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Chapter 1

Introduction
“Violence against women is perhaps the most shameful human rights violation, and it is
perhaps the most pervasive. It knows no boundaries of geography, culture or wealth. As long
as it continues, we cannot claim to be making real progress towards equality, development and
peace.”
~ Kofi Annan

1.1 Violence Against Women: -


Violence Against Women (VAW) is a worldwide problem. It affects women of all races, ethnic
groups, classes and nationalities. It cuts across cultural and religious barriers, impeding the
right of women to participate fully in society. The UN Declaration on the Elimination of
Violence Against Women states that:
“violence against women is a manifestation of historically unequal power relations
between men and women" and that "violence against women is one of the crucial social
mechanisms by which women are forced into a subordinate position compared with
men.”1

VAW is also known as Gender Based Violence or Hate Crime because the acts of violence are
primarily or exclusively committed against women expressly because they are women. Global
estimates published by WHO indicate that about 35% women worldwide have experienced
either physical and/or sexual intimate partner violence or non-partner sexual violence in their
lifetime.2

The problem of “violence against women” is not new. Women have been victims of ill-
treatment, humiliation, torture and exploitation for as long as written records of social
organization and family life are available. It affects women of all races, ethnic groups, classes
and nationalities. It is a life-threatening problem for individual woman, and it is a serious
problem for societies. The hard fact that women have continuously been ruthlessly exploited
in our society in past, was not recognised, either by society or law. The attitude of indifference
and negligence can be attributed to factors like lack of awareness of seriousness of the problem,
general acceptance of man's superiority over woman because of which violent acts against
women were not viewed as violent or deviant. Women themselves tolerated all this in the name
of their religious values and socio-cultural attitudes. The history of violence against women is
closely related to the historical view of women as property and a gender role of subservience.

1
United Nations, General Assembly Resolution No. A/RES/48/104, Declaration on the Elimination of Violence
Against Women (23 February 1994), available at http://www.un-documents.net/a48r104.htm (last visited on
March 02, 2017 at 10 a.m.)
2
“Global and Regional Estimates of Violence Against Women: Prevalence and Health Effects of Intimate
Partner Violence and Non-Partner Sexual Violence” WHO & London School of Hygiene and Tropical Medicine
and the Medical Research Council, 2013, available at
http://apps.who.int/iris/bitstream/10665/85239/1/9789241564625_eng.pdf?ua=1 (last visited on March 02, 2017
at 10 a.m.)

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According to the UN, “there is no region of the world, no country and no culture in which
women's freedom from violence has been secured.”3 In many countries, women fall victim to
traditional practices that violate their human rights. VAW has been accepted and even
condoned throughout history all around the world. For example, more than 2,000 years ago,
Roman law gave a man life and death authority over his wife. In the 18th Century, English
common law gave a man permission to discipline his wife and children with a stick or whip no
wider than his thumb. This “rule of thumb” prevailed in England and America until the late
19th century. ‘Sati Pratha’ was prevalent in India where the widow was either voluntarily or
forcefully made to sit and burn alive at the funeral pyre of her husband, believing that she will
go straight to heaven.

1.2 Meaning and Types of Violence Against Women


There is no woman who has not suffered at one time or another, the harassment, humiliation,
exploitation and violence that shadows her sex. A woman's life lies between pleasure at one
and danger at the other end. In daily life, women are routinely defined by sex, and even if not
all men are potential kidnappers, rapist, batterers, molesters and torturers of women, all women
are potential victims. Violence against women throughout the life cycle can be depicted by
following table4: -

Phase Type of violence


Pre-Birth Sex-selective abortion; effects of battering during pregnancy on
birth outcomes
Infancy Female infanticide; physical, sexual and psychological abuse
Girlhood Child marriage; female genital mutilation; physical, sexual and
psychological abuse; incest; child prostitution and pornography
Adolescence and Dating and courtship violence (e.g. acid throwing and date rape);
Adulthood economically coerced sex (e.g. school girls having sex with
"sugar daddies" in return for school fees); incest; sexual abuse in
the workplace; rape; sexual harassment; forced prostitution and
pornography; trafficking in women; partner violence; marital
rape; dowry abuse and murders; partner homicide; psychological
abuse; abuse of women with disabilities; forced pregnancy
Elderly Forced "suicide" or homicide of widows for economic reasons;
sexual, physical and psychological abuse.

The term “violence against women” encompasses many forms of violence, including violence
by an intimate partner (intimate partner violence) and rape/sexual assault and other forms of
sexual violence perpetrated by someone other than a partner (non-partner sexual violence), as
well as female genital mutilation, honour killings and the trafficking of women. Alternatively,

3
UN General Assembly, In-depth study on all forms of violence against women, Report of the Secretary-
General available at http://www.un.org/ga/search/view_doc.asp?symbol=A/61/122/Add.1 (last visited on March
02, 2017 at 11 a.m.)
4
“Violence against women: Definition and scope of the problem”, WHO, July 1997. Available at
http://www.who.int/gender/violence/v4.pdf (last visited on March 02,2017 at 11 a.m.)

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we can classify VAW into several broad categories. These include violence carried out by
“individuals” as well as “states”. Some of the forms of violence perpetrated by individuals are
rape; domestic violence; sexual harassment; coercive use of contraceptives; female infanticide;
prenatal sex selection; obstetric violence and mob violence; as well as harmful customary or
traditional practices, such as honor killings, dowry violence, female genital mutilation,
marriage by abduction and forced marriage. Some forms of violence are perpetrated or
condoned by the state such as war rape; sexual violence and sexual slavery during conflict;
forced sterilization; forced abortion; violence by the police and authoritative personnel; stoning
and flogging. Many forms of VAW, such as trafficking in women and forced prostitution are
often perpetrated by organized criminal networks.

The landmark resolution 48/104 i.e. Declaration on the Elimination of Violence Against
Women (DEVAW), adopted by United Nations General assembly at its 48th session, defines
VAW as: -
“any act of gender-based violence that results in, or is likely to result in, physical, sexual or
mental harm or suffering to women, including threats of such acts, coercion or arbitrary
deprivation of liberty, whether occurring in public or in private life.”5

The General Recommendation 19 adopted in 11th session of the Convention on Elimination of


All Forms of Discrimination Against Women (CEDAW), in 1992, describes gender violence as
follows:

“Violence which is directed against a woman because she is a woman or which affect women
disproportionately. It includes acts, which inflict physical, mental or sexual harm or suffering,
threats of such acts, coercion, and other deprivation of liberty.”

1.3 Status of Women in India: Historic Perspective


“The best thermometer to the progress of a nation is its treatment of its women.”
~ Swami Vivekananda

One way to judge the state of nation is to study the status of its women. In reality, the status of
women represents the standard of culture of any age. The social status of the women of a
country symbolizes the social spirit of the age. It is therefore, necessary to trace this position
in the historical perspective. In the course of Indian history from prehistoric to modem times,
there were distinct stages of the rise and fall in the status and role of women.

The position and status of women has been a very dynamic concept since ages. The sociologists
have described women by propounding different perceptions. In India, the history speaks that
the women were considered as a divine force, but the multi cultured Indian society placed the
women at different position. Thus, there has been no uniform status of women in Indian society.
Beginning from the Vedic period till today’s time, the status of women has gone through
enumerable changes and women of our country have tasted all flavors of life; from the glory
and respect which she was ascribed in the Vedic period, to the denial and subordination in the

5
Supra note 1, Article 1

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Post Vedic period and finally to the struggle for equality, recognition and survival in the
contemporary world. But one thing that has been common throughout these phases is the
disadvantaged status of the women.

We can understand and categorise the journey of Indian women from Vedic period to present
time in following six phases:

1) Vedic Period,
2) Post Vedic Period,
3) Smriti Period,
4) Muslim/Islamic Period,
5) British/English Period,
6) Post-Independence/Contemporary Period.

We find contradictory and conflicting views on the status of woman in the literature and
philosophy of Indian history. The Indian history poses the women with dual character. On one
hand, she is considered patient and benevolent but on the other hand she is considered aggressor
and represents ‘Shakti’. Further, the concept of “Ardhangini” suggests that there was equality
between men and women, neither of the two being superior to the other. But later on, barbarous
practices developed and women were relegated to a subordinate status.6 They were denied
equal rights in family, marital, social, educational, economic and political spheres.

The Status enjoyed by the Indian women cannot easily be assessed. While the 'idol' was
worshipped the 'real' was neglected. There are recorded evidences to show that for many
centuries position of woman continued to be one in which she did not have either legal or social
rights to make herself independent of the family into which she was born or married. There
are, however, other evidences too, to show that the contrary was equally true; i.e. woman was
not always without rights nor was she constantly in subjection.7 According to historian Romilla
Thaper–

“Within the Indian subcontinent there have been infinitive variations on the status of women
diverging according to cultural malice, family structure, class, caste, property rights and
morals.”8

Therefore, it may be said that the status of women is a complex question and the changes that
have taken place in their status and position are a part of the process of transformation of a
traditional society. The various stages of this transformation may be briefly discussed as
follows:

Vedic Period: -
The position of women during the Vedic period was glorious on account of freedom and
equality. During this period, the women participated in every walk of life. They studied in
Gurukuls and enjoyed liberty in every sphere. The historians mention the names of several

6
A.S. Altekar, The Position of Women in Hindu Civilization 319 (Motilal Banarsidas, Delhi, 2nd ed. 1956)
7
S.C. Tripathi, Law Relating to Women and Children (Central Law Publication, Allahabad, 4th ed. 2010)
8
Romila Thapar, “Looking Back in History”, in Devaki Jain ed., Indian Women, (New Delhi: Ministry of
Information and Broadcasting, Government of India, 1975)

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noteworthy women scholars of the past such as Kathi, Kalapi, and Bahvici. The great women
like Apala, Visvara, Yamini, Gargi, and Ghosa stole the lime light and became the front runner
in society. They acquired efficiency in art, music and even warfare.9 Megasthenes mentions
heavily armed women guards protecting palace.10

The wife has been regarded as true companion of husband in Upnishad. In Rigveda, the wife
has been blessed to live like a queen with her husband. In Mahabharata, wife has been
recognised as root of prosperity, enjoyment and Dharma. A man was not religiously competent
to perform religious duties without his wife. There was absence of the pardah system and
women had right to select their life partner. Further, there was no prohibition in the remarriage
of widow and also no discrimination between a boy and a girl. As a result, girls were permitted
to undergo thread ceremony. Though monogamy was mostly common, only the richer section
of the society indulged in polygamy. There was no sati system or early marriage. The marriage
of girls used to take place at the age of understanding, i.e., between 14-17 years and that, too,
with their consent. The educated girls had naturally an effective voice in the selection of their
life partners. Pre-puberty marriages were unknown as there were Swayamvara marriages,
where women were given the chance of selecting their partners.

The institution of Niyoga (Levirate) came into Aryan society from some non-Aryan source.
Under the system of Niyoga, a widow or a woman whose husband was not virile was allowed
to have conjugal relations with her brother-in-law, who was regarded as the most eligible
person for this duty, or some other near relation till she gave birth to an offspring. A widow
was allowed to have two sons through Niyoga. A son by levirate was always preferred to a son
by adoption.11

At last, we can say that the Vedic Women in India, more or less, enjoyed high status in society.
Their condition was good and they were provided opportunity to attain high intellectual and
spiritual standard.

Post Vedic Period: -


After the Vedic period, there were perceptible changes in the women's status due to various
reasons, among which the most important was the denial of education. Women faced drastic
hardship and restrictions in Post Vedic period. Girls were not allowed to go to the houses of
the preceptor or centres of education but were taught only by near relatives like father, brother
or the uncle. Only the girls of rich and cultured families received religious and other training.
Thus, women in general eventually began to lose touch with the Vedas and were pushed back
to domestic duties. The study of Vedas became the monopoly of men. Women also ceased to
attend public meetings. Having lost their importance as comrades of men in public activities,
they came to be honoured merely as mothers. There appeared a tendency to curtail the religious
rights and privileges of women in general.

9
Supra note 8, p.1
10
Naresh Rout, “Role of Women in Ancient India”, Odisha Review (January, 2016), available at
http://odisha.gov.in/e-magazine/Orissareview/2016/Jan/engpdf/43-48.pdf (last visited on March 02, 2017 at 3
p.m.)
11
Supra note 7, pp. 144-45

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During this period, the desire to get a son to secure future became quite intense and daughters
came to be looked upon as encumbrances. This period also saw the rise of pre-puberty marriage
system. Thus, marriageable age of girls was lowered to 9 or 10.12 According to Gautam
Saamhita, a girl should be given in marriage before she attains puberty. He who neglects it,
commits sin. Some declare that a girl should be given in marriage before she wears clothes.13

The role of women conformed to the dictum laid down by Manu, the great law giver of second
century that ‘a woman does not deserve freedom’ and that her life should throughout be one of
dependence on man. Another similar dictum laid down by him was that a woman should be
subservient in all stages of her life in childhood to the father, in youth to the husband and his
elderly kin and to the sons when widowed.14

The rise of Brahmanism became detrimental to the status of women. The Hindu law givers of
this period imposed certain duties on widows, who did not ascent the Funeral pyre and chose
instead to survive the husband. All the sages prescribed a life of strict discipline to such widows
during their whole life. Widow marriage was prohibited. The law-givers forced the widows to
lead a life of austerities, fasting and abstinence from pleasure. Manu, says: (i) Until her death,
let her be patient of hardships, self-controlled, and chaste and strive to fulfil that most excellent
duty which is prescribed for wives who have one husband only. (ii) Let her emancipate her
body by living on pure flowers, roots and fruits but she must never mention the name of another
man after the husband has died. (iii) A virtuous wife who after the death of her husband,
constantly remains chaste, reaches heaven though she has no son, just like those chaste men.15

During 11th century the cruel custom of Sati was widely practised. Most of the widows
voluntarily ascended the funeral pyres of their husbands because of the cruel and tiresome life
they would be required to lead as widows. Sometimes, the cruel relatives of the widows burn
them forcibly, because they were either afraid that the widows might misbehave and bring
disgrace to the family or wanted to misappropriate her share in the family property.
Consequently, the practice of Sati or Jauhar became quite common and popular particularly in
North India.

Unjust, archaic social customs like child marriage, sati and polygamy reduced the status of
women to the level of goods and chattel. They were regarded as 'nari-sudras'. The status of
widows was still more inferior in post vedic period.

Smriti Period: -
Altekar says that the period between 500 B.C. to 500 A.D. was one of the progressive
deterioration in the position of women. In the history of India, these dark and depressing days
of total injustice, intolerance and inequality will remain as the darkest spot forever. There were
varied and many reasons for the deterioration or fall in the position of women. The only good

12
Supra note 8, p. 2
13
Manmatha Nath Dutt (ed.), Gautam Samhita (H C Dass, Elysium Press, Furiapukur Street, Calcutta, 1908),
available at https://archive.org/stream/in.ernet.dli.2015.30881/2015.30881.Gautama-
Samhita#page/n3/mode/2up (last visited on March 02, 2017 at 3 p.m.)
14
Manu, Manusmriti
15
R M Das, Women in Manu and His Seven Commentators (Kanchana Publication, Varanasi, 1962)

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thing that developed during this period was the recognition of certain proprietary rights for
women.16

It is Manu’s code that left the most negative impact on Indian Women for countless succeeding
generations. Even today, it is his laws which keep millions helpless in the prison of Hindu
orthodoxy. His laws reflect a conflict between his valuation of woman as a spiritual entity on
the one side and as a unit in society on the other. He averred that a mother is more to be revered
than a thousand fathers, yet his laws place women socially on a level with the lowest of all
groups in Aryan society, the Sudra. Manu enumerates many laws directing a wife's conduct.
He says that a wife must show to her husband such devotion that he must be treated like God,
even when he is conspicuously lacking in virtue. No sacrifice, no vow, no fast must be
performed by woman part from their husbands. If a wife obeys her husband, she will for that
reason be exalted in heaven. In childhood, a female must be subject to her father, in youth to
her husband, when her husband is dead, to her sons, but woman must never be independent,
said Manu.

In the period of later Smrities women were deprived of any right to justice, freedom, education,
equality and were degraded domestically, socially, legally, economically, politically and in
every other way. They came to be called ‘Abala’ i.e. powerless or ‘Grihapinjarakokila’ i.e.
Cuckoo of the cage of the house and subject to the derogatory maxim like ‘Putrartha Kriyate
Bharya’ i.e. women have to be taken in marriage for procreation only.

Manu’s social codes and sanctions left their marks permanently on the future status of the
Indian women. Manu clamped down women's freedom in certain spheres in order to safeguard
their position and to preserve the family structure. Manu's famous dictums “a woman must be
her father's shadow in childhood, her husband's in her youth, her son's in old age” is well
known. His prime objective was to safeguard the interests of the family and society at the
expense of individual liberty.

Muslim/Islamic Period: -
In the Muslim period, that is, in the 11th century onwards, the position of women further
deteriorated. Polygamy and purdah were two of the most important social institutions of the
Muslim conquerors of India. Under the purdah system, not only were women required to live
in a secluded apartment in the house but also, they had to dress in an apparel which completely
covered their body excepting the eyes.17 Along with the insecurity and uncertainty which
prevailed in that period, the practice of purdah became rigid and women were forbidden even
to visit the holy shrines. Both Hindu and Muslim women lost all their liberal activities and
became the property of their male masters. The practice of purdah, invented to protect women,
had a restrictive effect. As a result, the social life of women narrowed down.18

On the one hand, the Muslim conquerors attempted to impose their norms on the conquered
Hindu population; on the other hand, the Hindu society itself became more and more rigid

16
Supra note 7
17
Neera Desai and Usha Thakkar, Women in Indian Society, (National Book Trust, 1st ed. 2001)
18
Supra note 7, p. 353

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curtailing thereby the rights and freedom of the lower castes and women. Due to this two-fold
reason, this period is one of the darkest periods for women in Indian history. Life became
insecure and restrictions on women’s rights and freedom and their resultant hardships were
aggravated. Women were forcibly taken away to be slaves or to marry into Muslim homes. The
consequent insecurity and instability further narrowed down women's social liberties.

Widow re-marriage was prohibited in general. The society desired to make the widow as
unattractive as possible so that no man could ever want to marry her. With this idea in mind,
the widow was made to wear white clothes only. She was forbidden to wear any jewel. She had
to sleep on the bare floor and partake a frugal meal cooked by herself only once a day. This
deprived her of good health and good looks, so that even if she wanted to remarry, no man
came forward to do so. Widows had to follow strict rules and restrictions and so they frequently
preferred ‘Sati’ to the tiresome life prescribed for them. Most widows voluntarily ascended the
funeral pyres of their husbands. This cruel custom of Sati was widely practiced during this
period. The Hindu widows who did not observe 'Sati' were held in great dishonour. The practice
of Sati was also extended to the southern parts of India.

Hence, immolation of widows and girl child infanticide started in a large number. Such wilful
violence came to be called as a curse of the Hindu society. Child marriage, girl killing, widow
burning, all came to stay in Hindu society because the Hindus were destined to remain slaves
for about thirteen centuries. Even the Muslims could not prevent this fate till they became
subjugated by the white rulers of England.

British/English Period: -
In the latter half of the 18th century, when the British came to India, women's status had dropped
to the lowest level. It was the worst period in the history of the country because of child
marriage and Sati system etc. A.L. De'Souza says, “Women were denied equal rights in marital,
familial, social, educational, economic and political fields. They were assigned a subordinate
status. The marriage ideals, power and authority exercised by the joint-family and caste system
combined with illiteracy, age-old traditions, seclusion within the four walls of the house, made
it difficult for them to seek full personality development. They had scant personal identity and
few rights.”19 Referring to the status of women, Margret E. Cousins stated that the condition
of woman was at its lowest point of literacy, of individuality, of health, of social status, of
freedom of movement, or initiative of economic status of power.20

The British were the first rulers who unified the country as a whole and were liberal in their
thinking. They believed that rational thinking had to be the basis for all customs and institutions
and all customs and institutions not so based on reason had to be done away with. Hence, during
the British rule Indian society faced significant modifications. The British Government worked
slowly and succeeded in providing an alternative way of life for those who wanted change, by

19
S.K. Ghosh, Indian Women Through the Ages 19 (Ashish Publishing House, New Delhi, 1989)
20
Margret E. Cousin, Indian Womenhood Today, 13 (Kitabistan, Allahabad 1947), available at
https://ia601903.us.archive.org/31/items/in.ernet.dli.2015.34106/2015.34106.Indian-Womanhood-Today.pdf
(last visited on March 03,2017 at 11 a.m.)

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introducing a new type of economy, state structure, educational system and also by passing
new social legislations.

The position of girls, women and widows improved to some extent during the British period.
They introduced female education in India. But the system of child marriage came in the way
of the spread of female education. Hence in 1929 they passed the Child-marriage Restraint Act.
This Act restricted the evils of early marriages and increase in the number of girl widows. The
Act not only prohibited the solemnization of child-marriages but also raised the minimum age
for marriage of girls to 14 and of boys 18 years. This Act of 1929 was also known as the Sarda
Act. Besides removing the evils of child marriage, it promoted female education. This led to
the improvement in the position of the daughter.

The cruel practice of ‘Sati’ was on increase throughout the 17th and 18th centuries, because at
this time religion had become corrupt and people were very much influenced by the priests.
Hindus at this time were unenlightened and had become strict followers of customs and
conventions. People firmly believed that man's sins were completely washed out if his widow
was burnt alive with his dead body. This pitiable plight of the widows who were forced to
commit ‘Sati’ attracted the attention of a good number of enlightened Indians and the British
under the leadership of Raja Ram Mohan Roy and Lord William Bentinck. Inspite of the strong
opposition, a historic resolution of great importance was passed in December 14, 1829, by
which ‘Sati’ was made a crime of culpable homicide punishable with fine or imprisonment or
both.21 Further, in order to improve the life of widows, the British passed the Hindu Widows
Remarriage Act, 1856. This Act was enacted to remove all the legal barriers to re-marriage of
Hindu widows. Later, the British realized that they could stop ‘Sati’ by police force but that
they could not arrange the remarriage of widows. These widows had to suffer because they had
no property of their own. To improve the economic condition of the women the Hindu
Women's Right to property Act 1937 was passed.

Besides these governmental activities, Mrs. Annie Besant, in 1917, tried to promote women's
education through the Indian Association. In 1920 the Federation of University of Women was
established and in 1925 National Council of Women started. Great personalities like Raja Ram
Mohan Roy, Ishwarchand Vidyasagar, Dayanand Saraswati, Gopal Krishna Gokhale,
Ramkrishna Paramhansa, Swami Vivekanand, Mahatma Gandhi and others tried to bring about
unprecedented awakening among women who were down-trodden and had been oppressed for
centuries.

The familial, social and legal position of the Hindu women greatly improved during the British
period, as compared to the Muslim period. Although a small section of women took advantage
of these measures and privileges given, their initiation was indeed significant. During India’s
struggle for independence, thousands of women took part under the leadership of Mahatma
Gandhi, Sarojini Naidu, Vijayalaxmi Pandit and Kasturba Gandhi. Chaudhry has rightly
observed about the achievements with regard to the status of women during the British period

21
Regulation XVII, A. D. 1829 of the Bengal Code.

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that if a person who died a hundred years ago, comes to life today, the first and most important
change which would strike him/her is the revolution in the position of women.22

Gender issues and Women’s moments: -


Various thinkers propounded the women’s subordination in different perceptions with different
approaches. To end the subordination of women three major ideological movements of women
emerged, viz. - Liberal movement, Radical movement and Socialist movement.23
Liberal movement occurred by virtue of the enlightened period of Western movement during
18th century. Many thinkers debated over the freedom, role and status of women. The concept
of individualism was developed which meant to give freedom to individuals to do what he/she
wished to do without interference from people. In ‘Vindication of the Rights of Women’, Mary
W. Craft mentioned that one has to accept that women are human beings and not only sexual
beings and if they are denied equal rights, one has to prove that they have no rational capacity
to claim equal rights. During Liberal movement, it was accepted that the husband earns for the
family’s expenses and the wife takes care of household affairs and family’s expenditure.

Radical movement occurred as sexual oppression and sexual division of labour relating to
women were overlooked in liberal movement. It was realised that the root of subordination lies
in the biological family. Thus, need was felt to establish true gender equality and eradication
of patriarchal system. The Radical movement reformers campaigned for removal of all sex
distinctions, collective child care, free sex and control over one’s body. They were of the
opinion that rape, pornography and sexual violence are result of masculine hostility against
women.

Socialist movement was against capitalism and patriarchy. Karl Marx and Engels advocated for
political participation and representation of women. The emergence of concept of private
property, confining women to production of children and persistence of gender inequalities
caused a great hurdle in women’s socialistic movement.

Indian social reformers of 19th century adopted the line of ‘Liberal movement’ and campaigned
for right of education to women so that they can become better mothers and wives. They also
campaigned for removal of social evils like sati, child marriage, prohibition on widow
remarriage etc. However, issues of sexual freedom and sexual preferences etc. could not be
agitated as in western countries because it is opposed to basic concept of Indian society.

Post-independence/ Contemporary Period: -


Due to the principles of democracy based on liberty, the role of a woman began to change
towards greater emancipation from man's domination. In India, due to efforts of social
reformers and social legislations, women were brought out of the confines of their home. The
process of industrialization and urbanization had their share in the changes which followed. It

22
Roop L. Chaudhry, Hindu Women's Right to Property in India: Past and Present (Firma K L Mukhopadhyay,
Calcutta India, 1961)
23
Supra note 8, p.3

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was the twentieth century that brought about dynamic changes and new concepts which
improved the status of women giving them fresh dignity and importance.

The Constitution of the Indian Republic has incorporated in its objectives, the principle of
equality and has ushered the Indian women folk into a new era. It has also proclaimed the
equality of men and women in all domains of life. In the Indian Constitution, it is mentioned
that the state shall not discriminate against any citizen only on the ground of race, religion,
caste, sex, place of birth or any of them.24 Article 16 provides that there shall be equality of
opportunity for all citizens in matters relating to employment or appointment to any office
under the state. Under Articles 325 and 326 women are not only given voting rights but also
the right to contest elections. They can take part in the political life of the country and hold any
office from the highest to the lowest. Even the Directive Principles of State Policy contain
directives towards the emancipation of women. Article 39 provides ‘equal pay for equal work
irrespective of sex’. Education is also made free and compulsory for all the children of 6-14
age group.25 Accessibility of education and availability of increasing opportunities for
acquiring education has brought about tremendous changes in the role of women.

Apart from the Indian Constitution, many other modem Indian legislations have improved the
position of women by offering her the same rights, opportunities and openings which a man
already had. For example, the Hindu Succession Act, 1956 has recognized the right to property
of the Hindu daughter. This Act has placed the daughter at par with the son.26 Now she can
succeed to the undivided interest of her father in the joint property and to the separate property
of the father along with other heirs specified in clause I of the schedule. Dowry system, an
abominable social evil, which makes young woman's life miserable, has been curbed by the
enactment of the Dowry Prohibition Act of 1961. After the Hindu Adoption and Maintenance
Act 1956, a wife enjoys a respectable position. She can even live separately under Section 18
and can claim maintenance under certain circumstances.

Widow remarriage has been legalized. Section 14 of the Hindu Succession Act 1956, has made
her the absolute owner of the property. She is not diverted of the property, which she has
inherited from her first husband even after her remarriage. Under Section 6 of the Act, she
inherits the coparcenary interest of her husband along with the son and daughter. Section 6 of
the Hindu Minority and Guardianship Act, 1956 recognizes her as the natural and legal
guardian of her minor children after their father.

The above stated legislations have promoted emancipation of women to a very large extent.
Besides these legislations, under the provisions of the Directive Principles of State policy each
state has undertaken women's welfare programmes. The Central and State Governments have
shown keen interest in betterment of the legal, social, educational and cultural status of women.
There is hardly any field today wherein women have not entered. In a nutshell, it can be said
that education and women's participation in all fields of economy, science and culture is helping
them in achieving the real equality. But there is other side of the coin too. With rapid

24
Constitution of India, art. 15
25
Id. art. 21A
26
See, Hindu Succession Act 1956, sec. 6

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urbanization and industrialization of the country, exploitation of women in recent years has
been a serious menace to our society. Notwithstanding the multiplication of legislation in
various fields with a view to improve the social, political and economic conditions of women,
even the ancient forms of victimization, child marriage and premature consummation resulting
in early and dangerous pregnancies, female infanticide, illegal abortions, dowry deaths, rape,
eve-teasing and various other forms of molestation of women still continue. In fact, since the
passing of the Dowry Prohibition Act and even after several amendments to the Indian Penal
Code, 1860 (IPC), Code of Criminal Produce, 1973 (CrPC) and the Indian Evidence Act, 1872
(IEA) dowry deaths are on the increase. Under the Hindu Succession Act, parents make will
depriving daughters. Though bigamy is an offence, the rate of desertion by husbands and illegal
second marriage is on the increase.

Thus, we see that the condition of Indian woman is still shocking. The life of woman in India
is surrounded by violence, neglect and exploitation. The Committee on the Status of Women
in India rightly concludes that, “the entire exercise of our committees has indicated that in
certain important areas and for certain sections of the female population, there has been
repression from the normative attitudes developed during the freedom movement. Even after
the promulgation of the laws legal measures, the protection enjoyed by the large masses from
exploitation and injustice is negligible. Though, women don't numerically constitute a
minority, they are beginning to acquire the features of a minority community by the recognized
dimensions of inequality of class, economic status, social position and political power...The
chasm between the values of a new social order proclaimed by the constitution and the realities
of contemporary Indian society as far as women's rights are concerned remains as great as at
the time of independence.”27

1.4 India’s Obligations and Commitments Under International Conventions: -


The obligation of our country to ensure gender justice; including protecting women from crime
and abuse; arises from many sources of international law which are as follows:

The Universal Declaration of Human Rights, 1948: -


India was one of the 48 countries which voted in favour of the adoption of the Universal
Declaration of Human Rights (UDHR) by the United Nations General Assembly on 10th
December 1948. The UDHR is not a treaty in itself but defines ‘fundamental freedoms’ and
‘human rights’ for the purposes of the UN Charter. The UDHR is generally agreed to be the
foundation of international human rights law as it inspired the numerous human rights
conventions which followed.
The Preamble to the UDHR states as follows:

“Whereas recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,

27
Government of India, Towards Equality: Report of the Committee on the Status of Women in India (Ministry
of Education and Social Welfare, Dec. 1974)

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Whereas disregard and contempt for human rights have resulted in barbarous acts which have
outraged the conscience of mankind, and the advent of a world in which human beings shall
enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as
the highest aspiration of the common people,”
Article 3 of UDHR states that “Everyone has the right to life, liberty and security of person.”
Further, Article 16 of the UDHR states that:
“(1) Men and women of full age, without any limitation due to race, nationality or religion,
have the right to marry and to found a family. They are entitled to equal rights as to marriage,
during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and
full consent of the intending spouses. (3) The family is the natural and fundamental group unit
of society and is entitled to protection by society and the State.”

The International Covenant on Civil and Political Rights, 1966: -


The UDHR was followed up by the International Covenant on Civil and Political Rights
(ICCPR). India acceded to the ICCPR on April 10, 1979. The Preamble to which inter alia
states:

“Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of
free human beings enjoying civil and political freedom and freedom from fear and want can
only be achieved if conditions are created whereby everyone may enjoy his civil and political
rights, as well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote
universal respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which
he belongs, is under a responsibility to strive for the promotion and observance of the rights
recognized in the present Covenant,”
Article 3 of the ICCPR places an obligation on all covenanting parties to “…undertake to
ensure the equal right of men and women to the enjoyment of all civil and political rights set
forth in the present Covenant.”
Article 23 of the ICCPR upholds certain inherent rights of the family and of men and women
to commit to a union; it states that:

“1. The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be
recognized.
3. No marriage shall be entered into without the free and full consent of the intending spouses.
4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights
and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the
case of dissolution, provision shall be made for the necessary protection of any children.”
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International Covenant on Economic, Social and Cultural Rights, 1966: -
India is also a party to the International Covenant on Economic, Social and Cultural Rights
(ICESCR) and acceded to it on April 10, 1979. ICESCR states in its Preamble:

“Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of
free human beings enjoying freedom from fear and want can only be achieved if conditions are
created whereby everyone may enjoy his economic, social and cultural rights, as well as his
civil and political rights,”
Article 7 of the ICESCR obligates state parties to “recognize the right of everyone to the
enjoyment of just and favourable conditions of work which ensure, in particular:

(a) Remuneration which provides all workers, as a minimum, with: (i) Fair wages and equal
remuneration for work of equal value without distinction of any kind, in particular women
being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for
equal work; (ii) A decent living for themselves and their families in accordance with the
provisions of the present Covenant;
(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher
level, subject to no considerations other than those of seniority and competence;

(d) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as
well as remuneration for public holidays”

Convention on Elimination of all forms of Discrimination Against Women (CEDAW): -


Convention on Elimination of Discrimination Against Women is the main convention for
women’s equity. It was adopted in 1979. It has been ratified by 186 out of 193 members. India
became a signatory to CEDAW in 1980 and ratified it in 1993.

CEDAW was the landmark document because it did away with a piecemeal approach by the
UN to women’s rights. It examined inequality in public as well as private sphere and recognised
the role that culture and religion play in undermining human rights. While not expressly
mentioning violence against women, CEDAW prohibits it in its guarantees against sex
discrimination.28 The Convention affirmed the principle of equality by requesting the state
parties to take all “appropriate measures, including legislation to ensure the full development
and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment
of human rights and fundamental freedoms on a basis of equality with men”29

28
Rosemary Barberet, Women, Crime and Criminal Justice: A Global Enquiry 58 (Routledge Taylor & Francis
Group, New Your)
29
Convention on the Elimination of All Forms of Discrimination Against Women, Art. 3

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CEDAW under Article 11(1) provides that “States parties shall take all appropriate measures
to eliminate discrimination against women in the field of employment in order to ensure on the
basis of equality of men and women, the same rights in particular (a) the right to work as an
inalienable right of all human beings; (b) the right to protection of health and to safety in
working conditions, including the safeguarding of the function of reproduction.”

Article 22 postulates that equality in employment can be seriously impaired when women are
subjected to gender specific violence such as sexual harassment in the work place.

Article 24 postulates that State parties will undertake to adopt all necessary measures at the
national level aimed at achieving the full realization of the rights recognized in the present
convention.

In 1992, during the 11th session of the CEDAW committee, the United Nations issued General
Recommendation Number 19, which pertains specifically to the issue of violence against
women. The definition of “discrimination against women” under Article 1 of CEDAW was
clarified by Recommendation 19 to include “gender based violence”: -

“The definition of discrimination includes gender based violence, i.e., violence that is directed
against woman because she is a woman or that affects woman disproportionately. It includes
acts that inflict physical, mental or sexual harm or suffering, threats of such acts, coercion and
other deprivations of liberty. Gender based violence may breach specific provisions of the
Convention regardless of whether those provisions expressly mention violence...”

Recommendation Number 19 also formed the basis for Declaration on the Elimination of
Violence Against Women (DEVAW), and can therefore be seen as one of the triggers which
brought violence against women into the mainstream of International law. Although the
provisions of this recommendation are not automatically and legally binding on states, as a
signatory to CEDAW, India has a general obligation to take cognizance of these
recommendations.

World Conference on Human Rights, Vienna 1993:


The Third World Conference on Human Rights held at Vienna provided a global platform in
acknowledging and affirming that the human rights of women as ‘inalienable, integral and
indivisible part of human rights’ and thereby expanded the international human rights agenda
to understand gender specific violations. By acknowledging women’s rights, the rights of the
‘girl-child’, and the prevalence of gender-based violence, the Vienna Declaration of Platform
of Action(VDPA) successfully widened the scope of ‘human rights’.

The Declaration on the Elimination of Violence against Women (DEVAW) 1993:


In the wake of Vienna, the Declaration on the Elimination of Violence Against Women
(DEVAW) was adopted, without vote, by the United Nations General Assembly in its
resolution 48/104 of 20 December 1993. The resolution is often seen as complementary to, and
a strengthening of, the work of the Convention on the Elimination of All Forms of
Discrimination against Women and Vienna Declaration and Programme of Action.

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Articles 1 and 2 of DEVAW provide the most widely used definition of violence against
women.

Article 1: “…the term ‘violence against women’ means any act of gender-based violence that
results in, or is likely to result in, physical, sexual or psychological harm or suffering to women,
including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in
public or in private life.”

Article 2: Violence against women shall be understood to encompass, but not be limited to, the
following:

(a) Physical, sexual and psychological violence occurring in the family, including battering,
sexual abuse of female children in the household, dowry-related violence, marital rape, female
genital mutilation and other traditional practices harmful to women, non-spousal violence and
violence related to exploitation;

(b) Physical, sexual and psychological violence occurring within the general community,
including rape, sexual abuse, sexual harassment and intimidation at work, in educational
institutions and elsewhere, trafficking in women and forced prostitution;

(c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever
it occurs.

Beijing Declaration and Platform for Action 1995:


The Beijing Platform for Action was a turning point in International Women’s Law. It
reaffirmed the conclusions of the Vienna Conference and put women’s human rights even more
firmly on the world agenda. The Beijing Declaration was followed by the Platform for Action.
The key strength of Beijing was that it acknowledged the long-standing failure of governments
to promote and protect a woman’s human right to be free of violence in their homes.
Recommended actions included the strengthening of legal system’s response to all forms of
violence against women.

1.5 Scope of the Study: -


The basic aim of this work is to describe the various aspects and causes of sexual violence
against women and to throw light on the extent of its fast spreading phenomenon. The malady
is deep rooted and has its origins in several social, legal, economic and psychological factors.
It is intended to identify the factors which are responsible for increasing the cases of sexual
violence against women, in general, and rape, in particular. For this purpose, the reports of
National Crime Record Bureau (NCRB) are assessed and analyzed for the period of 2013 to
2015 and compared with that of 2010 to 2013, for Delhi and also compared with National
record.

1.6 Objectives of the Study: -


The present study has been undertaken keeping in view the following broad objectives:
 To enquire into the causes and factors leading to sexual violence against women with
special reference to rape.
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 To evaluate the existing anti-sexual offence legal framework and to assess their impact,
with specific reference to Criminal Law Amendment of 2013.
 To review the role of enforcement agencies like Police, Prosecution and Judiciary
dealing with the problem of crime against women.
 To study the changes in the rate and incidences of sexual violence against women,
especially rape cases in Delhi, after 2013 Criminal Law Amendment, by way of
comparative study of NCRB data for the period of 2010-2015.
 To draw inferences and conclusions and to put forward suggestions in order to eradicate
the menace of sexual violence against women.

1.7 Research Question: -


The main issue/question on which this research ponders upon is whether there has been any
decline in in the rate of sexual crime against women after 2013 amendment? How effective are
those amendment in reducing the sexual offences against women? Whether merely making
more stringent laws is enough to bring the crime rate down against women?

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