raped. More boys were raped than girls. Boys are also raped by men. It’s because rape isn’t about sex, but power.
    By denying this we are only perpetuating the violence and abuse. We have to support male survivors of rape and help them heal from their scars. We have to accept that sexual abuse of boys and men is a reality in India.
  5. Husband earning less than his wife feels ‘let down’: In our society, if a wife earns more than her husband, it’s considered to be insulting for the man. This is because we ascribe power to the man’s salary. If a woman is earning more, he should be happy for her, and be secure that the family is financially sound. However, he faces an ego battle with her and within himself. We have to let go of these antiquated ideas. A man need not feel ashamed of himself if the wife is earning more than him.
  6. ‘The Man of the house’ syndrome: ‘Man of the house’ often means being the breadwinner of the family. Men are also supposed to be the head of the finances and furthermore, expected to fix the bulb! Women can share these responsibilities and its undue pressure on men to be expected to provide for the whole family.
  7. Always the ‘protector’ and never the ‘protected’: A man is always supposed to stand up for his sister, girlfriend, wife, mother etc. He is supposed to beat up a man who insults his family, particularly the ‘woman’. Why is he always supposed to be the ‘protector’? Today a lot of women are learning not to depend on the ‘man’ and learning how to take care of them at all times they can. Furthermore, a man has to let his guard down and sometimes let a ‘woman’ stand up for him. Nothing to feel ashamed about that. We have to let go of these undue pressures we place on a man.
  8. Bias/ridicule against anything ‘girly’ or even ‘gay’: It’s wise to note how a lot of traits considered to be girly are shunned by the ‘real man’. “I’m not weak! I’m physically strong! I’m not small!” Yes, unlike a ‘woman’. There is a lot of a sexist bias woman, and even homosexuals or transgender face. The same sexism is faced by men as well. Sexism and gender bias can hurt all people – and it’s time we come together to nip this in the bud[115].

We have to face that gender bias hurts not only one gender, but all genders and all kinds of people. We have to work towards ridding our society of it. Gender-based crimes are a direct result of gender bias and sexism. Even our top-most politicians, police, law-makers, educationists and people in positions of authority have often made sexist comments. We have to free our culture of sexism[116].

GENDER-NEUTRAL LAWS MEAN: Under gender-neutral laws, all genders are equal in the eyes of law, either by explicitly stating every gender in law or by making the language of law gender neutral. For instance, under the POCSO Act, 2012, a child has been defined as “any person below the age of eighteen years,” without specifying any gender and using the word ‘any’ denotes equality to all genders. The Justice Verma Committee of 2012 underlined the need for India to recognise different sexual orientations and recommended inclusion of transgenders along with other genders, i.e. men and women while drafting gender-neutral laws[117].

IS INDIA READY FOR GENDER-NEUTRAL LAWS?: Out of the 48 countries in Asia, only four countries, Bhutan, Kazakhstan, Kyrgyzstan and South Korea and almost all of Europe and North America, have gender-neutral laws. However, Flavia Agnes, co-founder of Majlis Law Firm, believes that India is not ready for this. Pointing out that violence against women is rampant in India, Agnes said: “Most other countries do not have these problems and there is a relative gender parity between them. So in a situation of deep-seated patriarchy and hatred towards women, making laws gender neutral will only add to the problem since men have more power, they will be able to use these against women out of sheer vengeance.”[118]

Rape, sexual harassment, domestic violence, custodial violence, adverse sex ratio, dowry-related murders of young brides, molestation are among the forms of violence that women face in India. “We are concerned that if there is gender neutrality regarding perpetrators, women will be caught in prosecution which they will find it difficult to deal with, their families will not financially support them to fight the litigation and they will be languishing in jails as undertrials for a very long time where their children will be neglected,” added Agnes[119].

The use of the phrase “gender-neutral”, while appearing to be neutral and equitable, actually could be a cause of grave injustice and conceal the harsh vulnerabilities that certain persons have to live with, said Vrinda Grover, a lawyer and a human right activist. The purpose of the law is to provide protection, and those who are marginalised, socially and otherwise, require the protection of the law,” she told indianexpress.com. However, acknowledging men as victims of sexual violence, Grover said she is not in favour of gender-neutral language. “In certain circumstances, men can also be at the receiving end of severe sexual violence, particularly in situations of conflict, in situations of caste and communal violence etc. Even while understanding the vulnerabilities of these persons, it is necessary to provide certain specific kinds of protection and not merely amend the law to reflect a gender-neutral language.”[120]

Putting forth his view in the context of the Indian society, Senior Advocate Colin Gonsalves said: “Law should be discriminatory for women and if it is a little discriminatory against men, it doesn’t matter. Positive discrimination in favour of women and against men is constitutionally permissible.” “If gender neutral laws are enacted in India, it would bring forth a lot of counter cases against women,” added Gonsalves[121].

In favour: Justice Verma Committee of 2012 favoured gender-neutral laws completely in its report and the Criminal Law (amendment) Ordinance 2013 was published in The Gazette of India which upheld the Committee’s view. In the spirit of gender-neutral laws, sexual harassment, voyeurism and stalking were added to the Indian Penal Code and certain amendments and deletions were made to IPC, CrPC and Evidence Act. But the ordinance on making all laws gender neutral lasted for 58 days and was repealed and replaced by The Criminal law(Amendment) Act 2013. Therefore, the current provisions stating stalking and sexual harassment became gender-specific, where the man is the sole perpetrator and women are the sole victims.[122]

GENDEWR-NEUTRAL v/s GENDER BIASED: Gender biased laws aim at upliftment of the female gender. But this does not mean that it curbs the prospects of the opposite sex. The objective of such laws is to secure women from any inhuman treatment, cruelty or injustice which they are often subject to and to punish the wrongdoer. The efforts to do so are not novice in nature; instead owe their gestation to the brains of the Constitution drafters. Article 15(3) of the constitution empowers the legislature to make special laws for women and children, and such laws are not considered discriminatory prima facie. In cases like Yousuf Abdul Aziz vs. State of Bombay, where provision of IPC concerning adultery, which punished only the male participant and not the female, or, Government of Andhra Pradesh vs. P.B Vijaykumar, where reservations upto 30% were made for women in State services, it was contended that the special provisions made for the women were unconstitutional and discriminated on basis of sex, thus contradicting article 14and Article 15(1) which promote equality. The court here upheld the supremacy of Article 15(3) over other articles and validated the legislation. This article is the womb of the future gender biased legislations[123].
Gender biased laws only ensure that women are given the position which they deserve. For example, where earlier women had no right in the ancestral property, now laws such as, Hindu Succession Act,1956 ensure that women have equal rights in the coparcenory property; the commission of Sati (prevention) Act 1987, which makes the inhuman burning of a woman alive on the funeral pyre of her husband cognizable; Equal Remuneration Act 1986, which ensures equal pay for equal work without discrimination on the basis of sex; Laws such as Medical Termination of Pregnancy Act, 1971 or Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse)Act, 1994, prevent the misuse of technologies to determine sex of foetus so that female foetus can be aborted, even if the mother wants the child; laws such as Indecent Representation of Women(Prohibition)Act, 1986, or Suppression of Immoral Traffic in Girls and Women, 1956, which keep in check the sexual offences against women etc., ensure effective implementation of the Fundamental Rights granted to one and all. By preventing heinous crimes like female infanticide, dowry deaths, domestic violence, rape, commission of sati the laws enforce women’s right to liberty and lead a life with human dignity. Sometimes precedents by the court also act as legislations, as it happened in the case, Vishakha vs. State of Rajasthan, where guidelines were laid about the measures to be taken by the employers to ensure the safety of women employees. For ages women have been treated as animals and male child reproduction machines. These laws only give them the strength and support to fight back the injustice and not always be on the receiving end. Such efforts by the Court and the Legislature instead of being obstructed need to be applauded and supported, so that they achieve their objectives[124].

Recently, a lot has been boasted about the accomplishments of women in many spheres. We gaily celebrate the success of those handful, and happily accept the fact that the glass ceiling which once existed is now broken. But this happiness is ephemeral. If one out of the hundred women gains fame or success in any field can we term it as real equality? What happens to the rest ninety nine? Just because we have one Mrinal Pandey, or one Sania Mirza can we really forget about hundreds of the dreams which are left unrealized so that they can take care of their siblings? Does success of one Indira Nooyi justify the crushing of career prospects of other hundreds of women so that they can cook two meals a day and grow their children? Just because some women have the opportunity to cultivate their talents into their bastions, it doesn’t mean we have achieved the objective of gender equality. Here, if the gender biased legislations come into play and prevent men from causing hindrance to the economic opportunities of women or secure the dignity they deserve, back to them, can they be considered as anti- men laws? These laws do not harm any part of the society in any way; they just give women their dues[125].
If the existence of these laws can be contested then probably the very existence of the Judicial structure should be questioned. Laws have always stood up as the guardians of the right and the needy, not the wrong or the mighty. Laws emanate with the needs of the existing social structure. Today, people may not fear traditions, but they do fear Laws and if a pertinent concept can be established by means of certain gender biased laws, the laws should not be arraigned as discriminatory[126].
WAY AHEAD: Fight for Gender equality is not a fight against the men but is a struggle against the constricted mentality of the society, which hinders its own progress and the obsolete traditions and customs which feed it. If in this battle of equality gender- biased laws act as shields and weapons is it morally and socially correct to strike them down? No, at the end of the day its not just one section of the society which is benefitted but is a collective success. As for the contention that gender biased laws are discriminatory in nature as they violate the very essence of equality of Article 14, the article in question establishes ‘equality among equals’, and as of now the female section of the society is definitely not the equal footing with men. So the laws do not violate right to equality either. Moreover, these laws are not forever. The day no cases of dowry death, rape, sexual harassment at work places, female feticide, and other such offences related to women are reported, all gender biased laws can be repealed. Once the objective of a fear- free society has been achieved they will have no relevance and requirement. The Gender biased laws have definitely improved the position.

THEME                         :-MEN RIGHT, EMERGING TREND & ISSUES

SUB THEME                 :-  SCHOLARSHIP DISCRIMINATION

AUTHOR                      :-   HIMANSHU MISHRA

NAME OF INSTITUTE :-  ICFAI LAW COLLEGE , DEHRADUN

YEAR                                              :- 1st YEAR (BBA LLB)Hons.

Email:-mishrahimanshu325@ymail.com

POSTAL ADDRESS       :-  DRONA BOYS HOSTEL , SILAQUI , DEHRADUN

PIN:- 248011

CONTACT NO.             :- 7020760229

SCHOLARSHIP DISCRIMINATION

Abstract

Basically the scholarship is the support given by the government, school or colleges. But now a days as we can see there is a lot of scholarships given to the backward class people and open caste are literally getting very less or nearly no support. In some cases as much I have seen some people of backward classes are way more financially strong than other caste people and even than also they get scholarships . Even though their performance is not up to the mark they receive funds . However to counter this kind of issues government has introduced creamy and non-creamy layer.  But practically that is only working for government employees .Rest all farmers , businessmen are easily making false annual salary affidavits . If we leave this topic also and get into sports also the maximum attention is given to cricket and proper funds or scholarships are not made available for other sports players .  Certainly in both the cases we can clearly see that the needy people or the deserving people are not getting chances due to lack of proper support and scholarship. I am not saying that scholarships should not be given to backward class people  or the cricketers . In my opinion the scholarships should not be given in terms of caste , gender and other things . It should be only served to the deserving candidates or people .  To solve this issue government also linked aadhar cards to banks but still they did not check the data or the bank statements before providing to the students. Their should be centralised process in which all the bank details should be made available in clould in the encrypted formatted , which can only be accessed by govt. officials . It might take some time but for future once the candidates name is is given the software will give all the data and that should be  updated time  to time. And for other things government should not promote only one sport , they should try to help every emerging player . I hope if this things should be implied  scholarships may reach to deserving people.

So lets get started from the beginning what is a scholarship .

Meaning

So scholarship is mostly a financial aid provided to the deserving or the students having financial problems .  Scholarships are of many types . People mostly confuse between the grants and the scholarships .

Grants are mostly the non-repayable funds that are being given to  needy organisation  like educational institutions and other non- profitable organisations.

Categorisation of Scholarships

Lets categorise the different types of Scholarships that are being provided now a days. They are of 8 types namely Merit –Based, Caste -specific ,State -specific, College-specific ,Athletic , Brand Scholarships , Minority based Scholarships, Creative Contest Scholarships, EBC Scholarships

  • Merit-based:These are  the kind of scholarships that are being provided to the deserving candidates. When a student outperforms in academics or in certain exams.
  • Caste -specific:These are the kind of scholarships that are given to the backward classes (SC,ST,OBC) . But these kind of scholarships from place to place . Like certain states have their own backward classes like Telangana(BC).
  • State -specific:These are scholarships a college or university awards to students who plan to Study in the same state of which they are having domicile.
  • College-specific:College-specific scholarships are offered by individual colleges and universities to highly qualified applicants. These scholarships are given on the basis of academic and personal achievement. Some scholarships have a “bond” requirement
  • Athletic:Awarded to students with exceptional skill in a sport. Often this is so that the student will be available to attend the school or college and play the sport on their team, although in some states government funded sports scholarships are available, allowing scholarship holders to train for national representation. School-based athletics scholarships can be controversial, as some believe that awarding scholarship money for athletic rather than academic or intellectual purposes is not in the institution’s best interest
  • Minority based Scholarships:this kind of scholarships are given by very few colleges to certain specific students .( that minority may be religion based or even linguistic based) . some time they also provide some extra seats for all these.
  • Creative Contest Scholarships:These scholarships are awarded to students based on a creative submission. Contest scholarships are also called mini project based scholarships where students can submit entries based on unqiue and innovative ideas.
  • EBC Based Scholarship :These are given to the economically backward class people , who cannot afford to pay the fees or their monthly income is less than 4 Lacs.

  • Scholarships: These are that kind of scholarships that are provided by government or colleges .When the annual family income of that student too low .

SCHOLARSHIPS SCHEMES FOR INDIAN STUDENTS GIVEN BY AICTE

P G SCHOLARSHIPS:-

Scholarship is awarded to full time GATE/GPAT qualified students admitted to M.E./ M. Tech/ M. Arch and Pharma courses in AICTE approved Institutions/Colleges @Rs. 12,400/- PM/ student.

PRIME MINISTER’S SPECIAL SCHOLARSHIP SCHEME – PMSSS

 

Objective of the Scheme is to build up capacities in youth of J&K, educate, enable and empowering them to compete in normal course, enhancing and boosting employment potentials in students of J&K. Total 5000 scholarship are given @ Rs. 100000/- as Maintenance Charges and academic fee as Rs. 30000/- to General Degree, Rs. 125000/- to [127]Engineering Degree &Rs. 300000/- to Medical Degree each year

PRAGATI SCHOLARSHIP

Scholarship/Contingency is awarded to meritorious girls taking admission in AICTE approved Technical institution at Degree/ Diploma. Total 4000 scholarship are given @ Rs. 30000/- as tuition fee reimbursement and Rs. 20000/- as incidentals each year.

SAKSHAM SCHOLARSHIP

Scholarship/Contingency is awarded to Differently abled students taking admission in AICTE approved Technical institution at Degree/ Diploma. Total 1000 scholarship are given @ Rs. 30000/- as tuition fee reimbursement and Rs. 20000/- as incidentals each year

SMART INDIA HACKATHON 2019

A unique initiative to identify new and disruptive digital solutions for solving the challenges faced by our country under the program of Smart India Hackathon 2017. This event was held on 1st – 2nd April 2017 for 36 hrs non-stop competition. 9544 technology students, 598 problems statements, 29 different central govt. ministries, 26 different Nodal centres & funding of Rs. 3 Lakh per team for 100 qualified teams.

NATIONAL DOCTORAL FELLOWSHIP (NDF)
Admitting full time meritorious research scholars by providing research fellowship who wants to seek admission to Ph.D. in AICTE approved Technical Institutes/University Departments for carrying out research in thrust areas
 
SUPPORT TO STUDENTS FOR PARTICIPATING IN COMPETITION ABROAD (SSPCA)
 
The objective of the scheme is to provide travel assistance registration fees to a team of minimum 2 to 10 students for attending competition at international level in order to encourage engineering students to improve their field of technical education.
M.TECH PROJECTS AS INTERNSHIP WITH SMALL AND MEDIUM ENTERPRISES (MSMES)
[128]
The main objective of the scheme is to nurture an innovation ecosystem that benefits the technologically deficient MSMEs and technical institutes both. 408 Small and Medium Enterprises have given requirement of 738 Technology students.

FOR EBC STUDENTS THERE ARE TWO TYPESOF SCHOLARSHIPS OFFERED

Dr.Ambedkar Post-Matric Scholarship for EBC Students

This is a 100 % centrally sponsored scheme being implemented through the State Government and Union Territories. The objective of the scheme is to provide financial assistance to the EBC students studying at post-matriculation or post-secondary stage. The income ceiling of parents/guardians for eligibility is Rs.1.00 lakh per annum.

Dr.Ambedkar Scheme of Interest Subsidy on Educational Loan for Overseas Studies for EBCs

The objective of the scheme is to award interest subsidy to meritorious EBC students to provide them better opportunities for higher education abroad and enhance their employability.

To be eligible under the scheme, a student should come under the income ceiling of Rs. 1.00 lakh per annum. 50 % of the outlay every year is earmarked for Girl students. The provisional list of selected students is regularly uploaded on the website of the Ministry of Social Justice.

After researching for some more I found out there are about 51 kinds of scholarships provided to Indian students to study in India , 11 kinds of scholarships to study in abroad in multiple countries, 20 kinds of scholarship to study in united Kingdom, 8 Kind of scholarship to study in USA , 6 kinds of scholarship to study in Australia , 2 kinds of scholarship to study in China and new Zealand , and 1 kind of scholarship to study in Ireland , Holland , Singapore,  France.

Scholarships in India

  1. Lalit Kala Akademi Scholarship
  2. IITB Monash Research Academy Scholarships 2017
  3. Osmania University UGC-JRF Fellowship Program
  4. UGC JRF RA Foreign Nationals
  5. GIIS Junior College Scholarships at Singapore
  6. J C Bose National Fellowships
  7. JBNSTS Senior Scholarship Test 2017
  8. The Max New York Life Igenius Scholarships
  9. Ministry of Culture Junior Fellowships
  10. Mahabir Prasad Singh Foundation Scholarship (for Science, Engineering & Medical students)
  11. Ramanujan Fellowships
  12. NarotamSekhsaria Scholarship Programme[129]
  13. IGCAR JRF
  14. INSPIRE SHE Scholarships 2017
  15. INSPIRE Fellowship Program
  16. IndianOil Sports Scholarship, 2017
  17. MICA Ahmedabad Fellowship Program
  18. Ministry of Culture Scholarships for Young Artistes 2017-2018
  19. FedBankHormis Memorial Foundation Scholarships
  20. National Fellowship for OBC Candidate
  21. NIIT University Gurgaon Scholar Search Programme
  22. NHFDC 2016 – 2017 Scholarships for Differently Abled Students
  23. Algappa University JRF DST PURSE Program
  24. Dr DC Pavate Memorial Fellowships
  25. The Gandhi Fellowship
  26. IOCL (Indian Oil) Scholarship 2017
  27. Jawaharlal Nehru Scholarships for Doctoral Studies
  28. National Talent Search Examination (NTSE)
  29. Kishore VaigyanikProtsahanYojana
  30. IITM Pune Research Associateships and Research Fellowships in Climate Science
  31. VIT University IGNITE Scholarships
  32. Maulana Azad National Fellowship for Minority Students
  33. Maulana Azad National Scholarship for Girls (Minorities)
  34. Merit cum Means Scholarship for Students Belonging to Minority Communities
  35.  NarottamSekhsaria Foundation PG scholarship
  36. National Means-Cum-Merit Scholarships (NMMS)
  37. A STAR and SIA Youth Scholarship to study in Singapore
  38. SICI Doctoral Research Fellowships
  39. Pre Matric Scholarship for Delhi’s Scheduled Caste (SC) students
  40. OP Jindal Engineering and Management Scholarships (OPJEMS)
  41. Rajiv Gandhi National Fellowship for Students with Disabilities
  42. Rajiv Gandhi National Fellowship for ST Candidates
  43. Rajiv Gandhi National Fellowship for SC Candidate
  44. Sitaram Jindal Research Fellowship Scheme
  45. Shell Junior National Science Scholarship
  46. SBI Youth for India Scholarship,
  47. Fair and Lovely Scholarship for Women
  48. Swami Vivekananda Single Girl Child Scholarship for Research in Social Sciences
  49. Pragati Scholarship by AICTE for Women pursuing Technical Education
  50. Saksham Scholarship by AICTE for Differently Abled Students pursuing Technical Education
  51. Young India Fellowship Programme

Scholarships to Study Abroad

A list of scholarships for Indian students planning to study abroad:

Scholarships to study abroad (multiple countries)

  1. JN Tata Endowment Scholarships
  2. Inlaks Study Abroad Scholarships
  3. KC Mahindra Scholarship for PG Studies Abroad
  4. India4EU II (Erasmus Mundus) Scholarships to Study in Europe
  5. British Council IELTS Scholarship 2016
  6. Inlaks Research Travel Grants
  7. TOEFL Scholarship Program in India
  8. NarottamSekhsaria Foundation PG Scholarship
  9. National Overseas Scholarship for Students with Disabilities
  10. Dr.Ambedkar Scheme of Interest Subsidy on Educational Loan for Overseas Studies for students belonging to OBCs and EBCs
  11. SERB Overseas Doctoral Fellowship Programme

Scholarships to study in the United Kingdom (UK)

  1. Commonwealth Scholarship and Fellowship Plan
  2. Sheffield Hallam University’s Scholarship for Sport Business Management, UK
  3. Hornby Scholarships 2016 – 14 to Study in UK
  4. University of Oxford’s Rhodes Scholarship 2016 for Indian Students
  5. Oxford and Cambridge Society of India Scholarships 2016
  6. Oxford-Indira Gandhi Graduate Scholarship
  7. Dr Manmohan Singh Scholarships
  8. Inlaks Study Abroad Scholarships
  9. Imperial College India Foundation Postgraduate Scholarships 2016
  10. Goa Education Trust Scholarships 2016 (GET)
  11. University of Sheffield’s Scholarships 2016 for Indian Students
  12. Edinburgh Napier University, Scotland Scholarships for Indian Subcontinent Students
  13. University of Sussex Scholarships 2016 for Indians
  14. Charles Wallace India Trust (CWIT) Scholarships
  15. University of Southampton Scholarship
  16. Cambridge India Ramanujan Scholarship
  17. Lady Meherbai Tata Scholarships for Women
  18. [130]Chevening Scholarships
  19. Scotland’s Saltire Scholarship (SSS)
  20. Great Britain Scholarships – India 2017

Scholarships to study in Ireland

  1. UCD Undergraduate Scholarships

Scholarships to study in the United States (US)

  1. USIEF Fulbright-Nehru Fellowships 2016-2016
  2. Tata Scholarships for Cornell University, U.S.
  3. Lady Meherbai Tata Scholarships for Women
  4. Raman Fellowship for Post Doctoral Research in USA for Indian Scholars
  5. TOEFL® Scholarship Program in India
  6. American University Emerging Global Leader Scholarship
  7. Rotary Foundation Ambassadorial Scholarship
  8. Yale Young Global Scholars, Yale University

Scholarships to study in Australia

  1. International Postgraduate Research Scholarships (IPRS) by Australian Government
  2. Macquarie University Scholarships for Postgraduate Research  
  3. Melbourne – India Postgraduate Scholarship Program 2016
  4. Australia Awards Scholarships
  5. JASON (Joint Academic Scholarships Online Network)
  6. Future of Change Scholarship – University of New South Wales

Scholarships to study in France

  1. Raman-Charpak Fellowship 2016 for Indian and French Ph.D. students

Scholarships to study in China

  1. Chinese Government Scholarship 2017
  2. Huawei Maitree Scholarship for Study in China

Scholarships to study in New Zealand

  1. Commonwealth Scholarship Plan, New Zealand Awards 2017
  2. New Zealand Excellence Award

Scholarships to study in Holland

  1. Holland Scholarships

Scholarships to study in Singapore

  1. A STAR and SIA Youth Scholarship

MAIN CONTENT

After moving forward I found out most of these scholarships were given to backward classes or girls . Very few of them were given to the deserving students. I looked for some other kinds and found out there are still too many for the BC people. There were some more for the Defence Army officer children, Handicapped Students and Sports Quota.

However I am not going any more deep to find out more kind of scholarships, But some stats were quite shocking for me too which I am going to mention one by one below.

Lets start talking about discrimination;

Discrimination basically means the unjust or prejudicial treatment of different categories of people, especially on the grounds of race, age, or sex.

Now the Scholarship Discrimination means , why some people are given more scholarship and some are give no scholarship even when both are Open or are creamy layers. Lets discuss this-

Certainly I started to research that how this all started and came to know that it is somehow linked to reservation system only . However it is not mentioned anywhere. For that time I can understand that they were poor, unacceptable by the society and what not. But after 72 years of independence the conditions are totally contrast they are getting equal or more chances than others.  There is no discrimination these days. So why are they being scholarships or chances when they don’t deserve ?

To counter this our Indian Government Introduced creamy layer difference but they are too clever and they started making fake income certificates. Lets take some recent happenings nearby;
Below the  chart given which depicts the amount of funds given as scholarships

S. No. Name of the Scheme 2011-12 2012-13 2013-14 2014-15

(up to 13 Feb. 2015)

 
BE Expenditure BE Expenditure BE Expenditure BE Expenditure
1 Post Matric Scholarship to Scheduled Caste Students 2218.00 2711.34 1500.00 1654.65 1500.00 2153.49 1500.00 1438.76
2 Pre-Matric Scholarship for SC students studying in classes IX & X.  

*

824.00 931.37 900.00 547.00 834.00 438.00
3 Centrally Sponsored Scheme of Upgradation of Merit of SC students 4.00 2.91 5.00 1.97 5.00 4.38 5.00 2.03
4 Post Matric Scholarship to the OBC students. 535.00 527.99 625 666.86 900.00 768.56 785.00 770.60
5 Pre-Matric Scholarship for OBC students 50.00 40.69 50.00 47.01 150.00 115.99 150.00 105.48
6. Central Sector Scholarship Scheme of Top Class Education for SC students. 25.00 14.83 25.00 16.70 21.00 24.70 21.00 18.34
7. National Overseas Scholarship Scheme 6.00 7.07 6.00 6.89 6.00 6.13 6.00 5.75

[131]* New Scheme Implemented w.e.f. 1.7.2012.

CASES

[132]So There is a case in UP where about 20 Lac applications of scholarship found fake

This happened when in 2009 , 29,000 crore was given as scholarship  to over 29 lakh applicants .  The scholarship ranged between 10000- 85000 Rupees. However from 2014-15 the government capped scholarship amount at 50000. In 2014-15 , 55  lakh students applied for scholarships under various schemes. Of these only 29 lac found eligible rest were fake .

Similar Case is found in Maharashtra where a student a got admission in Medical College under OBC Category .  Because he/she presented a fake non- creamy layer certificate .the Bombay High Court has ordered a medical student to pay Rs.10 lakh to the State Government as she submitted a false Non-Creamy Layer Certificate to secure admission in the OBC quota. This, the Court said would “recompense” the State Government to some extent for expenditure incurred towards her education as a reserved category candidate.

These the very cases which we know about these things keep happening around us . And do we have ever thought why these things are happening?

See as much as I have understood and I have seen , the major reason can be frustration inside the students . The backward class people are getting more opportunities ,even  when some of them don’t deserve . They are getting reservations also and they getting fee reimbursed also . Most of them don’t come under non creamy layer. They are making fake income certificates.  By seeing all these things the open caste or OBC don’t want to stay back so they are also following the same path. This can be easily  understood with the help of example .

One more thing, how many of you have noticed I don’t know but what I have seen is that cut-off given by government for disabled students is more than ST backward class students. Even the fees of disabled children is more as compared to ST students . Even I don’t know what to say or write!

Lets consider two people A and B .  A belongs to a backward class and B is from a open caste .  A score very less marks in XYZ exam and gets into a prestigious college and in the same place B scores very good marks as compared to A but still gets an average college . Certainly A’s annual income is 6,00,000 and B’s annual income is 4,00,000 . But still A only has to pay 1500 /- per year and B has to pay 1,50,000/- per year . Even if Govt categorises him as an EBC student than also he has to pay 75000/-. This kind of condition does not require any explanation or answer .

And due to this many open cast people have also started making fake income certificates. And how they are making income certificates? That’s also very simple people who are farmers or businessman don’t have any proper income so by bribing tehsildar or collector they can easily make fake income certificates.

But the worst conditions still persist with the sports people . They are totally neglected by government .  Even though are trying hard ,getting medals , representing India at international events.  But after some time back to normal life , Most of them are really poor . And then people asks why there are few people taking part in sports . Recently when I searching about sports scholarships , the results were like 200+ scholarships . But are they reallygetting ? I Don’t think so. Than some of us are filing PIL in SC that sports should br a fundamental right .

And for any other categories I really don’t have any info that they really getting any scholarship or not.

CONCLUSION

To solve some of the above issues I came to a conclusion how these issues can be solved. There should be centralised process in which all the bank details should be made available in cloud in the encrypted formatted , which can only be accessed by govt. officials . It might take some time but for future once the candidates name is given the software will give all the data and that should be updated time to time. And for other things government should not promote only one sport, they should try to help every emerging player. I hope if this things should be implied scholarships may reach to deserving people.

Thanks  For reading

Title of the Paper- Misattributed Paternity: Rare or Overlooked?

Sub Theme – Paternity Fraud

Name of the Authors- Ishika

Anjali Rana

Sanjana Mittal

Course: B.COM LL.B (3rd Year)

Name of the Institute- Banasthali Vidhyapith

Postal Address- Ishika (Room no. 91)

Hostel- Shri Shanta Grah

Banasthali Vidhyapith

Tonk Road, Rajasthan- 304022

E-mail address- (ishikaagupta11028@gmail.com)

(ranaanjali234@gmail.com)

(sanjanamittal25@gmail.com)

Contact number: 8094138657, 7906724648 (Ishika)

9971907808 (Anjali Rana)

7351248633 (Sanjana Mittal)

ABSTRACT

 

We have come across various headlines stating the events of fraud around the globe. But when it comes to paternity fraud, it astounds all of us and compels us to cerebrate about such situation. Have you ever thought of the fact that the person whom you might be considering your father since the day you’ve known him is not your biological father? You will realise that your whole life was nothing but a lie. Now think from the perspective of a father who doesn’t even know that he has a son or a daughter out there. Now rethink from the view of a father who is in a misconception that the child for whom he has been paying support for is not his biological child. Can you imagine the intensity of such psychic trauma? It’s huge, actually.

Paternity fraud is contempt towards fatherhood as a man’s sacred calling. Do you think paternity fraud is uncommon and rare? Think again because a survey report shows that approximately 28% of American men tested for paternity are not the biological fathers of the child being presented as theirs.

Potential for paternity fraud is huge and there is no penalty for a woman who commits it. It has also been encountered in too many cases of married woman using false allegations of domestic violence and restraining orders to keep their husbands away from children when seeking child support in a divorce, often because she knows or suspects her husband is not the real father. Thus, it equals slavery. Clearly any man compelled by force to support a child that demonstrably is not seed of his lions, and imprisoned when he refuses, is a slave.

. These are many reasons why man become paranoids, loose trust I women and are weary of unplanned pregnancies in future relationships. Now it’s the high time to take a step back and use this feminism as a tool for women welfare rather than a weapon to beset men and bring the real equality.

Introduction

Imagine a man who has been fathering for years comes to know his child is not biologically his. Struck between devastating state of betrayal and love for a new born whom he raised presuming him to be outcome of the love he made with his beloved wife,what happened with this man was only a type of fraud that is more intense than any other fraud could ever be. This made a question mark on his paternity constituting Paternity Fraud.The practice of passing of a pregnancy as somebody else’s has been with us since the beginning of time.

There’s an ever-increasing load of paternity cases in Mumbai where the father’s biological link with his child is under dispute—has prompted the Forensic Science Laboratory ( FSL ) in Kalina. Statistics collated by the FSL show paternity tests jumped from 115 in 2014 to 135 in 2015. Let there be Justin Bieber, N.D. Tiwari or an ordinary men, whose paternity have come to question within a night. Time to time we come across increasing cases for paternity or nearly double DNA testing charges for the first time in a decade.

A few years ago, a woman from Orissa approached the Orissa State Women’s Commission asking that a paternity test be conducted after her estranged husband claimed he was not the father of her child. the decision was upheld by the Orissa High Court. The husband challenged the decision in the Supreme Court, arguing that the test was an invasion of his privacy and that the divorce had not been finalized.

“Sometimes the result of such scientific test may bastardize an innocent child even though his mother and her spouse were living together during the time of conception,” the Supreme Court judges said in their ruling.

The report of CNN shows another heart wrenching but a true predicament. The Hon’ble Supreme Court of India stayed firm on the side of truth stating, “Truth must triumph” is the hallmark of justice. The Supreme Court acknowledged the need for the new modern age science and its impact on the Justice Delivery System of India by accepting Paternity DNA Test as the ultimate conclusive proof for ascertaining matters relating to Paternity disputes which is crucial in deciding appeals relating to maintenance and other reliefs to a Petitioner wife.

An Insightful View on Paternity Fraud

Paternity fraud occurs when a mother names a man to be the biological father of a child, when she knows or suspects that he is not the biological father. This deception has come to be known in legal circles “Paternity Fraud”.  Paternity fraud is also called “Child Identity Fraud” or “Misattributed Paternity” or “Paternal Discrepancy”. It is a problem we don’t speak often enough. Women with multiple partners simply choose which one of those men is the most stable or financially independent and decides him to be responsible for the child.

In some cases, the mother knows fully well that the man is not biologically linked to the child. In other cases, she only suspects that her child is not genetically linked to the father she named on the birth certificate.

Presumption of Law: The reason behind such fraud is that there’s a presumption in our personal laws that if a child’s born within 280 days of the wedlock then he’ll be considered legitimate offspring of the husband unless the husband can prove that he had no access to his wife during the time the child would have been conceived. Such laws were constituted when marriage was only a sacrament. But now in this era of having multiple partners, illicit affairs, adultery, wives are deceiving husbands by blindfolding them in various aspects that includes paternity also.

Misattributed paternity can be devastating for men who have spent years believing they are biologically tied to a child, only to later learn that they actually share no DNA. Once the truth is revealed, it is rarely a simple matter to be reimbursed for those payments. Here’s how paternity fraud happens and what you can do if you’ve been paying child support for a child you did not father.

 

How Does Paternity Fraud Happen?

Paternity fraud generally happens when a man is asked to sign an affidavit of paternity for a child with whom he shares no biological connection. Presumably, in such cases, it is the mother who is urging the man to sign the affidavit or birth certificate form. The issue is then complicated when the state uses that affidavit or birth certificate as proof of paternity in a child support case, instead of ordering an actual ​DNA test before assigning child support. In some states, paternity fraud also happens through a process known as “the presumption of paternity.” This happens when a man is designated by the state as the child’s biological father simply because he and the mother were married at the time of the child’s birth or conception. An actual law in some states, the presumption of paternity causes some men to pay child support on behalf of children they are not related to—in some cases, even long after the misattributed paternity is apparent.

Married Fathers: Fathers who were legally married to the child’s mother at the time of the child’s birth are the child’s presumed father. They are entitled to visitation and child custody if the parents divorce, and they must pay child support if they no longer live with the child. This paternity, however, may be challenged if another man asserts that he is the father of the child, and he undergoes a paternity test. However, fathers may still be obligated to support their children if they acted as the child’s father for an extended period of time. States are influenced by the child’s best interests when making paternity decisions, and it is often not in the child’s best interests to remove a father from her life.

Unmarried Fathers: Unmarried fathers are not legally acknowledged as the child’s father until they or the mother petition the court to acknowledge him as the father. State procedures vary slightly, but typical requirements may include obtaining a paternity test or signing documentation, along with the mother, that the father acknowledges his paternity. After a father becomes the child’s legal father, he may be obligated to pay child support and entitled to custody or visitation with the child. Men should not sign voluntary acknowledgments unless they are certain they are the child’s father, because it is difficult to be removed as the legal father once you have signed such documentation.

Disproving Paternity: After a father has been established as the child’s legal father, he may only disprove paternity by taking a paternity test or when another man takes a paternity test demonstrating that he is the biological father. In some states, the legal father may then petition the court to be removed as the child’s legal father. Some states allow legal fathers to disprove paternity at any time; others only allow it while a child is still a baby. And in some states, men may not attempt to disprove paternity at all, and the only way to disprove paternity is via a paternity claim from another man. In many cases, however, if the father has served as the child’s parent for several years, the court may still classify him as the child’s legal father. If there is not another father willing to fill the role or if removing the father is not in the best interests of the child, non-biological fathers may still be classified as legal fathers, obligating them to pay child support. This is why it is important to be absolutely certain the child is yours before signing a birth certificate or signing a stipulation to paternity.

 

How To Prove Paternity Fraud: In order to prove paternity fraud, you must prove that the mother actually committed fraud. The elements of fraud require you to prove that she knew you were not the father but she told you that you were the father and that you signed the acknowledgment based on her statement. This is not to be confused with a woman who mistakenly names you the biological father though it later turns out that you are not the father. Fraud must be present.

To prove fraud, you will need evidence. Did she tell you she knew? Did she write you a letter or e-mail stating she knew? Did she tell anyone that she knew? These are just a few of the questions that you will need answered in order to gather evidence to assemble your case.

Sometimes the reason for the false allegation is that the mother does not want the alleged father to know about another man. In other occasions, the mother is seeking financial support from a man with more money than the biological father. Paternity fraud has become such a phenomenon that some states have even enacted criminal statutes to deal with the problem.

The financial element is only one area of concern for a father improperly alleged to be the father of a child. Regardless of the reason for the fraud, paternity fraud is tragic for the alleged father, the biological father and the child. Often times the alleged father and the child develop a bond and close relationship which is based upon the mother’s fraud. Conversely, if notified of the fraud at a later time, the biological father often misses out on several years of his child’s life.

Should we be making more of an effort to expose ‘paternal discrepancy’ or is keeping quiet- the best option, ask Gareth Rubin.’It’s a piece of information that could destroy a family and it would only be shared if there was no choice’.

It could be the ultimate fraud. Across Britain, thousands of men are likely to be raising children that they have been tricked into believing are theirs, when they were really fathered by another man. And now one victim of paternity fraud is calling for it to be made a criminal offence after he spent six years bringing up a boy he thought was his son, only to find out that his wife had used the sperm from her ex-boyfriend at an IVF clinic.

The man sued her for the £60,000 he had handed over in child maintenance after they split up, but only gained a small amount of compensation, even though the judge said he had been a victim of “clear deceit and fraud”. It sounds like an extreme and isolated case. But studies suggest somewhere between two and 10 per cent of men have been fooled into raising another man’s child.

The Best British Review was published in the journal Epidemical Community Health ten years ago. It says- “Paternal discrepancy is often discovered by accident – such as through medical tests for an illness which has a genetic element.”

The prevalence is higher among members of lower socioeconomic groups, young parents and first-time pregnancies.A study has also stated: “Higher rates of infidelity are seen among pairs who are not married. Furthermore, time spent apart in marriages or long term relationships is also associated with higher levels of infidelity.

Paternal discrepancy is often discovered by accident – such as through organ donation or medical tests for an illness which has a genetic element. Sometimes a man has tried to father a second child and infertility testing shows that he couldn’t have fathered the first.

Genetic counsellors are the professionals who advise on the results of tests for hereditary conditions, often after samples have been taken from fetuses in the womb as well as from the parents.

And, of course, it’s not just the father who suffers – the son or daughter can fare even worse if it is suddenly discovered that his or her father is, biologically, a stranger. A few years ago a young woman named Elspeth Chapman stumbled upon her mother’s diary and discovered that she was the product of an illicit affair. “I was devastated. I couldn’t believe it. My world began to fall apart after that” she said. The resulting legal case widely tore her family apart and ruined her relationship with the man who had brought her up.

Many admirable men knowingly bring up other men’s children as their own without telling the child, because to do so would confuse and upset them. But for most men, the idea of doing so unwittingly wouldn’t just be a theft of the love, effort and time that they put into the relationship, but would affect them on a primal level, almost as deeply as if their own children were to be taken from them.

We get the word “cuckold” from the cuckoo which lays its eggs in another bird’s nest and the cuckold has been an object of scorn and mockery for as long as he has been around. After all, all it takes is one phone call for any father’s world to be shattered in the same way.

Court of law on Paternity Fraud: Paternity fraud often goes undetected for years. Sometimes it comes to light after medical records reveal that the child cannot possibly be related to the man attributed as the biological father. In cases where paternity fraud has resulted in child support payments, the court is left to decide whether those payments should continue. While it seems on the surface that the obvious answer is “no,” the court’s focus is always on the best interests of the child. As such, the court may:

  • Cease further child support payments, or
  • Order a continuation of child support payments

Continuing Child Support in Paternity Fraud Cases: A court may order a father who is not the biological parent of a child to continue child support payments because:

  • The father has supported the child for a period of time and has acted as the child’s father, and/or
  • The child still needs to be supported and the court believes the child may require government assistance if child support payments cease, and/or
  • Continued child support payments serve the best interests of the child.

Help for Victims of Paternity Fraud: Men who are victims of paternity fraud should attempt to seek action in civil court to collect child support funds back from the child’s mother. Unfortunately, reimbursement is generally considered a long shot.

 

Consequences for a Parent Accused of Paternity Fraud: Unfortunately, there are currently no consequences for mothers who commit paternity fraud. Paternity fraud is not considered a punishable crime, and it’s extremely difficult to collect or recollect funds from the mother in question.

A Word From Verywell– If you suspect that a woman you are or were involved fraud, you should seek a DNA test immediately. (These can be ordered online, but a lawyer experienced in these matters may be able to advise you on which ones will stand up in court.) Parents looking for more information about child support should refer to the specific child support guidelines for their state. Because the child’s mother most likely intended the deception, it is highly unlikely you will be able to resolve the issue on your own. Make sure to speak with a qualified attorney experienced in resolving paternity fraud and obtaining reimbursement for past child support.

Can a Husband Force the Assumed Father to Take a Paternity Test?

Marriage creates legal paternity for children born during its course. If a woman becomes pregnant by a man other than her husband while she’s married, the law in most states presumes that her husband is the child’s father even if they later divorce. However, the husband can set the record straight — and do so as part of the divorce proceedings.

 

How Does a Father Get Custody When the Mother Denies Paternity?

Disputes over custody can hit a snag when a child’s mother denies that an estranged or ex-husband or lover is the biological father of the child. In those cases, you may have to file a paternity suit and undergo a DNA test to establish your claim to your child.

Paternity- a child’s rights issue: With changing social scenario India needs to take this into cognizance and stop child abuse in the form of paternity fraud. Children deprived of their real fathers are forced to live with either their single mother or with someone else who doesn’t care about them. As a result these children suffer from cruelty from their mother as well as their new father. These are the children who resort to crime and drug abuse at a later stage.

Paternity needs to be viewed also as a child rights issue rather than only a women’s rights issue. This child abuse needs to be stopped at the earliest and every child need to be given a right to know the name of the real biological father. It is thus fruitful to conduct a DNA paternity test at the birth of every child as a compulsory measure to determine the paternity of the child to establish this right and stop this child abuse.

 

Paternity Test- A man’s right to know: If women were forced to enjoy the “lack of certainty” they’ll complain loudly about the terrible abuse of the rights. In such high rates of paternity fraud DNA testing should be mandatory on the birth of a child so that men can have same certainty of parenthood that women enjoy.

Government has not made paternity testing compulsory as it is not interested in the ‘wrong’ man is enslaved by women and they don’t care about the broken family that almost inevitably results. They only want some men or any man to pay for the upbringing of that child.

Even Government doesn’t attempt to educate women about their behaviour nor do they even address it as a massive problem.

We see domestic violence documentaries vilifying men every other weekend but no programs vilifying women for their despicable behaviour.

Paternity fraud as far is a more devastative problem in society than domestic violence is. Domestic violence is perpetrated by both  sexes and mostly instigated by women. Paternity Fraud is an abuse exclusively committed by women and its one of the most evil crimes that exists.

She lies and cheats him emotionally and financially. She’s completely selfish with no concern for the man or the child but have you ever seen a news item about the men and children suffering due to paternity fraud? Ever heard a Government or a Police Official telling us about steps they’re taking to tackle paternity fraud?

Isn’t there an emerging need for a paternity bill? Society refers to concentrate on crimes where men can be singled out even when those same crimes are committed by women.

A woman doesn’t need to care who the father is she fulfils her role as a woman by burying the child. A man however is dependent on a woman to fulfil his role.At the time of writing, we can’t think of a worst crime, a greater betrayal of trust or worse abuse of a man than paternity fraud yet it is not even considered a crime in our male dominated society.

Whenever paternity fraud is discussed there is not even a suggestion of arrest or prosecution.Aren’t there men outraged by female behaviour?  They want legal sanction against the despicable women.

We are all thoroughly evident that the psychology of men is suppressed in our society.The very idea of having a paternity test is defined by how she might feel, how the kid might feel, what it means for the relationship, what it means for trust, etc.

Why should a man have to keep himself ignorant and vulnerable in order to have a trustful relationship when women make no equivalent sacrifice?

 

Victims of Paternity Fraud- Oppressed: If it is oppressive that woman doesn’t know where she stands financially and has to have blind faith in her husband then how oppressive is it that man doesn’t know he is a father and has to have a blind faith in his wife. Faith- that’s all too often misplaced.

Equation of Paternity Fraud in Other States

DNA testing is increasingly common and accurate, increasing many people’s awareness that the purported father of a child is not always the child’s biological father. Legal paternity is the recognition by the government that a man is a child’s father. False paternity occurs when a man is inaccurately represented as the child’s father, which may be due to an inadvertent error or deliberate misrepresentation. What DNA testing is doing for us is bringing us to a point where we can have factual evidence for that women.

Paternity laws are similar in each state, but each state has minor variations, so consult local laws before pursuing a paternity action.

Anna Nicole’s million dollar baby: At least four men filed petitions claimed to be the real father of the Anna Nicole Smith’s baby who stands to inherit many millions of dollars. Finally, after DNA tests, ex-boyfriend Larry Birkhead was proven the father of the baby girl, although his rival, Howard K. Stern, had been caring for 7-month-old Dannielynn since the former Playboy Playmate’s sudden death, and his name is on her birth certificate.

 

Arizona State Laws: Title 13 Custody for Unwed Mothers: Arizona state law clearly outlines the requirements for parental custody. The legislature grants unwed mothers custody of a child without any legal action. These rights allow the unwed mother to make decisions regarding the child’s living arrangements and welfare without consulting the child’s biological father. This custody arrangement can later be challenged by a paternity action or court action for custody.

 

CONCLUSION

Robert Baker- a biological psychologist studied paternity fraud and its effects. He found it was a common occurrence and was demonstrably poisonous to family structure and the health and upbringing of children.

Parental care is a very costly and a valuable resource we don’t expect people to spread it about we nearly expect them to direct their parental care to the genetic children undoubtedly because paternity fraud committed by women is so common and its illegal in our country  to get a paternity test without the court order.

Paternity test strengthen the family and improve outcomes for children because they can deliver good news by removing lingering doubts. The truth on whole however painful and uncomfortable it works better for the human psyche. Deception erodes our confidence in our own judgement and a relationship with other people and always adds destructive consequences whether in larger or smaller degrees.

There is an emerging need to criminalise Paternity Fraud. Not only criminalising Paternity Fraud will help eradicate such crime from our society but also punish the wrongdoer. Parliament must pass laws so as to make it a cognizable offence, which allows police to make an arrest without warrant only when the “victim husband” lodge a complaint. Also the offence should be made compoundable, meaning a compromise can be reached at the instance of husband.

 

 

Submitted by:

Pooja Kurian

B.A. LL.B. (Hons.) 5th year

Alliance School of Law, Bangalore

poojakurian96@gmail.com

9739760554

Postal Address: A-46 Umed Park,

Nr. Sattadhar Bus Stand,

Ghatlodia, Ahmedabad-380061

Gujarat.

Male Rape: An Unrecognised Dilemma Needing a Pragmatic Sanction

 

Abstract: Indian law does not recognise that men can be victims of the crime of rape. While deciding so, several discriminatory measures are given as justifications. The ignorance of law on this aspect has caused severe hardships to the male victims who have no resort to avail justice. The need of gender-neutrality is a need that should not be ignored. This write-up throws light upon the reasons for the above-mentioned aspects.

___________________________________________________________________________

In an era focusing on women empowerment, gender-neutrality is an attribute which has almost lost its existence in the legislative derivatives and actions.

The idea that men can be raped has failed to find a justifiable place as a crime.

A particular idea that has been found to be deeply rooted in the Indian parlance is that ‘men can be sodomised, however, they cannot be raped.’ This has become the result of a discrimination that is the basis of the non-existence of legal recourse available to men.

Section 375 of the Indian Penal Code 1860 unambiguously states that rape is an act that can be committed only by a man against a woman. The possibility of a male being the victim of such a heinous act with a female being the perpetrator has been reserved no room at all.

It is to be noted, that child rape survivors are protected under the Protection of Children from Sexual Offences Act, 2012. However, under the current rape laws, the adult male victims are burdened with the lack of no legal recourse and potential social stigma.

A Newly Available Resort?

The ray of hope for a change in discourse and the law was conceived by the rouse caused by the odious incident of gang-rape in Delhi in 2012, commonly known as the Nirbhaya gang-rape case, which directed an increasing pertinent attention of the country as a whole on the crime of rape. This led to a wave of revived encouragement among the male rape survivors, who subsequently began to come forward with their life-shattering experience and advocated for formulation of a dedicated rape legislation for the male rape victims.

In 2013, the Legislature in the Criminal Law (Amendment) Ordinance, 2013 had replaced ‘sexual assault’ for ‘rape’ and made the crime gender-neutral from the aspect of both perpetrator and victim.[133] However, this positive had an inherent negative to it as well. Although, the problem with recognition of male victims and female perpetrators was resolved, the use of the work ‘rape’ was omitted, which obstructed an imperative impact.

Markedly, the said aspect failed to find a place in the Criminal Law (Amendment) Act, 2013 (hereinafter referred to as the Amendment Act, 2013), as the usage of the word ‘rape’ along with the contention of the perpetrator being male and the victim female emerged victorious.[134] It was based on the argument of unrelenting lobbying forces that the act of rape is an unequivocally patriarchal offence, a resultant consequence of incongruous abuse of male power and privilege.

Therefore, for the charges of rape to come into fruition, the perpetrator needs to be male and the victim must be a female. The odd exception of the said rule is the maintaining of gender-neutral language for perpetrators of gang-rapes only.

It is not an unknown and disagreeable fact that the notion of rape gets its basis from power. However, this cannot be and should not be used as a basis for discriminating between the victims of rape.

The Definition and its Resounding Limitation

The international conventions, while determining what constitutes rape, hold the view that penile-vaginal to penile-orifice and then to penetrative-orifice, all fall under the purview of a non-consensual context. Therefore, by the last definition, the physical insertion or any kind of violation with blunt objects by a victim by the perpetrator would constitute rape.[135]

The current stand of Indian legal system, i.e. after the Amendment Act, 2013, is in consensus of the international standards. Now, taking an instance where a female prisoner in jail goes through the same aforementioned violation by the other female prisoners, it would not constitute rape under the Indian legal system due to the mandate of the victim needing to be female and the perpetrator needing to be male. It would be considered as an assault, even though the victim was forcefully penetrated in a sexual manner by the perpetrators.

The situation would have a similar yield if the victim were a child, as the Protection of Children from Sexual Offences Act, 2012 allows for a charge of sexual assault to be levied, but not that of penetrative sexual-assault. Several parliamentarians, while discussing upon the Amendment Act, 2013 had vehemently argued that only members of one sex, referring to male, could commit an act of rape and only the other sex, referring to female, can be raped; as the rape stems from patriarchy.

It can be inferred that the Parliament is of the view that women and not capable of committing crimes of power against each other. However, a case had been brought to the Bombay High Court which involved an alleged molestation of one woman by another. Thus, this is a spot-on example which sheds light over the shallow argument of the parliament which was the basis of the rejection of the attempt to bring gender-neutrality in the Amendment Act, 2013.

The Statistical Severity of Ignorance

As stated above, the Indian laws do not recognise that men can be victims of rape. Therefore, there is no way of determining the number of male rape victims in India as an effort to do so is not undertaken due to the said fact.

In India, while only considering child abuse, the Government in 2007 had surveyed that out of the 53.2 per cent children reporting severe sexual abuse, which included rape, sodomy etc., 52.9 per cent were boys.[136]

Further, a study conducted by the Centre for Civil Society garnered a result of 18 per cent males asserting of rape, out of which 16 per cent claimed to face women perpetrators and 2 per cent facing male perpetrators.[137]

The manner in which justice can be provided to the male victims of rape is to bring necessary changes under Section 375 of the Indian Penal Code, 1860. It is argued that Section 377 of the same Act, does provide some relief. However, the said section talks of sodomy which is not considered to be rape. With the recent judgement of the Supreme Court of India which decriminalises Section 377,[138] just brings about a distinction between consensual sexual acts and non-consensual sexual acts between two male adults, as the former is decriminalised. However, non-consensual sexual acts are still not termed as rape which is discriminatory and in cases where the perpetrator is a woman, there is no recourse available at all.

Need for the Gender-Neutral Stance

The opposition focuses on two major issues; firstly, the idea of rape being separate from female-specific upshots for the survivor, and secondly, the abuse of gender-neutral language by men.[139]

While considering the former, it is not unclear that except the humiliation and shame suffered by both male and female victims, there are some specific hardships gone through by the female victims. Socially, one such reason could be the higher value that is placed upon maintenance of female virginity and its sacredness in the Indian society.

However, the hardships that are suffered by male victims cannot be undermined. The social stigma may be in the form of being apprehended as effeminate or homosexual, which are unequivocally felt only by male rape victims and not by the female victims.

There might be some gender-specific effects which is not felt by the other, but inherently, the damaging effect, physically and psychologically, is the same and this cannot be ignored. The sameness of crime should not be considered, but the sameness of effect is to be given heed.

Further, while considering the latter, primarily it would imply that some specific victims are to be given more importance than others, ignoring the fundamental right of equal protection before law under Article 14 and Article 15 of the Constitution of India.

Markedly, the abuse of gender neutrality is a definite possibility, but that does not tarnish its need and effectiveness. For example, a male perpetrator may allege that he was raped by the victim, but all accusations of rape need to be backed up by enough proof in any court of law. For women victims, the administered rape kits should act as a proof. However, for a male victim a definite proof would be difficult to be submitted.

Therefore, the need of gender-neutrality is a certain one which overshadows its abuse.

Conclusion

As discussed, if rape is made gender-neutral, exploitation by men would be certain. But, the probability of victims to be legally supported by gender-neutrality is considerably more significant.

It is not debated that rape is separate of patriarchy. Patriarchy does supplement it, but not entirely. Power is not the only basis of the crime of rape; the mindsets, economic, social, and political positions of the perpetrators have an equal role, irrespective of them being male or female.

The standpoint of the act of rape can exclusively be committed by a man by violating a woman is nothing but severe injustice and discrimination to the victims solely based on their biological sex. The effect of the crime of rape is essentially and inherently the same as suffered by both male and female victims.

Therefore, along with such injurious hardships faced by the male rape victims due to the heinous act, not entitling them of a legal sanction just adds to their adversities. With the changing times, the laws need to change and incorporate necessary variations. Among them could be providing the necessary legal sanction to male rape victims and honouring their right to equal protection by law.

Sub-Theme: Death Penalty almost exclusively targets men

Title of the Paper: Human Rights and Death Penalty

Name of the Author: Dr. Balbinder Kumar (Assistant Professor)

Name of the Institute: UILS, PUSSGRC, Hoshiarpur.

E-mail Address: krbalbinder@gmail.com

Postal Address: Ward No. 49, Mohalla Salwara, Hoshiarpur.

Contact Number: 6239065776

Abstract

Human Rights and Death Penalty

Human rights are viewed by many as rights are viewed that are held by everyone simply by virtue of being. Their foundation stems from the view that all certain rights that everyone should have. In any discussion on human rights, the Universal Declaration of Human Rights is of great importance. It is signing in 1948 by the United Nations (UN) marked the, true start of the international protection of human rights. The declaration was a response to the atrocities committed during the Second World War. The Declaration set out of fundamental rights; these included the right to life and freedom from torture. These two rights are of vital importance in relation to the death penalty.

Human rights or right to life is a phrase that describes the belief that a human being has an essential right to life, particularly that a human being has the right to not to be killed by another human being. The concept of a right to life is central to debate on the issues of death penalty. Death Penalty is a highly controversial and divisive issue, and trying to stay neutral is not always easy and one wants to denounce death penalty as having many limits in its constitutionally. The U.S. death penalty system flagrantly violates human rights law. It is often applied in an arbitrary and discriminatory manner without affording vital due process rights. Moreover, methods of execution and death row conditions have been condemned as cruel, inhumane or degrading treatment and even torture.

This paper will look at the trend towards death penalty as it has emerged over recent decades. Though we analyzed many aspects of the death penalty, this research is far from being exhaustive. The death penalty is indeed an issue too broad to analyze all its aspects in precise details. It has been practiced in some form or another since the earliest recorded times and in virtually every society around the world.

Keywords: human rights, death penalty, Constitution, U.S., fundamental rights, discrimination, freedom.

Research Paper

Human Rights and Death Penalty

India stands poised between the global trend to end the death penalty and those nations that continue to execute. Like many of the diminishing number of nations that still apply the death penalty, over the last two decades, India has reduced the number of executions carried out. The Indian Judiciary has ruled that the death penalty for murder must be restricted to the “rarest of rare” cases, but this instruction has been contradicted by the legislature increasing the number of offences punishable by death. The death penalty is mandatory under two of the relevant laws, including for drug-related offences. Death sentences have been imposed on people who may have been children at the time of the crime, and on people suffering from mental illness. There are grave concerns about arbitrariness and discrimination in the processes that lead to people being sentenced to death. Such factors would render India’s use of the death penalty to be in violation of international laws and standards.

The term punishment is defined as, pain, suffering, loss, confinement or other penalty inflicted on a person for an offence by the authority to which the offender is subjected to. Punishment is a social custom and institutions are established to award punishment after following criminal justice process, which insists that the offender must be guilty and the institution must have the authority to punish.

The Indian penal code provides for capital punishment for criminal conspiracy, waging or attempting to wage against the government of India, abetment of mutiny giving or fabricating false capital evidence in officers leading to the conviction, abetment of suicide committed by a child decoity. In India, death penalty is discretionary rather than mandatory in all capital offence except in case of murder by a life correct section 303 of an IPC lays down whomever, being under sentence of imprisonment for life, commits murder shall be punished with death.

It was 1931 where the death penalty was seriously challenged in the Bihar Assembly. A member of the Assembly unsuccessfully sought to introduce a bill seeking its abolition. In 1946, on the eve of independence then Union Home Minister stated that the government did not think it were to abolish capital punishment. Ten years late when the government asked the states for their opinions, most of them expressed support for the death penalty.

Amnesty International is urging the Government of India to declare an immediate moratorium on executions with a view to abolishing the death penalty. As an emerging global and regional power and a party to the International Covenant on Civil and Political Rights and the other international human rights treaties, India has an opportunity to exercise regional leadership and to strong signal of its determination to fully uphold human rights by abolishing the death penalty. The worldwide trend towards abolition is strong and clear. Outside China, an execution is becoming a rare event. Vast swathes of the world are now execution-free. In Africa only five countries executed in 2007; Belarus is the only European country that continues to use the death penalty; and the USA is the sole country in the America to have carried out any executions since 2003.

The Death Penalty Process

Under the ordinary criminal law, all trials involving a possible death sentences are initially held before a District and Sessions Court at state level. Death sentences imposed in such trials must be reviewed by the High Court of the same state, which has the power to direct further inquiry to be made or additional evidence to be taken upon any point bearing on the guilt or innocence of the defendant. In the High Court a bench comprising a minimum two judges must, on appreciation of the facts, come to its own conclusion on guilt and award sentence as deemed fit in the circumstances of the case.

Constitutionally and Procedural Reforms

At independence in 1947, India retained the 1861 Penal Code which provided for the death penalty for murder, requiring judges to state the reasons if a death sentence was not imposed (VENKATESAN, V. (7 September 2012)). During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the ideal of abolishing the death penalty, but no such provision was incorporated in the Constitution. Private members’ bills to abolish the death penalty were introduced in both houses of the parliament over the next two decades, but none of them was adopted.

In 1973, the Supreme Court of India upheld the constitutionality of the death penalty for the first time in the case of Jagmohan Singh v. State of U.P. (Air 1973 SC 947). In the same year, a new Code of Criminal Procedure was adopted. The new Code required judges to note ‘special reasons’ when imposing death sentences and required a mandatory pre-sentencing hearing to be held in the trial court. The requirement of such a hearing was obvious, as it would assist the judge in concluding whether the facts indicated any special reasons to impose the death penalty.

In 1980, the supreme Court again upheld the constitutionality of the death penalty in the key case of Bachan Singh v. State of Punjab (with 7 other cases), although the bench was not unanimous. The judgment called for aggravating and mitigating circumstances with reference to both the crime and the convicted prisoner to be considered in passing sentence and emphasized that the death penalty should be used only in the rarest of rare cases.

In 1991, a Supreme Court bench again upheld the constitutionally of the death penalty in Smt. Shashi Nayar v. Union of India and others (AIR 1992 SC 395). The Court did not go into the merits of the argument against constitutionality, arguing that the law and order situation in the country had worsened and now was therefore not an importunate time to abolish the death penalty. An argument which assumes executions address such situations. Gradually, in the course of social evolution, a consensus forms among nations and peoples that certain practices can no longer be tolerated. Ritual human sacrifice is an example; slavery, too, has been largely abandoned; physical torture is widely condemned by most nations.

Vestiges of these practices may continue, but those are aberrations that further underscore the fact that the world has turned against these practices. A majority of countries in the world has now abandoned the use of the death penalty. But the world has not yet formed a consensus against its use. The most populous country in the world, China, executes thousands of people every year, and the most powerful country, the United States, uses it regularly. Eighty-four countries retain the use of capital punishment. However, the number of countries employing the death penalty is declining and it is possible that worldwide opinion and pressure will gradually influence all countries to abandon this practice.

 

 

The Human Rights Debate

Defining the death penalty as a human rights issue is a critical first step, but one resisted by countries that aggressively use the death penalty. When the United Nations General Assembly considered a resolution in 1994 to restrict the death penalty and encourage a moratorium on executions, Singapore asserted that “capital punishment is not a human rights issue. In the end, 74 countries abstained from voting on the resolution and it failed. Similarly, Trinidad and Tobago, in withdrawing from the human rights convention of the Organization for American States and preparing to resume executions, insisted that “The death penalty is not a human rights issue.” However, for an increasing number of countries the death penalty is a critical human rights issue. In 1997, the U.N. High Commission for Human Rights approved a resolution stating that the “abolition of the death penalty contributes to the enhancement of human dignity and to the progressive development of human rights. That resolution was strengthened in subsequent resolutions by a call for a restriction of offenses for which the death penalty can be imposed and for a moratorium on all executions, leading eventually to abolition.

India is among countries like the U.S., Japan, Pakistan, South Korea and China where the death sentence is awarded. China is on the top in the execution of capital punishment. In some Arab countries, beheading is done in public and stoning to death also prevails. Hanging is a British method and our freedom fighters sacrificed their lives suffering hanging under the British rule. The French Revolution followed the guillotine, but in America, the electrical chair, gas chamber and putting to sleep by less painful lethal drugs are commonly adopted. In olden days, we had crucifixion, throwing to the lion, dropping in boiling water-tanks or being exposed to poisonous snakes. All these had religious sanction. The European countries have done away with capital punishment and the abolition of capital punishment is now a condition for membership of the EU. (https://www.thehindu.com/opinion/open-page/Human-rights-and-capital-punishment/article16876253.ece)

History of Death Penalty

In colonial India, death was prescribed as one of the punishments in the Indian Penal Code, 1860 (IPC), which listed a number of capital crimes. It remained in effect after independence in 1947. The first hanging in Independent India was that of Nathuram Godse and Narayan Apte in the Mahatma Gandhi assassination case on 15 November 1949. Under Article 21 of the Constitution of India, no person can be deprived of his life except according to procedure established by law.

Bachan Singh vs. State of Punjab (1980)

The Constitution Bench judgment of Supreme Court of India in Bachan Singh vs. State of Punjab (1980) (2 SCC 684) made it very clear that Capital punishment in India can be given only in rarest of rare cases. This judgement was in line with the previous verdicts in Jagmohan Singh vs. State of Uttar Pradesh (1973), and then in Rajendra Prasad vs. State of Uttar Pradesh (1979). The Supreme Court of India ruled that the death penalty should be imposed only in “the rarest of rare cases.” While stating that honour killings fall within the “rarest of the rare” category, Court has recommended the death penalty be extended to those found guilty of committing “honour killings“, which deserve to be a capital crime. The Supreme Court also recommended death sentences to be imposed on police officials who commit police brutality in the form of encounter killings.

An appeal filed in 2013 by Vikram Singh and another person facing the death sentence questioned the constitutional validity of Section 364A of the Indian Penal Code.

Other legislation

In addition to the Indian Penal Code, a series of legislation enacted by the Parliament of India have provisions for the death penalty. Sati is the burning or burying alive of any widow or woman along with the body of her deceased husband or any other relative or with any article, object or thing associated with the husband or such relative. Under The Commission of Sati (Prevention) Act, 1987 Part. II, Section 4(1), if any person commits sati, whoever abets the commission of such sati, either directly or indirectly, shall be punishable with death.

The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 was enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes. Under Section 3(2) (i) of the Act, bearing false witness in a capital case against a member of a scheduled caste or tribe, resulting in that person’s conviction and execution, carries the death penalty. In 1989, the Narcotic Drugs and Psychotropic Substances (NDPS) Act was passed which applied a mandatory death penalty for a second offence of “large scale narcotics trafficking”.

In recent years, the death penalty has been imposed under new anti-terrorism legislation for people convicted of terrorist activities. On 3 February 2013, in response to public outcry over a brutal gang rape in Delhi, the Indian Government passed an ordinance which applied the death penalty in cases of rape that leads to death or leaves the victim in a “persistent vegetative state“. The death penalty can also be handed down to repeat rape offenders under the Criminal Law (Amendment) Act, 2013.

In January 2014, a three-judge panel headed by Chief Justice of India Palanisamy Sathasivam commuted sentences of 15 death row convicts, ruling that the “inordinate and inexplicable delay is a ground for commuting death penalty to life sentence”. Supreme Court of India ruled that delays ranging from seven to 11 years in the disposal of mercy pleas are grounds for clemency. The same panel also passed a set of guidelines for the execution of a death row convict, which includes a 14-day gap from the receipt of communication of the rejection of the mercy petition to the scheduled execution date, after going through the Shatrughan Chauhan vs. Union of India case. Subsequently, in February 2014, Supreme Court commuted death sentence of Rajiv Gandhi’s killers on the basis of 11-year delay in deciding on mercy plea. It was subsequently commuted to life imprisonment. In March 2014, Supreme Court of India commuted death sentence of Devinder Pal Singh Bhullar, convicted in a 1993 Delhi bombings case, to life imprisonment, both on the ground of unexplained/inordinate delay of eight years in disposal of mercy petition and on the ground of insanity/mental illness/schizophrenia.

Theories of Punishment

To punish criminals is a recognized function of all civilized States for centuries. But with the changing patterns of modern societies, the approach of penologists towards punishment has also undergone a radical change. The penologists today are concerned with crucial problem as to the end of punishment and its place in penal policy. Though opinions have always different as regards punishment of offenders varying from age-old traditionalism to recent modernism, broadly speaking four types of views can be distinctly found to prevail. Modern penologists prefer to call them ‘theories of punishment’. The lines of demarcation between these theories are, however, so then they cannot be completely separated from each other.

The eighteenth century utilitarian formulated a social policy which provided a blue print for working out penal reforms and legislation in England during the Benthamite era. The major theories of punishment laid down during that person are relevant even to this day excepting the theory of retribution, which stands completely discarded in modern penal programmes. These theories are briefly stated as follows.

  • Deterrent Theory: ‘Deter’ means to abstain from doing to act. The main objective of this theory is to deter (prevent) crimes. It serves a warning to the offender not to repeat the crime in the future and also to other evil-minded persons in the society. This theory is a workable one even though it has a few defects.
  • Retributive Theory: Retributive means to give in return. The objective of the theory is to make the offender realize the suffering or the pain. In the Mohammedan Criminal law, this type of punishment is called ‘QISAS’ and ‘KISA’. Majority or Jurists, Criminologists, Penologists and Sociologists do not support this theory as they feel it is brutal and barbaric.
  • Preventive Theory: The idea behind this theory is to keep the offender away from the society. The offenders are punished with death, imprisonment of life, transportation of life etc. Some Jurists critize this theory as it may be done by reforming the behaviour of criminals.
  • Reformative Theory: The objective is to reform the behaviour of the criminals. The idea behind this theory is that no one is born as a criminal. The criminal is a product of the social, economic and environmental conditions. It is believed that if the criminals are educated and trained, they can made competent to behave well in the society. The Reformative theory is proved to be successful in cases of young offenders.
  • Expiatory Theory: Jurists who support this theory believes that if the offender expiates or repents, he must be forgiven. The Indian Penal Code is a combination or compromise between the underlying principles of all these theories.

Death penalty in Independent India

At least 100 people in 2007, 40 in 2006, 77 in 2005, 23 in 2002, and 33 in 2001 were sentenced to death (but not executed), according to Amnesty International figures. No official statistics of those sentenced to death have been released.

About 26 mercy petitions are pending before the president, some of them from 1992. These include those of Khalistan Liberation Force terrorist Devinder Pal Singh Bhullar, the cases of slain forest bandit Veerappan‘s four associates—Simon, Gnanaprakasham, Meesekar Madaiah and Bilvendran—for killing 21 policemen in 1993; and Praveen Kumar for killing four members of his family in Mangalore in 1994.

In June 2012 it became known that Indian president Pratibha Patil, near the end of her five-year term as president, commuted the death sentence of as many as 35 convicts to life imprisonment, including four on the same day (2 June), which created a storm of protest. This caused further embarrassment to the government when it came to light that one of these convicts, Bandu Baburao Tidke—convicted for the rape and murder of a 16-year-old girl—had died five years previously from HIV.

There have been calls for the introduction of the death penalty for rapists and molesters, especially since an infamous 2012 Delhi gang rape case and later crimes.

History of Death penalty in India

The ancient law of crimes in India provided death sentence for quite a good number of offences. The Indian epics, viz., The Mahabharata and the Ramayana also contain references about the offender being punished with the vadhadand which meant amputation by bits. Fourteen such modes of amputating the criminals to death are known to have existed which included changing and imprisonment of the offender. The great ancient law-giver Manu also placed the element of fear as an essential attribute of judicial phenomenon. According to him, in order to refrain people from sinful murders, death penalty was necessary and in absence of this mode of punishment, state of anarchy will prevail and people would devour each other as the fish do in water, the stronger eating up the weaker.

During the medieval period of Mughals rule in India, the sentence of death revived in its crudest form. At times, the offender was made to dress in the tight robe prepared out of freshly slain buffalo skin and thrown in the scorching sun. The shirking of the raw-hide eventually caused death of the offender in agony, pain and suffering. Another mode of inflicting death penalty was by nailing the body of the offender on walls. These modes of putting an offender to death were abolished under the British system of criminal justice administration during early decades of nineteenth century when death by hanging remained the only legalized mode of inflicting death sentence (Paranjape, 2012).

A Brief History of the Death Penalty

The death penalty has been practised in some form or another since the earliest recorded times, and in virtually every society around the world. There is no space, therefore, to provide a thorough history of its use here. Its main focus on certain key trends and dates in a very summary fashion, drawing data liberally from Peter Hodgkinson and Andrew Rutherford’s excellent global survey, Capital Punishment: Global Issues and Prospects.

Death Penalty in Europe

In England and whales, executions had formed part of the ‘bloody code’ which for a long time defined the legal system. For example, between 1770 and 1830, some 36,566 death sentences were passed, resulting in between 6,322 and 7,713 executions (Gatrell,1994). However, after 1861, these numbers declined, and murder and treason were, in practise, the only remaining capital offences. The Murder (Abolition of the Death Penalty) Act of 1965 officially abolished it for all but the, ‘exceptional crimes’ of piracy and treason (following the UK’s last execution in 1964), and this was confirmed by a free vote in 1969. Total abolition for all crimes was finally agreed in 1998.

The Death Penalty in the United States of America

American criminal law developed directly from the English ‘bloody code’ of the seventeenth century, when hanging was used liberally (Hugo, 1967). After the Civil War, during the Period of reconstruction, the federal laws concerning capital punishment were relaxed, and during the subsequent period of progression, many states abolished it. This reform did not last, however, and by the 1920’s many states had reimposed the punishment. It was only during the 1950’s and 1960’s, during a period of increasing discontent with the formal legal or political structures, that abolition once again became an important issue.

Death Penalty around the World

Although it would be ludicrous in this space to offer a genetic world history of the death penalty, complete with the constitutional and legal references, a few points are worthwhile. One is that, even though the death penalty is no longer employed in the United Kingdom, it is still used in a number of commonwealth territories in the Caribbean, and for a number of these, the Judicial Committee of the Privy Council in London remains the final court of appeal (Edward, 1996). Similarly, in commonwealth Africa, political independence did not lead to radical transformations in the penal system, and very few countries responded favourably to the trends towards abolition (John &. Simon, 1996).

Cultural –Ideological conditions of the Death Penalty

The most common ‘cultural’ demand for the death penalty comes from religion, but there is a peculiar relationship between religion and the death penalty. Often, the most vehement ligitimations for the maintenance of the capital system are based on religion. Also, historically, major religions have supported the practice. The Church of England Provided support for it time and again in England during the eighteenth and nineteenth centuries, when abolitionist sentiment was strong – capital punishment was seen as an Institution, for which the Church willingly provided the intellectual and spiritual justification (Potter, 1993). Religion, of course, can be a persuasive force in any argument. Whether they are guided by their religious leaders or independent of them, many people find justification for the death penalty in the major religious texts of the world.

Conclusion

The death penalty has been a controversial issue for many years. It was established centuries ago and has been accepted by society. It was to put into place to punish those who had committed an offence against laws of the institution that was in place at the time. Though we analyzed many aspects of the death penalty this research is far from being exhaustive. The death penalty is indeed an issue too broad to analyze all its aspects in precise details. And yet I tried to focus on the main aspects of the death penalty and above all those which carry irregularities and which may induce that it carries some unconstitutional points. We observed that the death penalty, because the United States is a divided country, is not imposed nor carried out in the same manner in every state. We have seen the different methods of execution and the crimes punishable by death which permitted to better understand how capital punishment works. A clear view of the Constitution is also necessary to know its functioning, that is why we also had first to analyse amendments of the Constitution and dig deeper to understand its meaning.

BY- PULKIT PANDEY

SCHOOL OF LAW, UPES, DEHRADUN

3RD YEAR BBA LLB CORPORATE LAWS

CONTACT NUMBER- 9958452368

 

RUPENDRA SINGH RATHORE

SCHOOL OF LAW, UPES, DEHRADUN

3RD YEAR BBA LLB CORPORATE LAWS

CONTACT NUMBER- 7737748128

Abstract

Justice for Men’s Rights; Emerging Issues & Concerns

The Indian society has always thought of women to be the weak link of the Indian society the lawmakers have always tried to protect their interest in society but the crime has increased for both the genders of the society. If the women are not safe so are the men of the society. The lawmakers have always made laws, which protect the interest of the women and leave the interests of the men unattended.

There are many laws which are gender biased practiced in India, which give privilege to the females and abstain from protecting the rights of the males of the society. Some of these laws are Hindu Succession Act, 1956, Indian Penal Code, 1860, Hindu Adoption & Maintenance Act, 1956 and a few more. The paper will through light on all such laws and will try to conclude to protect the interest of the males in the society.

The lawmakers did not pay proper attention while making these women centric laws that these laws can be misused against the men and hamper their interest; Domestic violence Act is one such act, which can easily be misused as it says to take action as soon as the complaint is lodged. It does not cross check that the complaint so filed is true or false by the very facts of the case as filed by the complainant. Also, no action is taken against the girl if the complaint so filed is found false. The research paper will be dealing with all such laws as well with laws like Domestic Violence Act, which pronounces the males to be guilty without having proper evidence or without proper investigation on the issue for which the complaint was filed.

After emphasizing on the laws said above, the research paper will try to come to a conclusion of how to make there laws gender balanced and make the society a better place for males as well.

Introduction

Our country got independent from the rule of British in 1947 and after 71 years of independence India stood as the most progressive democracy, yet discrimination in various forms is still prevailing in our country. Gender discrimination is one such form of discrimination prevalent in the Indian society.The Indian society has always thought of women as the weak link of the societyand the lawmakers have always tried to protect their interest in the society. Various laws have been made foruplifting of women and for protection of their rights in the society. But many a times the legislature as well as the judiciary forgets that equality is not a concept of women empowerment but that of gender equality. The laws have been made for curbing the crime against women but no consideration is given by the law makers if the same crime is happened with the men. Although our country has been signatory for many international covenants for the protection of the rights of individuals such as, The  Universal Declaration of Human Rights,1948, The International Covenant on Civil and Political Rights, 1966, etc., but when it comes to promote gender neutral laws , India has failed in it.

What is Gender Neutrality?

The Oxford Dictionary describes “Gender Neutrality‟ as an adjective that is suitable for, applicable to, or common to, both male and female genders. It describes the idea that policies, language, and other social institutions should avoid distinguishing roles according to people’s sex or gender, and emphasizes on the equal treatment of men and women legally with no discrimination.[140]Gender neutral laws define the meaning of gender specific laws where the made has framed and implemented for the protection of all the persons equally without any difference. The laws should be made for the equal protection of rights of the all the persons without focusing on specific sections of the society.

The ever increasing crime rates of various types and nature increasing and men and women of the society are equally victimized, it is only fair that an all-encompassing law that recognizes the crime and the person committing the crime irrespective of the gender should come into existence. That there has been strong objections are raised by the various people and feminist groups on gender neutral laws coming into force on the ground that it will shift the focus lens off the women who are the victims and that the gender neutral laws would do only harm and will not fulfill the protection of the victims. But this scenario completely ignores the fact that both men and women equally should be able to seek protection under the law. The Supreme Court in the very beginning of this year i.e. 2018 ignored the plea of making rape law a gender- neutral law. Similarly, there are many laws which have ignored the concept of gender neutrality in their provisions such as Section 497 of IPC punishes males for the crime of Adultery but if women commit the same offence they are exonerated from that crime, Section 498 punishes males for enticing married women with criminal intent but what if the women entice a married male with criminal intent? The provision has no answer to it. Section 498A of IPC talks about cruelty on woman by the husband or by the relatives but it gives no consideration to the same acts done by women, Section 375 of IPC defines rape as the sexual intercourse ‘by a man’ without the consent of women and it provides various other reasons in the clauses of the provision but what if the intercourse was consensual between both of them and later, the woman falsely alleges the male for rape or that the women forced the male for sexual intercourse. The provision punishes the males for rape, but if males are raped then women are exonerated. Provisions of Hindu marriage Act, Special marriage Act, or Parsi marriage and divorce Act leave a question regarding adultery in head Section 13(1) (i) of the Hindu Marriage Act, 1955, section 27 (1) (a) of Special Marriage Act, 1954, Section 32D of Parsi Marriage and Divorce Act 1936, Section 10 of the Indian Divorce Act, 1869– all these provisions have somewhere or the other have left no way for the husband to prove adultery (a crime under the Indian Penal Code, 1860). Various others laws are prevalent in the Indian society which are discriminative to men. The stereotypical beliefs have to be broken so as to consider male victimization as equal as women on the terms of gravity and criminality and that the crimes have to be fought against together by bridging the gap of inequality and it starts by making the laws gender neutral. With the view to bring some reforms in the law the government constitutedVerma Committee[141] under the chairmanship of the former Chief Justice of India, Justice J.S. Verma to recommend rules for the for the protection of women and these rules came to conclusion as the Criminal Law Amendment (Act),2013. The proposal included neutral and unbiased assault and rape laws, the pressure from activist persuaded the parliament not to take the recommendations of the committee into the consideration and these impartial laws are not implemented.

Male Rape

In India the rape laws also comes under the purview of laws which can be said to be gender biased in nature. Section 375 andSection 376 of the Indian Penal Code, 1860deals with the crime of rape. According to both the sections the victim of the crime of rape can only be a woman and only a man can be convicted of committing rape.  The above presumption would be challenged with respect to two scenarios. The two of them are when Female commits sexual offence on a man & when a male commits the same offence on a man.

1.Female committing offence on a male

The laws related to sexual harassment or stalking are gender specific i.e. the person committing the crime can only be a man and the victim can only be a woman. The lawmakers are of view that that the victim of rape can only be woman. This view is based on the assumption that rape is the result of uncontrolled desire of the accused to satisfy his sexual. There are laws which have been made for the protection of the rights of women and for their safeguard. But on the other hand if we focus on the reality of increasing crimes against women such as assaults, rape, sexual harassment, etc. there is another blatant truth which is overshadowed by these women centric legislations and crime that is the crime against the men. The presumption of the society is that only women get sexually abused and that men are not abused ultimately held them accused of the crimes.

This is based on the presumption that rape includes only penile-vaginal penetration.[142]But the definition of rape is not, as hitherto, limited to penile-vaginal penetration anymore in India. It includes insertion of objects, oral and anal penetration as well.[143] Secondly, even if it is penile-vaginal, it cannot be said that arousal, i.e. erection of the penis implies consent. This argument is based on various studies which have shown that anxiety, fear and humiliation can cause erection.[144]

Part III of the Constitution guarantees fundamental rights to every citizen of India.[145] Article 14 enshrines the right to equality before law and Article 15 provides for prohibition of discrimination on the grounds of sex. Men therefore must be entitled to the same rights as women. Even through male rape is a less frequent occurrence than female rape, they cannot be denied of the right to equality.

According to JocelynneScutt:

“The principle of criminal law is, surely, that all persons should be protected equally from harm of like degree. The case for treating crimes of like heinousness similarly appears to be stronger than that calling for a distinction to be made between penetration of the female body and penetration of the male body, whatever the sex of the actor.”[146]

Gender neutrality has been as against feminist principles and an attack on women activists.[147] Feminists have criticized it as a ‘backlash against feminism’.[148] However, a different perception can be encouraged which shows a fact that gender neutrality is not anti-woman. Various feminists have actually recognized male victimization.[149] For e.g., Susan Brownmiller in her Against Our Will: Men, Women and Rape has also suggested that the offence must not be bound by the victim’s gender.[150]  In essence, a gender neutral law does not make female victims more vulnerable but just acknowledge the existence of male victimization.[151]This simple analogy which has been misinterpreted in a manner injurious to the women and it need to be conveyed in a manner which is acceptable to the norms of ever evolving society.

The social disrespect that women victims face is a harsh reality in India. However, this cannot be a reason to deny protection to the male who suffer the consequences of the same crime. Men also face disrespect in the society and other consequences which will be show below.

If a man alleges that a female raped him, he is not seen as a ‘real man’ because of course, the stereotypical patriarchal assumption of ‘men are superior and stronger to women’ comes into play.[152] The ‘male domination’ and the notion of patriarchy in fact is the only reason that males hesitate to report rapes. Forman (1982) finds that about 90-95% of men who are raped do not report it.[153] Therefore, men are even afraid of reporting rapes. Their masculinity is doubted upon[154]; he is mocked and harassed by the society because he got himself ‘raped by female’. It is seen as his fault.

  1. Male committing offence on a male

In India forceful man on man sexual intercourse is covered under the ambit of section 377 of the Indian Penal Code, 1860 as carnal intercourse being against the order of the nature. It indeed shocks us that in India male in male rape are kept with voluntary sexual intercourse between homosexuals. There should be a demarcation between forceful and consensual sexual intercourse.

The minimum punishment for rape with due respect to changes after Criminal Amendment Act,2013 is seven years while maximum is imprisonment for life.[155] On the same other hand, Section 377, which punishes forceful intercourse among men, has prescribed no minimum punishment. When a minimum punishment is prescribed it is evidence given by the law makers that the crime is a heinous one and therefore, a minimum term of seven years is prescribed for rape.[156]With this presumption above stated ignored it won’t be wrong to conclude that male rape is not even recognized as rape in India, far from being regarded as heinous.

The three member Verma Committee[157] recommended that the victim be made gender inclusive, therefore, sexual assault men, as well as homosexuals, transgender and transsexual persons be covered by the rape law. Flavia Agnes (2013) considers the effectiveness of Section 377 in providing protection for homosexual against violent attacks from either homosexual not heterosexual men and concludes that the law at resent does not provide any protection to these marginalized communities.[158]

Siddharth Narayan (2013) while addressing the plight of rape victims who are not women put forward a very important persistent are pertinent question “Who is to say that the sexual humiliation suffered by transgender persons and men and by those inter-sex persons and sexual minorities not borne a women is a lesser violation of the personal, inner space, a lesser injury to mind spirit and sense of self?[159]

Indeed, this holds true. The law, at present takes away the rights of millions of transgender, transsexual men and sexual minorities which is needed to be looked upon by the law makers.

Conclusion

In the above research analysis an attempt has been drawn by the author to compare various laws in India on sexual offences which are said to be gender biased. The above analysis has been supported by views of various authors and famous personalities including the flag bearers of women right who have shown utmost honesty and integrity in affirming to the fact and accepting the element of gender biasedness in laws particularly the rape laws in India.

In order to better analyses the situation in India the authors have decided to categorizes the problem into two sub issues. The first being crimes committed by females on male body and the second being the crimes committed by man on male body.

The basic research methodology of this paper has been of hypothesis method. In this method a presumption is set up and then throughout the process the same presumption is scrutinized. In the above scenario same approach was followed as the presumption of women only being victim of rape was taken up and it was always scrutinized throughout with the aid of opinions of eminent jurists and renowned sociologist. In the end of the presumption was proved to be wrong.

In the entire scenario the approach of gender biasness has been seen as a clash between the concept of a police state and welfare state. The above gender biased law proves as an example of police state as these are law which are evolved for protection of some of its citizen at the cost of other citizen .With the function of law and order and state being changed the responsibility now rest on the state to provide equality to all the citizens as directed by article 14 of the Indian Constitution. This can be best understood with an analogy of society being a tree and law as its roots . If the society grows then the law has also grow along with it to avoid the situation of chaos and disruption in society. If the situation continues with same respect to gender laws then it would ensure a situation of chaos in the society which would lead to an ever ending struggle between two genders due to creation of a deterrent by law. The sun representing order in society is surrounded by sea of chaos. The only ray of hope before it divulges in the awakening of law makers before it’s too late.

Theme: Male Rape

Title:“Rape, A gender neutral crime- An Analysis”

  1. Author: SarveshDwivedi

Student (LL.B) School of Law, Galgotias University, Greater Noida (U.P) -201306

E-mail:- sarveshdwivedi94@gmail.com

Mob:-9532236352

  1. Co Author: Sudhir Kumar Dwivedi

Student (Ph.D.) JamiamilliaIslamia central university, New Delhi

E- Mail: adv.skdwwivedi@gmai.com

Mob: 9013456805

  1. Co Author: ShubhangiPandey

Student (LL.B) School of Law, Galgotias University, Greater Noida (U.P) -201306

E- mail:  shubhangi.pandey30@gmail.com

Mob:  8920054881

“Rape, A gender neutral crime- An Analysis”

Abstracts

The word ‘Rape’ denotes, in general, sexual assault which is gender neutral. However different definitions of word rape have generalised it. In general any unlawful sexual activity, sexual intercourse carried out forcibly or under threat of injury against the person who is beneath a certain age or incapable valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, deception, falls under the category of rape.

According to section 375 of Indian Penal Code 1860- the offence of ‘Rape’ is defined as ‘an unlawful sexual intercourse between a man and woman without the women consent and against her will. It shows that offence of rape in IPC has been made gender specific. On the other hand u/s 1 of the Sexual Offence act 2003 both woman and man have been made subject of rape.

Rape, should be treated as a gender neutral crime because men and women both can be rape victims as well as perpetrators. But our mind is set on one formula that when we hear word rape it struck to our mind that victim must be a woman. But now day’s situation is changing because this modern era the nature of crime has changed and victim can be man as well. Though the concept of man rape is highlighting in western countries now days, but these things are not new in Indian scenario, though not highlighted. It is originating from ancient time because that time was monarchy time and some monarch was also involved in these things.

During last one decade, argument to declare rape as gender neutral crime is going on not only on social but also on legal forum as well.

This paper will analyse not only modern scenario but also   historical scenario on point of social as well as legal issues in dealing rape as a gender neutral crime. The author also wishes to do comparison on legal status of men rape in developed and developing countries. By doing comparison author in last wish to suggest reforms taking into consideration the socio legal structure of the society.

Key words: Gender neutral, Sexual assaults, Victim, Crime.

 

“Rape, A gender neutral crime- An analysis”

SarveshDwivedi[160]

Sudhir Kumar Dwivedi[161]

ShubhangiPandey[162]

The word ‘Rape’ denotes, in general, sexual assault which is gender neutral. However different definitions of word ‘rape’ have generalised it. In general any unlawful sexual activity, sexual intercourse carried out forcibly or under threat of injury against the person who is under certain age or is incapable of giving valid consent because of mental illness, mental deficiency, intoxication, unconsciousness, deception, falls under the category of rape. All sexually violent crime is committed by great majority men is general presumption.[163]Even when men are sexually victimized, it is usually thought other men will be perpetrators.[164]Rape, should be treated as a gender neutral crime because men and women both can be rape victims as well as perpetrators. But our mind-set is that whenever we hear word rape it struck to our mind that victim must be a woman this is because our culture, society and law, only focuses for woman safety that’s why be never think that man can also be victim of rape . But now day’s situation is changing because this modern era the nature of crime has changed and victim can be man as well, it can be witnessed from liberal interpretation (if act which falls u/s377is done without consent of men/women it should amount rape) of current judgement on section 377 of IPC which declares it  unconstitutional.Even if we admit that men are victim, we never admit that perpetrator will be women. Near about 75% men who are raped, they do not report the crime, because of social structure of society, which from very ancient treat women as victim of society.Though the concept of man’s rape is highlighting in western countries now days, yet these things are not new in the Indian scenario, though not highlighted. It originates from ancient time as that time there was monarchy system and some monarchs were also involved in these things. If we analyse the history we findthat not only in ancient time but even in medieval time there were sex slave and they were both men and women.

The Indian law commission and Macaulay drafted the ‘Indian Penal Code, 1860’ and most of the sections (354, 375 and 376 etc.) relate with sexual offence are gender biased and victimise women only. Definition of ‘rape’ under section 375 of the said Act starts with “A man is said to commit rape” shows that offence of rape in Indian Penal Code has been made gender specific.It fails to provide protection to men against this. It may be because of when Macaulay visited India, Indian legal systemwas governed  by basically  two laws Hindu law ( for Hindu community and Hindu monarch) and Muslim law (for Muslim community and Muslim monarch) which were basically based on custom. Both Hindu and Muslim culture and societyhad same view about “Rape” and that was ‘man can rape and victim will beonly women’. However the hidden fact is this, that man was also victim of rape and sexual assault by monarch and higher authority but one could not disclose it because of the orthodox and patriarchal genders stereotypes social structure and superseding position monarch and higher authority.That’swhy; it was not acceptable in the society that man can also be raped.

However societal and cultural structure has changed by passing of time and associated psychological, social and legal issues has got new dimension in this field.Many laws have taken place as gender neutral and crime is treated as crime and not as crime against men or women.The Sexual Offence act 2003 declares that both woman and man be subject of rape.[165] The protection of children from sexual offences Act 2012, gives protection child survivors of both sexes. But,rape lawsare still in same in dilemma whether to move forward or to stick with orthodox principles. After Nirbhaya gang rape case in2012, heavy attention of nation was to make rape law more deterrent, because in matter of rape it is presumed that deterrent theory will be more effective, but we always forget another angle that, this theory helps to stop those who do such crime in heat or passion, it never helps to stop crime mind-set people and these people make victim not only women but also men. It is well known fact that not only in Jails but even in corporate sector number of male victims are increasing day by day. The most shocking fact is this, that young male are most humiliated in household sector. As we know Indian Cinema is somehow reflection of society, the one movie named ‘BA Pass’ is reflects the same that how young male servant are made victim of rape and they are not less than sex slave as of ancient time. It is often asked that if this is scenario why it is not reported the answer is very simple that in this matter we are still in living in somewhere it is pre supposed that women are suppressed in society and they always bevictim. Another concern for non-reporting may be that even government agencies never produce any data regarding male victim of sexual offence. National crime record bureau (NCRB) never takes into consideration while producing crime data about male victimization in matter of sexual offences.In 2013 Justice Verma committee had given the recommendation that “the perpetrator in rape be recognised in law as’ male’ and the victim be ‘persons’ (including female, males, and transgender)[166]. But this proposal was not taken into consideration and when Criminal law amendment ordinance amended provision relating to sexual offences it was thought that it will make rape gender neutral crime, but it just substituted “sexual assault” for “rape”. Again 6 September 2018, Supreme court  held section 377 of Indian Penal Code to be unconstitutional[167] there was hope that court will elaborate the provision and will declare the act of 377 as rape ifit is against the will whether committed by men or women and whether against the men or women.I am in support of view what are the general grounds of rape should also be available in matter of homosexuality.

The House of Lord in “Knuller Ltd. V. Director of Public Prosecution”[168] has held that notwithstanding the legislation by the Sexual Offence Act, 1967, of homosexual practices in private between consenting parties (adult) above the 21(now 18) years, agreement to encourage such practices continue to be common law crime of conspiracy to corrupt public morals punishable in law.

Criminalisation of sodomy is not unconstitutional in United States: – the U.S. Supreme court in ‘Bowers Attorney General of Georgia v. Hardwick’[169] by a majority of 3 to 4 held that Georgia Sodomy statue prohibiting (criminalising) consensual sodomy by committing that act with another adult male in the bed room of respondent’s home  is not unconstitutional.

Indian constitution enshrines the principles of equality before law and equal protection of law and declares it fundamental rights. But when be analyse we find that these principles do not truly apply in matters of sexual offences. It’s not only our investigation agency but even Indian judiciary treats sexual offences indifferently. Investigating agency prima facie treats male as offender and female as victim. Judiciary to some extent is also tend to women victimisation and sometime bound by legislative words which fall within sections of sexual offences. An intensive data needs to be published by crimes records bureau of the country regarding male victimisation of sexual offences.

sub- theme: gender biased laws

title of the paper: why the children suffer?

name of the author: surabhi

b.ba L.LB (2nd year)

name of the institute: banasthali vidyapith

e-mail address:surabhiv1204@gmail.com

postal address: 6-b saurabh NAGAR NEAR mahaprabhu temple dahtora road BODLA (Agra)

contact number: 7017887856

CHILD CUSTODY

ABSTRACT

WHY THE CHILDREN SUFFER?

Child custody is a legal term that is used to define the lawful and applied relationship between a parent or guardian and a child. The right to make assessment on behalf of children, the responsibility to take care for and livelihood of the children. The person with custody can regulate where they will live, the standard of living and the environment of their training and caution meet certain minimum standard the amount to which he is answerable for their performance. Most parents who are separated discuss custody provisions by their own or by lawyer, mediator or other professionals. As a subject of detail there are a variety of different types of child custody including physical, legal, single and joint custody. As we can see in legal custody, child parents have influence over their children’s background. If it is shared then both parents have contribution into issues relating to schooling, discipline and religion. In physical custody an agreement is done where one parent has physical custody and the other has visitation rights. This custody defines with which parent the child will live. When the responsibility of child is solely taken by one parent it is known as sole custody. This may happen if one parent seems to be unhealthy. And lastly the joint custody, where the parent have shared rights over the kids. In a custody battle between separated parents, a minor child, who has not completed five years of age shall be permissible to stay with the mother. A father can be custodian of the property of minor child but not the guardian of the child is less than five years old. The paper will also discuss different child custody laws in India of different religion like Hindu, Muslim, Christian and Parsis etc.

Keywords: Hindu minority and guardianship Act, divorce, parenting.

Introduction

“It hurts to have a child removed from you for no reason at all. But think about the pain of the child who is being used to hurt you .Now that’s painful.”

What is custody? Custody is the legal right to take care of a child whose parents is divorced. Or care and maintenance of a child that includes the right to direct the child’s activities and make decisions about the child’s education.

What is child custody? Child custody defines when the court awards select child custody to one parent, the non-custodial parent maintains the right to see and visit the child, absent unusual conditions .if the court’s custody judgment fails to mention visitation rights, the law implies the parent’s right to visitation.

Types of child custody

There are two basic types of child custody legal custody and physical custody. These types must be further defined by whether they apply to one parent (sole) or both parents (joint). Now we will discuss about all types of child custody-:

  • Physical custody-: Physical custody refers to the children live with parents who have physical custody and this is the responsibility of every parent that they take care of their children every day. Physical custody also determines the primary residence of the child. The parents are responsible for providing the life essentials for their children’s livelihood such as food, shelter, and clothing.
  • Legal custody -: legal custody concerns how important decisions about a child education are made and parents who have legal custody are able to make legal impacting the child decision on matters.
  • Sole custody-: Sole custody means only one co-parent has custody of child (legal custody and physical custody) and other parent may have visitation right, but does not have any custodial right, and cannot make decision affecting the child.
  • Joint custody-: Joint custody refers to that both co- parents share either physical or legal custody of the child.

When joint legal custody is ordered .both parents have a legal right to be a part of important decision-making processes. How co-parents find the way this joint responsibility day-to-day, however, is normally determined by a family’s preferences. On the other hand, if one co-parent excludes the other from these important decision, they may potentially have to return to court for being in breach of their court order.

Child custody is defined in different ways in every religion. In most cases, both parents continue to share legal child custody but one parent gains physical child custody. Family law courts generally base on the decision on the interest of the child or children, not always on the best arguments of each parent. Child custody is defined in various religions such as-:

Custody under Hindu law-:

All the personal law marital statutes make terms for dealing with the issue of the child custody. The provision in the marital Acts can, however, is invoked only when there is some proceeding pending under the act. The Hindu minority and guardianship Act 1956 (HMGA), apart from this, there is the Guardians and wards act 1890(GWA).  This is a secular law for meeting and assertion of guardians and related matters .irrespective of caste, group of people or religion, through in certain matters. The court will give consideration to the personal law of the parties. The requirements of the Hindu minority and guardianship act (and other personal laws) and the GWA are corresponding and not in derogation to each other, and the courts are thankful to read them together in a pleasant way. In formative the question of custody and guardianship. The supreme thought is the welfare of the minor. The word ‘welfare’ has to be taken in its widest logic, and must include the child’s, moral as well as physical welfare and also have regard to the ties of love.”

The English and Indian decisions are complete with such statement that:

  1. The children of warm year should be faithful to the custody of the mother.
  2. Older boys should be in the custody of the father.
  3. Older girls in the custody of the mother.

But these are judicial statement of general nature and there is no inflexible. And quick rule. As to the children of tender years it is now a firmly recognized practice that mother. Should have their custody since father cannot provide that substance affection which is essential for their appropriate growth. “It contains a provision which lays down that custody of a child upon the age of five should ordinarily be with the mother.[170]

“I have no doubt in my mind that the mother’s lap is God’s own cradle for a child of his age, and that as between father and mother. Other things being equal, a child of such tender age should remain with mother.[171]

In respect of older children our courts take the vision that the male children above the age of sixteen years and female children above the age of fourteen years, should not generally be bound to live in the custody to which they object’ however, even the wishes of the mature children will be given consideration only if they are consistent with their welfare.[172]

“In this case The Court disregarded the wishes of the children as if found these to induce by wholesale persuasion and were even tortured.[173]

Custody of third person. – in general custody should be given to either of the parents. But where welfare so requires, custody may be given to a third person.

“In this case granting custody of two minor children to maternal grandfather. The court says that even if the father was not found unfit, custody might be given to a third person in the welfare of the child.[174]

Custody under Muslim Law:

The first and leading right to have the custody of children belongs to the mother and she cannot be poor of her right so long as she is not found guilty of miscount. Mother has the right of custody so long as she is not capable. This right is known as right of hizanat and it can be imposed against the father or any other person. The mother’s right of hizanat was exclusively recognized in the interest of the children and in no sense it is an unqualified right.

Son: “Among the Hanafis, it is an established rule that mother’s right of hizanat over her son terminates on the later is completing the age of 7 years. The Shias hold the view that the mother is entitled to the custody of her son till he is weaned. Among the Malikis the mother’s right of hizanat over her son continues till the child has attained the age of youth. The rule among the Shafiis and the Hanabalis vestiges the same.”

Daughter: Among the hanafis the mother is entitled to the custody of her daughter till the age of puberty and among the Malilikis, Shafiis and the Hanabalis the mother’s right of custody over her daughter continues till they are married. Under the ithna Ashari Law the mother is entitled to the custody of her daughter till they attain the age of 7 years. The mother has the right of custody of her children up to the ages particular in each school, irrespective of the fact whether the child is justifiable or illegitimate. Mother cannot surrender her right to any person with her husband, the father of the child. Under the Shia school after the mother hizanat belongs to the father. In the absence of both the parents or on their being disqualified the grandfather is allowed to custody. In the middle of the Malikis’s following female are entitled to custody in the absence of mother:

  1. Maternal grandfather
  2. Maternal grandmother
  3. Maternal aunt and great aunt
  4. Full sister
  5. Uterine sister
  6. Consanguine sister
  7. Paternal aunt

Father’s right of Hizanat: all the schools of Muslim law recognize father’s right of hizanat under two conditions that are:

  • On the completion of the age by the child up to which mother or other females are entitled to custody.
  • In the absence of mother or other females who have the right to hizanat of minor children.
  • Father undoubtedly has the power of appointing a testamentary guardian and entrusting him with the custody of his children. Other male relation entitled to hiazanat are:
  1. Nearest paternal grandfather
  2. Full brother
  3. Consanguine brother
  4. Full brother’s son
  5. Consanguine brother’s father
  6. Full brother of the father
  7. Father’s full brother’s son
  8. Consanguine brother of the father
  9. Father’s consanguine brother’s son

‘Among the Shias hizanat belongs to the grandfather in the absence of the father.’

When Right if Hizanat may be lost by Hazina or Hazin. All the school of Muslim law agrees that a hazina should be:

  1. of sound mind
  2. good moral character
  • living at such a place where there is no risk ,morally or physically to the child
  1. of such a age which would qualify her to bestow on the child the care it may need(not applicable to the mother

The Shia law is very categorical and lays down that a person who is ceased to be a Muslim is not entitled to the custody of the child. Also hazina who marries a person not related to the child within the degree of prohibited relationship forfeits her right of hizanat. The cardinal principle of hizanat in Muslim law is the “welfare of the child”. The rights of hizanat cannot be lost on account of her poverty or want of funds to maintain the child. Also neither the father nor the mother has the right to remove the child from the matrimonial home. Hazin may be deprived of the custody of the child if he is a minor or of unsound mind. Also hazing who is leading an immoral life one who is a profitigate has no right to the custody of the child.[175]

In the case Suharabi v. D.Mohammed, the father objected to the mother’s custody of the one-and-a-half year-old daughter on the ground that she was poor; the Kerala High Court held that the mother was authorized to have custody of a daughter of that age under Islamic law.[176]In the case Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, the Andhra Pradesh High court held that the custody of an eleven-year-old boy to the father, on the ground that Muslim Law allowed the Mother to have exclusive custody only until the age of seven in the case of male children, and there was nothing to prove that the father was unfit to be guardian in this case.[177]

Custody under Christian Law:

The Christian law does not any special provision for the child custody but in Christian law the issues are solved by the Indian Divorce Act, 1869. The Indian divorce act is applicable to all the religion of the country. As per section 41 of this act said that, the courts have the right to pass order as to the custody, education and maintenance of the Christian children.  “this section states that The Power to make order as to custody of children in suit for separation- In any suit for obtaining a separation the court may from time to time, before making its decree, as it deems proper with respect to the custody, maintenance and education of the minor children, the marriage of whose parents is the subject of such suit, and may, if it thinks fit, direct proceeding to be taken for placing such children under the protection of the said court.[178]

In a case, the Supreme Court held that all orders relating to the custody of the minor wards from their very nature must be considered to be temporary orders made in the existing circumstances. With the change conditions and circumstances, including the passage of time, the court is entitled to vary such orders if such variation is considered to be in the interest of the welfare of the wards.

In Padmaja Sharma v. Ratan Lal Sharma, [179] the supreme held that the mother was equally responsible to pay towards the maintenance of the child. While pursuing the goal of equality in parental responsibility is laudable, the decision leads to an ironic result – the mother is not deemed a natural guardian and therefore does not have a say in significant decision affecting the child, but she has equal financial responsibility towards the child. Similarly, in a 2004 judgment commenting on a judgment of Karnataka high court that reversed a family court order and allowed the mother to retain custody of the ,minor daughter.

The best interest of the child may have been considered by the courts, but there was no mention of this standard in the orders. The courts did not give any information regarding the factor that they considered or their reasons for awarding custody. The order just mentioned to whom custody was awarded in a particular case.[180]

IN Rosy Jacob v. Jacob A chakramakkak, the supreme held that the custody of the children is given to the mother because she was economically well off and hence, would be able to take care of the children.

Child custody under Parsi Law:

The Paris law also does not have any particular laws pertaining to child custody. In Parsi law all issues related to child custody are deal by the Guardians and ward Act, 1890. Under the Parsi Marriage and Divorce Act, 1936, the wife can claim for maintenance to support their minor children. According to this, the court has to pass an order within 60 days related to custody of Parsi children and their guardianship. In 1950 a decision under the GWA, The Madras High court awarded custody to the mother based on the welfare principle, even though the father was not found unfit to be a Guardian.[181]In the case Vegesina Venkata Narasiah v. Chintalpari, the court held that in the custody of children, children should not be uprooted from their familiar surrounding just to be give effect to the father’s right to natural guardianship.[182] In the case L. Chandran v. Venkatalakshmi, where the child was brought up by the maternal grandparents after the death of the mother, the Andhra Pradesh High Court held that, in the view of Article 21 of the constitution, children cannot be treated as chattel and the father’s unconditional right to the custody over children and their property cannot be enforced, even if the father was not unfit to act as the guardian.[183]

Guardians and Wards Act, 1890

  • The GWA is a secular law regulating question of guardianship and the custody for all children within the territory of India, irrespective of their religion. It authorizes the District Courts to appoint Guardians of the person or property of a minor, when the natural guardian as per the minor’s personal law or the testamentary guardian appointed under a will fails to discharge his/her duties towards the minor. The act is a complete code laying down the rights and obligations of the guardian, procedure for their removal and replacement, and remedies for misconduct by them. It is an umbrella legislation that supplements the personal laws governing guardianship issues under every religion. Even if the substantive law applied to a certain case is the personal law of the parties, the procedural law is what is laid down in the GWA.[184]
  • Section 7 of GWA authorizes the court to appoint a guardian for the person or the property or both of a minor, if it is satisfied that it is necessary for the ‘welfare of the minor.’ Section 17 lays down factor to be considered by the court when appointing guardian. [185]
  • Section 19 of GWA deals with cases where the court may appoint a guardian. Section 19(b) states that a court is not authorize to appoint the guardian to the person of a minor, whose father or mother is alive, and who, in the opinion of court is not unfit to be a guardian.[186]

Hindu Minority and Guardianship act, 1956

  • Classical Hindu law did not contain principles dealing with guardianship and custody of children. In the joint Hindu family, the Karta was responsible for the overall dependents and management of their property, and therefore specific legal rules dealing with guardianship and custody were not thought to be necessary.[187]However, in modern statutory Hindu Law, the Hindu minority and guardianship Act, 1956(hereinafter, HMGA) provides that:
  • In the case of a unmarried minor girl or minor boy , the ordinary guardian is the father, and ‘after’ him, the mother; and
  • The custody of a minor who has not completed the age of five year shall ‘ordinarily’ be with the mother (emphasis added).

There are differences between The GWA and the HMGA lies in the emphasis placed on the welfare principle. In the GWA, The Parental authority supersedes the welfare principle, and under the HMGA, the welfare principle is of paramount consideration in determining guardianship.

Hindu Marriage Act, 1955:

According to section 26 of the Hindu Marriage Act authorizes courts to pass interim orders in any proceeding under the Act, with respect to custody, education and maintenance of minor children according to the children’s wishes. The Section also authorizes courts to revoke, suspend or vary such short-term order passed previously.

 

Conclusion:

“The dominant matter for the consideration of the court is the welfare of the child .but the welfare of a child is not to be measured by money only, nor by physical comfort only. The word ‘welfare’ must be taken in its widest sense. The moral and religious welfare of the child must not be considered as well as its physical well being nor can the ties of affection the disregarded.”[188]

According to researcher some of the measures that can be taken for the benefit of the child at the time of custody are given below:

  • Children need their both mother and father- they seek advice from both of them in different types of situations.
  • Shared custody can reduce acrimony between the parents.
  • Children need adequate opportunities to bond with each parent.
  • At the time of child custody the court held that, the girl child live with her mother and the boy child with his father. But both parents have valuable contribution to make in the lives of children of either gender.
  • At the time of proceeding of the divorce, husband use child custody to force their wives to give up maintenance or withdraw criminal complaints.
  • When the issues of divorcing parents does not solved, they will not agree on take the decision about their children with their consult.
  • It is not good for a child to move between two homes. A stable is the best option.

There should be implement shared parenting laws. This is the responsibility of Parents they provide best maintenance and education of the children to his better future and parents should have to submit  “parenting plan “which provides the personal profit , educational qualification, residence, and income of the both parties.

Title- Women as Abusers: A study of Domestic Violence on Men in Michael J. Malone’s  A Suitable Lie

Sub Theme- Domestic Violence

Author– Shyamalima Kashyap

Course- Phd Research Scholar

Guide- Dr. Shweta Saxena

Institute- Amity University, Noida (Uttar Pradesh)

Postal Address- Kalyan Kumar Das, 31 A, Lamb Road, Uzanbazar, Jorpukhuri, Guwahati- 781001 (Assam)

Email ID- k.shyamalima@gmail.com

Conatact Number- +919123132751

ABSTARCT:

Women as Abusers: A study of Domestic Violence on Men in Michael J Malone’s           A Suitable Lie

 

The society has been a witness to a number of crimes and violence directed towards women over the years. Women have had to and still are fighting to reach a platform where their voices are equally heard to that of the male gender. The sufferings of women are many fold and some of them are behind closed doors and less visible on the platform. Domestic Abuse or Violence is one such form of abuse which attacks a person’s mental, emotional, physical and psychological wellbeing all at once. There are numerous cases of women being harassed by their husbands or by their partners, sometimes leading to irreparable consequences on them. But while the society tries to identify the issues stemming from domestic violence against women, violence against men is less talked of. The topic of male victims in a domestically violent relationship is usually mocked, ridiculed and questioned of his masculinity. It is believed that only men can be the perpetrators of violence and women only react to violence as self-defense. Using Michael J Malone’s A Suitable Lie, this research paper will aim to outline the fact that domestic violence against men is also a prominent social evil that needs to be dealt with as seriously as domestic violence against women. To assume that women are not capable of violence and trivializing the pain of male victims, the society will never achieve an environment which swells of equal opportunities and treatment.

Therefore, the research paper will focus on domestic violence against men and the fragments attached to it.

Abuse in any form, whether it’s physical, mental, verbal, or psychological is unacceptable and for a long period of time our society at large has been witness to a magnanimous amount of violence and abuse directed towards women. Women over the centuries have had it hard and they have had to fight their way through every odd and obstacle to make themselves heard. We are now in an era where measures are taken to protect women from violence and are given supportive measures when needed. Education and Modernisation has helped broaden people’s minds and is creating a safer society for women than what it was 50 years back. While a major component of violence is known to the general public there are certain forms of violence which is behind closed doors and hence a little difficult to access. Violence between spouses, partners, siblings and family members constitutes of Domestic Violence. This form of abuse or violence could be of any type; mental, physical, sexual, emotional, verbal and a lot more.

Worldwide, the major percentage of victims of domestic abuse is women and their sufferings are uncountable for. Many a times these women victims do not come out in the open to accuse their abusers because of how the society would react to it. Because it is of a familial nature, people tend to keep the matters within the house and come to a solution, which is not really long lasting. But because of the awareness that is more prevalent in the society nowadays, women are much stronger in their decisions and take action against such forms of abuse with power. However, when the tables are turned and the topic of male victims in domestic violence comes up, the reaction of the crowd is not very favourable. Male victims of domestic abuse are mocked, often not believed and rebuked for not being man enough to have been beaten up by a woman. The male gender has often been ridiculed of when they have made statements of being sexually assaulted or being in an abusive relationship with the female gender leading to a less number of complaints raised against their partners for the fear of being ostracised in the society. The fear of social stigma, questions of masculinity and machoism have created a situation in the society where men don’t feel safe enough to talk to their families about their problems let alone report their issues.

Michael J. Malone explores the theme of domestic violence in his 2016 novel A Suitable Lie inviting a lot of backslash and criticism for creating a male character who is physically, sexually, verbally and emotionally abused by his wife may exist. Andy Boyd is a widower with a young boy to take care of. He is kind, smart and a good family man. When he meets Anna after almost four years since his wife passed away, he saw a chance of having a family again. They get married soon and it is after some time that Andy starts suspecting of his wife having anger issues. He initially ignores her violent outburst as reaction to stress and marriage responsibilities but as her behaviour becomes increasingly violent, he realises that what she needs is more than anger management classes. Anna’s behaviour towards her husband oscillated between good and worse. At times she was sweet but more than often at the slightest inconvenience she would start beating him. She berated Andy by constantly calling him useless, threatened him when he didn’t do as she wished.“Over and over, she cursed me the same, Bastard, and smashed my head to the door. I tried to save myself and removed myself from her way and crept a little more towards the hall. But by doing so, my back was open for beating from her. As strangely as it had started, it suddenly came to a halt. My wife loomed oved me and dragged me by my hair towards her and hissed, “If I ever find you disobeying me, the consequences will not be good”, and stomped from the room leaving me confused at her behaviour”[189]

Andy finally understood the depth of this issue after he was sexually and emotionally humiliated by Anna in front of his four-year-old son and asked for separation, even though in his heart he still loved his wife. He realised he couldn’t let his son be a part of this and accept violence and bullying of any form as acceptable. But he hardly had time to heal when Anna informed him that she was pregnant. He did not want to have a broken family for his child and hence reconciled feeling and believing that Anna would change. This form of violence that attaches itself between partners is known to arise from the belief that what an abuser is doing is correct, justified and wouldn’t be reported. A lot of people do not recognise themselves as abusers because they have been seeing violence as an acceptable norm in their families while growing up.[190] Anna recounts a horrific tale of her childhood where she witnessed her parents constantly at each other’s throats and had a similar relationship with her brothers. The stages of domestic violence vary starting with a cycle of abuse and then a sea of calm and reconciliation.

The percentage of Intimate Partner Violence (IPV) against men is less recognised by the society than women, making it more difficult for men to report their issues. The society sees any form of violence by women towards men as a form of self-defence or as a result of being a victim herself, thereby negating the fact that violence in any form is an exertion of power of one over the other and is gender neutral.[191]Many critics have argued over the facts presented by the Men’s Rights Associations that violence against men by women is of gender symmetrical nature. They believe that the agenda behind paralleling male victims with women victim stems out of a misogynistic need to undermine women.[192] Such thoughts prevailing in the society have also allowed a section of women to misuse the Domestic Violence Act which has been created with the sole purpose of protecting and uplifting battered women. Manipulating a male partner of criminal charges, making unreasonable demands as an abuser is masked by the society accepting one gender’s resort to violence as self-defence and the other’s as crime.

In the starting few pages of the novel, the author had introduced a similar case of domestic violence where the perpetrator was a man which is mostly the conceived notion of the society. But when the same thing happened with the man, he didn’t know where to turn to. When he asked for help in a rehabilitation centre he was mocked, “It’s difficult for me to say this, but my wife has been physically abusing me, I said, shamefully. “You are a sick man to formulate lies while there are real women out here with real problems. If you were to ever call again, I shall file a complaint against you in the police.”[193] Power is gender neutral and to believe that only one gender is capable of inflicting pain or torture is unjust. Women are as capable of being the culprits of violence and abuse as men are. The methods may be slightly different from each other but at the end of the day, abuse of any kind is abuse. The mentality of our society has made it quite impossible for men to come and report their issues thereby leading people at large to assume that only women are and could be the victims of domestic abuse because they are physically weaker than men and are not built for violence because they are the epitome of care and nurture. In 2016, Mankind Initiative prepared a statistical report based on surveys and found that out of every three, one victim of domestic abuse are men. It was also reported that male victims of domestic abuse are twice as likely to not report about domestic abuse than women and only 10% of men will tell the police compared to 26% women, only 23% will tell a person in an official position as compared to 43% women and only 11% will tell a health professional as compared to 23% women.[194] These statistics suggest that along with women being the victims of domestic abuse, men also face abuse in a relationship and to gender bias this problem is not a solution.

The tendency of abusers to remain the same and the characteristics of an abuser have been outlined in the cycle of abuse developed by Lenore E. Walker in 1979. Although her research is flawed in the sense that it only takes into consideration women victims, her theory on the cycle of abuse makes sense. She states that usually there is a certain pattern that follows in abuse and it may take days, months, or years to finally get out of that cycle. The first stage starts with stress that comes from daily life incidents, children, family matters. Here the abuser feels neglected or annoyed and hence tries to minimise the situation by being nurturing or by provoking the other person. The second stage is of acute violence where the abuser tries to release the tension by psychologically, physically or verbally abusing the partner and by justifying that they had it coming. The third stage is of reconciliation in which shows signs of remorse and may ask for forgiveness and remain insecure that their partners may leave them. The fourth stage is of calm where the abuser may be in a very normal mood and may even suggest counselling for themselves.[195]

Anna displayed all of these signs in her relationship with Andy. She taunted him and continuously blamed him for her violent outbursts, she humiliated him in front of the kids and explained to them that it was their father’s fault, then she would try to reconcile and seek forgiveness. This never-ending cycle finally came to a halt when one day Andy couldn’t control himself any longer and pushed Anna. She retaliated by self-harming and calling the police on him. It has been stated that an abuser feels a pathological need for control and attention and the violence comes in response to not being fed enough of it. They also use manipulation to keep the victims with themselves or threaten them with consequences if they think of leaving.“When she threatened to throw me out of the house, I pleaded but I knew that I was fighting a lost battle.“There is no court that will allow you to keep the kids once I tell them that you are an unfit father.” My heart sank when I heard these words for I have never heard of a father getting the custody of his children with the mother present. Everyone feels kids need their mothers. What about the fathers?”[196]By creating a character like Andy Boyd, Malone wanted to bring out to the society the other aspect of domestic violence which is not what the standard thought of the society believes in. To assume that only men are capable of hurting dismisses the entire theory of equality.

Domestic Violence is a serious issue and both men and women are victims of it and the only way this social evil can be tackled is by addressing all the fragments that come along with it. If the fight is against domestic violence, then it is imperative that men be included in it. The fight for equal rights mean an unbiased platform for all and removing men from this issue by trivialising their problems and making a mockery out of it will not gain anything.

Therefore, together as a society, the evil that domestic abuse is should be dealt with by giving men also a chance to have their voices heard and not feel the stigma of the society in doing so.

Sub Theme: Gender Biased Laws.

Title of the Paper: “498A IPC – A Highly Misused Law.”

Name of Author: Ms. Soumi Chatterjee

Course– Ph.D- Law 2016-19

Name of the Institute: Noida International University, Greater Noida.

Postal Address(Official / Personal)

B1/33, Aravali Apartment,

Sector 34,

Dist- Gautam Buddha Nagar,

Uttar Pradesh -201301.

Email idadvsoumi.c88@gmail.com

Tel: 8447925069

Abstract

Woman since a very long time have been abused and tortured under the burden of patriarchy. She has been thought of as merely an object in the household. Since the ancient times all sorts of abuses and atrocities have rained havoc of women all across the country, one such offence against women is the cruelty in matrimony. The very fact that women earlier held no special status in the eyes of society has given rise to abuses which are cruel in nature, like wife battering on non-fulfilment of demand of dowry, subjecting her to verbal abuse such taunting and name calling etc. In 1980s the cases relating to killing of wives, beating, torturing etc.,were some of the major concerns for the government. Wives were tortured for dowry by their husbands and in-laws, but as there were repeated protests and campaigns by many women organisations and a large media coverage forced the legislators to create such a provision which dealt with this exact issue of cruelty against women by their husband and his family, the provision of section 498A was added in the Indian Penal Code. This provision was so strong that a case if registered under this section poured serious consequences on the husband as well his family. Slowly women realised the harshness and strength of this law and there came a phase where women started misusing such a strong law against their husbands and his family simply to fulfil their own wrongly wants or mala fide intentions. Cases likeArnesh Kumar vs. State of Bihar (SLP (CRL.) No. 9127 of 2013), the much highlighted Nisha Sharma Case, and also the Amit Bhandari case (to name a few) tells us how women can misuse the law that was created for their protection against abuse. In this research article I will discuss the concept of crueltyandhow women today have started misusing 498A and the most common reasons behind that along with my own suggestions and conclusion.

498A- A HIGHLY MISUSED LAW

  1. INTRODUCTION

Earlier since the medieval times mostly, the status of woman degraded hugely. With the repeated attacks by the foreign invaders and capturing of kingdoms, woman faced the worst consequences. Earlier, the ancient society was very liberal with regards to woman, where she was given equal opportunities of education, equal participation in society and politics and also had an equal say in the family. She had a right to inherit ancestral property also but ManuSmriti which dates back to nearly 200 B.C speaks otherwise, it clearly mentions that women were not allowed to do anything independently. The higher status enjoyed by women during the early Vedic period slowly started diminishing during the late Vedic period. The male child was given more importance because eventually he would be the legal heir and legal representatives of the family.[197]The status of women already started to face its downfall but as the slow invasion and captures by the Muslim invaders of various lands and kingdoms began the status of women degraded rapidly. She was made to stay inside because of her safety. Society had changed to a large extend.

During the time of MdGhori the atrocities on woman reached its peak, the defeat of Prithvi Raj Chauhan brought to women, sufferings that continued to almost 30 generations.[198]It was during the time of the invasions that all sorts of social evils arose in society like child marriage was to protect the honour and safeguard the chastity of girls. Other evils like purdah system was introduced to Indian society during Muslim rule.[199] Thereafter, the British poured havoc upon the Indian society, they tried to weaken the Indian system with all sorts of amendments and one of such was the abolition to own property by women. Whatever she inherited or received as stridhan during her marriage, she could not possess any of that wealth. This further lowered her status, and slowly she started being ill-treated and abused by the other gender. The basic rights to her education was taken leaving generations of women illiterate. In the post-independence era, the dowry system took toll on the Indian society and the crime of bride murder came up, along with that various other forms of abuses were reported in case after marriage the bride did not fulfil the demands of her husband or in-laws.

  1. CONCEPT OF CRUELTY

Cruelty as a concept can be understood as an act that causes pain and suffering to others both mentally and physically.

In the case of State of Karnataka v. H.S Srinivas[200], the Hon’ble Court stated that the expression cruelty postulates such a treatment as to cause reasonable apprehension in the mind of wife, that her living with the husband will be harmful and injurious to her life. The court further illustrated that to decide the question of cruelty there are certain factors in a marriage, i.e., the matrimonial relationship between the two spouses, their cultural and temperamental state of life, state of health and their inter-action in daily life.

In the case of Inder Raj Mallik v. Sunita Mallik[201], the Hon’ble court explains the meaning of cruelty as, ‘the word cruelty as defined under explanation means harassment of a women with the view to coerce her or any related person to meet any unlawful demand for any property or any valuable security.’

III. ENFORCEMENT OF 498A

This law was enforced by the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983), the provision was required to be enforced because the dowry cruelty increased to an alarming extend and the Dowry Prohibition Act, 1961 was a complete failure.

The section of 498A IPC describes cruelty against women by their husband or his relatives.

It states[202], ‘Husband or relative of husband of a woman subjecting her to cruelty – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, “cruelty” means-

(a)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; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Many newspapers started reporting several cases of dowry deaths, cruelty both physical and mental and also other domestic abuses to women within the household during the early 1970s. The failure of the Dowry Prohibition Act, 1961 brought the matter into limelight as cruelty against women was one of the rising crimes in the country and soon it had to be tackled. In the year 1983 the Criminal Law (Amendment) Act, brought the section 498A into Indian Penal Code, it was made to be non-bailable and non-compoundable which made this provision rather a harsh and strict one. The woman organisations throughout the country worked hard in spreading awareness about their rights and also educating them on their fundamental rights. Soon, women understood their rights and today have been given more protection than men. Laws such as Domestic Violence Act, 2005, Section 498A IPC, Section 304B IPC all are pro-women laws. These laws are harsh upon the offender.

 

  1. MISUSE OF 498A IPC

Women today are independent, well-educated and in many houses even the bread earner of the family. Since a very long time she has been subjected to abuse and torture on various grounds and so to protect her and give special status, the legislators has come up with various law time and again in order to safeguard her rights. But, there is a section of women in the society who think otherwise. For them, these laws are a tool to exploit their spouses and his family members. In certain cases, such kind of women see marriage as a way to extract money from her husband, if not so then she starts to threaten her husband and his family on grounds of fake dowry cases, or cases of cruelty against her knowing the fact that, her one complaint can ruin the other spouse’s life and the great of harassment that his family will face.

The number of fake cases of 498A IPC in the recent times has been growing at a high rate.

(Source:https://timesofindia.indiatimes.com/india/Steady-increase-in-number-of-women-filing-false-cases-against-husbands/articleshow/46452475.cms)[203]

In such cases women take away the sympathical angel as our society has a pre conceived notion that since women have always been the abused class and also that she is a lot weaker emotionally and physically as compared to the other gender, whatever she says is true,this fact was busted by the national crime record bureau in a report which clearly showed that the suicide rate of men are much higher than that of women.

Source: https://thewire.in/culture/reporters-diary-male-suicides-india[204]

These sort of fake cases have so much high impact upon husbands that often they prefer to end their lives, they commit suicide.

If a case of dowry harassment is registered against a man or his family, it is presumed that the man must have done something terribly bad and that is why he is facing such charges, but no one ever considers the contrary, that may be the man is innocent.The plight of women have always remained higher and better than that of a man in such cases. Because, when cases relating to dowry harassment comes to light it is a presumed fact that the husband and his relatives is the offender, whether or not it is true.

Chief Justice Delhi High Court, Vikramjit Sen states[205] that ‘Don’t allow it to happen as the misuse of section 498A, which allows criminal proceeding towards husband and their relatives often nullifies the genuineness of the case, this is a note of caution.’

According to DeepikaMahale[206], whenever any problem arises in a matrimony certain women

take the advantage of the anti-dowry laws to harass her husband and in-laws, and also that most of the cases that are filed on charges of dowry harassment are false.The wives often tend to exaggerate their statements.

In the case of Preeti Gupta v. State of Jharkhand[207], the Apex court observed that ‘a serious look need to be given to section 498A. It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints.’ The exaggeration of incidences are also mentioned in the Law commission Report[208], it sates ‘these incidents are exaggerated while told by the wives and also the tendency of over implication is very evident in a large number of cases.’

It is a tendency to rope in as many relatives of the husband as possible, just with the intention to harass them. In another case of Shushil Kumar Sharma v. UOI[209], the Supreme Court observed that complaint under section 498A was filed only to fulfil personal vendetta and held that, ‘it may therefore become necessary for the legislature to find out ways how the makers of frivolous complaint or allegations can be appropriately dealt with.’

In the case of Savitri Devi v. Ramesh Chand and Others[210], in this kind of petition is misconceived and is being used as a tool to accuse the entire family of in-laws for ransom, the women is rather extorting money by putting false allegation under section 498A and allegation of dowry.[211]

In recent years, there have been many changes in the Criminal law of our country, especially to provide protection to women, many additions have been made like 498A, 304B IPC, but it’s a very unfortunate state that the remedy is becoming worse than the ailment, and these laws have failed to stop dowry crimes. They failed to meet the desired ends of the law makers and are now being misused by certain women of the urban areas only to fulfil their ulterior malafide motives.[212] Most of the complaints filed are usually in the heat of the moment. There reason behind it is ego clashes, fight over trivial matters, and because of these unworthy and unnecessary regular fight, the children become the prime victims.[213]

The High Court of Punjab and Haryana in the case of Jasbir Kaur v. State of Haryana[214], observed that, ‘An estranged wife will go to any extend to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage,’ another view of the court in the case of Kans Raj v. State of Punjab[215], the Supreme Court ruled that the close relatives of the husbands and in-laws cannot be roped in the offense only on the ground that they were relatives of the husband, in this case the court found that the fault of the husband, in-laws and other relatives cannot be held to be involved in the demand for dowry.As per roping in is concerned, in the case of Sate v. Shrikanth[216], the Karnataka High Court held that, ‘roping in of the whole family includes brothers, sisters-in-law, has to be depreciated unless there is a specific material against these persons, it is downright on the part of the police to include the entire family as accused.’

Role of Police

Earlier as per the provision, if a case was registered under section 498A IPC by a woman or her parental family, then the accused would be arrested and would not get bail. At times police became insensitive towards the accused and without any corroboration of statement or investigation would straight away put the accused behind bars.

In the much highlighted case of Nisha Sharma Dowry Case[217], the accused was released nine years after his arrest. In this the complainant Nisha Sharma a residence of Sector 56, Noida became overnight famous when she called off her wedding with one MunishDalal right at the eleventh hour in 2003. In the year 2012 Chief Justice Magistrate Vipin Sharma acquitted the accused on the grounds of lack of strong evidence. In this along with the main accused MunishDalal, his mother, Vidya and his other relative (aunt) Savitri Sharma was also arrested. According to the accused, after the arrest they faced a lot of horrible days. He states that his mother was a teacher and on accounts of her arrest her pension has been delayed for these nine years and many other social stigmas.

In a recent case of Rekha Jain v. State[218], the court disposed the Criminal revision petition of the complainant who accused her husband and mother-in-law on the charges of Domestic Violence, Dowry demand and mental and physical cruelty. She was married in the 2011 and left her matrimonial hoe in the year 2013 accused her in-laws and husband on the above mentioned charges. The court acquitted the accused on the basis of lack of substantial evidence and that the repeated addition and deletion in the statement of the complainant was also discouraged by the court.

The Supreme Court recognising the sensitivity of the matter, rightly points out how the Police should deal with such cases. In the landmark mark judgment of Arnesh Kumar v. State of Bihar[219], this case has amended the relationship between the police and the common man. The police department of the country was issued strict guidelines by the Supreme Court keeping in mind the kind of harassment they caused to the accused charged under 498A. The Supreme Court pointed out the rampant misuse and abuse of the provision in this case. Both Justice Chandramauli and Justice PinakiGhose stated some ground realities in this judgement. As per the Judgement it said as follows…

There is phenomenal increase of matrimonial dispute in recent years. The institution of marriage is greatly revered in this country. Section 498A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and her relatives. The fact that Section 498A is cognizable and non-bailable offence has lent it a dubious place of pride amongst the provision that are used as weapons rather than shield by the disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases the bed ridden grandfathers and grandmothers of the husband, the sister living abroad for decades are arrested.”

The court also shows its disappointment and dissatisfaction by the way the police and the Magistratesdeals with the power of arrest and detention bestowed upon them. The Apex Court held that…

The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with the seriousness it deserves. In many cases detention is authorised in a routine, casual and cavalier manner. Before Magistrate allows and authorises detention he first has to be sure the detention is according to law and all the constitutional right of the accused person is satisfied. The accused when presented before the magistrate, the police officer who arrested the accused has to furnish the facts, reason and the conclusion of such arrest before the Magistrate and the Magistrate in turn has to be satisfied that the arrest made is condition precedent under section 41 Crpc has been satisfied.”

In order to prevent unnecessary arrest, the court has issued the following guidelines[220]:

(a)All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid.

(b) All police officers be provided with a check list containing specified sub- clauses under Section 41(1) (b) (ii).

(c) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.

(d) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention.

(e) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reason to be recorded in writing.

(f) Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing.

(g) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(h) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

(i) We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

(j) We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and enduring its compliance.

In another case of Rajesh Sharma and ors. V. State of U.P&Anr.[221],the court in this case laid down strict criteria for determination of cases under Section 498A IPC.

(a) Setting up of Family Welfare Committee for Dowry Harassment Cases in every District.

(b) The members in this committee should be social workers or people who are interested in this subject.

(c) The members of the Committee shall be paid an Honorarium.

(d) The Police has to look into the recommendations of these committees before making any arrest.

According to the National Crime Records Bureau 2016 report[222] 498A is a law which is once again become the prime concern and this time for the wrong reasons. In 2016 total number of cases registered under 498A- 1,10,378 cases, these are 32. 6% cases registered under crime against women category. Since the Arnesh Kumar Judgement in 2014 the number of cases under section 498A has gone from 122877 cases to 110378. In 2016, 6,745- 498A cases were considered to be false as per the Bureau’s final report. 2958 cases were found to be mistake of fact and 8308 cases were dismissed on the grounds of insufficient evidence.

According to the report in the year 2016 – 5,371 senior citizens were arrested on grounds of complaint under section 498A, these people are old and weak, some are bed ridden. They are people who are unable to walk forget about beating and torturing. This is one of the strongest evidence which proves that women misuse 498A in such grave extend that they even cross the line of basic humanity.[223]

As per the same report in past some years the police has recorded the number of false cases registered under section 498A in India. In 2014 – a total number of 8,144 cases were false dowry harassment cases, in 2015 – 7,458 false cases and in 2016- 6,745 cases were found false.

What happens when a women is found guilty of faking a cases under 498A against her husband and his family? Is she arrested or held convict? According to a report by the National Crime Records Bureau in 2016 the lowest number of convictions of women were under 498A cases. The law that was enacted with the prime motive to protect women against cruelty, in the same law mostly charges end up against women, that means one hand it protects a women and on the second hand it penalises another.  There are times when the accused women are innocent and charges cannot be proved against them beyond reasonable doubt. This is kind of a slap on the faces of the feminists.

  1. CONCLUSION

In the year 1983 a revolutionary law that was enacted by the legislators whose primary motive was to provide women protection against cruelty by husband and his relatives on grounds of dowry demand. The cases of dowry harassment was at such a high that the legislators came up with a penal provision to curb such menace section 498A was added to the Indian Penal Code, 1860 by the Criminal Law (Amendment) Act, 1983. This was mainly due to the failure of the parent act The Dowry Prohibition Act, 1961. This act was a complete failure in curbing out dowry practice from society. The Act was enacted with the motive of just tackling the offence and not to eradicate it and thus, the failure. Earlier illiteracy among women was much higher than that of men, so the awareness of laws were also a low key factor. But, in recent years women have become completely at par with men, they equals now and have achieved a lot for themselves, for their families and country. But, unfortunately some women misuse their knowledge of law or education against their husband and his family only to fulfil their personal vendetta. Section 498A must be amended. It needs to be a bailable offence and also a separate clause needs to be added where, if it is established that women falsely accused her husband or his family and tried probing his relatives into her false allegation of dowry harassment, she will be penalised with the same quantum of punishment, if the accused were found guilty. Also, a separate National Level Men’s Organisation shall be made with its decentralised branches at each state. A separate family department should be opened in every police station, where the investigating officers are specially trained in family matters and can also work as counsellors as and when required.

Dowry was not an overnight crime, it took centuries for it to reach at this stage. The concept went through various shifts and moulds so, the prevention and process of its eradication also will take some time but it’s possible. As it is rightly said by Swami Vivekananda,

“Change is the only Constant”.

Sub-theme: Gender Biased Laws

Title of the paper –  It’s not just wifie’s issue but a human issue.

Name of the author: Devanshi Vyas

B.BA LLB (2nd year)

Name of the Institution: BANASTHALI VIDYAPITH

Email Address: devanshivyas2312@gmail.com

Postal Address: Vyas bhawan kedar mandir marg, Uttarkashi(UK)

Contact No: 7727961423

Abstract

Inborn blemish entice women to misuse the biased act and drag innocent men to fear being prosecuted.

Women empowerment is the dream of many of us. Women are always considered as inferior to men especially physically, this is the reason why society think women are more subjected to violence, so to curb this effect many gender biased laws emerged in favor of women which include -Domestic Violence Act 2005.

This act seems to a blessing not only for the women who are victim of domestic violence but also for the one who misuse this act just to be superior among the in-laws or joint family and for monetary benefits.

The basic question which arises is “Can men be the victim of domestic violence?” –  Of course yes than researcher question- why can’t a man file a complaint under this act as in other countries? The title of the act is “Protection of Women from Domestic Violence Act,2005” from the title it seems this act provide protection to the victim of domestic violence but unfortunately it is not so. Under S 2(a) only women can file a complaint against husband or his family members. More and more disloyal complaints are filed under this act and there can be no criminal action for the false complaint in spite of the fact that complaint was of a criminal nature.  Constitution which is basic law of land includes provisions which prohibits discrimination on the basis of sex, isn’t this act going against the basic law of our country?-(Article 15).

The researcher doubts the application of S 32(2) in which testimony of victim is sufficient to held the accused liable under S 31 moreover women are protected for future violence too (S 18).

The aim of framers of this act was to protect women from domestic violence, but who will protect men from such violence? We have to understand that it is no more”just a women’s thing”.

 

Keywords:  Blemish, biased, Domestic Violence Act 2005, discriminatio

 

Introduction

There is difference between what we have right to do and what is right to do.

This article throws light on drawbacks of domestic violence act which help one to misuse it against decent person thus causing injustice.

Violence

Violence is described by World Health Organization as – Intentional use of force either against self or any other person which causes or likely to cause injury, demise, psychological harm, faulty development of a person.[224]

Domestic Violence

Domestic violence is defined under this act as violence within domestic boundaries.

Domestic violence defined by “Protection of Women from Domestic Violence Act, 2005.

  • Causing mental or physical injury, which includes verbal abuse, harassment, sexual, economic abuse,
  • Does so to threaten her or any other person related to her with the intention of fulfillment of unjustified demand.[225]

Domestic violence is volition of human rights. Women are considered as nothing but just child producing machine. They are the victim of such violence since ages.Even today domestic violence against women is bitter truth of our society.

In the light of this, parliament enacted an act named “Protection of Women from Domestic Violence Act, 2005” the act came into effect from 26 October 2006.  This act was adopted in accordance to norms set by United Nation for protection of women. This was a godsend for women who fall in the purview of this act.[226]

Violence against Men

Men are consider as supreme in the society and therefore one find it hard to imagine that men are unsafe from domestic violence. Violence against men is mainly emotional or economical. Most dangerous is emotional harassment as it can distress men to such a extend that men find hard to do anything except to think about the issue. Voice is hoisted against violence by men and infringement of women’s right by them but we fail to understand that men also suffer from such acts by women.

Laws for protection of women are-

  1. Section 498A – according to this section if husband or relative of husband does cruelty with her than he shall be punished with be imprisonment for the term which may extend to three years and shall also be liable to pay fine.[227]

Here cruelty is a act of such a nature that promote women to commit suicide or causes grave injury to body, health, or limb.

If once FIR is lodged under this Section that it provide easy tool in the hand of police to arrest or threaten to arrest husband or any other relative whose name is mentioned in FIR.

  1. Section 304 B of Indian Penal Code 1860 define dowry death as-

If a wife dies unnaturally within 7 years of marriage, and it is found that she was suffering from cruelty by her husband or any of his relative soon before the marriage, such death is called dowry death and such husband or any such relative is liable for such death and shall be punished for imprisonment which may not be less than seven years and which may extend to imprisonment for life.[228]

  1. Section 396 of Indian Penal Code 1860 prescribes punishment for rapist-

If it is proved that a person commit rape than he shall suffer imprisonment of seven year minimum and which may extend to life time imprisonment and shall also be liable to pay fine,[229]

If husband commit rape than he shall be liable for imprisonment which may extend to two years or fine or both,

If police officer, public servant, manager in hospital or any other staff commit rape or if rape is committed with girl under 12 year of age or a pregnant women having such knowledge shall be punished with rigorous imprisonment which may not be less than ten years and which may extend to life imprisonment and shall also be liable to fine.

In some cases if satisfied punishment can be less than ten years

  1. Section 125 of Code of Criminal Procedure provides maintenance to wife in case of neglect of husband such maintenance shall not be more than five hundred rupees at once.[230]
  2. Section 363- 373 of Indian Penal Code 1860 – whoever abduct women/minor girl for begging, prostitution, or illicit intercourse shall be punished with imprisonment which may extend to seven years and shall also be liable to pay fine.[231]
  3. Section 509 of Indian Penal Code 1860- Whoever make a sound or gesture which lower the modesty of women shall be punished with imprisonment which may extend to one year, or fine, or both.[232]

Many other acts are also made for their protection some of these are- The Dowry Prohibition Act 1961, Immoral Traffic Suppression Act 1956, Equal Remuneration Act 1976.

These laws were not enough and after them came ““Protection of Women from Domestic Violence act, 2005” This law provide protection of women against domestic violence and does so but with change in time need is felt to bring some change in this act.

Researcher feels that there is problem in title itself as it is “Protection of Women from Domestic Violence act” why only women? Statics show that out of 3 victim of domestic violence one is men though less we can’t ignore it. Census shows that violence against men is increasing and hence special laws should be made on behalf to them to curb this at ground level only.[233]

Is it Gender biased act ?-

When we think of domestic violence the image which our mind create is of a helpless women, this prove that we are gender biased in this matter and not law because now even men can have protection under this act.

The aim of legislature was to protect women from domestic violence, but Protection of Women from Domestic Violence Act, 2005 is of such a nature that it tempts women to misuse it. And men who are also subjected to same violence were not given rights under this act therefore became feminist law, but now situation is changing it is no more of such kind.

Loopholes in Domestic Violence Act-

 

  • Earlier Protection was available only to women.

 

Gender parallelism is not just virtuous for that gender, its virtuous for the society.

The question which parliament neglected was – Only women are subjected to domestic violence? The answer is in refutation. There are men who too are victim of domestic violence.

Generally it is presumed that men who are physically stronger than women can’t be the victim of domestic violence but there are number of cases filed against women who are violent toward men.  Even famous bollywood star Kangana Ranaut was accused of domestic violence, however she refuses the said allegation.

According to Section 2(a) of the act,  aggrieved person can only be a “women”.[234] Isn’t this violate fundamental right of men guaranteed by our constitution under Article 14?

This act use to provide protection to women without providing any responsibility and make men responsible without protection, researcher don’t think it was fair.

According to a report till 2010, 40% victims of domestic violence are men and out of this 32% are subjected to economic abuse. This percentage is enough to promote lawmakers to make laws which would protect men too.[235]

Recently, a man named Ram Kumar has filed a case in Vijayawada court against his wife who is subjected torture him from a month since their marriage. Many other cases were filed of same nature. Therefore with passage of time it became crystal clear there is need to pluck the fact that now men are also given protection in this act.

According to Article 14 of our constitution the state cannot deny any person equality before law or equal protection of laws within territory of India on the basis of sex.[236] Moreover Article 7 of Universal Declaration of Human Right, 1948 says that all are equal before law and shall not be discriminated to provide equal protection of law. However Article 15(3) of our law of land says that state can make rules for women and children, as per this article many laws are created in favor of them. These acts are made according to situation present at that time and as we know law is dynamic in nature therefore these laws must change according to change in society, and this is very important as law is said to be mirror of society. Today women are considered no less than men even in some fields they do better than them, may it be number of class toppers who mainly are girls[237] or census which shows that women are better leaders than men.[238] But unfortunately till now no amendment came which reflect that women have became more organized and men are also subjected to this unfortunate act.

In Vijayalaxmi v. Punjab University it was held here that joint operation of article 15(1) and 15(3) leads to the point that women can be favored against men but men cant be favored against women[239]. So does it mean that there is need for change in our law of land?

Violence against men is increasing with a rapid rate, Men generally do not register their complaint because of social stigma. They are the one to whom responsibility to protect women is given and if therefore they consider registering a complaint against women saying “ My wife beats me” or any other, as a shameful act, Not only this if a man gather enough courage to register his complaint or if he talks to someone about violence against him than people either laugh at him or make him silent due to social stigma.

Therefore it is a emerging need of society that specific laws are to be made for protection of men and we shall create such a society where there is no discrimination on the basis of sex and therefore men too have right for their safety and they feel no shame to file a genuine complaint against domestic violence

Supreme Court of India also recognize men as victim of domestic violence, the jury said that women are filling frivolous compliant of domestic violence.[240]

Conclusion of the point

If what was happening in past continued to happen in present and may be in future than that day was not far when we would  have a custom where cruel females tortures men and  as a result of which parliament would  make laws which shall be wholly in favor of men to met the than present condition  and situation will be opposite as what it was in the past and this cycle could have never stopped.. Therefore parliament in time took effective measures to protect future of our nation.

In Hira P Harsonsa v. Kusum Narotam Das Harsona

Here Supreme Court quashed the word “adult male” from Section 2 (q) of Protection of Women from Domestic Violence ACT, 2005.[241]Since this word is deleted than according to this section respondent mean any person who  in domestic relationship with the aggrieved person and against whom aggrieved person has sought relief under the act. Therefore now complaint against female can be lodge under this act.

However Karnataka High Court in Md. Zakir v. Shabana allowed to entertain a complain of aggrieved men under the act. This decision was taken by single bench consisting justice Anand Byrareddy[242]. Therefore it seems that act is no more biased now and that is what gender equality mean

Most of the people doesn’t  know about the change in this act therefore men still feel that they can only be accused in this act. Thus there is need to create awareness.

  • Definition of domestic violence under the act.

The scope of domestic violence as defined in this act is very vast.

Section 3 of the act, person commit domestic violence if -:

  • He causes or tends to cause injury whether physical or mental, or
  • He causes injury or tends to cause it to the sufferer or any other person related to him, with the aim to meet unjustified demands.

Here, in addition to above, injury may occur due to economic abuse, sexual abuse, verbal abuse or emotional abuse.

 

Physical Abuse-

Act which is dangerous to life, health, development or causes any kind of body pain to the aggrieved person.

 

Sexual Abuse-

Any act of sexual nature which has effect to humiliate, devalue, or violate the dignity of women.

It includes-:

  • Forced sexual contact.
  • Forcing women to watch pornography r filthy images.
  • Beating victim while having sexual intercourse.[243]

 

Verbal and Emotional Abuse

If a person (men) insults, humiliates, call name which is generally to put pressure on women to bear a child which most of the time is a male child he is said to commit verbal or emotional abuse.

 

Economic Abuse

  • Depriving aggrieved person from all or any the resource/s which she by law, custom, domestic relationship is entitled to have.
  • Alienation of any property may it be movable or immovable in which aggrieved party have interest.

It is a well-known fact that differences arise in every relationship, sometimes these differences come out in form of verbal aggression which is basic human tendency. Despite of solving the problem by mutual understanding one counter part (specially female) file the case under this act just because he/she felt that he or she was emotionally abused. Accused person is left at the discretion of the victim, if one is happy with you, you are safe but if you don’t agree to them, then they are insulted and therefore as per the section 3 of the act they will file the complaint against you and why not it there right provided by this act.

Right to freedom of opinion and expression is our human right provided in article 19 of Human Right therefore every one have right to express their view, but sometimes the victim offend the genuine person and therefore they had to suffer a lot because they are viewed as a offender.

 

Basanagouda Patil S/O v. Shashikala

In this case it was pleaded by petitioner that her mother and father in law harass her, it was found that the said complaint was false and hence case is not maintainable under the act.[244]

. What kind of equality it is?

 

3)Testimony of victim.

According to Section 32(2) of the act testimony of victim ( earlier only women) is enough to conclude that offender has breached Section 31(1) of the act, no other evidence is needed to be proved.[245]

Researcher feels this section is a clear cut violation of  the principle of nature justice i.e. audi alteram partem which mean no one should be left unheared or listen to the other party. In case if any one lodge a false on ground of emotional abuse than  he or she has to prove nothing, this is the most dangerous situation as it is not possible for one to keep other happy always.

In Smt. Geetanjali v. Shri BM Anantha.

Here the learned judge held that Protection of Women from Domestic Violence                                                                        Act, 2005 was enacted to protect women from domestic violence and not perpetrators. In this         case from testimony of women itself it was held that she has lodge a frivolous complaint, therefore not only her case was dismissed but she was imposed fine of Rs 1,00,000.[246]

Supreme Court has observed misuse of law as legal terrorism.

4)  Protection for Future Cases.

Magistrate can pass an protecting order on behalf of victim if he is satisfied that violence may occur against any one in future (Section 18 of the act).[247]

5) Right to Residence

According to Section 17 of the act, a women in a domestic relationship whether she have any interest, right in property or not she has right to reside in share hold.[248]

Supreme Court interpreted “shared household” in section 17(1) of the act according to it only wife can claim residence in share house hold and share house hold includes joint family property.

Here according to the section right is available only to women.

Researcher feels that according to  Hira P Harsonsa v. Kusum Narotam Das Harsona right should be granted to men also.

 

6) Same level of accommodation.

Section 19(1)(f) of the act gives same level of alternate household or to pay rent of the same if circumstances takes that shape.

Here usually husband and his relative suffer a lot. Generally women plans to marry in rich household and than she take divorce on false ground only to acquaint herself with benefit of this section.

A man named Amit Deshpande suffer due to this section and use to pay Rs 25,000 per month to her divorced wife as alimony despite of the fact that his wife files a false complaint against him and he was the one who suffered from domestic violence but due to lack of evidence he was bound by law to do so.

In Ajeet Kumar Jain v. Balit Kaur Jain court observe that wife do not have right to stay in her matrimonial house if husband is wiling to provide her alternate house  of same nature.[249]

7) Character Assassination

False domestic violence complaints are filed either by planning to do so or in heat of moment.

When a false complaint is filed against the a spouse or his family member no one is bothered to feel the suffering of such because they are defamed badly though the court acquitted them with dignified verdict, this is what Indians are known for and they are really good at it.

A bench of  justices Pradeep Nandarog and Pratibha Rani said that false character assassination by either spouse is “matrimonial cruelty” and thus aggrieved party can seek divorce in such case[250].

A bench of  justices Pradeep Nandarog and Pratibha Rani said that false character assassination by either spouse is “matrimonial cruelty” and thus aggrieved party can seek divorce in such case[251].

Sangeeta v. Hitesh Kumar

In this case Sangeeta wife of Hitesh Kumar use to torture him. She doesn’t behave well with her in-laws rather misbehave with them, she demanded separate residence but respondent being the only son refused  to do so, appellant use to go her house very frequently and when responded ask her to stay with his parents than she use to get offended, moreover she deny to cohabit with him. Fed up of all this respondent file divorce petition in answer respondent urged that respondent use to beat her while he gets drunk and his mother use to support him, she also pleads that respondent and his mother torture her as she didn’t bring much stuff with her dowry and she only use to go her house to meet their dowry demands.

The court held that respondent was tortured by his wife and therefore he can seek divorce. Appeal was dismissed and the judgment was upheld.   [252]

 

Conclusion of Paper

Law being dynamic in nature should change according to the need of society so as to reflect true picture of our society. In accordance to it the mazor change in this act was change in Section 2(q) of the act act where supreme court has removed the world “adult male” from the section and as a consequence Karnata High Court has allowed complaint of aggrieved men therefore there was change in Section 2(a) of the act.Because of these changes this act to some extend has became gender neutral but we have to work upon Section 17 of the act.

Defination of domestic violence which is too vast in this act can be fitted in some rare cicumstances therefore investigation of charge should be in such a way that one cant misuse the act and the person filling false complaint shall be punished and he shall pay compensation to another party. Same applies in cases where  victim ask protection in future cases and where accomodation is given to victim.

Section 32(2) can be proved to be most fatal blow to innocent person therefore it shall be removed.

Finally researcher want change in tittle of act i.e. from “Protection of women from Domestic Violence Act,2005” to “Protection from Domestic Violence Act, 2005”.

  • Sub-Theme: Gender biased laws
  • Title of the paper: Discrimination spares no gender
  • Name of the author: Divisha Chaudhary, B.Com. LLB (2nd Year)
  • Name of the institute: Banasthali Vidyapith
  • E-mail Address: chaudharydivisha0111@gmail.com
  • Postal Address: 400, Shrinagar, Railway Road, Hapur, Uttar Pradesh, 245101.
  • Contact Number: 8279962976.

Abstract

In a country like India, it is beyond doubt that women have always been suppressed and deemed subservient to men. Our legislature thus, made special laws and acts to grant women equal status but they failed to realize that men can be victims too. Article 15 of the Indian Constitution prohibits discrimination on the grounds of sex but in practice laws are more one sided in recognizing the rights of women ignoring the hue and cry of men. Isn’t it that our fight for equality is shifting from male dominated society to female dominated?  The present need for gender neutral legislation and repulsion of male biased law is unavoidable.

Sec. 497 of IPC only prosecutes man for adultery. There are bunch of instances of women misusing IPC sec. 498A to harass men and their families in lieu of revenge. Dissipation of certain women centric laws like Dowry Act, family law provisions regarding maintenance and child custody, various IPC sections favoring women put men into deeper complications. The researcher questions sec. 354A of IPC which holds no assistance for harassment against males.

This paper would drill down and assess laws that are heavily biased towards men. This research shall try to analyze the effectiveness of gender neutral laws in Indian context highlighting some burning issues.

Keywords: man crimination, equality, Dowry Act, Men’s Right Movement, gender neutral law.

Introduction:

According to the American philosopher John Rawls “social justice is the first virtue of social institution”.[253] In the colonial India social prejudice had taken the front seat and only selected classes of people were favored. To maintain social order social justice and equality are the main constituents. After India got its independence this order was upheld and cherished while forming our law of land. So, in post colonial India establishing a balance between social justice and equality was truly necessary and for this striking down social transformation was important. In a country like India where social prejudices such as such as practices of caste, class biasness, gender inequality and ethnic conflicts are deeply rooted and social transformation can only take place when such practices are shattered. This social transformation could only be brought by our law makers and the government. By bringing in the constitutional safeguards the socially weaker and disadvantaged sections of the society were aimed to uplift. One of the major social challenges was ‘gender inequality’ and even after so many years it still prevails in India. The patriarchy society saw women always taking their position on a lower pedestal and subjected to inequalities and male dominance. Feminist movements and activists sprouted and threw light into such inequalities to wrestle for their equal rights and status as men. Thus, to curb such unequal treatments our legislation opened the doors for women centric and pro women laws to empower women and save from the atrocities faced by them. While the law makers only focused on safeguarding women against crimes such as assault, rape, sexual harassment etc. they failed to notice that these pro women legislature somewhere overshadowed the crimes against men and the basic assumption was that only women are abused. This scenario of male domination and crimes against women that once existed has now changed over the years and we are at a point in time where such legislations are no longer serving the purpose but rather neglecting and harming the other gender against whom false allegations and false cases are being framed simply because the laws that are in place today protect only the women against such crimes and does not equally protect the men against such crimes bringing in the question of the violation of the principle of equal protection of all persons under law[254]. The laws that were made for the protection of women now seem to be implemented at the cost of the other class’ equality. India has failed miserably in bringing gender neutral laws. All the women centric legislations one way or other reflect gender biasness in them and somehow make room for their misuse against men.

Gender neutrality: Importance in law

The Oxford Dictionary describes “Gender Neutrality” as an adjective that is suitable for, applicable to, or common to, both male and female genders. It describes the idea that policies,

Language and other social institutions should avoid distinguishing roles according to people’s sex or gender, and emphasizes on the equal treatment of men and women legally with no discrimination.[255] But our legislation somewhere misinterpreted gender neutrality and framed laws which are more gender specific. Today both men and women are equally victimized and with the increase in nature and types of crime it has become the need of the hour to introduce laws that encompass and recognize the crime irrespective of the gender. There is a basic assumption in the society that men cannot be victims to certain crimes like rape, sexual assault, harassment etc. and thus the legislature also does not show any concern on such issues. At times feminist groups and movements object and try to suppress this issue of gender neutrality on the grounds that it will shift the focus lens off the female victims. This must be understood that victims to such offences have to undergo a lot of trauma and stigma whether male or female and making the laws against such offences will normalize the fact that men can also be victims to certain crimes and they are always not the perpetrators. Both women as well as men must be able to seek protection equally under law. The war between the genders needs to be replaced with the war against crime and this can only happen by bridging the gap of inequality and it can only be initiated by bringing laws that are gender neutral. On realizing that the society was chained with the shackles of crime and violence Ex Chief Justice of India, Justice J.S. Verma along with two other members who were retired Justice Leila Seth and Ex Solicitor General Sri.Gopal Subramanium formed a committee in 2012 to bring law reforms. Its representations were represented in the 172nd Law Commission. The Commission report while stating its conclusions and recommendations stated that, “Since the possibility of sexual assault on men, as well as homosexual, transgender and transsexual rape, is a reality, the provisions have to be cognizant of the same”.[256] This little hope of witnessing gender neutrality did not last for so long until it was opposed by feminists groups on gave fruitful reasons of not introducing such laws in a country like India. As a result, the Criminal Law (Amendment) Act 2013 was ultimately passed without considering any provisions for males. On the top of it Section 354A[257], Section 354B[258], Section 354C[259], Section 354D[260] were also included only to protect women. It will be unfair to neglect that in the same 172nd Commission Section 326A[261] and Section 326B[262] which are related to acid attack and attempt were made gender neutral. Protection of Children from Sexual Offences (POCSO Act) 2012 is gender neutral as well.

Sexual assault, stalking, adultery, voyeurism, rape, domestic violence, dowry death, harassment at workplace etc. are some of the crimes for which the legislations penalize the male gender alone and females are always deemed to be the victims. Hence, favors only one gender. The main source for such biasness can be blamed on the inequalities and socio legal environment that existed in the society few decades ago. This needs to be realized that the times have changed now and women to the most extent are enjoying similar rights and freedom as men and are now more uplifted and empowered. There has been massive change in the mindset of people about women. Mere belief that some acts are only gender specific is doing injustice towards men. This ‘man crimination’ needs to be stopped.

Analysis of a few gender biased legislations in Indian context:

The Constitution of India has always been hailed for being progressive but the Indian Penal Code is still handcuffed with the archaic laws, and the adultery law is the first in line.

Adultery:

Adultery in general is defined as voluntary sexual intercourse between a married person and a person who is not their spouse. Only one form of adultery is criminalized under the Indian Penal Code i.e. only men will be charged for adultery.   Section 497 of the Indian Penal Code defines adultery as, “Whoever has sexual intercourse with a person who is and whom he knows, or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor”. In simple words, if X is wife of Y and X voluntarily has sexual intercourse with Z then only Z will be prosecuted and X will not be for the same offence.

It is important to establish, from the very onset, that the law in this regard does not seek to preserve the sanctity of marriage – rather, it seeks to protect the structure of the institution. As referenced in the case of  V. Revathi v. Union of India,  in which the Court held that the man was the seducer and not the woman, the aforementioned law is striking in its pursuit to punish only the ‘outsiders’ in the marriage – in this case, the male adulterer. Adulteration refers to the mixing of an undesirable substance in an otherwise ‘pure’ element, hence the parallels drawn between the husband, whose bloodline has been ‘adulterated’ by the outsider, gives some idea to the origin of the law. The husband has been cheated of his right to a ‘pure’ bloodline, and under the above terms, he should receive some measure of protection under the law.[263]

In the case of Sowmithri Vishnu v. Union of India – where Sowmithri, whose lover was prosecuted for adultery, contended that the law was gender biased. Despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought and therefore has no agency.

Recently a petition challenging the validity of Section 497 of the IPC i.e. the law of adultery was heard in the Supreme Court. The apex court observed that the way the provisions are enacted or made run counter to Article 14 (Right to Equality) of the Indian Constitution.[264] The Supreme Court in the same hearing referred to the offence of bigamy which is under Section 494 of the IPC which is gender neutral and punishes both husband and wife while section 497 of IPC (adultery) prosecutes husband only. The bench further added that the distinction between section 494 (bigamy) and section 497 (adultery) itself makes section 497 unconstitutional.[265]

Domestic Violence Act and Dowry provisions:

Protection of Women from Domestic Violence Act, 2005 was passed for the protection of women from domestic abuse including physical, emotional, sexual, and verbal or economical. This act is discriminatory against males as only a female can file a complaint against domestic violence under this act and this is the clear violation of Article 14 and Article 15 of the Indian Constitution. Section 17 of the act gives the aggrieved right to reside in a shared household. It has been defined as follows:

(1) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.[266].

This protection is given at the expense of the right to residence of a man and sometimes for the women who may be making false allegations of violence. This section can be easily misused by an adulterous woman and can falsely accuse her husband and in-laws and still cannot be thrown out of the house. This gives complete license to ill- minded women. Section 32(2) of the same act states that from sole testimony of the aggrieved person the court can conclude that an offence has been committed by the accused.[267]  Thus, empowering woman to lodge false complaints and punish her man at her will.

Section 498A of the IPC was introduced with the aim of curbing dowry harassment. Unfaithfully, the misuse of this law to harass men and his family is the latest trend. Section 498A being cognizable and non- bail able offence makes it a potential weapon of disgruntled wife. False cases under section 498A are very common. If we look at cases found to be false by the police, 498-A cases are more than three times as likely to be found false by the police as all cognizable crimes on average.[268] The Supreme Court of India itself has labeled the misuse of section 498a as “legal terrorism” and stated that “many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive. In such cases, acquittal of the accused does not wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery”.[269] Marriage seems to have become a crime for Indian men. False and baseless allegations are imposed on innocent males and their families under section 498A of IPC every now and then. Every 100 male suicides have 45 married males.[270] 57,000 married men have committed suicide in 2007, of which 16,000 are directly due to domestic abuse. In the last 11 years (1996-2007) 156,000 married men have committed suicide directly due to domestic violence.[271] These data are the mirror of reality and reflect the urgent need to amend such pro- women laws.

Acts and provisions related to sexual harassment:

It cannot be repudiated that women are the most affected by sexual harassment but male sexual harassment is also a reality. It is still in inconceivable for the society to recognize something as sexual harassment against men. There is no legal source to protect men from such offences. Apart from this lack of emotional support from family, friends or society to the male victims and the general tendency of the society to perceive male victims of such crimes as ‘feminine’ or ‘weak’ makes it strenuous for the males to openly speak up or report such incidents against them. The society never perceives female as the perpetrator of offences such as sexual harassment. The legislation has done a lot for the protection of women from sexual offences but it still has not acknowledged that sexual harassment against men prevails too and it is not a joke. According to a 2010 survey, conducted by Economic Times- Synovate, “men are as vulnerable to sexual harassment as women” in India.[272]

The current laws that exist for prevention of and protection from offences and harassment of sexual nature are only concerned about women and contain no safeguards from any such offences against males. These provisions always put man in the shoes of the offender. Section 354 of IPC criminalizes assault or use of criminal force to any woman with the intent to outrage her modesty.[273] Section 354A that talks about sexual harassment and punishment for it only talks about harassment of women by a man.[274] Other IPC sections like 354B (punishment for intent to disrobe a woman), 354C which talks about voyeurism, 354D (punishes stalking), 375 (criminalizes rape of a woman by a man) and section 509 (word, gesture or act intended to insult the modesty of a woman) recognizes only women to be the victims of such crimes and men always as the perpetrator.

The act for protection against sexual harassment i.e. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 focuses on harassment against females only. Male sexual harassment is also a bitter reality of our society which our legislation fails to acknowledge. An article on Huffington Post described a bone-chilling account of cyber stalking faced by Vijay Nair, a Mumbai-based entrepreneur and founder of Only Much Louder (OML). The article, which has since gone viral, describes in detail the ordeal faced by Nair for months, which started with someone anonymously posting a sexually explicit tweet on his Twitter profile. What followed were a series of sexually explicit messages sent by the cyber stalker to Nair over Whatsapp and email, many of which were also copied to Nair’s friends and acquaintances. When Nair finally unmasked the identity of his stalker, it was discovered that the stalker in question was a woman whom Nair was acquainted with. The cyber stalking incident involving Nair is not a lone incident of a man being sexually harassed by a woman.[275] This is not the solo case of its type. There are various incidents of harassment faced by men in public transports and places as well but all of them go unreported as men are expected to take such things in their stride and those who get bothered from such instances are not considered ‘manly’ enough.  The Vijay Nair case is an eye opener for our judiciary and makes the need for gender neutral sexual harassment laws serious and urgent.

Rape laws:

Section 375 of the IPC only penalizes a male for the offence of rape. According to this section a basic assumption has been set that only a male is capable enough to commit rape and that too against a female only. The aspect of gender neutrality needs to be introduced in this law and the legislature needs to understand that even women can be perpetrator of such crimes as well. Also, the victims of the marginalized sex like the transgender are bluntly ignored by the law. Males or transgender are not given any form of protection against such crimes and also they cannot claim any justice from IPC section 375 as it is not gender neutral.

Suggestions and Conclusion:

To protect the women from violence was one of the biggest challenges before our country. It has witnessed heinous and inhumanly crimes against women in the past few decades and thus emerged the need to bring stringent laws to punish the male offenders and enacting some women centric legislation to curb such crimes. But the biggest questions remains that are these legislations actually serving the purpose and the real offenders are being punished? There has been a recent trend of misuse of such laws against men in lieu of revenge or some other monetary benefits. Thus, there arises a need for framing laws that are gender neutral. Men should also be given complete access to openly come forward and report crimes related to sexual harassment or other nature against them. The author with reference to some of the gender neutral laws put forward the following suggestions which can help men in this plight in the middle of pro women legislations.

  1. The Protection of Children from Sexual Offences Act, 2012 which came into force to protect children from offences of sexual harassment, sexual assault and pornography. This act recognizes that children can be subject to such offences and that too irrespective of their gender but this act term the person beyond the age of eighteen as adult and no longer entitles him any protection under to this law. This issue needs to be addressed that such crimes can take place against men beyond their age limit and just as women are provided protection; men must also be given protection and treated equally by the law as mandate by the Constitution of India.
  2. Another major issue in the contemporary society is the sexual harassment at workplace but here as well our legislations fail to recognize males as the victims to such offences. Considering the fact that women today are no behind men and are the proud holders of the top most positions so it creates a need to make the Redressal of sexual harassment of workplace gender neutral. Sexual harassment can be initiated by both male as well as female upon those who have an advantageous and powerful position over the other. Many countries like USA, Denmark, Australia and UK have gender neutral laws related to sexual harassment.
  3. UGC (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations 2015 defines sexual harassment to be gender neutral. This act was a ray of sunshine in the black sky of laws related to sexual harassment.
  4. Adultery is punishable in other countries as well but in India it only punishes the men. In the well celebrated case of K.M Nanavati v. State of Maharashtra it was established that Criminalizing adultery protects the sanctity of the institution of marriage, but assuming that the woman who might be an abettor in the act as the victim and thus pinning no liability at all does not serve the purpose.[276] Also, in 2003 Justice Malimathin Committee suggested that section 497 of IPC must be gender neutral. Thus, it makes important for the law makers to come with realistic laws to serve the purpose of equality and justice.
  5. In the Criminal law (amendment) Act, 2013 sections 326A and 326B which are related to acid attack and attempt were introduced to be as gender neutral. thus, it should also be considered that other sections related to voyeurism, stalking should also be made gender neutral.

Every person must be given equal access to the law. Introduction of the word ‘any person’ or ‘any spouse’ instead of men or women can serve the purpose of bringing gender neutral laws. The law must be stringent enough to punish the offender on the basis of the crime and not on the basis of their gender and only on that day the correct purpose of justice will be served. The author strongly points out that there is a growing need to bring laws that serve justice and protect the people equally and also the loopholes in the laws that pave ways for false complaints and misuse should be introduced with amendments.

AUTHOR NAME         – TEJASWINI SINGH

tejaswinisingh102@gmail.com

7905547898

CO-AUTHOR NAME –   ANKITA MISHRA

accessanku@gmail.com

7023567136

COURSE                        – B.COM LL.B    3rd YEAR

UNIVERSITY               – BANASTHALI VIDYAPITH

POSTAL ADDRESS    –  ROOM NO -82 , HOSTEL – SHRI SHANTA GRAH,              BANASTHALI VIDYAPITH , NIWAI , DISTT – TONK , RAJESTHAN , 304022

ABSTRACT

Progress has been made in acknowledging men’s rights, but there still is an institutional bias in place. Particularly in family law courts, a way of law has emerged that has elevated the interest of women above the interest of men. Thus, men’s rights have become a civil right issue. When you think of the progress, the United States has made in civil rights, men’s rights have been neglected. It’s a time to show light on this issue and there be the same sort of concern over fair play that is awarded other individuals.

The Anti–dowry laware being frequently misused to harass and extort husbands. The high rate of suicide among married men in India is also attributed to harassment under these laws by the activists. Save Indian Family Foundation is a men’s right organization in India that focuses on abuse of anti-dowry laws against men. SIFF has campaigned to abolish section 498A of the Indian Penal Code, which penalizes cruelty by husbands (and husband’s family) in pursuit of dowry or for driving a wife to suicide. The men’s rights activists in India claim that the divorce and child custody lawsare biased against men. They say that this allows divorced wives to stop men from seeing their children for long periods of time. According to SIFF, the incidence ofdomestic violenceagainst men in recent years has increased. The activists say that many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal. SIFF has appointed to the National Crime Records Bureau data to show that the Suicide rate of married men is almost twice that of married women, due to them being “unable to withstand verbal, emotional, economic and physical abuse” from their wives. The brief discussion on the men’s right conclude that, there may indeed be okay individual feminist, but as a group it is evil incarnate, the end of progress.  Discrimination itself by perpetuating can cause serious noneconomic injuries to those men who personally needed equal treatment –the future looks bleak for young men’s.

MEN’S RIGHT EMERGING TRENDS & ISSUE

 

In Today’s world, While the threat of leaking  nude photos was a hoax, it brings to light a very clear double standard, the same double standards in fact that we are highlighting thefactsof Genderinequality is alive and well.

The facts Is, urged the need for men to get involved in the fight for gender equality and announced the HeOrShe campaign, which asks men to commit to speaking out against violence and discrimination faced by women and girls around the world.

What’s often overlooked in the discussion is precisely why the need for men to speak out on such gender equality issues is so critical, and moreover, how men can get involved.

GENDER EQUALITY AFFECTS MEN TOO:-


Fighting for women’s rights has become “synonymous with man-hating,” as put it in recent issue But gender equality benefits men as well.

With a growing number of men taking on the responsibility of caring for children as their partners work, breaking down traditional gender stereotypes is increasingly important. Research has also shown societal pressures to be aggressive and not reveal vulnerabilities can have negative effects on men. According to statics by the Centre for Disease Control, suicide is four times higher among men than it is women. “Suicide needs to be addressed as a health and gender inequality–an avoidable difference in health and length of life that,affects men more because of the way society expects them to behave.”

STRUGGLING TO BE A REAL MAN :YOUNG PEOPLES PERESPECTIVE OF GENDER IN EQUILLITY AND GENDER – BASED VOILENCE:-

Research conducted with young people from Restless Development in the rural Eastern Cape, found that there is a great deal of pressure on young men to live up to certain standards of manhood. What is perhaps less clear is how such understandings are linked to gender inequality and the high prevalence of gender-based violence in our society.

The pressure on men to be financial providers in relationships and families can also lead to situations of violence. Facing the realities of poverty and unemployment, many young men experience feelings of disempowerment and frustration at not being able to provide, as young person stated. You feel useless

While it is true that women are mostly affected by gender-based violence, there is a need to appreciate that men can also be abused, emotionally, sexually and physically. Young people said that boys are often raped, but that these acts are stigmatized, meaning they are kept hidden and unreported. Men are abused by their women partners, but this is not understood to be a reality. In general it is difficult for men to speak out about sexual and other forms of abuse because the attitude is that men are tough and invulnerable, and that they do not express their pain or suffering. Reporting to the police is particularly difficult because men will be laughed at and ridiculed – “the police think you cannot be abused as a man”.
A man who is not traditionally circumcised will not be considered “a real man”. He is very likely to face discrimination in the form of emotional and physical abuse.

WHY MENS RIGHT  MOVEMENT IS THRIVING :-

The Indian men’s rights movement is thriving. What began in the early 2000s as a series of local support groups for aggrieved husbands fighting the supposed misuse of a law that protected Indian women from dowry-related crimes has grown into a network of men’s rights groups with the basic anatomy of a political movement.

Unlike the American MRM, men’s rights activists in India are viewed as fairly legitimate . In recent years, they’ve been featured on network news debates, lobbied judges, demonstrated at marathons, and delivered TED talks. Central to the movement, though, are the group meetings held every week in major Indian cities where MRAs council one another on how to stand up for their rights.

As the movement in India has grown, it has also styled itself closer to the American MRM, moving its focus away from countering specific “anti-men” laws into being a wide platform through which men band together.

One primary grievance was the dowry law”—formally, Section 498A of the Indian Penal Code—which was created in 1983 to protect women from harassment, abuse, and violence in cases where a bride’s family did not provide a sufficient dowry. Under the law, police could automatically arrest husbands and family members accused of committing dowry-related crimes. MRAs saw this as giving women too much power and lobbied to change the law. In 2014, the Indian Supreme Court took their side and removed the automatic arrest provision, purportedly to protect men against “disgruntled wives.”

Since then, MRAs in India have embraced a growing number of issues that they claim plague men in the country today: gender-biased laws, a feminist media, and an internationally funded feminist agenda bent on dismantling the Indian family.

“These things,” reference to the fatal 2012 Delhi gang rape of a 23-year-old physiotherapy student, “they don’t happen. It was a very one-off case.”

Men gather in a group at the eighth National Men’s Conference in Hyderabad, India.

According to the National Crime Records Bureau, India’s only source for numbers on sexual crimes, 100 instances of rape are reported every day. Just over one-fourth of them lead to a conviction. Skirting some of the reasons why rape cases in India are withdrawn—coercion by family members, victim blaming, and severely backlogged courts—MRAs use this discrepancy to cry foul.
“The media is defaming our country by highlighting rape,” said BarkhaTrehan, a woman who joined the movement five years ago when a close male friend of hers was accused of rape.

“Seventy-six per cent of rape charges are false. Do we ever talk about the acquittals? Do we ever highlight that the charges are fake?”

But according to Nandita Bhatia, a gender and violence specialist at the International Center for Research on Women, looking at rape in India only through the lens of numbers is troublesome because of the large number of cases that never make it to police stations.

“There is an overwhelming sense of shame and blame that follows rape victims in India and that cuts across all classes”. “When you base your whole argument on cases that are recorded, you are [disregarding] a huge part of the problem.”

Still, “false rapes” have become a raison d’etre for the Indian MRM while the conversation around sexual crimes in India continues.

“At first [the men’s rights movement] here only focused on the laws”. “What I realized interacting with men’s groups everywhere is that the problems facing men are much deeper.”

“Feminists are driving stupidity into people’s minds, infantilizing women and demonizing men as a group,” But for many others, the rise of India’s MRM—among both men and women—is troubling.

It is unfortunate, “that the men’s rights movement doesn’t acknowledge the sense of hierarchy and power that men here have in every sphere.

 

Men’s rights movement in India:-

The men’s rights movement in India is composed of various men’s rights organisations in India. Proponents of the movement support the introduction of gender-neutral legislation and repeal of laws that they consider are biased against men.

The movement notes several issues as too genderized or with a bias against men in India. Men’s rights activists claim that anti-dowry laws in India are frequently being misused to harass and extort husbands, and attributed this to the high suicide rate among married men in India, which is almost twice that of women.They claim that the divorce and child custody laws are biased against men. According to them, the frequency of domestic violence against men has increased in recent years, and that many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal. Some men’s rights activists also consider rape reporting laws and sexual harassment laws in India to be unfair to men.

1988–2005
The Indian men’s rights movement was started in 1988 in Delhi by Supreme Court advocate Ram PrakashChugh to handle psychological abuse perpetrated by wives and false claims of dowry harassment by wives. The movement began as an organisation called “Society for Prevention of Cruelty to Husbands.”Chugh himself faced problems in his marriage. In 1996, the Purush Hakka SanrakshanSamiti (Men’s Rights Preservation Society) was formed by Patil to help husbands falsely imprisoned in dowry cases and to help avoid divorces by counselling couples.Sangyabalya, a helpline for husbands and families harassed by anti-dowry laws, was started in June 2003 in Bangalore. He started the helpline after his sister-in-law filed a dowry harassment case against his younger brother and his entire family was implicated.”Save Indian Family” was founded on 9 March 2005 by the unification of a number of family’s rights organisations across India. On 19 November 2007, the “Save Indian Family Foundation” celebrated International Men’s Day for the first time in India.

2006–2010
In September 2008, Save Family Foundation sent a complaint against a Kitplyplaywood commercial to the Advertising Standards Council of India. The advertisement showed a wife slapping her husband on her wedding day because of a creaking bed. The complaint alleged that the advertisement promoted violence against men by portraying it as funny. In the same month, Chennai-based organisation India KudumbaPathukappuIyaakam, complained against a Pond’s ad which portrayed men as wife-beaters and an ICICI Prudential Insurance commercial which allegedly portrayed verbal and economical abuse against men.

In 2009, the head of the Ministry of Women and Child Development, RenukaChowdhury, agreed to meet men’s rights activists to listen to their allegations of biased legislation. On 25 June 2009, the activists were invited to discuss possible changes to these laws. However, the ministry changed the agenda of the meeting on 24 June, and ministry officials announced they were “unwilling to accept any flaws in current laws.” This angered the activists and resulted in a large number of complaints to the Indian government.

2010–2012

In late 2012, men’s rights activists criticised actor Aamir Khan’s television show, SatyamevJayate. In December 2012, about 15,000 men pledged to boycott Khan’s film Talaash. According to Anil Kumar, co-founder of SIFF, Khan had portrayed men negatively on the show and had projected only one side of the domestic violence issue.

In September 2012, Ministry of Women and Child Development Krishna Tirath proposed a bill that would make it mandatory for husbands to pay a salary to their wives. This move was criticised by men’s rights groups and they sought Prime Minister Manmohan Singh’s intervention in the matter.

Indian general election, 2014

During the pre-election campaign period for the Indian general election, 2014, on 11 January 2014, National Coalition for Men in Kolkata present their demand of the formation of a men’s ministry and a men’s rights panel to all political parties in India. They also released their own manifesto called “Men-ifesto” which dealt with the issues of men and the need of provisions from the government to address those issues. The other demands raised were gender neutral laws, rehabilitation of men who were acquitted, speedy trials of the accused languishing in custody, and equal rights in child custody. The National Coalition for Men meets with political parties across India to urge them to include men’s rights in their manifestos.
On 28 March 2014, they urged voters across the country to exercise the “None of the above” (NOTA) in the 2014 general elections. According to him, no political party was paying heed to their demands of gender neutral laws and a Ministry of Men’s Welfare.

2015–present

In August 2015,  one of the pioneers in India’s Men’s Rights Movement, delivered a speech at a TEDx event on the need for Men’s Rights and how men are victims of general social discourse of male-hatred, male-mocking or ‘Misandry’. It attempted to highlight the discrimination Indian men face, how patriarchy has been oppressive to them and questioned the stereotypes associated with sexual abuse, domestic violence and other such issues in which women are automatically assumed to be victims and men the assaulter. The talk urged everyone to shift the discussion to a point from where it is possible to see both sides objectively and not perceptively.

In December 2015, the Mumbai-based Vaastav Foundation released a calendar called a “Malendar” marking male oriented days such as Father’s Day and International Men’s Day. Vaastav Foundation said that they were trying to raise awareness towards these days through men.

During the 2016 Mumbai Marathon, about 150 men from Vaastav Foundation participated while dressed as ATMs. ofVaastav Foundation said, “A man is forced to be an ATM for his family and if he fails to protect his wife or provide for her, he is immediately accused of mistreating her.” One of the most notable playcards visible during the event read “Until men learn to express their pain, every story will always portray women as victims.” The participation with man dressed as ATM, the first of its kind, received coverage by the media worldwide.

In 2017, the participation of Vaastav Foundation in Mumbai Marathon was grander with participation in larger numbers and with much bigger prop of a snake which they referred to it as a ‘snake of misandry that gobbles up innocent men’. The larger than life size snake had text of misused gender-discriminative criminal laws (namely anti-dowry laws, molestation, rape, section 377 of IPC and maintenance & alimony laws) on one side and the text of most concerning social & criminal issues faced by boys & men (viz. child-labour, boy’s education, male suicides, domestic violence on men, male rape and patriarchal burdens of being default protectors & providers) on the other side.

Anti-dowry laws        

The men’s rights activists claim that the anti-dowry laws are being frequently misused to harass and extort husbands.The high rate of suicide among married men in India is also attributed to harassment under these laws by the activists. The practice of giving dowry was first criminalised in 1961 under the Dowry Prohibition Act, 1961 and later the Section 498A of the Indian Penal Code was introduced in 1983.The Section 498A of the Indian Penal Code which deals with crueltytoawife.

Until July 2014, the Section 498a of the Indian Penal Code allowed the police to arrest the persons mentioned in the complaint without a warrant or without any investigation. The crime was non-bailable, so chances of getting a bail are low and husbands usually lost their jobs while in custody. On 2 July 2014, the Supreme Court of India in an order stopped automatic arrests under the Section 498a. The Court directed the police to use the Section 41 of the Code of Criminal Procedure, 1973, which contains a checklist, to decide whether an arrest is necessary. The Court also stated that in all arrests the magistrate must examine whether further detention was necessary. There is also no provision of withdrawing a complaint in case of reconciliation. However, an amendment to rectify this has been proposed.

According to SIFF, these laws don’t follow conventional legal premises where a person is innocent until proven guilty. It has also pointed out that several of those who are arrested under this law are women themselves, i.e., female relatives of husbands. Former justice of Delhi High Court Shiv Narayan Dhingra has admitted that this law is being used by women to harass their husbands and in-laws. He has opined that parents should not go through with a marriage, if dowry is being demanded of them. A spokesperson of SIFF, has said that men with low incomes are rarely targeted and most victims of misuse are well-off. He has claimed that these laws assume that women are always truthful, and don’t place much importance on evidence. He has termed misuse of these laws, legal terrorism.

Almost of a quarter of people arrested under Section 498a are women, mostly mothers and sisters of the accused husband. In 2012, 47,951 women were arrested under this law.According to fact a large majority of the women in Tihar jail are there due to dowry charges. He has claimed that sometimes mothers of the bride bring dowry charges on their in-laws when the bride fails to adjust to her in-laws. Organisations like All India Mother-in-Law Protection Forum (AIMPF) and Mothers and Sisters of Husbands against Abuse of Law (MASHAAL) have been formed to represent such women. According to Sunil Gupta, a spokesperson for Tihar Jail, there 280 in-laws in the prison accused of dowry harassment and most of them are women. The women are held in a separate section of the prison, which has been nicknamed Saas-Nanand (mother-in-law&sister-in-law)barrack.

Divorce and child custody laws

The men’s rights activists in India claim that the divorce and child custody laws are biased against men. They say that this allows divorced wives to stop men from seeing their children for long periods of time. They have said that alimony should not be granted if the wife is the primary earner of the family and the law should see men capable of bringing up children.

In India, child custody is granted to the father only if the mother is mentally unstable or has left home leaving behind the child. At present, the matter custody in case of divorce is governed by two laws: Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956. But, both laws do not have any provisions for shared parenting or joint custody.

Under the Evidence Act, 1872, if a child is born within a marriage or within 280 days of dissolution of a marriage, then the child is considered legitimate and is entitled to child support and inheritance. At present, DNA paternity tests do not take precedence over this law. The courts may still choose to ignore the genetic evidence and ask a non-biological parent to pay for child support.

An organisation named Children’s Rights Initiative for Shared Parenting (CRISP) has demanded better child access laws and has called the current custodial laws gender-biased. It has demanded amendments to the Guardians and Wards Act be amended to make shared parenting mandatory.

Proposed laws

Marriage Laws (Amendment) Bill, 2010
In 2010, a proposed amendment to the Hindu Marriage Act would allow courts to decide compensation to wife and children from the husband’s inherited and inheritable property. The bill has provision for “irretrievable breakdown” of marriage where both parties must have lived apart for three years before filing for divorce. The bill would also allow the wife to oppose the dissolution of a marriage if it would leave her in financial hardship.

The SIFF protested against the 2010 amendment. According to president of SIFF, this bill would encourage divorce and be costly to husbands, as they would have to part with their assets. He called the bill a regressive move, and stated that it jeopardizes the financial and social security of a man.

He has pointed out that as most men marry after becoming financially secure, the possibility of losing their wealth and property would discourage men from marriage and feed the gynophobia in the society.

Domestic violence

According to men’s rights activists, the incidence of domestic violence against men in recent years has increased. The activists say that many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal. Two groups, the Save Indian Family Foundation (SIFF) and the Indian Social Awareness and Activism Forum (INSAAF), have demanded inclusion of men’s issues in the National Family Health Survey (NFHS) conducted by the Ministry of Health and Family Welfare to allow a better picture of the situation emerge.

They has stated that many cases of domestic violence against men go unreported due to the male ego founder of SIFF, has said that there is no legal provision for married men facing verbal or mental abuse. Indian Social Awareness and Activism Forum (INSAAF), and Confidare Research have drafted a bill which aims to protect men and boys from domestic violence from their spouse, girlfriends and parents. The draft is called Saving Men from Intimate Terror Act (SMITA) and the groups aim to introduce in for debate in the parliament.

The Jabalpur, Amarkantak and Hoshangabad region of Madhya Pradesh reports a large number of sadhus who have left their marriages to become holy men or yoghis. According to family counseling centres in Jabalpur, the share of harassed husbands was 70 % among complainants as per data recorded between 2013 and 2014. About 4,500 husbands are missing from family court records in the region. A local stops the police from going after men who have left marriage and become

Suicide
Save Indian Family Foundation (SIFF) has claimed that the suicide rate of married men is almost twice that of women, due to them being “unable to withstand verbal, emotional, economic and physical abuse” from their wives.SIFF has pointed to the National Crime Records Bureau (NCRB) data to show that suicide in married men is much higher than in married women. President of Child Rights Initiative for Shared Parenting (CRISP), has attributed the suicides among married men on family stress.

SIFF, has said that police don’t take any action even if the suicide note of a man states that he was tortured by his wife and in-laws, but in case of a woman’s suicide her husband’s family is taken into custody without investigation. However, in a 2012 report published by the Million Death Study researchers, it was stated that since attempting suicide in India was a crime until 2014,suicides are under-reported, especially suicides of young married women. Because in case of the suicide of a married women, usually the husband and his family are held responsible if the suicide has occurs within seven years of marriage. Sometimes suicides are mis-categorised as accidentdeaths.

Sexual harassment laws

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is not gender neutral and applies to the protection of women only. SIFF, has pointed out the bill was originally gender neutral until Ministry of Women and Child Development and some NGOs intervened and changed the name. They said that it was an outdate concept to consider that only women suffer from sexual harassment.


Voices against injustice to men

Several men’s rights groups in the city used International Men’s Day to protest against alleged misuse of the anti-dowry act, domestic violence act and other laws for empowerment and safety of women. In an attempt to dispel the popular notion—‘mardkodardnahinhota’(men feel no pain), these organisations brought upfront injustice to men.
‘Saving brothers from misuse of law’ was the theme of demonstration by India Against Legal Terrorism which claimed at least one married man commits suicide every 9 minutes. “We are fighting for a judicial system that strengthens bars misuse of law. In dowry cases, action should be taken against both sides after thorough probe, Save Indian Family, that had earlier launched a mobile application and website for men in distress.

From Trinidad, Tobago

Celebrated on November 19, first International Men’s Day was observed in 1999 in Trinidad and Tobago. Later, it spread to other countries and is observed internationally. Main objective is to celebrate achievements and contributions of men and raise voice against discrimination.

CONCLUSION

Efforts to address gender-based violence must reach out and engage with young men as well as women, supporting them to challenge ideas of what it means to be a man that perpetuate gender based violence. Listening to the voice of youth provides a hopeful perspective of young people’s ability to critically reflect on their roles as men and women, and to be agents of change towards a more gender equitable society.

“We guys are light years ahead of us,” he boomed. “The Indian movement is setting an example for the whole world.”

CO-AUTHORS:

DEEKSHA CHUADHARY

(deekshachaudhari1@gmail.com, 9660481753)

Postal address: SHREE SHANTA NEEDAM, ROOM NO. 67

BANASTHALI VIDYAPITH, NEWAI, TONK, 3O2O44.

BHAWNA TYAGI

(tyagibhawna04@gmail.com, 9610515864)

Postal address: SHREE SHANTA NEEDAM, ROOM NO. 76

BANASTHALI VIDYAPITH, NEWAI, TONK, 302044.

ABSTRACT

As we talk about equality, men and women walking shoulder to shoulder, shouldn’t all laws be gender neutral. Why extra privileges are given to women, why always women is considered victim over men. Can’t men be victim? Right to remain silent and get humiliate in fake cases of dowry ,rape, Adultery and the right to pay alimony no matters who files the divorce and for what purpose are the only rights law have given to men. How ironic it is that one side women ask seats next to men at every place and on other side they expect men to open the door and pull chair for them. The prevailing laws of India have overwhelmed women’s and numerous evidences are found these laws have become a tool for extreme blackmail and extortion for men by women. Gender biased laws are n less than a double edged sword, threat for society, democracy and equality.  Judges all over India  have often questioned and warned against misuse of laws, complaints of false rape , dowry, divorce, domestic violence in which law prescribes the immediate arrest have been recorded on large every year .  The Apex court even have showed it’s concern regarding misuse of laws (section 498A IPC) and have described this misuse as legal terrorism. History reveals, any movement is the result of oppression and injustice. The men’s right movement is the expression of feeling of injustice being perceived by the persecuted men in India.  Unlike feminism men right movement is fighting for the gender neutral laws instead of shouting rights for men! Rights for men!  Uma Challa, an American educated biologist active member of  men’s right movement says, “ what I realized interacting with men’s group everywhere is that the problem faced by men are much deeper. Some of the feminist finds talking about men right against women but her it’s not against any gender but justice for everyone regardless of their gender and a movement for removing from law all privileges which are based on gender.

Introduction

We all have grown up listening some great words of wisdom that  “Men Don’t Cry” which outgrowth into concealment of emotions which gradually become hardened, these negative emotions turns into Sorrow and Rage which is further taken out as aggression in one or the other way . Therefore if the emotions are expressed at correct time in the correct manner they could be easily handle rather suppressing to which this suppression is most common in the Male gender.

You could prepare statistics for the names of women activist raising there voice for their rights and if we talk about men activist there would be any seldom person raising voice for men right.  The increasing oppression , injustice and continues harassment whether at domestic place or workplace or in public area gave rise to the Men’s Right Movement in 1988 in Delhi by Supreme Court advocate Ram Prakash Chugh to fight against the injustice and abuse sustain and tolerated by the men. Since then time to time different people and organizations have came forward in favour of men’s right movement, to protect the rights of men. 1996, the Purush Hakka Sanrakshan Samiti ( men’s rights preservation society) was formed to help husbands and their families being victims of dowry laws. Save Indian Fmily was another organization formed in 2005, this organization on 19th November 2007, celebrated International Men’s Day for the first time in India. In 2009 Child’s Right and Family Welfare was formed demanding for Farier laws for men in matters of child custody.

Constitution of India is the base of every law and is even know as root of every law consist of fundamental rights which are granted to each and every citizen of India further according to Article 14 of Constitution of  India states Equality before law and Equal protection of  law hence it means that each and every citizen whether male or female have equal rights before law and in case any right has been infringed they have equal protection but this is not true or is the case with male under various  laws.

Biasness in corporate sector:

  • Paternity leave
  • Sexual harassment

Paternity Leave: Paternity leave is a form of leave which should be granted to the father to take care of the newborn child at the early stage of infancy. In India female is rewarded with maternity leave of 26 week as per the amendment of 2017. After scrutinizing the present and previous scenario of India male is only considered the bread earner for the family the reason they are not able to completely express their emotions towards their child and that bond which is actually needed to be developed between a father and his child is not developed further the only reason behind often father not being close to the children. India the such high percentage of Infant population do not have any provision for the paternity leave so that he have sufficient adequate paid time off with their infant , the infant can also recognize the touch of  his or her father and will be able to foster better relationship between both of them.

UICEF has even introduced 16 weeks paid paternity leave all over the world to which it was 4 weeks earlier which is still not being implemented by India. Considering the situation all over the world father role during the infancy period is considered same valuable as that of mother that is both father and mother efforts are equally very essential. In Spain 30 days paid paternity leave is granted to the male.  In Sweden 48 days at 80 percent of normal pay just to help his wife during the infancy period to their child. In Iceland 6 month of leave is granted to the fathers ot of which 3 months are mandatory Paid 80 percent of the normal pay. In Germany both father and mother can take 52 weeks of leave. If each takes 2 month of leave then it goes to 60 weeks. In Norway 46 weeks at full salary or 56 weeks at 80 percent of pay . These are just few examples from whole globe but there are many more country which consider paternal leave as a important concern.

In India the affairs  regarding maternity leave have been adressed and also amended as now after the amendment 2017 every women will get 6 weeks maternity leave as per section but the question here which arise is what about paternity leave irrespective of every organisation frames there own rules regarding the same their must some provision regarding the paternity leave . All India and Central Civil Services Rule allow central government employees 15 days of paternity leave also been consider if the child is adopted.  Due to the changing cultural from Joint family to Nuclear family the bill of paternity is necessary in every possible condition because it becomes very difficult for the mother to handel each and every thing indivudually support of the husband become very necessary. Many companies considering this as important concern is granting paid leaves to the male employees on the birh of the newborn like in january Deutsche bank provide 6 months paternity leave even  Johnson & Johnson also paternity leave not only in case when newborn but even when child is been adopted further the manufacturing company Cummins extended the paternity leave. The Central Legislation must take a great example from these companies and provide the codefied framework for the paternity leave.

The Paternity Benefit Bill 2017 which has been framed will be considered in the next session of the parliament talks about the equal and joint responsibility of mother and father. In this bill paternity leave extended up to three months has been taken into consideration . Even the report published by International Labour Organisation says that the father who use o take leave after birth of there child are more usually connected to his child as compare to the father who do not take leave.

Sexual harassment:   Women being a prominent picture in the society moreover is the most concerned part of the society experience sexual harassment at workplace but the contention and affair getting more attention in media is sexual harassment against men’s.  There had been comprehensive abstraction regarding the issue of the women harassment but  not even a slight concerned is paid to the men being harassed at workplace by there female bosses. the harassment at workplace is not only confined to one industry it is escalated to each and every industry. A survey conducted by the Economic Times  in seven cities and the eye rolling result comes out to be that more than half of them agreed that they have been sexually hrassed at workplace by there female bosses as well as colleagues, only 32% confess that they had been harassed by the male boss.  In south city of pearl and diamonds Hyderabad 29% said they have been sexually harassed by female colleaguebs while 48%  pointed out finger on their male bosses but the scenario is different in north , In Delhi 43 % accused their female bosses and same number being pointed out their male colleagues. Cyber stalking case faced by Vijay Nair,  Vijay Nair is the renowned profounder of OML (Only Much Louder) a Mumbai- based entrepreneur. Since several months agony Nair faced started when notably unsigned sexually unequivocal tweet on his twitter profile which supervene with string of explicit messages on watsapp and even on email and when finally identity of the chaser was divulge it bring out to be a woman whom Nair was acquainted with.

The harassment over men is not only limited to the Stalking but also they are sexually harassed and sexually assault.   Due to inadequacy of legitimate recourse men are suppressed in such cases which result into another victim who is being further suppressed on the emotional front by family friends and society. Particularly the  position considering the present scenario is fear of  reporting the cases by male as because of biasness of  laws further extending there is a specific provision for women harassment at workplace  to which regarding male there is no such provision hence demotivating the male to report the cases. The Idea that woman can sexually harass a man is still considered inconceivable which cause another discouragement for men to speak up openly about their harassment. It has therefore became a chain of circumstances that is vicious cycle continues humiliation of male by disbelieveing them and priotisaing women.

Section 354-A of Indian Penal Code states Sexual harassment and Punishment for sexual harassment. This section enumerates various acts which shall constitute the offence of sexual harassment. Also provides that any man commits the offence like –

  1. Physical contact or any explicit sexual overtures.
  2. Demand and request for sexual favours.
  3. Showing pornography against the will of a woman.

Shall be punished with imprisonment with term extend to 3 years or fine or with both. And if any male makes any sexually colored remarks shall be punishable with imprisonment which may extend to one year or fine or with both. While framing this provision the intention of the legislation was very clear that they need to protect the women who are being harassed by one or the other mean but what about the male who are being harassed by female in the same way no provision is yet framed regarding the same just because male fear to report case of harassment against them. In order to extend the equality among male and female it very important to frame the provision for the safety of male because now days female are also no more innocent they very well know how to take advantage of  being the part of female dominated society.

Biased Anti dowry laws:

The very first anti dowry law came into year 1961 under the Dowry Prohibition Act, 1961 later section 498a of IPC was introduced in 1983. The section 113b of the Indian evidence Act, 1879 sqays that if any married women commit suicide within the seven years of her marriage, it will be assumed that she is been abetted to commit suicide by her husband and relative(in-laws) for dowry and especially whwn there is any prior complain or evidence of dowry demand.  Section 498a of IPC states- whoever, being husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to the three years and shall be liable for fine.

Justice K T Thomas in his article “Women and Law” published in Hindu.21 and The Malimath Committee report on ‘reforms in the criminal justice’; both have shown their concern on the gross misuse of section 498A of IPC. The trend is slowly getting reversed, Women being considered as “weaker sex” and demanding of rights ensured to them are violating other rights.  Andhra Pradesh High Court in Saritha v. R Ramchandran, court asked the law commission and Parliament to make the offence non-cognizable and bailable one. Mohd. Hoshan V. state of A.P.; Kanaraj V. state of Punjab; Sushil Kumar Sharma V. Union of India & others, in all these cases the apex court of India (Supreme Court) have found husband and in-laws to be victims of wrong complaint.

In November 2003, the committee on reforms in the criminal justice system recommended to make section 498a bailable and compoundable. In July 2005, SC admitted the misuse of the section 498a and in 2010 august directed the government to amend the section. Whereas in 2012 January the Law Commission of India recommended making 498a compoundable offence.

Supreme Court of India has issued directions to prevent the misuse of section 498a of IPC:

  • In every district, District Legal Services Authorities will constitute one or more family welfare committees, comprising of three members. Working of such committee will be checked atleast once in a year by district and session judges. Every complaint under this section will be looked by this committee.
  • Committee will prepare the report for the complaint. Till report of committee is received no arrest should normally be affected.
  • Investigation of such complaint will be conducted by the designated investigation officer, who must have gone under training for minimum period of one week.
  • In cases of settlement, district and session judges or any other senior judicial officer will dispose the proceedings.
  • In case person living outside of India, impounding of passports or issuance of red corner notice should not be routine.
  • Personal appearance of all the family members especially outstation members may not be required to come to the court for trial. Their presence can be marked through video conferencing.

Biasness in laws governing domestic (family) matters:

Domestic violence:

Indian social awareness and activism forum (INSAAF) and Confider research have drafted a bill, to protect men and boys from domestic violence from their spouse, girlfriends and parents. The draft is called Saving men from intimate terror act (SMITA) and group aims to introduce it for debate in parliament.  The domestic violence act 2005 protects wives and female live in partners from any abuse whether physical, sexual, verbal emotional or economical, that is been carried out by husbands or male live in partner or their relatives. There is no such act for protection of males. The question is do men don’t need to get protected or to be covered under domestic violence act?

Into some regions of Madhya Pradesh ( Jabalpur, Amarkantak and Hoshangabad) about 70% complaints recorded in 2013-2014, were fake. 4500 husbands were missing from family courts, who left their marriages to become Sadhus.

Swarup Sarkar founder of Save Indian family has termed this act as Legal terrorism and has argued that domestic violence act should be made gender neutral, as there is no law for married men who are facing problem of verbal or mental abuse. According to the National crime records bureau, 44.7% married men committed suicide in year 2003 and the ratio for same for women was 25%.

Divorce and child custody laws:

The number of divorce is steadily increasing day to day in India; it is being study in different research that women continually misuse the law to harass their husbands and her in laws. Divorce in India has became a industry to earn money, as law provide large sum as in alimony, maintenance and on name of proceeding expenses.  In India, the child custody is given to the father only when the mother of child is mentally unwell or has left home without taking the child with her.  Guardians and wards act, 1980 and Hindu Minority and Guardianship act, 1956, these two acts governed the laws and provisions regarding the custody of the child in cases of divorce of their parents. Both the laws do not have any provision or rule regarding the shared parenting custody or joint custody.  An organization named Children’s Rights Initiative for shared Parenting (CRISP) has argued that present custodial laws are gender biased. According to the section 37 of the Special marriage act, 1954 man cannot claim for maintenance or alimony, why so unfair is this?

Prosecution for adultery:

Section 497 of IPC :” Whoever has sexual intercourse with a person who is and whom he knows or has a reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of adultery, and shall be punished  imprisonment up to the term which may extend upto to five years, or with both. In such case the wife shall not be punishable as an abettor. “

If husband commits adultery with the wife of another man, he can be prosecuted for the same. But if a woman commits adultery with the husband of another woman, she cannot be prosecuted. Literal interpretation of the brings us to the understanding that women are not to be charged for the adultery even if they are willing and equal participants in the act. Is this law protecting the women or unjustcable to men?

Sowmithri Vishnu v. Union of India: in this case Sowmithri whose lover was prosecuted for adultery, contented that the law is gender biased. Despite being equal party in the offence, the women was a victim, she was exempt from punishment. Is considering that the women are incapable of committing a offence of adultery is a rational thinking of our law system.

Biasness in Rape laws:

Most of the developed nations in the world accept rape as a gender neutral crime but in India the rape is dealt under the section 375 of IPC, in which perpetrator is always a male. Section 375 of IPC states that if a man has a sex with women after promising marriage, he can’t break up with the women. If he does, according to the laws in India, he’s a rapist but there is no such law for women who break any such promise of marriage after having intercourse with a man.  If a man without his consent or unwillingly is forced to have a sexual intercourse with a women, Indian law does not provide any remedy for him. Constitution of Indian through its article 15 prohibits discrimination against any citizen on grounds of any religion, race, caste, sex, place of birth or any of them. Crime like rape does not see gender or sexual orientation thus law protecting just one sex is discrimination to the other gender. Delhi commission of women report stated that 53.2% of the rape cases filed fake in Delhi between April, 2013-July, 2014.  In Jaipur, police filed 276 rape cases in 2016 out of which 46% turned out to be fake. Judges all over the India have given warning against the misuse of the section 376 of IPC, after 2013 amendment.

Conclusion:

Where we all heading in favour of uniform civil code, our legislation and judicial system should also move ahead for establishing a gender equity or gender neutral legal system.  Society is changing with the time and so the values, today even men is equally facing torture and harassment by women therefore laws providing extra privileges and protection to women are seems to be suppressing the right to live with liberty and dignity of men. Most of the countries have de-criminalized adultery, but in context to India such laws can be terminated only when both men and women in India understands equality. There was a time a change in society brought by a term “feminism” women have today made their separate place in the society coming out fighting from all challenges. Today again there is a time for women to come forward and fight, this time not for their own rights but for equal rights for men and women both. Being a women I say,” don’t see us differently, we are same as u all men.” Therefore laws should be gender neutral; this is the contention of this paper. If law is protecting women it should equally protect the rights of men. There is the need for certain amendments in the law that is to be brought by the courts and legislation so that the misuse of laws can be control and men could also be protected from being victim of false complains.

The major change that is to be made in law is to make specific provisions for punishment and penalty for making false accusation. Criminal charges should be brought against all people involved in the execution of the false complain intentionally. Especially the women and her parents must be strictly penalized for making wrong complain. The another change should be made in dowry laws, where court and legislation focus more on women’s in laws for demanding dowry. Mostly in maximum cases of dowry demands or dowry death, offence is committed after consequent fulfillment of dowry demands and eventually after few demands denying another. Also number for fake cases of dowry demand is not less, to overcome this problem courts must punish dowry givers according to the Dowry Prohibition Act. When even parents of women will be also taken into cognizance for giving dowry (if admits of dowry giving or any evidence is found against them) the false complaints ratio will surely decline and also this will reduce the crime rate relating to the dowry.

Law has become a tool for extreme blackmailing and extortion. Contention here is bringing attention towards gender neutral laws; therefore there must be similar laws to protect the harassed husband and his family from the wife because crime has no gender so thus our law should not have.

Sub- theme: Misuse of Domestic Violence Act

Title of the paper: “Justice for Men’s Rights”

Name of the authors: Muskan Sharma, Parul Jain, Rishu Singh

Year of study: Bcom LLB (3rd year)

Name of the institute: Banasthali vidyapith

Email address: paruljain388@gmail.com, muskanjangra08@gmail.com,

Postal address:  Parul Jain

Room No. 93

Hostel Shree ShantaGrah

Banasthali Vidyapith

Tonk, Rajasthan

Pin Code: 304022

Contact number: 7419013666, 9406759499, 8449374155

ABSTRACT

 

We have come across various headlines stating the events of fraud around the globe. But when it comes to paternity fraud, it astounds all of us and compels us to cerebrate about such situation. Have you ever thought of the fact that the person whom you might be considering your father since the day you’ve known him is not your biological father? You will realise that your whole life was nothing but a lie. Now think from the perspective of a father who doesn’t even know that he has a son or a daughter out there. Now rethink from the view of a father who is in a misconception that the child for whom he has been paying support for is not his biological child. Can you imagine the intensity of such psychic trauma? It’s huge, actually.

Paternity fraud is contempt towards fatherhood as a man’s sacred calling. Do you think paternity fraud is uncommon and rare? Think again because a survey report shows that approximately 28% of American men tested for paternity are not the biological fathers of the child being presented as theirs.

Potential for paternity fraud is huge and there is no penalty for a woman who commits it. It has also been encountered in too many cases of married woman using false allegations of domestic violence and restraining orders to keep their husbands away from children when seeking child support in a divorce, often because she knows or suspects her husband is not the real father. Thus, it equals slavery. Clearly any man compelled by force to support a child that demonstrably is not seed of his lions, and imprisoned when he refuses, is a slave.

. These are many reasons why man become paranoids, loose trust I women and are weary of unplanned pregnancies in future relationships. Now it’s the high time to take a step back and use this feminism as a tool for women welfare rather than a weapon to beset men and bring the real equality.

Introduction

If a wife has a law to protect herself against the cruelty of husband, why doesn’t husband have it?

In India, where marriage is the union between men and women to get social status in the society and marriage is nothing but procreation and caring of the child.

Section 498A and dowry prohibition act was there to assist and safeguard ladies later on women were started learning and they additionally educated. They knew the laws and learn that the way to use that laws against their men for permanent support payment and maintenance.

The women`s were framing a false charge below sec 498A IPC and create her husband ought to be penalized under the law the boys haven’t any laws to guard him against the exploitation from ladies in a very cases of district court additionally seen that there’s a misuse of section 498A IPC

As there is increase in the number of marriages every day, at the same time break down of marriages in the society has also been seen to be increasing whether by fault of husband or wife.

“Now-a-days, filing cases under the Domestic Violence Act by women has become a common one. Therefore, a neutral and an unprejudiced law is needed to protect the genuine victims of domestic violence irrespective of their gender.”

One can be certain that there is something sinister about a law when it intimidates and instils fear in innocent people. When a person who has not committed any crime begins to fear punishment under the provisions of a law, it will certainly create panic amidst men.

The judges also said that a similar trend of misuse was observed in the case of section 498A (a woman being subjected to cruelty by her husband or his relatives) of the IPC. It forced the SC to term such misuse as ‘legal terrorism’.

 

EQUALITY CONCEPT

Article 14 of  Constitution provides for equality before law and equal protection of law. Article 15(3) of Indian Constitution is considered as an exception to general rule of article 14. If there is discrimination in favour of particular sex, it is permissible provided that classification that is a result of other consideration beside the fact that the persons belonging to that class are of a particular sex.

VijayLaxmi vs. Punjab University[277]

It was held that as a result of joint operation of article 15(1) and (3), the state may discriminate in favour of women against men but it may not discriminate in favour of men against women. Discrimination would be permissible provided it is not only on the ground of sex

It is pledged of protection of or guarantee of equal rights within the territorial jurisdiction of the union to the enjoyment of rights and privileges without favoritism or discrimination.

Every 100 male suicides have 45 married males, and every 100 women suicide have 25 married women. Married women suicides have default arrests of the in-laws under presume dowry death. Married men suicide entitle wife for a 50% share in the property. What kind of equality is this? Equality is a dynamic concept which goes on changing with changing times and social context and must be understood in that sense. There is no prohibition clause in the section 498A that would stopped women to misuse it against the men.

What is Section 498A?

Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be pun­ished with imprisonment for a term which may extend to three years and shall also be liable to fine.

MISUSE OF SECTION 498A

(Step Back for Women Rights Law)

With the rise of western influence on Indian society, modernization, financial security, radical feminist are using this law as a weapon in their hand and because of which husband and in-laws have become victims of their vengeful daughter-in-law. Concern about the misuse of the laws relating to violence against women in India is been repeatedly shown by the Hon’ble Judges of Supreme Court and High Courts. It is been held that women incriminate false charges against the distant relatives of the husband with malice intention just to put pressure on husband and in-laws in order to fulfil her demands.

Supreme Court modifies the earlier directions issued to prevent misuse of 498A IPC. The Apex Court has now modified the directions and held that creation of a third agency and the powers conferred on it were impermissible.

In case of Preeti Gupta vs. State of Jharkhand[278], Supreme Court held that there is a

need to revisit the provisions of section 498A. It is also a matter of knowledge that exaggeratedversions of the incident are reflected in a large number of complaints. The tendency of overimplication is also reflected in a very large number of cases. Therefore, it is high time thatlegislature must take this in to consideration and make suitable changes in the existing law.

Law commission of India in its 243rd report recommended following suggestions:

 The offence under 498A should be made compoundable, with permission of court andsubject to cooling period of three months.

 The offence should remain non-bailable. However, the safeguard against arbitrary andunwarranted arrest lies in strictly observing the letter and spirit of the conditions laiddown in sections 41 and 41A of Cr.PC relating to power of arrest and sensitizing thepolice on the modalities to be observed in cases of this nature.

 There should be a monitoring mechanism in the police Dept. To keep track of section498A cases and the observance of guidelines.

 The need for expeditious disposal of cases under section 498A should be given specialattention by the prosecution and judiciary.

 

 

In the landmark judgement of Rajesh Sharma and others v. State of U.P. and another[279]

Here it would be relevant to mention that the Supreme Court in Rajesh Sharma case had issued directions to prevent purported misuse of Section 498A. The core issue that arose in the appeal related to the need to check the alleged tendency of woman filing complaint under Section 498A to rope in all family members in settlement of matrimonial dispute.

In the case, the Supreme Court had inter alia directed for the Establishment of Family Welfare Committees in each District by the District Legal Services Authority which shall look into every complaint filed in the District under Section 498A. The Court in the case had further directed that no arrest in the matter shall be made unless the Committee’s report is received. The report would thereafter be considered by the Investigating Officer or the Magistrate. The Court also stated that in cases where a settlement has been reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord.

The verdict has been under objection on various grounds including that the Apex Court encroached upon the legislative area. Hence, the intrinsic issue that fell for consideration before the Court in the case was whether the Court in Rajesh Sharma case could, by the method of interpretation, have issued such directions?

The Three-Judge Bench of the Supreme Court headed by Chief Justice DipakMisra while holding that Supreme Court’s directions pertaining to Family Welfare Committee

Manav Adhikar and another v. Union of India Ministry of Law and Justice and others[280]

This case shows the relevancy with the Rajesh Sharma Case, with regard to facts and judgement.In this recent case, the Petitions were instituted seeking directions to the respondents to create an enabling environment for married women subjected to cruelty to make informed choices and to create a uniform system of monitoring and systematically reviewing incidents of violence against women under Section 498A of IPC. Prayer was also made by the Petitioners in the case for a uniform policy of registration of FIR, arrest and bail in cases of Section 498A of IPC i.e., to immediately register FIR on complaint of cruelty and harassment by married women as per the IPC.

Other essential contention made by the Petitioners in the case was that the social purpose behind Section 498A of IPC was being lost as the rigour of the said provision has been diluted and the offence has practically been made bailable by reason of various qualifications and restrictions prescribed by various decisions of this Court

 

NO ARREST RULE

“We have protected pre-arrest or anticipatory bail provision in dowry harassment cases,” said a bench headed by Chief Justice DipakMisra and comprising Justices A M Khanwilkar and D Y Chandrachud.

The apex court, while modifying the verdict given by its two-judge bench, said that there is no scope for the courts to constitutionally fill up the gaps in penal law.
The bench was hearing a plea filed by an NGO ‘Nyayadhar’, an organisation formed by a group of women advocates of Maharashtra’s Ahmednagar district, seeking sharpness in section 498A, claiming that the otherwise “helpful instrument” in the hands of victim women has become “valueless”.

A two-judge bench of the apex court in July last year had voiced concern over the “abuse” of section 498 A (subjecting a married woman to cruelty) and passed a slew of directions, including that no arrest should “normally be effected” without verifying allegations as violation of human rights of innocents cannot be brushed aside.

Similarly, in LalitaKumari versus State of Uttar Pradesh[281]the Court said police have to conduct a preliminary enquiry before registering an FIR under 498A.

In Sushil Kumar Sharma versus Union of India[282] the apex court went to the extent of stating how through “misuse of the provision, a new legal terrorism can be unleashed” and exhorted the legislature to come up with deterrents in the law to prevent such ‘frivolous’ complaints.

The bench had observed that many such complaints are not bonafide and “uncalled for arrest” may ruin the chances of settlement.

  • The Supreme Court has also directed the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498A of IPCshould be imparted rigorous training with regard to the principles stated by this Court relating to arrest.

NGOs’ survey

Men’s Rights NGOs Getting Over 10,000 Distress Calls Monthly From Male Victims Of Violence, Sexual Abuse

bySwarajya Staff – Sep 09 2018, 9:23 pm,

“Men are always at the receiving end of all problems. Indian laws discriminate against men whereas Article 15 of the Constitution talks about equality of all citizens. We have been getting calls about various problems from men who are in distress. We even get calls regarding men getting raped by females, men being lured into physical relationships after which they are bullied or blackmailed, harassment of men at the workplace where they are used as toy boys by their seniors.” the portalquoted RitwikBisaria, vice president of Men’s Welfare Trust, part of the Save Indian Family (SIF) movement, as saying.

Men’s Rights Association, a Pune-based NGO, has also called for a gender-neutral law in India. Kumran, coordinator for Men’s Rights Association, told that even his organization receives about 20-30 calls every week from Pune alone from victims who are men and have been “falsely” implicated in cases like dowry, domestic violence and bullying.

“We have seen a rising trend of cases where men are falsely implicated after break-up with their girlfriend in cases of harassment and sometimes even rape and molestation.. We cannot have such laws where men can easily become the target,” the portalquoted Kumran as saying.

Section 498A of the Indian Penal Code was being abused by women who are wilfully filing false cases against their spouses.

SHORT COMMENT

NEW GUIDELINES TO PREVENT MISUSE OF SECTION 498A

It is matter of serious concern that large number of cases continue to be file under section 498A alleging harassment of married women. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officer and the concerned trial court being sensitized. It is also necessary to facilitate closure of proceedings where the genuine settlement has been reached instead of parties been required to move High Court only for that purpose.

After considering the submission of ASG A.S.Nadkarni and Senior Advocate V.Giri, the court has issued the following directions

  • In every district one or more family welfare committees be constituted by the District legal services authorities preferable comprising three members.
  • The committee members are not be called as witnesses.
  • Every complaint under section 498A received by the police or the magistrate be referred to and looked into by such committee.
  • Till report of the committee is received, no arrest should normally be effected.
  • Complaints under section 498A and the other connected offences may be investigated officer of the area. Such designated may be made within one month. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate.
  • In cases where a settlement is reached, it will be open to the district and session judge or any other senior judicial officer nominated by him the district to disposed of the proceedings including proceedings of the criminal case if dispute primarily relates ton matrimonial discord.
  • Personal appearance of all family members may not be required and the trial court ought to grand exemption from personal appearance or permit appearance by video conferencing without adversely effecting progress of the trial.

 

SUGGESTIONS

 

Time Bound Investigation and Trial

A speedy trial of 498A cases won’t solely guarantee justice for the innocents that are concerned in false charges, it’ll conjointly result in prompt redressal of the grievances of real gift victims .The reduction in false cases also will scale back the burden on judiciary and expedite the process of real cases.

Definition of Mental Cruelty

Mental cruelty has been mistily outlined within the act that leaves scope of misuse this could be clearly detailed to get rid of loopholes within the law. There ought to be provision for men additionally to file a case for mental cruelty by his mate.

Investigation by Civil authorities

The investigation into these offences be distributed by civil authorities and solely when his/her finding on the commission of the offence, cognizance ought to be taken. The government ought to produce awareness among officers concerning its misuse

Bailable

The main reason of 498a being victimized to harass innocent is its non-bailable nature. This section ought to be created bailable to stop innocent recent folks, pregnant sisters, and college going youngsters from languishing in custody for weeks with none fault of them.

Compoundable

Once FIR has been registered it becomes not possible to withdraw the case though married woman realizes that she has done miscalculation and needs to come back back to her marital status home to save lots of establishment of wedding this could be created compoundable. Moreover, within the state of affairs wherever the couple decides to finish the wedding by mutual divorce, continuation of criminal proceedings hamper their life.

Arrest Warrants

Arrest warrant ought to be issued solely against the most suspect and solely when cognizance has been taken. Husband members of the family shouldn’t be in remission.  Penalty for Making False Accusation

Whenever any court involves the conclusion that the allegations created relating to commission of offence below section 498a IPC ar unfound, tight action ought to be taken against persons creating the allegations. this is able to discourage persons from returning to courts with unclean hands and ulterior motives. Criminal charges ought to be brought against all authorities that ar collaborating with incorrectly inculpatory girls and their parental families.

Help for Men Who Are Being Abused

(Recognizing Domestic Violence against Men and Getting Help, Abused man crying)

While the majority of domestic violence victims are women, abuse of men happens far more often than you might expect. Typically, men are physically stronger than women but that doesn’t necessarily make it easier for you to escape the abuse or the relationship. As an abused man, you’ll likely face a shortage of resources, skepticism from police, and major legal obstacles, especially when it comes to gaining custody of your children from an abusive mother. Whatever your circumstances, though, you can overcome these challenges and escape the violence and abuse.

Domestic violence against men: You’re not alone

If you’re a man in an abusive relationship, it’s important to know that you’re not alone. It happens to men from all cultures and all walks of life regardless of age, occupation, or sexual orientation. Figures suggest that as many as one in three victims of domestic violence are male. However, men are often reluctant to report abuse by women because they feel embarrassed, or they fear they won’t be believed, or worse, that police will assume that since they’re male they are the perpetrator of the violence and not the victim.

An abusive wife or partner may hit, kick, bite, punch, spit, throw things, or destroy your possessions. To make up for any difference in strength, she may attack you while you’re asleep or otherwise catch you by surprise. She may also use a weapon, such as a gun or knife, or strike you with an object, abuse or threaten your children, or harm your pets.

Of course, domestic abuse is not limited to violence. Emotional and verbal abuse can be just as damaging. As a male, your spouse or partner may:

  • Verbally abuse you, belittle you, or humiliate you in front of friends, colleagues, or family, or on social media.
  • Be possessive, act jealous, or harass you with accusations of being unfaithful.
  • Take away your car keys or medications, try to control where you go and who you see.
  • Try to control how you spend money or deliberately default on joint financial obligations.
  • Make false allegations about you to your friends, employer, or the police, or find other ways to manipulate and isolate you.
  • Threaten to leave you and prevent you from seeing your kids if you report the abuse.

Why men don’t leave abusive relationships

Many people have trouble understanding why a woman who is being abused by her husband or boyfriend doesn’t simply just leave him. When the roles are reversed, and the man is the victim of the abuse, people are even more bemused. However, anyone who’s been in an abusive relationship knows that it’s never that simple. Ending a relationship, even an abusive one, is rarely easy.

You may feel that you have to stay in the relationship because:

  • You want to protect your children. You worry that if you leave your spouse will harm your children or prevent you from having access to them. Obtaining custody of children is always challenging for fathers, but even if you are confident that you can do so, you may still feel overwhelmed at the prospect of raising them alone.
  • You feel ashamed. Many men feel great shame that they’ve been beaten down by a woman or failed in their role as protector and provider for the family.
  • Your religious beliefs dictate that you stay or your self-worth is so low that you feel this relationship is all you deserve.
  • There’s a lack of resources. Many men have difficulty being believed by the authorities, or their abuse is minimized because they’re male, and can find few resources to help abused men.
  • You’re in a same sex relationship but haven’t come out to family or friends, and are afraid your partner will out you.
  • You’re in denial. Just as with female domestic violence victims, denying that there is a problem in your relationship will only prolong the abuse. You may believe that you can help your abuser or she may have promised to change. But change can only happen once your abuser takes full responsibility for her behavior and seeks professional treatment.

 

When dealing with your abusive partner:

  • Leave if possible.
  • Never retaliate. An abusive woman or partner will often try to provoke you into retaliating or using force to escape the situation. If you do retaliate, you’ll almost certainly be the one who is arrested and/or removed from your home.
  • Get evidence of the abuse. Report all incidents to the police and get a copy of each police report. Keep a journal of all abuse with a clear record of dates, times, and any witnesses. Include a photographic record of your injuries and make sure your doctor or hospital also documents your injuries. Remember, medical personnel are unlikely to ask if a man has been a victim of domestic violence, so it’s up to you to ensure that the cause of your injuries are documented.
  • Keep a mobile phone, evidence of the abuse, and other important documents close at hand. If you and your children have to leave instantly in order to escape the abuse, you’ll need to take with you evidence of the abuse and important documents, such as passport and driver’s license. It may be safer to keep these items outside of the home.
  • Obtain advice from a domestic violence program or legal aid resource about getting a restraining order or order of protection against your spouse and, if necessary, seeking temporary custody of your children.

 

 

CONCLUSION

To conclude the discussion it is submitted that section 498A is sublime legislation which was introduced under the Indian Penal Code with an intention to provide protection to women, who are vulnerable section of our society and who have been victim of cruelty and harassment. However, the problem arises when there is misuse of these provisions for personal benefit and innocent people and their families are falsely implicated in section 498A cases. Judiciary time and again have observed that, false allegations are made against innocent people without any justification or proper evidence to prove the case against them. According to the statistics of National Crime Records Bureau, conviction rate of cases registered under section 498A of IPC is approximately 15%.19 Therefore, it can be said that there is urgent need to revisit the provisions of section 498A and to adopt measures to prevent the misuse.

The harsh law, far from helping the genuine victimized women, has become a source of blackmail and harassment of husband and others. Once a complaint (FIR) is lodged with the police under section 498A/406 IPC, it becomes an easy tool in the hands of the police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. When the members of a family are arrested and sent to jail, with no immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage will be lost once and for all. The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest by the police will thus be counter-productive. The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family.

 

NAME OF THE AUTHOR(S): –

NANCY SINGH

NEHA SHARMA

SUMEDHA TOMAR

POSTAL ADDRESS OF THE AUTHOR(S): –

NANCY SINGH, J-72, DILSHAD COLONY,

DELHI – 110095.

NEHA SHARMA, SARAS SADAN, VILL. –

KAYAD, AJMER, RAJASTHAN – 302053,

SUMEDHA TOMAR, 6116/4, D-6, SANTUSHTI

APARTMENT, VASANT KUNJ, NEW DELHI-

110070.

EMAIL ADDRESS & PHONE NUMBER OF THE AUTHOR(S) :-

NANCY SINGH:singhnancy102@gmail.com

8440808225

NEHA SHARMA: ns0598766@gmail.com

8003909202

SUMEDHA TOMAR:sumedhatomar2106@gmail.com

9205564810

COURSE & YEAR OF THE AUTHOR(S): –

  1. ComLLB IIIrd YEAR

PROFESSIONAL POSTION OF THE AUTHOR(S): –

Student

NAME OF THE UNIVERSITY:-

BANASTHALI VIDYAPITH

NEWAI, TONK,

RAJASTHAN -304022

 

 

“JUSTICE FOR MEN’S RIGHTS; EMERGING ISSUES & CONCERNS”

Generally, rape is still thought to be a crime against women specifically (and has been historically defined this way), although many cases of male-victim rape have become subject of public discussion. Rape of males is still taboo, and has a negative connotation among heterosexual and homosexual men. Mostly, male victims try to hide and deny their victimization, similar to female victims, unless they have serious physical injuries. Eventually, the male victims may be very vague in explaining their injuries when they are seeking medical or mental health services. It is difficult for a male victim, heterosexual or gay, to report the sexual assault that was experienced by him, especially in a society with a strong masculine custom. They are afraid that people will doubt their sexual orientation and label them as gay, or that they were a victim. A perception of being gay is also a motive for rape in many cases. The research about male-victim rape only appeared less than 30 years ago, focusing mostly on male children. Only recent have some other forms of sexual violence against men been considered. Sexual assault in interpersonal relationships is an extremely prevalent form of violence. Men involved in physically abusive relationships with other men may be especially vulnerable to sexual assaults by their partners. In a study of 162 gay men, 52% reported at least one incident of sexual coercion by their same-sex partner. Nearly 7 million men are sexually and/or physically assaulted by intimate partner in their lifetime.

 

  1. INTRODUCTION

1.1 Overview

Now that men’s rape is recognised under law, it does raises a number of concerns and issues regarding the conduct of men’s rape that have gained a very little attention in the legal literature. The significant rise in the men’s rape cases depicts the urgency to understand the issues of men’s rape in law. For example, Ministry of Justice ended with the survey in September 2013 that there were 2,164 rape and sexual assaults against male aged 13 and above resulting in financial aid by the Government of around $500,000 to provide services of counselling and advice to help male rape victims who haven’t received the aid earlier and is still suffering and also to encourage them to come forward after suffering such a crime (Ministry of Justice,2014). The fund is aided by the organisations who think they can provide helping hands to the male victims in some or other forms.

The growing amount of research on men’s rape is increasing the need to understand the issue of men’s rape. These research studies have challenged many male rape myths and have highlighted the extent to which the misunderstandings pertaining to male rape influence the attitude of the wider community.

 

1.2 Male Rape in India

India has made steady but slow progress in dealing with sex crimes against women and children. But a silence remains about male rape, as though society here pretends that this rarely happens. This is a topic hardly seen in the news because male rape is hardly ever reported. Deeply embedded ideas about masculinity mean it can be a matter of great shame for a man to come out and say he’s been raped and seek legal remedy.

When a staff member of a politician accused him of rape in 2013, the Indian media reported it as a case of “sodomy”, an old term for anal sex. In other words, adult male rape is discussed more in the context of sexuality than a physical assault.

However, a sample survey was done which resulted in that more than half the victims of child sexual abuse are boys. If minor males can be raped, what makes us think that adult men can’t be raped by men in positions of power? A 2015 study by the National Human Rights Commission, for example, found that sexual abuse in India’s prisons was the top reason for the high number of suicides by inmates.

John Stokes, an American LGBT (lesbian, gay, bisexual and transgender) activist, said he learnt about “dozens of cases” of men and transgender people being raped while he worked in Delhi as a sexual health counsellor but found that they had little legal recourse to deal with such offenses. Discriminatory legal treatment of male rape suggests that rape is seen as an act of sex and not power.

1.3 Male rape and Section 377

Two public interest lawsuits are pending before the Supreme Court of India. One seeks to decriminalize homosexuality while the other seeks to make all sex offenses gender-neutral. The two matters are interlinked.

Currently, if a man rapes a man in India he can be punished under Section 377 of the Indian Penal Code. This law criminalizes all “unnatural” sex, such as anal sex, even if it is consensual. Nobody seems to be charged for consensual sex though, as it requires a complainant. In practice, legal use of Section 377 is a law against male rape.

Although “unnatural” sex also criminalizes consensual oral sex between men and women, in reality this law is a tool to harass homosexuals, mainly gay men. And the presence of the law in statute books prevents gay people from being open about their sexuality.

The petitioners against Section 377 have requested the Supreme Court to “read down” the law so that it no longer applies to consensual gay sex. If the Supreme Court does that, 377 will only apply – in letter and spirit – to male rape. But critics say the government and judiciary need to completely repeal Section 377, because it classes all forms of sex other than traditional male and female intercourse as “unnatural” – and rape laws should be made gender-neutral.

1.4 Conspiracy of silence

Whether a male rape victim is straight or gay, acknowledging rape comes with the fear of being accused of being homosexual. For a gay man to report male rape is nearly impossible thanks to 377. A gay man raped in Delhi on a date in 2016 felt if he approached police or a lawyer about the attack, he could also be arrested because of Section 377. India enacted a law in 2012 that criminalized child sex abuse. One of the reasons for a specific law on child sex abuse was because existing laws on rape and sex offenses only ‘sees’ females as victims, not males.

Rape of adult males has been disregarded. Many gay rights groups don’t speak about it because it might feed the notion that homosexuals are rapists or pedophiles, and negate the LGBT rights movement. And men’s groups are often more concerned about stringent laws relating to dowries and domestic violence.

1.5 Feminist blind-spot

Feminist groups don’t speak about it because they feel gender-neutral laws could be misused against women. Indeed, feminist activists actually prevented the Indian government from making rape laws gender-neutral in 2012.

Leading Mumbai-based feminist activist Flavia Agnes said: “The consequences of rape for a woman are far-reaching. She has to battle social stigma, social mindset. While fixing marriages, nobody asks a man if he is a virgin.”

“I don’t think men are facing serious sexual violence as women,” the well-known feminist lawyer Vrinda Grover said. Making rape laws gender-neutral would make a “mockery” of the grave issue of violence against women, she believed.

 

1.6 We need this conversation

Section 377 must be abolished on principle because consensual anal sex between men should not be a crime. Similarly, male rape must be a criminal offense, on par with women’s rape, as a matter of principle.

“Sometimes rape is inflicted on men just to shame them to, supposedly, insult their masculinity,” wrote an Indian male rape victim in 2013. “In whatever way it happens, it loops back to the question of gender. This is ONE of the reasons my politics is grounded in feminism.”

India’s feminists may be letting him down, but the Supreme Court and the Indian government must consider his plight – strike down Section 377 and make rape laws gender-neutral.A significant proportion of victims of rape or other sexual violence incidents is male. Generally, rape is still thought to be a crime against women specifically (and has been historically defined this way), although many cases of male-victim rape have become subject of public discussion. Rape of males is still taboo, and has a negative connotation among heterosexual and homosexual men.

Community and service providers often react to the sexual orientation of male victims and the gender of their perpetrators. Mostly, male victims try to hide and deny their victimization, similar to female victims, unless they have serious physical injuries. Eventually, the male victims may be very vague in explaining their injuries when they are seeking medical or mental health services. It is difficult for a male victim, heterosexual or gay, to report the sexual assault that was experienced by him, especially in a society with a strong masculine custom. They are afraid that people will doubt their sexual orientation and label them as gay, or that they may be seen as un-masculine because they were a victim. A perception of being gay is also a motive for rape in many cases.

Looking across different government survey sources, for a given year male adult and youth inmates are estimated to suffer several times more incidents of sexual victimizations than incarcerated females. Male and female inmates are not included in most national surveys of sexual victimization. The research about male-victim rape only appeared less than 30 years ago, focusing mostly on male children. The studies of sexual assault in correctional facilities focusing specifically on the consequences of this kind of rape were available in the early 1980s, but nothing was available during the previous years. Most of the literature regarding rape and sexual assault focuses on female victims.

Only recently have some other forms of sexual violence against men been considered. In the 2010–2012 National Intimate Partner and Sexual Violence Survey (and a prior edition of this study completed in 2010), the Centres for Disease Control (CDC) measured a category of sexual violence called “being made to penetrate” which captures instances in which victims were forced to or attempt to sexually penetrate someone (of either sex), either by physical force or coercion, or when the victim was intoxicated or otherwise unable to consent. The CDC found in the 2012 data that 1.715 million (up from 1.267 million in 2010) reported being “made to penetrate” another person in the preceding 12 months, similar to the 1.473 million (2010: 1.270 million) women who reported being raped in the same time period. The definitions of rape and “made to penetrate” in the CDC study were worded with extremely similar language.

1.7 Male-on-male rape

Male-on-male rape has been heavily stigmatized. According to psychologist Sarah Crome, fewer than 1 in 10 male-male rapes are reported. As a group, male rape victims reported a lack of services and support, and legal systems are often ill-equipped to deal with this type of crime.

Several studies argue that male-male prisoner rape, as well as female-female prisoner rape, are common types of rape which go unreported even more frequently than rape in the general population.

1.8 Female-On – Male Rape

Male victims of sexual abuse by females often face social, political, and legal double standards. The case of Cierra Ross’ sexual assault of a man in Chicago gained national headlines and Ross was convicted of aggravated criminal sexual abuse and armed robbery with a bail set at $75,000. A similar case includes James Landrith, who was made to penetrate a female acquaintance in a hotel room while incapacitated from drinking, while his rapist cited the fact that she was pregnant to advise him not to struggle, as this might hurt the baby.

1.9 Myths Regarding Male Rape

Males are not vulnerable

By masculine gender socialization, it is thought that males, even younger males, cannot be victims of rape, nor even that they are vulnerable. In some societies, it is considered shameful and unmanly if a male child cries, because the male stereotype depicts males as being able to protect themselves, which may not always be the case.

Males always want sex

A common societal belief is that a male must be aroused if he gets an erection or has an orgasm, therefore that means that they are willing and enjoying any sexual activity.

Much like female erectile response, male erectile response is involuntary, meaning that a man need not be aroused for his penis to become erect; mechanical stimulation is all that is necessary. Arousal and stimulation are distinct things. Stimulation is a physical response to a stimulus. Men can be physically stimulated without feeling aroused and thus causing an erection. Men can be scared and intimidated into an erection, especially if the person is older or an authority.

Traumatization

One notion is that males are less traumatized by the abuse experience than females are; this includes the belief that males are less negatively affected. Studies show that the long-term effects are damaging for either sex and males may especially be more damaged by social stigma and disbelief of their victimization.

Trauma recovery counsellor Stephanie Baird says men who experience sexual attention as children often explain it to themselves as “I’m a stud, I got laid by …”. Baird explains that they do this in order to feel as if they had some power and say.

1.10 During armed conflict

Rape of males during wartime has been reported as being very prevalent in some parts of the world, such as Democratic Republic of Congo. Many male refugees who have escaped from the civil war in Congo to Uganda have been raped. Across Africa, men who are raped often face social stigmatization, accusations of homosexuality (which is illegal in many countries of the region), and being ridiculed for being “weak” and failing to prevent the rape. In northern Uganda, in recent years there have been ongoing attacks by rebel groups against the government forces. During these conflicts, civilian men have often been attacked, kidnapped, raped and forced to fight for the rebel groups.

1.11 Effects

Physical effects

Sexual abuse results in severe emotional and often physical trauma. Among sexual assault victims over 18, 31.5% of females and 16.1% of males said that they incurred non-genital injuries from the assault.

Male victims received more ancillary injuries and were more likely to be threatened with a weapon by the perpetrator. The symptoms and injuries most frequently noted are tension headaches, ulcers, nausea, colitis, abrasions to the throat, black eyes and broken bones. The study by Stermac and colleagues (2004) noted that 45% of male survivors who went to a hospital sexual assault centre had some type of physical injury.

Psychological effects

Rape victims, males and females, may find it difficult to report the sexual assault against them. There is a myth that a male sexual assault victim will become a perpetrator themselves. This myth is very damaging to victims, both to their mental states and to how people treat them.

  1. WHAT IS MEN’S RAPE?

This paper focuses on men’s rape and in India it is found that rape is basically committed by the men only as penetration has to done with a penis. But both men and women can be raped. According to the Section 1 of Sexual Offences Act 2003, which is up to the date with all the changes known to be in force on or before 14 September 2018 states Rape as:

  • A person (A) commits an offence if –
  • He intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,
  • B does not consent to the penetration, and
  • A does not reasonably believe that B consents.
  • Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
  • Sections 75 and 76 apply to an offence under this section.
  • A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

 

  1. STATUTES

“Sexual assault” was substituted by “Rape” in the year 2013 wherein the Centre passed the stop-gap Criminal Law (Amendment) Ordinance and which results in making the crime a gender neutral from the aspect of perpetrator as well as victim.

The Criminal Law (Amendment) Bill, 2013, more popularly called the Anti-Rape Bill, is now law. The Act came into force on 3rd February, 2013 following the outrage of the entire nation behind the homicidal gang rape that took place in New Delhi on the night of 16th December 2012.

This project works discusses the major amendments of the sections regarding sexual offences in the Indian Penal Code.

The insertion of the new provisions and the amendment of the existing provisions have been dealt with in detail in the present work.

The Act recognizes the broad range of sexual crimes to which women may fall victim, and a number of ways in which gender based discrimination manifests itself.

It also acknowledges that lesser crimes of bodily integrity often escalate to graver ones. It seeks to treat cases as “rarest of the rare” for which courts can award capital punishment if they decide so.

The Act introduced unprecedented provisions in the Indian Penal Code which criminalises sexual, voyeurism and stalking and amends legal provisions to protect the privacy of individuals, such as discontinuing the practice of examination of the sexual history of the victim of a sexual assault for evidence.

The Criminal Law (Amendment) Act, 2013, an Indian legislation passed by the Lok Sabha on 19 March 2013, and by the Rajya Sabha on 21 March 2013, provides for amendment of Indian Penal Code, Indian Evidence Act, and Code of Criminal Procedure, 1973 on laws related to sexual offences.

The Bill received Presidential assent on 2 April 2013 and deemed to came into force from 3 February 2013. It was originally an Ordinance promulgated by the President of India, Pranab Mukherjee, on 3 February 2013, in light of the protests in the 2012 Delhi gang rape case.

A graver punishment for the accused was demanded for committing such a heinous crime. In a meeting at UN Women, Justice Verma stated that, “to ensure its success, it is important that the Act be implemented with dedicated human and financial resources, and clarity in roles and responsibilities. A law is only as good as the systems and individuals that implement them. Mindsets and attitudes need to change so women can truly be respected equally and value in society.”

 

3.1 Reasons for the Enactment

The nation-wide spread outrage over the brutal gang rape and subsequent death of the physiotherapy intern in India’s very own capital city, New Delhi was the driving force behind the passing of the Criminal Law (Amendment) Act, 2013 that sought to amend the existing laws regarding sexual offences in India. The Act is deemed to be one of the most important changes that have been made in the existing criminal laws namely the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act.

Mukesh &Anr Vs State of NCT of Delhi & Others[283]

The 2012 Delhi gang rape case involved a rape and fatal assault that occurred on 16 December 2012 in Munirka, a neighbourhood located in the southern part of New Delhi, when a 23-year-old female physiotherapy intern was beaten and gang raped in a private bus in which she was travelling with a male friend. The victim later died due to her injuries. The incident generated widespread national and international coverage and was widely condemned, both in India and abroad. Subsequently, public protests against the Government of India and the Government of Delhi for failing to provide adequate security for women took place in New Delhi, where thousands of protesters clashed with security forces. Similar protests took place in major cities throughout the country demanding stricter laws and speedy justice.

Consequences;

Widespread protests followed after the gang rape incident occurred. There were protest movements nationally as well as internationally, all demanding stricter laws to check violence against women. This particular incident garnered huge popularity because of the heinous nature of the crime committed. As a result of the nationwide protests, the Justice Verma Committee was constituted under the notification of the Government of India to suggest changes in the existing laws.

Justice Committee

The comprehensive 630 pages report, which was completed in 29 days, was appreciated both nationally and internationally. This eventually led to the passing of the Criminal Law (Amendment) Act, 2013, which was criticised as not adequately applying the Committee’s work and recommendations. The committee in its report blamed the government, police insensitivity and gender bias for the rising crimes against women in the country. It also created some offences like disrobing a woman, voyeurism, stalking and trafficking.

 

3.2 Four basic Recommendations of Committee:

1) Punishment for Rape

2)Punishment for other sexual Offences

3)Registering Complaints and Medical examination

4)Bill of Rights for Women

Amendment of the Provisions of the Indian Penal Code, 1860

The Criminal Law (Amendment) Act, 2013 that came into force on the 3rd of February, 2013 amended as well as inserted new sections in the IPC with regard to various sexual offences. The new Act has expressly recognized certain acts as offences which were dealt under related laws. New offences like, acid attack, sexual harassment, voyeurism, stalking have been incorporated into the Indian Penal Code.

 

3.3 Sexual Offences

Sexual Harassment – Section 354A

Sexual harassment is bullying or coercion of a sexual nature, or the unwelcome or inappropriate promise of rewards in exchange for sexual favours:

The essentials of the offence of sexual harassment as defined in the case of

Vishaka v. State of Rajasthan[284] are –

1) physical contact and advances involving unwelcome and explicit sexual overtures;or

2) a demand or request for sexual favours; or

3) making sexually coloured remarks; or

4) forcibly showing pornography; or

5) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

According to the Indian Constitution, sexual harassment infringes the fundamental right of a woman to gender equality under Article 14 and her right to life and live with dignity under Article 21.

Section 354B – If a man assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked in any public place, he commits an offence under section 354B, which is punishable with imprisonment between three and seven years.

This section deals with a very specific offence and adds to and supplements the provision dealing with the offence of outraging the modesty of a woman. This is a welcome provision in view of the fact that many cases have been reported in the news of women being stripped in public as an instrument of punishment mostly in backward areas.

Voyeurism – Section 354C

Voyeurism is the act of watching a person engaged in private activities. If a man watches a woman engaged in private activities, when the woman does not expect anyone to be watching, he has committed the offence of voyeurism.

Provisions after Amendment

Section 354C – Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished. Under Section 354C, such a person is liable.

In case of first conviction, imprisonment is not to be less than one year, but may extend to three years, and shall also be liable to fine, and on a second or subsequent conviction, punishment with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

Stalking – Section 354D

It means following a person and making or attempting to make contact for personal interaction, despite a clear disinterest being displayed by the other person. Stalking may be committed both physically and through electronic media.

Provisions after Amendment

Section 354D – Stalking has been made a specific offence under this new section. If a man stalks a woman, he may be punished with imprisonment of up to three years for the first time, and five years for the subsequent convictions. However, the offence is subject to certain exceptions like where a person can show that the acts done were in pursuance of some law, amounted to reasonable conduct or in order to prevention of some crime.

As per the definition in Section 354D the offence was gender-neutral offence, making the crime of stalking punishable for both the gender whether male or female. However, the Amendment Act of 2013 changed ‘Whosoever’ to ‘Any Man’ making the offence of Stalking a gender-specific offence. Section 354D of the Ordinance of 2013, was highly inspired from the definition of ‘Stalking’ in Section 2A of the Protection from Harassment Act, 1997 passed by British Parliament on 25th November 2012.

  1. CURRENT SITUATION

The rape of males in India is commonly reported. For this reason, some activists and research organizations, including Jai Vipra at the New Delhi think-tank Centre for Civil Society, argue that the phrasing of rape laws should be gender neutral. This view is opposed by some human rights advocates and women’s rights activists. Mumbai-based human rights lawyer Flavia Agnes told the India Times, “I oppose proposal [sic] to make rape laws gender-neutral. We had opposed it when the government made child rape laws gender-neutral … If made gender-neutral, rape laws will not have the deterrence value and it will make it more complicated for judges in court.” International human rights lawyer and activist Vrinda Grover was quoted in the same article: “There are no instances of women raping men. I don’t think men are facing serious sexual violence as women. Consider the brutality and intensity of sexual violence against women.”

 

  1. RELATED ARTICLES

May 8, 2018[285]

PIL filed before SC for provision to punish women too for rape.

Adultery law should be made gender neutral, says PIL.

The petition asks that the word “any man” used under the offences 354C (voyeurism),

A PIL has been filed before the Supreme Court for provision to punish women too for offences such as rape, sexual harassment, stalking and voyeurism, saying men also are victims. The plea cites a recent SC decision to examine if the adultery law can be made gender-neutral.

At present, even if a man files a complaint against a woman for committing these offences, she goes scot-free as the 158-year-old Indian Penal Code believes only men can commit such a crime.

“Crime has no gender and neither should law. Women commit crime for the same reasons that men do. The law does not and should not distinguish between criminals and every person who has committed an offence is liable to punishment under the Code,” says petitioner Rishi Malhotra, a Supreme Court lawyer who has filed several other successful PILs.

“In a recent study, it was found that out of 222 Indian men surveyed, 16.1% had been coerced into having sex. Despite rape of men not researched as widely as rape of female, there are several statistics to suggest that men are raped and the prevalence of men rape is wider than is generally presumed.”

The petition asks that the word “any man” used under the offences 354C (voyeurism), 354D (stalking), 354A (sexual harassment) and 375 (rape) be declared ultravires, or in violation, of the Constitution.

Malhotra argues that Article 15 of the Constitution prohibits discrimination against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. “Crimes such as rape and murder do not see age, caste or even gender or sexual orientation.

Rape is seen across the extremes of age, sex and geographical boundaries. Thus, it is only the development and application of a gender-neutral law that will be effective in improving the reporting and registering of such crimes,” the PIL says.

 

  1. SHORT COMMENTS

To sum up, the role of the state remains paramount in tackling VAW. Therefore, the law implementing agencies should be adequately provided strategic training to tackle any eventuality with dexterity–even if it necessitates increasing the number sufficiently. Alongside, as also suggested by the JVC report, there remains a desperate need to improve public-police relationship, possibly through a good will venture (perhaps training the police officials as well as the public in gender sensitive programmes). Challenge therefore, lies in scaling the mechanism of coordination and cooperation from few to all stakeholders of the state. To be more precise, the executive, who is delegated with the responsibility of investigating a trial in a judiciary, should bear asense of accountability (rather than misusing its power) in ferreting out the actuality of the facts so that the outcome of the trial turns out to be unbiased, fair and flawless. At the same time, the incitement and provocation alarmingly disseminated by the media and other information agencies must be shackled

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Sub-theme – Male Rape

Title of the paper – Victimizing Masculine Spine

Name of the Institute – Banasthali Vidyapith

E-mail address – shipra0199@gmail.com

Postal address – Shipra Dwivedi, Shri ShantaNeri, Banasthali Vidyapith, Tonk, Newai,

Pin Code – 304022

Contact Number – +91 8433055756

ABSTRACT

By the virtue of the paper presented by Shipra Dwivedi; student of Banansthali Vidyapith, author aims at highlighting the increasing incidents on male rapes. Although, it the women who are more prone to sexual abuse in Indian society but the fact that there is a growing statistics of male victims of sexual abuse or in more strict sense, rape, cannot be overlooked. The most potential target areas where prominently male sexual abuse can be witnessed is the corporate sector. However, there are also cases in the unorganised labour sector where males are raped or sexually abused taking advantage of their compulsion of job security and survival. The disheartening part of the entire scenario is that even after suffering from such moral disgust, these men cannot step forward for their rights and justice, given the fact of absence of providing social security on these grounds to them. There is no doubt or it can be better stated that it is a settled statement that men can never be sexually abused. But having being grateful to the development of the human society in terms of their degrading morality and excessively increasing moral harms to one other for personal benefits and pleasures. This article extends to highlight the degrading working conditions on moral grounds for men and their sexual abuse in the society. Above all this, is the non-availability of remedies to these victims highly due to the absence of any uniform laws on such issues. Although, Sections 375 and 376 of the Indian Penal Code, 1860 provide for the definition, conditions, essentials and remedies for female rape victims but no Indian law recognizes male rape as an offence. The article also mentions and appeals for the recognizing male rapes as a concern and constituting laws for this issue accordingly.

INTRODUCTION

“There is no method by which men can be both free and equal.”

-Walter Bagehot

These words by Walter Bagehot clearly depict what men these days are going through. Although from a very long time our major concern has been protection and safety of women. Criminalizing offences against women have helped a lot in this issue and has also in some ways empowered them. There is no doubt that women are still not absolutely safe in the nation but legislature has been doing all it can to secure half of the population of the nation and provide them with what they truly deserve in the society.

But somewhere and somehow securing this half the population has shifted our focus from the other half of the human beings. We are so self-absorbed and have focused so much towards women safety that we have abstracted ourselves from issues concerning men. We have entirely shifted our focus from men and what criminal remedies they may require. As of the present scenario, we are hit by the news headlines uncovering the abhorrence women are facing, but we have failed to abstruse the pain of men; their suffering and their needs from law and law-makers. Our legislature has successfully and in the best possible way has attempted to secure women from the atrocities of men. But we have completely overlooked men’s rights against crimes such as sexual assault, sexual harassment, rape, etc. It might sound defiant but with the development of human race and crimes and laws, the century has also begun to witness this hardship too, if not as majorly as of women, but definitely as an emerging and disturbing situation. As we speak of women being ill-treated or subjected to brutality, we often forget that there are some men who suffer the same exploitation and shame. We often lose sight of the agony of men.

A VOICE UNHEARD…

Global Conditions

This is not the scene with us and not that it has emerged or just appeared out of the blue but it has been in existence, persistent and careful enough not to be looked upon by anyone, especially the delegates making law for the society. If one might consider it with the happening to a common man, he must look upon the statement of George Smith, Prince Charles’s former valet. Adam Chugg, national coordinator of Survivors UK, has reported that it was despondent to note that he had been raped by another man who had been with him the guardsman, trained in the combat.[286] The most interesting part of quoting this news is that it dates back to 2002, time when male rape wasn’t even attracted to anyone’s attention.

Our neglect has adversely affected the security of men and has put their reputation and modesty at stake. Many studies and surveys have been conducted, crimes reported and news updated, but neither of these can conclude up to a proper action, owing to the fact of absence of laws guarding men against sexual offences.  While women claim to be protected from the demons of the society, who is to think about men that they need to be protected too? Who is to be held responsible for their modesty being taken away brutally? Sexual harassment is the worst that can happen to a person; the worst way to finish off humanity from a person. Not only it takes away his modesty but it stripes your soul apart. It makes a person living dead. A victim suffers more than just physical pain and agony; a lot more than he can share. It is not always clear what exactly can be reason behind the unstable mental condition of the victim, however it is always certainly assured that it is the consequence of several emotions and pride breaking inside him. It feels as if the world inside him has been ripped off and his pride and honor been chopped off within a moment and all the emotions drained out until he’s left with nothing inside him; no objective to live or to survival.

There are several other incidents to proof the point on men being the potential victims of rape in most African countries. A prominent personality from Nairobi admitted to be raped by an old woman after getting along for drinks. Furthermore, in 2014 a news came of men being raped in Nigeria by women. Also, in Zimbabwe, reports have been filed against three women for sexually harassing and raping men for their rituals. On these incidents, the statement of Psychologist, Karen Kimani,as quoted is, “there is a wrong perception that men enjoy sexual attention from women and that they’re always ready for it.”[287] Not only stating for the rapes for embarrassing other gender there are some reported cases across the globe of forcefully having sex with the exes or just to have fun and taking advantage of their modesty. As reported from the Washington Post, a woman was held for forcing her ex-boyfriend to have sex with her.[288]

ARE INDIAN MEN FREE FROM SEXUAL HARASSMENT?

Being a global outlook to what possibility is, India is not nation to stay aloof from global developments. Be it negative or positive, sexual exploitation against men has also been witnessed in India too. Whenever we come across any news of sexual assault against any women, the first thought that strikes our mind that women are Goddess. What we always forget is that God resides in all of us. As he resides in women, so he does in men. Looking at the recent past, it is evident that woman have been victimized is crimes of this nature. But we have overlooked on this concern when it comes to men. We completely outlook that men can be raped too. Seemingly, we have come to a nation for different from its literal meaning. Rape defined LGBT Section 377 defined.

Brief history, Judgement consequences with the LGBT coming into effect. We can look up to more cases of crimes against men. It is just a matter of time when will be looking up to the safety of men more than women. Already, we are witnessing some of the astonishing incidents.

Labor forced to have sex?

A study conducted by UNCHR, in its report of October 2017, shows that many of the Syrian refugee men and boys are being raped and most of the targeted are the homosexuals and gays. It is also reported that these rapes and sexual assaults of men and boys should also be included in the war time sexual exploitations of men.[289]

That is what makes them more vulnerable and easy target for sex trafficking and sexual exploitation. They are paid in exchange of the body. And if they refuse the only option left to them are either die by himself or end his family killing them of starvation. They have not even any case reporting this incidents because all they know is reporting means expenses and loss of job, the latter being the worst they can afford. But of several records and surveys have become evident of it.

In India the number of working population has the highest owing to the fact that the country owns the largest youth population. But most of this number falls under the unorganized labor which in fact, the most exploited section of the economic society. Most of them are young adults who can put their efforts in work and are so economically challenged that they would trade their soul in exchange of money to provide living for their family.

It is the acute shortage and desperate need of survival that backs them to file report against such devils involved in activities like these, for people like these use their money as a bait to trap innocent people post people into sexual forced sex business.

Corporate Sector

“All that glitters is not gold”.

True. The limelight, flame, prosperity, money and lust rule the governance of corporate world. The high positioned Kings & Queens exploit their slaves for their self-pleasure.

The bosses sexually exploiting their subordinates in lies of promotion or increment is not something new to us. The private sector has this dark secret beneath itself but it, most efficiently, shines in its glamour’s of false prosperity.

According to a survey conducted by Economic Times-Syvonate in 2010, “men are aas vulnerable to sexual harassment as women in India.”

LGBT : getting ‘it’ to the next level

 

As far as now, unnatural sexual intercourse was something to be shushed about. But now, with the legalizing of LGBT and abolition of Section 377 of Indian Penal Code, 1860, this liberalization has led crime to another level. There have been many incidents that have been caused by men to men and women to men. It’s nice that equality has played its part in bringing people together and recognizing them as human being as ourselves but it has also come with a terrible condition whereby men are raping and sexually harassing men. The section does not provide for any remedy for forceful sexual intercourse against anyone.

Legislation

Although the Vishakha Guidelines[290] laid down by the Supreme Court in 1997 prevent sexual harassment at workplace, but these guidelines are just laid down for women working in their respective offices and not providing for only their protection. These guidelines do not guard for the men working in the organization.  The present sections as provided in the Indian Penal Code[291] do not provide for any protection of men against any sexual offence. They do not have any laws under which they can go to report their dismay. As of now there have no laws framed and enacted so as to protect men from women’s agony and to protect their modesty. However, it is the alarming time when government needs to work upon its policies to frame equal remedies to the men. It is often considered that men can never be raped because they enjoy being sexually attracted by women. But legalization of LGBT has enormously affected adversely the male section as they are to be tormented by homosexuals for their self-sexual satisfaction which might lead to increasing rape cases in India. Already were dealing with how to control rape tolls against women and now we have been confronted by another devastating situation.

CONCLUSION

It is factual to note the condition our country is being led to. Humanity is at its lowest and words like peace, respect, modesty, privacy seem meaningless. The myth that men enjoy sex has wholly contributed the sexual offences rising against them. Even if they do, that does not account for the condition that they would agree to do it with any women. Just like women, men too idolize their partners and things like these are so private to be told anyone. The lack of legislature has also contributed to the increasing rape cases as the accused do not know whether anything can happen to them or not.

India like many other countries need to frame strict laws regarding this concern. Men are not safe in our country just like women and now with the enough evidences it is proven that as much as women need protection from men, men need to be protected from the wrath of women too. For a developing country like ours, it is mandatory to provide social security to each and every citizen if the nation. As far as male trafficking is concerned, it is in its hype as women trafficking and in no way behind its counterparts, owing to the black merchants of body who trade flesh over money and beyond that consider no God. It is important for the nation to awake in its freight and fight against these evils and bring alive the conscience that has been left behind long ago in order to satisfy the thirst and lust out of men and women. But as long as the public is not made aware of its moral instincts nothing can change.

Ms.OshinRatnawat

Ms. Shailja N. Vyas

Jamnalal Bajaj School Of Legal Studies

BanasthaliVidyapith

email: ratnawatoshin@gmail.com, vyashailja25@gmail.com

Postal Address: BanasthaliVidyapith, Newai, Tonk,  Rajasthan (304022)

Contact No. : 9406651096, 7023333557

ABSTRACT

 

From the ancient time women have been stigmatized with a notion of being a “Weaker” Gender. This Patriarchal view has been long lost in this century. Women are no longer considered as weaker but they are now beefed up. They are now considered equal in the eyes of law as well as in the society. The reason behind such robust standing given to women was due to the emerging laws which are totally slanted infavor of women. The sole object of such prophylactic laws was to provide legal protection to the married women against exploitation and victimization by dowry greedy in-laws or by stronger sex. These laws were earlier justified with respect to condition of women in older time, but now she is no longer considered as “AblaNari”. Such women Protective laws have become a handy weapon to be used as a tool to blackmail, harass and humiliate the innocent members of in-laws family. The unmanning and unjustified use of such power given in the hands of women to harass and mentally torture the husbands and their family has led to the irreparable damages to the life of husband and their relatives. Thus, Judiciary demands that if provisions of such protective laws are misused then it is for the legislature to amend, modify or repeal it. Thus, while it is true that women protective laws are working effectively elevating from the realms of the atrociousness of this society, still there are allegation that such laws are misused by the fallible women and police officers for therefacinorous ends.  The resolution itself does not lie in dismissing the existing laws, therefore, it is amiable to provide an opportunity to estranged spouses to settle their dispute amicably. Henceforth, the Indian Justice System is still in search of an efficacious way to legally extenuate the dowry death, domestic violence as well as misuse of provisions of Dowry Prohibition Act by women. A rampant misuse of such provisions would be like :

“A cry of “wolf” when made often as a prank for assistance and protection, it may not be available when the actual wolf appears.”

INTRODUCTION

 

“No nation founded upon injustice can stand. From sand enshrouded Egypt from the marble wilderness of Athens, from every fallen, crumbling stone of once mighty Rome comes a wall, as it were the cry. No nation founded upon injustice can permanently stand.”[292]

Domestic violence in India airs an interesting paradox. In addition to being the most ubiquitous of basic human right violation, it is also being misused. The notion of domestic violence was nuance one and was a result of a long entireless struggle for justice against heinous practice against the grain of the Indian society. The conceptual formation of the legal provisions against domestic violence has been the contribution of the prolong crusade against the practice by the Indian women moment.

Thus the consequence of such moment let to the engenderence of the Protection of Women from Domestic Violence Act , 2005, which was brought into force by the Indian government from 26th Oct,2006. This Act was enacted to provide for more effective protection of rights of women who are victims of violence of any kind occurring within the family and for matters connected therewith or incidental thereto. Many feminist organizations have univocally and unanimously herald the implementation of the Domestic Violence act in India. They claim that this law empowers every victim of such violence and protect them from such abuse.

Some people and organization have been unremittingly criticizing the law as having to little force and arguing that it is mostly being misused by women during disputes.

The men’s right activist claim that the anti dowry laws as well as the domestic violence laws are being off times misused to harass and extort husbands as well as their relatives . The high rate suicide among married men in India is also ascribed to harassment under these laws.

PROVIONS REGARDING DOMESTIC VIOLENCE IN INDIA

The term domestic violence implies the incidence of familiar or intimate battering having reference to an idolized family unit functioning in a protected and secluded manner, appropriately shielded from the public”[293]Does domestic violence means a violent and aggressive behavior with in the home typically involving the violent abuse of a spouse or a partner. It is doubtlessly a human rights issue and serious impediment to development. It manifest into itself serious offences of verbal physical and psychological abuse. Domestic Violence Act, 2005 is thus a result of legislative dynamism which is a well-intended social legislation that was introduced when every other previous statute fail to protect the women from domestic terrorism. But as it is said power tends to corrupt and absolute power corrupts absolutely, therefore, such ameliorative act got exacerbated. The phenomenon of domestic violence is prevalent but has remain largely camouflaged in the public domain.

The domestic violence is a long debated issue whose journey can be demarcated since 2001 when the bill was introduced with the aim to prevent women who were ostracized by their own people in their own homes. The objective of this act was to provide more effective protection of women for their rights guaranteed under the constitution, who are victims of violence of any sort occurring within the family. Further, this act makes liable the spouse for physical, sexual, verbal, or economical abuse.

Section 498A of Indian Penal Code, 1960 further criminalizes such heinous acts of the husband and the relatives of the husband. This section deals with cruelty which includes mental as well as physical cruelty and harassment upon women by her in laws with regards to dowry and domestic violence. Further, this also includes provision with regards to the suicide committed by a women within a period of seven years of marriage and where it is shown that the husband or the relatives of husband had subjected her to some sort of cruelty, such in-laws would be subjected to the punishment provided under this section. The criminal offence under this section is non-bailable, non-Compoundable and cognizable offence.

 

 

 

THE MAIN PROBLEM

In the last two decades of criminal law reform a common argument made against laws relating to violence against women in India has been that women misuse the laws. The law in its current form is grossly deficient to tackle the problem of domestic violence. It imposes a lot of responsibility on men without giving them the equal rights.  As per the fundamental rights  of equality and equal protection without discrimination enshrined in the constitution of India laws should be framed in the same parlance but the present law of domestic violence included section 498A of IPC stands separately, in an inconstant manner with the constitution. The primary aim of framing of such act was to uplift the dingy situation of the women at that time. But this main aim encompassed with the time and a new era of misuse or using such provision s weapon to threaten the other counterpart emerged there are degrees of domestic violence and not all conflicts in a solemnized marriage can be termed as domestic violence. It’s an infortune fate of such protective provision that it has been subjected to extreme unlawful use especially by the women. The reason behind its misuse can be the major loopholes in the framing of such legislations. In addition to this the main motives which incites the women for more misuse are:

  • Money making
  • To cover up for some mistake
  • Guilt (Adultery)
  • Disliking husband or in-laws
  • Extra Marital affair
  • Gain property

The notable loophole in the domestic violence law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to their male relatives and file frivolous and false cases. Merely the question is therefore that what can be the remedial measures can be taken to prevent the abuse of such well-intentioned provision. Merely because the provision is constitutional and intra-vires, does not give permit to unscrupulous persons to bust up personal vendetta or let loose harassment.

  • SOME STATISTICS SHOWING THE MISUSE OF DOMESTIC VIOLECE ACT BY WOMEN

Section 498A is a criminal offence under the Indian Penal Code, 1860. It is Non-Bailable, non-compoundable and cognizable offence.

Unfortunately, this section had been subjected to extreme unlawful use by the women. This legislation was introduced for the benefit of the women but regrettably, it is being extremely misused by the women themselves.

In the last few years, marriage has become a bane for Indian men. Multiple cases of suicides have come across. Married women suicides have default arrest of the in-laws under Section 498A.  Married man suicide entitle wife for 50% share in property. Is it just? Further according to NCRB Report dated 2007 provides some shocking statistics-

  1. 1, 23,000 husbands and their relatives on the basis of complaints by wives under Section 498A have been arrested without trial or investigation in the last 4 years (2004-2007).
  2. 57,000 Married Men have committed suicide in 2007 out of which 16,000 are directly due to domestic abuse. In the last 11 years (1996-2007) 1, 56,000 married man have committed suicides which is 1.86 times that of married women suicide.
  3. Family disputes and domestic violence is the no. 1 killer of married man is 26% of suicides are directly attributed to the above cases.

In the year 2012-14, in total 16, 35, 14,204 and 531 numbers of cases have been so far registered under the Protection of Women against Domestic Violence Act, 2005 and the unregistered may be many. Around 1, 00,000 (1 lakhs) Cases have been registered and investigated every year and approx. More than 10,000 complaints turned to be false.

A from the above quoted figures it can be easily interpreted that the Protection Of Women against Domestic Violence Act, 2005 is becoming abusive for the society. The reason behind its misuse can be the loop holes in the formulation of legislation or the conduct of the concerned officers. According to National Crimes Record Bureau (NCRB) data, referred by the Supreme Court while delivering the judgment regarding 498A said that, in the year 2013 around 93% cases were registered under Section 498A and among them all convictions orders were passed only in 15% of the cases.

This law is perverted to an utmost level and in future, if a family has a daughter-in-law who is less anomic towards the family, then whole of the family can be put behind the bars under Section 498A of IPC based on mere complaint filed by their daughter-in-law.

The family can’t avoid the complaint filed under section 498A, unless, they know how to deal with this problem and what are the remedies available to them. Otherwise a case will go on for years.

 

 

  • CASES

 

  1. Rajesh Sharma and Others Vs. State Of U.P.[294]

 

In the Rajesh Sharma v. State of UP case, the Supreme Court has directed that any complaint of cruelty to a woman by her husband or his relatives under section 498-A that does not involve visible physical injuries or death shall be duly prescribed to the Family Welfare Committee of the district. This judgment is founded on the Court’s observation that Section 498-A of the IPC is being more often abused by some women, particularly to harass and mentally torture elderly in-laws. The Court has also take support of and had cited National Crime Record Bureau (NCRB) data regarding the issue.

  1. Arnesh Kumar Vs. State Of Bihar[295]

 

Supreme Court in this case said that arrest being a humiliation, curtails freedom and casts scars forever and therefore arrest should be last resort. Code of Criminal Procedure provides vast power to arrest in the cases of cognizable offences, which should be exercised with caution. Power to arrest contributes to its further arrogance due to the failure of the magistrate to check it. Supreme Court portrayed the importance of section 41 of Code of Criminal Procedure, as it compliance will not only protect accused from being unlawfully retained but will also help in reducing the work load on the courts, as the same will also reduce the filing of bail applications.

  1. SumanaBhasinVs. NeerajBhasin and Others.[296]

 

In a rare case of its kind, a Metropolitan Magistrate of Saket Court in New Delhi, Shivani Chauhan, has dismissed the domestic violence complaint of a woman, residing in south Delhi. The court said that she had suppressed the important facts and also had made false and hatched various allegations tin order to harass her husband and her in-laws. The court noticed the malicious intention of the woman that she used the legal provisions as a tool to extort money from her husband and in-laws for unjustified personal gains.  The court also imposed a cost of Rs. 1 lakh on her as exemplary costs.

  1. V. Rao vs. L.H.V. Prasad & Others.[297]

Wherein in a matrimonial argufy, the Supreme Court had held that the High Court should have subjugated the complaint arising out of such a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. The Lordships have duly observed therein with which we completely agree that: “there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counseled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”[298]

  1. Sushil Kumar Sharma vs. Union of India and others[299]

The main intention of the Domestic Violence Act and Section498A of IPC is to prevent the physical as well as mental abuse regarding dowry.But as has been rightly postulated by the petitioner that many cases have come to light wherein the complaints were not bona fide and have been filed with ulterior or oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial.

SUGGESTIONS

There are many provisions in the law which are misused. The objective of law is to protect the innocent and punish the guilty irrespective of their gender.  The prosecution of not of guilty minds or innocents cannot be justified as well as rectified under any circumstances. As is the case with 498A, this law is highly misused in India.

The major flaw in this law is that it provides an all-encompassing definition of domestic violence and some terms are extremely subjective. The radical feminists claim that 70% of women in India face domestic Violence which comes as no surprise as even an insult is considered as domestic violence. Interestingly, they are mum on how many Indian Men suffer domestic violence using same criteria. This law strikes down at the very foundation of marriage by inciting intolerance and litigation for pettyor frivolousdomestic disputes. Once the man has been accused of domestic violence for a something relatively minor, while he might have been subjective to the same treatment from her, he will perpetually feet threatened by his partner and that is the beginning of the end. This law will heads towards upshot of more divorces, broken homes and the children will have to ante up the ultimate price by getting deprived of a pleasant childhood.

So here are some suggestions for the government against the Misuse of Domestic Violence Act:

  • Make 498A Bailable and Non-Cognizable.
  • To insert a special provision to punish those police and judicial officers who do not follow the law properly and report such malpractices under the cover of section 498A.
  • Drop the move for amending 498A to make it compoundable.
  • Stop the extortion and blackmailing the man in the name of mediation and counselling.
  • A committee should also be formed where the innocent men have been acquitted, as watchdogs to monitor and review orders by judiciary.
  • A proper investigation must be made before arresting any individual, as domestic violence (498A) is a non bailable and no proof is required for arrest.

 

 

Problem Kya hai?

Author:      Paarth Dubey

Student,

Hidaytullah National Law University,

Raipur, CG

Postal Address;

C/o Shri. P.N. Dubey, Advocate

Behind Swastik Nursing Home,

Shyamnagar, Ravigram,

Raipur, Chhattisgarh – 492006

 

In my abstract ‘Problem Kya Hai’? I touched upon the broad contours of ‘reverse sexual discrimination’ and that too by law. While I unequivocally stand by the presumption of an IPC of a Penal system that supports women, recent rulings show us that even somewhat ‘modern laws’ too are being perverted and their intended ends being not met.  The general Indian notion is that women are weak and therefore more suspect to and  more affected by it. under laws like the Prevention of Domestic Violence Act, 2005,Dowry Prohibition Act, 1961 etc. so much so that we have given the fairer sex advantages somewhat beyond Natural Justice. Women can lodge complaints against husbands and in-laws, without any proof whatsoever and this too continues today in the name of women empowerment, most of such complaints are criminal and while a person committing a murder is sometimes bailed out, such is the attitude of the courts that persons allegated (truly or falsely) of such offences have to (as per the Evidence Act) prove their innocence [300], which becomes even tougher in many cases today involving betrayal of emotions or rejection of persons. For example a women, completely fit and health, after an early morning exchange with her father-in-law over the quality of her morning parathats may go to the nearest police station and register a report not only under section 498 A of the Indian Penal code but also under section 5 of the Domestic Violence Act. Empirically analyzing the situation we find that what goes up is the official crime numbers reported by reporting of the same crime under provisions of distinct laws. The clincher in many of these cases (as observed by the Apex court)[301] is that they are false probably most of them begin either with the morning paratha or with the rotten paneer served at the Barat.

The direct effect of these distasteful ,emotionally motivated cases is the choking of case registers and a constipation in the annals of the Indian Judicial system. Acts like Domestic Violence Act are guaranteed by virtue of Article 15(3) which broadly states that the ‘state’ shall not be prohibited in making special provisions for women and children. The case of the burnt paratha mentioned above is only an example of how a biased law can mix with a vile emotion and cause losses of monetary, fiduciary and familial nature. One of the main loopholes which ‘protective’ laws suffer with is that many cases for example a case under the domestic violence Act cannot be filed by men against women, domestic violence can only happen against women further if a false case is filed the defendant hires counsel, tries to settle the complainant, undergoes mental stress, which is all justified if the case is a genuine but but Alas! Often they are not. What we see here is a cartablanche to women filing complaints. First they get to employ a protection officer at government officer for a complaint registered without any standard of proof, free legal aid, duplicate suits under different laws, shelter home run on tax payers’ money and the best part is they are free to get treatment in any medical facility in vicinity of the Act. They have the luxury of not having to let alone prove anything but not even having to hire a counsel, practically the truth is they not have to move a finger nail. Speedy trial is granted in special courts to such flimsy cases and what not. Furthermore under the Domestic Violence Act a woman has a right to get notices served quicker than warrants in murder cases, need I go on?I do not question the structure, I question the relevance of a mud house in a flood plain.

‘Dosti me ab sorry bhi nahi raha, please bhi nahi raha, dosti me ab to limit hi nahi rahi, ladka ladki ke ghar so jaye platonic hai, ladki ladki ek bed pe so jayein platonic hai, dosti me to shayad sex bhi platonic hi hota hoga’. Every guy who has heard the PKP 2 monologue, nods ruefully in agreement, the tragedy is that some of them are married. Coming back to the criminal grund norm I would draw your attention again to Section 498A of the code, it talks of the husband and/or his relatives subjecting her to cruelty. I completely agree with the necessity of the law, what I first object to is the procedure, wherein, the woman is not required to give any evidence whatsoever[302] ,secondly what sets my blood burning is the number of fake cases, what I  further object to is making it gender specific. What this law effectively is telling me is that woman cannot, by willful conduct, drive a man to suicide, or cannot have a negative impact on his mental health.

Further moving on to section 493 of the code[303] which lays down that cohabitation caused by a man deceitfully inducing a belief of lawful marriage is a crime, the natural question which arose in my mind was that what if a women does the same, for the jury would agree that women too may lie, that women too may have motivations for the same, may be this was a provision required to stop philandering married ‘British Sahebs’ or upper class princes from cheating and exploiting the young, poor, nubile, uneducated village girl who was not sent to school, notice the irony?

The problem with such laws is not that they exist. The problem for me is that in an era of the progressive growth and liberalization of law they continue. Staying with the Indian Penal Code one of the most lopsided provisions which my skeptic eye found is section 498A where a husband or his relatives, can subject a women to cruelty. It is defined only in respect of women but whether a woman emasculates her husband or abuses (even in public) is no cruelty. Was not equal protection of laws some of the important stuff we learnt in college, of course all of us, (including the law) are agreed on the fact that only a man committing adultery can be punished while members of the fairer sex may not be punished. The rot does not does not stem here, even under the Indian Evidence Act we find that section 112 states that a child born in a marriage or within 280 days of last access or divorce will be considered as legitimate.  What I mean here is it is a real chance that an immoral and illegal act by a woman is being legalized without punishing her. But, God Forbid, if the husband does the same he is liable not only to be prosecuted but shall also face heavy regular financial burdens in form of alimony and maintenance which ‘will be granted’ to the woman under section 125 of the CrPC so not only is a married woman free to have an adulterous relation she is also empowered by law to give her child the name of her husband. If it does not pan out that way she is at least guaranteed to a life time of monthly payments. That society has changed and developed is a social, legal and factual fact and that the law shall have to metamorphose in the same manner is an implied truth. Then there are provisions like 13(1)(i) of The Hindu Marriage Act, Section 27(1)a of the Special Marriage act, Section 32D of the Parsi Marriage act, and section 10 of the Indian divorce act, all make adultery a ground for divorce, which directly means that not only  may a  married woman indulge in coitus with as many men as she pleases(think they call it feminism), but also has a ready-made eager parent, who may/may not be his father, for he shall never challenge his paternity, even if he does, a DNA test is taken only upon the orders of a competent court, who also has to keep the best interests of the child in mind, and in most cases, does not order for such steps.  One quirk I found is worth a mention here(probably the law drafters missed it), under the Special Marriage Act[304], only wife can claim permanent alimony and maintenance, but under the Hindu Marriage act, both the partners can atleast make a claim

There is an assertion that Indian society is patriarchal, and I agree with it, also pointing that it(patriarchy) is the global norm, the laws, however are a different (fairy) tale for the fairer sex, and not only the law, the male (dominated) system is bent towards women too. What else explains the National Commission of Women act, 1990? I am sure none of us has read/heard of the national men’s commission, or even a commission for upliftment of the male child, no scholarships, no cycles for rural boys? Its only because they do not exist. Equal protection of laws to ALL PERSONS? Anyone?

Then there is a provision[305], widely used for great good of women, but in today’s era when ‘mhari choriyan kaa choron se kam hai’ is a constant remark by proud fathers, while neither any of the services, nor any corporate packages are awarded on basis of sex, but purely on merit and grades, and where a real chance exists that a woman may earn more, sometimes substantially more than her husband, is it not worth that at least a proviso be made to the effect which grants a husband some/any right to claim maintenance? If not in this law maybe Section 25 HMA[306] or under, Section 20 HAMA? Maybe not, maybe this is what reverse discrimination really signifies? Killing the idea of equality before roasting it on the coals of equity? The one thing that I would agree with on the code of criminal procedure here is that, at least a father too is considered to be weak and worthy enough to claim maintainence, and so is a son. Not that we Indians deserve any credit for it.

‘Wo beech argument me tumhe chappal faek k maar sakti hai, par tumne agar ek ungli bhi uthai, the whole argument flushes down the gutter aur mudda ye reh jaata hai ki how dare you raise a finger at me’. Taking (again) the point of (in) equal application of niceties from this part of the (repeatedly)aforementioned monologue, I present to you some home truths. 1. Women have brains 2. Women have money 3. Women have smartphones 4. Co-incidentally they use them too. 5. Believe it or not they too have hormones and 6. They(women) too like being turned on(apologies for the inappropriate slang, but as we(both boys and girls) say, it is ‘trending’ these days), connecting the earlier part of the instant paragraph,   with these home truths, I would attract the jury towards Section 354 A, which punishes only a ‘man’ for, physical contact, seeking sexual favours, showing pornography(against her will), making sexually ‘colored’ remarks, probably the law assumes that women are mentally/morally/physically/sexually incapable of physical desire or acting on it, for be it, unwelcome sexual overtures, asking/ordering sexual favours, showing pornography against the will of a man, or making sexually coloured remarks about a man, they are either assumed to not be able to do it, or maybe it is not a crime when they do it ? Coming to Section 354 C of the Penal Code, which deals with voyeurism, this provision essentially enforces the Fundamental Right of Privacy[307], inside the bedroom. I am a great admirer of this particular provision, firstly because it punishes wandering eyes picking into other windows and secondly impliedly confirms the idea that all men are dogs, for watching a man(or capturing his image) in a private act in circumstances where he would usually have the expectation of not  being observed, or would not object to said image being disseminated. Now that consensual homosexuality is legal, we are proverbial dogs no more, even the law agrees that like four footed canine, we have no private lives, nor any right to privacy. After analyzing 354 D the only differences between the dog and men remains is the tail and the bark, a legal assumption being that a man like a dog always has to be interested, and maybe a woman is not assumed (always dangerous to assume in the case of laws, in my humble opinion) to be able to either (a) follow a man, and desire personal interaction or (b) monitor the use by a man, of the internet, email or any other form of electric communication. Implying that women are either a) unable to walk/track b)technologically incompetent or the likeliest (c) are above doubt and desire, I guess the feminists did not look at it this way, or likelier still they did and decided to all be Caesar’s wife(beyond reproach)

Section 375 of the Penal Code tells us what is rape, and correspondingly the Evidence Act vis-a-vis various provisions gives outmost importance to the statement of the victim, but nowhere is any punishment provided for giving a false, vindictive statement. She might even kiss her boyfriend good morning and head to the nearest  police station, to file a First Information Report[308], however false it may be, even if the poor guy reaches prison and it is somehow discovered, no liability whatsoever against the lady . The inherent beauty, which I though noticed, was in the succeeding section. It is something both genders should be worried about, Marital Rape is mentioned, but only for a woman below the age of 15 and as a plain reading of the litera legis [309] tells us, first there is no marital rape, then of course the simple question, why cannot a woman rape a man? Now I do understand that it was not a valid question for Lord Macaulay’s First Law Commission, but cannot a woman force herself on a man? There is this very popular urban myth that boys/men do not get raped, and even if they are raped, probably they would enjoy it. But what people tend to overlook is the fact that rape is not about sex but power. According to a government study in 2007 about 52% of boys and 47% of girls were raped. Some by men some by women, the point here is when a crime is known to be existing at such a rampant scale why in section 375 of the IPC does ‘a man’ rape ‘a woman’. Does only a man rape a woman? In fact on a point of law I would lay before you Article 15 (2)[310] lays down that no citizen shall on grounds only of religion, race, caste, sex or place of birth or any of them be subject to any disability, liability, restriction and Article 15 (1) tells us the state shall not discriminate against any  citizen on grounds only of religion, race, caste, sex, place of birth or any of them. While special acts[311] and certain provisions of the IPC[312] subject the accused (male) to a liability of proving his innocence rather then his accusers proving his guilt.

Can not a woman, commit the nature of acts mentioned in the provision, against his will, without her consent, or threaten a man to obtain his consent, or when she knows that she is not the(his) wife, or when she ravages him in a state of his intoxication or  unsoundness of mind or after consumption of some unwholesome substance, it is a grey area of law when a husband forces his wife into intercourse but, in the opposite case, the law is so white and clear, that its interpretation is nothing short of dark.  The darkest part of this provision though, was brought to my notice by a close female friend when I was 16, she was 15,and we (the couple)were 3 years old, that even if we had consensual intercourse, I would have said to have raped her. That was the day I felt the kick of patriarchy, the hardest. Why does the law consider (even today) that a girl at 16 is reasonable enough to choose her subjects in eleventh grade , and shape her life, but is not considered reasonable enough to act naturally on her hormones.

In the first instalment of the PKP[313], the frustrated guy, in his monologue asks ‘Unka jab man kare, keh detin hain man nahi, kisi din humara man nahi ho to?’ the answer is simple, my friend, there is neither definition of or punishment for the same, so no matter what your feelings are at that particular moment, they do not matter. Delving deeper into the provision[314]  I found  that a if a (male) public servant/administrator/police officers/managers of a shelter home/a person in a position of trust, seduces/ forces a woman into intercourse, by virtue of his position, it is rape, as it should be, but in 1860, there probably were no female superiors, they definitely do exist today. And I think we agree on the premise that ladies too feel human emotions like , happiness, pain, affection, love, greed, lust, etc. I found no  reason, as to why the elements of a crime, that is Actus Rea & Mens Rea are not applicable just by virtue of gender to a particular (fairer) sex.  So with the law as it exists,  no superior female officer shall be punished for the same acts (if committed and reported). Equality before the law, anyone?

As I completed browsing through the Penal code, I found further proof that we (indian men), not men from Jammu & Kashmir(jurisdiction issues), are proverbial dogs under the indian penal code, for Section 509 further added to my knowledge and opened my paradigms, it told me that only the fairer sex has modesty(in the eyes of law) for only words, sounds, gestures or objects that outrage her modesty or violate her privacy are punishable. We? Dogs have no modesty, shame, feelings, emotions or privacy, neither(according to law, have we)  even of our genitals[315].

The British seem to have been very much in favour of womens’ rights and admirably so, another legislation they passed is The Married Women’s Property Act[316] under which husbands don’t have any rights over wife’s property on/after marriage and also no protection exists for a husband against his wife’s pre marital credit card bills(yes, all of them).

When I Moved on to points beyond criminal law, I found what I expected. The indian legislature too has taken a cue from our old masters, in creating  laws that not only benefit women but directly cripple the rights of men. One of the most ridiculous and illogical laws is one I found in the Hindu Succession Act,1956[317] where, in case of the death of a man without will, the wife, mother and children can all inherit and enjoy the deceased’s property, but not the father, the man who gave birth to the deceased, paid for his education, bore his tantrums, had thousands of arguments with is only entitled if the deceased has no mother, wife or children.

Our (Indian) ingenuity does not stop here, under the Hindu Adoption And Maintenance Act, a boy is entitled to maintenance only till he turns 18[318], while a girl can (and does) get maintenance, until marriage, or she decides to provide for herself[319] (if she does). I hear lots of noises of equality, feminism and the like (even from sensible people), but I am yet to hear about this particular issue. (For obvious reasons  I do not think, I ever will).

So, what we observe from the range of laws and provisions examined herein we can draw a few conclusions :– (according to the law)

  • That women are incapable of sexual desire
  • They are incapable of acting on these desires
  • Every word a wife utters about her husband and in-laws is divine truth
  • Women are incapable of expressing their consent and incapable of malice
  • that it is perfectly legal for a woman to have extra marital relations
  • That a father may have value but has a price lower than that of his sons’ wife, children and mother
  • Women are uneducated, stupid and cannot earn a penny.

The conclusions expressed above are not mine but only comprehensively word the bare letter of the law (as it exists). The conclusions which I came to upon research and application of socio economic condition to modern realities is;

  • That the Indian Penal Code, the Indian Succession Act, The Hindu Marriage Act even the Code of Criminal Procedure need to refresh themselves..
  • After analyzing many cases and talking to various lawyers I came to understand that the procedures too are tilted in favour of the ladies so much so that they can sent whole families to jail without bail.

It is a humble opinion by the writer that now when the name of roads garner wide spread media coverage it probably is time to look at the state of the people too. That is it is time for change not only of laws but of mindset. Women today are no longer weak, confined, uneducated, underexposed, devoid of confidence, illiterate, vulnerable, dependent as they used to be in the middle of the 19th century. We have on our hands a new India, I ask for a better and more equal country where women too are held accountable for their misdeeds and a criminal is treated as a criminal irrespective of sex.

CONCLUSION

The court and legislature thus has made such laws of protection of women with a view to promote their welfare and bring the ideology of equality in existence. But with time such laws has been unremittingly been used by women as a brahamastra against her in-laws. The law in its recent form is not appropriate to properly tackle the problem of domestic violence. On one hand it imposes ordeal responsibility on men without giving them rights and on other hand it gives a bundle of right to women without requiring them to be responsible. The fact is that this law have come forth as a serious problem or dogma and a neutral and unprejudiced law is needed to protect the genuine victim of domestic violence, irrespective of gender. At the very minimum such law should be made gender neutral offering protection to both men and women and also incorporate stringent punishment to prevent its misuse. More over the law needs to be made practical as by demarcating differences between various degrees of conflicts and by unambiguously defining what constitutes domestic violence. Further it should be the duty of the court to properly scrutinize the facts of any case from all angles that whether the grievance filed is legally sound and credible. Furthermore the principle “justice to the cause is equivalent to the salt of ocean” should be tagged along while providing justice. It is so as to regain peoples trust over the judiciary.

Title of the paper : Equal Rights to all in sight.

Sub-Theme : Gender Biased Laws

Name of the Author(s)- Ashima Jain

Name of the co-author- Kunal Chaudhary

Course- BBA.LLb (Hons)

Year of Study : 4th year

Name of the college: Uttaranchal University Dehradun

Postal Address : D Block Girls Hostel

Uttaranchal University

Dehradun.

E-mail address: jainashima97@gmail.com;                                   kunalchaudhary18021997@gmail.com

Contact No.: 8527637304

Abstract

They might have been hailed to rule the social dogmas in our country but the reality reflects otherwise. They feel helpless to access the basic right of justice in every sphere of life. The main aim of the researchers is to ensure that men rights are duly protected and not violated in the shadow of numerous laws and provisions made particularly for the women. Since, law is pervasive and affects many aspects of people’s life, this is why the researchers have attempted to focus on gender equality by inserting the legal perspective of the same. Campaigning about men’s rights is not about denying the importance of the rights of women. It is only about ensuring that everyone can enjoy the human rights equally. The researchers have also highlighted a number of issues being faced by men that usually go unreported and unaddressed. An attempt has been made to explain the need of justice on men’s rights with the help of some landmark judgements. Another issue is that the word “feminism” has become synonymous with man-hating when in fact it has more to do with the women than men. The researchers finally concluded with the statement that they understand absolute equality is not possible, what is possible is we can honour the qualities in each person that would reduce the gap. Every society must have the same set of rules for both men and women to follow, likewise the same set of rights and duties should be there. Only then can the society become a progressive one.

Theme: Justice for Men’s Rights; Emerging Issues and Concerns

Sub-Theme : Gender Biased Laws

Title: Equal Rights to all in sight

“They might have been hailed to rule the social dogmas in our country but the reality reflects otherwise. They feel helpless to access the basic right of justice in every sphere of life”.

It is thus evident that a large part of the society is still under a strong belief that it is the male gender that rules the society at large. But the ground reality is that they feel helpless to even access the basic right of justice in every sphere of life. In order to live with dignity certain basic rights and freedoms are necessary, which all human beings are entitled to. These basic rights are called Human Rights.

These rights should be given to all the citizens of the nation irrespective of religion, caste, sex, age, race, etc. so that they can protect themselves from any kind of abuse and wrongful practices. These rights should be vested in every citizen of India so as to enable them to live with dignity and harmony and to ensure that the principle of equality is being followed properly.

“Lex Uno Ore Omnes Alloquitur” implies that everyone is equal before the law. No one is above the law. Thus, there should be no discrimination on any of the grounds particularly the gender of the citizen.

The Constitution of India in itself gives us the right to equality which suggests all are equal in the eyes of law. In India though both males and females are considered to be equal and on the same parameters but some special privileges are given by the government to the female section of the society. Since, females have been suppressed by the male dominated society since ages so it became important for our country to take some serious actions for them. The main reason as to why special privileges are given to the females is that they are considered as the weaker section of the society. But is that really so?

The increasing number of special laws and provisions made for the women and their contribution in almost all the sectors such as army, business, corporate sector, health sector, administration, social work, politics etc. indicate that women is no longer inferior to men. They should no longer be categorized as the weaker section of the society. Thus, it can be concluded that India is no more a male-dominated society.

Women nowadays are misusing the various special privileges given to them as weapons against men for their own selfish reasons and for their own personal benefit. Another major problem is that they are making false allegations against men in greed of money.

Numerous laws have been framed particularly for the women where they have been given special privileges. Article 15(3) of the Indian Constitution that allows “ Special Provision for Women Empowerment” can in a way be considered as an exception to Article 14 and 15 of the Indian Constitution that talks about “ Equality before Law” and “ Prohibition of Discrimination” respectively.

The special provision for women as per different provisions of law may be categorized into:

  1. Enacted Laws, which has its source in legislation.
  2. Case Laws, which has its source in precedents and
  3. Customary Laws, which has its source from customs.

Enacted Laws

  • Indian Penal Code, Sec 493– Cohabilitation caused by a man deceitfully inducing a belief of lawful marriage shall be punished up to ten years and fine. No such provisions are there to punish women.

  • Indian Penal Code, Sec 497– Only men are found guilty of adultery and jailed but adulterous women are exonerated.

  • Indian Penal Code, Sec 498– Enticing, taking away or detaining married women with criminal intent. Punishment is two years imprisonment for the men. No penalty for women committing the same crime.

  • Indian Penal Code, Sec 498(a) – It is considered that only husband or relatives of husband can subject women to cruelty. Cruelty is defined only for women but the same acts done by women are considered as cruelty.

  • Criminal Procedure Code, Sec 198(a) – Women, according to local customs and manners ought not to appear in public.

  • Criminal Procedure Code, Sec 198(2) – No person other than the husband of a woman (with certain exceptions) should be aggrieved under Sec 497. What about husband’s family whose name is spoilt in the society for adultery of their DIL.

  • Sec 13(1)(i) of Hindu Marriage Act, Sec 27(1) of Special Marriage Act, Sec 32(d) of Parsi Marriage and Divorce Act, 1936. Sec 10 of the Indian Divorce Act says adultery as a ground of divorce – No woman can be blamed for an adulterous relationship and no child can be called illegitimate until there is conclusive evidence in support of this claim. Here there is no way left for the husband to prove adultery of his wife – DNA test reports can be done only by the order of the competent court, e-mail electronic evidences are considered supporting evidence and not conclusive one, eyewitness statements are not possible in any intimate physical relationship, courts may not order DNA test in order to save the child from losing parenthood and can be ordered only if it is in the interest of the child. Charges of adultery should be specific and should be established in all probabilities. The nature of these cases is quasi-criminal, i.e. higher standard of proofs needed than mere preponderance of probabilities. This in itself encourages women to be in adulterous relations and men on the other hand have no weapons to prove his wife’s misconduct.
  • Sec 112 of Indian Evidence Act, 1872 states that a child born during a marital bond or where the spouses have access to each other or within 280 days of divorce will be considered as legitimate child from the marital relation no matter whether s/he was born out of marital bond. An illegal act by a woman is legalized by this act without punishing her and thus prostitution is promoted. The same immortal act by the husband would not only attract legal prosecution against the husband but also heavy financial burden of the wife in the form of maintenance will be granted in favor of the women. The reality of the society is changed manifold since 1872 but the law remains same thus encouraging more women to have adulterous relations.

  • Sec 494 and 495 of the Indian Penal Code ( Bigamy Charges)- Only the aggrieved person can file but if it is the wife who is aggrieved then her father being the lineal ascendant can also file complaint. Advantage is again given to the women.

  • Criminal Procedure Code Sec 125- Any person refuses to maintain his wife. Maintenance provision is only there for women. Violation of equal rights and discrimination in the eyes of law.

  • Sec 298 A. and 298 B. – Three month jail for eve teasing. No law is there for men when they are bullied by women in the same way.

  • Sec 292- If a man shows pornographic or obscene pictures, books etc. to women he will be punished. No law prevails when the offender is a woman.

  • Sec 354- A man is guilty of assault or criminal force to outrage a woman’s modesty. No such law is there to prevent male abuse by women.

  • Indian Penal Code, Sec 509- Man can be punished for intent to insult the modesty of any woman to intrude upon her privacy by a fine and one year in prison. No such punishment for women having intent to intrude in man’s privacy.

  • Protection under the Factories Act

  • Indian Penal Code, Sec 375(1) – A man doing sexual intercourse without a woman’s will. No guidelines are laid down to prove a woman’s will here. She might have had consensual sex and still allege rape with a vindictive attitude.

  • Indian Penal Code, Sec 376(2) – Marital rape to be punished for two years and/or a fine or both. However, no definition or punishment for rape is there when women pressurizes men for sex in marital relations. No punishment for women raising complaint with malicious intentions.[i]

The next question that ponders into our mind is what human rights issues do men face? India is one of the few nations across world which does not recognize domestic violence against men. The incidents of domestic violence against men in recent years have increased. Also, many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal.

Save Indian Family Foundation has claimed that the suicide rate of married men is almost twice than that of women, due to them being unable to withstand verbal, economic and physical abuse from their wives. SIFF has pointed to the National Crime Records Bureau (NCRB) data to show that suicide in married men is much greater than in married women. Even the sexual harassment laws are biased against men, The Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2003 is not gender neutral and applies to the protection of women only. The bill was originally gender neutral until the Ministry of Women and Child Development and some feminist funded NGO’s intervened and changed the name. In today’s world, it is completely outdated concept to consider that only women suffer from sexual harassment and not men. Also, women are getting reservation in various areas such as college admissions, elections for MLA’s, MP’s etc.[ii]

A constant question that continues to trouble many of our minds is that when is the male community actually the victim of domestic violence? Spousal abuse is a serious problem that is not just faced by women. While news of dowry related harassment and crimes against women are reported extensively in the media, there are a growing number of men who are at the receiving end of harassment and face physical and psychological abuse mostly at the hands of their wives, i.e. the female community.

The bitter fact about the legal system is that the domestic violence against men in India is not recognized by the law. The general perception is that men cannot be victims of violence. In recent years, there has been a spurred in the number of men who have been physically abused. Men who are accused of domestic violence get marginalized by society and even friends and family turn their backs on them.

Although, the trauma may be the same, the methods of inflicting abuse may vary. Like women, men also find it hard to get out of abusive relationships. In fact, the situation for men is worse as they are exposed to false dowry case being filed against them.[iii]

Another main issue is the male rape. India’s law should recognize that men can be raped too. As Section 375 of the Indian Penal Code stands, rape is something that only a man can do to a woman. There is no room for adult male victims, much less female perpetrators. A PIL was filed before the honorable Supreme Court for provisions to punish women too for offences such as rape, sexual harassment and stalking, says men who are the victims. The plea cites a recent Supreme Court decision to examine if the adultery law can be made gender neutral. “Crime has no gender and neither should the laws. Women commit crime for the same reason that men do. The law should be the same for all the criminals be it male or a female and that every person who has committed an offence is liable to punishment under the court”, says Petitioner Rishi Malhotra, a Supreme Court lawyer who has filed several other successful PIL’s.[iv]

Feminists are doing certain things that are breaking our society and our world and as a result, the condition of men in India is suffering. Women Rights Advocates want to empower women wanting equal pay and opportunities for women. But with great power comes great responsibility. Why don’t they motivate women to shoulder equal responsibility and take up jobs which involve danger to life? More than 85% work place related deaths are that of men. Be it war, sewers or ship-breaking all of the dangerous and dirty jobs are left to men. Why aren’t these equality seekers asking or motivating women to take up such jobs where risk to life is more. Is it a male privilege or a female privilege to work in harshest conditions and deadliest environments and die not because of choice but because of helplessness of being a male in this female friendly society and system?

Feminists claim to want equality but expect special treatment .Rather than competing men on a level footing; they want special laws that favor women. Feminists want men to become more feminine and sensitive rather than emasculating for themselves for equality.[v]

How easy is it to misuse a law that is made for the protection of women in India? According to a report by the Delhi Women Commission, 53% of the rape cases filed between April 2013 and July 2014 were found to be false.

Section 498 A. of the Indian Penal Code, a law that was made with the very noble intentions. But thirty years down the line, Section 498 A. is the law being abused the most in the history of Indian jurisprudence. What Supreme Court says about Section 498 A. is “Merely because the provision is constitutional and ultravires does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment by misuse of provision, a new legal terrorism can be leashed. The provision is to be used as a shield and not as a weapon. “If cry of wolf is made too often as a prank, assistance and protection may not be available when the actual wolf appears.

It would be unfair to say that nothing at all is done for the violation of men’s rights. Some movements are started for the protection of the rights of men.  One such movement like any other movement was started and the main cause behind it was the feeling of injustice being perceived by aggrieved men in India. The Men’s Rights Movement is a movement fighting for the introduction of gender neutral laws, revision of laws that are negatively biased against men and the termination of what they perceived as an internationally funded feminist agenda. The MRM activists conduct rally against the anti-dowry laws, divorce laws, domestic violence laws and child custody laws in India. According to these activists, these laws are misused to harass and extort money from men. Another reason for the MRM has been the false rape cases been registered. A number of women file false rape cases after a consensual relationship goes sour.

But the sad part is that no initiative on the part of the government has yet been taken for the protection of the rights of male community in particular.[vi] The facts that Section 498 A. is a cognizable and non-bailable offence has lented a dubious place of pride amongst provisions which are used as weapons than shield. Even after a number of statements by the courts and after so much of evidences that this law is grossly misused much more than it is being used.

What happens when one is accused of something he has not even done? If one is an actual victim of dowry, it is painful for that person but equally painful is the accusation of harassing somebody for dowry when he actually did not. Rape is a heinous crime but if somebody is falsely accused of rape, it is an equal pain if not anything less.

A very popular example of false dowry case is that of Syed Ahmed Makhdoom. Syed Ahmed Makhdoom committed suicide tired of fighting false dowry cases against him and separation of his beloved son in April 2009. Suicide is what he left as an evidence of humiliation and harassment that he had gone through. There are a large number of such cases this was just one amongst them.

The next very obvious question that might arise in our minds is that “Is India ready for gender neutral laws?” Speaking strongly in favor of gender neutral laws, constitutional lawyer and intellect Karuna Nandy points out- “Vaginal intercourse has been kept legal and the anal intercourse has been criminalized. In India, while sexual crime against minor are covered under POCSO Act,2012 male adults have no such recourse to legal aid except Section 377 of the Indian Penal Code. There is also widespread criticism that women centric legislation, like the domestic violence and the dowry acts are rampantly misused. Among the plethora of Indian laws, most are gender specific to women. But what is the law and the police doing about this?[vii]

Suggestions

Observing the common demands of all the men harassed, we would suggest that there must be a “misuse clause” added to the Domestic Violence Act and the law must be gender neutral, so that they are not falsely accused.

We are not asking for much. We are only asking for gender neutral laws so that the person who is actually committing the crime is punished and it is not the gender that is punished.

Conclusion

India has made a steady but slow progress in dealing with all kinds of crimes against women and children. But a silence prevails about crimes against men, as though society here pretends that this rarely happens.

Justice is a right of every citizen regardless of his gender. We would now like to conclude by stating that campaigning for men’s rights is not about denying the importance of the rights of women. Campaigning for these rights is about ensuring that everyone can enjoy the rights equally and that every society must have the same set of rules for both men and women to follow. Only then can the society become a progressive one. Gender equality is more than a goal in itself. It is a precondition for meeting the challenge of reducing poverty, promoting sustainable development and building good governance.

Misuse of Matrimonial laws against Husband: A Socio- Legal Study

 

Anuradha Jaidka

Research Scholar

Department of Sociology

Panjab University Chandigarh

anuradha.22feb@gmail.com

8427918084

 

Abstract

Marriage is a social institution. Its purposes, functions and forms may differ from society and society, but it is present everywhere as an institution. Men and women are interdependent on each other for their basic needs like socio-economic support, moral support, emotional attachment, physical and psychological needs, etc. There are many special legislations support only women. The plight of men has been ignored by the law makers. These all facts are clear indicators that Indian husbands have been ignored though they too get harassed at home and judicially but these incidences never come to light. The paper concludes that the husband is under obligation to fulfill the matrimonial obligations and our laws is also favour to women. My research paper seeks to evaluate the judicial trends vis-à-vis section 498A IPC, 376 A IPC and Domestic violence Act 2005, helping us understand why this section has become a necessary evil and what steps have been suggested to curb its misuse.

Keywords: Matrimonial, Cruelty, Misuse of martial law, 498A IPC, 376 A IPC, Domestic Violence Act 2005, right of Husband.

 

 

 

 

Introduction

Marriage is an institution of society which can have very different implications in different culture. Its purposes, functions and forms may differ from society and society, but it is present everywhere as an institution. In the Indian context, marriage is a vital social institution. Like all other social institutions such as family, education, polity etc. marriage is constituted by a unique web of shared public meanings.  It is an institution which legitimizes the sexual relations between the marrying partners through custom or law.

Marriage is the union of a man and a woman who makes a permanent and exclusive commitment to each other of the type that is naturally (inherently) fulfilled by bearing and rearing children together. Men and women are interdependent on each other for their basic needs like socio-economic support, moral support, emotional attachment, physical and psychological needs, etc.  Foundation of conjugal life by the human society is to control and regulate the sex life of human beings.

George (1958) defined marriage as a set of rules and regulations, which define the rights, duties and privileges of the husband and wife with respect to each other.

Mitchell (1968) “A socially sanctioned sex relationship involving two or more people of the opposite sex, whose relationship is expected to endure beyond the time required for gestation and the birth of children.”

Matrimonial cruelty

Matrimonial cruelty defined violence against conjugal partner, which may be verbal, physical or emotional. There are some cases like in recent times many judgments passed in various courts have found some of the appellants claiming victimization by husbands as false.  The courts found in some cases that the wives were unable to provide evidence in support of their allegations under section 498A IPC (Marital Cruelty), 376A IPC (Marital Rape) and Domestic Violence Act 2005.

Misuse of Matrimonial Laws

  • Legal Extortion – When marriage is on the brink of Divorce, she finds no better weapon to harass her husband and in-law than 498A. Women will blackmail her husband and in-laws and coerce them to fulfill her demands or else she will file a false complaint against them. The husband knows that the law indiscriminately favour the woman and so he agrees to her selfish demands.
  • Pre/extra marital Affairs – She marries to satisfy her parents without disclosing her past. When the husband finds out about her affairs, she then files a false dowry case to blackmail him.
  • Domination – Wife wants the husband to abandon his parents and siblings, so that she can have total control over his finances and social behaviour, including his life-style.
  • Custody – Deny the father and his family access to their children.
  • Fraudulent Marriages – Many times girl’s family will not disclose actual facts of their daughter, at the time of marriage. Such facts, if known by the groom, the marriage would have never taken place. And when the husband stands his ground, the girl and her family begins their legal extortion.
  • In-Laws – When modern women are unable to adjust with her in-laws, when they find it difficult to dominate her husband and make him dance on her tunes, she goes for filing a false dowry case. Consider a person who works extremely hard to make his career in this competitive World. Then he marries a beautiful and innocent looking wolf who drags him to court. There he is bound to lose all dignity, child custody and above all 50% of his income. He is forced to give out all his savings and family’s investments to this woman. Using his money, the wolf teaches to the child that his/her father was bad. Despite feeding the child of fathers’ money, the child, believing the wolf’s teachings, begins to hate the father. He has nothing to look at when he grows old. This is nothing but sheer cruelty. Extreme disaster and an unending mental trauma.

 

Indicators of Systemic Discrimination against Men

Social and legal bias towards women in the matrimonial conflicts is found in India. In case of an accident or murder, law requires proof before action can be initiated against the accused. However, the law allows innocent families to suffer merely on the basis of a false complaint. Thus, there is an urgent need to look into the misuse of women protection laws. In India, child custody is granted to the father only if the mother is mentally unstable or has left home leaving the child behind.

Legal Provisions for Women

In India a lot has been done to protect the rights of women.  India has pledged itself to gender equality through several Articles of the Constitution. The Crimes identified under the Special Laws (SLL). Although all laws are not gender specific, the provisions of law affecting women significantly have been reviewed periodically and amendments carried out to keep pace with the emerging requirements. Some acts which have special provisions to safeguard women and their interests are:

(i)  The Employees State Insurance Act, 1948

(ii)  The Plantation Labour Act, 1951

(iii) The Family Courts Act, 1954

(iv)The Special Marriage Act, 1954

(v) The Hindu Marriage Act, 1955

(vi) The Hindu Succession Act, 1956 with amendment in 2005

(vii)  Immoral Traffic (Prevention) Act, 1956

(viii)  The Maternity Benefit Act, 1961 (Amended in 1995)

(ix)  Dowry Prohibition Act, 1961

(x)   The Medical Termination of Pregnancy Act, 1971

(xi)  The Contract Labour (Regulation and Abolition) Act, 1976

(xii)  The Equal Remuneration Act, 1976

(xiii)  The Criminal Law (Amendment) Act, 1983

(xv)  The Factories (Amendment) Act, 1986

(xvi)   Indecent Representation of Women (Prohibition) Act, 1986

(xvii)   Commission of Sati (Prevention) Act, 1987

(xviii)  The Protection of Women from Domestic Violence Act, 2005

Missing dimension of Men’s rights in Gender Laws

There are many special legislations support only women. The plight of men has been ignored by the law makers. These all facts are clear indicators that Indian husbands have been ignored though they too get harassed at home and judicially but these incidences never come to light. This shows the ignorance of society. Women empowerment is no doubt an excellent thought but empowering women’s by discriminating men’s is a clear picture of violation of human rights.

Some question arises by Indian men to over government why Indian laws have no equal right to other gender.

  • Indian men have no equality in laws.
  • Indian domestic laws are biased towards women.
  • Indian Father is denied child custody, Even if the mother is prostitute.
  • Indian men have no Protection laws?
  • Indian men give alimony but not women.
  • Men do not get Reservations too.
  • Indian Men get arrest without proof?

“Equal support/Protection/duty of care to all victims of Domestic violence/domestic abuse/false allegation. This is a victim’s issue not a Gender issue” There is no proper law for men and their relative’s rights. Much laws and constitution provisions are favouring females, due to this males are facing legal troubles. According to report of Save Indian Foundation men suicide rate are more than women.

Review of Literature

Studies have been conducted on the issues related to matrimonial problem by one spouse on other by different scholars. Various articles, journals and institutional publications have also been written by the researchers both at the international and national levels.

Migliaccio (2001) study in western society reveals marginalized men in American society. He claimed that many men attempt to hide or deny those aspects of their identities or life that result in this, such as being abused, which is normally an ascribed role for women.  He, having interviewed 12 men self-identifying as abused, argued that this embodied feeling of anticipated social rejection limited a man’s confidence to talk about the experience, both within and outside the relationship, hence constraining them from seeking help.  He further reports that the men he interviewed spoke of a challenge to their masculinity and an awareness of societal expectations of them to be self-reliant, stoic and to try to reassert control.

McCullagh (2006) study conducted by Trinity college in Dublin article by daily mail claims that man is at greatest risk of domestic violence and that more men report domestic violence to their doctor, where they found that 52% of men and 43% of women attending their family doctors have experienced domestic violence.

Tiwari (2007) conducted a study for ‘My Nation Foundation’ along with ‘Save Family Foundation’,  Delhi on Domestic violence against men, and found 1650 Indian Men’s personal cases and concluded that Indian women are most abusive and are dominating our society. He found that 25.21% of men faced physical violence while 22.18% faced verbal/emotional cruelty on the other hand 32.79% of them claimed to face economic and 17.7% sexual violence. Further he found that 26-35 years age group males are more victim and facing domestic violence problem in life.

Barber (2008) explains that domestic violence has largely focused on women as the victims and the men as the perpetrators. Domestic violence against men tends to go unrecognized since men are less likely to admit to or report such incidents because of embarrassment, fear of ridicule and lack of support services.  It is a taboo subject that is often ignored or trivialized by society, which means that extent of the problem remains unknown.

Dogra (2008) explained cases on cruelty against husband. In these cases, there are different- types of allegations against the husband which amount to be cruelty to him.  The book covers the view point of husband and in each case, discusses about facts, issues involved or law point and court decision, various allegations which are made against husbands mentioned. He claims Beating to Husband,   Misbehaving  at public place,   Calling him  mental patient or impotent, Declining to Cohabit, Termination of pregnancy without the consent of husband,  False imputation of adultery, demand of dowry and False FIR under section 498A IPC for cruelty etc. as the harassment of husband.

Das (2008) discussed law relating to cruelty to husband by wife. He talks about while making special laws for women, the legislators must think of victimized section of society in male line. Why laws talk about only one section of society and also discussed the meaning of cruelty and claims that cruelty has been vaguely defined under Hindu Marriage Act, 1955. It’s impossible to give a definition which will include all acts and conducts amounting to cruelty. Whether a particular act or conduct will amount to cruelty or not, will depend upon the facts of each case.

Kaur (2013) found cases of breakdown of marriage in the society are increasing. She also explains the reasons to marriage breakdown and how wives file the case against husbands and in-laws under Domestic Violence Act 2005 and 498A IPC to claim maintenance and divorce but all complaints are not bona-fide.  In this paper, she explores the various issues related to misuse of women protecting laws against husband and in-laws.

From the above review of literature, it is evident that the number of cases of matrimonial problem being reported is rising; hence there is need for more and more sociological studies into the nature, causes and effects of conjugal conflicts.  Further,   the number of studies focusing on problems faced by women in matrimonial relations is much more than the studies which try to explore the nature, causes and consequences of harassment of husband by wives.  The studies have generally ignored the harassment of husbands due to matrimonial cruelty and misuse of matrimonial laws against them. Hence there are only a few studies on understanding the conjugal conflicts from the male point of view. This study strives to counter this limitation.

Case study

Sr. No. Name Age Religion Qualification Occupation Place Reason of Conflict
1. Shiv kumar 32 Hindu +2 Private company Ambala Haryana Extra marital affair

Case study 1.

Shiv Kumar, 32 years old, belongs to a Hindu family.  His educational background is +2, and he has his residence in Ambala, Haryana. While his elder sister is married. His mother, father and an elder sister live with him.  His father is a farmer and his mother works in an Angandvadi center.

Shiv Kumar worked in a private company in Ambala. His neighbour helped the family in finding a match for him. The selected girl was Sangeeta (named change). Shiv’s mother, father and their neighbour visited Sangeeta’s place for the marriage proposal. On their first visit, they performed the roka ceremony and fixed the date for marriage, i.e., 25th October 2015. Shiv and Sangeeta first met before their marriage on latter’s birthday in May 2015.

Shiv once surprised Sangeeta on her birthday, only to find her in company of her male friend. Shiv noticed the intimacy between the two. According to him, they exchanged a hugs and a kisses while departing. When Shiv asked about her friend, Sangeeta told him that this friend is her classmate. Shiv felt awkward after this event. After returning home, he shared this awkwardness with his parents, and told the girl’s parents that he is no more interested in getting married to her. Shiv’s family gave their consent but their neighbour and Sangeeta’s family felt sorry for the incident that happened.  They pleaded that this refusal can result into a social stigma for their family. Shiv didn’t agree. Sangeeta’s family showed their worry about the advance payment for the hotel and other arrangements for the marriage. Finally, Shiv’s father forgave Sangeeta for her mistake and agreed for the marriage. Shiv agreed for the same only on the condition that such an act would not be repeated again.

Sangeeta belongs to a middle class Hindu family, who lived with her mother father, elder brother and sister-in-law (elder brother’s wife).

On 25thOctober, 2015, Sangeeta and Shiv got married in a hotel with all the Hindu rituals. Shiv invited 50-60 guests, whereas from Sangeeta’s side 100 people were present for the ceremony. Gifts were exchanged from both sides. Shiv gifted Sangeeta 1 gold set, gold noise pin, clothes etc. Shiv spent 2.5 lakh rupees on the marriage arrangements which also included the exchanged gifts.  After wedding Reception, only one function was celebrated from Groom’s side.

On the other hand, Sangeeta’s family spent 3 lakh rupees on marriage, including a gold chain for Shiv, a gold ring for his father, and other electronic and furniture items.

Everything was normal between both of them when after 10 days, Sangeeta left for her maternal place. After the said period, Shiv went to pick her up.  Sangeeta however never showed any interest in domestic/household work, nor did she ever behave with Shiv calmly. She was always interested in taunting, passing negative comments and fighting over one thing or the other. (She never reciprocated Shiv’s emotional and physical needs in the appropriate manner).

After few months of their marriage, Sangeeta alleged that Shiv had been having extra marital affairs with his colleagues. She even used to blame for having an affair with her sister-in-law. Whenever Shiv received an official call, she used to check his mobile phone, and sometimes, even dialled the last received or dialled calls from his phone. Although she did not have any valid proof for these allegations. Sangeeta used to visit her home (her father’s place) every month for at least 15 days. In the meanwhile, she also used to meet her boyfriend. She never answered Shiv’s call on time.  Whenever Shiv asked her to comeback, she refused. On the condition that she would make 3-4 visits to her place on an average in a month, she agreed to comeback. She behaved cold heartedly with Shiv. Sometimes, she also refused to have physical intimacy with Shiv. In the meanwhile, Shiv came to know about her pregnancy because hefound some abortion pills in his room. When Shiv enquired about the same, she replied that it’s her own wish to keep or abort this child. During the heated argument that ensued, Sangeeta confessed that she had 2-3 more abortions before this particular one.  The arguments became intense but Shiv’s parents asked them to remain cool.  However, Sangeeta’s behavior did not reflect much change. She devoted most of her time on phone conversations and text-messages that she exchanged with her boyfriend. When asked about the same, she always told Shiv that she is talking to her mother or friends.  According to Shiv, she very often talked to her boyfriend. Sangeeta’s displayed a persistency in his behaviour. She would take her boyfriend’s call while Shiv takes a bath, or probably when Shiv was not around, and then would suddenly disconnect the call when he comes around her. If he questioned her about the same, she always denied any such mistake or act from her side; moreover, she often ignored his worrisome questions. Her behaviour, many times, led to heated arguments. Shiv often complained about her careless, cold and uncaring attitude towards him.

In March 2016, they had a quarrel during which both of them put allegations on each other. Sangeeta accused Shiv of having extra marital affairs with his colleagues; whereas Shiv blamed Sangeeta for her careless, indifferent and irresponsible behaviour. He also raised a question on her habitual act of phone conversation with her boyfriend. Consequently, Sangeeta left the home. Shiv and his family called her many times but she didn’t revert back. Shiv even went to her father’s house to convince her to come back home but in vain. Moreover, Shiv’s family went to Sangeeta’s place to convince her but she refused to come.  Shivtried to resolve this conflict through the village Panchayat and sought their help in convincing Sangeeta. Panchayat favoured Shiv’a arguments and asked Sangeeta about the problems that she faced in this marriage. She repeated the same allegations in front of the Panchayat. Shiv told his part of the story to the Panchayat. Sangeeta’s allegations were proved wrong. And therefore, Panchayat suggested them to resolve the matter and live peacefully. While Sangeeta, in front of the Panchayat, agreed to follow their conditions and suggestions, she refused to go back with Shiv later on.

In May 2016, Sangeeta filed a complaint of Dowry, Domestic Violence against Shiv at SSP Office Yamuna Nagar. SSP Yamuna Nagar summoned Shiv for the investigation. During the investigation, Shiv felt the he was being harassed and the police was trying to manipulate the case. Somehow, Sangeeta took back her complaint and went home with Shiv. For some time, everything was going normal.

In April 2017, Sangeeta again went back to her parent’s house, saying that she would never come back. During this period, Sangeeta was 4 months pregnant. Five more months passed and she gave birth to a baby boy. In the meanwhile, Shiv, with the help of his family, neighbours and relatives, made many efforts to convince Sangeeta for resolving the issue. They visited Sangeeta’s parental home for at least 15-20 times since April 2017 till date. Her family had always favoured Shiv before their daughter last arrival at their place. However, their attitude seemed changed now. Whenever Shiv and his family used to visit Sangeeta’s place, her parents used to verbally abuse Shiv and his family. Shiv and his family want to meet Shiv’s child but they refused to let them meet.

In November 2017, Sangeeta again filed a court-case against Shiv, wherein she accused him of domestic violence. According to Domestic Violence Act 2005, she asked for a monthly maintenance of 25,000/- Rs. The case is pending in the court.

 

Judicial response to misuse of legal protection by women

  1. In Neelam Katra v. Vinod Katra[320] the wife was not interested in marriage. On the very first night of her marriage, she told her husband that she was fed up /with her life and that she does not have any interest in sexual relations. She even did not go for honeymoon. On one occasion she was told to sing a song. She sang a sad song on happy occasion which created furor. The Court laid down that this was a case of mental cruelty.
  2. In Preeti Gupta State of Jharkhand[321] a criminal complaint was filed alleging that the wife was physically assaulted at Mumbai by all the accused named in the complaint and a demand for a luxury car was made.
  3. N. G. Dastane Vs. Mrs. S. Dastane[322] the Hon’ble Supreme Court had held that the cruelty is of two type one is mental and other is physical. It might be true that physical is generally being perpetuated by the husband being a strong one but at the same time this can’t be said to be universally true. It is also vice versa in the case of mental cruelty. But in the majority of cases of mental cruelty it is almost the wife who causes mental cruelty to the husband.
  4. Anil Bharadwaj Vs. Nimlesh Bharadwaj[323] According to this case a wife who refuses to have sexual intercourse with the husband without giving any reason was proved as sufficient ground which amounts to cruelty against husband.
  5. Kans Raj Vs. State of Punjab[324], Supreme Court held that, Close relations of the husband cannot be roped in the offense only on the ground that they were relatives of the husband, in this case the court found that the fault of the husband, in-laws and other relatives cannot be held to be involved in the demand of dowry.
  6. Inder Raj Malik vs. Sunita Malik[325] it was held that the word cruelty is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.

Conclusion

The impact of matrimonial issue and abuse on men, women and children it is essential that it be recognized that these are human problem not a gender issue. Now day men are also a victim of matrimonial problem. It showed that husband abuse is a real problem, and one which is more common than one is led to believe; husband abuse affects enough people to deserve the concern of the community and the state. The above research shows that abusive wives do not assault their pattern in self- defiance. Men and women both are facing matrimonial problem. Not only wives are victims of matrimonial problem husbands are also suffering from that problem. Although many women suffer in the hands of their husbands, not all women in violent families are victims of violence; and although there are men who abuse their wives, not all men in violent families are perpetrators of violence. Similarly, while our social order is patriarchal, not all families live in patriarchal relationships; many families are democratic, and some even matriarchal. Perhaps as a result of women’s movement, many women no longer allow themselves to be subjected to the types of treatment they took for granted even a few decades ago. Though society and law both fixed the obligations of husbands to fulfill the marital obligations and to some extent our law is also tilted in favour of wife. But due to changing situations like education, economic independence of women, the whole scenario has changed and some provisions are also required to safeguard the rights and interests of husbands.

 

 

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[2] “Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.”

[3]  “Universal Declaration of Human Rights”. Wwda.org. United Nations. December 16, 1948. Retrieved October 31, 2016.

[4] World Bank (September 2006). “Gender Equality as Smart Economics: A World Bank Group Gender Action Plan (Fiscal years 2007–10)”

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[6]The Indian Penal Code, 1860 (Act 45 of 1860)

[7]Section 304B of IPC

[8]State of Karnataka v/s T. Balarama, Crl.A.no. 589 of 2003

[9]JT 2005 (6) SC 266

[10]Section 354 of IPC

[11]Section 354A of IPC

[12]Section 354B of IPC

[13]Section 354C of IPC

[14]Section 354D of IPC

[15]IPC

[16] The Information Technology Act, 2000 (Act 21 of 2000)

[17]The Protection of Women From Domestic Violence Act, 2005 (Act 43 of 2005)

[18] Rajesh Sharma and ors. V/s State of U.P. and anr. AIR (2017) SC 821

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[22] S- 2246 of The US Code

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[26]“Family Law Act 1975”. Legislation Australia.Commonwealth Government of Australia.Retrieved 5 Aug2016.

[27]“Family Violence Act 1975”.Commonwealth Government of Australia.Retrieved 5 Sep 2016.

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[29] ACT Act, s 14(1)(c).

[30]Crimes Act 1900 No. 40

[31]See Thomson Reuters, The Laws of Australia, vol 10, Criminal Offences, 10.3, [140].

[32]For example, there is some inconsistency between jurisdictions with respect to penetration of vagina/female genitalia or anus by a body part or object as well as penetration of the mouth by a penis. Western Australia is the only state in which the penetrative sexual offence includes the use of a victim’s body for penetration of the offender in the definition of penetration/sexual intercourse: Criminal Code (WA) s 319(1).

[33]In some jurisdictions it is specified as penetration of the vagina or anus: eg, Crimes Act 1900 (ACT) s 50. Penetration of a surgically constructed vagina is not included in legislative definitions in Western Australia or the ACT, nor is it included with respect to penetration of a surgically constructed vagina by an object in Tasmania (Criminal Code (Tas) s 1). For other jurisdictions, see Crimes Act 1900 (NSW) s 61H(1); Crimes Act 1958 (Vic) s 35; Criminal Code (Qld) s 1; Criminal Law Consolidation Act 1935 (SA) s 5(3); Criminal Code (NT) s 1.

[34]For example, in NSW, it includes ‘sexual connection occasioned by the penetration to any extent of the genitalia … of a female person or the anus of any person’ by ‘any part of the body of another person, or any object manipulated by another person’: Crimes Act 1900 (NSW) s 61H(1). See also the definition of sexual penetration in the Model Criminal Code: Model Criminal Code Officers Committee–Standing Committee of Attorneys-General, Model Criminal Code—Chapter 5: Sexual Offences Against the Person (1999), app 2, cl 5.2.1.

[35] Section 61HA(3) of Crimes Act,1990

[36] Protection of Women from Domestic Violence Act, 2005 (Act 43 of 2005)

[37] Section 375 of The Indian Penal Code, 1860 (Act 45 of 1860)

[38] Section 354D of The Indian Penal Code, 1860 (Act 45 of 1860)

[39] The Code of Laws of the United States of America

[40] Sections 2241, 2242 and 2244 of USC

[41] AIR 2017 SC 821

[42] AIR 1997 SC 3011

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[46] Manto, Toba Tek Singh .Translated by Khalid Hassan 2011.New Delhi.Print

[47] Gornament means “government

[48] Settlement- A place that a group of people have built and live in, the process of people starting to live in a place.

[49] Husain, Intizar. Basti. Trans. Frances W. Pritchett. New Delhi: Oxford University Press, 2007. Print.

[50] Husain, Intizar. Basti .Trans. Frances W. Pritchett. New Delhi: Oxford University Press, 2007. Print.

[51] Cultural identity- It is the identity or feeling of belonging to a group.

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[54] Landed gentry-landowners who could live entirely from rental income, or at least had a country estate.

[55]The Indian constitution of India as amended by The constitution (one hundred and first Amendments) Act, 2016.

[56]Yusuf Abdul Aziz vs. state of Bombay, 1954 AIR 321, 1954 SCR 930.

[57]Government of Andhra Pradesh vs. P.B Vijaykumar, 1995 AIR 1648, 1995 SCC (4) 520.

[58] The Indian Penal Code (45 of 1860) The Criminal Law (Amendment)Act, 2013 (13 of 2013).

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[66] Ashok KM, SC Strikes Down Words ‘Adult Male’ From The Definition Of “Respondent” Under Section 2(Q) Of DV Act; Relief Possible Against Minors, Women, Live Law(March 13, 2018, 1:44AM), http://www.livelaw.in/sc-strikes-words-adult-male-definition-respondent-section-2qdv-act-relief-possible-minors-women/.

[67] Live Law News Network, Husband Can Initiate Proceedings Under DV Act Against Wife, Her Relatives: Karnataka HC, Live Law(March 13, 2018, 2:00AM), http://www.livelaw.in/husbandcan-initiate-proceedings-dv-act-wife-relatives-karnataka-hc-read-order/.

[68] The Indian Penal Code, 1860

[69] Arnesh kumar v. State of Bihar

[70] http://www.firstpost.com

[71]Volume 18- Issues 22, October. 27-November 09, 2001, India’s National Magazine from the publishers of THE HINDU.

 

[72]Bina Agarwal, Among others, has investigated the far-reaching effects of landlessness of women in many agricultural economies; see particularly her A Field of One’s Own (Cambridge: Cambridge University Press, 1994)

[73]Berubari Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 856.

[74]Maneka Gandhi v. Union of India, AIR 1978 SC 597.

[75]Chitra Ghosh v. Union of India, AIR 1970 SC 35.

[76] State of M.P. v. PramodBhartiya, AIR 1993 SC 286.

[77] AIR 1987 SC 1281: 1987 Lab IC 961.

[78]Vishakha v. State of Rajasthan, AIR 1997 SC 3011; Apparel Export Promotion Council v.A. K. Chopra, AIR 1999 SC 625.

[79] A Cracknell v. State, AIR 1952 All 746.

[80] Muller v. Oregon, 52 L.Ed. 551.

[81] AIR 1952 SC 181: 1952 SCR 612.

[82] AIR 1954 SC 321: 1954 Cri LJ 886.

[83] . Shahdad v. Mohd. Abdullah, AIR 1967 J & K 120; GirdharGopal v. State, AIR 1953MB

[84]ThamsiGoundan v. KanniAmmal, AIR 1952 Mad 529.

[85] Mrs. Gita Hariharan v. Reserve Bank of India with Dr. Vandana Shiva v. JayantaBandhopadhyaya, AIR 1999 SC 1149.

[86] AIR 1992 SC 477.

[87]Gayatri Devi Pansari v. State of Orissa, AIR 2000 SC 1531.

[88]GazulaDasaratha Rama Rao v. State of A. P, AIR 1961 SC 564.

[89]Randhir Singh v. Union of India, AIR 1982 SC 879.

[90]UttarkhandMahilaKalyanParishad v. State of U. P, AIR 1992 SC 1695.

[91] AIR 1979 SC 1868.

[92]  Id. at p. 1870.

[93] AIR 1995 SC 1648.

[94] AIR 1998 SC 32.

[95] AIR 2004 SC 187.

[96] AIR 2003 SC 3331.

[97] (1995) 1 SCC 14.

[98] AIR 1997 SC 3011.

[99]BodhisattwaGautam v. SubhraChakraborty, AIR 1996 SC 922; Chairman, RailwayBoard v. Chandrima Das, AIR 2000 SC 988.

[100] AIR 1991 SC 207, 211.

[101] Gaurav Jain v. Union of India, AIR 1997 SC 3021

[102] AIR 1997 SC 3011.

[103] Raj Bahadur Singh v. Legal Remem-brancer, AIR 1953 Cal 522.

[104] Formerly known as the Suppression of Immoral Traffic in Women and Girls Act, 1956.

[105] Vishal Jeet v. Union of India, AIR 1990 SC 1412.

[106] Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

[107]Randhir Singh v. Union of India, AIR 1982 SC 879; Mackinnon Mackenzie and Co. Ltd.

[108] Id. At p. 1277.

[109]Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, 954: 1985 Cri LJ 875 and the Muslim Women (Protection of Rights on Divorce) Act, 1986.

[110] AIR 1995 SC 1531.

[111] Principal, HIMCAPES’ College of Law, Badhera, Haroli, Una, H.P.

[112] “Do We Need Gender Biased Laws: Domestic Violence Act”, available at: http://www.legalservicesindia.com/article/706/Do-We-Need-Gender-Biased-Laws:-Domestic-Violence-Act.html (Visited on August 05, 2018).

[113] Supranote 2.

[114] Urvi Maheshwari, “9 Gender‑Biased Indian Laws That Are Unfair Towards Men”, available at: https://www.scoopwhoop.com/inothernews/gender-biased-laws-in-india/ (Visited on August 05, 2018).

[115] “How Gender Bias is Dangerous for Men”, available at: https://www.jaagore.com/power-of-49/is-the-fate-of-the-girl-child-in-india-changing-girlchildweek (Visited on August 05, 2018).

[116] Ibid.

[117] Sonakshi Awasthi, “Is India ready for gender‑neutral laws?”, available at: https://indianexpress.com/article/india/is-india-ready-for-gender-neutral-laws-4895122/ (Visited on August 05, 2018).

[118] Supranote 7.

[119] Ibid.

[120] Id.

[121] Supranote 7.

[122] Supranote 7.

[123] Supranote 2.

[124] Supranote 2.

[125] Ibid.

[126] Supranote 2.

[127]https://www.aicte-india.org/schemes/students-development-schemes

[128]

[129][129]http://www.indiaeducation.net/scholarships/

[130]http://www.indiaeducation.net/scholarships/

[131]http://pib.nic.in/newsite/PrintRelease.aspx?relid=115776

[132] The Times Of India

[133] Parliament of India Rajya Sabha, One Hundred and Sixty Seventh Report on the Criminal Law (Amendment) Bill, 2012, PRS Legislative Research, (Sep. 20, 2018, 09:36 P.M.), http://www.prsindia.org/uploads/media/Criminal%20Law/SCR%20Criminal%20Law%20Bill.pdf.

[134] India: New sexual violence law has both positive and regressive provisions, Amnesty International, (Sep. 20, 2018, 09:51 P.M.), https://www.amnesty.org/en/press-releases/2013/03/india-new-sexual-violence-law-has-both-positive-and-regressive-provisions-2/.

[135] Rape and Sexual Violence: Human Rights Law and Standards in the International Criminal Court, Amnesty International, (Sep. 20, 2018, 09:55 P.M.), https://www.amnesty.org/download/Documents/32000/ior530012011en.pdf.

[136] Rituparna Chatterjee, The mindset is that boys are not raped’: India ends silence on male sex abuse, The Guardian, (Sep. 20, 2018, 09:46 P.M.), https://www.theguardian.com/global-development/2018/may/23/indian-study-male-sexual-abuse-film-maker-insia-dariwala.

[137] John Stokes, India’s law should recognise that men can be raped too, Quartz India, (Sep. 20, 2018, 09:57 P.M.), https://qz.com/india/264512/indias-law-should-recognise-that-men-can-be-raped-too/.

[138] Mehal Jain, SC Strikes Down 157 Year Old Law Criminalizing Consensual Homo-Sexual Acts Between Adults; Holds Section 377 IPC Unconstitutional To That Extent, Live Law, (Sep. 20, 2018, 10:01 P.M.), https://www.livelaw.in/breaking-sc-strikes-down-157-year-old-law-criminalizing-consensual-homo-sexual-acts-between-adults-holds-section-377-ipc-unconstitutional/.

[139] Supra at 5.

[140]“Gender Neutrality” Oxford Dictionary

[141] Report of the Committee on Amendments to Criminal Law (2013),  http://nlrd.org/womens-rights initiative/justice-verma-committee-report-download-full-report

[142]Vipra J. (2013). A case for gender neutral rape laws in India, CCS working paper. Retrieved from https://ccsinternship.files.wordpress.com/2013/05/286_case-for-gender-neutral-rape-laws-in-india_jaai-vipra.pdf

[143] Criminal Amendment Act, Section 375(2013)

[144]Sarrel, P.M., & Masters, W.H. (1982).Sexual molestation of men by women. Archives of Sexual Behavior, 11, no. 2, 117-131. Retrieved from https://link.springer.com/article/10.1007%2FBF01541979#page-1

[145]The Constitution of India, (1950).

[146]Rumney, P. (2007). In Defence of Gender Neutrality Within Rape(2007). Seattle Journal of Social Justice, Vol. 6, 481. (quotingJocelynne A. Scutt, Reforming the Law of Rape: The Michigan Example, 50 AUSTL, L..J. 615, 616-17(1976). Retrieved from http://ssrn.com/abstract=1316252

[147] Ibid.

[148]Novotony, P. (2003). Rape Victims in the (Gender) Neutral Zone: The Assimilation of Resistance? Seattle Journal of Social Justice, I, (Iss. 3, Article 62). Retrieved from http://digitalcommons.law.seattleu.edu/sjsj/vol1/iss3/62/

[149]Rumney, P. (2007). In Defence of Gender Neutrality Within Rape(2007). Seattle Journal of Social Justice, Vol. 6, 481 Retrieved from http://ssrn.com/abstract=1316252

[150] Ibid.

[151]Ibid.

[152]When men are raped.Ohio Department of health. Excerpt retrieved from http://www.odh.ohio.gov/~/media/ODH/ASSETS/Files/hprr/sexual%20assult/appendix182011.ashx

[153] Forman, B.D. (1982), Reported Male Rape. Victimology: An International Journal, 7 235-236.

[154]Rumney, P. (2007). In Defence of Gender Neutrality Within Rape(2007). Seattle Journal of Social Justice, Vol. 6, 481 Retrieved from http://ssrn.com/abstract=1316252

[155] Indian Penal Code, Section 376, (1860).

[156] Gupta, T. S. Child Abuse. Retrieved from http://www.sos-sexisme.org/english/IndiaChildAbuse.htm

[157] Report of the Committee on Amendments to Criminal Law (2013), retrieved from http://nlrd.org/womens-rights-initiative/justice-verma-committee-report-download-full-report

[158] The Crminal law (Amendment) Act, New Delhi: The Gazette of India (2013).

[159]Narain,  S. (2013). Crimes of Exclusion.The Indian Express. Retrieved from http://www.indianexpress.com/news/crimes-of-exclusion/1094515/

[160]Author

[161]Co Author

[162]Co Author

[163]www.MenCanStopRape.org, visited on 28.8.2018

[164]Commentary on The Indian Penal Code, K.D  Gaur, Second Edition, Page No 1162

[165]Sexual offence Act 2003

[166]Justice Verma commission report 2013, Part II – Recommendations, Para 3rd , Page 41.

[167]Navtej Singh Johar& ORS v. Union of India, Writ petition (Criminal) No 76 of 2016.

[168]1972 2 All ER 898 (HL)

[169]478 US 189 (1986)

[170] The Hindu Minority and Guardianship Act,1956

[171] Kamal Rudra Das J. expressed his view about child custody.

[172]Available at http://www.legalserviceindia.com/article/l34-Custody-Laws.html.

[173]  Venkataramma V. Tulsi , (1949) 2 MLJ 802

[174] Baby Sarojam vs. S. Vijayakrishnan Nair, AIR 1992 Ker 277, I (1994) DMC 79

[175]Available at http://www.legalserviceindia.com/article/l34-Custody-Laws.html.

[176] Suharabi v. Mohammed, AIR 1988 Ker 36.

[177] Md. Jameel Ahmed Ansari v. Ishrath Sajeeda, AIR 1983 AP 106

[178]  Section41 of Indian Divorce At, 1869.

[179] Padmaja Sharma v. Ratan lal Sharma, AIR 2000 SC 1398

[180] Asha Bajpai, custody and Guardianship of children in India, 39(2) FAMILY LAW QUARTERLY 441,447(2005).

[181] Soora beddi v. Cheema Reddy, AIR 1950 Mad 306.

[182] Vegesina Venkata Narasiah v. Chintalpati, AIR 1971 AP 134.

[183] L. Chandran v. Venkatalakshmi, AIR 1981 AP 1

[184] Available at http://lawcommissionofindia.nic.in/reports/Report%20No.257%20Custody%20Laws.pdf

[185] Guardians and Wards Act, No. 8 of 1890, § 17

[186] Guardian and Wards Act, No. 8 of 1890, § 19 and 19(b)

[187] Paras Diwan, LAW OF ADOPTION, MINORITY, GUARDIANSHIP and CUSTODY (2012), Universal Law Publishing Co: New Delhi, P.xv.

.

[188] In re Mc Grath [4] Lindley , L.J., observed.

[189]Michael J. Malone. A Suitable Lie. Orenda Books (August 2016). 83

[190] Joyfull Heart Foundation. http://www.joyfulheartfoundation.org/learn/domestic-violence/about-issue/what-are-roots-domestic-violence.Blog. Accessed on 16th September 2018. 12:15 pm

[191]Donald G Dutton; Tonia L Nicholls. The gender paradigm in domestic violence research and theory: part 1- the conflict of theory and data. Aggression and Violent Behaviour. Accessed on 17th September 2018.10:24 am.

[192]Linda Kelly. Disabusing the Definition of Domestic Violence: How Women Batter Men and the Role of the Feminist State. Florida State University Law Review (2003). Volume 30. Issue 4. Accessed on 17th September 2018. 12:10 pm

[193]Michael J. Malone. A Suitable Lie. Orenda Books (August 2016).242

[194] Mankind Initative. Male victims of domestic and partner abuse 30 key facts.(2017). Accessed on 16th September 2018. 3:15 pm. http://new.mankind.org.uk/wp-content/uploads/2015/05/30-Key-Facts-Male-Victims-February-2017-1.pdf

[195]Cycle of Abuse. https://en.wikipedia.org/wiki/Cycle_of_abuse.Accessed on 16thSeptember 2018. 3:15 pm.

[196]Michael J. Malone. A Suitable Lie. Orenda Books (August 2016).226.

[197]http://shodhganga.inflibnet.ac.in/bitstream/10603/135868/10/10_chapter%203.pdf, accessed on 16-09-2018

[198]https://www.myindiamyglory.com/2018/03/29/atrocities-on-hindu-women-during-islamic-invasion-in-india/, accessed on 16-09-2018.

[199]http://www.yourarticlelibrary.com/women/the-position-of-women-during-the-medieval-period/47394, accessed on 16-09-2018

[200]1996 Cr LJ 3103

[201]1986 Cr LJ 1510

[202]Supra note 5.

[203] Accessed on 17-09-2018

[204]Accessed on 17-09-2018

[205] Available at http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=97cb3603-be33-4236-9cdb-7a2d65490f2e&txtsearch=Source:%20www.mightylaws.in, accessed on 18-09-2018

[206]MahaleDeepika, “Dowry laws: Loopholes and Possibilities of Misuse”, ILS Law College, 2013, available at http://www.lawof.in/dowry-laws-loopholes-possibilities-misuse-dipika-mahale-ils-law-college-pune/, accessed on 17-09-2018.

[207]AIR 2010 SC 3363

[208]243rd Law Commission Report on Section 498A IPC, pg-1.

[209] 2005 6 SCC 281

[210] 2003 (69) DRJ 6

[211] Chatterjee Soumi, Dr. Pankaj Dwivedi., ‘Misuse of Anti Dowry Laws- A Dark Side of Marriage’, Journal of Research in Business and Management, Vol 6 Issue 17 (2018).

[212]Chug Bharat, ‘misuse of Anti Dowry Laws- The Other Side of the Coin’; Faculty of law, JamiaMIliaIslamia, available at http://www.legalserviceindia.com/article/l467-Misuse-of-Anti-Dowry-Laws.html, accessed on 18-09-2018.

[213]Tr. Ramaiyya v. State, order dated 7.7.2008 and 4.8.2008 in MP No.1 of 2008 in Crl. O.P. No.10896 of 2008.

[214](1990)2 Rec Cri R 243

[215]AIR 2000 SC 2324

[216]2002 CriLJ 3605

[217]Available at https://www.hindustantimes.com/india/9-yrs-later-accused-let-off-in-nisha-sharma-dowry-case/story-W40A3dvCmtU50P2Cer3AxJ.html, accessed on 19-09-2018.

[218] Available at https://indiankanoon.org/doc/171639936/, accessed on 19-09-2018

[219]2014 SLP Cri 9127

[220]Available at https://www.livelaw.in/automatic-arrest-498-cases-sc-issues-strict-guidelines-police-magistrates-non-compliance-will-attract-disciplinary-contempt-proceedings/, accessed on 19-09-2018

[221]2017 SLP (Cri) 2013

[222]Available at http://vaastav.org/2017/12/ncrb-data-on-498a-2016/, accessed on 19-09-2018

[223] Ibid

[224] http://www.who.int/violenceprevention/approach/definition/en/

[225]Protection of women from Domestic Violence Act,2005

[226] https://en.wikipedia.org/…/Protection_of_Women_from_Domestic_Violence_Act,.

[227] https://indiankanoon.org/

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[232] https://indiankanoon.org/

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[234] https://indiankanoon.org/

[235] https://www.theguardian.com/society/2010/sep/05/men-victims-domestic-violence

[236] https://indiankanoon.org/

[237] https://www.theatlantic.com/education/archive

[238] http://www.businessinsider.com/study-women-are-better-leaders

[239]  Case no: appeal(civil)13393 of 1996

[240] https://www.pri.org/stories/2017-08-15/indian-court-rules-men-need-protection-women-making-unsubstantiated-domestic

[241] Civil Appeal no 10084 of 2016, arisinf out os SLP (Civil) no 1932 of 2015

[242] CRIMINAL PETITION No.2351 OF 2017

[243]http://www.lawyersclubindia.com › Articles › Civil Law

[244] https://indiankanoon.org/

[245] https://indiankanoon.org/

[246] Crl.Misc.No.65/2012

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[247] ttps://indiankanoon.org/docfragment

[248] https://indiankanoon.org/

[248]  160 (2009) DLT 401 (DB)

[250] https://www.ndtv.com/india-news/character-assassination-is-cruelty-ground-for-divorce-high-court-1471602

[251] https://www.ndtv.com/india-news/character-assassination-is-cruelty-ground-for-divorce-high-court-1471602

[252] MAT.APP. 103/2010

[253] John Rawls, The Theory of Justice(1971)

[254] Jaishankar K., &Ronel, N., Proceedings- Third International Conference of the South Asian Society

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[255]  “Gender Neutrality” Oxford Dictionary

[256]  Justice J.S.Verma, Justice Leila Seth and Gopal Subramaniam, REPORT OF THE COMMITTEE ON

AMENDMENTS TO CRIMINAL LAW 2013, 416.

[257]  Section 354A Of the Indian Penal Code,1860

[258]  Section 354B Of the Indian Penal Code,1860

[259]  Section 354C Of the Indian Penal Code,1860

[260]  Section 354D Of the Indian Penal Code,1860

[261]  Section 326A Of the Indian Penal Code,1860

[262] Section 326B Of the Indian Penal Code,1860

[263]  Vaagisha Das,  https://www.youthkiawaaz.com/2015/10/adultery-law-in-india/

[264]  PTI, Aug 2 2018, https://timesofindia.indiatimes.com/india/supreme-court-says-penal-provision-on-adultery-violative-of-right-to-equality/articleshow/65241875.cms

[265]  PTI, Aug 2 2018, https://timesofindia.indiatimes.com/india/supreme-court-says-penal-provision-on-adultery-violative-of-right-to-equality/articleshow/65241875.cms

[266]  Section 17 of Protection of  Women from Domestic Violence Act, 2005

[267]  Section 32 of Protection of  Women from Domestic Violence Act, 2005

[268]  Rukmini S, July 7 2014, https://www.thehindu.com/opinion/blogs/blog-datadelve/article6186330.ece

[269]  https://uchalla.wordpress.com/2006/12/20/gender-biased-laws-in-india-engender-injustice/

[270]  https://www.lawteacher.net/study-guides/family-law/domestic-violence-act.php

[271]  https://www.lawteacher.net/study-guides/family-law/domestic-violence-act.php

[272]  Zara Khan, May 2 2017, https://www.thehindu.com/thread/reflections/men-too-may-be-sexually-harassed/article18351375.ece

[273]  Section 354 of Indian Penal Code

[274]  Section 354A of Indian Penal Code

[275]  Devika Agarwal, May 17 2017, https://www.firstpost.com/india/vijay-nair-sexual-harassment-case-rising-incidents-against-men-emphasise-need-for-gender-neutral-laws-in-india-3452286.html

[276]  K.M. Nanavati v. State of Maharashtra(196)2 AIR 605; 1962 SCR Supl. (1) 567

[277]23.september.2003

[278](2010)7 SCC 667

[279]27.July.2017

[280]24.August.2017

[281](2014) 2 SCC 1

[282]AIR 2005 SC 3100

[283] (2008) 2 SCC 561

[284](1997) 6 SCC 241

[285] http://www.indiatoday.in

[286] Matt Seaton, The Unspeakable Crime, The Guardian, November 18, 2002

[287]www.standardmedia.co.ke, David Odongo, Confessions from men who survived rape

[288]www.melmagazine.com, Miles Klee, Why can’t media call woman raping a man?

[289]Dr. Sarah Chynoweth, We Keep it in our Heart, UNCHR, October, 2017

[290]Vishakha and others vs. State of Rajasthan

[291]Sections – 354 (Sexual assault);354A(punishment for assault),B(punishment for intent to disrobe),C(voyeurism),D(stalking); 375(rape);376(gang rape) & 377(unnatural sexual intercourse);509(insult to modesty of a woman)

[292] THE WORKS OF ROBERT G. INGERSOLL,: BY ROBERT INGERSOLL

[293] M.A. Fineman, Preface in M.A. Fineman and Mykituk R. (Eds.), The public Nature of Private Violence, The Discovery of Domestic Abuse (New York, 1994)

[294]Special Leave Petition (Crl.) No.2013 of 2017 ( https://blog.ipleaders.in/rajesh-sharma-v-state-of-up-case-analysis/ )

[295]SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013 ( https://indiankanoon.org/doc/2982624/ )

[296]Criminal Appeal No. 03 of 2015 (https://indiankanoon.org/doc/194674503/ )

[297](2000) 3 SCC 693 (https://indiankanoon.org/doc/488394/ )

[298]https://dowrycasesindia.wordpress.com/category/allahabad-high-court-judgement-in-498a-ipc-2/

[299]JT 2005(6) 26 (https://indiankanoon.org/doc/1172674/ )

[300] S. 102, 104 Indian Evidence Act 1872

[301] Santosh Bakshi v St. of Punjab SLP(Crl.) No.7104 of 2013

         

[302] Tilak Raj v State of HP CRIMINAL APPEAL NO. 13  OF 2016(Arising out of SLP(Crl.) No.4896 of 2015)

[303] Indian Penal code

[304] Section 37

[305] Section 125 Code of Criminal Procedure

[306] Hindu Marriage Act, 1955

[307] Justice KS Puttuswamy v UOI(WRIT PETITION (CIVIL) NO 494 OF 2012)

[308] Section 154 Code of criminal procedure

[309] Independent Thought v UOI WRIT PETITION (CIVIL) NO. 382 OF 2013

[310] Constitution of India 1950

[311] Prevention of Domestic Violence Act, Dowry Prohibition Act, etc.

[312] Section 304 B, 354 A, 354 B, 354 C, 354 D, 375, 376, 497, 498 A, etc.

[313] Pyar Ka Panchnama (a Hindi Movie)

[314] Section 376 Indian Penal Code, 1860

[315] Explanation 1 to Section 354 C

[316] (Act 3 of 1874)

[317] Section 3 R/W Schedule 1 & 2

[318] Section 21

[319] Section 21

[320] 1 981 Mar. LJ 197.

[321] AIR 2010 SC3363

[322] AIR 1975 SC 1534

[323] AIR 1987 Del 111

[324] AIR 2000 SC 2324

[325] 1986 Cr LJ 1510 (Del)

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[ii]   https://www.youthkiawaaz.com/2017/03/feminist-driven-india-misuse-of-laws-legal-terrorism/  (last visited Sept.19, 2018).

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[v]  https://www.insaafindia.in/tag/mens-rights-india/ (last visited Sept.18, 2018).

[vi]  https://www.bebadass.in/buzz/lets-talk-about-mens-rights-in-india (last visited Sept.14, 2018).

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THE

Title: Violence against men.

Theme- Misuse of Domestic Violence Act, 2005.

Names (Co-authorship)- 1. Anamika Jain

  1. Divyanshu Jain.

Course- B.A.LLB (Hons.).

Semester- 1.

Year- 2018-2023

Contact Numbers- 1. 9301188115

  1. 9598966220

E-mail Id- 1. ak9827925398@gmail.com

  1. vaibhav9598966220@outlook.com

Address- Samruddhi Girls Hostel, Gendalal Bam Parisar, Indore Institute of Law, Opp. IIM, Rau-Pithampur Road, Village- Dehri, Rangwasa, Indore. PIN: 453331.

Abstract

Domestic violence is any kind of violence or abuse by one person against other belonging to the same family and residing in same hospitality. It can be against children, wife and even parents. Here, violence or abuse can be emotional, verbal, physical or sexual. But in India it is very misunderstood and maybe due to which government passed such act of domestic violence which is “domestic violence act 2005” only for women or daughter in laws. Surely there are many cases which made them to make such an act to save women but why only them. Sometimes there are many cases where even men are being assaulted. If, for women, who are mainly newly married or had some years of time for marriage, the act is passed then why not for other members, why not for men who are maltreated, why not for parents who are not been cared at their old age, are they not human. There are some fundamental rights which are being provided to us by our constitution and one of them is right to equality. In many foreign countries there are some set of rules for domestic violence, but they are not just specified for the rules violated against women rather they are made for all. From further studies we also come to know about the fact that this habit is somehow inherited from their old ones which would be discussed later.

In this paper we are going to discuss about these main factors

  1. What is domestic violence and how in India it is just limited to women?
  2. Position of women in ancient India.
  3. Domestic violence and law in India.
  4. Judicial stand on the domestic violence act 2005.
  5. Conclusion

What is domestic violence and how/why in India it’s just limited to women?

Firstly, I must provide here the defines for domestic violence for what it is and what people in India do really mean it.

Domestic violence is violence or abuse by one person against other belonging to the same family and residing in same hospitality. It can be against children, wife and even parents. Here, violence or abuse can be emotional, verbal, physical or sexual.

When one person harms or injures other, residing in same hospitality, endangers his health weather physical or mental, with a view to force her or the one related her to meet any kind of demand which is not lawful.

The first definitions mean, what domestic violence is but the second definition of domestic violence clearly indicates the relation of domestic violence with dowry. This is the main problem with the domestic violence act in India. We must understand that domestic violence and dowry are two separate things but somehow their relation made us understand in such way that they are same. Every time when someone tries for dowry they exercise domestic violence. Dowry is a process when a party give or agree to give any property or valuable security directly or indirectly. It is not wrong that we keep these sections along with each other but merging them completely and understanding them totally in wrong sense is not good.

This is all because the maximum cases that have been filled under domestic violence act were related to dowry. And is the reason why in India the domestic violence is thought to be only for women.

Position of women in ancient India

From the time immemorial society has been run out mainly by males but we must not forget that women were also participants. As we look in Indian history there were ‘maharaja’ who were the king and maybe all the other posts of the authority might be reserved by men but there were also some specific places for the women which werealso important post to run out a government. One of them which is meant to be as powerful as king was the post of ‘Rajmata’.

In Hindu ideology wife is ‘Ardhangini’ which means the half part of body. We also must consider that daughter in laws are said to be ‘Lakshmi’ of the house, mother as ‘Durga’, even baby girls are treated as goddesses, then how we can say that there was no respect for women. Indian culture and rituals are its rule and regulation.

At the time of Rigvedic age, women use to enjoy their freedom in every sphere of life. There is no evidence to prove that women had to suffer with a lower position status. In Vedic litature there are many women who did a good job along with men and still have their name in history. Visvavera, author of a hymn in Rig-veda. Lopamudra who was wife of agasti composed two verses.in all the given statement it is very clear that women were well educated and were given equal opportunity to express their view as well.[vii]

Gender equality concerns each member of society. In midnight of the 15th Aug 1947 India awoke to “life and freedom” the personalities responsible for our freedom had a dream to equality which would need a great social engineering on a massive scale. In respect to the backward and suppressed sections of the society and above all, its women. Because, crimes against women were on peak at those time before independence which were to be stopped and some of them were child marriages, dowry, practice of sati, domestic violence, trafficking of girl child and sexual harassment, which from day after independence were strictly prohibited and are now not seen in practice for most of the time.

In all the above-mentioned cases men are not the only one who are responsible of such acts, but women have their participation in these acts as well, which is the most important part of the theory as to understand that it is not a war like, Men Vs. Women, but it is a fight between Inhumanity Vs. Humanity from a very long time. We need to understand that women are also responsible for the inhuman acts which had been practiced not only on women but also on men.

Domestic violence and law in India

Section 3 of domestic violence act 2005 defines domestic violence is when any person harms or injures, endangers the health, harasses, has the effect of threatening the aggrieved person or any other person related to her by any conduct.

Here physical abuse means act which is of such nature as to cause bodily harms, pain, endanger to life health, including assault criminal intimidation or frightening and force. Sexual abuse means a conduct which violates or degrades the dignity of women. Prohibition or restriction to continue access to resources or facilitates which the aggrieved person is entitled to use or enjoy.

The aggrieved or a protection officer on her behalf may present an application to the magistrate seeking one or more reliefs under this domestic violence act.

In the case of domestic violence, procedures to obtain orders of relief are;

  • to sec. 12 (2), The magistrate may pass an order for respondent to pay damages or compensation what the aggrieved person has suffered by him.
  • to sec. 15, The magistrate may on seeming the condition of aggrieved person may secure her service.
  • to sec. 17, every woman in domestic relationship has right to reside in shared household and hence the magistrate might also provide this right as one of the reliefs.
  • to sec 18. He can also pass protection orders in favour of the aggrieved person, if needed.
  • to sec. 21This act also provides temporary custody of the child to the aggrieved person or the making the application on her behalf.
  • The aggrieved may also ask for other legal proceedings as a relief like petition for divorce, maintenance, Section 498A IPC, and such other.[vii]
  • Domestic violence and the current scenario

Domestic violence had been made as a proceeding which made an environment of war between men and women. Everyone in the society had made a mentality, for every time whenever domestic violence occurs it would have been done by men against women.

They never think what the reason behind his act could be. However, the U.S. government stated that the person making domestic violence are mentally ill.

Firstly, the men in the house is not the only one responsible for the domestic violence weather directly or indirectly, sometimes in law’s also responsible for it. And, the fact to be considered is, there are not only the cases where women’s rights are being violated but there are men too, whose rights are being violated. Thirdly it is not also that the cases happen but are also created to arrest the property of in law’s too. Dowry is not the only factor to be considered but the fact is that it is being highlighted. There are many cases where the women act like theirs rights are being violated and threatens the family members of the men to give their property or will file the case of domestic violence.

Due to India’s cultural life families are more worried for their respect in the society and so are afraid to get their report filed and do what the women wants.

When we study the above definitions and relives from domestic violence it is clearly understood that the government made the whole concept for women and the Madras High court in 2008 that “the main objective behind this law was to check the menace of dowry at the same time and to save matrimonial homes from destruction” but from the arrest of in-law’s had made simply to satisfy the anger and ego of the complainant.

Judicial stand on domestic violence act 2005

There are many statements where the courts defined the objectives of the domestic violence act and enlightened the facts which occurs. When madras high court recorded their statement in the case as showing its objective to check out the menace of dowry but at the same time showing the real condition of the act which is being used to satisfy the anger on in-law’s.

Delhi high court also stated an exemplary case to show that law is equal for everyone and would not pardon anyone weather men or women for a crime.

The case was instituted on 23/04/2007 and was disposed by the trial court on 07/06/2008.

Plaintiff- Sumana Bhasin.

Respondent 1- Neeraj Bhasin(husband)

Respondent 2- Shiv Kumar Bhasin (father in-law).

Respondent 3- PushpaBhasin (mother in-law).

The trial court stated for respondent to pay 25000/- Rs. Per month to the plaintiff. The respondent filled a petition before Hon’ble high court. The court was requested to reconsider the fact that weather the plaintiff was entitled for maintenance and if she is not liable then she would return the maintenance paid by the respondent.

  • The plaintiff Sumana and the respondent Neeraj had a love marriage. After marriage they resided in his father’s house. After some time, the party constructed the second storey of the house because of the differences aroused among the father and the son.
  • The applicant stated that she was dragged into the family business and was physically and mentally abused by respondent no. 1 in front of other employees. She even complained about misbehaviour of responded no. 2 and 3, who allegedly refused to interfere between husband and wife.
  • The complainant visited America and Canada in Jan. 1991 and respondent joined her in Feb. 1991. The complainant was beaten by respondent on this trip.

The complaint has no prove of this fact.

  • An employee Shoma Dey was hired by respondent no. 1 in mid-1998. The complainant informed by anonymous caller that respondent no. 1 and Shoma are founded in ‘in-appropriate conditions. She stated that she hired services of Ace Detectives in July-2002. The respondent admitted being with Shoma. But that was just of work. Complainant made a “silent complaint” with New Friend Colony Police Station. The matter was comprised, and parties returned to house.
  • The respondent gave no importance to complainant in business and not to his family. Complainant alleged she bear all her expenses from her salary. But it was found that respondent registered a house for the complainant and gave 5% of his business, and respondent no. 2 also gave her 5% of his business. The son of both the parties agreed that they had domestic as well as international vacations also. Later she agreed that she gets Rs. 17,000/- as pocket money and the other expense were given by the respondent.
  • In sept 2007, parties went for business trip to Jodhpur along with an employee named Archana. The respondent gave undue attention to Archana.

The respondent put forth the defence that all the allegations made were false, baseless and concocted and were made to harass him and extort unjustified money. He was always a loving husband and caring father. The complainant always has a suspicious nature.

The complainant was herself capable of earning 15,00,000/- per annum. But she wants the luxurious life that she was living before.

From all the above discussion the application filled under section 12 of protection of women from domestic violence is discarded with a cost of Rs. 1,00,000/- to be deposited by the plaintiff to the respondent.

The imposition of cost is to set a principle that wrongdoers should not get benefit out of carefree litigation.[vii]

Review:This is a very exact judgement which is needed by the society to stop the wrongdoers who files false statement just to satisfy their feelings and waste the precious time of the court.

For more result the court must impose fine on the plaintiff so that everyone gets it in their mind to not to misuse any act just to satisfy your own feelings.

Suggestion

We all are aware of the condition of women, but it does not mean that government can make such acts which are able to help them but are also harmful to the other parts of the society.

The government must individually workout on all the acts like dowry act, child marriage act and many others. These are some act which are only for women and can only be suffered by them and no one else have to do with it but domestic violence is not such thing.

First, we must understand that domestic violence is not an act which can only be suffered by women but is also suffered by children, parents and even by men there are also such cases where men are being troubled. When we study domestic violence act 2005 it clearly reflects its image as it only made for women because specifically in every section the aggrieved party is referred to be the women as if newly married women are the only one who suffer from domestic violence and none else. The government must also consider those parents who must leave their son their family and everything which they earned throughout their whole life but in their old age instead of keeping them with care the women forces them to get out of that property.

As in domestic violence act the aggrieved person has right to reside in the house, similarly the government must also take care of this case. Not only in this case but there are many other which are to be considered, at least for a while.

Domestic violence also includes those children which are being thrashed very badly by their parents just because of their frustration on some other matters, the government shall also consider this fact as children are the future of the country and this fact effect badly their mentality and this pass on through inheritance from their son to their son and the chain goes on non-ending.

As per the human nature we are not perfect in everything, so we do learn it from others similarly our government must also see the factor related to this case from other foreign countries as they are also humans and suffer from such cases. One of the factors relevant to the topic and I guess is the most important part of the research is that there are many foreign countries where there is no domestic violence act as this act is as violation of human rights. Some of those countries are republic of Congo, South Sudan, Iraq, Iran and many more. Violence against any person weather in the house or out of the residence, weather related or not, weather known or unknown will be held liable. And in this case,there is no violence of men’s right or any other.

 

 

Conclusion

Our society is divided into many parts or communities in the name of caste creed colour gender and many other such factors, but it is our duty to bring equality among them.

Only caste creed or religious inequality is not a problem but the biggest problem going on with our society is gender inequality. Gender inequality is one of the biggest problems which could be faced by a country when a question arises in the fact of equality and freedom.

It is necessary to bring those communities in a level where all of us have an equal status but at what cost? Promoting gender equality is a good factor but the problem is with the misuse of the rules or acts which government make to safeguard their rights but the individual start using it as a weapon against others, as in the case of domestic violence act.

The act was to safeguard women from any kind of violence against them by her husband or in-laws for the fulfilment of any unlawful demand. The motive was to menace the dowry at the same time to save their matrimonial life, but what started instead. The act has become a weapon to put all the anger and frustration on in-laws just to satisfy our own personal feelings.

It is a good point that the government is worried for every individual and is taking initiatives for promoting them through making acts for them, but the government should also take care of the others at the same time as well. The government must seek the problems that could be suffered by others at the same time during the welfare of the one.

Somehow apart from legislature it is also the responsibility of judiciary to check out weather the act which are being made by legislature are not being misused. And if it is done, then he/she must also be treated as guilty. And must be held with strict punishment so that no one else try to do so. After all, to save women from violence we can not abolish men from their fundamental rights.

Theme: – Crime against men, inclusive of adultery.

Name (Co-authorship): -1. Ananya Sharma 2. Sarthak Bhawsar

Course: – LLB (Hons.)

Semester: – 1st

Year: – 2018-19

College Name: – Indore institute of law, Indore.

University: – Devi Ahilya Vishwavidyalaya,Indore, MadhyaPradesh.

Contact No.- 1. 6393818796 2. 9926767669

E-mail Id: 1. ananyasharmap@gmail.com  2. sarthakbhawsar@gmail.com

Address- 1) Samruddhi Girls Hostel, Gendalal Bam Parisar, Indore Institute of Law, Opp. IIM Indore, Rau-Pithampur road, Village: Dehri- Rangwasa, Indore, Madhya Pradesh. PIN- 453331.

JUSTICE FOR MEN’S RIGHT

“The rights of every man are diminished when the rights of one man are threatened”-John F. Kennedy

  1. INTRODUCTION

The right to live with dignity and pride, safe from all prospective crimes and assaults is a fundamental human right. Rape, homicide, suicide, domestic violence, adultery, abduction, sexualharassment at workplace, child abuse and many more of other crimes are always thought of in parallel with females/girls, but in the era of 21st century there exists another face of the coin too.

The Indian society is considered to be patriarchal where men are in authority over women in all aspects of society. The men are originally thought of to be strong,independent,courageous, assertive and always superior to women.

Undoubtedly the crimes against women have increased exponentially but then there also has been significant cases of crimes with men.Along with the rise in crimes with men there has been cases of men rape,sexual harassment of men at workplace, misuse of many women-centric laws as against men and their family members to acquire the money and property,adultery and defamation.

It has been found that 1 in 4 men have been victims of some form of physical violence by an intimate partner within their lifetime.1 in 7 men have been victims of severe physical violence by an intimate partner in their lifetime.1 in 18 men have been stalked by an intimate partner during their lifetime to the point in which they felt very fearful or believed that they or someone close to them would be harmed or killed.

Indian constitution has given the right to live life with dignity to every human. In Maneka Gandhi v. Union of India, the Supreme Court gave a new dimension to Art. 21 and held that the right to live the right to live is not merely a physical right but includes within its ambit the right to live with human dignity. Elaborating the same view, the Court in Francis Coralie v. Union Territory of Delhi, observed that:

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities the basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”[vii]

  1. Why the crime?

In a society dominated by men women are oppressed in many ways but there still lies an untold story. Legal provisions that were meant to protect women against domestic violence, harassment and treated as subordinate are being misused. Since the men are considered the stronger section of the society, there are always considered to beat the receiving end of the consequences arising of actions, even though they might be the one aggrieved. The patriarchal society does not goes well with the notion that men can actually be the victim also. The male suicide rate at the UK and Ireland are constantly rising. The ratio is three times higher than that of women.[vii]There are many kind of assaults faced by men. There are times when a female partner deliberately abuses her man to break him down psychologically. Due to the presence of large number of women favoring, gender biased laws in the legislature, itn when a man lodges complaint  usband.if they are minors or school going kids,nearer or distant relatives and in some cases eveis easier for women to press fake charges regarding violence, harassment and adultery. Even the lawyers hardly take up cases where the defendant is a woman. The police hesitate to take action when a man lodges complaint against a women but will jump at any man who even brushes past a woman by mistake.[vii]May it be a case of dowry, sexualharassment at workplaces, section 498 of Indian Penal Code, grant of maintenance to wife and children, men face biasness.[vii]

 

  1. Myths regarding males
  • Men are strong

The stereotypes are always of notion that men are strong and always being able to protect themselves. It is always thought of as real men don’t cry. It is not always true that men who are physically strong may be strong mentally too. However this may not be the case with younger male child and some weak hearted men. An adult man may be vulnerable on fighting against their assailer because of existing gender biased laws. Young male children may be lured into doing something offensive by bribing them with or other things or through coercion.

  • Men want sex

Roy J. Levin and Willy Van Berlo wrote in an article in the Journal of Clinical Forensic Medicine that slight genital stimulation or stress can create erections “even though no specific sexual stimulation is present”. An erection does not mean that the men consent to sex.[vii] Generally it is believed that if a man has an erection he is willing and enjoying the sexual activity. Though men may be bullied into an erection.

  • Men are never the angel but the sinner

Because of the male dominating society and patriarchal beliefs men are always consider superior to the female counterparts and head of the families. They are never thought of as the victim in any situation. These myths make it difficult for them to file the report or talk openly about their situation to other people. They fear being misunderstood and mocked as weak and docile.

INJUSTICE/CRIME WITH MEN

  • SEXUAL ABUSE TO MEN (ADULT AND CHILD)

The World Health Organization (WHO) estimates the lifetime prevalence for childhood sexual abuse against male is 7.6 percent globally.[vii]

Abuse,sexual, physical or mental can appear to any person irrespective of their age and gender. The abuse may occur at home, outside the home, workplace or any other place. However, harassment to men is not as widely studied as that of women. In a study of 522 workers, up to 58% of women and 37% of men reported experiencing some level of sexual harassment.

In 2007, Ministry of Women and Child Welfare, supported by United Nations Children’s Fund, save the children and Prayas conducted a study to understand the magnitude of child abuse in India, they found that 53.22% children faced one or more forms of sexual abuse; among them, the number of boys abused 52.94%.[vii]

  • MISUSE OF ADULTERY LAWS

“A gender-equal society would be one where the word ‘gender’ does not exist: where everyone can be themselves.”- Gloria Steinem

Section 497 of the Indian Penal Code states that, “Adultery – Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offense of adultery, and shall be punished with imprisonment ofeither description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall not be punishable as an abettor.”

The law in itself discriminates against men having a relationship with a married woman as a crime even if it may have been consensual. Women often charge their spouses or threaten to charge them of false allegations related to adultery to acquire the household property and possession of other valuable things.

In the recent case of Manoj kumar VS Pinki rani, the Delhi high court resolved the marriage between two parties as the wife charged her husband falsely of having an illegitimate relationship and demanding dowry. A bench comprising Justice Pradeep Nandrajog and Justice Yogesh Khanna held that nothing can be more painful to a spouse other than the allegations of adultery made by the opposite spouse.[vii]

  • DOMESTIC VIOLENCE AGAINST MEN

Domestic violence has always been naturally associated with females. The male have always been looked upon as the protector or looked down as the perpetrator. The cases are never reported due to hesitation of being laughed upon and not being heard. They are often ashamed to admit that they are being abused physically or verbally or both by the female. The figures recorded for crime against men are disturbing, not because they are huge figures but because of thenumber of the cases where men as victims, go unreported.[vii]The violence faced drastically affect the men emotionally, physically, socially and psychologically. A report from the Jabalpur, Amarkantak and Hoshangabad region of Madhya Pradesh says that a large number of persons have left their marriages to become holy men or yogis. According to family counseling centers in Jabalpur, the share of harassed husbands was 70 percent among complainants as per data recorded between 2013 and 2015. About 4,500 husbands are missing from family court records in the region. A local stops the police from going after men who have left marriage and became sadhus.[vii]

 

  • MISUSE OF WOMEN-CENTRIC LAWS AGAINST MEN AND THEIR FAMILIES

Section 375, 376, 498a of Indian Penal Code, Nirbhaya Act, Dowry Prohibition Act 1961, Domestic violence act 2005, Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 give women upper hand in the Indian legislations. The complaints filed under these acts are redressed very fast, most of the time not hearing the male person. The act which was made for the defense of women is used by women only to charge false allegations on their husbands to extort their properties and torture the male counterpart and his family. There are instances where, without any investigation, the police has arrested elderly parents, unmarried sisters, pregnant sister-in-laws and even 3 year old children. In these cases unsuspecting family of husband has to go through a lot of mental torture and harassment by the corrupt Indian legal system. A typical case goes on for years (5-7 years is typical) and the conviction rate is about 2% only. Some accused parents, sisters and even husbands have committed suicide after time in jail.[vii]

The suicide rate amongst married men have increased significantly since 1983 with more than 170 committing suicide each day in India in 2011. 25% of married women were seen to be the victim of suicide whereas the percentage with me was 47.3%.

In Savitri Devi Vs. Ramesh Chand, Delhi high court stated that though the provisions were made with good intentions i.e., to safeguard the women but the implementation and the consequences arising has left a very bad taste. There has been a thriving tendency among the women which is further supported by their parents and relatives to draw in each and every relative even if they are minors or school going kids,nearer or distant relatives and in some cases every person of the family of the husband.[vii]

 

 

  • MISUSE OF PROTECTION OF CHILDREN AGAINST SEXUAL OFFENCES ACT, 2012

Casual laborer Rahul Chowdhary, 35, was arrested on May 5, 2013 for allegedly raping the 4-year-old who lived nearby. He was arrested by Nalla Sopara police and charged under Section 376 (rape) and Protection of Children against Sexual Offences Act. The trial began late 2014, and resulted in the first acquittal in Vasai court of a man charged under POCSO. “Sessions Judge S G Mehere acquitted my client for lack of evidence,” Chowdhary’s lawyer Digambar Desai said. “During in camera proceedings, the girl revealed that her mother tutored her to say she was raped. During medical examination some scratch marks were found near her genitals, but we told court that the FIR was filed days after the incident in late April 2013, and the irritation (itching) marks were fresh ones in May 2013,” Desai said.

Often the children are used by women just to molest the man and their families to extort the money, property or for divorce and maintenance even if the women is working.

 

  • DEFAMATION

The false allegations, convictions, severe trials often result in decline of a person’s goodwill. The accused men who go for these trials in the court face severe character assassination in the court and in the society amounting to heavy mental and emotional trauma.

In a recent case, cricketer Mohd. Shami’s wife, Hasin Jahan accused him of adultery and domestic violence which resulted in losing him a central contract with BCCI.

MEN’S RIGHT MOVEMENT-Men rights, Man sense!

The present day men’s right movement came out from men’s liberation movement which appeared in early 1970s when eminent scholars studied feminist rights and ideas and politics. The movement threw light on many aspects of dowry law, divorce, paternity fraud, rape and suicide.A thinly veiled desire for the domination of women and a conviction that the current system oppresses men in favor of women are the unifying tenets of the male supremacist worldview.[vii] There were several instances where women misused anti dowry and violence against women laws to incriminate and harass men and their family members. Despite being innocent, families were being dragged behind the bars in prison for several years.[vii] Various men’s right activists claimed that the frequency of violence against men have seen an increased trend. One of the reasons behind it, they hesitate to report the cases with fear of not being heard and instead being charged with false accusations.For men being called coward, impotent and other crass words lays a significant psychological impact. It has been seen that men are more affected by emotional abuse than physical abuse. The Indian men’s rights movement was started in 1988 in Delhi by Supreme Court advocate Ram Prakash Chug to handle psychological abuse perpetrated by wives and false claims of dowry harassment by wives. The movement began as an organization called “Society for Prevention of Cruelty to Husbands”.[vii]The inaugural celebration of IMD in India was organized by the leading Indian Men’s rights organization Save Indian Family on 19 November 2007.[43] The date of 19 November was accepted based on the fact that Australia and the West Indies (Jamaica, Trinidad and Tobago) were already observing IMD on that date. The event was again celebrated in India in 2008, and plans have been made to continue the celebration annually.[vii]

SUGGESTIONS AND RECOMMENDATIONS

Deepika Bhardwaj, a former journalist said, that the law has become a tool for extreme blackmail and extortion.

With the changes in the time and era, the ideology of females being inferior to men has been eradicated remarkably. They are now started to be seen as equals to their male counter parts sharing several positions on and off in the society and workplaces worldwide.

Karnataka High Court, in the case ofState vs. Srikanth[6] observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”[vii]

I agree with the honourable court. Dragging of the innocent people gives wrong impressions to the society and leave the life of a person tarnished with the tag of criminal.

In Hiral P. Harsora and others Vs. Kusum Narottam Das Harsora and others, the Supreme Court stated, allow domestic violence complaints on females in household by removing requirement of “adult male” from definition of respondent[vii].

The laws must be amended with time being and changing scenarios making them gender neutral.

In Raj Talreja V. Kavita Talreja, the court observed, the acts of the wife in levelling defamatory allegations and filing false complaints against the husband amounts to cruelty. The wife made reckless, defamatory and false accusations against her husband, his family members and colleagues, which would definitely have the effect of lowering his reputation in the eyes of his peers.All the allegations were found to be false. Later, she filed another complaint alleging that her husband along with some other persons had trespassed into her house and assaulted her. The police found, on investigation, that not only was the complaint false but also the injuries were self-inflicted by the wife. Thereafter, proceedings were launched against the wife under Section 182 of IPC. [vii]

The fear of false accusations and not given the chance to be heard is one of the main reasons men hesitate to come forward with their grievances. They should be heard not being discriminated on the basis of their gender. They should be motivated to come out and talk about their problems to their friends, families and the respective authorities.

The police should work as a neutral authority for filling of the complaints.

The cruelty subjected be of any nature emotionally, physically, economically shall be treated equally.

Men should be given and equal legal platform like that of women to share their grievances, experiences learnt, trauma faced if convicted falsely. Their experiences would be enlightening for others also and would motivate others to come forward and talk.

 

CONCLUSION

One can be certain that there is something sinister about a law, when it intimidates and instills fear in innocent people. When a person who has not committed any crime, begins to fear punishment under the provisions of a law, it is not a law anymore – it is state sponsored terrorism.[vii]

Indian constitution has given every citizen the right to equality before law still giving preferences to women in certain cases granting them special status in article 19.

Each human has the right to live freely and ad a lead a happy and dignified life.

Injustice to one and justice to one is must not be accepted in a diversified country like India. It is just as important to recognize injustices with men as against women. The laws made should be amended making them gender neutral and stringent actions should be taken against those who make false allegations just for the sake of divorce, alimony or defaming their partners out of revenge.,

As said by Robert Kennedy, “The glory of justice and the majesty of law are created not just by the Constitution – nor by the courts – nor by the officers of the law – nor by the lawyers – but by the men and women who constitute our society – who are the protectors of the law as they are themselves protected by the law”.

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