FEMINIST PERSPECTIVE OF THE

CRIMINAL LAW

Dissertation submitted in part fulfillment for the requirement of the

Degree of

LL.M

Submitted by Supervised by
TAVLEEN KAUR MOHI Dr. BHARTI YADAV

NATIONAL LAW UNIVERSITY

DELHI (INDIA)`
2017
 DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “Feminist Perspective of the Criminal
Law” submitted at National Law University, Delhi is the outcome of my work
carried out under the supervision of Dr. Bharti Yadav, Assistant Professor,
National Law University, Delhi.

I further declare that to the best of my knowledge, the dissertation does not contain
any part of work, which has not been submitted for the award of any degree either in
this University or in any other institution without proper citation.

Tavleen Kaur Mohi

Roll No. 24 LLM 15
National Law University

New Delhi
Date:

i
 CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the L.L.M. dissertation entitled “ Feminist

Perspective of the Criminal Law” submitted by Tavleen Kaur Mohi at National

Law University; Delhi is bona fide record of her original work carried out under my

supervision. To the best of my knowledge and belief, the dissertation: (i) embodied

the work of the candidate herself; (ii) has been duly completed; and (iii) is up to the

standard for being referred to the examiner.

Signature

Dr. Bharti Yadav,

Assistant Professor,

National Law University, Delhi

New Delhi
Date:

ii
 ACKNOWLEDGMENTS

I sincerely thank Prof. (Dr.) Ranbir Singh, Vice Chancellor and Prof. (Dr.) G. S.
Bajpai, Registrar of the National Law University, Delhi and the library staff who have
helped me in the completion of my work. The University has provided me with the
resources essential to the completion of this dissertation and also for intellectual
stimulation in countless ways. This dissertation could not have been possible without
the help of some very important people.

To Dr. Bharti Yadav, Assistant Professor of law, National University of Law, who
supervised my research work.

To my family, my father whose boundless love and affection keeps me happy and
motivated, my mother for imbibing me with the attitude of perseverance and my stress
buster, my sister, for being the best friend –they helped in every way possible to
accomplish this task.

To my friends, Aviral (Advocate-on-Record) and Girish (Ass.Commandant Officer),

to provide me with an emotional support throughout this task.

Last, but not the least, to my batch mates- Nikita Samarnath, Udita and Vaibhav, for
good humour and a great work environment.

Tavleen Kaur Mohi

iii
 LIST OF ACRONYMS AND ABBREVIATIONS

AIR All India Reporter

ILR Indian Law Reports

PO Protection Officer

NCRB National Crime Records Bureau

LCI Law Commission Of India

SC Supreme Court

SCC Supreme Court Cases

v. Versus

E.g. For Example

I.e. That is to say

Ed. Edition

IPC Indian Penal Code

Supra As above

Vol. Volume

& And

Sec. Section

Ibid In the same place

Id In the same place but at different pages

Cri. LJ Criminal Law Journal

iv
 LIST OF STATUTES

1. The Indian Penal Code, 1860

2. The Criminal Procedure Code, 1973
3. Protection of Women from Domestic Violence Act, 2005
4. The Constitution of India

v
 TABLE OF CASES

1. Jayanti Rani Panda v. State of West Bengal & Anr, (1984) Crl. L.J 1535
2. Jayanti Rani Panda v. State of West Bengal & Anr, Crl. Appeal No 336 of 1996
3. Hari Majhi v The State, (1990) Crl. L.J. 650
4. Abhoy Pradhan v. State of West Bengal, (1999) Crl. L.J. 3534
5. Mir Wali Mohammad Kalu v The State of Bihar (1991) (1) BLJR 247
6. Atmaram Mahadu More v. State of Maharshtra (1985) 5 Bom CR 201
7. Uday v. Sate of Karantaka Cr. Appeal No.336 of 1996
8. Uday v. State of Karnataka, (2003) Cri. L.J 1539
9. Deelip Singh Alias Dilip Kumar v. State of Bihar,(2005) (1) SCC 88
10. Yedla Srinivasa Rao v. State of A.P., Crl. Appeal No1369 of 2004
11. Nikhil Parasar v. The State of NCT. Of Delhi, Bail Appln No 1745, Del HC, 2009
12. Bipul Medhi v. State of Assam 2008 Crl. L.J. 1099, (2007) 2 GLR 200
13. Shri Bodhi Sattwa Gautam v. Subhra Chakraborty AIR 1996 SC 992
14. Milan Kumar Singh v. State of Uttar Pradesh 2007 Cri. L.J 4742
15. Jagadesan v. State of Tamil Nadu 2015 (2) MLJ 135 (Crl)
16. Preeti Gupta v. State of Jharkhand AIR 2010 SC 3363
17. Sushil Kumar Sharma v. Union Of India, AIR 2005 6 SCC 281
18. Chandrabhan v. The State Bail Appln No. 1627 / 2008
19. T.R. Ramaiah And Ors. vs Deputy Commissioner AIR 1975 Kant 77, ILR 1974
KAR 711, 1974 (2) Kar LJ 305
20. Court on its own Motion v. CBI 109 (2003) DLT 494
21. Smt. Sowmithri Vishnu v. Union of India & Anr 1985 AIR 1618, 1985 SCR Supl.
(1) 741
22. Yusuf Abdul Aziz v. State of Bombay, 1951 (53) Bom LR 736
23. Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 (Supreme Court of India)
24. V Revathi v. Union of India (1988) 2 SCC 72
25. M T Carunya v, S Joseph Chellappa, (1996) 1 MLJ 409
26. Olga Thelma Gomes v Mark Gomes, AIR 1959 Cal 451
27. Samaj Nadar v Abraham Nadachi, AIR 1970 Mad 434
28. Kaini Rajan v. State of Kerala, (2013) (9) SCC 113
29. Rajesh Choudhary v. State of Assam, 11 (2007) DMC 735

vi
30. Krishna Chandra Patra v. Tanu Patra, 11 (1992) DMC 20
31. Re: Shankar Tulshiram Navle v. Unknown, (1928) 30 Bom LR 1435
32. Sureshchandra Vadilal Shah v. Shantilal Shankarlal, (1968) Cri LJ 117
33. Mahesh Patel v. State of Chattisgarh, Crl App No. 01/2005
34. Krishna Chandra Patra v. Tanu Patra, 11 (1992) DMC 20
35. Sandwip Roy v Sudarshan Chakraborty, 2007 (98) DRJ 109
36. Santosh Baksi v State of Punjab and Ors, Crl Misc. No. M-1834 of 2010
37. Indra Sharma v. V.K.V Sharam, Crl App No 2009 0f 2013
38. Lawrence v. State of Texas, 539 U.S. 558 (2003).
39. M.Palani v. Meenakshi, AIR 2008 Mad 162.
40. Pinakin Mahipatray Rawal v. State of Gujarat, Crl. App No.811 of 2004
41. Saraswathy v. Bahu, Crl. App No. 1999 of 2013
42. Deoki Panjhiyara v. Shashi Bhushan Narayan azad & Anr, AIR (2013) 2 SCC 137
43. D. Velusamy v. D. Patchaiammal, Crl. App No. 2028-2029 of 2010
44. Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756

vii
 TABLE OF CONTENT

S. No Title Page No.

Declaration by the Candidate i
Certificate of Supervisor ii
Acknowledgment iii
List of Acronyms and Abbreviations iv
List of Statutes v
List of Cases vi
CHAPTER 1 INTRODUCTION 1-17
1.1 EVOLUTION OF FEMINIST 3-5
JURISPRUDENCE
1.2 SCHOOLS OF FEMINIST 5-7
JURISPRUDENTIAL THOUGHT
1.3 FEMINIST CRIMINOLOGY 7-11
1.4 WHAT WAS THE NEED TO HAVE 11-12
SPECIAL PROVISIONS FOR WOMEN IN
THE INDIAN CRIMINAL SYSTEM
1.5 REVIEW OF LITERATURE 12-14
1.6 SCOPE OF STUDY 14
1.7 STATEMENT OF PROBLEM 14-15
1.8 OBJECTIVES 15
1.9 RESEARCH QUESTIONS 15
1.10 HYPOTHESIS 15-16
1.11 RESEARCH METHODOLOGY 16
1.12 CHAPTERIZATION 16-17

CHAPTER 2 RAPE – A MISERY OR MACHETE 18-39

2.1 CONCEPT OF RAPE 18

2.2 FEMINIST OUTLOOK 18-20

2.3 RECENT RUN 20-22

2.4 DIFFERENCE BETWEEN RAPE AND 23-35
CONSENSUAL SEX

2.5 REASONS FOR LODGING FALSE 35-39

COMPLAINTS

CHAPTER 3 DOMESTIC VIOLENCE – 40-58

PROTECTION FROM WOMEN

3.1 CHILDREN AND DOMESTIC VIOLENCE 40-42

3.2 PREVALENT STEREOTYPE 43-44

3.3 LEGAL STRUCTURE 44-47

3.4 SHIFT IN PERSPECTIVE 47

3.5 TWO- WAY ARGUMENTS 47-50

3.6 LAW COMMISSIONS OF INDIA 51-52
RECOMMENDATIONS
3.7 JUDICIAL DECISIONS 52-58
CHAPTER 4 ADULTERY- AN OFFENCE WITH 59-79
WOMEN OR MEN
4.1 MEANING 59-60
4.2 SEXUALITY IN FEMINISM 60-62
4.3 ADULTERY- A REASON FOR 62-65
MANSLAUGHTER
4.4 QUESTIONING THE PROVISION’S 65-67
RELEVANCE
4.5 FROM ‘ROOT’ TO ‘RECENT’ 68-70
4.6 JUDICIAL DECISIONS 70-75

4.7 DEEPER DISCUSSION 75-78

4.8 WOMEN CENTRIC VISION 78-79

CHAPTER 5 CONCLUSION AND SUGGESTION 80-84

BIBLIOGRAPHY 85-89
 CHAPTER 1
INTRODUCTION

There is continually something both hazardous and valid in asserting that women are
particularly helpless. The claim can be interpreted as meaning that women have a
perpetual and characterizing weakness and vulnerability, and that sort of contention
presents the defense for paternalistic insurance. In the event that women are
particularly defenseless, then they look for assurance, and it turns into the duty of the
state or other fatherly forces to give that security. On the model, feminist activism not
just petitions fatherly expert for special allotments and assurances, however certifies
that disparity of energy arranges women in a weak position and, by suggestion, men
in an all the more intense one, or it contributes state structures with the obligation
regarding encouraging the accomplishment of feminist objectives.

Feminist reasoning of law recognizes the inevitable effect of patriarchy on legitimate

structures, demonstrates its results for the material condition of ladies and young
women, and makes changes to right sexual orientation shamefulness, mishandle, or
control. To these terminations, women's activist rationale of law applies bits of
learning from women's activist epistemology, social supernatural quality, women's
activist political speculation, and distinctive headways in women's activist lobbyist
hypothesis to perceive how legal foundations maintain winning masculinist models.
Contemporary women's activist extremist thinking of law in like manner draws from
varying scholastic perspectives, for instance, worldwide human rights theory,
postcolonial speculation, fundamental legal surveys, essential race speculation,
capricious theory, and impair ponders.

If we locate this pervasive wave of feminism in Indian legal System then it can be
seen most prominently in the provisions of rape, domestic violence and adultery. In
these provisions the Law have provided enough powers to the women so that she
could not be denied justice. However, these women are misusing the provisions once
made for their protection.

The social establishment in which we live have remodeled to such an extent that
criminality amongst women have achieved a higher stand in society and certainly

1
have become influential but with respect to law is still where it was in olden times.
The repeatedly misuse of legal protection can lead to new legal terrorism. So there is
need to change law relating to women. It is not fair to pre-establish that domestic
violence happens to wife only.1

While making special laws for women, the legislators must consider the plight of the
exploited and victimized faction of the society, which are men. Laws like, Indian
Penal Code section 498-A and Domestic Violence Act, 2005 have considerable
number of provisions to coerce men and terrorize their families. The ramification of
these laws is unwarranted power in the hands of women for blackmail and extortion in
domestic disputes, which incorrigibly damages the life of husbands and their relatives
and sometimes also becomes the reasons for their death.

However, there is no security of men in Domestic Violence Act, 2005, there is no

provision like such for men, where if they get tortured or mentally harassed by their
wives they can have recourse of law under any specified provision allotted for their
safety. Comparatively, offending women and police officers exploit the specific laws
made intentionally to safeguard the women’s rights and interests. The cry of
victimized husbands and their relatives is not heard either in courts or in society. The
practice says that real purpose of the women – related specifies laws are misused and
thereby husbands suffer for no fault.

From the standpoint of women’s rights and feminist growth and achievement Section
498 A of the Indian Penal Code has been substantially baffled. The sole motives of
social welfare and gender justice gets sidelined in the rapid use and heavy misuse of
the provision. The arbitrary arrest of mother-in-law and sister-in-law in the name of
cruelty under this section has proved that to protect one woman it has put in danger
and made vulnerable two more women.

In another scenario, According to Delhi High Court, some women who develop
consensual physical association with their mates and after the separation record false
rape cases to compel them to wed them. The rape law was regularly abused by ladies
as weapon for "retribution and quarrel" to hassle and coercion their male companions
by recording false cases to extort money and to force them to wed them.
1
Ajay Kumar Singh, “Dowry Problem in India: Rethinking Anti- Dowry Laws” Cri. LJ, Sept p. 256,
(2009)

2
According to Justice Kailash Gambhir –Due to shock of being denied marriage and
for disappointment, they tend to change such consensual sex as an occurrence of
assault, nullifying the very intent of the provision.

There is a reasonable difference between rape and consensual sex and in situations
where such debates are included, the court should circumspectly look at the reasons of
both the individuals included and to check if even the girl, then again, is real or had
malafide intentions.

In another scenario, if we see the culpability of women in the offence of adultery, it is

completely zero. To this the Supreme Court bench criticized Section 497 for the
offence of adultery. Hence, making the women completely immune from the charges
demonstrating a solid sexual orientation predisposition for it makes the position of a
married woman nearly as a property of her significant other. Yet, as far as the law the
way things are, it is apparent from a plain perusal of the provision that only a man can
be proceeded against and incarcerated for the offence of adultery. Subsequently,
making the women totally invulnerable and safe from the charges.

The focus is –

 Not to preserve the sanctity of the institution of marriage but to provide such
protective shield to those innocent husbands and their family members who are
suffering from the harassment and cruelty of their insensitive wives.

 Not to see the genuine cases of rape from the lens of suspicion but to cater to
those segments of men who get falsely implicated in the cocked up story of rape.

 Not to put legal shield on the liability of women in adulterous relationship but to
question that protection granted by the law.

1.1 EVOLUTION OF FEMINIST JURISPRUDENCE

The debate regarding the status of women is not of recent importance but dates back
to the Ancient Greeks. Plato 2 and Aristotle3 both sought to analyze the actual and
appropriate role of women in society and from their writings may be discerned many

2C 427-347 BC
3
384-322 BC

3
of the ideas, which continue to exercise feminist scholarship. 4 During the time of
ancient Greeks, there was remarkably a distinction between the public and private
sphere, wherein the women are allotted the private sphere, the concept of patriarchy;
the power over women and the considerations of equality.

It is in the eighteenth, nineteenth and the early twentieth century that the campaigns of
feminism started flourishing for the elimination of discriminatory laws, which
prevented women from participating fully in civic life, which mark the origins of
contemporary feminist thought.5

In 1949, Simone de Beauvoir’s seminal work, The Second Sex, was published6 and the
movement rejuvenated. Simone de Beauvoir’s work still forms a foundation for much
feminist analysis and a focus for differing approaches to the question of gender and its
significance. The focal point of de Beauvoir’s work is that of woman being the
‘Other’ (sex), i.e. the construction of society, of language, thought, religion and of the
family all rests on the assumption that the world is male. Hence, the construction of
woman is social rather than biological.7

Feminist legal scholarship is frequently presented as having differing phases or

waves, although none of these is totally distinct or isolated from other phases.8

The first phase as Ngaire Naffine has written can be characterized by its concern with
the male monopoly of law. 9 The feminists in this phase started questioning the
inequalities posing the never - ending struggle of women of equal opportunities in
employment and profession without actually questioning the system itself. This phase
idealized the law as traditional, gender- neutral, rational, which, is applied in a
unbiased manner to each and everyone. Hence, the objections were voiced against not
law per se but against ‘bad’ law: law, which operated to the exclusion or detriment of
women.10

4
Subjected to feminist analysis, however, both Plato and Aristotle reveal a deep misogyny.
5
Hilaire Barnett, Introduction To Feminist Jurisprudence, 1988
6
De Beauvoir, S, The Second Sex (1949), Parshley, H (ed and trans), 1989, London: Picador in Hilaire
Barnett, Introduction to Feminist Jurisprudence, 1988
7
Hilaire Barnett, Introduction To Feminist Jurisprudence, 1988
8
Ibid at p5.
9
Op cit, Naffine, fn 12,p12 in Hilarie Barnett, Introduction to Feminist Jurisprudence, 1988
10
See, eg, on the male monopoly of law and the legal professions, Sachs, A and Hoff Wilson, J,
Sexism and the Law, 1978, Oxford: Martin Roberston; Atkins, S and Hoggett, B, Women and the Law,
1984, Oxford: Basil Blackwell.

4
The second phase feminism, which started during late 70’s and 80’s, did not address
the legal and substantial inequalities between a man and a woman but attacks the
social construct, which allows such inequalities to grow. According to it, the root
problem with law lies in its pretended impartiality, objectivity and rationality. By
assuming the gender- neutral language, law masks the extent to which law is
permeated by male constructs, male standards. The ‘reasonable man’ so beloved by
the common law, does not include women. If women are to be ‘reasonable’, within
the legal meaning of the term, they must adopt the male standard of reasonableness.11

The third phase, advocates that it is fact that law is deeply gendered, but this does not
mean that law operates consistently, inevitably, or uniformly to promote male
interests. What needs to be understood from this perspective that the manner in which
law responds to differing problems, and in its operation reveals its well-conceived
gender bias. Hence, it rejects the ‘grand theories’ portrayed by the second phase
feminism.12

The dominant current phase of feminist philosophy thought reflects both the rejection
of ‘grand theory’ and the uncertainties and doubts concerning the role of law. Arising
out of the late 1980s and continuing through the 1990s, feminists adopt postmodernist
philosophy, which questions all ‘meta-narratives’ and denies the validity of global
explanations.13

1.2 SCHOOLS OF FEMINIST JURISDPRUDENTIAL THOUGHT

A.LIBERALISM

The key values of liberal thought are rationality, individuality, equality, liberty from
interference from others or the State unless justified and the protection of the private
sphere of life which is deemed to be ‘not the State interest’. Henceforth, the powers of
the State must thus be constrained under the rule of law. Moreover, equality between
persons is also critical to the realization of a liberal democratic state; hence, no
individual should be privileged in a manner, which delimits the equality and freedom

11
Hilaire Barnett, Introduction To Feminist Jurisprudence, 1988 at p 6.
12
ibid
13
ibid

5
of others.14 According to it, women are as equal as men and should be allowed to
compete in the marketplace. What liberal feminists, from Mary Wollstonecraft
onwards, have sought to achieve is the elimination of practices and laws which
effectively deny women access to the ‘public sphere’ of life and relegate women to
the ‘private sphere’ of the home and the family.15

B.CULTURAL FEMINISM

The cultural feminist such as Nancy Chodorow and educational psychologist Carol
Gilligan through their psych analysis research found that there is perceived
differences between men and women and emphasizes and celebrated this difference.
The goal of this school is to give equal recognition to women's moral voice of caring
and communal values.

C. RADICAL FEMINISM

It asserts that men, as a class, have dominated women as a class, creating gender
inequality.16 For radical feminists gender is a question of power. Radical feminism, by
contrast, adopts as its organizing focus the problem of the universal dominance of
men over women, and women’s correlative subordination to men. Women’s sexuality
lies at the heart of the radical feminist debate. Thus, radical feminists analyze the
means by which men’s sexuality is expressed in forms, which result in women’s
inequality. Radical feminism, therefore, unlike liberal feminism, does not accept that
equality will be achieved for women provided the legal inequalities and disabilities
are removed from law. Rather than concentrating on specific legal inequalities radical
feminism challenges the core structure of society and law by focusing on its
17
patriarchal culture and mores. This feminist school is based on the Catherine
Mackinnon’s issue of male power and dominance. It is because that, women are
economically vulnerable that gives more power to the male dominance in the society
and hence the unequal position of the women in the society is encouraged.

14
Hilaire Barnett, Introduction To Feminist Jurisprudence, 1988 at p 121
15
ibid
16
Mary Becker, Patriarchy and Inequality: Towards A Substantive Feminism, University of Chicago
Legal Forum, 1999.
17
Hilaire Barnett, Introduction To Feminist Jurisprudence, 1988

6
D. POSTMODERNIST

At some indefinable point in time in the late 1960s the postmodern age was born.
Postmodernism seeks to dismantle the ‘meta-narratives’ of modernity, to disrupt the
foundations of now conventional, comforting certainties and to expose the lack of
rationality and coherence in grand theory. 18 Postmodern feminism questions the
existence of every other feminist approach that has been in existence because these
previous theories universalize women. With this universalization they donot consider
the number and various levels of interconnections that women go through. They use
discourse on the subject of law and deconstruction as two vital means to question the
existing feminist theories. They work on the theory of not having a theory in the first
place.

1.3 FEMINIST CRIMINOLOGY

Most feminist criminology involves commentary about how women offenders have
been overlooked, twisted, or stereotyped within traditional criminology, yet there is
no lack of isolated speculations and changes of existing hypotheses. Essentially, all
women criminologists or criminologists of women who scrutinize gender and crime
have addressed the "gender ratio" problem (why women are less likely, and men more
likely, to commit crime). Others study the generalizability problem (whether
traditional male theories can modified to explain female offending). Most feminists
are instantaneous to ascertain where stereotypical thinking and theoretical dead ends
stand,in spite of the fact that the fundamental issue griped about in most criminology
is the straightforward truth that sexual orientation matters and ought not be
disregarded.19

However, various scholars from different walks of experience tried to conceptualize

the criminality among women like Sigmund Freud theory says that the women have
some sort of inferiority complex and hence they loathe penis as it related with men.
The understanding of women is concerned with her and gets stuck in the trivial
matters, which does not do any good to the human progress. For Freud, women do not

18
ibid
19
Feminist Criminology and Integrated Theory, available at www.legalservicesindia.com

7
have any sense of equity in them. This is clearly his portrayal of female offenders,
which feminists reject.20

There is another characterization done by Cesare Lombroso in 1903 published The

Female Offender who designated the female criminals as per their power of enduring
the pain and their physicality. For him, a dark-skinned female, with facial hair or a
moustache will be conceptualized as a criminal. Also, he noted that because of the
psychological strength women have, they can take the pain more easily than the men
and hence the prisons and treatment done there in will hardly have any effect on them.
Feminists also reject such conceptualization of female offenders.21

An interesting observation has been made by W. I. Thomas in 1923 published The

Unadjusted Girl, which put forth a different perspective to the understanding of the
female offenders. According to him, in the monogamous relationship the men control
the women’s sexuality and hence to suppress the sexual desires, the women do crime
and through the criminal acts, they get pleasure and adventure through which that
sexual desire gets released. The feminists also reject this notion.22

The categorization of female offenders according to what profession they are in is

done by Otto Pollak in 1950 published The Criminality of Women. Women who are
maids, nurses, etc. suffer from a mental disease like kleptomania and nymphomania
and hence it becomes convenient for them to indulge into criminal acts. The feminists
also rejected this understanding of female offenders as well.23

There are two conception of feminist criminology, which is as follows-

A.PATRIARCHAL CONCEPTION OF FEMINIST CRIMINOLOGY

There have been theories regarding the female offenders from the masculinist
theorists as well. Thrasher, a leading exponent of social disorganization theory,
postulated that women committed less crime because they are under the
protective eye of the boys and men they are associated with.24

20
ibid
21
ibid
22
ibid
23
ibid
24
ibid

8
This conceptualization gave birth to the power-control theory by Hagan, Simpson &
Gills (1987) that advocated that there is a distinction in delinquency because of the
demarcation of gender and its presumptive roles in the family.25

However, the major disagreement of the feminist of these theories involves the
absence of qualitative, case-study research on the lives of women themselves.
Moreover, the feminists critique the Strain theory, which proposes that if a ‘man’
commits the crime it is sign of ‘strength’ and ‘endurance’. On the contrary, if a
‘woman’ commits a crime it is taken as ‘abnormal’ and ‘weakness’. Feminists
disapprove this theory by examining its double standards.

Control theories, such as Travis Hirschi’s social bond theory, are primarily criticized
by feminists for focusing almost exclusively on social class at the expense of gender
and race. Feminists tend to focus on gender, and the interaction of gender and race
(women of color) as obdurate, hardened, near-group characteristics that have about
the same causative influence as class.26

B.FEMINIST CONCEPTION OF FEMALE OFFENDERS

In 1975, two books, Freda Adler's Sisters in Crime and Rita Simon's Women and
Crime proposed that the emancipation of women and increased economic
opportunities for women allowed women to be as crime-prone as men. What Simon
wrote and predicted about women offenders at that time can be seen as its relevance
in today’s criminal records, that the time is not far when the criminal justice system
will treat both men and women as equal offenders in crime.27

However, there remains a confusion and suspicion on the validity of the empirical
evidence taken on this regard. There are some findings which say that the women are
not indulged in the white collar crimes such as fraud in stock rather they are involved
in entirely contrasting crime in the nineteenth century like poisoning. Also, there are
divergent views of the empirical research on the manner of giving sentence. In some
ways, the system is more lenient; in other ways, it comes down more harshly. Sex

25
ibid
26
ibid
27
ibid

9
differentials in sentencing are subject to a variety of interpretations, and not all
feminists want the criminal justice system to treat women equally.28

From the outset, feminist scholarship was very much concerned with praxis, or the
interrelationship between theory and practice. The point is illustrated by the ongoing
attempts by feminists to draw attention to and disrupt the philosophical and political
separation between public and private life. Indeed, one of the early aphorisms of the
feminist movement was: “The personal is the political”, which suggested that
everything that occurred in the home and had been formerly occluded by the carapace
of the private should be a matter of public concern. The feminist gaze on the private
sphere has permitted not just a critique of family law and domestic violence, but it has
also enabled the exploration of the symbiotic relationship between private and public
spheres, that is, the ways in which women’s responsibility for children, the sick and
the elderly, as well as their responsibility for housework, has facilitated the
participation of men in paid work, in civil society, and public life. While law is less
overtly hostile than in the past, the legal academy has continued to be resistant to
feminist scholarship because it challenges the well-entrenched liberal myths that the
legal person is genderless, that one’s life course is determined by personal choice, and
that law has universal applicability. The correlative myths of law’s neutrality,
objectivity and non - partisanship are also deep-seated and, indeed, central to
cherished legal concepts such as the rule of law and equality before the law. The
ideological role of law in maintaining social cohesion and transmitting dominant
values has been deeply destabilized by the subversive nature of feminist scholars. 29

If we analyze the feminist theory or give a critique to such theory, we have to put
attention to the focal point of these movements, which is ‘Woman’. “Woman” is a
troublesome term, in feminism and in law.30 The category is neither consistently nor

28
ibid
29Margaret Thronton, the development of the feminist jurisprudence: illusion or Reality Austl. JL &
Society, 1986
30 Judith Butler recently made a similar observation, see Judith Butler, Gender Trouble vii-ix, 2-3
(1990), but it has been at the core of much feminist theory throughout this century. Virginia Woolf
commented on the troubling nature of woman as reflected in the interest men have shown in defining
her, making her “the most discussed animal in the universe.” Virginia Woolfe, A Room Of One’s Own
39 (1931). Similarly, two decades later, Simone de Beauvoir asked, “What is a woman?” and
proceeded to explain the trouble created by any particular answer to that question. Simone De
Beauvoir, The Second Sex xv-xvi (1953). Feminists more recently have suggested that to ask the
question “What is a woman?” is itself to invite trouble.

10
coherently constituted in linguistic, historical, or legal contexts. Yet the frameworks
through which women have sought and gained improvements in their legal, economic,
and social status depends upon the ascription of the meaning of the term. 31 Both the
Supreme Court’s jurisprudence of gender and feminist legal theory has generally
assumed that some identifiable and describable category of woman exists prior to the
construction of legal categories.32 For feminism, her existence has served a different
but equally important purpose as the subject for whom the political goals are
pursued.33

Despite such differences, both the Supreme Court and its feminist critics have largely
treated the analysis of gender categories as a problem of accuracy. For the Court, the
validity of gender classifications depends upon their correspondence to a set of
gendered norms that the Court accepts as true or real or in some sense independent of
legal categories.34 The response of feminist legal theorists to this analysis has been
either to challenge the Court’s conclusions about the accuracy of the correspondence35
or more recently, to challenge the set of norms against which the gender categories
are measured. 36 Neither response displaces the Court’s basic construction of the
problem as one of the assessing the accuracy of a particular account of gender
difference. 37

1.4 WHAT WAS THE NEED TO HAVE SPECIAL PROVISIONS

FOR WOMEN IN THE INDIAN CRIMINAL SYSTEM

Over the most recent 68 years of independence, if there is one concern, which has
been the subject of much verbal confrontation and has continually enveloped the legal
personality it is the requirements, requests, interests and the privileges of women in
India.
31
Tracy E. Higgins, “By Reason Of Their Sex”: Feminist Theory, Postmodernism, And Justice,80
Cornell L. Rev. 1536 1994-1995
32
Ibid
33
ibid
34
ibid
35
See, e.g., Wendy W. Williams, Equality's Riddle: Pregnancy and the Equal Treatment/ Special
Treatment Debate, 13 N.Y.U. Rev. L. & Soc. Change 325(1984-85) (challenging the Court's treatment
of pregnancy as gender difference and arguing that pregnancy should be understood in a gender-
neutral, functional way).
36
See, e.g., Catharine A. MacKinnon, Feminism: Discourses on Life and Law 32-45 (1987) (noting the
way in which discrimination doctrine "[conceals the substantive way in which man has become the
measure of all things").
37
Supra note 20 at 1538

11
The criminal framework is displayed and communicated at times as though it is an
arrangement of rules and principles. The purpose for planning a criminal procedure
code in a society is to punish the wrongdoer through recommending a procedure in
which he/she can be prosecuted. The act was enacted in 1973 and came into force on
1 April 1974. It provides the machinery for the inspection an examination of crime,
apprehension of suspected criminals, amassing of evidence, assurance of guilt or
innocence of the accused person and to determine of punishment of the guilty.

As the society steps towards growth and development it carries with it certain vices
too. The rampant cases of ill treatment towards women at large is an example of such
a growth, however the atrocities and crimes against women are not new and they are
happening for such a long time and the history has secretly wrapped this fact all in its
arms. However, the question remains that is the criminal law necessary at all? It has
been suggested from time to time that law in general and criminal laws in particular
are needed only in conflict ridden societies, and that the establishment of a political
system based on consensus would remove the sources of crime and, therefore, the
phenomenon itself. This view may be attacked for its simplistic assessment of the
causes of crime, but it is sufficient for present purposes to state that no modern
industrially developed country seems able to dispense with criminal law, and indeed,
that occasional instances of the breakdown of policing have led to increases in certain
forms of criminal behavior. Thus, so far its provisions are prosecuted with certain
regularity, it establishes a standing disincentive to crime and bolster those inhibitions
and social conventions that are already in place. In other words, it can be stated that
the aim of criminal sanctions is to produce and distribute protection to potential
victims.

Hence, the explanation and rationalization for criminal law and punishment must be
hunted in two magnitudes, i.e., - as a justifiable counter to culpable wrongdoing, and
as an indispensable institution to dampen such wrongdoing.

1.5 REVIEW OF LITERATURE

The matter is that feminist crusade against atrocities against women have been
organized since the late 1970s in India. In the primeval organized interferences,
custodial rape, police barbarities and problem of law and order were addressed

12
alongside dowry deaths and bride burnings. Journalists, lawyers, civil liberties groups,
political parties and women’s groups made an assemblage together. They could
politicize the issue through their radical addressing of family, convention and culture,
in area gathering, in protest marches, battles, demonstrations, activating what has
been called as an 'public chain response' (Gandhi and Shah:1992; Datar:1993). They
identified that brutality and cruelty against women was neither an individual nor a
private affair, on the contrary it needed public and State responsiveness. The
intertwining of gender based cruelty with caste, religion and other structural
vulnerabilities was consummated and highlighted from the beginning (Kannibaran &
Menon: 2007).

Insistence for legislative response, alterations in laws and criminal procedures, and
the awareness and sharpening of police and judiciary, formed the most prominent part
of the feminist strategy. A succession of amendments to the law, between 1980-1989,
showed how powerful this advocacy was at the time. Feminist commitment with the
issue also led to the formulation of women support cells, feminist counseling cells,
alternative and temporary shelters and legal aid cells. Advocates of feminist school of
thought led direct action against batters, abusers and rapists using the potential
influence of the community to name and shame them. Some very ingenious
community based interferences have been driven by unique women grassroots
activists who attempted to address familial brutality and road viciousness through
group work and work with men, concentrating on boundless absence of training,
liquor addiction, early marriage, monetary reliance and ladies' feebleness in group
basic leadership (Mitra, 2001).

This work broadened the feminist understanding of the convoluted and complex
interrelations of violence, patriarchy and power. Therefore, one of the persistent
feminist strategies has been to unceasingly press for a change in the limited legal
definitions of violence against women so as to undisputedly address women’s lived
realities and vulnerabilities. The needed legal changes looked for did not generally
convert into enactments and there were numerous loopholes in the revised laws
(Agnes: 1992).

The Courts, however, have shown a revolutionary outlook in holding that registering
of false cases under the garb of women empowering laws as a ground of divorce

13
because doing so administers psychic pain and mental misery to the husband and his
family has to experience through unnecessary harassment and torture in the hands of
police (P.K. Das, 2008).

There has been research done by the scholars, which talks about women as a subject
and the issues they dealt with in the past and during their journey of emancipation in
the movement of feminism, thus seeing women as a victim of history. However, the
research will focus on the much-celebrated feminist conception of sex, violence and
vulnerability by critiquing this view. Moreover, there has been a vaccum in the
understanding of making appropriate legal changes for the sake of women and they
abusing them for the interests best suited to them. Hence, it will try to look at the
selected women- empowering provisions and assessing it from the critical lens.

1.6 SCOPE OF STUDY

The area of research is surrounded around the critique of the women- empowering
provisions in the legal apparatus by taking into consideration particularly three
aspects, i.e., rape, domestic violence and adultery. The research will try to see these
facets from the critical eye by critiquing the feminist viewpoint in general.

1.7 STATEMENT OF PROBLEM

With the rampant increase of the crimes against the women emerges the ever-steep
growth in the making of laws, which safeguard the women’s dignity and protect her
statement as a victim from any sort of oppression, alteration and suppression. This
mechanism of increasing legal protection to women has the influential backing from
the global women’s movement, with its campaigners and activists shouting for the
empowerment of women’s rights and adequate safety net provided by the state.
However, with this development of women-centric laws, comes a vice too. Females
are misusing the provisions of law according to their whims and fancies. Nowadays,
rather the men are seen as the real victims of crime than the females. This research is
trying to focus at the loophole of the legislation for not making any law to prosecute
the women when they mould the law according to their wishes by playing the victim
card. To examine the causes and reasons, which resulted into cruelty and torture to
men in the hands of women. The research has tried to infer from the judicial decisions

14
the reason behind such immunization. At long last, the exploration has fundamentally
seen the requirement for the acknowledgment of male exploitation and made
suggestions to keep an legal eye on the functioning of the police authorities and in
addition a need to enhance the adversarial lawful framework in India.

1.8 OBJECTIVES

 To critically evaluate the provisions meant for protection of women in the areas of
rape, domestic violence and adultery

 To examine the evolution of feminist movement in general and particularly in

India.

 To analyze the case laws, where it is put forward that even men are largely
victimized at the hands of women.

1.9 RESEARCH QUESTIONS

1. What is the historical background, which led to the evolution of women centric
laws in the criminal justice system?

2. What are the various schools of feminism say and under which feminist school
does the present criminal justice system falls.

3. Whether the laws of rape, domestic violence and adultery, which were constructed
for the protection of women, are getting misused in the hands of the women only.

4. Whether various judicial pronouncements by the Apex Court and various High
Courts address such misuse

5. Whether legislature should come up with a mechanism to find a solution to this

problem.

1.10 HYPOTHESIS

With the era of liberalization and urbanization ushered in, there is upliftment of the
status of women in the society and the legal structure. The rampant increase in the rate
of crime done on women all over the world pushed the legal structure of the countries
to provide for such provisions in law, which protects women from any atrocities at the

15
hands of men and to put fear among the males that they think twice before doing any
injustice to the women. Nevertheless, with the increasing women empowerment
provisions in the criminal law, women has been placed in an advantageous position as
compare to their counterparts, which sometimes leads to male victimization by them
under the garb of their legal safety net. There is probably this mental attitude among
the women that in these offences like rape , domestic violence and adultery, if men
will be arrested they won’t be able to easily to get out of the legal shackles and hence
gives the women an upper hand over them to use this provisions to the contrary of its
objective.

1.11 RESEARCH METHODOLOGY

The aim of the research paper is to critique the feminist perspective of the criminal
justice system and understand the strength and weakness of the present legal system,
by way of doctrinal research. The purpose of the research is to question the celebrated
notion of feminism within the legal sphere. The intent is to forward recommendations
to solidify the prohibition on misusing the provision of law and also to pinpoint the
areas of law from where the existence of women is understated and at times not
provided enough tools to channelize her relief through the process of law. The sources
of information comprises of detailed analysis of the statutes and its relevant
provisions, scholarly articles, journals, books, case laws, etc. the mode of writing is
descriptive and analytical with a uniform mode of citation.

1.12 CHAPTERIZATION

Chapter 1 provides the introduction to the research paper. It outlines the history of the
evolution of the feminist perspective globally and what led to its birth in the Indian
criminal justice system.

Chapter 2 deals with the issue of rape and how the Indian Legal System blindly
follows the feminist perspective. It unfolds the situation where the women use this as
a weapon to make the men succumbs to their demands.

Chapter 3 deals with the provision of domestic violence laws in India and how the
women are using not to address their issues but to wrongly implicate the husband and
in-laws.

16
Chapter 4 deals with the implementation of the section of adultery and questions the
absence of liability women as an abettor and consequently finds the whole
construction of the provision questionable.

Chapter 5 is the concluding chapter; it caters to the prohibition of misuse of the law
by those for whom it got constructed. Here I assess the study done in the above
chapters, seeking to assert that feminist perspective of the criminal dispensation
system needs to be modified to accommodate the contemporary threats and provides
for certain suggestions which will be useful to mend the present situation.

17
 CHAPTER 2

RAPE – A MISERY OR MACHETE

2.1 CONCEPT OF RAPE

In this contemporary time, rape has developed as a topic of promoting research and
sensitization among feminists, in both popular and scholarly journals. But much of the
feminists’ writings are not focused on an understanding and analysis of the law of
rape, and some that is so focused is not enthusiastically found in the criminal law.
Parallel to it, barring some recent articles, much of the writing about rape in the
conventional criminal law literature, does little more than reflect the condescension
and misunderstanding, if not absolute bitterness to women who have made rape a
paramount part of the feminist agenda.

The feminists have basically provoked by the traditional understanding of rape which
sees it as an offence against the victim herself. Women, for much of the recorded
history, were regarded as the property of the husband, hence a kind of ‘value’ is
attached to them which gets measurable widely by their sexual ‘purity’. In this
context, rape is considered as a crime of the property against a women’s husband or
father (Burgess- Jackson, 1996)1

To review rape within the criminal law tradition is to disclose completely the sexism
of the law. Much that is unusual about the crime of rape and informative about the
sexism of the system appears only when rape is tested in relation to other crimes,
which the feminist literature on the whole does not do so.2

2.2 FEMINIST OUTLOOK

It may seem a little odd to suggest that feminist theory has overlooked men. In
varying ways, liberal feminism, difference theory, dominance theory, and postmodern
feminism have analyzed, objectified, vilified, and deconstructed men as a population,
male as a gender and constellation of role expectations and typical behaviors, and men
as historical crafters of doctrine, theory, and language. Yet, in several important
1
Feminists Perspectives on Rape, Stanford Encyclopedia of Philosophy, 2013
2
Kate E. Bolch, A Rape law Pedagogy, Volume VI, 1995

18
respects, apart from the crucial role of culprit, men have been largely omitted from
feminism.3

Inquiry in feminist legal theory has concentrated rather on the questions of feminist
ideology, epistemology, and political philosophy. Theories in disciplines other than
law have demonstrated significantly more interest in constructs of masculinity. 4
Perhaps, most importantly, though, men have been omitted as participants in the
reconstructive project.5

Over the course of the development of equal treatment theory, special treatment
theory, radical feminism, and postmodern feminism, men have been treated as objects
of analysis, as “other”, as oppressors.6 The model of formal equality was reinforced
by court decisions. The significant number of the more prominent early cases seeking
equal treatment for women was constructed as challenges to gender classifications
that burdened men, thereby stigmatizing women as incapable of shouldering those
same burdens.7 Often these cases involved strategic choices on the part of feminists to
attack gender-based classifications using male plaintiffs.8 Thus, it becomes clear from

3
Nancy Levit, Feminism For Men: Legal Ideology And The Construction of Maleness, 43 UCLAL.
Rev.1037 1995-1996.
4
See, e.g., Eugene R, August, Men’s Studies: A selected and Annotated Inter- Disciplinary Bibliography
(1985); Arthur Brittain, Masculinity And Power (1989); Kenneth Clatterbaugh, Contemporary
Perspectives On Masculinity: Men. Women, And Politics In Modern Society (1990); Willaim G. Doty,
Myths Of Masculinity (1993); David D. Gilmore, Manhood In The Making: Cultural Concepts Of
Masculinity (1990); The Making Of Masculinities: The New Men’s Studies (Harry Brod ed., 1987); The
Masculine Masquerade: Masculinity, And The Media (Steve Craig ed., 1992); Victor J. Seindler
Rediscovering Masculinity: Reason, Language And Sexuality (1989).
5
R.W. Connell, Men and the Women's Movement, SOC. POL'Y, Summer 1993, at 72, 73.
6
Nancy Levit, Feminism For Men: Legal Ideology And The Construction Of Maleness, $3 UCLA L.
Rev. 1037 1995-1996, at 1039-1040.
7
See, e,g., Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (sustaining challenge of male
plaintiffs that exclusion of men from state school's nursing program violates Equal Protection Clause);
Craig v. Boren, 429 U.S. 190 (1976) (rejecting an Oklahoma statute that set the minimum age for drinking
3.2%beer at 18 for females and at 21 for males); Weinberger v. Weinburger, 420 U.S. 636 (1975)
(holding unconstitutional a Social Security Act provision that granted survivor's benefits to a widow but
not a widower); Frontiero v. Richardson, 411 U.S. 677 (1973) (striking a statute that required female
service members to prove the dependency of their spouses while dependency was presumed for spouses
of male service members). But see Rostker v. Goldberg, 453 U.S. 57(1981); Michael M. v. Superior
Court, 450 U.S. 464 (1981) (upholding statutory rape provisions that created criminal penalties for males
but not for females).
8
See David Cole, Strategies of Difference: Litigating for Women's Rights in a Man's World, 2 Law &
Ineq. J. 33 (1984); Ruth B. Cowan, Women's Rights Through Litigation: An Examination of the
American Civil Liberties Union Women's Rights Project, 1971-1976, 8 Colum. Hum. Rts. L. Rev., 373
(Spring-Summer 1976). Yet some of these cases were pursued by men not as a part of the feminist cause,
but as what Professor Ann Scales has termed "interpretive competition." See Ann Scales, Feminist Legal
Method: Not So Scary, 2 UCLA WOMEN'S L.J. 1, 8 (1992) ("It is no accident that a majority of equal
protection sex discrimination cases decided by the Supreme Court have been brought bymen.").

19
such cases that the male plaintiffs were being used by women primarily and
influentially to advance women’s rights.

The litigation strategy did build a standard that was friendly in use to both the sexes in
the sense that it was gender-blind. Although the original dictate was gender-neutral, its
operation in some cases has not generated gender-neutral outcomes, rather has served to
bolster the traditional role expectations.

These early feminists like liberal feminists stressed on basic disparities in the way the
women are treated, and approached the settlement of those disparities from a hyperbole
of equality for women. 9

Moreover, the cultural feminists maintain that formal equality, particularly with regard
to issues involving reproduction and raising the child, denies important social and
biological differences between women and men. 10 According to it, equal treatment
theory will finally fail to arrive at gender equity because of elementary differences
between men and women.

2.3 RECENT RUN

In India, the criminal justice system is constructed in such a way to care little about
the evidence and lot about branding the male as criminal. Nobody talks about the
level of trauma and embarrassment such men go through. A steep dip in reputation in
society is felt and the loss of trust of the wife and children, especially young daughter.
Since the plight of a victim is sad in our state and the plight of a falsely implicated
male in sexual offences is even worse.

In rape cases, people are too quick to make their own judgments whether there is any
truth lies in it or not. One cannot go to each and everyone to prove his innocence and
hence the social status goes for a major toss.

Some of the men’s right campaigners, which is indeed few in numbers, argue that this
kind of attitude mostly stems from 2012 Delhi gang rape incident.11

9
See David Cole, Strategies of Difference: Litigating for Women's Rights in a Man's World, 2 Law &
Ineq. J. 33 (1984); Ruth B. Cowan, Women's Rights Through Litigation: An Examination of the
American Civil Liberties Union Women's Rights Project, 1971-1976, 8 Colum. Hum. Rts. L. Rev., 373
(Spring-Summer 1976).
10
See, e.g., Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 1 (1988).
11
www.nsvrc.org

20
However, there is no iota of a doubt that such brutal attacks of sexual violence
deserve that anger, protest and punishment that it received. The public at large came
unanimously on to the streets to demand sweeping changes in the patriarchal
structure, which is deeply engrained in India that resultantly encourages many men
out there to continue to have the courage to do the violence against women.12

Due to the high media coverage and attention this particular case enjoyed, there was a
change in the definition of rape, which widened the ambit to include all sorts of sexual
assault done to the women’s body, the investigative agency became more sensitized to
handle the complaints of rape more patiently and warmly and to speed up the
adjudication system, a specialized fast- track courts were set up so that the female
victims should be prevented from the secondary harm.13

At the backdrop of this came the report published by the Delhi Commission for
Women in 2014, which disclosed that 53% of the rape cases reported in the city in the
previous year were “false”. This resultantly triggered the debate of the men’s rights
campaigners that falsely implicated males by women are seldom seen inside the ambit
of the definition of victim.14

According to advocate Vinay Sharma, there is rather a miniscule part of in rape

charges, which are genuine, rest, and are either reported to take revenge or to gain
financial advantage from the person. Men’s activist Partha Sadhukhan shares the
similar viewpoint.15

For Rukmani Shrinivasan, the journalist, the maximum percentage of the rape cases
that used to get reported in Delhi in the year 2013 is young people who had engaged
in consensual sex outside marriage until their parents found out and used the criminal
justice system to end the relationship. According to Shrininvasan, the parents are bear
the stigma of rape on their daughter’s life but cannot bear the stigma of their daughter
making a choice to have sex with the partner of her choice.16

Out of 583 rape cases that got reported in Delhi in 2013, only 12 were the genuine
cases. These data shocks the conscience of the Indian justice system. The other way of

12
www.nsvrc.org
13
ibid
14
ibid
15
Preetika Rana, Q-A The Delhi Gang Rape Accused Vinay Sharma, The Wall Street Journal,July 29,2013
16
Rukmini S, The Many Shades of Rape Cases in Delhi, The Hindu, June 29,2014.

21
understanding this fact would be that Often times, law enforcement training on sexual
violence is inadequate and perpetuates misinformation about false reporting
(Archambault, 2005). Consequently, what may be typical behavior for a sexual assault
victim is commonly misperceived as being contrived, inconsistent or untrue. These
beliefs and biases help explain why the rate of false allegations tends to be inflated
and why many inaccurately believe false reports are commonplace.17

However, one needs to understand the difference between the false report and the
baseless report. A false report is a reported crime to a law enforcement agency that an
investigation factually proves never occurred.18

A baseless report is one in which it is determined that the incident does not meet the
elements of the crime, but is presumed truthful. 19

To talk about what actually triggers in the mind of the women to fall into the prey of
false reporting of the sexual offence, first we analyze how brutal and heinous the
crime is.

The greater part of the assault cases are mindfully well - wanted to satisfy
uncontrolled sexual desire and to fathom erotic celluloid pictures and dreams with a
solitary aim to command over women. In fact before submitting to real assault or 'date
assault', the inebriated psyche of the attacker experience many phases of practice.

Engaging in sexual relations with a young lady on the false promise of marriage and
later declining to tie the marital knot may add up to commission of assault, especially
when the kid from exceptionally beginning had no expectation of wedding the young
lady. We may term it as 'sexual misuse' on guarantee of marriage. Frequently young
men create physical relations on bogus guarantee of marriage and proceed till she
ends up conceiving. Some time it is extremely hard to prematurely abort and the
matter goes to the knowledge of family and neighbors. For the most part at that later
stage cases are filed against the people. Indian Courts have gone up against a few
times with the question "whether Sexual intercourse with any young lady on a bogus
'guarantee of marriage' is assent or not? If not Rape, is it "cheating" or not?

17
www.nsvrc.org
18
ibid.
19
ibid.

22
2.4 DIFFERENCE BETWEEN RAPE AND CONSENSUAL SEX

To make a distinction between a consensual sex and rape for some is very clear.
When two individuals with their consent enter into the physical relationship as
opposed to that where one’s will and consent is suppressed and forced upon by a
male. However, the demarcation is not that easy though. The poor girls, who get into
human trafficking, to feed their families on their flesh, are the most vulnerable section
because for them this distinction between what is consent and no consent does not
even exist.

Nevertheless, what we are going to focus on are those fraction of women who enter
into the physical relationship with a men with their own consent but when things does
not fall the way they wish it to they term the consented sexual experience as ‘Rape’.
Through the research we will try to find the various judicial pronouncements where
the Court has come to the rescue of the men when the women falsely implicate them.

Moreover, in the Uday v State of Karnataka, the Apex Court observed that there
couldn’t be an embargo or a straightjacket formula, which can be laid down in
assessing that the approval to have sex given by the female was voluntary or under a
confusion of actuality. Nonetheless, the following mentioned factors could be taken
into consideration-

a. Where a girl is of 19 years of age and she has reached at a sufficient level of
maturity to understand the significance and moral standing of the act she was
consenting to,

b. Where due to disagreement regarding the caste consideration, she was aware that
marriage will be difficult to happen,

c. Where it becomes challenging to put it to the appellant’s knowledge that the

prosecutrix consented to have sexual intercourse under the misconception of fact
stemming from the promise.

d. Where there is no clear evidence to prove that the appellant does not have the
required intention of entering into wedlock from the inception.20

20
Crl. Appeal No 336 of 1996

23
The following are some points, which disclose clearly what constitutes of rape and
what constitutes of consensual sex.

A. APPROVED SEX ON PRETEXT OF MARRIAGE IS PROMISCUITY

Due to increasing number of rape cases the Court’s were under an immense pressure
and responsibility to make it fair that when there is sex between the parties with a
mutual consent to the act and on the pretext of marriage the prosecutrix continue to
indulge in such an act then it is promiscuous and not being fooled by the accused. The
Calcutta High Court in Jayanti Rani Panda v. State of West Bengal & Anr, wherein
the accused was a teacher of the local village school and used to visit the residence of
the prosecutrix. One day during the time when the parents of the prosecutrix were
absent, he expressed his love for her and his desire to marry her. The prosecutrix was
also willing and the accused promised to marry her once he obtained the consent of
his parents. Acting on such assurance the prosecutrix started cohabiting with the
accused and this continued for several months during which period the accused spent
several nights with her. Eventually when she conceived and insisted that the marriage
should be performed as quickly as possible, the accused suggested an abortion and
agreed to marry her later. Since the proposal was not acceptable to the prosecutrix, the
accused disowned the promise and stopped visiting her house. It was held that “if a
fully grown up girl consents to the act of sexual intercourse on a promise of marriage
and continues to indulge in such activity until she becomes pregnant it is an act of
promiscuity on her part and not an act induced by misconception of fact and Section
90 IPC cannot be invoked unless the court can be assured that from the inception
accused never intended to marry her.”21

B. APPROVED SEX AMOUNTS TO CHEATING NOT RAPE

“In another case the petitioner had sexual intercourse with the victim girl several
times on false promise of marriage and she became pregnant. She informed her
parents, and got Panchayat held on 30.7.1984 where again the petitioner gave false
assurance that he would marry the girl. But when her parents requested him to marry
her, he and the other accused persons abused girl and her parents and assaulted them
with fists and slaps and chased and drove them inside their own house.”22

21
1984 Crl. L.J 1535
22
Mir Wali Mohammad @ Kalu v. The State Of Bihar, 1991 (1) BLJR 247

24
“Relying on Jayanti Rani Panda case Hon’ble Justice Ram Nandan Prasad, of Patna
High Court held that “though on the facts of the case, an offence of rape is not made
out, it is evident that on the pretext of false promise of marriage the petitioner
maliciously persuaded the complainant to have sexual intercourse with him and but
for this false promise she would not have consented to have sexual intercourse with
him. The act of the petitioner, therefore, amounts to cheating as defined in Section
415, I.P.C. and as such prima facie amounts to an offence under Section 417, I.P.C.
Besides this act of cheating, the petitioner and other accused are also alleged to have
indulged in assaulting the intimidating the complainant and her parents which prima
facie would give rise to an offences under Sections 323, and 506, I.P.C.” 23

C. CHEATING BEGINS WITH FALSE & INTENTIONAL INDUCEMENT

OF PROMISE OF MARRIAGE

To examine that whether the cases of cheating defined under Section 415 of IPC
encircles those cases where transfer of property is not effected by deception, the
Hon’ble Justice B.B. Vagyani of Bombay High Court took this short and valid point
under consideration.

“In this case the prosecutrix was a divorced woman. After divorce, the prosecutrix
started living in with her mother, where the accused came in contact with the
prosecutrix. The casual acquaintance ultimately culminated into a love affair and after
giving promise of marriage, he sexually exploited the prosecutrix on number of
occasions. The nature brought this ‘indecent affair’ on the surface. When the
prosecutrix became pregnant she asked the accused to fulfil his promise of marriage,
but he flatly refused to marry prosecutrix. Thereafter, the prosecutrix lodged a
criminal complaint against the petitioner-accused on 30th April 1992 at Police
Station, Adavat. FIR was registered under section 376 IPC and the Additional
Sessions Judge, Amalner, Dist. Jalgaon, framed additional charge under section 417
of I.P.C. against the petitioner-accused.”

“While deciding quashing petition Hon’ble Justice Vagyani strongly relied on Marah
Chandra Paul v. State of Tripura, (1997 C.R.I. 715) and held that the prosecutrix was
intentionally induced to submit to sexual intercourse on false promise of marriage.

23
1984 Crl. L.J 1535

25
The overt act on the part of the petitioner-accused has unquestionably created harm
or mischief in body, mind and reputation of the individual misdirected .The
indulgence of the petitioner-accused in sex with prosecutrix by means of ‘intentional
inducement’ after giving ‘false of promise of marriage’ solidly falls within the
‘mischief’ of the definition of cheating as defined under section 415 of I.P.C. which is
punishable under section 417 of I.P.C.”24

D. EMOTION AND PASSION LADEN CASES IN WEAK MOMENTS

There are instances wherein the prosecutrix gives approval of having sex with
appellant only on the promise of getting married the Hon’ble Justice N. Santosh
Hedge & B.P. Singh took a serious note of such cases.

In this case, the prosecutrix realized that her marriage with the appellant was difficult
on account of caste considerations and will undoubtedly meet with solid restriction
from members of both families. She was obviously cognizant, that the marriage
may not happen at all regardless of the guarantee of marriage of the appellant.
However the appellant had reason to believe that the consent is given due to profound
love for each other as they met often, she permitted him liberties, which is permitted
only to a person with whom one is in deep love. She stealthily went out with the
appellant to a lonely place at 12 O'clock in the night. It usually happens when two
young persons are madly in love and promise loses all significance, particularly when
they are over come with emotions and passion in weak moments; surrender to the
enticement of having sexual relationship. The girl willingly consented to having
sexual intercourse with the appellant with whom she was deeply in love, not because
he promised to marry her, but because she also desired it.25

E. FAMILY PRESSURIZED THE GENUINE INTENTIONS

There are situations when the boy had genuine intentions to marry the girl and hence
they become physical intimate however due to other exterior reasons, for example, the
family pressure that the marriage did not culminate. The Hon’ble Justice P.
Venkatarama Reddi & P.P. Naolekar of Supreme Court took note of this consideration
and observed that “we have no doubt that the accused did hold out the promise to

24 Atmaram Mahadu More Vs State of Maharashtra (1998 (5) Bom CR 201 Order dated 13/11/1997)
25
Uday Vs State of Karnataka,(2003) CriL.J. 1539

26
marry her and that was the predominant reason for the victim girl to agree to the
sexual intimacy with him. Girl was also too keen to marry him as she said so
specifically. But we find no evidence, which gives rise to an inference beyond
reasonable doubt that the accused had no intention to marry her at all from the
inception and that the promise he made was false to his knowledge. On the other
hand, the statement of girl that 'later on', the accused became ready to marry her but
his father and others took him away from the village would indicate that the accused
might have been prompted by a genuine intention to marry which did not materialize
on account of the pressure exerted by his family elders. It seems to be a case of breach
of promise to marry rather than a case of false promise to marry.” 26

F. COMPENSATION FOR ‘REPREHENSIBLE CONDUCT’

Hon’ble judges however observed that the appellant, probably extricates himself from
the clutches of the penal law by getting the ‘benefit of doubt’ on charge leveled
against him. In any case, we cannot disregard the ‘reprehensible conduct’ of the
appellant, who by promising to marry the victim induced her to have sexual relations
that resulted into pregnancy. The demonstration of the accused left behind her a trail
of misery, disgrace and injury. He was held liable for damages and the appellant
readily consented to pay Rs.50, 000 by way of monetary compensation irrespective of
acquittal.27

G. THE INTENT TO MARRY HER WAS MISSING FROM THE BEGINNING

There are instances where the accused just fool around and concoct the story of
entering into the marital ties merely to gain her trust and approval to have sex with
him. The Hon’ble Justice A.K. Mathur & Altamas Kabir of Supreme Court
appropriately observed that “we are satisfied that the consent which had been obtained
by the denounced was not an intentional one which was given by her under misguided
judgment of actuality that the accused would wed her but this is not a consent in law.
This is becomes more obvious from the testimony of the victim girl as well as witness
who was functioning as Panchayat where the accused conceded that he had committed
sexual intercourse and promised to marry her but he absconded despite the promise

26
Deelip Singh Alias Dilip Kumar v. State of Bihar,2005 (1) SCC 88
27
ibid

27
made before the Panchayat. That shows that the accused had no intention to marry her
right from the earliest starting point and entered into the sexual relation under the
misconception of fact by prosecutrix that he would marry her. In this way, we are
contended that the conviction and sentence granted to the appellant is correct and no
case is made out for our interference. The appeals are dismissed” 28

“In the instant case the appellant Yedla Srinivasa Rao was indicted and sentenced to
undergo seven years imprisonment on a charge of assaulting a 16-year-old girl. He
promised to marry her but did not do so. After the girl became pregnant, a case of
`rape' was registered against him. The trial court acquitted the accused holding that
since the girl assented to the intercourse, it would not amount to rape. On appeal by
the State, the Andhra Pradesh High Court reversed the order and awarded him seven-
year imprisonment.”29

“Hon’ble Supreme Court said in such cases “factors like the age of the girl, her
education and her status in the society and likewise the social status of the boy’ are
vital contemplations. If prosecutrix was also equally keen, then in that case the
offence is condoned. But in case a poor girl placed in a peculiar circumstance where
her father has died and she does not understand what the consequences may result for
indulging into such acts and when the accused promised to marry but he never
intended to marry right from the beginning then the consent of the girl is of no
consequence. A consent obtained by misconception while playing a fraud is not
consent.”30

H. VULNERABILITY RADAR IS MORE ON GIRLS OF ‘TENDER AGE’

“It was examined that in Jayanti Rani Panda 31 the prosecutrix was matured 21-22
years old whereas in Yedla Srinivasa Rao case32 the age of the girl was exceptionally
delicate between 15-16 years. It is constantly matter of evidence whether the consent
was obtained voluntarily or consent has been obtained by holding a false guarantee,
which the accused never planned to fulfil. If the accused persuaded a girl of tender
age that he would marry her then such consent was not obtained willingly but under a

28
Yedla Srinivasa Rao Vs State of A.P., Crl. Appeal No 1369 of 2004
29
ibid
30
ibid
31
supra note 21
32
supra note 28

28
misconception of fact and the accused right from the beginning never intended to
fulfill the promise. Such deceitful consent cannot be said to be consent so as to
overlook the offence of the accused.”33

I. INNOCENT GIRLS GET EXPLOITED

There are instances where the girl who honestly trusted the boy gets exploited. The
Hon'ble Justice V.K. Jain of Delhi High Court while dismissing the bail application of
the boy who assaulted the girl subsequent to the ROKA ceremony took place and held
“if I take the view that sexual intercourse with a girl, in the certainties and
conditions, for example, in the present case, does not add up to assault, it will
bring about corrupt and evil persons, taking undue advantage of innocent girls by
promising marriage with them, without having any intent to do as such, consoling the
girl and her family by making the two families meet each other and formalize the
matter by ceremonies, such as an engagement, influencing the girl to have sexual
intercourse with him by making her trust that he was definitely going to marry her and
then forsaking her, in the wake of denying her of what is most dear to her…… A
view, which is probably going to bring about exploitation or abuse of innocent
girls, needs to be avoided and the Courts need to take a view, which would
demoralized deceitful people from taking advantage of innocent girls by enticing
them and having sexual intercourse with them, on a false promise of marriage.”

Justice Jain censuring such criminal behavior stated “taking a view that convincing a
girl to have physical relations on the false promise of marriage, regardless of having
no intention to marry, will in no situation constitute rape, will add up to putting
premium on a conduct which is exceptionally inexcusable and abhorable as well as
criminal in nature. Assuming that this is allowed to happen, it will empower corrupt
and exploitative people, including those who come to this country for such
exceptionally purposes, to exploit girls belonging to weaker sections and lower strata
of society by charming them with false promise of marriage constraining them to have
physical relations with them by making them believe that they are going to marry
them and that there was nothing erroneous in having such relations with a person who
is very soon going to be her husband and later on turn; their back at her, in a

33
Yedla Srinivasa Rao Vs State of A.P., Crl. Appeal No 1369 of 2004

29
comfortable belief that the law being on their side, they can easily get away with their
misdeeds. The courts cannot and ought not to give such a permit to those individuals
who continue searching for chances to misuse the sentiments and vulnerability of
Indian girls who recognize marriage as a sacrosanct; and not as a union of two
bodies. Enabling such persons to go scot free after exploiting poor and vulnerable
girls in this way could never have been the objective of the legislature which
considered rape to be such an egregious as to invite imprisonment up to life.”34

But even after Supreme Court verdict, in July 2010 Justice Ambadas Joshi of Bombay
High Court while acquitting a man, 42 years in a rape case, observed that sexual
relationship after promising marriage and reneging on it does not amount to rape.
Rathod, then 30 years old, was serving at a forest office near the victim's house. He
developed physical relations with her and promised marriage. She informed her
parents when she became pregnant and Rathod was arrested following a complaint
lodged by her parents. Charged with repeatedly having sexual relations with an
"underage" girl the Sessions court sentenced him to 10-year rigorous imprisonment.35

J. LEGAL EAGLES ARE PERPLEXED

Legal opinions and verdicts on this particular aspect are vertically divided and
confusing between the interpretation of ‘consent’ and ‘misconception of fact’ because
law is not crystal clear and decision depends on ‘Facts and circumstances’ of each
case.36 Consensus of judicial opinion is in favor of the view that the consent given by
the victim to sexual intercourse with a person with whom she is deeply in love
on promise that he would marry her on a later date, cannot be said to be given under a
misconception of fact.37

Some courts are of the view that the so-called consent under a false promise to
marriage is no consent. Accordingly, the consent obtained in establishing physical
relationship like husband and wife under false promise to marry the latter is no
consent as per law.38

34
Nikhil Parasar v The State of. NCT.of Delhi, Bail Appln No 1745, Del High Court, 2009
35
Sexual relations on false promise of marriage, HC available at www.deccanherald.com
36
A critique to Deelip Singh v. State of Bihar, AIR 2005 SC 203 at www.legalindia.com
37
Bipul Medhi vs. State of Assam 2008 Cri. L.J 1099, (2007) 2 GLR 200
38
Apporva Mandhani, Every Breach of Promise Cannot Amount to Rape, Live Law, Jan 17,2017,
www.livelaw.in

30
In such cases the most difficult task is to prove that the accused had no intention to
marry with the girl right from the beginning.39 He may say that I wanted to marry but
my parents…. cast…. religion… ‘khap, etc. did not allowed. This legal jugglery of
justice will continue, till the laws against crime against women are not amended by
the legislatures. 40

A woman may well consent, knowing that there are difficulties in the way of
marriage, but still hopeful of a happy ending. 41 The man may well have intended
marriage at a later date if possible, but insuperable difficulties or irreconcilable
differences, may have made him change his mind. The consequence of such fuzzy
logic from the Supreme Court has been to flood the criminal courts with rape cases of
this sort, which seek to force into marriage, persons on the pain of imprisonment.42

There is also the anomalous situation that the man may claim that he still intends to
marry the woman as and when a subsequent divorce, renders him free to do so.
Furthermore, it is anomalous to have a criminal prosecution rendered instructions, by
the victim and the accused marrying each other43. Criminal courts are not intended to
be marriage bureaus, or play the part of enforcers of pre-marriage vows. Private
wrongs are set right by the civil process and wrongs against the state are prosecuted in
the criminal courts. It is no one’s case, that pre-marital consensual sex is a crime in
the Indian republic.44

K. THE CURRENT STAND

It is time that the law is set down with clarity. In the absence of a clear drawing of
lines, all sex outside the marital bed is a potential act of rape. The Supreme Court
should clarify the legal position by a judgment from a larger bench. In the absence of
a judgment, Parliament would do well to consider whether any legislative clarification
is needed. Consent relevant to rape law, is consent at the time of the sexual act. If

39
K V Dhananjay, Ignorant Judges have been destroying young and innocent lives through rape
convictions, 10 April, 2016, www.legallyindia.com
40
Indian Chamber of Law Sexual exploitation on the promise of marriage available at www.lawjustice-
bakeelsab.blogspot.com
41
Sanjay Hegde, Sex and rape: It's time the law is set down with clarity, Sep 18, 2014, Deccan Herald,
www.deccanherald.com
42
ibid
43
ibid
44
ibid

31
there is consent before and during the act, subsequent discovery, that the consent was
based on misconceived facts should not criminalize past transactions.45

Promising marriage in return for sex and not living up to that promise, is morally
wrong, totally selfish and reprehensible, but it is not rape. 46 Prosecutors and judges
must desist from succumbing to populist clamour in these matters and ensure that
genuine victims of forcible rape do not have their day in court, derailed by tawdry
romances. The threat of imprisonment should not be used to railroad people into
marriage. After all as John Mortimer pertinently pointed out, “Matrimony and murder
both carry a mandatory life sentence”.47

L. A SOCIETAL SCRAPE

Moreover, if we say that the women’s image is more prone to vulnerability than that
of men’s, then from where this conception of false complaints of rape is increasingly
emerging in the society. Hence, India, like many other places of the East, is stepping
into the time of reflection and dialogue about the role of the women in the society and
the kind of responsibility it shares towards the society.

Some may argue in the case of India’s false promise complaints that the main problem
lies with the society that exclude pregnant, unmarried women for merely practicing
their sexual liberty as men do a Catholic new feminist analysis will rather argue for
the significance of the personal obligation in moral choices and charity towards others
in social association.48

As with second wave-feminism in the US, though, “modern” Indian women seem to
be going beyond a welcome embrace for these very positive social developments like
higher education and prosecution of sexual crimes. They have begun to buy into the
idea that if (like men) they can have higher education, careers, legal rights, etc., they
can also (like men) enjoy sexual “freedoms” outside of marriage.49

45
Sex and Rape: It’s time the law is set with clarity, People’s Union For Civil Liberties, Mangalore,
Sept 2014 available at http://puclmangalore.wordpress.com
46
https://www.reddit.com
47
supra note 41
48
Kerri Lenartowick, False Promises for India’s Women, Truth and Charity Forum.org, Jan10,2014
49
Ibid

32
Sadly, when the sexual act becomes separated from the loving and secure context of
the marital covenant, it does result in a power struggle: usually for both parties
involved. Without the complete assurance of a lifetime commitment, fear of betrayal
or abandonment accompanies the act meant to give witness to a lasting promise. Thus,
while the sexual revolution championed by secular feminists in the US assured new
“freedoms,” it in fact brought with it a host of complications and battles for power.50

Here we must pause to make an obvious distinction between the actual act of rape in
which another acts upon one person violently and without her consent, and the act of
premarital or extramarital sex in which two parties engage freely in sexual activity. A
woman who is raped cannot be held responsible for violence done to her: men who
perpetrate such crimes should be prosecuted justly. In these false promise complaints
however, women file “a rape complaint to try to secure a marriage,” thereby
confusing the issues. While the men who have abandoned these women may be guilty
of many things including cowardice and irresponsibility, accusing a man of a violent
crime that he did not commit cannot be the solution to such a problem.51

M. A WOMAN’S OUTLOOK

If we analyze it from a women’s viewpoint then two problematic presumptions

underlie such a belief: first, that sexual activity outside of marriage is a kind of
freedom; second, that men have somehow experienced a “good” by embracing such
activity. Men who engage in sexual promiscuity not only act immorally, but may
suffer or cause others to suffer the many consequences predicted by Paul VI in
Humane Vitae, not the least of which is reducing another person “to being a mere
instrument for the satisfaction of his own desires, no longer considering her as his
partner whom he should surround with care and affection.” Certainly the men of India
who abandon their pregnant partners would fit this description.52

Women who engage in sexual activity outside of marriage also share these problems
of men, but they are increased exponentially by the simple fact that women have
babies. India’s “false promise” complaints are not lodged merely by women who have
been abandoned by men, but specifically by women who are pregnant with the child

50
Kerri Lenartowick, False Promises for India’s Women, Truth and Charity Forum.org, Jan10,2014
51
ibid
52
ibid

33
of a man who promised her marriage. Women bear one key visible consequence of
the sexual act: pregnancy. For this reason, women are simply naturally more
vulnerable. Even with the use of contraception, pregnancy remains a possibility, no
matter what percentage the likelihood.53

Single motherhood is never an ideal situation, most especially for children. one cannot
disregard the great body of evidence that shows just how much fatherless children
suffer. 54 Here let us must make another crucial distinction, however: that is, just
because women are more vulnerable than men, this does not make them less
responsible for their actions. John Paul II addresses this point in Mulieris Dignitatem,
saying that woman’s human dignity “directly depends on woman herself, as a subject
responsible for herself, and at the same time it is “given as a task” to man.”55

Then the guiding percept buds from the fact that both the man and the woman must
share a personal responsibility to it. Men and women who elect to indulge in the
sexual pleasures outside their marital boundaries should be mature enough to shoulder
the moral responsibility of their choices and consequences emerging out of it,
including pregnancy.

As feminism moves eastward across the globe, women of the West have a
responsibility to ensure that others can both see and learn from our mistakes, in the
hope that they may avoid repeating them.56 Women and their families throughout the
world benefit from things like access to education and participation in political
systems: a Catholic new feminism will work to promote these goods for women who
are still treated in a discriminatory manner.57 At the same time, we cannot allow the
lies about “sexual freedom” to be conflated with “women’s liberation.”58 When sex is
erased in the background of a committed marital love, both men and women feel
agonized however, due to their natural susceptibility, women generally suffer more.

53
Kerri Lenartowick, False Promises for India’s Women, Truth and Charity Forum.org, Jan10,2014
54
Dale O’Leary, "Deconstructing the Essential Father", An analysis of the article by Laura Silverstein
and Carl Auerbach published in the July 1999 edition of the American Psychologist
55
Mulieris Dignitatem, A Postolic letter of the Supreme Pontiff John Paul II On the Dignity and
Vocation Of Women On The Occasion Of The Marain Year, 1988.
56
Id
57
Liberal Feminism, Stanford Encyclopedia of Philosophy, first published Thu Oct 18, 2007;
substantive revision Mon Sep 30, 2013
58
Margaret Hillyard Little, Women’s Sexuality: On The Socialist Feminist road To Discovery,
available at www.yorku.ca

34
In the context of India, women deserve better than being cheated and abandoned by
men, also they do not deserve such position where they are lied by the men they fall in
love and trust to have sex on the false promise of marriage. That is called “sexual
liberation”

When it comes to rape, political correctness gone mad tells us we should not even
suggest advising our daughters to avoid certain situations where rape is more likely to
occur (they call it “victim blaming” — as if the mere admonition to “be
careful” transfers blame for a rape from the rapist to the victim). 59 It would be
unfortunate if we similarly hesitated to urge our sons to minimize the risk of false
rape claims out of some warped, politicized sense of principle. The long-term damage
from a false rape claim is so potentially enormous that every reasonable effort should
be taken to avoid one.60 Make no mistake; the for a false rape claim is on the false
accuser, just as the onus for rape is on the rapist. But failing to discourage our young
people from putting themselves in harm’s way just to make a political point is
something no sane parent should ever do.61

One important point needs to be made at the outset: the vast majority of women
would never tell a rape lie under any circumstance, just as the vast majority of men
would never rape under any circumstance.

2.5 REASONS FOR LODGING FALSE COMPLAINTS

Noted below are some reasons that could be the causes behind such false complaints
of rape: –

 HORRIBLE BREAK-UPS–Separation and guardianship debate bring forth false

rape claims in order for the woman to gain the upper hand in the
dispute. 62 Spurned ex-sweetheart son occasion use false rape claims as an
apparatus of retribution. If you are deceiving a wife or a girlfriend, a false rape
claim is more probable, and many people will look it as a sort of justified

59
How to avoid false rape claim, the community of the wrongly accused, Dec 10, 2010,
falserapesociety.blogspot.com
60
Ibid
61
ibid
62
How to Avoid a False Rape Claim, a Voice For Men – Changing The Cultural Narrative, Dec
16,2010

35
 payback. 63 There are times when these circumstances in certain cases are
hazardous to bypass and give men even more reason (1) not to cheat, and (2) to do
a much better job of getting their know the woman before getting serious with her.

 CONFUSION REGARDING OCCURRENCE OF THE OFFENCE- (1)

When women drink to excess, eventually, they lose capacity to authentically and
legitimately assent, and the breaking point is very hard to perceive; and
(2) women experience much greater after-the-fact regret than men do. Sometimes
feelings of regret are translated into feelings of “being used,” and sometimes
feelings of “being used” are misinterpreted or purposefully misconstrued as
“rape.” Unfortunately, it is the politically correct thing to urge young women to
party like the guys — without bothering to tell them about the regret asymmetry
that separates the genders.64

 AGE DIFFERENCE-When a teen girl below the age of consent accuses a

middle-aged man of rape, there is no probability of legitimate consent, and
genuine assent appears to be more improbable than if she was engaging in sex
with a same-age boy. 65 Additionally, the older man/young girl allegation is
generally viewed as so frightfully detestable that the mantra “guilty until proven
innocent” is truly a reality for this one.66 Even when a young woman beyond the
age of consent accuses a middle-aged man of rape, the initial inclination is to
assume he’s a lecherous old man, and that she would have no desire to have
consensual sex with someone like that.67

 PROFESSION SPECIFIC FALSE COMPLAINTS- If you are male and are

a schoolteacher, a police officer, an ambulance paramedic, or a cab driver, you
need to be particularly careful. 68 Police officers are in danger because some
women charged with crimes lie about rape out of revenge or to claim that the
charges were trumped up.69Ambulance paramedics and cab drivers are sometimes

63
supra note 41
64
id
65
https://en.wikipedia.org
66
The Injustice of Law, Another Way The Government Discriminates Against Sex-Offenders Weather
They Were Guilty or Not, measuring erection of sex offenders banned by Court of second appeal, Oct
7,2013
67
supra note 48
68
ibid
69
Megan McArdle, How Many Rape Reports are false? The dark numbers behind one of the darkest
crimes, Sept 20, 2014

36
 targeted by delusional women or women looking for an excuse for some
indiscretion (refusing to pay a cab fare is a big one). 70 Teachers are forced
to interact with many girls who are experiencing significant emotional and
hormonal changes and whose immature judgment allows them to do things a more
mature person wouldn’t do. The ease with which a false claim can be made is a
concern for male teachers, and that profession, more than the others, is attuned to
these dangers.71

 WOMAN DOES NOT REGRET LYING-If a woman is sufficiently selfish that

she has no trouble lying — to remove herself from inconvenience or for other
different reasons, she may not even need one of the reasons noted above to tell a
rape lie.72

Also, nowadays there is a step initiated in sensitizing the police and public at large by
safeguarding the consensual rights of the prostitutes. 73 From the moment she
expresses her unwillingness, the man loses control over her and cannot pressurize her
into the act by saying that it is a part of her profession.74

Having said that, we will take into account that fragment of the issue where the
prostitutes deliberately falsely implicate the men for some sort of financial
advancements or any other selfish gains.

There are some scholars who consider the fact that women ‘cry rape’ to get revenge
against a man a myth. ‘She lied about it’ myths are also depended upon the
assumption that women have so called ‘rape fantasies’. Having such fantasies,
initially the women makes a choice of her partner for intercourse and on having
second thoughts, she shields up the sexual relation by putting the blame on the man.75

This is not true, considering the large number of unreported cases. The rate of ‘false
report’ for rape may be equal to or less than that for other violent crimes.76

70
supra note 62
71
ibid
72
Sandra Newman, What kind of person makes false rape accusations? Quartz, May 11, 2017
73
UPR Submission on harmful effects of criminalization of sex work on sex worker’s human rights in
India, 13th Session of Universal Periodic Review, 2012
74
Id
75
Nian Hu, The Girl Who Cried Rape, Undue Focus On False Rape Accusations Helps Sustain Rape
Culture, The Harvard Crimson, May 24, 2016
76
Dr Vandana, Sexual Violence Against Women: Penal Laws and Human Rights Perspective,2009,pg 79.

37
Further, medical evidence is necessary in rape cases, which cannot be fabricated. In
rape cases, where the brutalities are caused to the victim, in order to have control over
her or merely as a show of masculinity, for e.g., in gang rapes, severe injuries are
inflicted on the victim’s body, which cannot be falsely created. Even in cases where
injuries are absent, rape charges cannot be considered fabricated because the rape trial
is such a harrowing experience that no woman would invite it.77

The myths discussed above assume an indispensable part in masking the essential
issues relating to rape. These myths propagate negative social attitudes towards rape
victim and decrease the genuine level of male violence. Rape myths allow rapists to
rape with near impunity. 78 They teach women to blame themselves for their
exploitation. They transform rape by acquaintance, friends and inmates to no rape at
all. The myths support the use of violence, coupled with sexuality, as a mechanism for
keeping women powerless. Rape myths form the foundation for structural acceptance
of rape in our society and allow rape to become normative.79

After analyzing both the viewpoints in this chapter, it becomes imperative for our
understanding to conceptualize the offence of rape with emerging trends. If we
advocate the fact that rape is a crime not against the body of the woman but against
her dignity and respect, then we must also understand that there is never one side of
the story and there are emerging trends in the criminal justice system which points
towards the fact that there is a growth in false rape complaints by women and the time
has come that we give due credence and weightage to the testimony of the man too.

To conclude this chapter one can find that the aim of making rape punishable in the
Indian Legal System is to protect the dignity and consent to personal intimacy and to
punish those who try to overpower the consensual agreement of the women. Because
of providing with all sorts of safety nets by the State for safeguarding the women’s
consent to sex has helped undoubtedly a major bulk of victims who at one point felt
uncomfortable to register the case even, to avoid the secondary harm. The NCRB data

77
In Shri Bodhi Sattwa Gautam v Subhra Chakraborty AIR 1996 SC 922, it was observed by the court
that the raped woman undergoes traumatic experiences at the time of trial. She relives the experience of
rape, in glare of publicity in a totally alien atmosphere. The tribulations, which begin with the treatment
of rape victims of police, continue through a male dominated criminal justice system.
78
Patricia D Rozee, ’Sexual Victimization- Harassment and Rape’, Issues in the Psychology of Women,
Maryka Biaggio and Michel Hersen (eds), 2000, p 98.
79
Ibid.

38
show that there is an increase in the number of rape cases filed by the victim;
however, the conviction rate is still low. There could be many reasons for example,
that the parties amicably did out of the court settlement, but the one prime reason
which is also that there could be a filing of a false complaint only by the women
herself. The research tries to highlight that section of men who get falsely implicated
in this process at the hands of revengeful women and finds out manifold causes for
emergence of such a trend among urban women.

39
 CHAPTER 3

DOMESTIC VIOLENCE - PROTECTION FROM

WOMEN

In the last twenty years, litigation, legislation, activism, and, to a lesser extent, social
services for battered women have proliferated.1 In that time society has moved from
virtual denial of the existence of domestic violence to a somewhat grudging
acknowledgment that it is a pervasive and serious problem with legal, sociological,
and psychological dimensions.2 Fundamental changes in civil and criminal law and
practice have resulted in battered women becoming more visible in the legal system:
protective restraining orders are now available in every state; many states have
amended their custody statutes to provide for consideration of domestic violence in
custody cases; policies for arrest of batterers are increasingly common; prosecutors'
offices have begun to prosecute domestic violence cases; and public defenders have
begun to recognize the relevance of battering to some of their clients' defenses.3

It is of most likely the legitimate consideration concurred to the instances of domestic

violence is because of its expanding consideration in the law schools as a territory of
study. As courts have analyzed more domestic violence cases, new lawful issues have
risen and the confinements of common generalizations about both battered ladies and
abusers have progressed toward becoming clearer. Scholars and activists for battered
women are hooking to develop speculations and contentions to recognize these lawful
and social complexities. Although some unmistakable women's activist law about
domestic violence exists, new speculations are required to take into account the issues
that are seeming both inside and outside of the courts.

3.1 CHILDREN AND DOMESTIC VIOLENCE

By chance, while input of battered mothers for exhibiting their children to misuse is
expansive, courts and social associations in like manner demonstrate a strong

1
Naomi Cahn and Joan Meier, Domestic Violence and Feminist Jurisprudence: Towards A New
Agenda, 4 B.U. Pub. Int. L.J. 339 (1994-1995)
2
Peter N. Swisher, H. Anthony Miller, Helene S. Shapo, Family Law: Cases, Materials and Problems,
Third Edition, 1944
3
John De Witt Gregory, Peter N. Swisher, Sheryl L. Wolf, Understanding Family Law, Fourth Edition,
lexis Nexis, 1994

40
inclination for batterers' rights to appearance with their children, and race to charge
the mother who is reluctant to offer such visits.4 Courts and social experts put mind
boggling complement on fathers' appearance rights, despite when the abuser has also
undermined the children, and despite when some affirmation exists that the father has
harmed or tried to hurt the children. As a general rule, some court experts tend to see
a mother's reluctance about appearance as a sign of egotism and malevolence, instead
of as a longing to secure the children. In this manner, society as often as possible
flaws battered women in the meantime to subject their adolescents to their abuser and
for withholding their children from that same abuser.5

Furthermore, some battered mothers never have experienced a safe environment in

which their children could thrive; the presence of the abuser has always created a
context of fear and intimidation.6 Until such women experience complete safety from
the batterer's abuse, they may not realize that their children are unhappy and are
profoundly affected by the abuse directed at the mother. When a mother sees her
children's emotional transformation after the abuse ceases, she often becomes
unwilling to tolerate the abuse, which, she previously thought, only affected her. 7
Finally, many battered mothers who allow the father's appearance basically reflect the
messages they get from society: that the father is qualified for access to his children
and that the children "require" their father. Therefore, impugning battered mothers for
fail to guarantee their youths dismisses an incredibly complex reality in which
battered women, really, habitually do attempt to guarantee their children's best
advantages.8

4
Deciding Child custody when there is a case of Domestic Violence- A Bench book For Pennysylvania
Court, Rev in March 2013.
5
Barbara Hart, State Codes on Domestic Violence: Analysis, Commentary, and Recommendations, 43
Ju.AndFam. CT. J., No. 4, at 33-34 (1992).
6
Ibid. Even where the parties have separated and the batterer is given only limited visitation rights, in
many cases he continues to harass and abuse the mother, frequently in front of or in connection with
the children.
7
In one of Joan Meier's clinical cases, the mother had always insisted on liberal visitation for the
batterer, in part because "he's their father," and in part because she feared his violence if she restricted
visitation. After he was jailed for approximately six weeks for repeated violations of protection orders,
she reported that her children had never been so calm, happy, and outgoing. Before the abuser was
jailed and the mother was in constant danger, one child was shy, insecure, nervous, and bed-wetting.
The client stated that seeing her children thrive outside of their father's threatening presence convinced
her that she would be willing to leave the country and return to her homeland to avoid subjecting her
children to the fear of their father's violence.
8
Ibid

41
On the other side if we examine the side of the story from a child's perspective,
offspring of battered moms frequently have opposing sentiments with regards to their
dad. From one perspective, the youngsters are petrified and embarrassed by the
brutality; then again, they have love and warmth for their "daddy". In this way, the
youngsters are required to be both shielded from the batterer, as contended by the
battered ladies, and to see their fathers, as the courts would contend. The best answer
for youngsters involved in this battled circumstance is neither totally clear nor clean.9

From the feminist point of view, the cultural feminists, like Nancy Chodorow, argues
that mothering is not merely a ‘product of physiology’ but is rather perpetuated
‘through social- structurally induced psychological mechanisms.’ 10 In Chodorow’s
analysis the exclusive mother/child relationship damages all parties, and she argues
that what is needed is a recognition that children should have equal parenting from
both mother and father in order to inculcate an individuated sense of self in relation to
both parents. The cycle in which children regard their mother (to the exclusion of
their father) as the primary nurturer, carer and provider of emotional support,
emphasizes the mother’s role in the private world of the family as an unequal and
dependent partner within the family. Chodorow demands social change in order to
facilitate greater gender equality, for the benefit of all society.11

From the postmodern perspective, there is also the theoretical argument that
Chodorow is postulating a universalizing ‘meta-narrative’. There is the assumption
that women and men are – irrespective of culture, race and class – ‘mother’ and
‘father’, and that socialization of children, under the primary care of the mother, will
– also irrespective of culture, race and class – become socialized in the respective role
models provided by their parents. From a postmodern perspective, this reduction of
the causes of continued gender stereotypes is too grand a theory, too monocausal, too
essentialising.12

9
ibid
10
Chodorow, N, The Reproduction of Mothering: Psychoanalysis and the Sociology of Gender, 1978, p
211. Berkeley, California: California UP.
11
Hilaire Barnett, Introduction To Feminist Jurisprudence, 1988, p 144.
12
ibid at p 145.

42
3.2 PREVALENT STEREOTYPE
Two speculations are regular concerning oppressive conduct at home. In the first
place, numerous people assume that battered women are inert, powerless victims, and
that women who don't change in accordance with this picture are not battered or are
responsible for the severity. Second, numerous people acknowledge that batterers are
monsters and that men who don't fit in with this picture can't be batterers.

Furthermore, to analyze the concept of battered women, the concept itself started
itself in late 1960s for the sake to make the society know the disturbing and
devastating effects of domestic violence on women. This aspect of Walker's original
concept has distorted society's perception of many women whose reaction to abuse
was perfectly rational.13 As a result, when female victims of abuse express anger or
exercise strength, power, or aggressiveness, they often are not believed when they say
they were beaten, or are blamed for causing the violence or for failing to leave the
abusive situation.14

The level of misuse that typical, sound women can persevere on account of brutal and
oppressive men is, in any occasion, altogether disturbing, and in any event,
deplorable. Many like to doubt or to blame the victim for her sufferings. To some
degree, victim stereotyping is in like manner the result of promoters' attempts to cut
other, more scornful speculations. For instance, in countering society's foreswearing
of damaging conduct at home, battered women's promoters have suspected that it was
critical to pass on in stark terms the normality and earnestness of battered women's
substances perhaps propelling "immaterial" hits don't constitute battering. . Similarly,
in response to judges and critics who question why battered women endure abuse so
extreme that "no one" would "stay" in such a relationship, advocates have argued that
battered women are trapped in their relationships, perhaps contributing to images of
such women as weak and helpless. 15 Finally, to satisfy judges and critics that
numerous unmistakably great, sensible and normal men can submit immense acts

13
See Elizabeth M. Schneider, Particularity and Generality: Challenges of Feminist Theory and
Practice in Work on Woman-Abuse, 67 N.Y.U. L. REV. 520, 531, 561- 63 (1992); Schneider, supra
note 48, at 207, 222.
14
See Evan Stark, Framing and Reframing Battered Women, in Domestic Violence: The Criminal
Justice Response 287 (Eve S. Buzawa ed., 1990) (image of pure victim does not fit many battered
women, especially women of color whose image of strength and power contradict the stereotype).
15
See, e.g., Karen Czapanskiy, Domestic Violence, the Family, and the Lawyering Process: Lessons
from Studies on Gender Bias in the Courts, 27 FAM. LQ.247, 252 (Summer 1993)

43
toward women, advocates have focused on the cruelty and contempt of the man
handle and have tried to portray the men as shrewd, might reinforce the "tremendous"
generalization of abusers.

It now appears to be fair to state that the battered women development has
unequivocally and beneficially elevated the social acknowledgment of the truth and
somberness of aggressive behavior at home. Regrettably, the endeavors to further this
comprehension may have brought forth the generalization of battered women as
hopeless, defenseless victims, an exact picture for some battered women. In the realm
of practice, "the question then becomes whether and how to balance some of the
truths behind stereotypes with the damage caused by the stereotypes . . ."16the realm
of the theory, the test is to stretch to clarify and depict battered women encounters
without building new binding stereotypes.

It is currently far from presumption that as long as advocates portray batterers as just
sagacious, courts will encounter issues tolerating various women instances of
mishandle. Accordingly, when a stylish, aware man appears in court preventing the
woman’s allegations and accusations from guaranteeing viciousness, courts are
inclined to trust him since he doesn't resemble a creature armed for deliberating ill
treatment.

To sum up, stereotypes of both battering men and battered women don't fittingly
speak reality. Obviously, more perplexing and refined understandings of the
demonstrations of aggressive behavior at home are important. Until and unless we are
prepared to admit that male’s control over females in this society has for quite some
time been is still to certain degree the social standard, we won't completely observe
how 'tolerable men' can commit these acts, or how 'stern and strong ladies' can be so
fundamentally victimized.

3.3 LEGAL STRUCTURE

The enactment up of Protection of Women From Domestic Violence Act, 2005 was
passed by the Parliament with recourse to Article 253 of the Constitution. This
provision accords on the Parliament the power to make laws in pursuance of

16
Naomi Cahn, The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in
Practice, 77 Cornell L. Rev. 1398, 1417 (1992).

44
international treaties, conventions, etc. The Domestic Violence Act was passed in
furtherance of the recommendations of the United Nations Committee on the
CEDAW. The Act comprises of all the provisions of the Specific Recommendations,
which form a part of General Recommendation no.19, 1992.

The term ‘violence against women’ confines itself to women. Domestic Violence is
that violence perpetrated in the domestic sphere. Again, a literal interpretation of
‘domestic’ would include all kinds of violence at home, including child abuse, sibling
abuse and elder abuse. However, domestic violence is more often used to describe
violence against all adult women that occurs within households, usually at the hands
of a spouse or partner. Violence against women is usually perpetrated by men or
male-dominated institutions but can also be perpetrated by women.17

The proceedings for protection of domestic violence can be initiated by an “aggrieved

person”, as defined in Section 2(a), referring to “a woman who is or has been in a
domestic relationship with the respondent and who alleges to have been subjected to
any act of domestic violence by the respondent.”18

Section 2(q) provides the definition of the “respondent”, which pertains to the
“husband and is also inclusive of the relative of the husband or a mal partner.” The
proviso to Section 2(q) has been included in the Act, as under Section 498A, making
it possible to prosecute the relatives of the husband whether male/female for cruelty.19
The term ‘relative’ has not been defined either under the PWDSVA, 2005 or under
Section 498A. As a matter of prudence, the generally accepted meaning of the term
‘relative’ shall be understood.

The Act provides for a determinate legal apparatus, for its implementation. There are
functionaries appointed for assisting the victims of domestic violence. ‘Protection
Officer’, is the key position created by the Act, being the link between the relief under
the Act and the victims.20

17
Rosemary Barberet, Women, Crime And Criminal Justice: A Global Inquiry, 2014
18
Section 2 (a) of the PWDVA, 2005
19
Section 2(q) of the PWDVA, 2005
20
Section 8, PWDVA, 2005, provides for “the appointment of protection officers by the state
government, which will appoint for any district, as many protection officers as are required for each
district.”

45
The complaint under the DIR i.e. domestic incidence report is to be recorded in a non
biased manner and need to fall within the purview of the PWDVA, 2005. Afterwards
the Protection Officer forwards it to the Magistrate. A copy is given to the police
officer in charge of the police station in the jurisdiction. After recording the DIR the
service provider forwards it to the Protection Officer and the Magistrate. After
recording the DIR the PO or the service provider is given to the woman at her behest,
for filling an application. The DIR is attached to the application presented in the Court
in these cases. It is mandatory for the PO, service provider, magistrate or police
officer to enlighten the victim about the services and the reliefs under the Act. 21
Medical examination of the victim is done if she has any bodily injury, the account of
which is presented by the PO to the magistrate and the police officer having
jurisdiction.22

Quick disposal of the domestic violence case is the principle in the Act, making it
necessary for the Magistrate to fix the first date for hearing the matter in a time span of
three days from the date on which the application is presented, and the application is
disposed within sixty days from the day of the first hearing. Victims are given shelter
homes and medical facilities and a provision is made for carrying out proceedings in
camera as well and the identity of the victim is not revealed by the shelter home at her
behest. Welfare experts are present as well, and either of the parties may be directed to
undergo counseling either together or alone. Central government is duty bound to
publicize the act and to initiate the sensitization of government officials toward the Act.
23

The nature of relief looked for under the Act is considerate and the proof beyond
reasonable doubt is not an order. Abusive behavior at home happens inside the four
dividers of the house and to locate a free observer of the same is an enormous and
almost unimaginable errand. The wronged lady is the fundamental observer with her
announcement being the main explanation and incidental confirmation being an
imperative to land at a conclusion with regards to the realities of the case. The recording
of history and conditions of the case is fundamental alongside the effect of the brutality
upon the ladies and the kids, for this goes about as confirmation in the court.

21
Section 5, PWDVA, 2005.
22
Section 9(g), PWDVA,2005.
23
Jagadesan v. State of Tamil Nadu, 2015 (2) MLJ 135 (Crl)

46
This clearly brings out the kind of protection attached with these provisions to
women. Since it is not regarded as proof beyond reasonable doubt that recently there
is a change in the nature of complaints, where the wives are not the victim of the
violence but the perpetrator of the violence.

3.4 SHIFT IN PERSPECTIVE

In the last few decades, a couple of enactments and provisions have been included in
the statute book to answer the problems of equality, liberty and dignity to women
which was built upon the public perception that women have been denied their rights
in the society and have been facing cruelty at the hands of the cruel men. Significant
levelheaded discussions and influences have prompted these enactments. The
inclusion of Section 498A IPC is one such move and it punishes hostile lead of the
spouse and his relatives towards the wedded lady. The arrangement together with
partnered arrangements in Cr.P.C. is so planned as to bestow a component of
prevention. In course of time, a spate of reports of abuse of the section by means of
false / exaggerated allegations and implication of several relatives of the husband
have been pouring in. In spite of the fact that there are far reaching grievances and
even the judiciary has taken cognizance of such expansive scale abuse, there is no
dependable information in light of exact review as respects the degree of the asserted
abuse. There are distinctive versions about it and the rate of abuse given by them
depends on their experience or ipse dixit, as opposed to ground level review.

3.5 TWO- WAY ARGUMENTS

The following is two- debate over the validity of the Section 498A which is ideally
meant for protection of women. Let us examine the two arguments for and against the
provision -

A. ARGUMENTS FOR RELIEVING THE RIGOUR OF SECTION 498A- to

ease the strictness of the application of this provision can detected from the
observations of the Court in its judgments and Justice Malimath Committee’s Report
on Reforms of Criminal Justice System is as

The punitive measures prescribed under the law instead of benefitting women have
become a tool of misuse and harassment so much so, that not only husband and his
family members, but even the relatives are dragged into criminal cases in the name of

47
cruelty. Mere registration of an F.I.R, under S. 498-A/406 IPC leads to arrest of the so
called accused persons without even considering the intrinsic worth of the allegations
and making a preliminary investigation. The chances of reconciliation or amicable
settlement therefore become futile when the members of husband’s family are
arrested and put behind bars with no immediate prospect of bail.24

The practical realities must be taken into consideration while dealing with such cases
with due regard to the fact that it is a sensitive issue which shall not be allowed to be
aggravated by abuse of process on the part of the Police by taking advantage of the
harsh provisions of S.498-A of IPC together with its related provisions in Cr.P.C. The
lacunae are not in S.498-A as such, but in the provisions of Cr. PC making the offence
non-compoundable and non- bailable.25

B.ARGUMENTS FOR MAINATINING THE STATUS QUO- on the other hand,

there is disagreement in altering the intent of the provision.

S.498A and other legislations like Protection of Women from Domestic Violence Act
have been specifically enacted to protect a vulnerable section of the society who has
been the victims of cruelty and harassment. The social purpose behind it will be lost if
the rigour of the provision is diluted. The abuse or misuse of law is not peculiar to this
provision. The misuse can however be curtailed within the existing framework of law.
For instance, the Ministry of Home Affairs can issue ‘advisories’ to State
Governments to avoid unnecessary arrests and to strictly observe the procedures laid
down in the law governing arrests. The power to arrest should only be exercised after
a reasonable satisfaction is reached as to the bona fides of a complaint and the
complicity of those against whom accusations are made. The “Crime Against Women
Cells” should be headed by well-trained and senior lady police officers. These steps
would go a long way in preventing the so-called misuse. Side by side, steps can be
taken to effect conciliation between the spouses in conflict and the recourse to filing
of a charge-sheet under s.498A shall be had only in cases where such efforts fail and
there appears to be a prima facie case. 26

24
Committee On Reforms Of Criminal Justice System, Government Of India, Ministry Of Home
Affairs, Report Vol I, March 2003
25
LCI, 243rd Report on Section 498A, August 2012
26
ibid

48
The task of counseling the parties should be delegated to professionally qualified
counselors from the police personnel. The Ministry of Women and Child
Development have also incorporated these views while undertaking the matters
concerning women.

Further, it is pointed out that a married woman ventures to go to the Police station to
make a complaint against her husband and other close relations only out of despair
and being left with no other remedy against cruelty and harassment. In such a
situation, the existing law should be allowed to take its own course rather than over-
reacting to the misuse in some cases. There is also a view expressed that when once
the offending family members get the scent of the complaint, there may be further
torture of the complainant and her life and liberty may be endangered if the Police do
not act swiftly and sternly. It is contended that in the wake of ever increasing crimes
leading to unnatural deaths of women in marital homes, any dilution of Section 498-A
is not warranted. Secondly, during the process of mediation also, she is vulnerable to
threats and harassment. Such situations too need to be taken care of. 27

Thus, the triple problems that have cropped up in the course of implementation of the
provision are:(a) the police straightaway rushing to arrest the husband and even his
other family members (named in the FIR), (b) tendency to implicate, with little or no
justification the in-laws and other relations residing in the marital home and even
outside the home, overtaken by feelings of emotion and vengeance or on account of
wrong advice, and (c) lack of professional, sensitive and empathetic approach on the
part of the police to the problems of woman under distress.28

Certain Dos and Don’ts to the police personnel by the Head of the police dept. in
order to inculcate the sense of responsibility and sensitivity is the need of the hour.
Resorting to the power of arrest indiscriminately should check the abuse of the
provision by resorting to the power of arrest indiscriminately at all cost. The
following prescriptions/guidelines shall be kept in view by the I.Os and be
incorporated in the Circular to be issued by the Head of Police Department.

27
Srk Raidu, Reconsidering IPC498A- Legal Terrorism, https://www.change.org
28
See, e.g., Karen Czapanskiy, Domestic Violence, the Family, and the Lawyering Process: Lessons
from Studies on Gender Bias in the Courts, 27 Fam. Lq. 247, 252 (Summer 1993)

49
On receiving the FIR, the police officer should cross-check with the complainant the
correctness of the contents and whether she voluntarily made all the allegations. For
this purpose, she may be interviewed/questioned preferably in the presence of a lady
official or a respectable lady or a Counselor attached to a reputed NGO. 29

Then, without delay, the police officer must initiate the process of initial investigation
by visiting the house of the husband and have a firsthand account of the version of
husband and other relations and take such measures as may be necessary to ensure
that the accused do not indulge in acts calculated to endanger the safety and liberty of
the complainant. Both sides should be counseled not to precipitate the situation.
Thereafter, steps should be taken to refer the matter to the Mediation Centre if any or
District Legal aid Centre or a team of Counselors/conciliators if any attached to the
Police District. 30

In the case of Non-Resident Indians, it is reported that the passports are seized when
they come to India at the stage of investigation or they are sent to the Passport Officer
for passing an order of impounding. During the pendency of the case in the Court, the
prosecutor often requests the Court to direct depositing of the passport as a condition
for granting bail. This should not be done in all cases mechanically as it will cause
irreversible damage to the husband/accused and he will be exposed to the risk of
losing the job and the visa being terminated. Ultimately, there may be amicable
settlement and/ or quashing of proceedings or acquittal/discharge but the damage has
already been done. The prospect of the accused remaining unemployed would not be
in the interests of both as the loss of earnings will have a bearing on the maintenance
claims of the wife, apart from depriving him of the means of livelihood. The proper
course would be to take bonds and sureties for heavy amounts and the prosecution
taking necessary steps to expeditiously complete the trial. This aspect should also be
brought to the notice of concerned police officers by means of circulars issued by the
DGPs. 31

29
ibid
30
ibid
31
Id.

50
3.6 LAW COMMISSION OF INDIA RECOMMENDATIONS
The Law Commission of India which is an extensive body formulated under the
Government Of India, works continuously for legal reforms which is seen in its
various reports. The Commission in its 243rd report put forward certain significant
recommendations proposed by the Apex Court and various High courts when it comes
to keep a check on the arbitrary use of section 498A. It as follows-

 The apex court and in addition different High Courts has judicially seen abuse of
Section 498-A much of the time. Additionally, this has been observed by the
Parliamentary Committee on Petitions (Rajya Sabha). Be that as it may, abuse (the
degree of which is not set up by any exact review) independent from anyone else
is not a ground to cancel S, 498-An or to expose the Section of its teeth. The
social goal behind the Section and the requirement for discouragement ought to be
kept in view while in the meantime guaranteeing that the complaints filed with
false or exaggerated charges out of ulterior thought processes or in a fit of emotion
ought to be checked.

 The need to spread attention and awareness of the provision and the available
cures particularly in rural areas both among men and women is important and in
this regard the District and Taluka Legal Services Authorities, the media, the
NGOs and law studenrts can assume a significant part.

 An action plan must be drawn up for building up the panels in each district and
additionally stretching out vital help to the aggrieved women. The I.O. ought to
abstain from taking part in the conciliation process. 32

 The offense under S, 498-A should be made compoundable, with the consent
of Court and subject to cooling off time of 3 months, as of now prescribed by
law Commission in its 237report.

 The law on the question whether enrollment of FIR could be delayed for a
reasonable time is in a condition of uncertainty. Some High Courts have been
coordinating that FIR might not be enrolled under S, 498A (aside from in
instances of unmistakable savagery, and so forth) till the preliminary

32
LCI, 243rd Report on Section 498A, August 2012

51
 investigation is done and compromise process is finished. The issue has been
referred to a larger bench of Supreme Court lately. In such manner, the police
needs to follow the law laid down by the jurisdictional High Court until the
Supreme Court finalizes the matter.

 The requirement for custodial cross - examination ought to be cautiously

evaluated. Over-response and inaction are equally incorrect. Police ought to
find a way to guarantee wellbeing of the complainant.

 The women police stations (under the classification of Crimes Against Women
Cell) ought to be reinforced both quantitatively and subjectively. All around
prepared and instructed woman cops of the rank of Inspector or above should
head such police headquarters. CWCs ought to be set up in each area with
satisfactory prepared staff. Boards of capable expert advisors and regarded
senior citizens/experts who can advice and appease ought to be kept up by
SP/SSP for each area. There should be separate room in the police
headquarters for women complainants and the accused women in Sec.498-A
related cases and to counteract additional acts of harassment.33

3.7 JUDICIAL DECISIONS

Herein the judiciary takes the double stand of taking away the protective shield of law
from women the moment she misuses it and by denying the rights of another women,
it in a way protects the legality status enjoyed by the wife but on the same platform it
shuts its eye to the hardships a concubine go through.

A. CASES EXPOSING WOMEN’S ABUSE OF PROVISION

In the case of Preeti Gupta Vs. State of Jharkhand decided in 2010, the Supreme
Court observed that a serious relook of the provision is warranted by the Legislature.
The Court said: “It is a matter of common knowledge that exaggerated versions of the
incidents are reflected in a large number of complaints”. The Court made serious
observations of the tendency, which is becoming common nowadays to embroil
husband and all his immediate relations. The Supreme Court directed the Registry to
send a copy of judgment to the Law Commission and Union Law Secretary so that

33
ibid

52
appropriate steps may be taken in the larger interests of society. 34 In an earlier case
also - Sushil Kumar Sharma Vs. UOI (2005)35, the Supreme Court lamented that in
many instances, complaints under s.498A were being filed with an oblique motive to
wreck personal vendetta and observed. “It may therefore become necessary for the
Legislature to find out ways how the makers of frivolous complaints or allegations
can be appropriately dealt with”. It was also observed “by misuse of the provision, a
new legal terrorism can be unleashed”.

Different High Courts in the nation have additionally noticed that in a few occasions,
omnibus claims are made against the spouse and his relations and the grievances are
documented without legitimate defense. The need to exercise alert on account of
capture of the spouse and his relatives has been focused while watching that by such a
step, the likelihood of compromise becomes remote and troublesome. In a portion of
the cases, the High Court's gave the directions for monitoring the power of arrest and
for finding a way to take up conciliatory efforts as early as possible.

Reference may be made in this context to the decision of Delhi High Court in
Chandrabhan Vs. State (order dated 4.8.2008 in Bail application No.1627/2008) and
of the Madras High Court in the case of Tr. Ramaiah Vs. State (order dated 7.7.2008
and 4.8.2008 in MP No.1 of 2008 in Crl. O.P. No.10896 of 2008). In the former case,
it was observed “there is no iota of doubt that most of the complaints are filed in the
heat of the moment over trifling fights and ego clashes. It is also a matter of common
knowledge that in their tussle and ongoing hostility, the hapless children are the worst
victims”.

The following directions were given to the police experts:36

i) FIR ought not be enrolled in a normal way.

ii) Endeavor of the police ought to be to investigate objections painstakingly and

after that enlist FIR.

iii) No case under area 498-A/406 IPC ought to be enrolled without the prior
approval of DCP/Addl. DCP.

34
AIR 2010 SC 3363
35
2005 6 SCC 281
36 LCI, 243rd Report on Section 498A, August 2012

53
(iv) Before the enrollment of FIR, every single conceivable efforts ought to be made
for compromise and in the event that it is found that there is no plausibility of
settlement, then, necessary steps should, in the first place, be taken to guarantee
return of stridhan and dowry articles to the complainant.

v) Arrest of main accused be made simply after exhaustive examination has been
directed and with the earlier endorsement of the ACP/DCP.

vi) In the instance of co-lateral accused, for example, in-laws, earlier endorsement
of DCP ought to be there on the record.

In an earlier judgment of Delhi High Court in the case of “Court on its own in Motion
vs. CBI”, reported in 109 (2003) Delhi Law Times 494, similar directions were issued
to the police and courts regarding arrest, grant of bail, conciliation etc. It appears that
these procedural directions issued by the High Court are being followed in Delhi as
stated by senior police officers of Delhi, though according to the version of some
lawyers, there are many instances of violation at the police station level. It is to be
mentioned that after the order in Chander Bhan’s case, (supra), the Commissioner of
Police of Delhi issued Standing Order No.330 of 2008 compiling the “Guidelines for
Arrest” as laid down by the Supreme Court and Delhi High Court. The judgments
relevant to Section 498-A and the directions issued therein were referred to in the
Standing Order. It is learnt that the practice of obtaining the permission of ACP/DCP
level officers before effecting arrest of husband/relatives is being followed in Delhi.
In many States, according to information received by the Chairman of this
Commission, there are no systemic guidelines and there is no regular monitoring of
this type of cases by the higher officials. Ad-hoc practices and procedures are in
vogue.

Pursuant to the order of the Madras High Court in T.Ramiah, the Court observed that
when the I.O. seeks remand of the accused, the Magistrate must examine the necessity
and the remand should not be ordered mechanically on the mere request of the I.O.
The Magistrate should be satisfied that sufficient grounds exist for directing remand.
Further, the Court deprecated the practice of conducting lengthy panchayats in police
stations. 37

37
ibid

54
The decision of Madras High court goes to the extent of saying that arrest can be
made only after filing of the final report before the Magistrate and on the basis of non-
bailable warrant issued by the Magistrate. Whether this judicial law-making based on
experience and expediency of restraining the power of arrest in matters arising out of
matrimonial problems, is legally sound is one question that arises. Secondly, whether
the registration of FIR can be deferred for sometime i.e., till initial investigation and
reconciliation process is completed, is another point that arises.38

B. CASES VOICING FOR WOMEN’S JUSTICE

The Supreme Court in Indra Sharma v V.K.V Sharma held that “the appellant was not
ignorant of the fact that the respondent is a married person with a wife and two
children, hence, was party to an adulterous and bigamous relationship. Appellant had
entered into this relationship knowing well that respondent is a married person and
encouraged a bigamous relationship. By entering into such a relationship, the
appellant has committed an intentional tort i.e., interference in the marital relationship
by intentionally alienating the respondent from his family, i.e., his wife and children.
The appellant has been fully aware of the fact that respondent was a married man,
could not have entered into a live in relationship in the nature of marriage. All live-in
relationships are relationships in the nature of marriage. Appellant’s and
Respondent’s relationship is, therefore not a relationship in the “nature of marriage”
because it has no inherent and essential characteristic of marriage, but a relationship
other than “in the nature of marriage”, and the appellant’s status is lower than the
status of a wife and that relationship would not fall within the definition of “domestic
relationship” of the section 2(f) of the DV Act. Consequently, any act, omission or
commission or conduct of the respondent in connection with that type of relationship,
would not amount to “domestic violence” under section 3 of the Domestic Violence
act.”39

Is to be clearly seen that Supreme Court has been contending the issue of whether the
‘live-in relationships’ are equivalent to the ‘relationship in the nature of marriage’. It
is pertinent at this point to pause and paddle through the development of law with
respect to rights of women in live-in relationship leading up to the judgment in Indra

38 ibid
39
Crl Appeal No 2009 of 2013

55
Sharma. Once the Domestic Violence Act came into existence, there was a spree of
complaints by women in non-matrimonial relationships against their partners.
Therefore, we can see that the Court has the required reason and occasion to widen
the ambit of the term ‘relationship in the nature of marriage’ which is well defined in
Section 2(f) of the Act. In one judgment, Madras High Court took the view that as
long as the parties were close, and had lived together at some point of time, even
without the promise of marriage, an application under the DV Act would be
maintainable. 40 Thus, the lacuna to be examined by this judgment is that one, the
definition under section 2(f) of the Act is not illustrative and two, that it only caters to
the legally wedded bond of a husband and wife and completely negates other physical
relationships between a man and a woman.

In another landmark case, Pinakin Mahipatray Rawal v State of Gujarat the Supreme
Court held that the “alienation of affection is an intentional tort which gives a cause of
action to the wife and children of the respondent to sue the appellant for alienating the
husband/father from the company of his wife/children, knowing fully well that they
are legally wedded wife/children of the respondent.”41

The Court in this case has applied the tort of alienation of affection into Indian law,
by laying dependence on some judgments of Mississippi State. To my consideration,
such application of tort of alienation of affection is improper to be applied in India.
Moreover, it is highly questionable to see a woman in the tort of alienation of
affection be refused to get maintenance by her husband.

Section 2(f) of the act defines a “domestic relationship” to mean “a relationship

between two persons who live, or have, at any time, lived together in a shared
household, when they are related by consanguinity, marriage or through a relationship
in the nature of marriage, adoption or are family members living together as a joint
family”. 42 The phrase ‘in the nature of marriage’ includes live in relations or
cohabiting. Regrettably, it is defined in the act but left to the visionary wisdom of the
Courts to interpret it, the Supreme Court in D. Velusamy v. D. Patchaiammal, held
that the a ‘relationship in the nature of marriage’ under the 2005 Act must also

40
M. Palani v. Meenakshi, AIR 2008 Mad 162.
41
Pinakin Mahipatray Rawal vs State Of Gujarat Crl. App NO.811 OF 2004
42
Section 2 (f) of PWDVA, 2005

56
effectuate some elemental criteria. If a man and a woman spends weekends together
or a one stand that does not convert that relation into a ‘domestic relation’. The Court
also observed that if a man has a ‘keep’ whom he maintains financially and keeps
primarily for sexual purposes, then in the opinion of the Court, it would not fall under
the category of the relationship in the nature of marriage. The Court observed that
knowing the fact that live in relationships are becoming common in India, however no
legal entitlements ensue by such relationship. Henceforth, it makes it clear that no
maintenance is granted to the mistress under law in our country. The Court under the
garb of interpretation cannot alter the language of the Statute.

From the cumulative analysis of the judgments it can be seen that at one place, the
Courts decisions point out the women are rampantly misusing the provision hence
every care should be taken by the investigative agency while carrying out the arrest
and investigation on whether the complaint has any truth in it or not. In the second
place, we encounter such judgments in which the women were differentiated in the
eyes of law wherein the Supreme Court denied any relief to a concubine in the Indian
Legal System.

An answer under feminist understanding can be seen in postmodernism, which

narrates that the problem lies in the understanding of the ‘woman’ as a subject. As
postmodernism tries to debunk the old social structures, which have been prevalent in
the society, as in men, are regarded as doing the set of roles and women are expected
of certain roles and accordingly their treatment in the society is seen.

To conclude the chapter we can see that there is a change in the understanding of the
section and its use also. It is true that women were tortured by their insensitive
husbands and cruel in-laws and one of the major reason for such a treatment was non
awareness of the women of their rights and to realize their rights feminist movement
internationally and its impact nationally has helped the women to voice for their rights
and interests. Nevertheless, with the positive impacts of women empowerment comes
the negatives too and it is now seen the way the Protection of Women of Domestic
Violence Provision is altered and misused by the wives to incarcerate their spouses
and his family for their self interest. The NCRB data shows that there is an increase in
the cases registered under domestic violence but clearly does not give comparative
indicator of the actual atrocities carried on women, hence it is debatable. If we

57
analyze then the sphere of Domestic Violence is such that it victimizes women and
demonizes men and makes such gender constructs in which we see ‘men’ are seen as
creatures of inflicting violence; they portray a powerful and controlling position over
the other sex. On the contrary, there is ‘women’ who is considered weak and meek.
Thus, this displays the legality of the provision. From the lens of reality, the gender
construct is not seen in binary opposition rather as a spectrum and amidst this
construct of man and woman and there are many other identities as well. Therefore,
the narrative of postmodernism questions that social structure in which women is not
seen as someone who cannot be violent, who can abuse the laws primarily made for
her protection.

Hence, what could come as a rescue for the genuine innocent husbands and his family
is the well-functioning police authorities which functions according to the guidelines
directed by the Court and put back the lost trust of the community in the credibility,
competence, truth finding ability and integrity of the investigative agencies.

58
 CHAPTER 4

ADULTERY- AN OFFENCE WITH WOMEN OR MEN

4.1 MEANING

Section 497 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
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.1

What section 198 says of the code of criminal procedure code that the husband of the
married woman, who had sexual intercourse with another man, could file a case
against the male who indulged in the act with her…2

The framers of the Code did not make adultery an offence punishable under the
Code. 3 But the Second Law Commission, after giving mature consideration to the
subject, comes to the conclusion that it was not advisable to exclude this offence from
the Code.4 Adultery figures in the penal laws of many nations, and some of the most
celebrated English lawyers have considered its omission from the English law a
defect.5

The rationale of the legislation behind formulating this section can be seen in the logic
of the term ‘adulterate’- meaning to make something impure. Here what we want to
question is the ultra feminist understanding of the section and implementation of it in
a patriarchal and regressive way.

Now the underlying idea of this section can be derived as, wives are “properties” of
their husbands and give him the choice to control that who she sleeps with or does not
sleep with.6 So does that mean if the husband makes his wife sleep with other people

1Section 497, The Indian Penal Code, 1860

2
Section 198, The Code of Criminal Procedure, 1973
3
Dr. Dalbir Bharti, Women And The Law, 2008
4
Bharat Chugh, Law And Adultery In India- Legal Services In India, at www.legalservicesindia.com
5
Ratanlal & Dhirajlal, The Indian Penal Code, Thirty Fourth edition.
6
Feminist Understanding of Adultery, Nov 15,2016, lexhindustan.com

59
without her consent that is legal? This law gives all the power to the man. The woman
is not considered “capable enough” to decide what is good or bad for her. Which
brings us to the second issue. As it has already been stated that women in this law are
treated as property and not able enough to do something, women cannot be charged
for adultery which places them at a very advantageous position.7 According to Justice
Y V Chandrachud, “It is commonly accepted that it is the man who is the seducer and
not the woman” and that “The contemplation of the law, evidently is that the wife
who is involved in an illicit relationship with another man, is a victim and not the
author of the crime.” But is it really so? Are women that innocent? Why is the
willfully participating women let gone?8

There should not be much dispute about the fact that sexuality is central to feminist
theory and thus should also be of concern to feminist legal theorists. But the way it
has been central is in the uncovering of the male power behind sex, of the ways in
which men against women use sex. Fineman's challenge is a deeper one. She
questions the positive claims made in the name of sexuality. Specifically, she asks
whether the sexual relationship of marriage is worthy of all the state protection that it
currently enjoys.9

How sexual privacy contributes its value in the larger society is through two ways:
(1)the privacy of sex is important because it safeguards individuals from public
disagreements about things that are deeply sensed, e.g., same-sex intimacy; and (2)
protecting privacy in connection with sexual relationships is desirable not just because
privacy is good, but because sex is good. It is good because through intimate sexual
relations with another, the self can learn its own limits and experience altruism toward
another. Or as Candace Volger puts it, intimacy can be “a matter of reciprocal self-
expression and self-scrutiny.”10

4.2 SEXUALITY IN FEMINISM

Ruth Colker describes some of the questions debated in her paper "Feminism,
Sexuality and Authenticity," published as part of a collection in At the Boundaries of
7
ibid
8
Smt. Sowmithri Vishnu vs Union Of India & Anr 1985 AIR 1618, 1985 SCR Supl. (1) 741
9
Patricia Cain, Feminism and Legal Theory Project – 20th Summer,2003
10
Intimacies can be this sharing of self, but they can also be depersonalized. See, Vogler, sex and Talk,
in Intimacy at 48.

60
Law11 She suggests, "an emphasis on sexuality within a woman's life may be feminine
12
but not feminist." Mackinnon claims that women under patriarchy undoubtedly
suffer from false- consciousness.

Robin West, gives her own appraisal of the feminist assertion that getting sexually
passive is dreadful from the point of view of a woman. According to her, the liberal
feminists have taken it completely wrong that women can take independent sexual
decisions as an autonomous being as they base their assumption on the reasoning that
women, like men, sovereign individuals hence, the more the choices are given to the
women, the more it is better for them to become self-governing in their approach.
Then, she takes up the viewpoint of the radical feminists, which is may be not
completely incorrect in suggesting that the problem lies in the conception of power. In
this power dynamics, the women do not have it and men relish it and if this power
dynamics will be balanced then woman will benefit. Mackinnon terms such attitude of
sexual submissiveness pleasurable to women as false consciousness, however as per
West, MacKinnon is not indulging with the feminist method completely by not
concentrating on what some women say.13

As a historical concept, sex may have been less private in earlier times. Privacy, as a
right, an exception, a legal concept, began to be formulated in late 1800s. 14
Interestingly, that is the same time that the importance of sexual activity in relation to
self-concept seems to have increased. One theory postulates that the inner personal
life took modern shape with the rise of capitalism, romanticism, and the need of
workers to have some identification of self part from material production.15

Laws that exceedingly administer sexuality, limit women’s choices and laws that
safeguard the privacy of the family facilitate battering and rape. A key contribution of
feminism has been that sexuality need not be co related to procreation. Sex can be
pleasure or danger, but it is more likely to be pleasure when it is not linked to the risk
of pregnancy.

11 Transcending The Boundaries of Law, Generations of Feminism and Legal Theory ed by Martha
Albertson Fineman, July 2010.
12
Ibid
13
Cynthia V. Ward , The Radical Feminist Defense of Individualism , William & Mary Law School,
1995
14
See Warren and Brandeis article, and Cain, The Right to Privacy, Montana Law Review (2003).
15See Eli Zaretsky, Capitalism, the Family, and Personal Life (1976)

61
In Nigeria, an Islamic court in the northern town of Funtua sentenced a woman to be
stoned to death for having sex outside of marriage.16 Amina Lawal Kurami ("Lawal")
was first sentenced in March 2003 after giving birth to her daughter more than nine
months after divorcing - an indication of guilt under the law.17 Her sentence was to be
carried out as soon as her baby was weaned. 18 Had it gone forward, the sentence
would have been administered publicly: after burying Lawal in dirt up to her neck, the
male villagers would throw stones at her head until she died, a process which has been
known to take hours.19 The man she named as her baby's father did not acknowledge
the genuineness of his paternity, and was resultantly acquitted for lack of evidence.

This move has deeply divided the country and placed Nigeria under a spotlight of
international criticism.20 Only women have been convicted of adultery and sentenced
to death by stoning. 21 Adultery is one of the more serious crimes under Nigeria's
version of Sharia22As such, it carries a high standard of proof for conviction.23Without
a confession, which may be retracted up until the time of execution, four witnesses
must testify to having witnessed the penetration of a woman. The only other evidence
that is allowed is pregnancy. 24 A woman who was raped must prove that she was
25
attacked; she faces harsh punishments for defamation if she cannot.

Now, this comes in a direct contradiction with conceptualizing adultery as a matter of

privacy.

4.3 ADULTERY – A REASON FOR MANSLAUGHTER

Contemporary scholars naturally have questioned the continued viability of the

paradigm of adultery killings in a society that no longer embraces the view that
women are property.26 The infidelity paradigm rests on a fundamentally flawed and

16
www.cnn.com, Nigerian government to fight death by stoning (August 22, 2002).
17
Id.
18
BBC News, Nigeria's stoning appeal fails (August 10, 2002) available at http://news.bbc.co.uk
19
Voice of America News, Nigerian court over turns stoning sentence in adultery case (September 26,
2003), available at http://www.africaonline.com
20
Feminist.com, Final Decision Expected in Nigerian stoning Case (March 18, 2002).
21
Id.
22
Id.
23
http:/www.now.org (National Organization Of Women, Fact Sheet: Women’s Rights in Northern
Nigeria) 2002
24
Id.
25
Final Decision, supra note 7.
26
See, e.g., Caroline Forell & Donna M. Mathews, A Law Of Her Own: The Reasonable Woman As A
Measure Of Man 178-94 (1999)

62
inadequately examined premise: the provocation defense nonchalantly asserts, and the
dominant scholarship regarding the defense accepts, that to a certain extent we simply
cannot expect people to control themselves when faced with the sight of a faithless
spouse. This is not true. We should, and in fact do, have more control over our
passions than the defense and the prevailing scholarship assume.27

In fact, people do have control over their actions despite provocation

It might sound strange to some legal scholars but there can be found abundant
evidence where people do have control over themselves, even in the face of great
provocation.28

For example, "as Richard Hernstein puts it, when husbands and wives start throwing
dishes at each other, they do not usually throw the fine china."29 To the extent that this
wry observation is accurate, it demonstrates that even in the throes of passion, people
maintain sufficient control to choose how they express their anger, and to refrain from
doing anything they might regret too strongly. If people can choose not to break the
fine china (as they no doubt can-like many jokes, this one is only funny because it
rings true), then naturally it follows that they can choose not to kill. 30

There are no verifiable statistics on how many people have managed to refrain from
killing their adulterous spouses-after all, "who knows what evil lurks in the hearts of
men?"31 But with perhaps 40% of married women and 50% of married men admitting
to having sex with someone who was not their spouse, 32 and with the number of
murder and non-negligent manslaughter convictions involving a "romantic triangle" is
increasing, odds are good that many people have discovered their spouses to be
committing adultery and still refrained from killing them.

27
Susan D. Rozelle, Controlling Passion: Adultery And The Provocation Defense, 2017 .
28
B.F. Skinner , Beyond Freedom And Dignity (1971)(asserting human behavior is determined by
combination of genetics and environment, and the only prospect for change in behavior lies in change
to environment).
29
James Q. Wilson, Thinking About Crime 127 (rev. ed. Vintage Books 1985) (1975).
30
ibid
31
"Only The Shadow knows." The Shadow was the lead character in a long-running radio show of the
same name (1936-1954), a nice biography of which is available at
http://www.pulps.westumulka.com/shadow/ (last visited Dec. 22, 2005).
32
Lorraine Ali & Lisa Miller, The Secret Lives of Wives, Newsweek, July 12, 2004, at 48.

63
The fact that people get angry is detached from what they decide to do with their
anger. As Professor Dressier wrote in an exchange with Professor Richard Delgado
regarding a brainwashing defense, "The defendant could have vented his anger in
many non-criminal ways: bythrowing an object at the wall of his house, screaming or
running around the block. Instead, he exercised an independent and personal choice
33
[to commit a violent crime].''

If we can take that reasonable people do not kill as a truism and people do have
dominance over their manner of emotional expression, then the excuse explanation of
provocation does not please. Henceforth, provocation cannot be used as an excuse
defense, because as a philosophical matter, it is desirable to construct our penal
system on the presumption that provocations can be combated, at least until the point
at which a full insanity defense would be activated and as an empirical matter, it
shows that this more sensible premise is correct. The ordinary, law-abiding and
reasonable person can stop himself from killing, notwithstanding the paradigmatically
legally capable provocation of seeing his wife doing adultery.

The law appears to put the onus of cheating totally on the man and lessens women to
asset, unequipped for settling on their own choices, just to be "utilized" and "abused"
by their overlords. Infidelity for the most part means consensual sex between a
wedded individual and a man who is not their life partner. It is not another idea to the
world; despite what might be expected, it has existed in practically every recorded
time. In India, the law expresses that lone a man can document an instance of
infidelity and that too against a man with whom his better half has supposedly laid
down with. Along these lines, fundamentally, a lady can neither document an instance
of infidelity, nor would she be able to be prosecuted on the ground of infidelity. This
cuts sex segregation both ways, that is, it oppresses men and women....

33
Joshua Dressier, Professor Delgado's "Brainwashing" Defense: Courting a Determinist Legal System,
63 Minn. L. Rev. 335, 346 (1979). This may sound flippant. It is undoubtedly easy for the unruffled
academic (and in my case, a female one at that, raised in a socio-economically advantaged environment
with all the powers of socialization brought to bear on learning appropriate ways to express anger at her
disposal since infancy) to observe that the provoked person can simply choose to count to ten, or leave
the room, or scream and shout and jump up and down, rather than choosing to kill. But like the runway
model with the preternaturally fast metabolism that tells dieters they would lose weight if only they ate
less and exercised more, the offensive presumptuousness of the messenger does not change the
fundamental truth of the message.

64
It victimizes men on the grounds that while they can be prosecuted for the
wrongdoing of infidelity on the off chance that they lay down with a wedded lady, a
lady can't be indicted for laying down with a wedded man. This law on infidelity
victimizes ladies, as well, in light of the fact that while a wedded man can document
an instance of infidelity, a wedded lady can't file a case against the spouse or against
the lady with whom her better half dozed.

4.4 QUESTIONING THE PROVISION’S RELEVANCE

Few principles have managed to attain the widespread acceptance which the 'Harm
Principle"34has ever since Mill postulated it as being a core constituent of a libertarian
society. This means that the only conduct, which results in causing verifiable harm to
another, should be the subject of state sanction.35 The durability of this principle must
in part be applied to its vagueness: the idea of harm is so subjective that different
persons could populate the contents of this principle in a manner they deemed fit.36

Can we rationalize adultery by putting it in the prism of the harm principle? The
conduct in question is marital infidelity of either spouse. What harm does it bring, and
to whom? The near-universal restriction on prosecutions requiring private complaints
seems to indicate the spouse is the aggrieved party. Which still leaves one to consider,
what harm is done to the other spouse by marital infidelity? My potential wife may
harm me by repeatedly reminding me of my failed academic career, but curbing her
nagging by labeling it a crime would be unreasonable by any yardstick of standards.
My private rights should logically proceed to the creation and enforcement of private
remedies such as divorce, not grounds for engaging the might of state sanction.

Perhaps recognizing the difficulties in justifying an offence of adultery by projecting

it as means to enforce private rights, most states in fact present this as a means to
safeguard the institution of marriage. 37 Marital infidelity is considered morally
abhorrent by society and the moral rights of the aggrieved spouse along with society's
interest in marriage warrant protection, thereby requiring state sanction. Is this a

34
John Stuart Mill, On Liberty 12 (1859).
35
See also, Joel Feinberg, Debris From the Hart-DevlinDebate,72(2) Kurt Baier Festschrift 249, 250
(1987); See Joel Feinberg, Harm To Others (1984).
36
This is well borne out by the reams of literature on the subject. Consider, for instance, Joel Feinburg,
Harm To Others (1984); R.A. Duff, Answering For Crime 141-42 (2007); Graham Hughes, Morals and
the Criminal Law, 71(4) Yale L.J.662 (1962); Sir Patrick Devlin, Morals and the Criminal Law, in The
Enforcement Of Morals 1, 17 (1959); H.L.A. Hart, LAW, Liberty And Morality 51 (1963).
37
Section 497 in the IPC is placed within the Chapter titled “Offences against Marriage”.

65
legitimate ground to criminalize conduct? Yes, for today it is widely accepted that one
among the several factors guiding criminalization is morality.38 But this comes with
obvious concerns of overreach, reflected well by the debates between Professor Hart
and Lord Devlin in the aftermath of the Wolfenden Committee Report of 1958. 39
Liberal theorists such as Professor Hart today hold a position that “not everything in a
person’s morals should be the concern of the law, only his disposition to violate the
rights of other parties.” 40 But this still remains far from legal moralists like Lord
Devlin, who consider moral wrongfulness sufficient for criminalization regardless of
41
other factors.

Thus, although roots of adultery offences are ecclesiastical, they have some basis in
modern principles of criminalization as well which recognize morality as part of the
process. These are not merely means for enforcing sexual monogamy in marriage, but
recognize sexual fidelity as an integral part of marriage. The freedom to enter private
sexual relations is seen as subservient to the larger social good of promoting and
safeguarding the institution of marriage. By deterring individuals from engaging in
conduct potentially harming a marital relationship, these laws protect the sanctity of
marriage, considered a valuable social good.42

Adultery can be seen as an emotional sin, rather than a physical sin. Mr. Goydan
argued that the law should condemn the spirit of adultery, whether via e-mail or hard
copy, because of the effect this infidelity had on him emotionally, not because of the
physical betrayal.43 Thus, adultery should not be restricted to the physical act, but
should also incorporate the emotional and technological elements as well.

In the early times, adultery was characterized as theft. Since women were considered
as the “property” of the husband, hence, any act of adultery was regarded as an act of
theft. Historically, the law harshly punished the wayward spouse for "lying" 44with

38
Abhinav Sekhri, The Good, The Bad, And The adulterous: Criminal Law And Adultery In India, 10
Socio-Legal Rev. 47 2014.
39
Sir Patrick Devlin, Morals and the Criminal Law, in THE ENFORCEMENT OF MORALS 1,
17(1959); H.L.A. HART, LAW, LIBERTY ANDMORALITY 51 (1963).
40
H.L.A. HART, LAW, LIBERTY ANDMORALITY 51 (1963).
41
Id
42
Supra note 38 at 51.
43
Jeffrey Gold, Explicit E-mail Isn’t Adultery Lawyers Say, Recorded, Feb. 8, 1996, at A5
44
See Linda E. Speth 7 Alison Duncan Hirsch, Women, Family, And Community In Colonial America:
Two Perspectives 57 (1983) (describing the proceedings in an adultery-based divorce case in
Connecticut in 1735).

66
another man’s wife.45 As divorce became more widespread, adultery had to be defined
in more concrete terms. On the other hand, if we take the case of New York, the
constituents of the crime were made explicitly clear on the fact that the voluntary
intercourse of a married person with someone other than their spouse is the ground for
divorce until 1967. In most states, in order to prove adultery in a divorce proceeding,
the wronged spouse had to show both the opportunity and the disposition to commit
this offense. These elements were often proven by “circumstance, implication, or
espinoge.”46

The simple and plain reading of the section says that it is such sexual intercourse,
which is without the consent of the husband, but what many undermine the section’s
reading that it has the consent of the party involved.

Connivance is the willing consent to a conjugal offence, or a culpable acquiescence in

a course of conduct reasonably likely to lead to the offence being committed. 47

Adultery is a crime in India, and the first impression one gets was the amazement and
anger at the State’s apparent intrusion into the apparently private sexual realms of life.
Such moralists, those Legislators: putting their moral compass on the unsuspected
citizenry. What concerns here is how the society treats adultery because the act of
being sexual unfaithful to one’s spouse has been prevailing in human society for as
long as remembers.

The commonness of adulterous relationship is balanced only by condemnation by

society, depending on where one might be living; the degree of this condemnation
varies. In the U.S.A., several state laws criminalize adultery although no federal
statute creates such an offence. 48Offences can also be found in many Asian countries:
Taiwan, Philippines, Saudi Arabia, 49and undoubtedly in India under Section 497 of
IPC.

45
The double-standard, which pervaded much of the law surrounding adultery from Roman times, will not
be addressed in detail. For more on this subject, see Annette Lawson, An analysis Of Love And Betrayal 41-
43 (1988) (tracing bias against women in adultery laws from ancient times).
46
Michael E. Mayer, Divorce and Annulment in the Fifty States (1967),at 5.
47
Stroud’s Judicial Dictionary, Vol I, p.580.
48
The states of Idaho, Utah, Arizona, Kansas, Oklahoma, Minnesota, Wisconsin, Illinois, Michigan,
Mississippi, Alabama, North Carolina, South Carolina, New York, Florida, Georgia, Virginia
Alabama,NorthCarolina,.See,NewHampshirevotestoRepealAntiAdulteryLaw,USATODAY,April17,2014,
49
Adultery Laws: where is cheating still illegal?, in The Week, February, 27, 2015

67
4.5 FROM ‘ROOT’ TO ‘RECENT’
In India, the laws of Manu did not punish an adulterous husband and required a wife
to always remain reverent to her 'master'.50 According to Manusmriti, Day and night
woman must be kept in dependence by the males (of) their (families), and, if they
attach themselves to sensual enjoyments, they must be kept under one's control. Her
father protects her in childhood, her husband protects her in youth, and her sons
protect her in old age; a woman is never fit for independence.

The classic case of infidelity in Hindu Puranas is that of Ahalya. She was hoodwinked
by Indra and drawn into an unlawful relationship for which she endured the worst
part. Episodes of women getting into an illicit relationship behind their spouses and
husbands having unlawful illicit relationships with other ladies were not obscure in
old India. Stories woven around the subject have been a piece of the Indian fables.
Nonetheless, Hinduism does not support extramarital connections.

Hindu law books are very severe against adultery, not only for moral reasons but also
for social reasons. They consider that it would lead to confusion of castes, degradation
of family values and social disorder.

The ancient Hindu law books distinguished adulterous relationships involving married
women from those involving free women. The former attracted a higher punishment.
The law books also treated differently acts of adultery involving different caste
women. The higher the caste of the woman and lower the caste of man, the greater
was the severity of punishment.

Ancient Hindu society was not free from the problem of adultery. Hindu mythology
has number of stories illustrating the manner in which gods themselves often indulged
in adulterous thoughts and actions. Lord Rama banished his wife Sita into the forests
on the mere allegation of possible adultery. The stories depicting the libidinous
activities of some Hindu divinities such as Indra and Agni with the wives of some
virtuous rishis are well known. Manu was particularly suspicious of women's behavior
and prescribed strict code of conduct for men to keep a watch on their women so that
would not fall into evil ways and bring disrepute to themselves and to their families.
He believed that if women were left alone, they would succumb to evil temptations
50
Charles Jean Marie Letourneau, The Evolution Of Marriage, 220-222 (Havelock Ellis ed., 1911).

68
and bring sorrow on their families. He declared that women would easily succumb to
men, caring neither for age nor for looks. "Through their passion for men, through
their mutable temper, through their natural heartlessness, they become disloyal
towards their husbands, however carefully they may be guarded in this world.
Knowing their disposition, which the Lord of creatures laid in them at the creation, to
be such, every man should most strenuously exert himself to guard them."
(Manu:9.14-15).51

In the 19th century Britain considered married women to be chattel of their husbands
in law,52and the unfaithful man subjected a promiscuous wife to ostracism far worse
than that faced. 53 But despite this, adultery was never a crime either by statute or
common law. In its heyday, adultery was a tort (labeled "criminal conversation"),
which was also abolished in 1857.54 Therefore, the idea of making adultery criminal
was in fact quite alien to the framers of the IPC.

Mr. Macaulay, instrumental in the early drafting process, gave due consideration to
the possibility of criminalizing adultery in India. He concluded it would serve little
purpose. For him, the possible benefits from an adultery offence would be better
achieved through pecuniary compensation in most cases. He accepted that for the
other cases the law could never provide a satisfactory solution in dealing with marital
infidelity given the sacramental nature of marriage.55People who were involved with
the task of finalizing the IPC disagreed and gave us Section 497. Although one can
trace their justification for exempting women from liability under the Section,56 it is

51
Available at Hinduism and Adultery, at www,hinduwest.com.
52
See e.g., Married Women’s Property Act, 1882 (45 & 46 Vict., c. 30)
53
Ann Summer Homes, The Double Standard in English Divorce Laws, 1857-1923, 20(2) Law and
Social Enquiry 601, 605 (1995). The author suggests reasons for the partiality, that adultery of the wife
would cause confusion in the determination of the heirs to the property and thus deserves stricter
punishment.
54
Id.
55
Macaulay’s Draft Penal Code, Note Q (1837); as cited in the 42nd Report of the Law Commission of
India, Indian Penal Code, 324 (1971). The Law Commissioners did credit the idea of exempting the
wife under Section 497 IPC to Lord Macaulay, who stressed on the deplorable condition of women in
India. See, Law Commission Of India, 42nd Report: Indian Penal Code, 325 (1971).
56Though we well know that the dearest interests of the human race are closely connected with the
chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are some
peculiarities in the state of society in this country, which may well lead to a humane man to pause,
before he determines to punish the infidelity of wives. The condition of the women of this country is
unhappily very different from that of England and France. They are married while still children. They
are often neglected for other wives while still young. They share the attentions of a husband with
several rivals. To make laws for punishing the inconstancy of the wife, while the law admits the
privilege of the husband to fill his zenana with women, is a course which we are most reluctant to
adopt." Sir Walter Morgan & Arthur George Macpherson, THE INDIAN PENAL CODE (ACT XLV
OF 1860): WITH NOTES, 438 (1863).

69
arduous to find their logic for criminalizing adultery in the first place. Resultantly,
one must turn to the background participation of the various committees and courts in
their handling with the Section 497 for backing in determining the reason and intent
behind criminalization.

In one of its more ambitious projects, the Law Commission of India undertook a
comprehensive revision of the IPC, culminating in the 42nd Report by that
Commission. 57 The Report provided information about the legislative history of
Section 497, and offered a comparison with the position in France, England, and the
United States of America.58 The Commission posed itself questions not dissimilar to
the ones we are focusing upon here: doubting both the criminalization of adultery per
se and its particular manifestation in Section 497.59

After casting grave doubts over the purported benefit of criminal actions for
adulterous conduct, the Commission noted, "though some of us were personally
inclined to recommend repeal of the section, we think on the whole that the time has
not come yet come for making such a radical change in the existing position.60The
Commission did, however, recommend an amendment: removal of the exemption
from liability for women, and reduction of sentence from five to two years. 61 The
Report does not express what led the Commission to think abolishing adultery as
radical, nor does it furnish any justifications and why was there an exemption for
women. The Amendment never occurred, but the thought was followed up in the next
attempt at revising the IPC, which culminated in the 156th Report of the
Commission.62

4.6 JUDICIAL DECISIONS

The judicial system of our country is so exhaustive in its interpretation that time and
again it applies it’s judicial mind to answer the legal queries of the people keeping a
track of its social, political, economical implications on the parties involved and the
society at large.

57
John Stuart Mill, On Liberty 12 (1859).
58
ibid at 325-26
59
ibid
60
ibid
61
ibid at 327.
62LCI , 156th Report: Indian Penal Code(1997).

70
A.THE SUPREME COURT’S PANORMA

It is of no doubt that Section 497 IPC together with Section 198 Cr.P.C criminalizes
adultery. Evidently, it implements a particular moral position and safeguard the
institution of marriage by discouraging outsiders from undermining it through
malicious and immoral sexual feats. This is what the Legislature and Committees tell
us, but is this how the courts, which determine prosecutions brought under, examine
the offence Section 497 IPC?

Let us examine the decisions of Supreme Court and High Court.

From the time of Independence, three decisions of the Supreme Court have
acknowledged objections and threats to the constitutional vires of the adultery
provisions. Mr. Yusuf Abdul Aziz challenged the exemption from liability made for
women under Section 497 IPC, arguing the same was contrary to Article 14 of the
Constitution. Having lost at the Bombay High Court,63he moved the Supreme Court,
64
and five Judges gave the decision in Yusuf Abdul Aziz v. State of Bombay. The Court
unanimously held that the exemption for women was protective discrimination
safeguarded under Article 15(3) of the Constitution. Importantly, Mr. Aziz did not
65
impugn the validity of the offence itself.

In India, the law on adultery assumes that man is the “seducer’, the ‘accused’ and
women is viewed as a ‘victim’ although being an equal participant in the act. There
have been various debates about the discriminatory attitude of the provision. The
existence and validity of Section 497 is challenged both on the constitutional as well
as on the philosophical grounds. The report of Madhav Menon Committee, the
demand of National Commission for women and the 42nd report of the Law
Commission of India, have given a new ray of hope in the dying controversy.

The next landmark decision was Smt. Sowmithri Vishnu v. Union of India, delivered
by a bench of three judges in 1985. In this case, the petitioner enlarged the scope of
arguments to call into question the validity of Section 497 as standing in
contravention to Articles 14 and 21 of the Constitution, furthering notions of women

63Yusuf Abdul Aziz v. State of Bombay, 1951 (53) Bom LR 736.

64
Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930 (Supreme Court Of India).
65
ibid

71
as mere chattel. 66 The Petitioner put forward many intriguing arguments in his
petition i.e. Section 497 confers upon the husband the right to prosecute the adulterer
but, it does not confer any right upon the wife to prosecute the woman with whom
her husband has committed adultery; (ii) Section 497 does not confer any right on
the wife to prosecute the husband who has committed adultery with another woman;
and, (iii) Section 497 does not take in cases where the husband has sexual relations
with an unmarried women, with the result that husbands have, as it were, a free
license under the law to have extramarital relationship with unmarried women; and
(2) That the right to life includes the right to reputation and therefore if the outcome
of a trial is likely to affect the reputation of a person adversely, he or she ought to be
entitled appear and to be heard in that trial and since S. 497 does not contain a
provision that she must be impleaded as a necessary party to the prosecution or that
she would be entitled to be heard, the section is bad as violating Article 21 of the
Constitution.67

The court, however, continued to remain dubious and undecided and treated these
arguments as falling into the sphere of policy rather than law. But this did not stop the
bench from being intrigued with the arguments, administering us with a unique vision
into how three judges of the Supreme Court viewed issues of marriage and sexuality.
Annulling the contention that protects women from liability the equality guarantee,
the Court observed, "It is commonly accepted that it is the man who is the seducer and
not the woman".68The judges by exempting women conveyed the message that "the
wife, who is involved in an illicit relationship with another man, is a victim and not
the author of the crime".69The distinct structure behind the offence was justifiable,
because it was an "offence against the sanctity of the matrimonial home, an act which
is committed by a man, as it generally is. Therefore, those men who defile that
sanctity are brought within the net of the law".70 In consonance with this idea, the
Court quashed the adultery complaint since the complainant husband had obtained a
divorce from his allegedly adulterous wife.71

66
Sowmithri Vishnu, at para 5-6.
67
Id.
68
Sowmithri Vishnu, at para 7.
69
ibid, at para 8.
70
ibid, at para 8.
71
ibid, at para 13.

72
In the case V Revathi v. Union of India, the petitioner enlarged the horizon of her
arguments to criticize the validity of restrictions placed under Section 198(2) Cr.P.C
which authorize only the husband to set in motion a prosecution for adultery
committed by his wife and her paramour. In dismissing the petition, the court
recognized Section 497 IPC together with Section 198(2) Cr.P.C. as a "legislative

packet ' designed to "deal with the offence committed by an outsider to the
matrimonial unit who invades the peace and privacy of the matrimonial unit and
poisons the relationship between the two partners constituting the matrimonial unit...
It does not arm the two spouses to hit each other with the weapon of criminal
law.”Consequently, the court concluded that “even handed justice” was meted out to
72
both parties.

Therefore, the courts put forward the viewpoint laid down by the Legislatures and
Committees, claiming that the particular provision is based on the twin premise of (i)
women are victims and not aggressors, and (ii) restraining the couple from resorting
to the criminal law for concluding the disputes.

There are some things that the Supreme Court fails to explain though. For instance, if
the offence is about the community protecting the matrimonial home, why restrict
prosecutions to private complaints only by the husband of the woman? Further, how
can we explain the proviso to Section 497, which deems that any sexual intercourse
with the wife with consent or connivance of her husband is not considered an
offence? Ignore this, and the fact that the Court offers no evidence whatsoever to
support its rather sexist and generic statements, and you have a convincing alternate
argument constructed to repel the opposition, which portrays the offence as a relic of
romantic paternalism.73

B. THE VARIOUS HIGH COURTS’PERSPECTIVE

The High Courts of India preceded the formation of the Supreme Court by around
ninety years. This means that the broad set of cases encompassing an enormous
variety of issues have been dealt and discussed at this level of the Indian

72
(1988) 2 SCC 72
73
Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law and Adultery In India, 10
Socio-legal Rev. 47 2014.

73
constitutional courts. If one sits to search abundant databases for decisions on
adultery, one experiences a considerable accord of case law on the issue of adultery as
a ground for divorce. Courts have held consistently that the narrow definition under
Section 497 IPC could not be imported for these purposes.74

Consider first the issue of consent and connivance alluded to above. Admittedly, if I
had my hypothetical wife's consent before I cheated on her, it would not be adultery.
But her consent is immaterial here; the section makes material my consent to another
man for his sleeping with my wife. Now, if we consider this in the backdrop of the
consistent theme of women being the victims in adulterous relationships, one would
assume the court would insist upon some concrete proof of consent.75 A slightly taut
analogy may also be drawn here with the issue of consent in rape cases, where the
court insists upon strict proof.76 In cases under Section 497 though, we find courts
readily infer existence of consent from circumstances. 77In 2007, the Guwahati High
Court inferred consent on part of a husband who left his wife alone with her eventual
78
paramour who was a tenant in his house.

Effecting the consent of the husband substantial for prosecution extend greatly to an
argument that the offence is purely an imposition of his rights over the wife, inimical
to the views of the supreme Court. The Bombay High Court has on other incident
explicitly approved the perspective that Section 497 only furthers the husband’s
private rights. In Re Shankar Tulshiram Navle, the Court expressed that "adultery is
an infringement of the rights of the husband towards his wife, and whenthe offender

has once been convicted or acquitted of the offence of adultery, which consisted of
one sexual intercourse, he cannot with impunity commit another offence of adultery
under Section 497."79 Much decidedly, in Yusuf Abdul Aziz v. State of Bombay, Chief
Justice Chagla observed:

Mr. Peerbhoy is right when he says that the underlying idea of Section 497 is that
wives are properties of their husbands. The very fact that this offence is only

74
MT Carunya v. S Joseph Chellappa, (1996) 1 MLJ 409; Olga Thelma Gomes v. Mark Gomes, AIR
1959 Cal 451; Samaj Nadar v. Abraham Nadachi, AIR 1970 Mad 434.
75
supra note 73 at 57.
76
Kaini Rajan v. State of Kerala, (2013) (9) SCC113, at para 12.
77
Krishna Chandra Patra v. Tanu Patra, 11 (1992) DMC 20.
78
Rajesh Choudhary v. State of Assam, 11 (2007) DMC 735.
79
Re Shankar Tulshiram Navle v. Unknown, (1928) 30 Bom LR 1435

74
cognizable with the consent of the husband emphasizes that point of view. It may be
argued that Section 497 should not find a place in any modern Code of law. Days are
80
past, we hope, when women were looked upon as property by their husbands.

While such remarks are not universal, they greatly destruct the assumptions which the
Supreme Court continued to lay bare in Sowmithri Vishnu. Section 497 rides on the
assumption of furthering the community interest of safeguarding are further dented if
we look at how the courts implanted much significance upon form over substance
when encountered with adultery cases. Convictions have been quashed over the
procedural defect of the complaint not having been filed by the aggrieved husband as
required by Section 198(2) Cr.P.C.81although such an irregularity does not vitiate trial
under the Code.82 It is potential to contend that the exclusion to let a conviction stand
for purely a procedural defect negates how crucial the offence is considered by
society.

4.7 DEEPER DISCUSSION

Even though adultery has been an offence since 1860, the Law Commission in its 42nd
Report observed hoe prosecutions have been few and far between.83 The idiosyncrasy
of the “legislative packet” for adultery has been proven as a device of harassment at
the hands of the annoyed and provoked husbands. The Courts are conscious of this;
the High Courts have quashed adultery prosecutions citing malafides borne out from
the delay,84 or from the clear lack of material evidence85. Thus, the provisions of the
Indian statute only serve to further the vested interests of the husband.

Henceforth, by now, it is somewhat clear that there is some disparity between the
implied objectives behind section 497 IPC and how it is being implemented. The
claimed objective of protecting the marriage seems to have been dissipated in the
implementation of what necessarily appears to be a tool for husbands to reinforce
their supposed rights. In India, one may begin with the Delhi High Court, which in
2007 cited psychologists who believe that "there is no single person on earth who

80
Yusuf Abdul Aziz v. State of Bombay, 1951 (53) Born LR 736.
81
Sureshchandra Vadilal Shah v. Shantilal Shankarlal, 1968 Cri LJ 117; Mahesh Patel v. State of
Chattisgarh, Crl App No. 01/2005 dated January 11,2011.
82
Sections 460- 461, Cr.P.C., 1973.
83
LCI 41st Report, at 326.
84
Krishna Chandra Patra v. Tanu Patra, 11 (1992) DMC 20.
85
Sandwip Roy v. Sudarshan Chakraborty, 2007 (98) DRJ 109.

75
does not have an extra-marital relationship be it sexually or mentally."86 Furthermore,
the rarity of prosecutions under Section 497 87 is suggestive of the way in which
society view at the belief of enforcing this morality.

Here a convenient correlation may be drawn with South Korea. In 1953, South Korea
joined the list of countries criminalizing adultery.88 The justifications were similar to
India: the offence sought to render particular acts of sexual self- determination
subservient to societal interests.89 Prosecutions were also limited by complaints from
aggrieved spouses,90though no comparable exemption for women existed. Contrary to
the Indian experience though, enforcement remained highly active: prosecutors had
detained more than 35,000 people since 1985 on adultery charges. 91On 26 February,
2015, the Constitutional Court of South Korea struck down the provisions
criminalising adultery.92 The reasons behind this were twofold: (a) lack of any public
consensus supporting criminalisation of adultery, and (b) falling deterrence visible
from the decline in actual prosecutions for adultery as well as the severity of social
censure.93 Thus, the law was seen as brutally hampering the individual autonomy and
privacy without facilitating the objectives of shielding the institution of marriage.
May be, it is time for a similar set up of review in India?

Putting aside the alleged justification of protecting the ‘sanctity of marriage’, there is
“no legitimate state interest, which can justify its (the state’s) intrusion into the
personal and private life of the individual.94Moreover, there is an uncharted leap of
logic in the rationale of protecting the so- called morality of marriage qua Article 14.
How can the Court justify discrimination meted out to another class, i.e. married

86
ibid, at para 18 (Delhi High Court)
87
LCI 41st Report, at 326.
88
Article 241, Criminal Act 1953, South Korea
89
Sayuri Umeda, South Korea: Criminal Provision on Adultery held Unconstitutional, Law Library Of
Congress: Global Legal Monitor, March 24,2015
90
South Korean Court to Rule on Making Adultery Legal, The Guardian, February 26, 2015,
http://www.theguardian.com
91
Jeyup Kwaak 'South Korea Legalizes Adultery', Wall Street Journal, February 26, 2015
92
2009 Hun-Ba 17, (February 26, 2015) [Constitutional Court of South Korea], http://www.ccourt.go.kr
93
Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law and Adultery In India, 10
Socio-legal Rev. 47 2014
94
Lawrence v. State of Texas, 539 U.S. 558 (2003). This decision ushered in scholarship considering
whether the various state laws criminalizing adultery in the U.S.A. would consequently be rendered
unconstitutional. See, e.g. Viator, supra note 6; Cass Sunstein, What did Lawrence hold? Of Autonomy,
Desuetude, Sexuality and Marriage, University Of Chicago John M.Olin Law & Economics Working Paper
No. 196 (2003).

76
women, by turning to the discrimination meted out to another class, i.e. their
husbands/paramours? Not only this, the private complaint required in India effectively
empowers another individual based on his status to restrict the decisions another
individual make pertaining to her private sexual life, constituting an apparent
violation of Article 21.95

Here, the observations made in the along with quoted excerpts from the decision of
the Supreme Court in Sowmithri Vishnu v. Union of India96where the Court observed
any changes to Section 497 must originate from the Legislature and not the Court. 97
In a proposal, which itbelieved reflected the "‘transformation’, which the society has
undergone",98 the Commission suggested removing the exemption from liability for
women while retaining the five year imprisonment.99Again, we are not beneficiaries
of any received wisdom from the Commission on why this change was considered
reflective of the supposed transformation. These amendments warranted
corresponding procedural tweaks100 to remove the bar against women from initiating
prosecutions. However such proposals never appeared in either the 41st Report
(which led to the 1973 Cr.P.C.)101 or the 154th Report which reviewed the Cr.P.C.
1973, 102rendering the commitment to any change rather dubious.

Over time, there have been other Committees constituted to consider the issues of
criminal justice and law reforms. In 2003, the Committee on Reforms of the Criminal
Justice System [Malimath Committee] published its Report.103It maintained support
for the Law Commission proposals to not repeal the offence, but to equate liability for
104
the sexes, for it observed: object of the Section is to preserve the sanctity of
marriage. Society abhors marital infidelity. Therefore, there is no reason for not
meting out similar treatment to the wife who has sexual intercourse with a man (other

95
Abhinav Sekhri, The Good, The Bad, And The adulterous: Criminal Law And Adultery In India, 10
Socio-Legal Rev. 47 2014
96
Sowmithri Vishnu v. Union of India, (1985) Supp. SCC 137
97
Sowmithri Vishnu, at para 7.
98
LCI, 156th Report,at 172.
99
ibid, at 171-2
100
ibid, at 172.
101
LCI, 41st Report (1969).
102
LCI, 154th Report: Cr. P.C, 1973(1996).
103
Report of the Committee On Reforms Of Criminal Justice System (2003).
104
Id.

77
than her husband)".105A decade has gone by since this Report, but there has been no
action and movement in the Legislature to incorporate its proposals.

Thus, we find that India follows the dominant thought of considering adultery laws
necessary to safeguard the sanctity of marriage. "Society abhors marital infidelity"
indirectly implies society approves of monogamy and marital fidelity, thus justifying
the employment of state sanction against those who threaten these virtues. The
peculiarity of the Indian offence is the exemption for women from liability. The
exemption together with procedural restrictions on that can initiate proceedings, has
led to the view that only outsiders to the marriage must be deterred through the
criminal law. The spouses can be left to their own devices.106

4.8 WOMEN- CENTRIC VISION

From the lens of feminism, the liberal feminist demarcates between the public and
private sphere. And having sex outside marriage is a very personal sphere. ‘Public’
may be used to denote the State activity, the values of the marketplace, work, the male
domain or that sphere of activity, which is regulated by law. ‘Private’ may denote
civil society, the values of family, intimacy, the personal life, home, women’s domain
or behavior unregulated by law.107 Therefore, what the ideology of Western feminist
advocates that there is personal individual privacy arena, which is not the business of
law and State.

The task, from this perspective, is to act within the dominant ideology and seek to
eliminate gender-based discrimination- to achieve true equality for women in all
walks of life- without challenging the ideology itself and while remaining faithful to
the liberal ideal of equality and autonomy. 108 By historically and traditionally
excluding women from civic life, men not only seized for themselves the high ground
of policy and law making, but also subordinated and silenced women, denying women
a voice in public affairs. Liberalism biggest fraud lies in its assumptions that men and
women are equal, when in fact it is all too apparent that traditionally the only voices
being heard and given effect were male voices. Nowhere, is this phenomenon more

105
Id.
106
Abhinav Sekhri, The Good, The Bad, And The adulterous: Criminal Law And Adultery In India, 10
Socio-Legal Rev. 47 2014, at 54.
107
O’Donovan, K, Sexual Divisions in Law, 1985, London: Weidenfield and Nicolson in Hilaire
Barnet, Introduction To Feminist Jurisprudence, 1988.
108
Hilaire Barnet, Introduction To Feminist Jurisprudence, 1988 at 124.

78
apparent than in the legal system.109 But the feminist critique of liberalism would be
that the demarcation between the public and the private is not that crystal clear thus
neither of the concepts is as simple and straightjacket as it seems and suggests. Under
the provision of adultery, there is a stark jolt to the understanding of equality of the
sexes by the liberal feminists wherein the woman is exempted from liability or from
sharing the burden of offence as equal as the men. Moreover, by not providing any
such right to file the complaint to the spouse of the adulterous man against the
married woman is again frowned upon by the feminist critique of the liberal
feminism.

From the radical feminists viewpoint the women’s sexuality is at the heart of its
debate by proposing the dominance theory. Here in the adultery provision can be
critically analyzed where the women is considered as the property of the man she is
married to as the husband has the right to file a complaint as against the adulterous
man. Thus, radical feminists evaluate the means by which men’s sexuality is
expressed in forms, which result in women’s inequality.

Postmodern feminists debunk this universality of one standard understanding of man

and woman. One has to understand that behind every policy and legislature there is a
theory, which is provides a basis to it. The meta narrative of protecting the women of
vulnerabilities and this finds its depth from the societal structure and finds its validity
from the Will of the People.

The perception of treating adultery as an offence lies in the way women is

conceptualized as a subject in the society. Women’s sexuality is to be controlled and
letting the husband guard the title (wife). Women do not have the power over her
sexuality, as in she has not given the right to file a complaint against her adulterous
husband.

To conclude the research tries to see adultery as not an offence only. In India adultery
is still considered as an offence against man and not women hence no statistical data
is there which points out such differential treatment. As framers of the Constitution is
correct in declaring that if it is a consensual sex between two adults then the reason of
the State to protect the sanctity of marriage by making it an offence is too much to
grant for. Moreover, why only women is not seen as an abettor in the crime.

109
Ibid.

79
 CHAPTER 5

CONCLUSION AND SUGGESTIONS

The critique to the feminist view of the protection of women showcases a different
outlook to see the criminality. The issue of the relationship between sex and gender is,
no doubt, not a recent discovery. Freud struggled with the problem of discovering an
appropriate definition of masculinity and femininity and their relation to men and
women in the 'Three Essays' published in 1905. The history has witnessed that from
ages men have exploited their preeminent position bequeathed upon them by the
patriarchal society in contrast to the vulnerable class of women. And there is no
retraction to the fact that the women in this 21st century are still going through the
sufferance and misery by the dominant male fraternity to a great extent. But one
should also be accommodating and compassionate towards those men who are
persecuted by their dominant wives. A victim is a victim. Hence, the criteria should
not be gender for administering respite and relief and incarcerating the accused.

It is to seen that after 2012 Delhi gang rape came the much needed amendments in the
legal provision to provide enough teeth to the State authorities to put the accused
behind the bars at any cost for such heinous sexual acts. However, what we have
sidelined is the also the increase in the percentage of false complaints in rape cases.
What led to these false complaints could be varied and has been discussed in the
respective chapters, but the worry is the emergence and flourishment of such malign
mentality amongst the class of women, who has made a complete joke out of these
provisions.

Moreover, there are times when the police and prosecutors see the genuine and
truthful cases of sexual assault from the lens of suspicion. Although it is a matter of
prudence and practice that in the rape cases, the previous character of the complainant
is not be seen and hence irrelevant. But how far such practice is being practiced in the
court of law is a matter of doubt. A complaint from a lady of easy character is usually
regarded as false and concocted, why, because there have been instances when the
prostitutes simple file the case of rape and sexual abuse prominently to gain financial
assistance from their young and teenage clients by blackmailing their parents. Due to

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such instances, one can argue that even the genuine cases filed by such class of
women are seen with disgust and doubt. Many a times, the investigative agencies
personnel are involved in cocking up such false stories of rape.

‘Domestic Violence’, as a term, subject and provision has been inspected nationally as
well as internationally, the advancement of the PWDVA, 2005 in India and the lawful
mechanism under the Act drawn contacted by women for looking for alleviation. This
demonstrated how, conduct including women is esteemed to be socially
unsatisfactory. Amid the development and execution of the Act, the women's activist
wave was not wild in Indian culture. The general public and even the lawful structure
were considered as patriarchal in its inclination. Be that as it may, with the coming of
women's liberation in the general public, brings the strengthening among the women
of their rights and solutions for profit them. Once there is strengthening among the
women, that minute is not far when they know how to mess with the arrangement
according to their interests and portray that picture to the State with which it is still
feel shackled.

This research has tried to look upon those aspects of domestic violence cases where
the women has falsely implicated the husband and in laws to take some sort of
vengeance and vendetta from the husband and in-laws. It can easily be understood
that the cutting edge urban women are getting to be noticeably narrow minded
towards their spouses and in-laws. The irrational claims for leaving the parental home
of the spouse and moving to a different habitation, refusal to do everyday housework,
yelling, mishandling and offending the husband and his old parents, desolating the
husband keeping in mind that the end goal is to pressurize him to surrender to her
requests, unmistakably shows the monstrous face of present day matured urban
women.

The 21st century, modern Indian women have given a jolt to the idea of woman as a
beholder of tolerance, patience and sacrifice, which she was carrying on her shoulders
from primeval times. To view the image of women as “Sati Savitri” has gone by. The
pseudo “Feminist” propaganda, women organizations have chosen not to see to the
abominations done by wives on their husbands rather add a fuel to the fire by
affecting and controlling the wives to take stringent steps against the husband and in-
laws by documenting the false criminal and civil complaints.

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Our laws with escape clauses empower false dissensions by wives, as there is no such
counter check to research the truth of any wrongdoing informed by wives. As a rule,
the wife lodges false FIR who surmise that police case will dwindle the piece of mind
of the husband so he and his family would consent to her requests, be it identified
with cash, property or family related issues. Section 498-A of IPC is a cognizable and
non-bailable offense and has given it a questionable place of pride among the
arrangements that are utilized as weapons as opposed to as a shield by disappointed
wives. The least complex approach to harass is to get the husband and his relatives
incarcerated under this provision of law. In a considerable number of cases, old, meek
and bed-ridden grandparents of the husband, their sisters living abroad for a
considerable length of time are detained and imprisoned.1 This results into enormous
anguish, mental harassment, hardship and loss of reputation in the society.

In the analysis of adultery with sexuality from the lens of feminism it becomes clear
that State still portrays the women as subjugated and not empowered to make her own
sexual decisions. Her physical involvement with another man, except her husband is
not seen as pleasure but pain done to the wife. Also, by not seeing a man and a
woman as equal participants in the act of adultery, the criminal justice system
dwindles at the very conception of equality. The basic rationale behind making
adultery punishable is to save the sanctity of the institution of marriage. The research
brings out the logic that when two adults enter into a consensual relationship mutually
then why to make it punishable in the eyes of law. The recourse to save the marriage
will be that the aggrieved party can file the case of divorce on the grounds of cruelty.
But making adultery as such is to stretch way too much the so- called sacrosanct
understanding of the institution of marriage.

In the judicial pronouncements chapter, it was pointed out by the Court that there
incidents and cases where the men were subjected to harassment and victimization at
the hands of women, although the number of incidents are quite less as compared to
the cases where the men treated the women with cruelty and women were ultimately
the weak and submissive victims. Nonetheless, one should not turn a blind eye to the
fact that even men get victimized at the hands of women who alters the intention of
the legislature by moulding the provisions according their whims and fancies.

1
Arnesh Kumar v. State of Bihar, AIR 2014 SC 2756

82
Thus, the truth is, various women centric laws and the women empowerment n have
become a weapon in the hands of few educated, financially independent and legally-
aware women who mock at these laws and used them against the men. At the same
time the “so-called women empowerment” for a handful urban-based women has
become a major reason for intolerance among them.

What the researcher could suggest is changes in the Section 497 of IPC in which
women should also be seen as an abettor. For which, legislature could be the best
platform to come out with some concrete changes and hence solution to the problem.
Also the researcher would not suggest quashing Section 376 and Section 498-A of
IPC or making it compoundable offence.. This would be an unfair and unjustified for
the large bulk of women who need such correctional arrangements for shielding
themselves from the monstrosities of the coldblooded men. Instead what could be
recommended that the police authorities should mend their corrupt and insensitive
ways of arbitrary arrest without proper verification of facts. The guidelines issued in
Arnesh kumar v. State of Bihar should be strictly followed. Moreover, if we refer to
the reports of National Crime Report Bureau we will see that there is a drop in the
number of arrests after this judgment, which leaves us with satisfaction and a ray of
hope.

The adversarial system if our country comes across as another primary issue. The
advocates, who are mostly interested in the money making only focuses on winning
the cases and in this race, the primary goal of rendering justice to the genuine victim
is lost. Thus, it is recommended that the law institutions should try to inculcate the
spirit of consciousness, integrity and honesty.

The research started with a hypothesis, which stands proved in the research done.

Therefore, the time has come where we question the feminist shielded women centric
sections from the eyes of criticism.

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 SUGGESTIONS

The issues dealt in the research call for certain suggestions, thus the researcher can
suggest the following points, which if taken into consideration can alter the recent
trend to a considerable extent-

 Under the rape law in the Indian Penal Code, the Legislator should come up with a
provision that if a woman is found to be making a false complaint then that will
attract a non-bailable arrest warrant against her.

 Similarly, in the domestic violence cases, the police authorities should not make
arbitrary arrests of the husband on the complaint filed by the wife. The husband
should not be regarded as culprit the moment the complaint is filed. There needs
to be a proper inquiry of the complaint registered.

 In the cases of adultery, it is high time that the legislator should repeal the
provision because what it tries to safeguard is the structure of institution rather
than the sanctity of the institution. The section does not give any right to the wife
of the adulterous man. Only a man can file a complaint against a man.

 Scrutinizing of the women-empowering provisions is required. Otherwise that day

is not far when the women will treat the law as a toy in there hands and use and
abuse it the way they wish.

 There needs to be inclusion of men protective laws too in the Indian Legal
structure.

 There should be sensitization among the general masses to try to see every
complaint regarding women beyond the ambit of patriarchy. At times it is women
who induce such crime and pretends to be a victim.

 Similarly, in Section 497 IPC, the woman who is an equal participant to the act is
not seen as a culprit at all; moreover, the law does not even see her as an abettor.
Therefore, if the law does not make man and woman as equal in fault then keeping
such a provision is against the provision of equality only enshrined in Article 14
of the Constitution.

Therefore, there is a hope that with this research work and with these suggestions
some change will take place in the criminal law system

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