Ignou.. ... .....

Indira Gandhi
National Open University BLE-003

School of Law
Law and Vulnerable
Groups
Block
1
WOMEN AND THE LAW
UNIT 1
Understanding Gender Based Discrimination 5
UNIT 2
Violence against Women: Rape and Dowry 28
UNIT 3
Domestic Violence 48
UNIT 4
Sexual Harassment at the Workplace 68
UNIT 5
Rights of Women Workers 88
Expert Committee
Prof. (Dr.) N.R. Madhava Menon Ms. Vrinda Grover
Member, Commission on Centre-State Director
Relations, New Delhi Multiple Action Research Group (MARG),
Former Director, NLSIU, Bangalore and New Delhi
National Judicial Academy, Bhopal
Ms. Abha Joshi
Lawyer, New Delhi
Prof. B.B. Pande
Former Professor of Criminal Law, Dr. Manik Chakrabarty
Law Faculty, University of Delhi Professor, Department of Law
The University of Burdwan, West Bengal
Mr. Babu Mathew
Country Director Prof. Srikrishna Deva Rao
Action Aid India, New Delhi Director, School of Law, IGNOU
Prof. K. Elumalai
Prof. S. Siva Kumar Professor, School of Law, IGNOU
Research Professor
Indian Law Institute Ms. Suneet Kashyap
New Delhi Asst. Prof., School of Law, IGNOU
Prof. M. R. K. Prasad Ms. Gurmeet Kaur

V.M. Salgaocar College of Law Asst. Prof., School of Law, IGNOU
Panaji, Goa Mr. Anand Gupta
Asst. Prof., School of Law, IGNOU
Ms. M. Roopa
Independent Scholar Ms. Mansi Sharma
Bangalore Asst. Prof., School of Law, IGNOU
Block Preparation Team

Programme Coordinator : Prof. Srikrishna Deva Rao and Mr. Anand Gupta
Unit Writers : Unit 1 : Ms. Chitra Balakrishnan

Units 2 and 4 : Dr. Varsha Chitnis
Unit 3 : Ms. Veena Gowda
Unit 5 : Ms. Apoorva Kairwar
Content Editor : Units 1,2,3 and 4: Ms. Chitra Balakrishnan
Unit 5: Ms. M.Roopa
Consultant : Ms. Jaishree Suryanarayanan

Material Production
Mr. Yashpal
Section Officer (Publication)
IGNOU, New Delhi
May, 2010
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BLE-003 LAW AND VULNERABLE GROUPS
Law is an important tool that helps in identifying and addressing social problems,
especially those relating to vulnerable groups. There are many groups in our
society who face discrimination in their daily lives owing to factors, such as,
their gender, age, social and economic status, and physical/mental disability.
Often, such groups face multiple disabilities when some of these factors converge,
which is aggravated by their impoverishment. For example, a poor mentally ill
woman, who apart from being subjected to all the disabilities on account of
being a woman, is further exposed to violations of her rights due to her illness.
We have selected five such groups for discussion in this course — women,
children, dalits, persons with disabilities and persons living with HIV-AIDS.
In the first block, ‘Women and the Law’, we will examine the various
manifestations and implications of gender based discrimination on women’s
human rights, and the response of the law to addressing these issues. One of the
most important issues that law has had to address is that of violence against
women, which is now understood as a violation of basic human rights. We will
examine laws dealing with the offences of rape and dowry, domestic violence
and sexual harassment at the workplace. We will also analyse the extent to which
the rights of women workers has been guaranteed under different laws.
The second block deals with ‘Child and the Law’. It is widely acknowledged
that children need nurturing and protection owing to their tender age. We begin
the block by discussing the Convention on Rights of the Child which sets the
standards for child rights. We then move on to some critical issues, such as,
education and child labour. Lack of adequate opportunities to get good quality
education coupled with the exploitative and immoral practice of employing child
labour effectively robs our children of a good future where they can realise their
aspirations. More and more children find themselves on the wrong side of the
law due to factors, such as, escaping from violence and abuse at home,
impoverishment, or simply the desire to break free from authority to chase their
dreams. Hence, the legal system needs to address the concerns of children in
need of care and protection, some of whom may be delinquents. We end the
block by examining the strengths and weaknesses of the juvenile justice system.
The third block is on ‘Dalits and the Law’. Dalits are persons who have
traditionally been considered ‘untouchable’ and have been excluded from the
caste system. Untouchability is a phenomenon that legitimises degrading,
humiliating and exploitative practices against persons belonging to specific caste
groups. Article 17 of our Constitution abolishes untouchability and forbids its
practice in any form. We will examine legislations that were enacted to protect
the rights of dalits, and to punish offenders who discriminate against dalits and
inflict violence on them. We will also examine legislations that were passed to
stop the practices of manual scavenging and keeping bonded labour.
In the fourth block, we will address the issues confronting two groups — persons
with disabilities and persons living with HIV-AIDS. We will examine the
international and national legal framework on the rights of persons with
disabilities. HIV positive persons have been continuously denied various human
rights. We will analyse the socio-legal dimensions of addressing this disease.
Women and the Law
BLOCK 1 WOMEN AND THE LAW
Women constitute at least half of the world’s population, but are still ‘vulnerable’
to being subjected to violence, discrimination and differential treatment in various
spheres of life. Since women’s status and the way in which they are viewed have
been shaped by society, it is not surprising that they will be subject to similar
discrimination within the legal system too. In this block, we shall examine some
of the issues affecting women in our country and the response of the law.
Patriarchy and its manifestations and impact on the status and rights of women
will form the subject matter of the first unit on ‘Understanding Gender
Discrimination’. We will examine the stereotypes about men and women and
the reasons for this. We will also examine the impact of gender relations on
women’s human rights and the response of the law to addressing gender based
discrimination.
One of the most important issues that law has had to address is that of violence
against women, which is now understood as a violation of basic human rights. In
the second unit, we will look at rape and dowry as two aspects of violence against
women. We will examine the relevant laws and also interrogate the reasons behind
these acts of violence against women.
A significant proportion of women’s experience of violence is situated in the site

of the home, at the hands of intimate relations like spouse, father and brother. In
the third unit on ‘Domestic Violence’ we will analyse the limitations of existing
criminal laws in combating domestic violence and the context in which the need
for a more comprehensive law providing for civil remedies to combat domestic
violence arose. We will take you through the provisions of the Protection of
Women from Domestic Violence Act, which provides the procedure and reliefs
that can be sought by a victim of domestic violence.
While it was relatively easy to gain legal recognition for sexual and domestic
violence due to the very obvious and blatant nature of these types of violence,
the issue of sexual harassment at the workplace has been accepted as a form of
violence only recently. In the fourth unit on ‘Sexual Harassment at the Workplace’
we will explain what sexual harassment means and why it occurs and analyse
the existing legal framework for redressal. We will also identify some of the
problems in the existing definition and understanding of sexual harassment.
Despite the growing population of women workers, their working conditions

and wages are less than equitable and the gender specific needs of women workers
are rarely addressed, particularly those of the more vulnerable workers in the
unorganised sector. In the fifth unit on ‘Rights of Women Workers’ we will discuss
the various Acts enacted for the protection of women workers and analyse the
gaps in the law in order to identify necessary legal reforms.
4
Understanding Gender
UNIT 1 UNDERSTANDING GENDER Based Discrimination
BASED DISCRIMINATION
Structure
1.1 Introduction
1.2 Objectives
1.3 Patriarchy
1.3.1 Gender Stereotyping of Roles and Behaviour
1.3.2 Modes of Patriarchal Control
1.3.3 Productive and Reproductive Work
1.4 Gender Inequality in the Family: Response of the Law
1.4.1 Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)
1.4.2 Public-private Divide in Women’s Lives
1.4.3 Gender Equality under the Constitution
1.5 Summary
1.6 Terminal Questions
1.7 Answers and Hints
1.8 Glossary
1.9 References and Suggested Readings
1.1 INTRODUCTION
The term ‘gender’ is being increasingly used in common parlance like never
before. What used to be found only in sociology and humanities texts is now
quoted frequently in the columns of the daily newspaper. Gender is a term that is
quite often confused with the term ‘sex’. While the sex of a person (being male
or female) is determined by several biological factors such as genetic make up,
gender identity is something that has been constructed or ascribed to one by
society. We use the term ‘construct’ since it is imposed upon one and is not a
natural phenomenon. Thus, being born man or woman and possessing those
physical attributes that distinguish one from the other (sex) is biological, but that
women should be meek is a gender attribute that is ascribed to women by society.
In other words, women are socialised into being submissive and meek just as
men are socialised into being aggressive and tough.
This ascription of qualities and behaviour begins in the home and leads to
considerable discrimination in treatment between boys and girls. Girls are
expected naturally to help out with household tasks and to take on nurturing and
caring roles in addition to attending school, while boys are encouraged to play
freely when they are not at school. The assumption within families is that since
boys will anyway have to undertake the onerous responsibility of breadwinning
for the family later, they should be given every opportunity to be free of
responsibilities when they are young. There is a clear link between gender roles
and the high dropout rate among girls in schools. Since the destiny of all girls is
to marry and bear children, their education is considered dispensable. Women
5
Women and the Law face such discrimination and differential treatment in various other spheres of
life too. As women’s status and the way in which they are viewed have been
shaped by society, it seems to follow that they will be subject to similar
discrimination within the legal system and in the way they are viewed as legal
subjects, and therefore, in justice outcomes.
In this unit, we shall examine some of the stereotypes about men and women
and the reasons for this. We shall also examine the impact of gender relations on
women’s human rights and the response of the law to addressing their position
in society.
1.2 OBJECTIVES
After studying this unit, you should be able to:
explain the manner in which a patriarchal society has constructed gender;
analyse how women’s rights are violated as a result of gender stereotyping
and gender roles;
explain the difference between productive and reproductive work and how
this leads to discrimination between men and women; and
analyse the response of the law, international and national, to addressing
women’s needs.
1.3 PATRIARCHY
In order to understand the concept of gender more clearly, it is necessary to
examine the status of men and women in traditional societies. Historians and
sociologists have recorded that the movement of societies has been from the
matriarchal (rule of the mother), where women definitely enjoyed a more equitable
relationship with men, to a patriarchal (rule of the father) society in which men
play a dominant role. Although it is not clear exactly how and at which point in
time the transition happened, one theory is that as the movement from an
agricultural economy to that of a hunting economy occurred, women became
more home bound since they had the responsibilities of child birth and rearing.
At this point, as men began going out to hunt they began to transact more with
the outer world, learning about trade and barter and a monetised economy. Women
were denied this due to their being tied down by child care and household
responsibilities. This led to a heightened sense of their work and its importance
in men. Women’s role in ‘reproductive’ work began to be rated less as compared
to the more visible, ‘successful’ roles that men were playing.1
Women are oppressed because ‘the administration of the household lost its public
character and it became a private service. 2 It is important to understand that
patriarchy as a system continues to be perpetuated since it benefits men and puts
them in a position of power vis-à-vis women. Women are thus made unwitting
partners in the perpetuation of the patriarchal system in different ways, such as:
1
James M Henslin, Essentials of Sociology: A Down-to-Earth Approach p 240-244 (Boston:
Allyn and Bacon, 2000).
2
Nivedita Menon, Constitutionalism and the Feminist Subject in Recovering Subversion:
6 Feminist Politics Beyond the Law p 9 (New Delhi: Permanent Black, 2004).
- gender indoctrination, that is, role stereotyping of men and women; Understanding Gender
Based Discrimination
- denial of education of knowledge of their own history;
- dividing women from one another by defining norms of behaviour (conferring
respectability and attributing deviance according to their sexual activities);
and
- discriminating against women in access and control over economic resources
and political power. 3
We shall discuss the effects of patriarchy in creating categories of productive
and reproductive work later in this unit. We will also examine how such patriarchal
control benefits men and makes it possible for them to control women.
1.3.1 Gender Stereotyping of Roles and Behaviour

In this section, we shall try to understand how patriarchy has manifested itself in
gender stereotyping of roles and behaviour. Gender stereotyping means the
ascription of certain attributes and roles to men and women. For example, that
men should not cry is a gender ascription of behaviour. Therefore, crying men
are seen as weak, exhibiting their vulnerability and not living up to their ‘male’
image. As a result, it is expected that men keep up a stoic appearance even in
situations of extreme sorrow and loss. This is an ascription by a patriarchal society
as being ‘natural’, while the irony is that the most natural thing for any
human being – man, woman or child – to do in the face of extreme loss or pain
is to cry.
Similarly, women are naturally expected to be care-givers, although both men

and women are equally equipped and capable of taking care of children. That
only women can give birth and breast feed is determined by biology. However,
there is nothing to show that only women need look after the child after it has
been weaned. It is because men in India as well as in other societies are socialised
into not taking up child care responsibilities and leave it to women to take on
what is considered their primary responsibility, that there are no provisions for
paternity leave in India in most institutions. Where there is a provision, very few
avail of this facility.
Activity
a) List 5 common gender stereotypes of attributes in men and women
respectively (eg. women never get angry).
b) List 5 common gender roles (eg. all bus drivers are men).
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3
Gerda Lerner, The Creation of Patriarchy (Oxford University Press, 1986). 7
Women and the Law 1.3.2 Modes of Patriarchal Control
There are numerous ways in which patriarchal control is exercised:
Control over women’s productive power or labour – This is discussed in
greater detail below.
Control over women’s reproduction and sexuality – Decisions about
frequency and number of children and family planning are rarely made by
women. Child-rearing practices are influenced by gender-based socialisation
and girls are schooled to be ‘women’ and boys to be ‘men’ as described in
the gender stereotyping section above. In addition, women’s bodies are
controlled by men to satisfy their sexual desires to a great extent, as is
evidenced by the practice of prostitution and marital rape.
Control over economic and material resources – Women’s right to own and
control property still remains a distant dream despite legal guarantees. Even
in matriarchal families, the actual control of property lies with men. More
importantly, women themselves are considered the ‘property’ of men and,
therefore, subject to decisions made by them.
Control over decision-making in all aspects of women’s lives – This is done
through economic, political, religious, legal, social and cultural institutions.
Restrictions are imposed on their mobility. Restrictions, such as the clothes
she should wear, the timings she should keep, the people, especially men
she should talk to, all become important means of control.
1.3.3 Productive and Reproductive Work

Both men and women do productive work for remuneration. However, it is the
‘visible’ labour of men which is paid work that is valorised by patriarchy, and
the work that women do of child bearing and rearing is not valued and is
consequently unpaid work. To quote another example, in many agricultural and
tribal communities, both men and women plough the land; however, the myth
that women cannot plough the land since it is arduous work is propagated by a
patriarchal society leading to stereotyping of work roles as well.
On the face of it, one could argue that men not crying or women assuming child
(or elderly) care responsibilities are not issues. However, such ascription of gender
roles and attributes becomes questionable because it forces men and women into
unnatural roles and behaviour and sets up hierarchies that lead to unequal (and
unhealthy) power equations. Similarly, ‘productive’ or ‘paid’ work which most
men are socialised to do is more important and valued than the ‘reproductive’
work that women do of bearing and rearing children, and of cooking, cleaning,
washing and creating a home. The latter is therefore unpaid, and for that reason,
valueless.
Research conducted by the United Nations Development Programme (UNDP) 4
in 1995 has computed the ‘unpaid’ reproductive work that women do to be in the
region of $ 11 trillion annually. This is the value in wages that societies would
have to pay those who render services of cooking, cleaning and washing, but
which women do without any remuneration in millions of homes. This report
has been followed by several nation-wise studies taking up the exercise of
4
Human Development Report, United Nations Development Programme (1995).
8
computing the value of unpaid work and of advocating that this be considered in Understanding Gender
computing national income statistics. The reproductive work that women do
actually frees men to do their ‘productive’ work unhindered, but this contribution
is largely kept hidden and ignored both in the home and by policy makers.
This is why the demand of the women’s movement has for many years been that
the value of the unpaid work that women do should be taken into consideration
when computing the Gross Domestic Product of economies since it is a significant
and valuable contribution. However, it is not considered so by society and
therefore, by policy makers.
If this unequal equation between men and women is to change, it is clear that
much more work needs to be done to enable men to express their emotions
openly without feeling pressurised to be ‘manly’. There may be men who may
want to explore caring and nurturing qualities that are inherent in them and to
have the luxury of not always being the bread winner. Using the same yardstick,
there could be women who may not always want to be placed only in a nurturing
role, but who would also wish to explore their inherent managerial, entrepreneurial
or other latent capabilities. However, there is very little space in a patriarchal
society to interchange such roles, and much more importantly, to share equally
in those roles. The sharing by men and women of reproductive work in homes
could lead to a more healthy and harmonious relationship between men and
women and to a more equitable society based on mutual respect and
understanding. This can come about only if there is awareness that an unequal
exercise and enjoyment of power and privileges by men at the expense of women
is unjust. To change this will require the commitment and efforts of both men
and women alike.
The devaluing of women’s work is not confined to the reproductive arena alone,
but is also visible in the productive work that they do as well. This is manifested
in wage disparities between men and women, in denying women the same
opportunities for promotions, and in the fact that the work that they do is exploited
through the devaluation of their productive labour as well. Men also exploit
women’s labour by selling their bodies as in prostitution.
Self-assessment Questions
1) What do we mean by ‘gender stereotyping’ of roles?
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2) What do you understand by productive and reproductive work?
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9
Women and the Law
1.4 GENDER INEQUALITY IN THE FAMILY:
RESPONSE OF THE LAW
The biases that operate against women in the family are reproduced in the response
of the legal system to violation of women’s rights. There have been attempts
made by activists and those interested in legal reform to ensure that the system
changes and is made more responsive to women’s lived realities. The need for
an international legal regime that would advance women’s human rights came
about as many attempted to understand the inadequacies of the legal system to
respond to women’s struggle to be treated as equals. We shall now examine how
the law has responded to the needs of women, both at the international and national
levels.
1.4.1 Convention on the Elimination of All Forms of

Discrimination against Women (CEDAW)
One of the most important steps taken to advance the protection of women through
rights and the law in the international arena is the adoption of the Women’s
Convention, CEDAW. Although there were provisions in earlier international
conventions through which women could claim protection, such as, the Universal
Declaration of Human Rights and the International Convention on Civil and
Political Rights, these provisions did not deal comprehensively with the specific
realities of women. The main international human rights organs like the UN
Commission on Human Rights or the Human Rights Committee (under ICCPR)
did not appear to deal specifically with violations of the human rights of
women except in a marginal way or within the framework of other human rights
issues. 5
CEDAW was adopted unanimously by the United Nations on Dec. 18 1979 and
entered into force on Sept. 3 1981. The Women’s Convention is like an
International Bill of Rights for women which is ratified by State parties who
then agree to abide by the terms of the convention.
Understanding that women’s equality can come about only if fundamental changes
occur in the home, CEDAW observes ‘that a change in the traditional role of
men as well as the role of women in society and in the family is needed to
achieve equality between men and women.’ 6
Consisting of a Preamble and 30 Articles, CEDAW defines what constitutes

discrimination against women and sets up an agenda for national action to end
such discrimination. The Convention defines discrimination against women as
“...any distinction, exclusion or restriction made on the basis of sex which has
the effect or purpose of impairing or nullifying the recognition, enjoyment or
exercise by women, irrespective of their marital status, on a basis of equality of
men and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.”
5
A Feminist Analysis of the Universal Declaration of Human Rights in Carol Gould (ed.) Beyond
Domination: New Perspectives on Women and Philosophy (1983) at 250 quoted in Supra p 177
6
Ibid, p179
10
By accepting the Convention, States commit themselves to undertake a series of Understanding Gender
measures to end discrimination against women in all forms, including:
to incorporate the principle of equality of men and women in their legal
system, and abolish all discriminatory laws and adopt appropriate ones
prohibiting discrimination against women;
to establish tribunals and other public institutions to ensure the effective
protection of women against discrimination; and
to ensure elimination of all acts of discrimination against women by persons,
organisations or enterprises.
The Convention provides the basis for realising equality between women and
men through ensuring women’s equal access to, and equal opportunities in,
political and public life – including the right to vote and to stand for election –
as well as education, health and employment. States parties agree to take all
appropriate measures, including legislation and temporary special measures, so
that women can enjoy all their human rights and fundamental freedoms.
The Convention is the only human rights treaty which affirms the reproductive
rights of women and targets culture and tradition as influential forces shaping
gender roles and family relations. It affirms women’s rights to acquire, change
or retain their nationality and the nationality of their children. States parties also
agree to take appropriate measures against all forms of traffic in women and
exploitation of women.
Countries that have ratified or acceded to the Convention are legally bound to
put its provisions into practice. They are also committed to submit national reports,
at least every four years, on measures they have taken to comply with their treaty
obligations. As of May 2009, 186 states have ratified or acceded to the treaty.7
Two institutions within the universal human rights system are concerned
exclusively with women’s rights. The older of the two, the UN Commission on
the Status of Women, is formally the body with rights. It was established at the
same time as the Human Rights Commission but it has been a less effective and
influential body. The second more significant and influential organ has been the
Committee formed under CEDAW as a body of independent experts from diverse
backgrounds like sociology, medicine, international relations, education, political
science, law and government. The task of the Committee is to monitor States’
efforts to meet their obligations through review of periodic reports submitted by
the State parties.8
The Optional Protocol to CEDAW, which enables private parties and NGOs to
petition the CEDAW Committee with complaints and bring to its attention
information about women’s rights violations in any part of the world, was adopted
by the UN General Assembly on Oct. 6 1999 and entered into force on Dec.22
2000. By ratifying the Optional Protocol, a State recognises the competence of
the Committee on the Elimination of Discrimination against Women – the body
that monitors State parties’ compliance with the Convention – to receive and
consider complaints from individuals or groups within its jurisdiction.
7
http://www.un.org/womenwatch/daw/cedaw/
8
See note 5 p 188. 11
Women and the Law The Protocol contains two procedures: (1) A communications procedure allows
individual women, or groups of women, to submit claims of violations of rights
protected under the Convention to the Committee. The Protocol establishes that
in order for individual communications to be admitted for consideration by the
Committee, a number of criteria must be met such as that domestic remedies
must have been exhausted. (2) The Protocol also creates an inquiry procedure
enabling the Committee to initiate inquiries into situations of grave or systematic
violations of women’s rights. In either case, States must be party to the Convention
and the Protocol. The Protocol includes an ‘opt-out clause’ allowing States upon
ratification or accession to declare that they do not accept the inquiry procedure.
Article 17 of the Protocol explicitly provides that no reservations may be entered
to its terms.9
1.4.2 Public-private Divide in Women’s Lives

Tracing the history of the engagement of the women’s movement with the law
world wide, the following important strands in the interface between the legal
system and women can be noticed: 10
Most legal systems have features which are discriminatory to women, denying
them equal rights to property, to certain kinds of employment and so on.
Even where there is de jure equality, law in its actual functioning
discriminates against women because legal agents interpret laws in a
patriarchal manner.
Even when law treats men and women equally it is discriminatory to women
because men and women are located in an unequal position in cultural,
social and economic formations. In other words, it is unjust to treat unequals
equally.
The law and the State render invisible women’s subjective experience of
oppression since objectivity is installed as the norm. In this sense the law is
essentially ‘male’ and can only ever partially comprehend the harm done to
women.
There has always existed a divide between what is considered public and what is
considered private in women’s lives. “The public realm is understood in this
context to be open to government regulation, while the private is to be protected
from such action, sexuality and the family being understood to be private.” 11
Women’s rights activists observe that this is a categorisation which enables the
judiciary to very conveniently not intervene in matters falling within the private
realm such as, sexual assault and domestic violence. An example is the judgment
of the Delhi High Court, upheld by the Supreme Court 12 in which it states that
“introduction of Constitutional law into the ordinary domestic relationship of
husband and wife will strike at the very root of that relationship and that in the
privacy of the home and married life, neither Article 21 (right to life) nor Article
14 (right to equality) has any place.”
9
http://www.un.org/womenwatch/daw/cedaw/protocol/
10
See Lerner note 3 above p 4.
11
See Lerner note 3 above p 9.
12 12
Harvinder Kaur v Harmander Singh AIR 1984 Del 66.
There is now almost complete unanimity in the women’s movement that this Understanding Gender
private-public dichotomy should be abolished and that as far as women are
concerned, ‘the personal is political’. In India, many women activists hold the
view that it is necessary for the law to intervene ‘in the recesses of the private’ to
ensure justice.
1.4.3 Gender Equality under the Constitution

As far as Indian domestic law is concerned the provisions for equality are vast.
Articles 14, 15 and 16 of the Constitution of India lay down the conditions of
non-discrimination and gender is one of the important areas of non-discrimination.
Yet there are a variety of methods in which both the letter of the law and various
interpretations by courts discriminate against women. 13 Sometimes, the
discrimination is justified in the name of protecting women who are, after all,
the weaker sex. Here are some illustrations as exemplified through case laws:
1) There is a rule under the Code of Civil Procedure that a court could ask a
woman plaintiff in cases of money suits to give monetary security if she did
not own immoveable property in India. But in case of men, this rule only
applied to men who are not resident in India and did not own immoveable
property in India. This means that there is a difference in treatment between
men and women plaintiffs who are resident in India. Considering the situation
in India, where most women do not own immoveable property such as land
and buildings, does this not cast a burden on any woman who wishes to
sue? But it was held in Mahadeb Jiew14 that though there was discrimination,
it was not discrimination on grounds of sex alone and that “possession
of sufficient immovable property is not a consideration bearing on sex at
all”.
2) The Indian Administrative Services (Recruitment) Rules, 1954 excluded
married women from posts included in that service on the ground that
marriage brings about certain disabilities and obligations which may affect
the efficiency or suitability of employment. The Court struck down such
provisions in the Rules as being discriminatory and against constitutional
guarantees of non-discrimination on grounds of sex in matters of employment.15
3) Air India and lndian Airlines had prescribed norms for physical appearance
measured in literal terms for their air hostesses, who were required to be
young, attractive, underweight and unmarried. If they married, pregnancy
was barred. These rules were challenged and the Court had the following
observations to make. 16 Regarding the rule that women who joined the
services as air hostesses be barred from marriage for four years, the Court
reasoned that this was a reasonable bar since it “would help boost the
country’s family planning programme and that since a woman would be
mature at the age of 23 (the regulation stated that they would be eligible to
marry at 23 years) there are possibilities that such a marriage would be
successful”. However the provision that an airhostess could be terminated
on first pregnancy shocked, its conscience. It felt that this “was a cruel and
13
Kalpana Kannabiran, ‘Judicial Meanderings in Patriarchal Thickets: Litigating Sex
Discrimination in India’, Vol. No. 44 Economic and Political Weekly p 88-98.
14
Sri Mahadeb Jiew and anr v Dr. B.B. Sen AIR 1951Cal 563.
15
Radha Charan Patnaik v State of Orissa and Another AIR 1969 Orissa 237.
16
Air India v Nergesh Meerza and Ors AIR 1981 SC 1829. 13
Women and the Law callous act” and violative of Article 14 of the Constitution. It recommended
instead by some strange reasoning that the rules be amended to state that
termination on the third pregnancy if the earlier children were alive would
be acceptable, again in the interests of the family planning programme to
control overpopulation.
It is remarkable that the first condition that women airhostesses should not
marry for four years was considered reasonable by the court, when it is
patent that the marital status of women and their pregnancy are considered
a liability by most employers that affects their efficiency. Since men do not
become pregnant, the rule regarding bar on marriage until 4 years of service
did not apply to them. One of the fundamental precepts of equality that
those who are situated similarly should be treated equally is directly violated
since women are not situated similarly to men in respect of childbirth.
Similarly, the recommendation that termination of the third pregnancy should
be introduced in the Rules shows scant respect for women’s own reproductive
choice.
4) The Punjab and Haryana High Court had to deal with the question of an
order by the Governor prohibiting women from employment in men’s jails
except as clerks and matrons.17 Even though Mrs. R Singh was eligible for
appointment as superintendent, her name did not appear in the gradation
list and records of her employment carried a note that she was not encadred
with the superintendents. In general, she was considered unfit for
appointment in a men’s jail where ‘hardened and ribald prisoners’ were
confined. Women employed in these institutions, in this view, are potential
victims of male crime, specifically male sexual crime, a possibility that
even a prison cannot offer women protection against. The Court assumed
an absolutely neutral position to ask the question whether it would be possible
for a man to be employed in an all-woman’s institution. Since the answer
was no, the corollary would also hold true according to the court. It seems
that the State is unable to offer protection to women against men, either in
custody or in a position of authority!
The above are just a few examples to illustrate the manner in which the law
looks at women in India, using the lens of the Constitution. Perhaps the greatest
site of oppression for women is in the area of personal law, i.e. laws governing
marriage, divorce, maintenance, custody and property, which are based on religion.
Thus, women from different religions experience differential treatment in these
matters since Hindu, Christian and Muslim women have separate laws governing
them in these areas. Some of these laws are more, or less progressive, depending
on how successful the individual religions have been in bringing about reform.
The law and courts have been unwilling to go into this issue in great depth.
While a uniform civil law covering women is desirable since it would help not
to create discrimination amongst women as a class, the experience of the Indian
women’s movement has been that such uniformity will not take into account
subtle and finer nuances that exist within the various religions. The argument
has been that each religion needs to determine what areas of legal reform would
best benefit women. This, however, is a double edged sword as areas of law
reform get debated and decided by the clergy and politicians who are
predominantly men and whose interests lie in perpetuating patriarchy.
17
14 Mrs. R. S. Singh v State of Punjab and others AIR 1972 Punjab and Haryana 117.
In the Indian context, women have found it easier to fight against the State or Understanding Gender
against social custom through the State, than to fight for their rights within the
family or on ‘personal’ issues, which bring them closer to the darkness of the
inegalitarian and oppressive relationship between men and women.18 On the
other hand, since most of the new laws provide for more stringent punishment,
there have been fewer convictions than before. Hence, only a change in the status
of women in society and discarding the practices resulting from gender
stereotyping will ensure that women get equal rights.
1.5 SUMMARY
Let us now recapitulate some important points discussed in this unit:
While the sex of a person (being male or female) is determined by several
biological factors such as genetic make up, gender identity is something
that has been constructed or ascribed to one by society. The ascription of
qualities and behaviour begins in the home and leads to considerable
discrimination in treatment between boys and girls.
Since women’s status and the way in which they are viewed have been shaped
by society, it seems to follow that they will be subject to similar
discrimination within the legal system and in the way they are viewed as
legal subjects, and therefore, in justice outcomes.
We discussed the effects of patriarchy in creating categories of productive
and reproductive work and how such patriarchal control benefits men and
makes it possible for them to control women. It is the ‘visible’ labour of
men which is paid work that is valorised by patriarchy, and the work that
women do of child bearing and rearing is not valued and is consequently
unpaid work.
One of the most important steps taken to advance the protection of women
through rights and the law in the international arena is the adoption of the
Women’s Convention, CEDAW, which recognises that a change in the
traditional role of men as well as the role of women in society and in the
family is needed to achieve equality between men and women.
Articles 14, 15 and 16 of our Constitution lay down the conditions of non-
discrimination and gender is one of the important areas of non-discrimination.
Yet there are a variety of methods in which both the letter of the law and
various interpretations by courts discriminate against women.
1.6 TERMINAL QUESTIONS

1) What is patriarchy and how is it manifested? Describe some of the modes of
patriarchal control.
2) Explain with illustrations as to how the rights of women are violated through
gender stereotyping?
3) What is your opinion about the public-private divide in women’s lives and
should law enter into the ‘private’ areas?
4) What are the fundamental guarantees for women under CEDAW?
18
See Menon, note 2 above p 13. 15
Women and the Law
1.7 ANSWERS AND HINTS
1) Gender stereotyping means the ascription of certain attributes and roles to
men and women. For example, that men should not cry is a gender ascription
of behaviour and crying men are seen as weak and not living up to their
‘male’ image. Similarly, women are naturally expected to be care-givers,
although both men and women are equally equipped and capable of taking
care of children.
2) The ‘visible’ labour of men which is paid work is considered to be productive
work and is valorised by patriarchy. The unpaid work that women do, such
as, child bearing and rearing, household work, and looking after the elderly
are considered to be reproductive work. This work is not valued and is
consequently unpaid work. The reproductive work that women do actually
frees men to do their ‘productive’ work unhindered, but this contribution is
largely kept hidden and ignored both in the home and by policy makers.
Terminal Questions
1) Refer to Section 1.3. 3) Refer to Section 1.4.
2) Refer to Section 1.3. 4) Refer to the Appendix.
1.8 GLOSSARY
Socialised : the process by which infants and children become aware of
society and their relationship with others.
Equitable : fair or just (in accordance with equity).
De jure : by right.
Preamble : preface or introduction to a law, giving its reasons and purpose.
1.9 REFERENCES AND SUGGESTED READINGS

M.M. Rebecca Wallace, International Human Rights: Texts and Materials (Sweet
and Maxwell, 2001).
J Henry Steiner and Philip Alston, International Human Rights in Context: Law,
Politics and Morals (Oxford University Press, 2000).
James M Henslin, Essentials of Sociology: A Down-to-Earth Approach (Boston:
Allyn and Bacon, 2000).
Nivedita Menon, Constitutionalism and the Feminist Subject in Recovering
Subversion: Feminist Politics Beyond the Law (New Delhi: Permanent Black, 2004).
Gerda Lerner, The Creation of Patriarchy (Oxford University Press, 1986).
Human Development Report (United Nations Development Programme, 1995).
Kalpana Kannabiran, ‘Judicial Meanderings in Patriarchal Thickets: Litigating
Sex Discrimination in India’, Vol. No. 44 Economic and Political Weekly.
Internet sources
http://www.un.org/womenwatch/daw/cedaw/
http://www.un.org/womenwatch/daw/cedaw/protocol/
16
APPENDIX Understanding Gender
CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN
The States Parties to the present Convention,

Noting that the Charter of the United Nations reaffirms faith in fundamental
human rights, in the dignity and worth of the human person and in the equal
rights of men and women,
Noting that the Universal Declaration of Human Rights affirms the principle of
the inadmissibility of discrimination and proclaims that all human beings are
born free and equal in dignity and rights and that everyone is entitled to all the
rights and freedoms set forth therein, without distinction of any kind, including
distinction based on sex,
Noting that the States Parties to the International Covenants on Human Rights
have the obligation to ensure the equal rights of men and women to enjoy all
economic, social, cultural, civil and political rights,
Considering the international conventions concluded under the auspices of the

United Nations and the specialised agencies promoting equality of rights of men
and women,
Noting also the resolutions, declarations and recommendations adopted by the

United Nations and the specialised agencies promoting equality of rights of men
and women,
Concerned, however, that despite these various instruments extensive

discrimination against women continues to exist,
Recalling that discrimination against women violates the principles of equality

of rights and respect for human dignity, is an obstacle to the participation of
women, on equal terms with men, in the political, social, economic and cultural
life of their countries, hampers the growth of the prosperity of society and the
family and makes more difficult the full development of the potentialities of
women in the service of their countries and of humanity,
Concerned that in situations of poverty women have the least access to food,
health, education, training and opportunities for employment and other needs,
Convinced that the establishment of the new international economic order based
on equity and justice will contribute significantly towards the promotion of
equality between men and women,
Emphasising that the eradication of apartheid, all forms of racism, racial

discrimination, colonialism, neo-colonialism, aggression, foreign occupation and
domination and interference in the internal affairs of States is essential to the full
enjoyment of the rights of men and women,
Affirming that the strengthening of international peace and security, the relaxation
of international tension, mutual co-operation among all States irrespective of
their social and economic systems, general and complete disarmament, in
17
Women and the Law particular nuclear disarmament under strict and effective international control,
the affirmation of the principles of justice, equality and mutual benefit in relations
among countries and the realisation of the right of peoples under alien and colonial
domination and foreign occupation to self-determination and independence, as
well as respect for national sovereignty and territorial integrity, will promote
social progress and development and as a consequence will contribute to the
attainment of full equality between men and women,
Convinced that the full and complete development of a country, the welfare of
the world and the cause of peace require the maximum participation of women
on equal terms with men in all fields,
Bearing in mind the great contribution of women to the welfare of the family
and to the development of society, so far not fully recognised, the social
significance of maternity and the role of both parents in the family and in the
upbringing of children, and aware that the role of women in procreation should
not be a basis for discrimination but that the upbringing of children requires a
sharing of responsibility between men and women and society as a whole,
Aware that a change in the traditional role of men as well as the role of women in
society and in the family is needed to achieve full equality between men and
women,
Determined to implement the principles set forth in the Declaration on the

Elimination of Discrimination against Women and, for that purpose, to adopt
the measures required for the elimination of such discrimination in all its forms
and manifestations,
Have agreed on the following:

PART I
Article 1
For the purposes of the present Convention, the term “discrimination against
women” shall mean any distinction, exclusion or restriction made on the basis
of sex which has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a basis
of equality of men and women, of human rights and fundamental freedoms in
the political, economic, social, cultural, civil or any other field.
Article 2
States Parties condemn discrimination against women in all its forms, agree to
pursue by all appropriate means and without delay a policy of eliminating
discrimination against women and, to this end, undertake:
a) To embody the principle of the equality of men and women in their national
constitutions or other appropriate legislation if not yet incorporated therein
and to ensure, through law and other appropriate means, the practical
realisation of this principle;
b) To adopt appropriate legislative and other measures, including sanctions
where appropriate, prohibiting all discrimination against women;
18
c) To establish legal protection of the rights of women on an equal basis with Understanding Gender
men and to ensure through competent national tribunals and other public
institutions the effective protection of women against any act of
discrimination;
d) To refrain from engaging in any act or practice of discrimination against
women and to ensure that public authorities and institutions shall act in
conformity with this obligation;
e) To take all appropriate measures to eliminate discrimination against women
by any person, organisation or enterprise;
f) To take all appropriate measures, including legislation, to modify or abolish
existing laws, regulations, customs and practices which constitute
discrimination against women;
g) To repeal all national penal provisions which constitute discrimination against
women.
Article 3
States Parties shall take in all fields, in particular in the political, social, economic
and cultural fields, 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.
Article 4
1) Adoption by States Parties of temporary special measures aimed at
accelerating de facto equality between men and women shall not be
considered discrimination as defined in the present Convention, but shall in
no way entail as a consequence the maintenance of unequal or separate
standards; these measures shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved.
2) Adoption by States Parties of special measures, including those measures
contained in the present Convention, aimed at protecting maternity shall
not be considered discriminatory.
Article 5
States Parties shall take all appropriate measures:
a) To modify the social and cultural patterns of conduct of men and women,
with a view to achieving the elimination of prejudices and customary and
all other practices which are based on the idea of the inferiority or the
superiority of either of the sexes or on stereotyped roles for men and women;
b) To ensure that family education includes a proper understanding of maternity
as a social function and the recognition of the common responsibility of
men and women in the upbringing and development of their children, it
being understood that the interest of the children is the primordial
consideration in all cases.
19
Women and the Law Article 6
States Parties shall take all appropriate measures, including legislation, to suppress
all forms of traffic in women and exploitation of prostitution of women.
PART II
Article 7
States Parties shall take all appropriate measures to eliminate discrimination
against women in the political and public life of the country and, in particular,
shall ensure to women, on equal terms with men, the right:
a) To vote in all elections and public referenda and to be eligible for election to
all publicly elected bodies;
b) To participate in the formulation of go vernment policy and the
implementation thereof and to hold public office and perform all public
functions at all levels of government;
c) To participate in non-governmental organisations and associations concerned
with the public and political life of the country.
Article 8
States Parties shall take all appropriate measures to ensure to women, on equal
terms with men and without any discrimination, the opportunity to represent
their Governments at the international level and to participate in the work of
international organisations.
Article 9
1) States Parties shall grant women equal rights with men to acquire, change
or retain their nationality. They shall ensure in particular that neither marriage
to an alien nor change of nationality by the husband during marriage shall
automatically change the nationality of the wife, render her stateless or force
upon her the nationality of the husband.
2) States Parties shall grant women equal rights with men with respect to the
nationality of their children.
PART III
Article 10
against women in order to ensure to them equal rights with men in the field of
education and in particular to ensure, on a basis of equality of men and women:
a) The same conditions for career and vocational guidance, for access to studies
and for the achievement of diplomas in educational establishments of all
categories in rural as well as in urban areas; this equality shall be ensured in
pre-school, general, technical, professional and higher technical education,
as well as in all types of vocational training;
b) Access to the same curricula, the same examinations, teaching staff with
qualifications of the same standard and school premises and equipment of
the same quality;
20
c) The elimination of any stereotyped concept of the roles of men and women Understanding Gender
at all levels and in all forms of education by encouraging coeducation and
other types of education which will help to achieve this aim and, in particular,
by the revision of textbooks and school programmes and the adaptation of
teaching methods;
d) The same opportunities to benefit from scholarships and other study grants;
e) The same opportunities for access to programmes of continuing education,
including adult and functional literacy programmes, particulary those aimed
at reducing, at the earliest possible time, any gap in education existing
between men and women;
f) The reduction of female student drop-out rates and the organisation of
programmes for girls and women who have left school prematurely;
g) The same opportunities to participate actively in sports and physical
education;
h) Access to specific educational information to help to ensure the health and
well-being of families, including information and advice on family planning.
Article 11
1) States Parties shall take all appropriate measures to eliminate discrimination
against women in the field of employment in order to ensure, on a 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 the same employment opportunities, including the
application of the same criteria for selection in matters of employment;
c) The right to free choice of profession and employment, the right to
promotion, job security and all benefits and conditions of service and
the right to receive vocational training and retraining, including
apprenticeships, advanced vocational training and recurrent training;
d) The right to equal remuneration, including benefits, and to equal
treatment in respect of work of equal value, as well as equality of
treatment in the evaluation of the quality of work;
e) The right to social security, particularly in cases of retirement,
unemployment, sickness, invalidity and old age and other incapacity
to work, as well as the right to paid leave;
f) The right to protection of health and to safety in working conditions,
including the safeguarding of the function of reproduction.
2) In order to prevent discrimination against women on the grounds of marriage
or maternity and to ensure their effective right to work, States Parties shall
take appropriate measures:
a) To prohibit, subject to the imposition of sanctions, dismissal on the
grounds of pregnancy or of maternity leave and discrimination in
dismissals on the basis of marital status;
21
Women and the Law b) To introduce maternity leave with pay or with comparable social benefits
without loss of former employment, seniority or social allowances;
c) To encourage the provision of the necessary supporting social services

to enable parents to combine family o bligat ions with work
responsibilities and participation in public life, in particular through
promoting the establishment and development of a network of child-
care facilities;
d) To provide special protection to women during pregnancy in types of

work proved to be harmful to them.
3) Protective legislation relating to matters covered in this article shall be
reviewed periodically in the light of scientific and technological knowledge
and shall be revised, repealed or extended as necessary.
Article 12
against women in the field of health care in order to ensure, on a basis of
equality of men and women, access to health care services, including those
related to family planning.
2) Notwithstanding the provisions of paragraph I of this article, States Parties
shall ensure to women appropriate services in connection with pregnancy,
confinement and the post-natal period, granting free services where necessary,
as well as adequate nutrition during pregnancy and lactation.
Article 13
against women in other areas of economic and social life in order to ensure, on a
basis of equality of men and women, the same rights, in particular:
a) The right to family benefits;
b) The right to bank loans, mortgages and other forms of financial credit;
c) The right to participate in recreational activities, sports and all aspects of
cultural life.
Article 14
1) States Parties shall take into account the particular problems faced by rural
women and the significant roles which rural women play in the economic
survival of their families, including their work in the non-monetised sectors
of the economy, and shall take all appropriate measures to ensure the
application of the provisions of the present Convention to women in rural
areas.
against women in rural areas in order to ensure, on a basis of equality of
men and women, that they participate in and benefit from rural development
and, in particular, shall ensure to such women the right:
a) To participate in the elaboration and implementation of development
planning at all levels;
22
b) To have access to adequate health care facilities, including information, Understanding Gender
counselling and services in family planning;
c) To benefit directly from social security programmes;
d) To obtain all types of training and education, formal and non-formal,
including that relating to functional literacy, as well as, inter alia, the
benefit of all community and extension services, in order to increase
their technical proficiency;
e) To organise self-help groups and co-operatives in order to obtain equal
access to economic opportunities through employment or self
employment;
f) To participate in all community activities;
g) To have access to agricultural credit and loans, marketing facilities,
appropriate technology and equal treatment in land and agrarian reform
as well as in land resettlement schemes;
h) To enjoy adequate living conditions, particularly in relation to housing,
sanitation, electricity and water supply, transport and communications.
PART IV
Article 15
1) States Parties shall accord to women equality with men before the law.
2) States Parties shall accord to women, in civil matters, a legal capacity identical
to that of men and the same opportunities to exercise that capacity. In
particular, they shall give women equal rights to conclude contracts and to
administer property and shall treat them equally in all stages of procedure
in courts and tribunals.
3) States Parties agree that all contracts and all other private instruments of
any kind with a legal effect which is directed at restricting the legal capacity
of women shall be deemed null and void.
4) States Parties shall accord to men and women the same rights with regard to
the law relating to the movement of persons and the freedom to choose their
residence and domicile.
Article 16
against women in all matters relating to marriage and family relations and
in particular shall ensure, on a basis of equality of men and women:
a) The same right to enter into marriage;
b) The same right freely to choose a spouse and to enter into marriage
only with their free and full consent;
c) The same rights and responsibilities during marriage and at its dissolution;
d) The same rights and responsibilities as parents, irrespective of their
marital status, in matters relating to their children; in all cases the
interests of the children shall be paramount;
23
Women and the Law e) The same rights to decide freely and responsibly on the number and
spacing of their children and to have access to the information, education
and means to enable them to exercise these rights;
f) The same rights and responsibilities with regard to guardianship,
wardship, trusteeship and adoption of children, or similar institutions
where these concepts exist in national legislation; in all cases the
interests of the children shall be paramount;
g) The same personal rights as husband and wife, including the right to
choose a family name, a profession and an occupation;
h) The same rights for both spouses in respect of the ownership, acquisition,
management, administration, enjoyment and disposition of property,
whether free of charge or for a valuable consideration.
2) The betrothal and the marriage of a child shall have no legal effect, and all
necessary action, including legislation, shall be taken to specify a minimum
age for marriage and to make the registration of marriages in an official
registry compulsory.
PART V
Article 17
1) For the purpose of considering the progress made in the implementation of
the present Convention, there shall be established a Committee on the
Elimination of Discrimination against Women (hereinafter referred to as
the Committee) consisting, at the time of entry into force of the Convention,
of eighteen and, after ratification of or accession to the Convention by the
thirty-fifth State Party, of twenty-three experts of high moral standing and
competence in the field covered by the Convention. The experts shall be
elected by States Parties from among their nationals and shall serve in their
personal capacity, consideration being given to equitable geographical
distribution and to the representation of the different forms of civilisation
as well as the principal legal systems.
2) The members of the Committee shall be elected by secret ballot from a list
of persons nominated by States Parties. Each State Party may nominate one
person from among its own nationals.
3) The initial election shall be held six months after the date of the entry into
force of the present Convention. At least three months before the date of
each election the Secretary-General of the United Nations shall address a
letter to the States Parties inviting them to submit their nominations within
two months. The Secretary-General shall prepare a list in alphabetical order
of all persons thus nominated, indicating the States Parties which have
nominated them, and shall submit it to the States Parties.
4) Elections of the members of the Committee shall be held at a meeting of
States Parties convened by the Secretary-General at United Nations
Headquarters. At that meeting, for which two thirds of the States Parties
shall constitute a quorum, the persons elected to the Committee shall be
those nominees who obtain the largest number of votes and an absolute
majority of the votes of the representatives of States Parties present and
24 voting.
5) The members of the Committee shall be elected for a term of four years. Understanding Gender
However, the terms of nine of the members elected at the first election shall
expire at the end of two years; immediately after the first election the names
of these nine members shall be chosen by lot by the Chairman of the
Committee.
6) The election of the five additional members of the Committee shall be held
in accordance with the provisions of paragraphs 2, 3 and 4 of this article,
following the thirty-fifth ratification or accession. The terms of two of the
additional members elected on this occasion shall expire at the end of two
years, the names of these two members having been chosen by lot by the
Chairman of the Committee.
7) For the filling of casual vacancies, the State Party whose expert has ceased
to function as a member of the Committee shall appoint another expert
from among its nationals, subject to the approval of the Committee.
8) The members of the Committee shall, with the approval of the General
Assembly, receive emoluments from United Nations resources on such terms
and conditions as the Assembly may decide, having regard to the importance
of the Committee’s responsibilities.
9) The Secretary-General of the United Nations shall provide the necessary
staff and facilities for the effective performance of the functions of the
Committee under the present Convention.
Article 18
1) States Parties undertake to submit to the Secretary-General of the United
Nations, for consideration by the Committee, a report on the legislative,
judicial, administrative or other measures which they have adopted to give
effect to the provisions of the present Convention and on the progress made
in this respect:
a) Within one year after the entry into force for the State concerned;
b) Thereafter at least every four years and further whenever the Committee
so requests.
2) Reports may indicate factors and difficulties affecting the degree of fulfilment
of obligations under the present Convention.
Article 19
1) The Committee shall adopt its own rules of procedure.
2) The Committee shall elect its officers for a term of two years.
Article 20
1) The Committee shall normally meet for a period of not more than two weeks
annually in order to consider the reports submitted in accordance with article
18 of the present Convention.
2) The meetings of the Committee shall normally be held at United Nations
Headquarters or at any other convenient place as determined by the
Committee.
25
Women and the Law Article 21
1) The Committee shall, through the Economic and Social Council, report
annually to the General Assembly of the United Nations on its activities
and may make suggestions and general recommendations based on the
examination of reports and information received from the States Parties.
Such suggestions and general recommendations shall be included in the
report of the Committee together with comments, if any, from States Parties.
2) The Secretary-General of the United Nations shall transmit the reports of
the Committee to the Commission on the Status of Women for its
information.
Article 22
The specialised agencies shall be entitled to be represented at the consideration
of the implementation of such provisions of the present Convention as fall within
the scope of their activities. The Committee may invite the specialised agencies
to submit reports on the implementation of the Convention in areas falling within
the scope of their activities.
PART VI
Article 23
Nothing in the present Convention shall affect any provisions that are more
conducive to the achievement of equality between men and women which may
be contained:
a) In the legislation of a State Party; or
b) In any other international convention, treaty or agreement in force for that
State.
Article 24
States Parties undertake to adopt all necessary measures at the national level
aimed at achieving the full realisation of the rights recognised in the present
Convention.
Article 25
1) The present Convention shall be open for signature by all States.
2) The Secretary-General of the United Nations is designated as the depositary
of the present Convention.
3) The present Convention is subject to ratification. Instruments of ratification
shall be deposited with the Secretary-General of the United Nations.
4) The present Convention shall be open to accession by all States. Accession
shall be effected by the deposit of an instrument of accession with the
Secretary-General of the United Nations.
Article 26
1) A request for the revision of the present Convention may be made at any
time by any State Party by means of a notification in writing addressed to
the Secretary-General of the United Nations.
26
2) The General Assembly of the United Nations shall decide upon the steps, if Understanding Gender
any, to be taken in respect of such a request.
Article 27
1) The present Convention shall enter into force on the thirtieth day after the
date of deposit with the Secretary-General of the United Nations of the
twentieth instrument of ratification or accession.
2) For each State ratifying the present Convention or acceding to it after the
deposit of the twentieth instrument of ratification or accession, the
Convention shall enter into force on the thirtieth day after the date of the
deposit of its own instrument of ratification or accession
Article 28
1) The Secretary-General of the United Nations shall receive and circulate to
all States the text of reservations made by States at the time of ratification
or accession.
2) A reservation incompatible with the object and purpose of the present
Convention shall not be permitted.
3) Reservations may be withdrawn at any time by notification to this effect
addressed to the Secretary-General of the United Nations, who shall then
inform all States thereof. Such notification shall take effect on the date on
which it is received.
Article 29
1) Any dispute between two or more States Parties concerning the interpretation
or application of the present Convention which is not settled by negotiation
shall, at the request of one of them, be submitted to arbitration. If within six
months from the date of the request for arbitration the parties are unable to
agree on the organisation of the arbitration, any one of those parties may
refer the dispute to the International Court of Justice by request in conformity
with the Statute of the Court.
2) Each State Party may at the time of signature or ratification of the present
Convention or accession thereto declare that it does not consider itself bound
by paragraph I of this article. The other States Parties shall not be bound by
that paragraph with respect to any State Party which has made such a
reservation.
3) Any State Party which has made a reservation in accordance with paragraph
2 of this article may at any time withdraw that reservation by notification to
the Secretary-General of the United Nations.
Article 30
The present Convention, the Arabic, Chinese, English, French, Russian and
Spanish texts of which are equally authentic, shall be deposited with the Secretary-
General of the United Nations.
IN WITNESS WHEREOF the undersigned, duly authorised, have signed the

present Convention.
27
Women and the Law
UNIT 2 VIOLENCE AGAINST WOMEN:
RAPE AND DOWRY
Structure
2.1 Introduction
2.2 Objectives
2.3 Violence against Women
2.4 Rape
2.4.1 Defining Rape
2.4.2 Critical Issues in Rape Law
2.5 Dowry
2.5.1 Dowry as Violence against Women
2.5.2 Amendment to Dowry Prohibition Act
2.5.3 Effect of the Amendments
2.5.4 Socio-economic Factors in Dowry Related Violence
2.6 Summary
2.9 Glossary
2.1 INTRODUCTION
One of the most important issues that law has had to address is that of violence
against women. Although the concept of violence against women has come to
imply sexual or physical violence, it takes many forms. Mental harassment was
never considered a part of domestic violence, but lately the category has been
included in the definition of what constitutes violence. It is, therefore, essential
to understand what practices constitute violence. Most countries around the world,
at least most liberal democracies, (one cannot say the same about theocratic or
authoritarian regimes) have instituted some form of legal measures to address
issues of violence against women. It is in fact striking that women constitute at
least half of the world’s population but are still in the bracket of ‘vulnerable’
groups. This indicates that we have a strong and urgent need to make changes to
move towards an egalitarian society.
We begin this chapter by examining the concept of violence against women and
the significance it has in the international context. Violence against women has
now come to be understood as a violation of basic human rights. In order to
understand violence in a world-wide context, we will rely on the documents and
laws of the United Nations and its agencies. UN has dedicated much attention to
examining women’s conditions all over the world and publishes the results with
‘Womenwatch’.
The UN has set up various bodies to study the sufferings and problems of women
and to try and find solutions to eliminate them. For example, the Division for the
Advancement of Women (Department of Social and Economic Affairs) lists as
28
its main responsibilities – formulation of policy, global standards and norms on Violence against Women:
Rape and Dowry
gender equality; to encourage the implementation of international agreements
on gender equality; to encourage nations to implement the Convention on the
Elimination of all Forms of Discrimination against Women (CEDAW);1 and to
promote the mainstreaming of gender perspectives across all sectors.2 In addition
OSAGI (Office of the Special Advisor on Gender Issues and Advancement of
Women), UNIFEM (United Nations Development Fund for Women) and
INSTRAW (International Research and Training Institute for Advancement of
Women) are also UN entities which specialise in gender issues. That the UN has
dedicated so much attention to gender equality and gender mainstreaming,3 points
to the urgency of the matter.
In this unit, we will look at rape and dowry as two aspects of violence against
women. Laws against rape and dowry already exist in our legal system. Yet there
are social and cultural conditions that prevent the delivery of social justice as
intended by both the Constitution and these particular laws. We will also look at
some inherent problems in these laws. This is to say, we will examine both the
letter and the spirit of the law, as well as the implications of its interpretation in
our society. We will also interrogate the reasons behind these acts of violence
against women and study different perspectives of understanding and addressing
them.
2.2 OBJECTIVES
explain the concept of violence against women and why it is so ubiquitous;
analyse rape and dowry as instances of violence against women with specific
reference to India;
examine laws relating to rape and dowry in India and their social implications;
and
identify alternative ways of looking at rape and dowry which would help
ensure gender justice.
2.3 VIOLENCE AGAINST WOMEN

Activity
Before we begin our examination of violence against women as a concept,
it would be a good idea to take a moment and contemplate on what we
know about violence against women. List forms of violence against women
that you are aware of.
......................................................................................................................
......................................................................................................................
......................................................................................................................
1
India signed the CEDAW as a participating country in 1980 and ratified it (with reservations)
in 1993.
2
http://www.un.org/womenwatch/daw/daw/index.html.
3
For definition of and information on gender mainstreaming, see http://www.un.org/womenwatch/
osagi/pdf/factsheet1.pdf.
29
Women and the Law Violence against women is neither new nor unique to any one country or nation.
Violence against women is seen in every culture, in every nation of the world. It
is for this reason that various social and political reform movements all over the
world have suggested a compelling need to end it. In 1993 the UN General
Assembly adopted the Declaration on the Elimination of Violence against Women,
and in 1999 it declared November 25 as the International Day for the Elimination
of Violence against Women. The notion of violence against women is based on
the argument that such violence is against the basic human rights of women and,
therefore, every nation should strive to eliminate it. UN has been appealing to
leaders of nations, activists and NGOs to play an active role in eliminating violence
against women.
Let us briefly review some forms of violence against women. 4

Domestic violence: This is the most common form of violence that most
women suffer from all over the world. Yet this had been the most ignored
until recently. In developed countries as well, like the United States, domestic
violence is highly prevalent. Thus, it would be unwise to think that it is a
concern only for developing nations like India. The difficulty in addressing
this type of violence, even though it is so rampant, was that for a very long
time, it was considered to be a ‘private’ matter between the husband and the
wife within the four walls of the house. However, recently it has been argued
that any kind of violence, even if it occurs within the family and the
household, cannot be considered private because it violates the basic human
rights of individuals.
Incest or abuse by members of the family: It is generally assumed that
sexual exploitation of women happens at the hand of ‘outsiders’, those who
are not a part of the family. However reports from most countries illustrate
that a woman is most vulnerable to be raped and sexually abused by the
people she knows – members of her family or her friends. Gender abuse
includes molestation, sexual harassment and rape. Incest and gender abuse
also go unreported because the victim and her family do not want to alienate
a close relative. Sometimes the parents may refuse to believe that their
daughter has been abused by someone so close to the family. This kind of
violence against women is, therefore, troublesome at many different levels.
Female genital mutilation: In many parts of Africa and among those who
have migrated from Africa to other countries, the practice of genital
mutilation of females is very common. Such mutilation is not only
detrimental to the health of girls (this process is performed on young girls),
but it also severely affects the emotional and psychological structure of
these girls. Many girls lose self-confidence, become very shy and ashamed
of their bodies and themselves. They also often suffer from infections and
have complications during child-birth (often resulting in birth-related
handicaps and injuries to the child). Many women develop fistulas or lose
control over urine and faeces. This practice can be eliminated through
campaigns that will educate the communities about the ill-effects of the
practice on the health of women and their children.
Son preference: Many societies believe that their lineage will be continued
through their sons and, therefore, they prefer sons over daughters. In India
4
30 See http://www.un.org/rights/dpi1772e.htm.
too we have this phenomenon of son preference and we also see the forms Violence against Women:
Rape and Dowry
of violence against women that it translates into. During colonial times we
had the practice of female infanticide. Now with the advancement of
technology we have found a new way to kill women – female foeticide.
This practice, although illegal, prevails in many parts of India. But son
preference also leads to other more subtle forms of violence against women
like malnutrition, lack of access to education and other resources, and low-
self esteem.
Dowry related violence and early (or child) marriage: We are quite well
aware of these practices that form a major reason behind domestic violence
and ill-health of women. We will discuss more on dowry related violence in
Section 2.5.
Sexual assault within marriage: Most cultures believe that marriage permits
the man uncontrolled access to his wife. In India too rape within marriage is
not recognised by law because it is considered contradictory to the logic of
marriage. ‘How can a man rape his wife?’ is still a question many of us ask
and are unable to understand. However, rape and sexual assault by the
husband is a violation of the rights of a woman to bodily integrity and often
results in severe injuries.
Sexual harassment: Violence against women is seen in the public sphere as
well, where men and women are equal and have similar rights under our
Constitution. Sexual harassment is another example of how power leads to
violence. (We will study more about sexual harassment and its causes in the
unit on sexual harassment).
Prostitution, Trafficking and Pornography: This is a very common and
widespread form of violence against women. Women are pushed into
prostitution by their parents, husbands, boy-friends, or by adverse economic
conditions. Some women are lured into prospects of better living conditions
in foreign countries, where they end up in brothels, and their passports are
taken away from them. Rapes are the most common in prostitution. It would
be a fallacy to think that prostitutes cannot be raped. The concept of rape is
centred on consent, and although prostitutes have consented to having sex
for money, sometimes customers may use force or violence. At times, a
customer may not pay the woman. Moreover, prostitutes are considered as
‘available’ for everyone – the underlying assumption being that the concept
of consent cannot be applied to them. With the recent rise in the availability
of internet the instances of women being forced into pornography are also
rising. They suffer from the same problems as prostitutes. The problem
with pornography is also that it ‘glamorises the degradation and maltreatment
of women and asserts their subordinate function as mere receptacles for
male lust.’
Violence against women migrant workers: Migrant women workers are
poor, and like migrant men, suffer from low pay and terrible living conditions.
They also suffer additionally on account of their being women. They are
subject to abuse and rape by the employer. They cannot complain and cannot
escape because their passports and other important documents are seized
by the employer, leaving them in a slave-like condition. These forms of
violence against women are often not known to us.
31
Women and the Law Violence perpetrated or condoned by States: Many forms of violence against
women are those that are conducted by officers of the State. Custodial rapes
of women in police stations, women’s shelters, mental hospitals and
orphanages are common-place. In some cases, the States either sponsor
violence or turn a blind eye towards it. For instance, refugee women are
abused in camps by military personnel, immigration officials or other refugee
men. Countries engaged in armed conflicts also use rape as a weapon to
subdue or humiliate the enemy.
These are just a few examples of violence against women. There are many more
like poverty (which is called the ‘feminisation’ of poverty and means that women
and female-headed households are getting poorer all over the world, when
compared to male-headed or couple headed households),5 lack of access to
education and livelihood, life devoid of dignity, lack of access to better living
conditions, and lack of access to health-care facilities.
Now let us go back to the activity that you did before we began this discussion.
Determine which of these you were already aware of and which of these you
have never heard of or thought about before. One of the most important goal of
this chapter is also to make us aware that violence against women can take many
forms and that all forms are equally harmful not only for women but for our
society as a whole.
It is equally important to ask the question: what are the reasons behind the violence
that women all over the world are subjected to? If we cast a glance over the
forms of violence once again, we will notice a common thread: that these forms
of violence are perpetuated on women on account of their being women. Some
indicative points are:
Women are subordinated in all cultures and countries; cultures and societies
deliberately work at keeping women subordinated to men. This is called
patriarchy.
Women, most often, are economically dependent on men; in the workplace
women are mostly engaged in low-paying jobs.
Women are relatively powerless when compared to men, especially within
the home. The man is considered the head of the family and is the main
decision-maker.
Women are vulnerable to abuse, harassment and violence on account of
their sex.
Women are portrayed as symbols of a community or culture, so that the
community’s honour is linked with the women. This is why rape is used as
a means to humiliate a community.
Simply put, violence against women is an aspect of power and inequalities of

power that are a result of the unequal distribution of social and economic
resources. In this unit we will discuss in particular two forms of violence against
women – rape as a form of sexual violence and dowry as a form of domestic
violence.
5
32 http://en.wikipedia.org/wiki/Feminisation_of_poverty.
Violence against Women:
Self-assessment Question Rape and Dowry
1) List the forms of violence that we have discussed above and briefly state
what, in your opinion, are the reasons for their occurrence.
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
2.4 RAPE
We will examine rape as a specific issue of violence against women. Rape is
perhaps the oldest form of violence against women. As we briefly mentioned
above, rape is used not only to subdue women, but also as a means to humiliate
and subordinate a group/community. The law against rape and the punishment
for it are embedded in the Indian Penal Code (Sections 375 and 376 respectively)
which was encoded in 1890.
Two things follow from this fact: firstly, that 1890 was a long, long time ago
(social morality changes with time and it is important for law to change with it);
secondly, India was a British colony at that time, so much of the law is not
derived from the Indian social practices or prevalent law, but directly mirrors
British law. Thus, the social morality of Britain at that time is reflected highly in
these laws, which in turn has shaped (and somewhat changed) social morality in
India. A major focus for our purpose would be the Victorian values of chastity
and virginity of the woman (a very ‘pure’ woman), which is seen to prevail even
today in our social imaginations. We will investigate what effect this has had in
terms of imparting justice to women.
In the late seventies, many women’s groups were organised around the issue of
violence against women and especially sexual violence. The first agitation took
place around police rape, which was used as a means to intimidate a resisting
community, or was merely an abuse of power over marginalised or poor women.
This issue of police rape was brought into light when a group of policemen
gang-raped a woman named Rameeza Bee in Hyderabad, and killed her husband
when he tried to protest. This incident generated a large-scale (and much required)
public criticism of police rape. Cases like the rapes of Maya Tyagi in Harayana
and Mathura in Maharashtra further fuelled public outrage against police rape.6
The Mathura rape case7 is considered an important turning point in the legal
discourse on rape in India.
In determining if Mathura was raped or not, the courts focussed on the following
points as central:
Mathura had no injuries on her body.
6
See Radha Kumar, The History of Doing: An Illustrated Account of Movements for Women’s
Rights and Feminism in India 1800-1990 (New Delhi: Kali for Women, 1993). Chapter 8
gives an interesting account of the movement against rape in India.
7
Tukaram & Anr v State of Maharashtra 1979 AIR 185 SC. 33
Women and the Law She had apparently not protested to the rape because she did not shout or
scream.
It was impossible that she could have been raped while her family waited
outside. Therefore what had occurred was a consensual sexual intercourse.
Since Mathura had had sexual intercourse before, with her boyfriend, her
hymen was already broken and medical examination showed that she was
used to sexual intercourse.
Based on these premises, and the lack of other corroborative evidence, the Courts’
interpretation of the crime differed. The Sessions Court acquitted the accused,
but on appeal the High Court read ‘consent’ as ‘passive submission’ and found
them guilty. However, on appeal to the Supreme Court, the High Court judgment
was reversed and the accused were acquitted once again. Following an open
letter by four law professors to the Supreme Court, protests began against the
Mathura judgment. The Mathura case is considered a watershed in rape law
reform because it raised some very important issues, including the definition of
consent. The Mathura case demonstrated that it was extremely difficult for a
woman to prove that she had not consented. Since the burden of proof is on the
woman, it becomes even more difficult to prove that the absence of injuries or
resistance was out of fear and not consent.
2.4.1 Defining Rape

According to Section 375 of the Indian Penal Code, a man is said to have
committed rape when he has sexual intercourse with a woman:
against her will;
without her consent;
with her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt;
with her consent, when her consent is given because she believes that he is
another man to whom she is or believes herself to be lawfully married,
when the man knows that he is not her husband;
with her consent, when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally,
or through another, of any stupefying or unwholesome substance, she is
unable to understand the nature and consequences of that to which she gives
consent;
with or without her consent, when she is under sixteen years of age.
The law further adds that ‘penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape’. The exception to this law is that
sexual intercourse by a man with his wife, if she is not below fifteen years of
age, is not considered rape. This means that a man can never rape his wife
according to the law, unless she is below fifteen years of age.
As is evident from the explanation, penetration forms the main axis on which
rape is defined and determined. It also focuses on consent, or rather the absence
of consent. Rape occurs when a woman has not consented to intercourse. An
important aspect of the rape law is the age of consent, which currently is sixteen
34
years. This means that if a man has sexual intercourse with a female under the Violence against Women:
Rape and Dowry
age of consent, it will be considered rape, even if the female has consented.
Below the age of consent the female is considered as incapable of giving consent,
is the logic or rationale behind the concept of the age of consent. In addition
consent acquired by lies, threat, intoxication or drugs is considered invalid and,
therefore, is rape.
The minimum sentence for rape is:
Rape – 7-10 years imprisonment with liability of a fine.
Custodial rape, gang rape, rape of pregnant women, rape of minors: 10 years
imprisonment with liability of a fine.
Sexual intercourse with wife whose age is more than 12 years and and less
than 15 years: 2 years imprisonment with liability of a fine.
Sexual intercourse with separated wife without her consent: up to 2 years’
imprisonment and a fine.
Sexual intercourse, not amounting to rape, by a public servant, superintendent
of a jail or women’s or children’s homes, hospital management and other
person who are in custody of women; 5 years’ imprisonment and a fine.
What steps should be taken by a sexual assault survivor?*
The victim should narrate the incident to a family member or friend.
The victim should try not to bathe or wash clothes as evidence will be
lost because of this.
The victim should take a family member or a trusted person along with
her to the Police Station and give detailed information of what happened.
It is very important to mention that sexual intercourse occurred. Ensure
that this is mentioned in the FIR, which should be filed as soon as possible
after the incident.
It is the victim’s right to get a free copy of the FIR.
Ensure that the Police immediately take the victim for a medical
examination. It is their duty.
Ensure that the victim gets a copy of the medical report from the doctor.
The clothes of the victim will be taken away by the Police for examination
of the presence of semen, blood or hair of the man.
The victim should ensure that the clothes are placed in a sealed packet by
the Police and she gets a receipt of all the clothes that have been sealed.
If the Police refuse to lodge the FIR, the victim can complain to a senior
Police Officer or to the Magistrate.
The victim can also contact the District Collector, the State Women’s
Commission, the National Commission for Women or the National Human
Rights Commission to complain about this.
* Facilitator’s Guide for Community Legal Education on Women’s Rights in India, Global
Rights p.185 (2007).
35
Women and the Law 2.4.2 Critical Issues in Rape Law
Let us critically assess how the courts have interpreted this law, in terms of
understanding rape, consent and female sexuality.
Definition of rape: Rape is defined as sexual intercourse (understood as
penetration) without the consent of a woman. It is interesting to note that
‘penetration as rape’ assumes only penile penetration, while all other violent
acts like the insertion of fingers, sticks, bottles and iron rods into the vagina
are not categorised as rape but as sexual assault, which is liable for lesser
punishment. Though the injuries caused in such cases are multiple and severe,
since the male organ is not involved, it is not considered a case of rape.
Moreover, in cases of rape of young females and infants, the court holds
dear the concept of penetration to determine if the offence should be counted
as rape or as molestation or sexual abuse. As Flavia Agnes notes: “Penis
penetration continues to be the governing ingredient of the offence of rape.
The concept of ‘penis penetration’ is based on the control men exercise
over women. Rape violates these property rights and may lead to pregnancies
by other men and threaten the patriarchal power structure”.8 In this manner,
the very definition of rape reflects patriarchal notions.
Focus on chastity and virginity of women: The interpretation of rape law
in India has a dangerous preoccupation with the notions of chastity and
virginity of women. If a woman is a virgin and has been raped, the courts
have extended their sympathies to the woman. But like in the Mathura case,
if a woman accustomed to having sex is raped, the court is not only
unsympathetic, but also very critical of the woman, her character and her
sexuality. Thus the court determines what a ‘good’ woman is based on notions
of chastity and virginity. Only chaste and virtuous women are ‘protected’ by
the law from the evils of male desires. But if a woman does not conform to
these norms, she is not worthy of being protected. There have been cases
where the courts have stated that the testimony of a woman needed no
corroborative evidence because she was ‘respectably married’ and would
not lie about being raped. On the other hand, cases of severe violence in
rape have been brushed-off because the courts did not consider these women
to be chaste and virtuous enough.9 Justice in rape thus becomes a question
of ‘protecting the honour’ of women rather than a violation of her body.
Ambiguity of ‘consent’: As mentioned above and as seen in the Mathura
case, consent is very difficult to prove in rape cases. Although recent judicial
attitudes are changing with regard to consent, it has been rather difficult to
differentiate between passive submission and consent, especially in the
absence of injuries to the body or vagina. This is sedimented by the continued
focus on the chastity and honour of the woman and her sexual history.
Past sexual history of woman: It is tragic that the courts have allowed a
woman’s past sexual history to be presented as evidence of her consent.
One recommendation for reform in the rape law after Mathura was to exclude
8
Flavia Agnes, ‘The Anti-Rape Campaign: The Struggle and the Setback’, in Chhaya Datar ed.,
The Struggle Against Violence p. 130 (Calcutta: Stree, 1993).
9
Veena Das, ‘Sexual Violence, Discursive Formations and the State’, Vol 31 No. 35-37 September
36 Economic and Political Weekly p. 2411-2423 (1996).
the past sexual history of the victim. But the amendment completely Violence against Women:
Rape and Dowry
disregarded it and thus it did not find expression in the reformed law.
According to this logic a sex-worker can never complain of rape because
she is used to sexual intercourse with multiple men every day.
Marital Rape: In addition to these problems pertaining to the legalistic aspect
of the law and normative sexuality (how a ‘good’ woman should behave
sexually), there is another glaring lacuna in the Indian rape law. It does not
recognise marital rape, that is, rape of a wife by her husband. For long, such
rape was not recognised in any law around the world. Lately it has been
accepted that rape is possible even within marriage.
The reason for these definitional and interpretative problems is that rape is viewed
as linked with sex but not with power. This is the reason that marital rape is
excluded from the law, because sex is an integral part of marriage. But unrestricted
sexual access, that is a man can have sex with his wife whenever he wants to, is
an aspect of power, especially the power differentials between man and woman
within marriage. This also takes us to our main argument about violence: that
violence is an expression of power. The above discussion also highlights how
the courts categorise women into ‘good’ and ‘bad’ based on their sexual history
and behaviour, and it is only the ‘good’ women that are protected by the law.
In the aftermath of the protests against the Mathura judgment, demands were
made for the reform of rape law. Accordingly the rape laws were amended in
1983 to include the following:
The burden of proof was shifted to the accused in cases of custodial rapes.
The minimum punishment for rape was increased to seven years, and ten
years for custodial rape, rape of a pregnant woman, rape of a female younger
than twelve years and gang rape.
Sexual intercourse, without consent, with a wife living separately from her
husband either on account of being judicially separated or based on any
customary separation is considered rape.
Despite these reforms, some contentious issues like introducing the past sexual
history of the woman and the problematic concept of consent still make it difficult
for women to prove rape. What is required, therefore, is to shift the focus from
the sexual aspect of rape alone, to include the aspect of power.
Self-assessment Question
2) What are the important components in defining rape according to Section
375, IPC?
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
37
Women and the Law
2.5 DOWRY
There are many studies on dowry and dowry related violence. Some link its
origin to the concept of ‘Stridhan’. Others suggest that due to the changing values
in our consumerist world, the notion of bride-price has corrupted to become the
modern day custom of dowry. The scholarship on dowry is also varied; there are
sociological, legal and even economic studies on the concept of dowry and its
implications for our society. What we will examine in this section is how dowry
is etched in Indian law, and what its implications are. We will begin with a brief
history of how the issue of dowry came to the forefront for legal reforms. We
will also consider the recommendations for reform and the subsequent amendment
to the Dowry Prohibition Act. Having outlined the main tenets of this Act and its
efficacy, we will finally delve into some reasons for the limited success of this
law.
2.5.1 Dowry as Violence against Women

One of the most difficult tasks has been to depict, popularise and make accepted
the fact that dowry violence constitutes violence against women and that the
State has a duty to address it. Although the law against dowry was established
with the Dowry Prohibition Act of 1961, the custom continued and still continues
to exist. There are two main problems with the custom of dowry:
i) Many times the bride’s father has to incur severe debt in order to fulfil the
demand for dowry. Till date the more educated and/or well-placed a man is,
the more dowry he expects to get from the bride’s family. The bride’s family
on the other hand, seeks to fulfil such demands in the hope of providing a
bright and better future to their daughter.
ii) The custom of dowry has resulted in domestic violence and deaths of brides,
either because they are unable to provide the expected dowry, or because
their marital family’s demand for more dowry has not ceased.
Both these aspects of dowry are related to violence and related to the fact that
women occupy a subservient position in society.
In the late 1970s, women’s organisations and groups found an unusually high
number of ‘accidental’ deaths of young brides. In 1979 the death of a young,
newly married woman, Tarvinder Kaur created a stir in Delhi. The reason was
the dying declaration by Tarvinder that her in-laws had set her on fire because
she was unable to fulfil their demands for dowry. This was the first incident that
saw massive protests against dowry. Incidents of dowry-related domestic violence
were common in many parts of India, but most neighbours and even the police
turned a blind eye arguing that it was a ‘private’ matter between the husband and
the wife.10
Moreover, such deaths were either dubbed as accidents or suicides. Therefore,

one of the first demands of the anti-dowry campaigns was to pressurise the
authorities to consider these deaths as murders and investigate them accordingly.
Even if the woman had committed suicide, the campaigns argued that it was a
10
Nandita Gandhi and Nandita Shah, ‘The Issues at Stake: Theory and Practice’ in The
Contemporary Women’s Movement in India p. 54-61 & 218-220 (New Delhi: Kali for Women,
38 1992); Also see Kumar, note 6 above p. 115-126.
suicide abetted by mental harassment and demands for dowry, and thus should Violence against Women:
Rape and Dowry
be considered murder. Similar protests and campaigns ensued in various parts of
the country. The protests around dowry deaths, however, highlight that we do
not problematise dowry at the time of marriage; it becomes a problem only on
the death of the woman. Even so, the law and the courts have failed to understand
‘the character of the crime, its invisibility, its personal nature or [the need] to
empathise with the situation of women’. In addition the courts demanded concrete
proof and witnesses to prove the crime, and most often disregarded the
circumstantial evidence, thereby, giving the accused the benefit of the doubt. 11
2.5.2 Amendment to Dowry Prohibition Act

Not surprisingly, the anti-dowry campaigns demanded reforms in the law in order
to address the problems caused by dowry. The demands resulted in amendments
in laws relating to dowry and dowry-based domestic violence. These laws include
the Dowry Prohibition Act amended in 1984 and 1986, the Code of Criminal
Procedure, The Indian Evidence Act and the Indian Penal Code, all of which
were amended in 1983.12 We will look at each of these in brief and discuss the
effects of each by critically evaluating them.
Let us review some of the salient features of the Dowry Prohibition Act as its
stands after two amendments:
Dowry has been defined as any property or valuable security either given or
agreed to be given by one party to the other party in marriage. Any such
property that is given by the parent of either party or by anyone else to the
other party or to anyone else is also considered dowry. In our context it is
generally the bride’s family that gives such property to the groom’s family.
So simply put, any property given by the bride or anyone from her side, to
the groom or anyone from his side is dowry.
The minimum punishment for any person, who takes, gives or abets in taking
or giving of dowry, is five years’ imprisonment, and a minimum fine of Rs.
15,000. However, the clause excludes from the definition of dowry, presents
given to the bride and the groom at the time of marriage. The Act also adds:
“Provided further that where such presents are made by or on behalf of the
bride or any person related to the bride, such presents are of a customary
nature and the value thereof is not excessive having regard to the financial
status of the person by whom, or on whose behalf, such presents are given.”
Any person who makes a demand for dowry is liable for a punishment.
However, if dowry is given, the same should be transferred to the woman
within three months, the failure of which will result in imprisonment and/or
fine. If the woman dies before this transfer takes place, the same will be
transferred to her heirs. But if the woman dies of natural causes within
seven years of her marriage, the property should be transferred to her children
and in the absence of any children, to her parents.
11
See Gandhi and Shah, note 10 above p. 56.
12
Id p. 219; also see Flavia Agnes, ‘Protecting Women against Violence? Review of a Decade of
Legislation 1980-89’, April 25 Economic and Political Weekly p. WS19-WS33 (1992).
39
Women and the Law The amendments to the Act have made dowry a cognizable offence. This
means that the Court can initiate proceedings based on its own knowledge
of the crime or based on a police report, even if the victim has not complained.
The offence is also non-bailable and non-compoundable (cannot be
withdrawn).
The amendments shifted the burden of proof on the person being prosecuted
for taking or abetting dowry.
What is the procedure for investigation in dowry death cases? *

If any woman commits suicide and it appears that someone else is responsible
for her death, report to the Police immediately. On receiving this information
the SHO of the Police Station must take the following steps:
The nearest Executive Magistrate must be informed immediately.
The Police Officer must draw up a report of the apparent cause of death.
To determine the cause of death, the Police Officer must go to the place
where the deceased person’s body is.
The report should be made in the presence of two or more respectable
inhabitants of the neighbourhood.
The report should contain the cause of death describing the wounds, burns
and injuries found on the body.
The report must be signed by such Police Officer and two persons present
at the spot where the incident took place.
This report should be sent to the District Magistrate or the Sub-Divisional
Magistrate.
The body must be sent to the civil surgeon or other appointed medical
officer for examination (Section 174, CrPC).
If the Police do not take these steps or refuse to take them, you must
immediately report to the higher officials.
Rights p 220 (2007).
2.5.3 Effect of the Amendments

The main thrust of these amendments was to make the punishments more stringent
in a bid to make them powerful deterrents. However, due to the very complex
nature of the crime and its intricate linkages with ‘custom’, the actual practice of
dowry has hardly been affected despite the presence of this anti-dowry law. We
might have seen in our own families and in the families of our friends and relatives
that dowry is given and accepted unproblematically. Sometimes the dowry is
demanded explicitly, sometimes implicitly, but most often is given by the bride’s
family in accordance with the calculations of their caste, social status and
economic capacities. In some regions, for instance, it is accepted as a part of the
custom to give a certain amount of gold or gifts (often running in to lakhs of
rupees) without it being considered dowry. Thus, it is hardly surprising that despite
the law, dowry continues to exist and so does dowry-related violence.
40
We cannot but notice, when we look at the Dowry Prohibition Act, that it does Violence against Women:
Rape and Dowry
little to bring about attitudinal changes in the society about dowry. The Act, in
conjunction with the other provisions in IPC and CrPC, focuses on outlawing
the practice of dowry, without investigating the reasons behind it. Thus, not only
does it not address the giving and taking of dowry, but also does not change the
situation in dowry-related violence.
The definition of dowry itself is full of contradictions. Without exploring the
full complexity of the Indian concept of marriage the law takes a piece-meal
approach to social change. In India, generally the husband and wife do not form
a single unit after marriage, but become a part of the husband’s family. Moreover,
the autonomy of women in most cases is significantly compromised after
marriage. On one hand, the Act prohibits the giving or taking of dowry, but on
the other, it allows ‘gifts’ to be given to the groom and the bride, without laying
down what may constitute dowry and what could be counted as gifts. In many
families today, dowry is not demanded explicitly but it is expected that the
husband’s family and the bride will receive plenty of ‘gifts’ from the bride’s
family. Although the law includes the clause that the value of such customary
gifts should not be excessively over the financial status of the person giving
these gifts, the ‘financial status’ itself is a vague term. This results in the bride’s
father taking out loans for the wedding. In fact despite this Act, many banks in
India, nationalised and private, have a special category of loans for the weddings
of daughters. This means that while dowry is outlawed, all other forms of liabilities
of the bride’s family – the bride’s family bears the primary burden of the cost of
the marriage, and of gifting the bride, the groom and the groom’s family – is not
considered as the concern of law and is, therefore, outside its purview.
By shifting the onus of proof on the accused, the law turns the basic principle of
jurisprudence – innocent until proven guilty – on its head.
The introduction to the Dowry Prohibition Act explains some of the reasons for
its enactment and a major focus is on condemning the practice of dowry as an
evil and coercive system. In addition to being a burden for the bride’s father, one
of the main evils of the practice of dowry has been the violence inflicted on
women for getting insufficient or unsatisfactory amount of dowry. But the Act
does not carry any elements that might mitigate dowry-based violence. Moreover,
the relative powerlessness of women within the family and their economic
dependence on men defeats the purpose of making the offence cognizable and
non-bailable.
Before we embark on a discussion of the reasons for the continuance of dowry,
we will also examine the other laws that relate to the offence of dowry. In 1983,
in response to the ‘militant and emotional protests’13 over dowry deaths and
dowry related violence, amendments were made to three Acts, the Indian Penal
Code (IPC), The Indian Evidence Act (IEA) and the Code of Criminal Procedure
(CrPC). Let us get a brief overview of these amendments as they aimed at working
in conjunction with the Dowry Prohibition Act to reduce and ultimately eliminate
the practice of dowry.
Section 113A was added to the IEA which says that if a woman commits
suicide within seven years of her marriage and if cruelty is proved, the
13
See Gandhi and Shah, note 10 above p.217. 41
Women and the Law husband or his relatives can be charged with abetting the suicide. This was
an important addition because many women who lost their lives due to
dowry violence either committed suicide or were killed in a manner that
depicted suicide.
Section 498A was added to the IPC, which made cruelty by husband or his
relatives punishable by law. Such cruelty, in addition to repeated and
continuous demands for dowry, includes ‘any willful conduct which is of
such a nature as is likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or physical) of
the woman’. Notable in this provision is the recognition that cruelty can be
physical or mental, and that such cruelty can drive a woman to suicide.
In 1986, section 304B was inserted in the IPC to define dowry death. If a
woman dies of burns or bodily injury or under circumstances that are not
normal within seven years of her marriage, and if there is evidence of cruelty
or harassment for dowry, then such death will be considered ‘dowry death’
and the husband and/or his relatives will be held responsible for the death.
The punishment, if found guilty, is imprisonment for a minimum of seven
years, but can extend to life.
The already existing section 406 of IPC which specifies the punishment for
criminal breach of trust was extended to dowry, in the sense that if dowry
was taken and not transferred to the woman within three months (as per
section 6 of the Dowry Prohibition Act) the person who holds the dowry
can be charged with criminal breach of trust, with punishment up to three
years of imprisonment and/or fine.
Amendment was made to section 174 of the CrPC adding within its purview
the death or suicide of a woman within seven years of her marriage, or
under suspicious circumstances, or if a complaint of cruelty is made by the
relatives of the woman. Under such circumstances, this section enjoins upon
the police to investigate the death and conduct a compulsory post-mortem.
This is intended to ‘prevent hasty cremation which might lead to the
destruction of supportive evidence’.14 Section 176 of the CrPC authorises
the magistrate to initiate inquiry into any suspicious death.
For prosecution of offences under section 498A of IPC, section 198A was
inserted into the CrPC which allows the blood relative or the police to ask
the court to take action against the offenders of dowry. This means that even
if the woman herself cannot complain (out of fear or for any other reason),
the family of that woman has the standing before law to do so.
These provisions are intended to act together with the Dowry Prohibition Act to
dissuade people not only from giving and taking of dowry but also from subjecting
women to cruelty and harassment for dowry. But why did we need new provisions/
amendments? There are already enough laws that deal with abetting a suicide or
causing grievous bodily harm. Why then did we need new laws to address dowry
deaths and dowry related violence? The reason was that the already existing
laws did not account for the specific kind of violence that takes places within the
home. Flavia Agnes explains:15
14
See Gandhi and Shah, note 10 above p. 218.
42 15
See Flavia Agnes, note 12 above p. WS25.
The offence which is committed within the privacy of the home by a person on Violence against Women:
Rape and Dowry
whom the woman is economically and emotionally dependent needs to be dealt
with on a different plane. In criminal offences it is the State which is the
prosecuting body. Hence, it is extremely important to safeguard the right of an
individual accused against the state machinery during a criminal trial. So strict
procedures of investigations have to be followed and the rules of evidence have
to be strictly adhered to. It was extremely difficult for women to prove violence
by husbands and in-laws ‘beyond reasonable doubt’ as was required by the
criminal jurisprudence. There would be no witnesses to corroborate her evidence
as the offence is committed behind closed doors. Secondly, even if the beating
did not result in grievous hurt, as stipulated by the IPC, the routine and persistent
beatings would cause grave injury and mental trauma to the woman and her
children. Different criteria had to be evolved to measure injury and hurt in a
domestic situation. Generally complaints can be registered only after an offence
has been committed. But in a domestic situation a woman needs protection even
before a crime is committed when she apprehends danger to her life as she is
living with her assaulter and is also dependent on him.
Despite these laws, there hasn’t been a change in the way dowry is perceived in
India. Dowry is still expected and given in marriages. One wonders what has
been the efficacy of the anti-dowry law then. In order to completely understand
why the practice of dowry and continuation of dowry related violence still exists,
we have to look at the socio-economic factors involved in this kind of violence.
2.5.4 Socio-economic Factors in Dowry Related Violence

The first thing that we have to acknowledge and accept is that violence is
inextricably linked with power. If dowry is taken during a marriage and the woman
is never abused for dowry ever again, the very fact that dowry was taken points
to the lower social status of women and the coercive nature of the relationship
between the husband (and his family) and the wife’s natal family. It is an indicator
of the power differentials between the two families. And when the woman is
beaten and harassed for dowry, that violence is the ultimate signifier of this power
difference. The fact is that women are still not considered equal to men in terms
of social status.
Several different reasons have been offered to explain why dowry still persists.
One position bases the modern day practice of dowry on the lack of inheritance
rights of women. In all family laws in India (Hindu, Muslim, Parsi and Christian)
women are discriminated against in terms of inheritance. So this position argues
that when inheritance laws are reformed, dowry will slowly erode away. What
the present dowry laws try to do is attempt at strengthening a woman’s position
in the marital home without strengthening her rights as a daughter.16
In addition to the lack of inheritance rights, dowry also indicates the powerlessness
of women within the family, which subjects them to violence and harassment.
This powerlessness is multi-fold. On the one hand, women are most often
economically dependent on men, but on the other there is the general notion of
the man being superior to the woman; he is the head of the household and the
16
Madhu Kishwar, ‘Dowry Calculations: Daughter’s Rights in her Parental Family’, No. 78
Manushi p. 8-17 (1993). 43
Women and the Law decision-maker. This explains why women could be targets of violence even if
they are working and earning money. Moreover, the fact that dowry exists in
almost all regions and in all families, irrespective of their social, economic and
caste status, furthers our argument that women share a relationship of unequal
power and resources with men.
This inequality is accentuated by the unequal and sexual division of domestic

labour. This means that women are primarily responsible for taking care of
household work and caring for the children and the aged in the family. This
unequal division of household labour extends to the public sphere where women
are rendered unequal to men in work outside home. Consider this: when a man
goes out to work, he does not have to worry about cooking, cleaning, or children
or his old parents at home, but when a woman goes out for work, she has to
worry not only about the work but also about these matters relating to the family.
And the woman also has to measure up to the demands and pressures of the
workplace.
These are some of the main reasons behind dowry and dowry related violence.
However, one significant achievement of this law and related laws like those
against domestic violence is that it brought the issues of violence in the private
sphere within the scope of law. For a very long time in most countries, domestic
violence was not considered a concern of the State since it occurred within the
private space. But the movement against dowry and domestic violence compelled
the State to intervene within the so-called private space, because violence within
the home is as problematic as it is outside; a murder outside the house could
beget severe consequences, but the beating and killing of the wife within the
house was shielded from State scrutiny. Although there are several drawbacks of
the anti-dowry laws, it can be considered as a step towards the recognition that
all violence, whether within the house or outside, is a concern of the law for the
ends of justice. In fact these laws form the backdrop against which the Protection
of Women from Domestic Violence Act was formulated and enacted. However,
it is equally important to note that unless the prevailing social attitude towards
women and their role in society does not change, law itself will hold limited
utility.
3) What, according to you, are some of the positive aspects of the Dowry
Prohibition Act? What are some of its problems?
.................................................................................................................
.................................................................................................................
.................................................................................................................
.................................................................................................................
4) Why can legal measures alone not address the problem of dowry related
violence?
.................................................................................................................
.................................................................................................................
.................................................................................................................
44
2.6 SUMMARY Rape and Dowry
Let us review a few important points from our discussion in this unit:
Violence against women can take many forms and it is important to
understand and address them all.
Rape as a form of sexual violence against women is an expression of power
that men exert over women.
Rape laws have some inherent deficiencies that need to be scrutinised and
addressed.
Anti-dowry laws problematised the ‘private’ aspect of violence and brought
it within the realm of the law.
Until social outlook towards women and their roles in society does not
change, law can, at best, be only partially successful.

1) Why was it considered necessary to formulate new laws in order to tackle
dowry related domestic violence?
2) What kind of reforms do you think should be made to the existing rape law
to make them more just?

1) Some of the forms of violence against women are domestic violence, incest,
female genital mutilation, dowry related violence, sexual assault within
marriage, prostitution and trafficking and sexual harassment. Women are
vulnerable to abuse, harassment and violence on account of their sex.
Violence against women is an aspect of power and inequalities of power
that are a result of the unequal distribution of social and economic resources.
Some of the reasons for perpetuation of violence against women are:
Women are subordinated in all cultures and countries under the system
of patriarchy.
Women, most often, are economically dependent on men and in the
workplace women are mostly engaged in low-paying jobs.
Women are relatively powerless when compared to men, especially
within the home, where the man is considered the head of the family
and is the main decision-maker.
Women are portrayed as symbols of a community or culture, so that the
community’s honour is linked with the women.
2) According to Section 375, IPC, the two main requirements to constitute the
offence of rape are penetration and consent. The law says that ‘penetration
is sufficient to constitute the sexual intercourse necessary to the offence of
rape’. The exception to this is that sexual intercourse by a man with his
wife, if she is not below fifteen years of age, is not considered rape. Rape
45
Women and the Law occurs when a woman has not consented to intercourse. An important aspect
of the rape law is the age of consent, which currently is sixteen years. If a
man has sexual intercourse with a female under the age of consent, it will
be considered rape, even if the female has consented. In addition, consent
acquired by lies, threat, intoxication or drugs is considered invalid and,
therefore, is rape.
3) Under the Dowry Prohibition Act, any property given by the bride or anyone
from her side, to the groom or anyone from his side is dowry. However,
presents given to the bride and the groom at the time of marriage are excluded
from the definition of dowry. Dowry is a cognizable offence. The offence is
also non-bailable and non-compoundable. The amendments to the Act shifted
the burden of proof on the person being prosecuted for taking or abetting
dowry.
Some loopholes of the Dowry Prohibition Act are:
The term ‘in connection with marriage’ in the definition of dowry is
usually difficult to prove. The parties more often tend to hide the
problem by saying that what was given to the girl was gifted to her and
was not dowry.
Imposing liability on the bride’s family could result in less reporting of
dowry harassment by the woman and her family.
The Act prohibits demanding dowry ‘directly or indirectly’. It is difficult
to prove indirect demand for dowry.
In many circumstances, it is difficult to prove the connection between
the death of the woman and the cruelty that was its cause.
Since the offence is usually caused in the confines of the family and
family members do not reveal the atrocities committed by their own
family, it becomes difficult to prove offences.
Seven years is an arbitrary time frame within which the presumption of
dowry death is to be inferred. Newspapers have reported that husbands
have waited for seven years before they killed their wives.
4) One significant achievement of dowry related laws is that the issues of
violence in the private sphere were brought within the scope of law. However,
dowry still persists and several different reasons have been offered to explain
this. Dowry is an indicator of the power differentials between the girl’s and
the boy’s families. And when the woman is beaten and harassed for dowry,
that violence is the ultimate signifier of this power difference. Women are
still not considered equal to men in terms of social status. One position
bases the modern day practice of dowry on the lack of inheritance rights of
women. In all family laws in India (Hindu, Muslim, Parsi and Christian)
women are discriminated against in terms of inheritance. Dowry also
indicates the powerlessness of women within the family, which subjects
them to violence and harassment. This inequality is accentuated by the
unequal and sexual division of domestic labour.
Terminal Questions
1) Refer to Section 2.6.
46
2.9 GLOSSARY Rape and Dowry
CEDAW : Convention on the Elimination of All Forms of

Discrimination Against Women
Corroborative Evidence : Evidence that is capable of being proved
Custodial Rape : Rape that occurs when a person is in safe custody
or in the premises of a state run institution – jail,
police station, state run home or crisis intervention
institution
Stridhan : property owned by a woman prior to her marriage
and gifts given to a woman voluntarily at the time
of marriage by her natal family for her exclusive
use
Circumstantial evidence: Evidence that is not direct but deduced from the
circumstances surrounding the incident
Abetting : Assisting or inducing another in the performance
of a crime

Radha Kumar, The History of Doing: An Illustrated Account of Movements for
Women’s Rights and Feminism in India 1800-1990 (New Delhi: Kali for Women,
1993).
Flavia Agnes, ‘The Anti-Rape Campaign: The Struggle and the Setback’, in
Chhaya Datar ed., The Struggle Against Violence p. 130 (Calcutta: Stree, 1993).
Veena Das, ‘Sexual Violence, Discursive Formations and the State’, Vol 31 No.
35-37 September Economic and Political Weekly p. 2411-2423 (1996).
Nandita Gandhi and Nandita Shah The Issues at Stake: Theory and Practice in
the Contemporary Women’s Movement in India p. 54-61 & 218-220 (New Delhi:
Kali for Women, 1992).
Flavia Agnes, ‘Protecting Women against Violence? Review of a Decade of

Legislation 1980-89’, April 25 Economic and Political Weekly p. WS19-WS33
(1992).
Madhu Kishwar, ‘Dowry Calculations: Daughter’s Rights in her Parental Family’,

No. 78 Manushi p. 8-17 (1993).
D.N. Sandanshiv and Mathew Jolly, Legal Reform in Dowry Laws in Dowry and
Inheritance p. 73-88 (New Delhi: Women Unlimited, 2005).
Facilitator’s Guide for Community Legal Education on Women’s Rights in India,

Global Rights (2007).
Nivedita Menon, Sexual Violence: Escaping the Body in Recovering Subversion

– Feminist Politics Beyond the Law p. 106-165 (New Delhi: Permanent Black,
2004).
47
Women and the Law
UNIT 3 DOMESTIC VIOLENCE
Structure
3.1 Introduction
3.2 Objectives
3.3 Defining Domestic Violence
3.4 Domestic Violence and the Criminal Law: Responses in India
3.5 Protection of Women from Domestic Violence Act, 2005
3.6 Who can Access the Law
3.6.1 Domestic Relationship
3.6.2 Shared Household
3.6.3 Definition of Violence
3.7 Against Whom and under What Circumstances can a Complaint be Filed?
3.8 Reliefs that can be Claimed
3.9 Procedure under the Act
3.10 Gaps in the Act and its Operation
3.11 Summary
3.14 Glossary
3.1 INTRODUCTION
The growing incidence of violence against women worldwide has been a source
of considerable concern for activists in the women’s movement for some time
now. Thirteen years after the coming to force of the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW) — the ‘Women’s
International Bill of Rights’ – the Expert Committee monitoring the Convention
adopted General Recommendation 19 in 1992, thus filling a major gap in the
convention with regard to defining violence. In 1993, at the Vienna Conference,
the international community officially recognised Violence Against Women
(VAW) as a human rights violation, and the same year the General Assembly
adopted the Declaration on the Elimination of Violence against Women
(DEVAW). These developments set the stage for the creation of a special
mechanism to monitor VAW worldwide.1 The recognition that the violence that
women face amounts to a gross violation of human rights and the principles of
dignity led to the creation of the office of the Special Rapporteur on Violence
Against Women at the UN level in 1994 by the UN Human Rights Commission.
1
Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural
Rights, including the Right to Development, Report of the Special Rapporteur on Violence
Against Women, its causes and consequences, Yakin Ertürk , Addendum 15 years of the
United Nations Special Rapporteur on violence against women, its causes and consequences
(1994-2009) - a Critical Review.
48
Even as this movement to re-define women’s experience of violence was Domestic Violence
happening, a parallel understanding was emerging about the forms of violence,
and it was found that a significant proportion of women’s experience of violence
was situated in the site of the home, in the space of intimate relationships – at the
hands of the partner/ spouse, brother, father etc. It was also found that women
are frequently economically dependent on their spouses, making it difficult for
them to initiate any action against such men.
In this unit, we will try and understand as to why women experience domestic
violence and the remedies that were available under criminal law till the Protection
of Women from Domestic Violence Act, 2005 (PWDV Act) provided for civil
remedies in order to address the limitations of accessing criminal justice system.
We will take you through the provisions of the PWDV Act which provide the
procedure and reliefs that can be sought by a victim of domestic violence. We
will also examine the gaps in the law and see how important provisions have
been interpreted by the judiciary. You should keep a copy of the PWDV Act for
ready reference as you study this unit.
3.2 OBJECTIVES
identify some reasons as to why women experience domestic violence;
explain the existing criminal law regime to help women in violent situations;
analyse the gaps in the criminal law and the need for a more comprehensive
law to combat domestic violence;
explain the salient features of the Protection of Women from Domestic
Violence Act, 2005 and the remedies available under the Act; and
critically examine the inherent drawbacks in the law and recent judicial trends.
Activity 1
i) Give five examples of gendered violence that you have come across.
Are these considered as violence by our society and the law?
ii) List the reasons why you think women cannot get out of a violent situation
at home.
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................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
49
Women and the Law
3.3 DEFINING DOMESTIC VIOLENCE
The modes of violence that women face in the home are numerous and varied. A
detailed and comprehensive definition of domestic violence is found in the
Prevention of Domestic Violence Act, 2005 described in greater detail in the
following sections. Courts in India have interpreted domestic violence to mean
the following:
- Persistent denial of food
- Insisting on perverse sexual conduct
- Constantly locking a woman out of the house
- Denying the woman access to children thereby causing mental torture
- Physical violence
- Taunting, demoralising and putting down the woman with the intention of
causing her mental torture
- Confining the woman at home and not allowing her normal social intercourse
- Abusing children in their mother’s presence with the intention of causing
her mental torture
- Denying the paternity of the children with the intention of inflicting mental
pain upon the mother
- Threatening divorce unless dowry is given. 2
3.4 DOMESTIC VIOLENCE AND THE CRIMINAL

LAW: RESPONSES IN INDIA
The movement world wide against domestic violence also had its repercussions
in India where the women’s movement has been campaigning and lobbying for
both legislation and policy on issues of dowry, female infanticide and rape over
at least three decades. The initial response of the women’s movement in India
was to lobby for more stringent enforcement of the criminal law through the
Dowry Prohibition Act, 1961, and invoking the Indian Penal Code — Section
498A (cruelty by husband and relatives, brought through the Criminal Law
(Second Amendment) Act, 1983), Section 304-B (death of a woman due to dowry
harassment introduced in the IPC in 1986), Section 302 (murder and penalty),
Sections 312 and 313 ( punishment for causing miscarriage and for causing it
without knowledge of the woman) and Section 320 (grievous hurt). Section
113-A and Section 113-B of the Indian Evidence Act were introduced through
amendments to respond specifically to women’s deaths arising out of dowry
harassment. Under Section 113-A, if a woman commits suicide within 7 years of
marriage, there is a presumption that the suicide will have been abetted by her
husband and his relatives. Similarly in Section 113-B if a woman has been
suffering dowry harassment at the hands of the husband or /and his relatives
before her death, there is a presumption that he/they committed the death. In
both cases, the burden of proving that they did not commit the crime will lie
upon the accused persons. Similarly under Section 304-B of the Indian Penal
2
Facilitator’s Guide for Community Legal Education on Women’s Rights in India p 208 (Global
50 Rights, 2007).
Code, if a woman dies under unnatural circumstances within 7 years of her Domestic Violence
marriage, and there is evidence to show that she suffered dowry harassment
prior to that, then the court will treat such death as a dowry death.3
Under Section 498-A, the term cruelty has been defined widely to include mental
and physical cruelty. It also includes:
Any wilful conduct on part of the husband or his relatives that is likely to
drive the woman to commit suicide or cause grave injury or physical or
mental danger to life, limb, or health of the woman
Harassing a woman with a view to coercing her or any person related to her
to meet any unlawful demand for any property or valuable security.
Gaps in existing criminal remedies to check domestic violence
It was only after the above criminal provisions were activated in courts that the
women’s movement realised that there were several lacunae in using them as
remedies for women suffering in violent situations in the home: 4
There were other forms of violence that women faced apart from dowry
harassment for which Section 304 B could not be used.
Only married women facing violence at the hands of the husband or their
families could invoke Section 498-A; unmarried women, old women and
children could not be brought under this Section; it did not protect women
in natal relationships or those relationships that have not received the legal
sanction of marriage.
The definition of cruelty in Section 498-A was worded in vague terms so
that issues of sexual violence, economic violence or even threats of violence
could not be brought within the ambit of the Section.
In addition, there are practical societal problems for women complaining of

domestic violence, making it difficult not only to lodge a complaint but to also
obtain convictions under the Section:
Women are often reluctant to go and file a complaint in the Police Station.
Where cases are filed, they often withdraw them when the husband
compromises.
Police often discourage women from filing FIRs for domestic violence and
advise the woman to adjust with the husband and family.
Police do not take complaints of domestic violence seriously even though
the law is very strict.5
In the light of the above problems in the law, a need was felt by women’s groups
to bring into force a more comprehensive legislation that would effectively meet
the needs of women victims. Some other factors that determined the push for a
new legislation are:6
3
See note 2 above p 214, 215.
4
Indira Jaising, Bringing Rights Home: Review of the Campaign for a Law on Domestic Violence,
Vol. No. 44, October 31, Economic and Political Weekly, p 51 (2009).
5
See note 2 above p 216.
6
See Jaising, note 4 above p 52. 51
Women and the Law Criminal law itself has little to offer with respect to taking care of women’s
immediate needs of protection, shelter and monetary relief.
Although sometimes courts can be convinced to give injunction orders to
prevent women from being thrown out of the house, proceedings under
civil law are slow moving and time consuming.
There is no provision for granting injunction orders or protection orders on
an urgent basis with the result that women do not have any relief during the
course of the proceedings. Often the remedy can only be exercised when it
is coupled with a petition for divorce.
1) What are the various criminal remedies available for victims of domestic
violence?
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
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3.5 PROTECTION OF WOMEN FROM

DOMESTIC VIOLENCE ACT, 2005
Several initiatives with grassroots groups and with lawyers and activists led to
the passing of the Protection of Women from Domestic Violence Act, 2005
(PWDV Act). The PWDV Act has come to force after ten years of constant
struggle by women’s groups for civil remedies for domestic violence. Important
civil remedies like the right to residence, protection orders, right to temporary
custody of children, and interim maintenance are part of this Act. The Act
stipulates the appointment of Protection Officers who will assist the complainant
in getting appropriate relief from courts and refer her to appropriate services like
shelter homes, short stay homes, counseling centres, medical services and legal
aid services.
The Act was brought into force in October 2006 through the Rules that lay down
the institutional framework. The inadequacy and lacunae that has been felt by
women in trying to obtain relief through criminal proceedings alone over the
years led to the passing of this Act, whose primary focus is the provision of
emergency civil remedies to women victims of domestic violence.
The following are some important features of the Act that make it an improvement
over existing legislations:
A Comprehensive Definition of Domestic Violence: As described above, the

definition of cruelty under Section 498-A of the IPC has proved inadequate in
emphasising the gravity and seriousness of the kinds of violence that women are
subjected to, resulting in downplaying the crime and thereby often denying women
justice. Jaising notes “the definition included physical, sexual, verbal, emotional
52 and economic abuses, with each aspect further defined with illustration. The
point of providing such an expansive definition was not to put a seal on the Domestic Violence
conceptualisation of, violence, but to indicate that certain forms of behaviour
must be seen as exercise of sexual power, and hence must be condemned. She
further notes that “it is surprising that for a country that has non-violence as its
foundational faith, it took more than 50 years to put in place a definition of
violence against women.”7
Domestic Relationship as opposed to matrimonial relationship: Recognising

that women experienced domestic violence not just as wives and partners, but
also as daughters, daughters-in-law, mothers and widows, the term ‘domestic
relationship’ was brought into the legislation. In addition, relationships in ‘the
nature of marriage’ such as live in relationships were included in the definition
of domestic relationship. Jaising notes that “including relationships outside the
marital context within the scope of this law was necessary in view of the absence
of compulsory registration of marriages in India, which leaves a majority of
women outside the domain of legal protection.”8
Shared household as opposed to matrimonial household: With the

understanding that women in a violent domestic relationship can be easily evicted
from the home without even the slightest notice, the Act has included the definition
of a ‘shared household’ which grants a woman the right to reside in the household
even though she may not have a formal title over it. The meaning of ‘shared’ in
this case is that she has resided in the home in a conjugal or family relationship,
and not who owns it.
Protection Officers: Since domestic violence has often been seen to be in the
realm of the ‘private’ aspect of women’s lives, the police have often been reluctant
to register complaints or to intervene when women approach them. This is why
the Act has included Protection Officers who will act as a bridge between the
affected woman and the legal system. The role of a Protection Officer is quite
wide, including helping the woman to access the court and other support services
such as legal aid, medical facilities and shelter homes. It also includes helping
the woman gather evidence in her case.
Service Providers: The Act also provides for NGOs working for the rights of
women through the provision of legal aid, medical, financial or other assistance
to register themselves as service providers under the Act. A Service Provider is
empowered under this Act to record domestic violence reports and forward these
to a Magistrate and Protection Officer.
Retrospective Application of the Act

The question that often arises is whether at the time of filing the complaint a
woman is required to be living in the shared household. The Act uses the phrase
‘lives or at any stage has lived’, hence, it will suffice if she had lived in the
shared household. Hence, a woman who has been abandoned or thrown out of
the house even prior to this new law can also use it.
In a case9 before the Madras High Court, the husband took a plea that the wife
was not residing with him and acts of domestic violence stated by her were prior
7
See Jaising, note 4 p 52.
8
Id.
9
Saravanakumar v Thenmoshi MANU/TN/9828/2007. 53
Women and the Law to the commencement of the Act and, therefore, she was not protected by the
Act. The High Court dismissed his case and said that the fact that the wife and
child were still not allowed entry to the house amounts to continued domestic
violence. When there is continued domestic violence then the Act applies.
The question that arose before the Madras High court was whether the Act could
be used if domestic violence was committed before the Act came into force. The
Court held that:
“It is farfetched to contend that the provisions of the Act can be invoked only if
any domestic violence is committed after the Act came into force. The court is
competent to take cognisance of the act of domestic violence committed even
prior to the Act coming into force and pass necessary protection orders. The Act
can be applied retrospectively to take cognisance of an act of violence alleged to
have been committed even prior to the coming into force of the Act.”
In another significant ruling, the Madras High Court has ruled in Dennison Paulraj
and Others v Mayawinola10 that the court can take note of an act of domestic
violence committed even before the Act came into force and pass necessary
protection orders. In this case, although the wife had left the matrimonial home
due to dowry harassment prior to the Act coming into force, she alleged that the
harassment continued even after she had left the house through anonymous calls,
and the court took this into account as continuing violence.
2) The PWDV Act will apply only to cases of violence that occur after the
Act came in to force. True/False
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3.6 WHO CAN ACCESS THE LAW

Any woman who is or has been in a domestic relationship with a man and lives
or has lived with him in a shared household and is / has been subjected to domestic
violence can access the law.
Who can use the law?

Any woman
In a domestic relationship with a man
Living in a shared household
Treated with violence
54 10
MANU/TN/0525/2008.
3.6.1 Domestic Relationship Domestic Violence
A woman is in a domestic relationship when she lives or has lived with a man
related to her as a husband, brother, uncle, son or a member of joint family. The
woman has to be related to the man by consanguinity (by blood/birth or common
ancestor), adoption, marriage, or as member of a joint family.
A woman is in a domestic relationship with a man even if she is not married to

him but lives with him like they were married i.e. in a relationship in the nature
of a marriage; this would include a lover, second wife, live in relationship etc.
What is a domestic relationship?

When two persons are related by:
Blood
Marriage
Adoption
Invalid marriage or live in relationship
The Delhi High Court in a case11 where the constitutionality of the Act was
challenged on the ground that the Act recognised a relationship in the nature of
marriage and thus diminished the position of the wife observed:
“We find no reason why equal treatment should not be accorded to wife as well
as woman who has been living with a man as his common-law wife or even as a
mistress. Like treatment to both does not, in any manner, derogate from the
sanctity of marriage since an assumption can fairly be drawn that a ‘live-in
relationship’ is invariably initiated and perpetuated by the male.”
This takes us to the definition of a ‘shared household’.
3.6.2 Shared Household

For a woman to access the law, not only should she be in a domestic relationship
as mentioned above, but it is essential that she and the person against whom she
has a complaint (we will refer to him as the respondent) are or have lived together
under the same roof (shared-a-household) at some point in time. This shared
roof is called the shared household.
The house/room can be owned or tenanted (where one pays a rent) either by the
man, or the woman, or by both. If the woman or the man has any kind of share
i.e. right, title, interest or equity, in the house then it can be defined as a shared
household. If the house belongs to the joint family where the respondent is a
member, even then the house will come within the definition of a shared
household.
The purpose of making the definition so wide and inclusive is to prevent the
respondent from saying in court that the property does not belong to him. In
India it is rare that while the parents are alive a house is transferred in the name
11
Aruna Parmod Shah v Union of India MANU/DE/0626/2008.
55
Women and the Law of the son. Often people reside in homes that are tenanted property or official
quarters. All such properties are covered under the definition.
Soon after the Act came into effect, the Supreme Court narrowed the definition
of the shared household. In S.R. Batra and Another v Taruna Batra,12 the Supreme
Court ruled that since the house was owned by the mother-in-law, the wife could
not claim a right to live in that house. The judges also interpreted ‘lived or has
lived’ in the definition of ‘shared household’ to mean that a woman could claim
several places as her ‘shared household’, which would lead to absurd results.
The Court held:
“The wife is only entitled to claim a right to residence in a shared household, and
a ‘shared household’ would only mean the house belonging to or taken on rent
by the husband, or the house which belongs to the joint family of which the
husband is a member.”
Such a view does not take into account the gravity of the ‘domestic relationship’
and all that a woman has invested in it. 13
What is important is that the above case was not filed under the PWDVA. While
certain courts like the Bombay High Court seem to go by this decision, the Madras
High Court has made a fine distinction. The Madras High Court has observed
that in the case before the Supreme Court the wife was living alone in the house
and not with her husband and so the Supreme Court ruling does not apply to
cases where the woman had lived with the man. The court even went on to
observe in a case14 the husband had transferred the title of the house to his mother
only to deny the wife’s rights in the household, that:
“….if such a contention (as before the Supreme Court) was taken then every
husband will simply alienate his property in favour of somebody else after the
dispute has arisen and would take a stand that the house where they last resided
is not a shared household and therefore the wife is not entitled to seek residence
right in the shared household.”
In Smt. Shumita Devi Sandhu v Mr. Sanjay Singh Sandhu and Ors,15 although
the Delhi High Court ruled that the woman had no right to reside in the house
since the house was owned by the mother-in-law, it was held that she could not
be dispossessed without following all the necessary conditions under the law.
Thus the judgment makes available remedies, that are normally available to
tenants and trespassers, to the aggrieved woman and to that extent exhibits clear
reasoning.16
12
(2007)3 SCC 169.
13
See Jaising, note 4 p 50.
14
P. Babu Venkatesh, Kandayammal and Padmavathi v Rani AIR 2008 (NOC) 1772 (MAD);
MANU/TN/0612/2008.
15
2007 (96) DRJ 697; MANU/DE/8160/2007.
16
See Jaising, note 4.
56
Domestic Violence
What is a shared household?
A house/room that is owned, rented, occupied:
By the woman and shared by the man
By the man and shared by the woman
By the woman and the man jointly and shared by them
By the man’s family member/joint family and shared by the woman
3.6.3 Definition of Violence

Domestic violence includes physical, sexual, verbal, emotional and economic
abuse.
Physical abuse is any act or conduct that causes bodily pain, harm, or danger to
life, limb, or health or impairs the health or development of the woman and
includes assault, criminal intimidation and criminal force.
Sexual abuse includes any conduct of a sexual nature that abuses, humiliates,
degrades or otherwise violates the dignity of woman.
Examples:
a) Forced sexual intercourse.
b) Forced to watch pornography.
c) Forcing a woman to have sex with another man.
d) Forceful sexual intercourse when a woman is unwell.
Verbal and emotional abuse includes insults, ridicule, humiliation, name-calling

and insults, ridicule specially with regard to not having a child or a male child,
and repeated threats to cause physical pain to any person in whom the woman
aggrieved is interested.
Examples:
a) Constantly telling the woman that she is dumb/ an idiot etc.
b) Constantly telling the woman that she is incapable of doing something.
c) Abusing her verbally.
d) Emotionally blackmailing her using the children or otherwise.
Economic abuse is where the woman is not given money for household
necessities for her and the children, for house rent etc. It also includes situations
where her streedhan is taken away, disposal of household effects, any alienation
of assets whether movable or immovable (valuables, shares, securities, bonds
and the like or other property) in which the woman has an interest or is entitled
to use by virtue of the domestic relationship.
57
Women and the Law
3) Whom does the PWDV Act apply to?
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
................................................................................................................
4) Do you think the following are domestic relationships? Y/N
a) A woman living with her maternal uncle to complete her studies
b) A widow living with her husband’s parents
c) A woman living with her lover
d) A live in house help
e) A Hindu girl given in adoption and living with her uncle and aunt
as they have no children but there is no document of adoption.
5) A is married and lived with her husband for four years till her daughter
and she were thrown out of the house. She then came to reside at her
parental home and stayed there for three years till both her parents died
in an accident. Her brother now is harassing her to return to her husband’s
house and has given her a week’s time to leave or he will throw her out.
With whom does A have a shared household?
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3.7 AGAINST WHOM AND UNDER WHAT

CIRCUMSTANCES CAN A COMPLAINT BE
FILED?
A case or an application under this Act can be filed against a man with whom the
woman has lived or is living.
The Madhya Pradesh High Court has held that it is clear from the definition of
‘Respondent’ that for obtaining any relief under this Act an application can be
filed or a proceeding can be initiated only against an adult male. In Ajay Kant
and Others v Alka Sharma,17 the Court interpreted the term ‘respondent’ in a
narrow and literal sense to mean that proceedings can be initiated only against
an adult male person. The case concerned an application filed by a woman against
58 17
I (2008) DMC 1.
her husband and her mother-in-law after she was dispossessed from her Domestic Violence
matrimonial home following dowry harassment. According to the court, the
mother-in-law could not be a respondent. Such interpretations could lead to
women experiencing further injustice. The proviso to Section 2(q) in the Act
makes it clear that ‘relative of husband or male partner’ could also mean a female
relative of a male respondent.18
Often, when an application is filed under this Act, women wish to file it against
everyone who has harassed them or treated them with violence. It is important to
remember that the purpose of the Act is not to punish a respondent but to claim
a relief. Hence, it is essential to file an application against the people against
whom specific relief or orders can be sought. The more the number of respondents
would only mean a longer litigation.
Under What Circumstances can a Complaint be Filed?

The Act will come into motion when an act of domestic violence has been
committed or is likely to be committed. A woman therefore need not wait till an
obvious act of domestic violence is committed but a threat of possible violence
would suffice. What then is domestic violence?
Overall facts and circumstances of each case will determine whether the conduct
of the Respondent amounts to domestic violence. In general it is any or all acts
of omission and commission that harms, injures or endangers the life or well-
being of the woman i.e., the act of physically beating the woman would be
committing an act of domestic violence. If the woman is ill and the man does not
take her to a hospital, or if he does not give her money, then by omitting to do
these acts he has treated the woman with domestic violence.
Even a threat to harm, injure or endanger the life and well-being of a woman
constitutes violence i.e., if the man leaves the house threatening to assault the
woman or kill her if she does not leave the house on his return will also suffice
to constitute domestic violence.
6) The following persons have harassed the woman who has approached
you:
a) Her husband has beaten her.
b) Her mother in law has abused her.
c) Her brother in law has abused her.
d) Her sister in law expects her to do all her work and abuses her if she
does not.
e) The brother in law’s wife instigates the mother in law to abuse her.
f) Her father in law supports her husband when he beats her.
Against whom can the complaint be filed?
18
See Jaising, note 4. 59
Women and the Law
3.8 RELIEFS THAT CAN BE CLAIMED
The following are remedies possible under the Act:
Protection orders or stop violence orders: These include orders to –
a) stop the respondent from committing all forms of violence;
b) direct the respondent from committing any further acts of violence and aiding
or helping in the violence;
c) restrain the respondent from entering the place of employment of the woman,
or the child’s school;
d) stop all forms of communication with the woman;
e) stop the respondent from alienating (selling) any property, bank lockers or
bank accounts used or held by both or either of them, without the permission
of the court. This may include her streedhan or any other property. Streedhan
would include any property given to the woman at the time of her marriage
from anyone including her parents, relatives, friends, the husband, his
relatives, parents or friends. It would include her jewellery, clothes, household
things, books, documents etc.
This last right is very important since very often respondents transfer the property
in some one else’s name just so that the woman cannot make a claim on it.
Residence orders (including orders restoring her to the shared household):

These include orders to –
a) stop the respondent from dispossessing or disturbing the residence or the
possession of the woman or her children from the shared household;
b) stop the respondent from selling or transferring the shared household;
c) direct the respondent to vacate the shared household or restricting him from
entering a part of the house which is used by the woman (in cases of extreme
violence);
d) direct the respondent to provide the woman with the same level of alternative
accomodation or pay rent for such alternative accomodation, in cases where
the woman does not wish to reside in the shared household;
e) direct the respondent to return any property belonging to the woman including
streedhan.
In a judgment of the High Court of Madras,19 the Court upheld the order of the
Magistrate directing the police to break open the lock and give protection to the
woman to reside in the shared household. The Court categorically stated that a
residence order is one of the protection orders and that the Court does have the
power to pass an order to break open a lock to implement that order.
No order asking another female member to vacate the house can be passed by
the court.
19
60 P. Babu Venkatesh, Kandayammal v. Rani MANU/TN/0612/2008.
Monetary reliefs including maintenance: These compensation orders can Domestic Violence
include loss of earnings, medical expenses and loss due to destruction or removal
of property. Such relief should be adequate, fair and reasonable and consistent
with the standard of living that the woman is accustomed to. Since there are
often practical problems in enforcing such reliefs, the Act has provided for
lumpsum payment by the respondent. If the respondent is a salaried person, then
an order attaching his salary can also be sought and passed.
If the respondent is not salaried and fails to pay the money, the woman will have
to file another application seeking a warrant of recovery. The money can be
recovered by attaching the respondent’s moveable property or by arresting him.
It is important that under this Act, there is no connection made between the
woman’s chastity and her right to maintenance, and a plea about her being unchaste
cannot be brought in, unlike in other laws of maintenance.
Compensation orders for mental agony may be passed by the court for injuries
caused including mental torture and emotional distress.
Temporary orders for the custody of children: Under this, temporary custody
of the children can be granted to the woman, either through an order to retain the
custody of the child if he/she is with the mother or to the respondent to hand
over custody to the mother if he has refused.
If one parent is granted custody of the child, the non-custodial parent is usually
granted visitation rights in the best interests of both the parent and the child. The
court may refuse visitation if it feels that it would be harmful to the child.
7) What are the rights that are included in the right to residence?
...............................................................................................................
...............................................................................................................
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3.9 PROCEDURE UNDER THE ACT

The following are steps to be taken on a practical basis if an incident of domestic
violence has occurred or is likely to be committed.
1) Information should be given to the Protection Officer who will then prepare
a domestic incident report as per the form provided in the Act. It is essential
to annex all documents establishing the relationship, the violence and the
financial capability of the respondent. This would mean giving the personal
details of the respondent and details of incidents of violence meted out to
the woman and the reliefs and assistance required.
61
Women and the Law 2) Based on the domestic incident report, the Protection Officer can make an
application on behalf of the woman to the Magistrate seeking one or more
of the reliefs provided for in the Act. The form for the application is also
provided in the Act. This application can also be filed directly by the woman,
through her advocate or a Service Provider.
3) The Magistrate upon receiving an application and upon reading the domestic
incident report if any, and the affidavit of the woman (the form is provided
in the Act) can pass immediate orders protecting the woman. These orders
are called ‘ex-parte ad-interim reliefs’. But it is not essential that such a
domestic incident report should always be filed as interpreted by the Madras
High Court in Amar Kumar Mahadevan v Kathiyayini.
4) The rule of law prescribes that in any case filed by any person, no orders
shall be passed against the respondent, unless he is given notice of the case
and an opportunity is given to defend himself/herself. When an order is
passed immediately upon filing of the case without informing the respondent,
such orders are called ex-parte ad-interim reliefs. Such orders are normally
granted for the period till the respondent appears before the court and files
his reply.
5) Courts are normally not inclined to pass ex-parte ad-interim reliefs and these
are passed only as exceptions. The person filing the case has to convince
the court that such exigencies exist that irreparable damage and harm will
be caused to her if immediate orders are not passed.
Under the PWDVA, considering the nature of the proceedings and the
circumstances under which the woman approaches the court, the court has
been given the power to pass such orders. In the judgment of the High Court
of Madras in P. Babu Venkatesh, Kandayammal And Padmavathi v Rani
mentioned above, the High Court was very appreciative of the Magistrate
who had passed an order at 8.30 p.m. without minding the time, considering
the emergency in the application.
6) If the Magistrate is satisfied that there is sufficient reason to believe that the
respondent is committing, or has committed an act of domestic violence, or
that there is a likelihood he may commit an act of domestic violence then he
has the power to grant ex-parte ad-interim orders of any of the reliefs
mentioned above including maintenance. Seeking immediate orders of
protection, custody and orders restraining the respondent from alienating
properties, monies etc. is very essential as often the minute a person is made
aware that a case is filed he would do everything in his power to manipulate
the situation to avoid orders from the court. This also serves the central
purpose of the Act, which is to protect the woman from further violence.
7) After the application has been filed and ex-parte ad-interim orders have
been passed, the court will issue notice to the respondent to appear before
the court and file his reply. This notice can be served either through the
Protection Officer or the local police as is the normal procedure in a
Magistrate’s court.
After he files his reply and till the case is finally decided, the court also has
the power to pass orders which are temporary in nature called interim orders
protecting the rights of parties till the end of the case.
62
8) According to the Act, the Magistrate will fix the first date of hearing not Domestic Violence
beyond three days from the date of receipt of the application by the court
and the Act also prescribes that the entire case shall be completed within 60
days of the first hearing. While it is desirable that the case should be
completed within a period of 60 days, in reality the working of courts would
not make that possible, considering the workload of Magistrates today.
9) Once the respondent appears before the court, files his reply and all interim
orders are passed, the final trial of the case will commence. For the trial, the
woman will have to enter the witness box and make her final statement
before the court based on what has been stated in the application. This is
called the Examination-in-Chief. In order to save time, the court may
sometimes ask the woman to file an affidavit instead of her oral examination-
in-chief. At this time, all original documents that can be used to establish
the woman’s case should also be filed, if not already filed along with the
application. Based on this, the respondent’s lawyer will cross examine the
woman. The cross examination will often consist of questions that may be
confusing to the woman, since the central objective of the respondent’s
lawyer will be to allege that all her allegations are false. It is advisable that
the woman is prepared mentally for this. If the lawyer is very aggressive
and intimidating, this can be pointed out to the Magistrate. Since he is the
final authority in the proceedings, the Magistrate can ensure that the cross
examination will not defeat the purpose of justice for the woman.
10) After the cross examination of the woman, she can call her witnesses, if
any, and then the statement of the respondent is recorded. Then the same
procedure is followed for the respondent as well. The final order will be
passed by the Magistrate based on the statements and documents of the
parties and the arguments of the lawyers.
11) The orders of the court will be in force unless modified, altered or revoked
due to any change in circumstances. Non-compliance of the protection order
by the respondent is treated as an offence and he could be punished with
imprisonment for a term of one year or a fine of twenty thousand rupees.
12) There is a provision under the Act that provides the option of conducting
the proceedings in camera if so desired. This means that no other lawyers or
persons will be present in court other than the concerned parties.
3.10 GAPS IN THE ACT AND ITS OPERATION

Despite the Act being a progressive piece of legislation, some negative elements
have crept in.20
The original bill had introduced the definition of applicant whereby a woman
aggrieved by domestic violence could move an application of her minor child
who has also faced domestic violence. However this provision was dropped in
the final enactment passed by Parliament. As a result, there is still uncertainty
about how applications on behalf of minors should be moved.
There is a danger that the provision under Sections 14 and 15 authorising the
Magistrate to take help from persons involved in “promoting family welfare”
for joint counseling of parties could lead to coerced reconciliation.
20
See Jaising, note 4 p 55. 63
Women and the Law There is still lack of clarity about the role of the Protection Officer; in many
instances they have the mistaken belief that they have to mediate between the
parties rather than to assist the women victims of violence.
There are some apprehensions that the same challenges that lie with the
enforcement of general civil remedies such as the delay in the enforcement of
orders, and where they cannot be enforced, resorting to the attachment of property,
may make justice for women difficult. Similarly, the jurisdiction for cases under
the Act being the Magistrate’s court with all the intimidating trappings of a formal
court, may add further to the trauma that the aggrieved woman has already faced
as a result of violence.
The road to seeking justice for women victims of domestic violence through the
law has been a long and arduous one. The passing of the PWDV Act of 2005 is
an important milestone in that journey and the presence of a progressive and
strong legislation, despite some gaps and teething problems, will certainly help
to act as a deterrent against increasing acts of violence against women. However,
the larger struggle for women to be treated as equals with men and with dignity
remains, and this is a vision that committed women and men will have to
continually and tirelessly work towards, both through using the law and bringing
about change in civil society.
3.11 SUMMARY
Let us recapitulate a few important points from our discussion in this unit:
Domestic violence takes many forms some of which have been addressed
under criminal law. The victims of domestic violence, however, have found
it difficult to access and avail of the available remedies. These limitations
resulted in the demand for and enactment of a separate legislation to provide
effective civil remedies to victims of domestic violence.
The PWDV Act applies to any woman who is or has been in a domestic
relationship with a man; lives or has lived with him in a shared household;
and is subjected to domestic violence. The Act deals exhaustively with all
these definitions. The Act gives details of against whom and under what
circumstances a complaint can be filed. It also lays down the reliefs that can
be claimed and the detailed procedure for accessing the Act.

1) What are the gaps in the available criminal remedies and the societal factors
that led to the movement for a more comprehensive legislation to address
domestic violence?
2) What are the relationships covered under the PWDV Act? Against whom
and under what circumstances can a complaint be filed under the Act?
3) Discuss some of the important features of the Prevention of Domestic
Violence Act, 2005?
4) What are the reliefs that are possible under the PWDV Act for women
aggrieved by violence?
64
5) Discuss the mode of attaining relief under the PWDV Act. Domestic Violence
6) State the various authorities and forums constituted for providing relief under
the PWDV Act.
7) Zainab was living with her two children in a house that was in the joint
names of her husband and his brothers. Eight years ago, he had left home to
marry another woman. He also told Zainab that he had given her a talaq.
Since then he has neither maintained Zainab nor the two children. He and
his brothers have been threatening to throw her out of the house.
Answer the following questions and give reasons:
i) Can Zainab use the Act?
ii) Is there violence faced by her?
iii) Who has treated her with violence?
iv) Is she in a domestic relationship?

1) Some of the remedies available to victims of domestic violence under
criminal law are:
Section 498-A, IPC (cruelty by husband and relatives); the term cruelty
has been defined widely to include mental and physical cruelty.
Section 304-B, IPC – if a woman dies under unnatural circumstances
within 7 years of her marriage, and there is evidence to show that she
suffered dowry harassment prior to that, the court will treat such death
as a dowry death.
Sections 312 and 313, IPC (punishment for causing miscarriage and for
causing it without knowledge of the woman).
Section 113-A and Section 113-B of the Indian Evidence Act were
introduced through amendments to respond specifically to women’s
deaths arising out of dowry harassment. Under Section 113-A, if a
woman commits suicide within 7 years of marriage, there is a
presumption that the suicide will have been abetted by her husband and
his relatives. Similarly, in Section 113-B if a woman has been suffering
dowry harassment at the hands of the husband or /and his relatives before
her death, there is a presumption, that he/they committed the death. The
burden of proving that they did not commit the crime will lie upon the
accused persons.
The Dowry Prohibition Act, 1961
2) False. The PWDV Act has retrospective application. A woman who has
been abandoned or thrown out of the house even prior to this new law can
also use it.
3) The Act applies to any woman:
Who is or has been in a domestic relationship with a man
65
Women and the Law Lives or has lived with him in a shared household
Is subjected to domestic violence
4) (a) Yes (b) Yes (c) Yes (d) No (e) Yes.
5) If A wants to proceed against her husband under the PWDV Act, then she
has a shared household with him.
6) The complaint can be filed against the husband, brother-in-law and father-
in-law.
7) The following orders can be claimed under the right to residence:
a) stop the respondent from dispossessing or disturbing the residence or
the possession of the woman or her children from the shared household;
b) stop the respondent from selling or transferring the shared household;
c) the respondent directing him to vacate the shared household or restricting
him from entering a part of the house which is used by the woman (in
cases of extreme violence);
d) direct the respondent to provide the woman with the same level of
alternative accomodation or pay rent for such alternative accomodation,
in cases where the woman does not wish to reside in the shared
household;
e) direct the respondent to return any property belonging to the woman
including streedhan.
Terminal Questions
2) Refer to Sections 3.6 and 3.7.
3.14 GLOSSARY
Abet : Incite, assist in the performance of a crime.
Injunction : a court order of temporary or permanent nature,

to do or not to do something.
Interim maintenance : maintenance granted to those legally entitled

dependents until the end of a case.
Respondent : The person against whom a suit is filed in a civil

matter.
66
Domestic Violence
Yakin Ertürk, Promotion and Protection of All Human Rights, Civil, Political,
Economic, Social and Cultural Rights, including the Right to Development,
Report of the Special Rapporteur on Violence against Women: Its Causes and
Consequences.
15 years of the United Nations Special Rapporteur on Violence against Women:

Its Causes and Consequences (1994-2009) – A Critical Review.
Facilitator’s Guide for Community Legal Education on Women’s Rights in India

(Global Rights, 2007).
Indira Jaising, Bringing Rights Home: Review of the Campaign for a Law on
Domestic Violence, Vol. No. 44, October 31, Economic and Political Weekly, p
51, (2009).
67
Women and the Law
UNIT 4 SEXUAL HARASSMENT AT THE
WORKPLACE
Structure
4.1 Introduction
4.2 Objectives
4.3 Understanding Sexual Harassment at the Work Place
4.3.1 Sexual Harassment Law in the United States of America
4.3.2 Sexual Harassment Law in India
4.4 A Review of the Protection of Women against Sexual Harassment at the
Workplace Bill, 2007
4.5 Some Problems in the Definition and Understanding of Sexual Harassment
4.5.1 Difficulty in Proving Sexual Harassment
4.5.2 Non-sexual Harassment
4.5.3 Same-Sex and Male Harassment
4.6 Sexual Harassment: The Need for Comprehensive Understanding
4.7 Summary
4.10 Glossary
4.1 INTRODUCTION
Law is an important tool that helps in identifying and addressing social problems,
especially those relating to vulnerable groups. Accordingly women’s groups, in
India and around the world, have engaged with the law in order to identify various
forms of violence that women face, both in their personal life and in the public
arena. As we saw in the last unit, the grounds for discussion of violence against
women had been set through movements against rape and dowry. However, while
it was easy to gain legal recognition for sexual and domestic violence due to the
very obvious and blatant nature of these types of violence, the acceptance of the
issue of sexual harassment at the workplace as a form of violence has been fairly
recent. The legal means to address it too are recent as we shall see in this unit.
With the large-scale entry of women into the sphere of education and paid work,
instances of sexual harassment are on the rise, and so is the recognition that
instances of sexual harassment do take place. The phenomenon of sexual
harassment at the place of work and education is not new. Women have
experienced various forms of harassment that could involve casual sexist
comments and seemingly non-violent sexual acts like intentionally brushing
against a woman’s body. Harassment also often includes acts of severe violence
and physical torture. However, when compared to the legal history of rape and
dowry, the engagement of the law with the issue of sexual harassment at the
workplace is relatively recent.
68
The issue received little attention until late 1990s partly because sexual harassment Sexual Harassment at the
Workplace
did not evoke the same kind of reactions from a patriarchal society and the State
as did other forms of violence. Rape invokes the horrors of violation and domestic
violence leaves visible injuries and scars that point out to the infliction of violence;
in comparison, sexual harassment is often discounted as harmless flirtation or
‘eve-teasing’ as it was earlier known.
There is a grave misunderstanding that laws that are designed to protect women
from violence will be grossly misused by women to disrepute or disadvantage
men. This is one of the most vociferous arguments against Section 498A, IPC.
However, one cannot disregard the benefits that it has begotten for women
suffering from domestic violence. Similarly, one needs to be aware that sexual
harassment is a reality that is a result of unequal power held by men and women
in work and education. This means that sometimes it might be a woman who
yields more power and this brings us to the discussion that sexual harassment
can happen to anyone irrespective of their gender, but also on account of it. Also
sometimes a woman can harass a woman and a man can harass a man. Such
same-sex harassment may or may not be sexual in nature, but it does relate to the
fact that one person has power and uses it to dominate and harass the other.
As a way of introduction we must acknowledge that there are many forms of

sexual harassment and many ways in which harassment can occur at the
workplace. It is, therefore, important to be aware of them in order to be able to
address fully the issue of sexual harassment. In this unit, we will try and understand
what sexual harassment means, how it affects women and how it can be addressed
using legal tools.
Activity 1
List three instances of sexual or non-sexual harassment that you have
experienced, witnessed or heard about, either in the workplace or in an
educational institution. What do you think are the reasons behind these
instances of harassment?
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
.......................................................................................................................
4.2 OBJECTIVES
explain the concept of sexual harassment at the workplace and why it occurs;
explain and analyse the existing legal framework available for redress of
sexual harassment cases;
identify some of the problems in the existing definition and understanding
of sexual harassment; and
identify ways in which sexual harassment can be more effectively tackled.
69
Women and the Law
4.3 UNDERSTANDING SEXUAL HARASSMENT
AT THE WORKPLACE
We shall now come to the fundamental discussion: what exactly is sexual
harassment and what acts constitute it?
Consider the following scenarios and determine if these are instances of sexual
harassment, and if so identify the elements that make them sexual.
i) Rita is a smart girl but she seems to be getting low grades in Chemistry. She
talks to her teacher about it (who is a male and lives alone) and he asks her
to come to his home where they can go over her problem. He can raise her
marks he says, if she accompanies him to his place. He also says that she
could fail the course if she refuses.
ii) Rohan is a smart young man working as a junior research fellow. He is due
for promotion to become a senior fellow, but his boss who is a woman
keeps asking him to go out for dinner with her. She wants to talk about his
job prospects over dinner, she keeps saying.
iii) Maya is in her first year in college and wants to decide on what she should
choose as her major. She likes her English classes and decides to talk to her
professor about taking up English as her major. She goes to his office and
talks to him and since that day she notices that the professor is taking a
special interest in her. He looks at her more often in the class and asks her
more questions. He also walks past her many times during the lecture. Maya
does not like this new attention she is getting.
iv) Lata works in an office. Right across from her table sits her colleague Shirish.
Lately Lata has realised that he keeps staring at her from across. He does
not try to talk to her but keeps staring at her from afar. This makes her very
uncomfortable. He has also changed the position of his chair to face her.
The first two are clear examples of the kind of sexual conduct that can be
considered as constituting sexual harassment. Seeking sexual favour in return
for a perk at work or in education is sexual harassment. It is known as quid pro
quo – something in return for something else. In the context of sexual harassment,
it means asking for sexual favours in return for a promotion like in example (ii),
or for a grade (or also a threat of losing something) like in example (i). If we look
at the next two scenarios, there is a distinct form of conduct that is not overtly
sexual, but nonetheless makes the work environment less favourable for the
women in question. This kind of sexual harassment makes the work environment
hostile and makes working in such an environment more difficult for the person.
So what exactly is sexual harassment? Sexual harassment can be broadly

understood as an unwelcome conduct (mostly sexual but sometimes non-sexual)
which is directed at a person because of her/his sex. Such hostile or offensive
conduct can be physical (like touching, brushing against the person), verbal (like
sexual or sexist jokes, teasing or asking for sexual favours), or non-verbal (like
forwarding pornographic emails or showing or putting up indecent pictures).
There are two important aspects to remember about sexual harassment. First,
that sexual harassment may or may not be sexual, but it is always directed against
one on account of one’s sex or gender. Second, that sexual harassment is about
70
power within the social setup. The harasser almost always wields more power in Sexual Harassment at the
Workplace
terms of her/his sex or position, or at least she/he thinks she/he does.
Take a look at the examples above. The harasser is either the boss or teacher
(someone who is in a position of power or authority). In three of the four cases
above the harasser is a male. In the case where it is the female, she is the boss
who is in a more powerful position at the workplace. In cases of sexual harassment
among peers (as in the fourth example, where Shirish is not the boss but just a
co-worker), the harasser has more power than the harassed, generally on account
of the sex of the person. Simply put, women are targets of sexual harassment
more frequently than men because men generally have more power on account
of their being men. This is one reason why most sexual harassment discussions
in India consider only women as the harassed and men as the harassers. We shall
critically look at this viewpoint in a later section.
Let us briefly discuss how the legal discourse over sexual harassment has taken
place in the US and in India. It is important to throw at least a cursory look at
sexual harassment law in the US because a large part of how we understand
sexual harassment is derived from US laws.
4.3.1 Sexual Harassment Law in the United States of America

The laws against sexual harassment in many countries are modelled on US laws.
Movements against sexual harassment in the US began in the 1970s. In the US
the laws against sexual harassment are a part of a larger body of sex discrimination
law. Unlike India where efforts are being made at having a law against sexual
harassment per se, in countries like the US the law against sexual harassment is
derived from Title VII of the Civil Rights Act of 1964 which calls for non-
discrimination on the basis of race and sex in employment, among other things.
Sex discrimination laws operate on the logic that a particular act is discriminatory
if it happens to one sex and not to the other. For example, in the context of
sexual harassment if a certain female employee is being harassed by her employer,
the law of sexual harassment as sex discrimination can be invoked on the ground
that she is being harassed because she is a woman and that the employer does not
treat the male employees in the same way he treats his female employees. In this
way sexual harassment is considered as a form of discrimination on the ground
of sex. Many scholars working towards an anti-sexual harassment law have
highlighted the absurdity of this logic. If the employer treats the male employees
in the same way as he treats the female employees, he can manage to get away
with sexual harassment. If, for instance, he directs sexual jokes at employees of
both sexes, then the sex discrimination law cannot be applied. This law has also
not been very successful, barring very few and recent cases, in addressing same-
sex harassment and sexual harassment of gays or lesbians.
The importance of sexual harassment law in the US is that for the first time
women have defined women’s injuries. Most laws that relate to and affect women,
like rape or dowry have been identified in the law by men. Men have defined
what rape means, what its legal definition is. By contrast, sexual harassment
laws have emanated from women’s lived experiences. Women have defined what
it means to be sexually harassed, what impact it has on women’s lives and working
capabilities and why it must be addressed. However, much attention hasn’t been
paid to the question of why sexual harassment occurs in the first place. 71
Women and the Law Since sexual harassment is such a commonplace phenomenon much of the effort
in the US is directed at generating awareness about the issue; awareness about
what constitutes sexual harassment, and what could be done once it is realised
that a particular behaviour is not appropriate in a work setting. Training and
awareness programs are held in schools to make younger males and females
aware of what constitutes sexual harassment. Much emphasis is also laid on
getting support from peer groups and friends. Some of the important aspects of
recognising and countering sexual harassment are:1
Identify the behaviour: It is of foremost importance to be able to identify if
a certain behaviour amounts to sexual harassment. Often lewd jokes and
sexual comments are overlooked in the spirit of good-hearted jesting. But
the first step towards stopping instances of sexual harassment would be to
spot a harassing behaviour.
Tell someone and obtain support: Once the behaviour has been identified
as harassment it is important to confide in someone. Many instances of
harassment might go unchallenged either because the harassed person is
not able to determine if the behaviour constitutes sexual harassment, or
because there may not be any witness to the harassing behaviour. It is thus
important to tell someone you trust about the harassment. Support from
peer groups is also suggested when, after having confronted the harasser,
the harassment still does not stop.
Confront the harasser: It is often suggested that the harassed person should
confront the harasser. The most preferred form of such confrontation is a
written letter, a copy of which should be retained by the harassed person.
One could also talk to the harasser, in the presence of a witness, about the
harassment. The confrontation should not be an allegation. Sometimes the
harasser may be unaware of the fact that his behaviour makes the other
person uncomfortable. For this reason it is important to let him know. If the
behaviour has been unintentional it will stop. It is of utmost importance to
let the harasser know that his/her behaviour is making you uncomfortable.
Approach the authorities: Finally, having talked to the harasser, if his
behaviour does not change, you must approach the authorities and ask them
about the sexual harassment policy. Most institutions and companies are
enjoined by law to have a policy on sexual harassment. If the institution
does not have one, one must be drafted. There has to be a system in place to
redress such problems.
1) What is the difference between sex and gender? How do both account for
sexual harassment?
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
1
Gary Hansen and William Mallory, ‘Teaching Guide: Eliminate Sexual Harassment’ at http:/
72 /www.agnr.umd.edu/nnfr/adolsex/inform/adolsex_harasstg.html
4.3.2 Sexual Harassment Law in India Sexual Harassment at the
Workplace
Sexual harassment law in India is largely derived from case law. Two cases have
become important for sexual harassment jurisprudence in India. The first is the
landmark Supreme Court judgment in Vishaka v State of Rajasthan.2 Vishaka
laid the foundation for the legal recognition of sexual harassment. Before Vishaka
the only redress for sexual harassment in the Indian law was Section 354, IPC
which criminalises outraging the modesty of a woman, and Section 509 which
outlaws insulting the modesty of a woman. Vishaka also enunciated, for the first
time in Indian jurisprudence, what acts constitute sexual harassment, and put
forth guidelines for countering such harassment. The second case is Apparel
Export Promotion Council (AEPC) v A K Chopra.3 We will explore the ways in
which the Vishaka judgment contributes to the understanding of sexual harassment
in India. We will also interrogate why and how these contributions are limited.
In 1992 a Saathin (village development worker) was raped in Rajasthan by five

upper caste men because she had been campaigning against child marriage. Apart
from the severe negligence shown by the police, medical personnel and the
magistrate, her earlier complaints of harassment had fallen on deaf ears. This
was a classic case of sexual harassment at the workplace where harassment
precluded women from conducting their jobs without fear and intimidation, but
there was no legal system in place to prevent it. Therefore in 1992 women’s
groups filed a Public Interest Litigation (PIL) before the Supreme Court which
was the famed Vishaka v State of Rajasthan. The stance taken by these women’s
groups was not merely to criminalise sexual harassment, that is, not merely to
get it recognised by law as a social problem. But by adopting a human rights
perspective, these groups sought to eliminate the ‘systemic discriminatory
conduct’ that leads to instances of sexual harassment.4 This is to say that sexual
harassment was not only a problem, but it was also a symptom of another deeply
rooted social problem of inequality of and discrimination against women.
The judgment in the Vishaka case has been lauded for a number of reasons. It
was the first time that Indian jurisprudence had recognised sexual harassment at
the workplace as a matter of grave concern for women, and that it was the concern
of the State to address it. Citing several provisions of the Indian Constitution
(Articles 14, 15, 19 (1) (g), 21 and 32) the court upheld women’s equal rights of
freedom, including the right to work with dignity in a harassment-free
environment. Since India did not have any legislation on sexual harassment the
Court borrowed from International Law5 . Relying on the CEDAW (Convention
for the Elimination of All Forms of Discrimination Against Women), which India
had signed and later ratified, the Supreme Court provided a detailed definition
of sexual harassment in the Vishaka judgment. It upheld the right of women to
equality and non-discrimination on the grounds of gender/sex, freedom to practice
any profession or trade, and the right to life and personal liberty including
2
AIR 1997 SC 3011.
3
AIR 1999 SC 625.
4
Naina Kapur, ‘Sexual Harassment and Law Reform in India’, Paper presented at Expert Group
Meeting on Good Practices in Legislation on Violence Against Women, Vienna 26-28 May
(2008). Can be found online at
http://www.un.org/womenwatch/daw/egm/vaw_legislation_2008/expertpapers/
EGMGPLVAW%20Paper%20(Naina%20Kapur).pdf
5
Mihir Desai, ‘Starting the Battle’, 4:1, Jan-Feb Combat Law (2005). 73
Women and the Law individual dignity. According to the Vishaka judgment “sexual harassment
includes such unwelcome sexually determined behaviour (whether directly or
by implication) as:
Physical contact and advances;

A demand or request for sexual favours;
Sexually coloured remarks;
Showing pornography;
Any other physical, verbal or non-verbal conduct of sexual nature.”6
Two basic understandings of sexual harassment have developed through this
judgment, which serve to determine if a conduct was sexual harassment or not.
The first is that conduct should be unwelcome, that is, the harassed should find
it offensive and distasteful; unwelcome also implying that the conduct has not
been invited by any act, behaviour, or language of the harassed. The second is
that the conduct should lead to an abusive and hostile work environment. This
means that the conduct should be severe enough to affect a person’s working
conditions and/or affect his/her efficiency.
Jurisprudentially, Vishaka marked a departure of the judiciary from its traditional

role as interpreter of the law, to engage in the proactive role of law-making. The
Court was aware of the boundaries it was transgressing by treading into legislative
functions, and said that the guidelines laid down in the judgment would be treated
as the law of the land, but only till a sexual harassment law is not drafted by the
legislature.7
Another significance of the Supreme Court judgment is that it accepted sexual

harassment at the workplace as violating women’s rights of equality and non-
discrimination and that it was the duty of the employer to provide a harassment-
free working environment to all its employees. It also gave injunctions for the
setting up of complaints committees at all public and private sector employments.
It placed responsibility on the employer to take steps to prevent sexual harassment
at the workplace. This implies that the Court was definitely aiming at bringing
about a legal change, but by placing responsibility on the employer it was also
seeking to bring about attitudinal changes within the society regarding the issue
of sexual harassment.8 It is important to note that the Court not only wanted to
redress the problem of sexual harassment but also prevent it. The injunctions to
employers, in both the private and the public sectors, to form a policy on sexual
harassment had preventive purposes as well. The Court emphasised that all
employers ‘should take appropriate steps to prevent sexual harassment’ and take
the following preventive measures:9
Notify, publish and circulate in explicit terms the prohibition of sexual
harassment as defined by the Court.
6
See note 2.
7
See Desai, note 5.
8
See Kapur, note 4.
9
See note 2.
74
Government and public sector rules regarding appropriate conduct and Sexual Harassment at the
Workplace
discipline should include rules regarding the prohibition of sexual
harassment, and also define penalties for the offenders.
Private sector employers should include these prohibitions in their standing
orders under the Industrial Employment (Standing Orders) Act, 1946.
Furthermore, all employers should ensure that there is no hostile environment
towards women in terms of work, leisure or health and hygiene at the
workplace.
The Vishaka Guidelines state that every workplace should have a complaints
mechanism which will ensure time bound treatment of complaints. The Guidelines
call for the setting up of a Complaints Committee at every workplace. Such a
committee should have a woman as the chairperson and half of the members
should be women. An NGO or other body who is familiar with the issue of
sexual harassment at the workplace should be associated with the committee.
The complaints committee should make an annual report to the concerned
Government department of all complaints and action taken by them.
Thus, the preventive measures suggested by the Court could serve two main
purposes: firstly, to make the employees aware of what acts might constitute
sexual harassment and that it would not be tolerated; and secondly, to forewarn
employees that any such act would be punishable. We will look at some of the
limitations of this judgment in Section 4.5.
2) List some of the highlights of the Vishaka judgment that contribute to
sexual harassment jurisprudence in India.
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
..................................................................................................................
4.4 A REVIEW OF THE PROTECTION OF

WOMEN AGAINST SEXUAL HARASSMENT
AT WORKPLACE BILL, 2007
As mentioned in the preceding section, the Court in the Vishaka case had stepped
into the law-making domain and suggested that in the absence of a law against
sexual harassment, the guidelines suggested by the Court would be considered
as the law. The Court, however, also called for a legislation prohibiting sexual
harassment to replace its injunctions subsequently. The Court ruled in the Vishaka
case in 1999. Since then there have been demands for a legislation on sexual
harassment and several attempts at drafting and presenting a bill have been made.
The latest is the Protection of Women against Sexual Harassment at the Workplace
Bill, 200710 which is yet to be introduced in the Parliament.
10
The Bill can be found online at http://www.wcd.nic.in/protshbill2007.htm 75
Women and the Law Let us look at some of the highlights of this Bill. First and foremost it seeks to
fulfill the need for legislation. Drafted largely on the guidelines in the Vishaka
case, this Bill aims at the protection of women against sexual harassment, and at
its redress. A noticeable feature of the Bill is that it provides for protection of
women working not only in the organised sector, but also in the unorganised
sector. It has been rather simple to set up a grievance redress mechanism in the
organised sector. But women working in the unorganised sector have also been
subject to sexual harassment, often times more than those in the organised sector.
This Bill lays down a long list in the schedule prescribing the different kinds of
employments in the unorganised sector.
Why is it of such importance to include women the unorganised sector within

the purview of the Bill? As we know, most of the jobs in the unorganised sector
involve engaging in manual labour, most often with a male head, like a contractor
or a farmer. In many of these jobs, there is blatant sexual harassment and even
molestation and rape, but there is no accountability placed on the employer.
There have also been instances where women working as domestic help have
been subject to sexual harassment and even rape. Although the house may seem
like a very informal setting for it to be within the purview of ‘sexual harassment
at the workplace’, it is the workplace for women working as domestic help. This
is true for many jobs that may not be conducted within what we do not consider
a formal ‘workplace setting’. By including all these jobs the Bill has widened
the boundaries of what can be considered a workplace and wherein sexual
harassment should be addressed.
The Bill also provides space for third-party harassment. Third-party harassment
implies that the perpetrator is not the employer or colleague; an outsider, like a
client or customer who comes in contact with the woman at the workplace or in
relation to the workplace.
However, the Bill is not as encompassing and progressive as the Vishaka judgment
had been. There are some drawbacks of the Bill that are not in the same line of
the progressive path that Vishaka has shown us. Let us enumerate some of these
limitations: 11
i) Whereas the focus of Vishaka was as much on the prevention of sexual
harassment as it was on the redress thereof, the very language of the Bill
suggests it seeks to ‘protect’ women rather than prevent such instances.
What this implies is that instead of generating awareness to bring about
social and behavioural changes that can lead to reduced instances of sexual
harassment, the focus of the Bill is to provide a remedy or redress a grievance
once the incident of sexual harassment has taken place. The very title of the
Bill (Protection of Women against Sexual Harassment at the Workplace)
suggests the emphasis on protection rather than prevention.
ii) As an extension of the first point, whereas Vishaka sought to bring about
attitudinal changes as discussed in sub-section 4.3.2, the Bill merely tries to
bring about procedural and institutional changes. A significant achievement
of Vishaka was that it brought the issue of sexual harassment within the
scope of employee training and meetings. It informed workers of their rights
against sexual harassment and provided a forum for redress within the
11
76 See Kapur, note 4.
workplace itself. This meant that each and every employee had to be made Sexual Harassment at the
Workplace
aware of three things: firstly that sexual harassment is a reality; secondly
what acts could amount to sexual harassment; and thirdly that sexual
harassment would be penalised either by sanctions or even dismissal.
iii) Vishaka guidelines also placed specific responsibilities on the employer to
provide all women employees with a harassment-free working environment.
With this burden placed on the employer, it became the necessary for the
employer to generate awareness about sexual harassment within the
organisation. Often this had led to intensive training and more and more
people getting involved with such trainings and orientations just fulfilling
the objective of attitudinal change as envisioned by the Court. The tone of
the Bill is to describe the sexual harassment policy in terms of the ‘duty’ of
the employer that than a ‘responsibility’.
iv) By assigning a statutory nature to the Constituted Committees the Bill
significantly reduces the chances of informal reconciliation.
What are some of the essential points that need to be put in a policy on
sexual harassment at the workplace?*
Provide a clear definition of what constitutes sexual harassment at the
work place
Provide conditions under which conduct is considered harassing
Clearly state the organisation’s stand on sexual harassment at the work
place.
Provide clear information on the complaints mechanisms and
procedures to be followed
Provide names and contacts of point persons to be contacted in case of
a complaint
Clearly specify a time period, preferably a maximum time period of
three months, within which period the enquiry conducted by designated
complaints committee will be completed.
Make public the consequences and penalties that will be imposed on
perpetrators of sexual harassment.
Rights (2007).
4.5 SOME PROBLEMS IN THE DEFINITION AND

UNDERSTANDING OF SEXUAL
HARASSMENT
The earliest understanding of sexual harassment was as quid pro quo, wherein a
superior (usually male) asks for a sexual favour from his subordinate (usually
female) in exchange for some benefit at the workplace. It represents the power
of the superior male over the less powerful and usually younger female
subordinate. In such kind of harassment a woman is most often forced to submit
and if she refuses the male’s advances, she is bound to suffer from some loss at
the workplace. In this understanding of sexual harassment, sex is demanded
77
Women and the Law from a woman because she is a woman.12 However, as more and more women entered
the workplace, especially in jobs that involve decision-making, the forms of sexual
harassment have been multifarious.
We saw early in this unit that sexual harassment has to do not only with sex but also
with power. In these circumstances, it becomes imperative that we look at some of
the shortcomings of the discourse of sexual harassment as it is taking shape in India. If
we want to address the issue effectively, we need to critically look at what is lacking in
our present understanding of sexual harassment and possible consequences if we
allow these lacunae to go unaddressed.
4.5.1 Difficulty in Proving Sexual Harassment

The first problem that we might encounter is the difficulty in proving that sexual
harassment has occurred. Many instances of sexual harassment could be either
in covert forms or conducted in the privacy of an office or a similar place. The
problem then is, if such instances occur in situations where there are no witnesses
or evidence of the same, how can a woman prove that she has been sexually
harassed? The concern has been equally central to an issue as gruesome as rape,
where the woman has to prove that she has been raped, and that the intercourse
was not consensual.
As mentioned above, the central axel on which sexual harassment law rotates is
the ‘unwelcome-ness’ of the act/conduct. The case law in many countries including
India has illustrated that if a woman does not conform to dominant sexual norms,
it is concluded that the conduct was welcome or more implicitly, that she deserved
the harassment. A disturbing aspect of the ‘welcome’ test is that the complainant’s
past sexual conduct, mode of dress, etc. could be introduced as relevant evidence
to determine if the alleged harassment was actually unwelcome or ‘invited’ by
the complainant’s behaviour.13
Just like a rape victim has to prove in the court of law that she had not consented
to the intercourse, a victim of sexual harassment has to prove that her behaviour
had not ‘invited’ harassment. Unwelcome-ness is to sexual harassment what
consent is to rape; both are central in defining the act and both are difficult to
prove. It has, therefore, been difficult for former rape victims or women using
foul language or having modes of dress or conduct, which deviate from the
dominant norms to prove that the sexual advance had been unwelcome. The
courts have continued to use the protectionist approach that is aimed at saving
the (good) women from the evils of society. However for this protection to be
granted to her, she has to prove herself worthy if it. This means that the woman
has to measure up to the court’s test of ‘chastity’ and ‘modesty’. Although the
Vishaka judgment did not include words like ‘modesty’, by including the test of
‘unwelcome-ness’ it did open the gates for bringing in questions like the victim’s
behaviour, just like questions of past sexual history are exploited in cases of
rape.
12
Catharine Mackinnon, ‘Sexual Harassment: Its First Decade in Court’, in Mackinnon ed.,
Feminism Unmodified (Cambridge: Harvard University Press, 1987).
13
Ratna Kapur, ‘Sexcapades and the Law’ No. 505 September Seminar (2001). Can also be
78 found online at www.india-seminar.com.
The image of a victim that Courts have held is that of a sexually pure/chaste being, Sexual Harassment at the
Workplace
most often passive, and subjected to co-workers’ sexual misconduct. In order to
retain claim under the law of sexual harassment and sex-discrimination women need
to conform to these images. As Ratna Kapur observes, ‘A woman’s conduct will be
key in determining whether or not the sexual behaviour was welcome or unwelcome.
Her dress, her speech, demur, personal history and relationship with the harasser will
be called into question. As long as women’s sexual conduct remains constrained,
conditional and subject to moral scrutiny, sexual laws for her benefit will be subject to
those very same constraints’. The focus of the judiciary has been on modesty, obscenity
and chastity rather than equality, freedom and women’s right to life and livelihood. In
the case of AEPC v A K Chopra, the Court added ‘outraging modesty’ into the
definition of sexual harassment. In this case the complainant was a young, unmarried
woman with no knowledge about sex, which increased her credibility in the eyes of
law.14 The very idea that some women can and should be protected by the law and
others who do not conform to the ideals upheld by the courts, should not only be not
protected but also punished is itself contrary to the ends of gender-justice.
4.5.2 Non-sexual Harassment

What we have seen so far is the focus on the ‘sexual’ part of sexual harassment. If we
take another look at the Supreme Court definition of sexual harassment this focus on
sex and sexual become even more evident. But what happens when the harassment is
not sexual? Is it possible that harassment at the workplace is based on gender
stereotypes that is based on the sex of the person, but the harassment is not sexual in
nature? For example, what happens when a female worker is continuously ridiculed,
insulted as not being efficient enough, or degraded by saying that she is not capable
enough to be working there? What if the filing cabinet is placed at such a height that it
is hard for a woman to reach it every time? What if the jokes shared in the office are
not sexual but sexist, in the sense that they do not have a sexual content, but are
definitely aimed at denigrating women? The famous ‘blond’ jokes in the West are an
example of such sexist attitudes. In the US there have been cases wherein women
have been physically assaulted like being hit and punched in the kidneys and her face
pushed down into the toilet bowl15 . These examples suggest that there is more to
sexual harassment than just sex.
If we consider the examples of insulting a woman’s capability to work or of installing

the file cabinet higher than what a woman could reach, we will notice that there is no
sexual harassment involved but there is harassment nonetheless. What is the basis of
this harassment? It is about the inequalities of power; it is about gender. This harassment
is based on the social attitude that women are subordinate to men and that there place
is society should always be lower than men. Often women quit their jobs when faced
with such harassment, for since it is not sexual harassment, there is no space within the
legal framework to address it. The purpose of harassment is to make women
uncomfortable and to frustrate them. Therefore harassment could be viewed at as a
means of gaining privileges and creating exclusions at the workplace.16 Sexual
harassment thus is only one means of securing such privileges and creating exclusionary
spaces. There are many ‘non-sexual’ ways in which harassment can be conducted.
Therefore if we talk about sexual harassment alone, we would be omitting other forms
14
See Kapur, note 13 above.
15
Vicki Schultz, ‘Reconceptualising Sexual Harassment’, Vol. 107, No. 6 The Yale Law Journal
(1998).
16
For more on this idea see Carroll Brodsky as discussed in Schultz, note 15. 79
Women and the Law of harassment from within the scope of law, those that are as grievous as sexual
harassment. These forms of harassment many not be based on sex, but they are
definitely based on gender. If we seek to address the issue of harassment
completely, we need to take into account both sexual and non-sexual forms of
harassment.
Activity 1
List a few examples of what you think might constitute non-sexual
harassment, and why.
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.........................................................................................................................
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4.5.3 Same-sex and Male Harassment

Lastly, one of the most important drawbacks of the sexual harassment law so far,
and which is also visible in the draft Bill, is that only women are assumed as the
potential victim of sexual harassment. This leaves many other forms of sexual
harassment outside the realm of the law. We can critique this position on three
accounts:
i) The law does not consider the possibility that within peers there are high
chances of same-sex harassment. There may be cases wherein a male would
be reprimanded by his male colleagues for ‘not being manly enough’.
Similarly within females there could be a particular female who is always
the target of all jokes. Our popular culture also encourages this notion. For
example, even though Jassi is the smartest girl in her office in the televised
serial Jassi Jaisi Koi Nahi, she is the target of all jokes because she does not
conform to the commonly held notions of what it means to look good. In a
culture that is being penetrated deeply each day by more violence it is not
only wise to consider the possibility of same-sex harassment, but also highly
desirable if we are aiming for a comprehensive law against sexual
harassment.
ii) Moreover it would be a folly to consider that only males can sexually harass
a female. Many of you would have noticed the language of the Vishaka
judgment and of the draft Bill as reiterating women as the victims of
harassment and men as perpetrators. And although most cultures around
the world, on account of their being masculinist, do not recognise the
possibility of male sexual harassment (or even male rape) many instances
around the world have shown otherwise. It is completely possible that a
male could be harassment sexually or otherwise at the workplace, and it is
striking that both the possibility of and a redress forum for male sexual
harassment is so conspicuously absent from the Indian sexual harassment
law. Male harassment can be at the hands of both men and women. Women in
position of power/authority can very well subject a man to sexual harassment.
Male harassment can also take place on account of sexual orientation or behaviour
80
pattern, as we discussed under the first point. Therefore as paralegals, we must Sexual Harassment at the
Workplace
also be open to the possibility of male harassment. Once a case of male harassment
comes to the forefront it will also be included within the sexual harassment law. It
is the duty of the interpreters of law to enhance the scope of law so as to provide
justice in its truest sense. In fact assuming that male harassment cannot happen is
also gender-insensitive and unjust.
iii) Since caste permeates almost all social and political institutions in India, one must
also consider the role of caste in sexual harassment. Traditionally women belonging
to lower caste and classes were looked upon with little or no respect. One must
therefore also interrogate if the reason behind the harassment is caste-based.
Caste can also play a significant role in same-sex and male harassment. These
are some of the most important ingredients without which no law can adequately
address the issue of sexual harassment. Harassment is not only sexual; it is also
social and political.
4.6 SEXUAL HARASSMENT: THE NEED FOR

COMPREHENSIVE UNDERSTANDING
So far we have looked at what sexual harassment is, how to identify it and what
course to follow if faced by harassment. We also looked at the existing law that
forms the backdrop against which we conduct the discourse on sexual harassment
in India. We also critically delved into the definition and provision of this law in
order to generate a fuller and richer understanding of sexual harassment and
harassment at the workplace. But one important question still remains to be
answered: what is not sexual harassment?
Let us look at some examples:
i) The teacher teaching rape law frequently uses the words ‘vagina’ and ‘penis’.
ii) An art teacher exposes nude pictures to her/his students.
iii) Good-natured compliments at the workplace.
iv) Consensual sexual talk between two adults within or outside the workplace.
v) Two persons in an office having a voluntary relationship.
vi) Two people who think differently and argue a lot at the workplace.
vii) Reprimand by the boss in order to enforce discipline and efficiency.
In some of these examples there is an explicit sexual content involved. However
if we consider the context and the situation, these are not instances of sexual
harassment. For instance the very definition of rape in the Indian Penal Code as
penis penetration requires the use of the word and hence is not sexual harassment.
Similarly art courses at college require reviewing nude pictures, and consensual
relationship between two adults cannot be considered sexual harassment.
Differences of opinion arising out of personality differences are also not
harassment, and if it is a part of the job description to ensure that work is done in
a timely and efficient manner and is enforced by a boss, it should not be considered
sexual harassment. However the same situations can become harassment under different
circumstances.
Activity 2
81
Women and the Law Look at the above examples and examine under what conditions the same situations
can be considered sexual harassment.
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4.7 SUMMARY
Let us recapitulate a few important points discussed in this unit:
Sexual harassment is a reality that needs to be identified and challenged.
It is a product of the unequal power relations within our society and thus determined
by many social, economic and cultural factors.
The Supreme Court judgment in the Vishaka case provides the legal framework
for addressing sexual harassment in India.
In order to adequately tackle the problem of sexual harassment, we must take
into account other forms of harassment like same-sex harassment, male harassment
and non-sexual harassment.

1) What is sexual harassment and what do you think are some of the reasons behind
sexual harassment?
2) Do you think sexual harassment is a form of violence against women? If yes, how
does it differ from other forms of violence against women? If no, why not?
3) On the basis of the Vishaka guidelines describe what course one should take if
faced with sexual harassment.
4) What are the duties and responsibilities of an employer?
5) Critically evaluate the provisions of the Protection of Women against Sexual
Harassment at the Workplace Bill, 2007.

1) Sex is the biological difference between males and females. Gender is the
social difference between the two. While sex is natural, gender is a social
construction that defines what it means to be a man or woman in society.
Gender is the difference that is created by society between males and females
with respect to the kind of roles they play in society. Sexual harassment can be
based on the sex of a person or gender based on the harasser’s perception of the
victim’s gender.
82
2) The Supreme Court provided a detailed definition of sexual harassment in the Sexual Harassment at the
Workplace
Vishaka judgment. It upheld the right of women to equality and non-discrimination
on the grounds of gender/sex, freedom to practice any profession or trade, and
the right to life and personal liberty including individual dignity. To determine if a
conduct was sexual harassment or not, conduct should be unwelcome and should
lead to an abusive and hostile work environment. The judgment said that it is the
duty of the employer to provide a harassment-free working environment to all its
employees. It also gave injunctions for the setting up of complaints committees at
all public and private sector employments. By placing responsibility on the
employer, the court sought to bring about attitudinal changes within the society
regarding the issue of sexual harassment. The Court emphasised that all employers
should take appropriate steps to prevent sexual harassment and take specified
preventive measures.
Terminal Questions
3) Refer to Sub-section 4.3.2.
4) Refer to Sections on complaints mechanism, preventive mechanisms, awareness,
worker’s initiatives, criminal proceedings, and third party harassment in the
Appendix.
4.10 GLOSSARY
Injunction : An order/directive passed by a court of temporary
or permanent nature to do or not to do something.
Standing orders : In industrial settings these are orders defining the
conditions of recruitment, discharge, disciplinary
action, holidays, and leave. These standing
orders can be extended to other kinds of
employment by the Government.
Organised sector : The sector of the labour economy that is
unionised, particularly the industrial and services
sectors.
Statutory : Authority derived from a statute (written law)
and therefore carrying considerable weight
Gender stereotypes : Social ascription of certain qualities and
behaviour as being specific to either the male or
female sex, e.g., statements such as ‘all women
are good mothers, and ‘men cannot cook or look
after children’.

Naina Kapur, ‘Sexual Harassment and Law Reform in India’, Paper presented at
Expert Group Meeting on Good Practices in Legislation on Violence Against
Women, Vienna 26-28 May (2008). Can be found online at
83
Women and the Law http://www.un.org/womenwatch/daw/egm/vaw_legislation_2008/expertpapers/
EGMGPLVAW%20Paper%20(Naina%20Kapur).pdf
Mihir Desai, ‘Starting the Battle’, 4:1, Jan-Feb Combat Law (2005).
Catharine Mackinnon, ‘Sexual Harassment: Its First Decade in Court’, in

Mackinnon ed., Feminism Unmodified (Cambridge: Harvard University Press,
1987).
Ratna Kapur, ‘Sexcapades and the Law’ No. 505 September Seminar (2001).
Also available online at www.india-seminar.com.
84
Sexual Harassment at the
APPENDIX Workplace
SUPREME COURT GUIDELINES IN THE VISHAKA

JUDGMENT
The guidelines and norms prescribed are as under:
Having regard to the definition of human rights. in S. 2 (d) of the Protection
of Human Rights Act, 1993,
Taking note of the fact that the present civil and penal laws in India do not
adequately provide for specific protection of women from sexual harassment
in work places and that enactment of such legislation will take considerable
time.
It is necessary and expedient for employers in work places as well as other
responsible persons or institutions to observe certain guidelines to ensure the
prevention of sexual harassment of women:
1) Duty of the employer or other responsible persons in work places and
other institutions:
It shall be the duty of the employer or other responsible persons in work
places or other institutions to prevent or deter the commission of acts of
sexual harassment and to provide the procedures for the resolution,
settlement or prosecution of acts of sexual harassment by taking all steps
required.
2) Definition:
For this purpose, sexual harassment includes such unwelcome sexually
determined behaviour (whether directly or by implication) as:
a) physical contact and advances;
b) a demand or request for sexual favours;
c) sexually coloured remarks;
d) showing pornography;
e) any other unwelcome physical, verbal or non-verbal conduct of sexual
nature.
Where any of these acts is committed in circumstances whereunder the victim
of such conduct has a reasonable apprehension that in relation to the victim’s
employment or work, whether she is drawing salary, or honorarium or
voluntary, whether in Government, public or private enterprise, such conduct
can be humiliating and may constitute a health and safety problem. It is
discriminatory for instance when the woman has reasonable grounds to believe
that her objection would disadvantage her in connection with her employment
or work, including recruitment, or promotion, or when it creates a hostile
work environment. Adverse consequences might by visited if the victim does
not consent to the conduct in question or raises any objection thereto.
3) Preventive Step:
All employers or persons in charge of work place whether in the public or
private sector should take appropriate steps to prevent sexual harassment.
85
Women and the Law
Without prejudice to the generality of this obligation they should take the following
steps:
a) Express prohibition of sexual harassment as defined above at the work place
should be notified, published and circulated in appropriate ways.
b) The Rules/Regulations of Government and Public Sector bodies relating to
conduct and discipline should include rules/regulations prohibiting sexual
harassment and provide for appropriate penalties in such rules against the
offender.
c) As regards private employers steps should be taken to include the aforesaid
prohibitions in the standing orders under the Industrial Employment
(Standing Orders) Act, 1946.
d) Appropriate work conditions should be provided in respect of work,
leisure, health and hygiene to further ensure that there is no hostile
environment towards women at work places and no employeewoman
should have reasonable grounds to believe that she is disadvantaged in
connection with her employment.
4) Criminal Proceedings:
Where such conduct amounts to a specific offence under the Indian Penal
Code or under any other law, the employer shall initiate appropriate action in
accordance with law by making a complaint with the appropriate authority.
In particular, it should ensure that victims, or witnesses are not victimised or
discriminated against while dealing with complaints of sexual harassment.
The victims of sexual harassment should have the option to seek transfer of
the perpetrator or their own transfer.
5) Disciplinary Action:
Where such conduct amounts to misconduct in employment as defined by
the relevant service rules, appropriate disciplinary action should be initiated
by the employer in accordance with those rules.
6) Complaint Mechanism:
Whether or not such conduct constitutes an offence under law or a breach of
the service rules, an appropriate complaint mechanism should be created in
the employer’s organisation for redress of the complaint made by the victim.
Such complaint mechanism should ensure time bound treatment of
complaints.
7) Complaints Committee:
The complaint mechanism, referred to in (6) above, should be adequate to
provide, where necessary, Complaints Committee, a special counsellor or
other support service, including the maintenance of confidentiality.
The Complaints Committee should be headed by a woman and not less than
half of its member should be women. Further, to prevent the possibility of
any undue pressure or influence from senior levels, such Complaints
Committee should involve a third party, either NGO or other body who is
familiar with the issue of sexual harassment.
86
Sexual Harassment at the
The Complaints Committee must make an annual report to the Government Workplace
department concerned of the complaints and action taken by them.
The employers and person in charge will also report on the compliance with
the aforesaid guidelines including on the reports of the Complaints Committee
to the Government department.
8) Workers’ Initiative:
Employees should be allowed to raise issues sexual harassment at workers’
meeting and in other appropriate forum and it should be affirmatively
discussed in Employer - Employee Meetings.
9) Awareness:
Awareness of the rights of female employees in this regard should be created
in particular by prominently notifying the guidelines (and appropriate
legislation when enacted on the subject ) in a suitable manner.
10) Third Party Harassment:
Where sexual harassment occurs as a result of an act or omission by any third
party or outsider, the employer and person in charge will take all steps
necessary and reasonable to assist the affected person in terms of support and
preventive action.
11) The Central / State Governments are requested to consider adopting
suitable measures including legislation to ensure that the guidelines laid
down by this order are also observed by the employers in Private Sector.
12) These guidelines will not prejudice any rights available under the
Protection of Human Rights Act, 1993.
Accordingly, we direct that the above guidelines and norms would be strictly
observed in all work places for the preservation and enforcement of the right
to gender equality of the working women. These directions would be binding
and enforceable in law until suitable legislation is enacted to occupy the
field.
87
Women and the Law
UNIT 5 RIGHTS OF WOMEN WORKERS
Structure
5.1 Introduction
5.2 Objectives
5.3 The Context
5.4 Legal Provisions
5.4.1 The Equal Remuneration Act, 1976
5.4.2 The Maternity Benefit Act, 1961
5.4.3 The Employees’ State Insurance Act, 1948
5.4.4 The Factories Act, 1948
5.5 Childcare Facilities
5.6 Unorganised Workers
5.6.1 Home-based Workers
5.6.2 Domestic Workers
5.6.3 Sex Workers
5.7 Summary
5.1 INTRODUCTION
The status of women in India is rapidly evolving and transforming. The feminisation of
productive labour has been on a gradual rise. A majority of the women in India are
employed in the informal, unorganised sector. According to the 2001 Census, the
work participation rate for women was 25.63 per cent in 2001, which is an improvement
from 22.27 per cent in 1991. In 2001, work participation rate for women in rural
areas was 30.79 per cent as compared to 11.88 per cent in the urban areas. In the
rural areas, women are mainly involved as cultivators and agricultural labourers, fish
workers and forest workers. In the urban areas, almost 80 per cent of the women
workers are working in the unorganised sectors like household industries, petty trade
and services, building and construction. In the formal sector, they are largely employed
in the service sector, electronic industry, textile and garment industry.
Despite the growing population of women workers, their working conditions and
wages are less than equitable and the gender specific needs of women workers are
rarely addressed by legislators, policy makers and even trade unions. Article 14 of the
Indian Constitution provides that “the State shall not deny to any person equality
before the law and equal protection of laws within the territory of India.” Article 15(1)
states that no person shall suffer discrimination on the basis of sex, while Article 15(3)
permits the State to make special provision for women. Article 16 provides that there
shall be equality of opportunity for all citizens and they shall not be discriminated on
the basis of religion, race, caste and sex. Thus, the Indian Constitution, not only
guarantees equality to women, but also empowers the State to adopt measures for
88
positive discrimination in favour of women. Rights of Women Workers
Specific laws have been enacted to create and protect rights of women workers, and
in other instances, specific provisions for the same purpose have been inserted in
labour laws applicable to all workers. Such laws are enacted under Article 15 (3) of
the Constitution which empowers the Parliament as well as the State Legislatures to
enact special laws for women.
In this unit, we will be looking at specific laws which have been enacted for ensuring
the rights of women workers. It must be kept in mind that these laws have limited
applicability and a large number of women workers in the unorganised sector do not
benefit from these protections. We will look at the existing laws and also review the
lack of legislation protecting the women workers in the unorganised sector, where the
majority of women workers are employed. In this context, we will also be looking at
a few Conventions of the International Labour Organisation (ILO), and some of the
core labour standards which operate as guidelines in protecting the rights of women
workers, even if they are not ratified by India.
5.2 OBJECTIVES
discuss the various Acts enacted for the protection of women workers;
analyse the lacuna in the law when addressing women workers, particularly the
more vulnerable workers in the unorganised sector; and
identify what legal reforms could be introduced in order to strengthen the rights of
women workers.
5.3 THE CONTEXT

The contribution of women workers to the nation’s economy is grossly underestimated
and undervalued. This is evident in the poor access to resources and skill training for
women workers, the disparity in wages to women workers, and poor accounting of
women’s productive labour.
Women workers bear a ‘double burden of work’. Even as they contribute to work
that is paid and quantified in the national output, they also bear the burden of unpaid
work at home, caring for the young and the old, which is largely unaccounted for and
unpaid. The latter work, which is largely termed as ‘socially productive’ work and
includes reproductive functions, is more burdensome for women who are lower down
in socio-economic status. The precarious nature of work in the informal sector, adds
to the burden of the women’s work, as they put in long hours to eke out a meagre
living. Thus, even when they are engaged in productive work, their work in undervalued.
Women workers are subject to various forms of discrimination and exploitation.

Discrimination on the basis of gender is not always apparent. It manifests itself
in the nature of work assigned to women workers, the valuation of the work and
the skills required, and the use or non-use of technology by women workers. For
instance, in the garment industry, there is a clear sexual division of labour, with
male workers being employed to be master tailors or machine attendants, while women
workers are mostly helpers, checkers, thread cutters, with limited or no scope for
vertical mobility in the job hierarchy. This occupational segregation has a direct bearing 89
Women and the Law on differential wages to women workers. Aside from wage discrimination, women
workers persistently face discrimination in recruitment, promotion and in their ability
to access better facilities and benefits.
Additionally, women are viewed as supplementary wage earners, despite the fact that
increasingly, many households in the country survive on the single wage of a woman
worker. Along with this, the sectors where women have been traditionally employed
such as care of children (anganwadi workers), nursing, etc are seen as inferior.
Coupled with a low social and educational status, women’s social conditioning such
as being trained from childhood to survive on minimum requirements, results in low
bargaining power and further exploitation. Thus the socio-cultural factor which devalues
women in their homes also helps the industry to exploit women with exploitative wages.
Another prominent feature of women’s work is their invisibility. A large number of

women workers are home based workers, self employed workers, or are employed
in other invisible work such as unpaid farm labour, domestic work etc. While this
offers them a degree of flexibility in managing responsibilities at home, the invisibility of
the work makes regulation of the same difficult. Home based workers such as beedi
workers and agarbathi workers are paid piece rate wages, which are low but do not
factor in the ‘hidden costs’ absorbed by the women themselves, such as electricity,
overhead costs of the place of work and at times, the costs of inputs such as thread in
the case of beedi. The invisibility of the work allows for payment of very low wages
and the employment of a large number of young girls in several homes. To make
matters worse, nearly 70 per cent of women workers are either illiterate or have only
primary education.
Apart from the apparent and hidden inequities that women face at the workplace,
women also have little or no access to skill training and education, have poor
awareness of occupational health hazards at the workplace and overall have a
poor representation of their voices at various fora. Even trade unions fail to be
gendered in their approach and rarely take up women’s issues in collective
bargaining.
It is in this context that one has to look at women’s work and the legal protection
required for it as well as what protection is available to women workers.
5.4 LEGAL PROVISIONS

In this part, we will discuss the legal provisions available specifically to women
workers. The legislature has enacted statutes which are exclusively meant for
women workers. These are:
The Equal Remuneration Act, 1976
The Maternity Benefit Act, 1961
In addition to these, statutes which are meant for workers generally contain certain
provisions specific to women workers, for instance, provisions in Factories Act,
the Employees State Insurance Act etc.
India has ratified the following ILO Convention that have a direct bearing on
women workers: Convention No. 100: Equal Remuneration, 1951; Convention
No. 111: Discrimination (Employment and Occupation); 1958, Convention No.
90
4: Night Work (Women) Convention, 1919; Convention No. 45: Underground Work Rights of Women Workers
(Women), 1935; Convention No.89: Night Work (Women) Revised, 1948; Convention
No. 41: Night Work (Women) (Revised), 1934. We discuss these in the sections
below.
It is worth noting here that the Supreme Court in the Vishaka1 judgment laid down
clear guidelines to deal with sexual harassment at the work place. All Central and
State Governments and Public Sector Undertakings have been asked to implement
the guidelines laid down in the said judgment. The Conduct Rules applicable to the
officers of the Central Government and the All India Services have been amended to
give effect to the guidelines. The Industrial Employment (Standing Orders) Act, 1946
has also been amended to make the guidelines applicable to the employees in the
private sector. Sexual harassment and the Vishaka guidelines have been dealt with
extensively in the previous unit and hence, in this unit, we merely ask you to note that
a work environment free of sexual harassment is a necessary right of every woman
worker.
We will first discuss provisions in statutes which are meant exclusively for women
workers.
5.4.1 The Equal Remuneration Act, 1976
Activity 1
Can you identify sectors where women are routinely underpaid as compared
to men even when they do the same/similar work?
........................................................................................................................
........................................................................................................................
........................................................................................................................
........................................................................................................................
........................................................................................................................
The Equal Remuneration Act provides for payment of equal remuneration to

men and women workers and for the prevention of discrimination against women
on the ground of sex in matters of employment. The prevention of discrimination
extends not only to wages, but also to related employment matters, such as,
increments, promotion and transfer. The Act therefore mandates that there should
be no discrimination not just at the time of recruitment of women into the job or
employment, but also thereafter in matters related to the employment as well as
the position of women workers within the establishment where they are employed.
More specifically, the Act prohibits employers from paying less remuneration
(whether payable in cash or in kind) to workers of one sex as compared to workers
of the opposite sex for the same work or work of a similar nature. However the
Act does not define what constitutes ‘same or similar work’. Given this lacunae,
it is noteworthy that work done by women is routinely treated as unskilled and paid
wages lower than male workers. This under-valuation of women’s work which often
involves long hours of drudgery, results in lower wages for women, despite the existence
1
Vishaka v State of Rajasthan AIR 1997 SC 3011.
91
Women and the Law of a law requiring equal remuneration. For instance, in agriculture, the weeding and
transplanting work done by women which is physically demanding is classified as
unskilled work, while the ploughing work done by men is classified as semi-skilled or
skilled work, thus justifying differential payments.
Hence, those recommending reform of the enactment suggest that the expression ‘same
and similar’ be replaced with the phrase ‘work of equal value’, so that disparate jobs
are assessed and evaluated for the value they add to the production process even if
they are different from jobs performed by another person.
In case of discrimination either in terms of payment of wages or promotions/transfers
etc., an application can be made to the authority designated by the Government to
hear claims under the Act. In Maharashtra, for example, the Authority is a Deputy
Labour Commissioner who is part of the Office of the Labour Commissioner of the
State. Similarly, in each state, a deputy labour commissioner will be designated as the
authority under the Equal Remuneration Act. If any such violation is found by the
Authority, s/he has power to issue punishment to employers. The employer can be
punished with minimum three months’ imprisonment and a minimum fine of Rs.10,000/
- for violation of the Act, that is, for paying unequal remuneration, and/or not maintaining
proper registers, or not providing proper information when called for.
Though there have not been too many prosecutions under this Act, it is nevertheless
an important piece of legislation. As noted earlier, the difficulty in proving ‘same or
similar work’, when work done by women are classified separately and undervalued,
reduces effective prosecution and implementation of the Act.
Two Conventions of the International Labour Organisation (ILO) deal with the
issue of non-discrimination of women when it comes to employment. These are:
a) Equal Remuneration Convention (No.100), 1951
b) Discrimination (Employment and Occupation) Convention (No.111), 1958.
The Equal Remuneration Convention (No.100), 1951 aims at establishing
principles of equal remuneration for women and men for work of equal
value, without discrimination based on sex. It applies to basic wages or
salaries and to any additional emoluments, payable by the employer to the
worker and arising out of her or his employment, whether directly or
indirectly, in cash or in kind.
The Discrimination (Employment and Occupation) Convention
(No.111), 1958 deals with not only discrimination on the basis of sex, but
also on the basis of race, colour, religion, political opinion, national
extraction etc. Though it is not specific to women, it is nonetheless important,
since it recognises the access to employments and occupations (and
vocational training) as well as terms and conditions of employment.
Another major lacuna of the Act is that it does not address the issue of non recruitment
of women into specific sectors or establishment. For example, if a woman worker is
not employed in a particular factory, that discrimination will not be covered under this
Act as a violation. Neither does it address access to particular occupations, which
may historically be inaccessible to women.
5.4.2 The Maternity Benefit Act, 1961

The Maternity Benefit Act, as its name suggests, was enacted specifically to provide
92
women workers with maternity benefit and to ensure protection of pregnant women in Rights of Women Workers
their employment, both during and immediately after delivery. Factories, where workers
are entitled to benefits under the Employees State Insurance Act (ESI Act) are not
covered by this Act, since women workers working in factories and earning a certain
wage are entitled to maternity benefit under the ESI Act. However, if a woman in a
factory which is covered under the ESI Scheme is not covered by ESI due to her
salary exceeding the limit fixed for applicability of the ESI Act and Scheme, she will be
entitled to benefits under the Maternity Benefit Act.
Under the Act, the woman is entitled to 6 weeks of leave with full pay, both before
and after the delivery. An option of taking the entire 12 weeks after the delivery is also
available to the woman. In case of miscarriage, a women employee is entitled to 6
weeks off with full pay after the miscarriage. If the woman falls ill due to the pregnancy,
delivery or miscarriage, then she is also entitled to a month’s additional leave with full
pay. During pregnancy, the employer cannot give the woman heavy work such as
standing for long hours, lifting heavy loads etc. After delivery, the woman is entitled to
two nursing breaks during the workday, till the baby is 15 weeks old.
An employer cannot dismiss or discharge a woman employee on account of taking
maternity leave or during the period that she is on maternity leave. It is only if the
woman commits any gross misconduct, can the punishment of dismissal/discharge be
given to her, and that can done only after following due process of law. This means
that she must be issued a charge sheet following which an enquiry ought to be conducted
in a fair and proper manner.
If any employer violates the provisions of the Maternity Benefit Act, he is punishable
with imprisonment ranging between 3 months to one year and fine between rupees
two thousand to rupees five thousand.
The positive aspect of the Act is that a woman worker need not be married to avail the
benefits of the Act. One of the lacuna in the Act is that it makes no positive statement
about the right of a pregnant woman to apply and get a job. A number of pregnant
women are denied employment, only on the basis of their pregnancy.
The Maternity Protection Convention (No.103), 1952 of the ILO deals with
maternity benefits. The Convention applies to both industrial and non industrial
undertakings. The maternity leave stipulated is a minimum of 12 weeks, out
of which at least 6 have to be taken after the delivery of the child. Cash
benefit to take care of herself and the child is also to be made available. A
nursing mother is also entitled to nursing breaks which will be included in the
working hours. A woman on maternity leave cannot be dismissed.
We will now examine provisions in other labour laws, which are for the protection of
rights and/or benefits of women workers.
5.4.3 The Employees’ State Insurance Act, 1948

The Employees’ State Insurance Act, under which the Employee State Insurance
Scheme is drawn up, is applicable to all factories. However, the Government has
the power to make rules as to the wage limit up to which an employee can be a
beneficiary under the Act.
For women workers specifically, maternity benefit is recognised as one of the

benefits which are available to workers under this Act. They are similar to the
benefits available under the Maternity Benefit Act, in as much as women workers 93
Women and the Law being entitled to 12 weeks and the provision for light work. The general provision that
no worker shall be dismissed for availing of benefits under the ESI Act is also available
to women workers in the case of maternity benefits.
For a woman worker to avail of benefits under the ESI Act, the establishment ought to
be covered under the Act and the employer should have deducted amounts from the
wages paid to the workers and along with his share of the contribution, ought to have
deposited it with the ESI Corporation (ESIC). Many a times, despite deductions
from the wages of the workers, failure of the employer to deposit the required amount
with the ESIC, results in workers not being able to avail of the benefits. The penalties
and recourse available to workers, including women workers in such situations form
part of the ESI Act, which you have already studied in the Course BLE 002 under
‘Labour Laws’.
5.4.4 The Factories Act, 1948

Certain provisions in the Factories Act are meant only for women workers. These
include identifying certain activities for which women should not be employed,
prescribing working hours and certain welfare provisions like separate facilities.
Occupational health and safety of women workers is safeguarded by certain
provisions of the Factories Act.
The Factories Act mandates that in certain operations, women should not be
employed, for example, the cleaning, lubrication or adjustment of any part of
transmission machinery or a prime mover. The idea behind this is that the health
of women (and young persons) should not be compromised.
There are several ILO Conventions that are concerned with non exposure
of workers, specifically, pregnant women, nursing mothers and young
workers to hazardous chemicals. These include the Benzene Convention
(No.136), 1971, the Asbestos Convention (No.162), 1986, the Chemical
Convention (No.170), 1990 etc.
Section 66 (1) (b) of the Act also mandates that women should not be required to
work in the night shift, and never between 10 pm and 5 am. Usually, women
should only be required to work between 6 am and 7 pm and only for nine hours,
including an hour for lunch. It is important to note the wording in the legislations.
There is no prohibition on women to do night work. The Act only says that
women workers cannot be mandated to do night work. This would mean that if
a woman worker refused to do night work, she could not be penalised.
The Night Work Convention (No.171), 1990 of the ILO is aimed at regulation
of night work. Night work is defined as work performed for not less than 7
hours, which includes the period between midnight and 5 am. The Convention
mandates that alternative to night work should be made available to women
workers and that women workers should be exempted from night work for a
period of sixteen weeks, out of which at least eight weeks should be prior to the
expected date of delivery.
The Convention also states that measures for maternity protection should be taken.
The legislative ban on night work in factories has been held unconstitutional by various
High Courts. The High Court of Andhra Pradesh struck down Section 66 (1) (b) of
the Factories Act as unconstitutional. A single judge of the Madras High Court in R.
94
Rights of Women Workers
Vasantha v Union of India (2001(2) LLJ 843) ruled that Section 66(1) (b) of the
Factories Act was (i) a violation of the constitutionally guaranteed fundamental right to
equality enjoyed by women (ii) discriminatory to women on the sole ground of sex
and (iii) interfered with the fundamental right of the petitioners to carry out their
fundamental right to practice any profession or to carry on any occupation, trade or
business.
In declaring the ban on night work unconstitutional, the Madras High Court made
several provisions for safety and security of women and preservation of their dignity.
It recommended that the Government while making rules permitting employers to
employ women in nightshifts must ensure that employers:
prevent and deter any sexual harassment;
provide for a complaint mechanism, including a complaint committee headed by
women;
employ women only in batches, of not less than ten or not less than two thirds of
the total nightshifts’ strength;
provide separate work sheds, canteen facilities, all women transport facility,
additional paid holiday for menstruation period, medical facilities;
provide proper working conditions with proper lighting and adequate security
at the factory; and
ensures at least twelve consecutive hours of rest or gap between shifts.
In 2004, a Division Bench of the Kerala High Court in Leela v State of Kerala
(2004(3) LLJ 106) differed from the Madras High Court judgment and upheld
the constitutional validity of Section 66 (1) (b) of the Factories Act. The
jurisprudence on night work for women is in a state of flux and it continues to be
bitterly debated.
Activity 2
Reflect and write your arguments for and against the proposition: “The judicial
approach of expanding the scope of women’s employment by permitting night
work for women is in the right direction.”
..........................................................................................................................
..........................................................................................................................
..........................................................................................................................
As part of welfare provisions, the Act provides for separate washing facilities
and separate toilets for women workers. A Factory Inspector is appointed under
the Factories Act, who has powers to inspect the factory premises, examine records
as well as launch prosecutions in case violations are found. Any complaints
regarding violations of the provisions of the Factories Act can be made to the
Factory Inspector, who can take cognizance of such complaints and take action
on the basis of it. Various penalties are prescribed under the Factories Act for
non provision of facilities, and non maintenance of registers and records.
1) If a woman is paid less than a man for loading and unloading material,
stating that the man was capable of lifting more weight, can the Equal
95
Women and the Law Remuneration Act be used to get relief for the women worker?
...............................................................................................................
...............................................................................................................
...............................................................................................................
...............................................................................................................
2) What is the option available to the woman if the employer refuses maternity
leave?
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...............................................................................................................
...............................................................................................................
3) Can a woman be dismissed for refusing to work in the night shift?
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5.5 CHILDCARE FACILITIES

Since childcare facilities are available under a number of statutes, in this section we
will look at all the statutes together.
One of the common sights at construction sites is that of children playing around
the buildings under construction. In some cities, like Bombay, an NGO runs
mobile crèches at construction sites. These are run mostly at big construction
sites, and are meant for children of construction workers. The crèche has
trained help who can take care of children and basic education in terms of
reading, writing and arithmetic is taught at some places. This is one of the few
voluntary efforts which have helped poor working women.
Childcare facilities are not strictly for the benefit of only women workers. However,
given the patriarchal nature of our society, where the care of children is considered the
woman’s responsibility, this is usually cited as a right given by law to women workers.
Under childcare facilities, there is provision for crèche facilities, which includes trained
child care providers, and time off for feeding the child in case of lactating mothers.
Under the Factories Act, there is a provision for crèche facilities. A crèche ought to be
provided for and maintained in a factory where more than thirty women workers are
employed.
Apart from the Factories Act, the Plantations Labour Act, 1951, the Beedi and Cigar
Workers (Conditions of Employment) Act, 1966 and the Building and Other
Construction Workers (Regulation of Employment and Conditions of Service) Act,
96 1996 provide that crèche facilities should be made available.
The Plantations Labour Act provides that crèche facilities should be made available Rights of Women Workers
where there are more than fifty women workers, or where there are more than twenty
children of women workers. The Building and Other Construction Workers (Regulation
of Employment and Conditions of Service) Act provides for crèche when more than
fifty women workers are ordinarily employed. According to the classification of the
establishment, the Beedi and Cigar Workers (Conditions of Employment) Act provides
for crèche facilities where more than twenty, thirty and fifty women workers are
employed, depending on the class of establishment.
5.6 UNORGANISED WORKERS

Given that most women are employed in the unorganised sector, a legal framework
that regulates wages, working conditions and ensures basic social security would
enable working women to access their rights. However, presently very few laws
have been enacted to protect the rights of women in the unorganised sector. In
this section, we will look at how the absence of law affects various work situations
where women work. This is, of course, merely representative and it serves to
give us a better understanding of women workers and their need for a more
robust legal regulatory framework.
The first illustration is from an industry that is partly organised and workers do
home based work, such as beedi, agarbathi and even sub-contracted work from
the garment industry. In the second illustration, there is no regulation of
employment, even though there are continuous campaigns for the same; and in
the third we look at what is termed as ‘illegal’ work, though there is no legal
prohibition on it.
5.6.1 Home based Workers

Home based workers can be defined loosely as workers who work from their
own homes, doing work for an employer, either directly, or through contractors.
A number of examples can be given of such work. Apart from agarbathi and
beedi work, making papads and pickles, garment finishing work such as thread
cutting and trimming of garments etc are some of the work that is taken on ‘job
basis’ and carried out by women at home.
There are two types of home based workers: (a) Piece-rate workers are those
working for an employer or intermediary; and (b) Own-account workers are those
who are largely self-employed and do their own marketing. In other words, those
who do work that is home-based for the market as self-employed workers or as paid
workers, are own-account workers and those who do home-based paid work for
firms/businesses or their intermediaries, typically on a piece-rate ‘job work’ basis,
constitute piece-rate workers.
Own-account workers are generally in direct contact with the market and buy their
own raw material. They often do not have access to credit, and therefore, the cost per
unit of their product is higher, as they cannot buy large quantities of raw materials.
The piece-rate workers face a different set of problems. If we take the garment industry
as an example, we notice that local manufacturers regularly give out ‘job work’. These
chains go down a long way and in a lot of situations, there are women who do thread
cutting or trimming in their own homes.
97
Women and the Law Though, there are laws governing all the workers in the factories, some of whom may
be doing the same work as the home based workers, the home based workers have
absolutely no protection. There is no ‘employer’ since a contractor may bring garments
from one employer one day and another employer the next day. In some cases, more
than one contractor gets work done from the same set of women.
A woman may not be given work if she asks for more money; the ‘wages’ are much
lower than minimum wages; and the women end up working as much as 16 hours a
day so that they can earn more money. There is no social security in terms of ESI or
Provident Fund.
There are some positive aspects to home-based work. It gives women the flexibility
to combine work with domestic chores, and at times, better working conditions. On
the flip side, home based work is rarely accounted for as ‘work’, thus denying it the
support and protection of labour regulatory frameworks. Presently, there is no
comprehensive and effective legislation dealing with home based workers. The Beedi
and Cigar Workers (Conditions of Employment) Act, 1966 provides some degree of
protection to beedi workers.
5.6.2 Domestic Workers

A number of women work in households cooking, cleaning, taking care of children
etc. Some of them work full time but many work part time, in several houses.
Full time work usually means being on call almost 24 hours. This is obviously a
section of workers whose service conditions are not at all decided. The extent of
informality which governs this section of workers gets complicated also by the
interpersonal relationships that they have with their employers. It is not uncommon
to encounter physical as well as sexual abuse of women who work as domestic
workers.
There have been a number of attempts to organise domestic workers across the
country. The Delhi Domestic Workers Union, the Pune Molkarin Sanghatana,
Domestic workers Unions in Bangalore, and the Women Workers Unions, of
which domestic workers form a large part, in Chennai. In the last few years,
even Central Trade unions like the AITUC and CITU have begun to organise
domestic workers. Most of the campaigns have also revolved around asking for
a legal regime to regulate employment.
The importance of organising domestic workers cannot be overstated. As

mentioned above, domestic workers are one of the most exploited sections of
the working class. Several efforts have also been made at the state level for the
protection of domestic workers. Under the Minimum Wages Act, 1948, the States
of Karnataka, Kerala, Andhra Pradesh, Tamil Nadu, Bihar and Rajasthan have
set minimum wage rates for domestic work. 2 The minimum wage rates however,
are based on differing rationale.
Additionally, some States have set up tripartite welfare boards for domestic
workers to provide benefits and social security to registered workers. In 2007,
Tamil Nadu constituted the Tamil Nadu Domestic Welfare Board by including
domestic workers in the Tamil Nadu Manual Workers (Regulation of Employment
and Conditions of Work) Act, 1982. In Kerala, domestic workers are presently
members of the Kerala Artisan and Skilled Workers’ Welfare Fund.
98
More recently, the State of Maharashtra enacted the Maharashtra Domestic Rights of Women Workers
Workers Welfare Board Act, 2008. The Act provides for the setting up of District
Domestic Labour Welfare Board with a wide range of functions – these include
registration of workers as beneficiaries; distribution of benefits to registered
workers in the event of an accident, education finances for children, medical
assistance in case of ailments of the beneficiary or her dependants, maternity
benefits restricted to two children and funeral expenses in case of death of a
beneficiary.
5.6.3 Sex Workers

Before we get to the rights of women in sex work/prostitution, we should look at
the legal status of these women. Under the Immoral Traffic (Prevention) Act,
1956, the following are prohibited:
soliciting in public places,
living on the earnings of a woman doing sex work/ prostitution,
maintaining a house where prostitution is conducted etc.
However, ‘sex work’ or ‘prostitution’ itself is neither prohibited nor is it
punishable. Despite this, women in sex work/prostitution continue to be harassed
on various counts, especially by the police. It is in this context that
decriminalisation/legalisation of sex work/prostitution needs to be looked at.
The rights of women in prostitution/sex work is a debate that has become
increasingly polarised. Some organisations look at women in prostitution as
‘exploited’ women who need to be rescued. There are other organisations and
campaigns which believe in securing some rights for women in prostitution/sex
work, but believe that ultimately, prostitution is a form of exploitation of women
who are involved in it; therefore, society as a whole needs to work towards abolishing
it. Apart from these, there are others who believe that prostitution is a social evil and
the women who are involved in it are immoral, who therefore need not, or rather
should not have any rights.
The last few years have seen sex workers themselves getting collectivised. A few
examples are the Durbar Mahila Samanvay Committee (DMSC) in Kolkatta, Veshya
Anyay Mukti Parishad (VAMP) based in Sangli, Maharashtra and the Karnataka
Sex Workers Union (KSWU) in Karnataka. These collectives/unions have resulted in
sex workers/ women in prostitution speaking for themselves and demanding their
rights from the State. However, these collectives/ unions have different perspectives
of looking at sex work.
The DMSC and KSWU believe that sex work is work and that sex workers should
be treated as workers. Both of them support legalisation of sex work. The DMSC
wants a self regulatory board. This means that while they want sex work to be
recognised as work, they do not want the State to put any rules or regulatory
mechanisms in place. They want the regulatory processes to be handled by a
board which will consist of mostly sex workers themselves. The VAMP demands
2
Inclusion of domestic workers in the Schedule of the Minimum Wages Act, 1948 Karnataka
Government Notification No. KAE 15 LMW 04, 12 March 2004; Kerala Government
Notification of 23 May, 2006, G.O. (MS) No. 48/2005/LBR, and the Andhra Pradesh
Government Notification GO Ms. No. 119, Labour Employment, Training and Factories (Lab.
11), 10 December, 2007. 99
Women and the Law decriminalisation of sex work, but does not want legalisation. They do not look at sex
work/prostitution either as work or as business. They want to be left out of the purview
of law.
At present, certain amendments to the ITPA are pending, which seek to criminalise
the client. All sex workers’ collectives as well as some women’s groups and
human rights groups have opposed it on the ground that it will serve to drive sex
work/ prostitution underground, which will lead to more exploitation.
In conclusion it may be stated that the enactment or even the proper
implementation of laws will not be enough for women workers to exercise and
derive benefit of all the rights available to them. Making a workplace sensitive
to the needs of women is also as important. Though the laws created specifically
for women workers are not adequate in all situations, the fact that such laws
exist make it possible to fight discrimination and exploitation of women workers.
5.7 SUMMARY
Let us recapitulate a few important points discussed in this unit:
We looked at specific laws which have been enacted for ensuring the rights
of women workers.
We looked at childcare facilities that are available under a number of statutes.
Given that most women are employed in the unorganised sector, a legal
framework that regulates wages, working conditions and ensures basic social
security would enable working women to access their rights. However,
presently very few laws have been enacted to protect the rights of women in
the unorganised sector. We also reviewed how the lack of legislation affects
various work situations where women work, such as, home-based workers,
domestic workers and sex workers.
We also looked at a few Conventions of the International Labour Organisation
(ILO), and some of the core labour standards which operate as guidelines in
protecting the rights of women workers, even if they are not ratified by
India.

1) In an application to the authority appointed under the Equal Remuneration
Act for deciding claims, what are the facts that you would have to state in
the Application?
2) What can a woman employee do if she is dismissed while she is pregnant,
just prior to taking maternity leave?

1) That the employer has given more or difficult work to the man can be
challenged. However, it would be difficult to prove, in all instances, that the
woman was capable of lifting as much weight as the man.
100 2) The women can complain to the Inspector appointed under the Maternity
Benefit Act. She will also be advised to take leave and then challenge the action Rights of Women Workers
of the employer if he takes any disciplinary action against her.
3) No, the woman cannot be dismissed, since it is very clearly mandated that she
should not be required to work during the period 12 am to 5 am. However, if she
is dismissed, a simple application made to the Factory Inspector stating that the
provisions of Factories Act have been violated will not be sufficient; she will have
to challenge her termination separately before the Labour Court.
Terminal Questions
1) The kind of work given to the woman; that the men do similar work; the difference
in the wages paid to them; and details of all other discrimination such as in
recruitment, posting, or promotion will have to be stated. The important thing to
note here is that statements have to be made saying that the man and woman do
similar work as that is the primary principle on which the Equal Remuneration
Act is based.
2) She can file a complaint with the Inspector appointed under the Maternity Benefit
Act. In the complaint, it should be clearly stated that the employer had knowledge
of her pregnancy; that the employer dismissed her since he did not want to grant
her leave; and that she is being denied her rights under the law.

Flavia Agnes, Law and Gender Equality: The Politics of Women’s Rights in India
(New Delhi: Oxford University Press, 2000).
Government of India, Report of the National Commission on Labour (1969).
Government of India, Report of the Committee on Status of Women in India

(1975).
Government of India, National Commission for Enterprises in the Unorganised

sector, Report on Conditions of Work and Promotion of Livelihoods in the
Unorganised Sector (2007).
Surinder Mendiratta, Handbook of Law, Women, and Employment (New Delhi:

Oxford University Press, 2009).
101
Women and the Law
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Indira Gandhi

National Open University BLE-003

Prof. M. R. K. Prasad Ms. Gurmeet Kaur

Block Preparation Team

Unit Writers : Unit 1 : Ms. Chitra Balakrishnan

Consultant : Ms. Jaishree Suryanarayanan

A significant proportion of women’s experience of violence is situated in the site

Despite the growing population of women workers, their working conditions

1.3.1 Gender Stereotyping of Roles and Behaviour

Similarly, women are naturally expected to be care-givers, although both men

1.3.3 Productive and Reproductive Work

1.4.1 Convention on the Elimination of All Forms of

Consisting of a Preamble and 30 Articles, CEDAW defines what constitutes

1.4.2 Public-private Divide in Women’s Lives

1.4.3 Gender Equality under the Constitution

1.6 TERMINAL QUESTIONS

1.9 REFERENCES AND SUGGESTED READINGS

The States Parties to the present Convention,

Considering the international conventions concluded under the auspices of the

Noting also the resolutions, declarations and recommendations adopted by the

Concerned, however, that despite these various instruments extensive

Recalling that discrimination against women violates the principles of equality

Emphasising that the eradication of apartheid, all forms of racism, racial

Determined to implement the principles set forth in the Declaration on the

Have agreed on the following:

c) To encourage the provision of the necessary supporting social services

d) To provide special protection to women during pregnancy in types of

IN WITNESS WHEREOF the undersigned, duly authorised, have signed the

2.3 VIOLENCE AGAINST WOMEN

Let us briefly review some forms of violence against women. 4

Simply put, violence against women is an aspect of power and inequalities of

2.4.1 Defining Rape

2.5.1 Dowry as Violence against Women

Moreover, such deaths were either dubbed as accidents or suicides. Therefore,

2.5.2 Amendment to Dowry Prohibition Act

What is the procedure for investigation in dowry death cases? *

2.5.3 Effect of the Amendments

2.5.4 Socio-economic Factors in Dowry Related Violence

This inequality is accentuated by the unequal and sexual division of domestic

2.7 TERMINAL QUESTIONS

2.8 ANSWERS AND HINTS

CEDAW : Convention on the Elimination of All Forms of

2.10 REFERENCES AND SUGGESTED READINGS

Flavia Agnes, ‘Protecting Women against Violence? Review of a Decade of

Madhu Kishwar, ‘Dowry Calculations: Daughter’s Rights in her Parental Family’,

Facilitator’s Guide for Community Legal Education on Women’s Rights in India,

Nivedita Menon, Sexual Violence: Escaping the Body in Recovering Subversion

3.4 DOMESTIC VIOLENCE AND THE CRIMINAL

In addition, there are practical societal problems for women complaining of

3.5 PROTECTION OF WOMEN FROM

A Comprehensive Definition of Domestic Violence: As described above, the

Domestic Relationship as opposed to matrimonial relationship: Recognising

Shared household as opposed to matrimonial household: With the

Retrospective Application of the Act

3.6 WHO CAN ACCESS THE LAW

Who can use the law?

A woman is in a domestic relationship with a man even if she is not married to

What is a domestic relationship?

This takes us to the definition of a ‘shared household’.