Vishaka & Ors vs State Of Rajasthan & Ors
Writ petition no: Writ petn. (Criminal) Nos. 666-70 of 1992
Date of Judgment: 13-08-1997

Vishaka vs State of Rajasthan is a landmark judgement in Indian jurisprudence, particularly in the area of workplace sexual harassment. This case laid down guidelines and norms to be followed by employers in India to prevent and address sexual harassment in the workplace. Here are the key details.

Facts

The case originated from a public interest litigation (PIL) filed by several women’s rights organizations in India after the brutal gang rape of a social worker named Bhanwari Devi in Rajasthan.

Bhanwari Devi was a government employee who had been working to prevent child marriages. She was gang-raped by influential men in her village as a punishment for her efforts to stop child marriage.

The case raised important questions about the absence of legal mechanisms to address sexual harassment in the workplace and the need for guidelines to prevent and redress such incidents.

Issues

The primary issue before the Supreme Court of India in the case of Vishaka vs State of Rajasthan was:

1. Whether sexual harassment of women at workplaces amounts to a violation of their Fundamental Rights under the Indian Constitution.
2. Whether there was a need for guidelines and norms to prevent and address sexual harassment in the workplace.

Petitioner’s Contention

The Vishaka group, which was made up of a number of women’s rights activists, NGOs, and other social activists, filed a writ petition seeking the writ of mandamus. They argued that indecent acts of sexual harassment of women at work violate the Fundamental Rights guaranteed by Articles 14, 15, 19(1)(g), and 21 of the Indian Constitution.

Given the absence of specific legislation, the petitioners argued that the Supreme Court should issue guidelines to provide interim relief until a comprehensive legal framework was put in place. These guidelines would serve as a basis for employers to establish mechanisms to prevent and address sexual harassment in the workplace.

Respondent’s Contention

The respondents have argued that there was no specific legislation in place at the time that directly addressed sexual harassment in the workplace. They might have contended that the absence of such legislation meant that there were no legal grounds for the court to intervene.

Judgement

In its landmark judgement, the Supreme Court of India held that sexual harassment in the workplace amounts to a violation of the Fundamental Rights of women under Articles 14, 15, and 21 of the Indian Constitution.

So, the court laid down important guidelines to address and prevent sexual harassment in the workplace in India. These guidelines, commonly known as the “Vishaka Guidelines,” were issued by the Supreme Court of India in the absence of specific legislation on the subject. They served as the foundation for the eventual enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.

Here are the key guidelines from the Vishaka case:

1. The Vishaka Guidelines defined sexual harassment at the workplace as any unwelcome act or behaviour, whether directly or by implication, including physical contact, advances, demand, request for sexual favours, making sexually coloured remarks, or showing pornography. It emphasized that any act that interferes with a woman’s work or creates an intimidating, hostile, or offensive work environment is considered sexual harassment.
2. Employers or persons in charge of workplaces were made responsible for preventing and addressing sexual harassment. They were required to take proactive measures to prevent sexual harassment and provide a safe working environment for employees.
3. Employers were instructed to set up Internal Complaints Committees (ICC) at each workplace with more than ten employees. The ICC was tasked with receiving and redressing complaints of sexual harassment. The committee should be composed of at least one external member knowledgeable about the issue and should be headed by a woman.
4. The guidelines outlined a detailed procedure for filing and addressing complaints. It stressed the importance of maintaining confidentiality during the inquiry.
5. The guidelines prohibited any retaliation or adverse actions against the complainant or witnesses. However, those who made false or malicious complaints could face disciplinary action.
6. Employers were required to conduct awareness programs and training for employees to educate them about what constitutes sexual harassment, how to prevent it, and the procedure for filing complaints.
7. Employers had an obligation to submit reports on the number of complaints received and action taken to appropriate authorities.
8. The guidelines did not specify penalties but left it to the discretion of the employer to take disciplinary action against the harasser based on the seriousness of the offence.

It’s important to note that while the Vishaka Guidelines provided a framework for addressing workplace sexual harassment, they were not a substitute for comprehensive legislation. Subsequently, the Indian government enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, which expanded on and formalized many of these guidelines, providing a more robust legal framework to address and prevent sexual harassment at the workplace in India.

Vishaka vs State of Rajasthan – Case Explained
Sravani Ravinuthala

Medical Termination of Pregnancy Act

An Act to provide for the termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto. Be it enacted by Parliament in the Twenty-second Year of the Republic of India as follows-

1. Short title, extent and commencement.

(1) This Act may be called the Medical Termination of Pregnancy Act, 1971.

(2) It extends to the whole of India. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule. (w.e.f. 31-10-2019)

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.

In this Act, unless the context otherwise requires,-
(a) “guardian” means a person having the care of the person of a minor or a mentally ill person;

(aa) “Medical Board” means the Medical Board constituted under sub-section (2C) of section 3 of the Act;

(b) “mentally ill person” means a person who is in need of treatment by reason of any mental disorder other than mental retardation;

(c) “minor” means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875), is to be deemed not to have attained his majority;

(d) “registered medical practitioner” means a medical practitioner who possesses any recognised medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956), whose name has been entered in a State Medical Register and who has such experience or training in gynaecology and obstetrics as may be prescribed by rules made under this Act.

(e) “termination of pregnancy” means a procedure to terminate a pregnancy by using medical or surgical methods.

3. When pregnancies may be terminated by registered medical practitioners.

(1) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), a registered medical practitioner shall not be guilty of any offence under that Code or under any other law for the time being in force, if any pregnancy is terminated by him in accordance with the provisions of this Act.

(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twenty weeks, if such medical practitioner is, or
(b) where the length of the pregnancy exceeds twenty weeks but does not exceed twenty-four weeks in case of such category of woman as may be prescribed by rules made under this Act, if not less than two registered medical practitioners are,

of the opinion, formed in good faith, that-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or
(ii) there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Explanation 1-
For the purposes of clause (a), where any pregnancy occurs as a result of failure of any device or method used by any woman or her partner for the purpose of limiting the number of children or preventing pregnancy, the anguish caused by such pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2-
For the purposes of clauses (a) and (b), where any pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by the pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

(2A) The norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age shall be such as may be prescribed by rules made under this Act.

(2B) The provisions of sub-section (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.

(2C) Every State Government or Union territory, as the case may be, shall, by notification in the Official Gazette, constitute a Board to be called a Medical Board for the purposes of this Act to exercise such powers and functions as may be prescribed by rules made under this Act.

(2D) The Medical Board shall consist of the following, namely:-

(a) a Gynaecologist;
(b) a Paediatrician;
(c) a Radiologist or Sonologist; and
(d) such other number of members as may be notified in the Official Gazette by the State Government or Union territory, as the case may be.

(3) In determining whether the continuance of a pregnancy would involve such risk of injury to the health as is mentioned in sub-section (2), account may be taken of the pregnant woman’s actual or reasonably foreseeable environment.

(4) (a) No pregnancy of a woman, who has not attained the age of eighteen years, or, who, having attained the age of eighteen years, is a mentally ill person, shall be terminated except with the consent in writing of her guardian.

(b) Save as otherwise provided in clause (a), no pregnancy shall be terminated except with the consent of the pregnant woman.

4. Place where pregnancy may be terminated.

No termination of pregnancy shall be made in accordance with this Act at any place other than-

(a) a hospital established or maintained by Government, or
(b) a place for the time being approved for the purpose of this Act by Government or a District Level Committee constituted by that Government with the Chief Medical Officer or District Health Officer as the Chairperson of the said Committee:

Provided that the District Level Committee shall consist of not less than three and not more than five members including the Chairperson, as the Government may specify from time to time.

5. Sections 3 and 4 when not to apply.

(1) The provisions of section 4, and so much of the provisions of sub-section (2) of section 3 as relate to the length of the pregnancy and the opinion of not less than two registered medical practitioners, shall not apply to the termination of a pregnancy by a registered medical practitioner in a case where he is of opinion, formed in good faith, that the termination of such pregnancy is immediately necessary to save the life of the pregnant woman.

(2) Notwithstanding anything contained in the Indian Penal Code (45 of 1860), the termination of pregnancy by a person who is not a registered medical practitioner shall be an offence punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years under that Code, and that Code shall, to this extent, stand modified.

(3) Whoever terminates any pregnancy in a place other than that mentioned in section 4, shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

(4) Any person being owner of a place which is not approved under clause (b) of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than two years but which may extend to seven years.

Explanation 1-
For the purposes of this section, the expression “owner” in relation to a place means any person who is the administrative head or otherwise responsible for the working or maintenance of a hospital or place, by whatever name called, where the pregnancy may be terminated under this Act.

Explanation 2-
For the purposes of this section, so much of the provisions of clause (d) of section 2 as relate to the possession, by registered medical practitioner, of experience or training in gynaecology and obstetrics shall not apply.

5A. Protection of privacy of a woman.

(1) No registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force.

(2) Whoever contravenes the provisions of sub-section (1) shall be punishable with imprisonment which may extend to one year, or with fine, or with both.”.

6. Power to make rules.

(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the experience or training, or both, which a registered medical practitioner shall have if he intends to terminate any pregnancy under this Act; and
(aa) the category of woman under clause (b) of sub-section (2) of section 3;
(ab) the norms for the registered medical practitioner whose opinion is required for termination of pregnancy at different gestational age under sub-section (2A) of section 3;
(ac) the powers and functions of the Medical Board under sub-section (2C) of section 3.
(b) such other matters as are required to be or may be, provided by rules made under this Act.

(3) Every rule made by the Central Government under this Act shall be laid, as soon as may be after it is made, before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Medical Termination of Pregnancy Rules, 2003 PDF (Courtesy of India Code)

7. Power to make regulations.

(1) The State Government may, by regulations,-

(a) require any such opinion as is referred to in sub-section (2) of section 3 to be certified by a registered medical practitioner or practitioners concerned, in such form and at such time as may be specified in such regulations, and the preservation or disposal of such certificates;
(b) require any registered medical practitioner, who terminates a pregnancy, to give intimation of such termination and such other information relating to the termination as may be specified in such regulations;
(c) prohibit the disclosure, except to such persons and for such purposes as may be specified in such regulations, of intimations given or information furnished in pursuance of such regulations.

(2) The intimation given and the information furnished in pursuance of regulations made by virtue of clause (b) of sub-section (1) shall be given or furnished, as the case may be, to the Chief Medical Officer of the State.

(2A) Every regulation made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.

(3) Any person who wilfully contravenes or wilfully fails to comply with the requirements of any regulation made under sub-section (1) shall be liable to be punished with fine which may extend to one thousand rupees.

Medical Termination of Pregnancy Regulations, 2003 PDF (Courtesy of India Code)

8. Protection of action taken in good faith.

No suit or other legal proceeding shall lie against any registered medical practitioner for any damage caused or likely to be caused by anything which is in good faith done or intended to be done under this Act.

Medical Termination of Pregnancy Act, 1971
WritingLaw

The classification of crimes into different categories is generally based according to their gravity or atrocity.

In English law, they have been placed under two broad categories:

1. Felonies
2. Misdemeanours

Felonies refer to more serious offences, whereas misdemeanours refer to less serious offences.

However, in Indian law, that is under the Indian Penal Code, 1860, various offences are classified into seven broad categories:

Seven Categories of Crime as Per IPC

Let us discuss the above categories of crime one by one. To read more about them, use the blue internal links. When you click a link, it will automatically open in a new browser tab.

1. Offences Against the Human Body

Whoever causes any harm or injury to the human body comes under this category. Chapter 16 of the Indian Penal Code contains the offences against the human body, which are considered heinous crimes. They are discussed in sections 299 to 377 of IPC. These include murder, attempt to murder, culpable homicide, dowry death, kidnapping and abduction, etc.

Note: The Indian Penal Code does not include offences against animals, but it covers all the aspects of offences that affect the human body.

2. Offences Against Property

Offences committed against any property, whether movable or immovable, comes under chapter 17 of the Indian Penal Code, which contains the offences against property. They are described from sections 378 to 462 of IPC. These offences include dacoity, preparation for dacoity, robbery, preparation for robbery, extortion, theft, mischief, housebreaking, etc.

3. Offences Relating to Public Tranquillity

In simple terms, whoever disturbs the peace of society, commits the offence relating to public tranquillity. (Tranquillity means free from disturbance; calm.) Offences against public peace are mentioned in chapter 8 of the Indian Penal Code from sections 141 to 160. These include unlawful assembly, rioting, affray, etc.

4. Offences Relating to Document

Chapter 18 of the Indian Penal Code mentions offences relating to documents and property marks. They are covered from sections 463 to 489E of IPC. These include forgery, falsification of accounts, using forged documents or property marks, counterfeiting currency notes or banknotes, etc.

5. Offences Against Women and Children

The Indian Penal Code deals with various offences against women and children. They are covered in different chapters and scattered throughout the IPC. Against women, these offences include grievous hurt by acid attack (section 326A, 326B), attacking modesty of women (section 354), rape (section 376), voyeurism (section 354C), stalking (section 354D), etc. Against children, it includes acts done with causing the death of a quick unborn child (section 316), abandoning a child (section 317), kidnapping (sections 359 to 361), maiming (section 363A), etc.

6. Offences Against the State and Terrorism

The offences that are planned against the Government of India are established by law and considered offences against the state. Chapter 6 of the Indian Penal Code, from sections 121 to 130, deals with crime against the state. These include waging war, sedition, etc.

7. Offences Relating to Elections

Elections are essential to ensure the smooth running of a state, and thus they must be carried out in a fair manner. Chapter 9A of the Indian Penal Code deals with the offences relating to elections. The main aim is to conduct free and fair elections so that nobody is influenced while exercising their legal rights. They are covered under sections 171A to 171I of IPC. These include bribery, personation at elections, undue influence at elections, etc.

7 Categories of Crime as Per the Indian Penal Code
Ankita Soni

The Indian Penal Code, 1860, provides for several offences against the human body. Chapter 16, from sections 299 to 377 of IPC, discusses the offences against the human body. One of such offences is assault.

Assault is one of the most common offences that occur in day to day life. The offence of assault is defined in section 351 of IPC, and section 352 of IPC prescribes the punishment for the offence of assault.

In this Indian Penal Code law note, we explain the meaning of assault with examples, essentials, case laws, and punishment.

Meaning of Assault

Section 351 of IPC defines assault. It provides that when a person makes any gesture (sign or indication), or any preparation with the intention, or is aware that such gesture or preparation will cause any other person in fear; and that the person who makes such a gesture or preparation is about to use criminal force (means intentional use of force to create annoyance, fear or injury) to that person; in such a case, that person commits the offence of assault.

Explanation: ‘Only words’ do not amount to assault unless such words are accompanied by such gestures or preparation.

Let us understand assault with the help of a few examples.

Examples of Assault

Example 1: Ankush shakes his fist at Rohan with the intention of causing Rohan to believe that Ankush is about to strike Rohan. Ankush has committed an assault.

Example 2: Rohit begins to unloose the muzzle of a wild dog, intending or knowing it to be likely that he may cause Sanjay to believe that Rohit is about to cause the dog to attack Sanjay. Rohit has committed an assault on Sanjay.

Example 3: Nikhil takes a stick, saying to Pankaj, “I will give you a beating”. Though the words used by Nikhil could in no case amount to an assault, and though the mere gesture, by reason of not being accompanied by any other circumstances, might not amount to an assault. But, the gesture explained by the words may amount to an assault.

Essentials of Assault

These are the essentials of the offence of assault:

1. Any gestures should be given, or any preparation should be made by one person in the presence of another.
2. Such gestures or preparation should be intended or known to be likely to cause any person to be apprehended.
3. Such apprehension is of such a nature that the person is about to use criminal force on another person.

Apprehension means understanding, anxiety or fear that something bad or unpleasant will happen.

Case Laws Related to Assault

Here are three important case laws related to assault.

Muneshwar Bux Singh vs State Through Raghunandan Prasad (1955): In this case, the court held that a person shall not be held guilty of assault if his gestures or preparation do not cause apprehension of harm to another person.

AC Kama vs HF Morgan (1864): In this case, the court held that ‘only words’ cannot be considered an assault if such words clearly show that there was no intention to use criminal force.

R vs St George (1840): In this case, the court held that if an unloaded pistol is shown from a reasonable distance, it may amount to an assault.

Punishment for Assault

Punishment for assault is provided in section 352 of the Indian Penal Code. Whoever commits the offence of assault under section 351 of IPC shall be punished under section 352 of IPC, with the imprisonment of either description for a term that may extend to 3 months, or with fine that may extend rupees 500, or both.

Exception: As a general rule, any offence committed under grave and sudden provocation is a defence under IPC. However, assault made under grave and sudden provocation is not a defence. Thus, whoever commits assault out of grave and sudden provocation will be liable for the same punishment as generally provided for the offence.

Read Next:
1. What Is Culpable Homicide as Per Section 299 of IPC
2. What Is Kidnapping and Abduction Under IPC

What Is Assault in IPC – With Essentials, Case Laws, and Punishment
Ankita Soni

Dowry Prohibition Act, 1961

(Act number 28 of 1961)

An Act to prohibit the giving or taking of dowry. Be it enacted by Parliament in the Twelfth Year of the Republic of India as follows:-

1. Short title, extent and commencement.

(1) This Act may be called the Dowry Prohibition Act, 1961.

(2) It extends to the whole of India. The words “except the State of Jammu and Kashmir” omitted by Act 34 of 2019, s. 95 and the Fifth Schedule (w.e.f. 31-10-2019).

(3) It shall come into force on such date’ as the Central Government may, by notification in the Official Gazette, appoint.

2. Definition of “dowry”.

In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I- Omitted by Act 63 of 1984, sec 2(b) (w.e.f 2-10-1985)

Explanation II- The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code. (45 of 1860.)

STATE AMENDMENT

Haryana
For section 2, substitute the following section, namely:-
2. Definitions-  In this Act, unless the context requires,-
(1) “dowry” means any property or valuable security given or agreed to be given either directly or indirectly:-
(a) by one party to a marriage to the other; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person,
at or before the marriage as consideration for the marriage of the said parties, but does not include dower or mahr in case of persons to whom the Muslim Personal Law (Shariat) applies.

Explanation I-
For the removal of doubts it is hereby declared that any presents made at the time of marriage of either party to the marriage in the form of cash, ornaments, clothes or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.

Explanation II-
The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 1860). or indirectly at
“Marriage expenses” shall include expenses incurred directly or indirectly at or before the marriage on,
(a) Thakka, Sagai, Tikka, sagun and milni ceremonies;
(b) The gifts made by one party to a marriage to the other party to the marriage or by the parents, grand-parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof;
(c) illumination, food and the arrangements for serving food to the members of the marriage party and other expenses incidental thereto.

Explanation-
For the removal of doubts it is hereby declared that any gifts made by a person other than those specified in sub-clause(b), at the time of marriage to either party to the marriage shall not be deemed to be marriage expenses.

COMMENTS
(i) The definition of “dowry” given in section 2 of the Act would show that the “any is defined comprehensively to include properties of all sorts as it takes within its fol property or valuable security” given or agreed to be given in connection with marriage either directly or indirectly:
Bachni Devi v. State of Haryana, AIR 1098: (2011)4 JT 2011 (2) 2 SCALE 265.

(ii) Dowry’ means any property or valuable security given or agreed to be given either directly or indirectly by one party another, by parents of either party to each other or any other person, at, before or at any time after the marriage and connection with the marriage of the said parties but does not include dower or mahr under the Muslim Personal Law;
Ashok Kumar v. State of Haryana, AIR 2010 SC 2839: JT 2010 (7) SC 460: (2010) 7 SCALE 30

(iii) Payments which are customary payments, e.g, given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered by the expression dowry;
Ram Singh v. State of Haryana, 2008 (4) SCC 70: 2008 (2) SCR 216.

(iv) “Dowry” in the sense of the expression contemplated by Dowry Act is a demand for property of valuable security having an inextricable nexus with marriage, that is, it is a consideration from the side of the bride’s parents or relatives to the groom or his parents and/or guardian for the agreement to wed the bride-to-be. But where the demand for property or valuable security has with the no connection with the consideration for the marriage, it will not amount to a demand  for dowry;
Arjun Dhondiba Kamble v. State of Maharashtra, 1995 AIHC 273.

(v) The definition of dowry is wide enough to include all properties, valuable securities, etc, given or agreed to be given directly or indirectly;
Vemuri Venkateswara Rao v. State of Andhra Pradesh, 1992

(vi) While dowry signifies presents given in connection with marriage to the bridal couple as well as others, Stridhan in confined to property given to or meant for the bride;
Hakam Singh v. State of Punjab, 1990

(vii) Dowry means, any property given or agreed to be given by the parents of a party to the marriage at the time of the marriage or before marriage or at any time the marriage in connection with the marriage. So, where the husband had demanded a sum of Rs. 50,000 some days after the marriage from his father-in-law and on not being given became angry, tortured the wife and threatened to go for another marriage, it was held that the amount was being demanded in connection with the marriage and it was a demand for dowry though it was demanded after the marriage;
Y.K. Bansal v. Anju, 1989 All LJ 914.

(viii) The furnishing of a list of ornaments and other household articles such as refrigerator, furniture, electrical appliances, etc., at the time of the settlement of the marriage amounts to demand of dowry within the meaning of section 2 of the Dowry Prohibition Act, 1961;
Madhu Sudan Malhotra v. K.C. Bhandari, 1988 BLUR 360 (SC).

(ix) A sum of money paid by a Mohemmadan in connection with his daughter’s marriage to prospective bridegroom for the purchase of a piece of land in the joint name of his daughter and would-be son-in-law is not ‘dowry’ within the meaning of the Act;
Kunju Moideen v. Syed Mohamed, AIR 1986 Ker 48.

(x) Where the demand was made after the marriage for the purchase of a car, it was held that it did not fall within the definition of dowry;
Nirdosh Kumar v. Padma Rani, 1984 (2) Rec Cr R 239. 

(xi) Where the demand was made at the time when marriage ceremony was in progress and was repeated after the marriage, it was held that it fell within the definition of dowry;
L.V. Jadhav v. Shankar Rao, 1983

(xii) Definition of ‘dowry’ is not restricted to agreement or demand for payment of dowry before and at the marriage but also includes demands made subsequent to marriage;
State of Andhra Pradesh v. Raj Gopal AIR  2004 SCW 1566.

3. Penalty for giving or taking dowry.

(1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than five years and with fine which shall not be less than fifteen thousand rupees, or the amount of the value of such dowry, whichever is more.
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.

(2) Nothing in sub-section (1) shall apply to, or in relation to,-
(a) presents which are given at the time of a marriage to the bride (without any demand having been made in that behalf):
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act;
(b) presents which are given at the time of a marriage to the bridegroom (without any demand having been made in that behalf):
Provided that such presents and entered in a list maintained in accordance with the rules made under this Act.
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 customary nature and the value thereof is not excessive having regard to the financial status of the person by home or on whose behalf such presents are given.

STATE AMENDMENTS

Bihar
For section 3, substitute the following section, namely:
3. Penalty for giving or taking dowry- lf any person after the commencement of this Act, gives takes or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to six months and with fine which may extend to five thousand rupees.
[Vide Bihar Act 4 of 1976, sec. 2 (w.e.f. 20-1-1976)]

Haryana
For section 3, substitute the following section, namely-
3. Bar of certain acts No person shall:-
(a) give or take or abet the giving or taking of dowry;
(b) demand, directly or indirectly from the parents or guardians of a bride or bridegroom, as the case may be, any dowry
(c) incur marriage expenses the aggregate value thereof exceeds five thousand rupees;
(d) display any gifts made at or before the marriage in the form of cash, ornaments, clothes or other articles.
(e) take or carry in excess of-
(i) twenty-five members of the marriage party; and
(ii) eleven members of the band;
(f) deny conjugal rights to his wife on the ground that dowry has not been given or the dowry given is insufficient.
[Vide Haryana Act 38 of 1976, sec. 2 (w.e.f. 11-8-1976).]

Himachal Pradesh
For section 3, substitute the following section, namely-
3. Penalty for giving or taking dowery- If any person gives or or abets the giving or taking of dowry, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.
[vide Himachal Pradesh Act 25 of 1976, sec. 2 (w.e.f. 24-6-1976)]

COMMENTS
(i) Section 3 does not contravene articles 14, 19, 21 and 22 of the Constitution and therefore this section is not ultra vires of the said articles;
Indrawati v. union of India, I (1991) DMC 117 (All). 

(ii) The offence is founded in the relationship of the property demanded as abettor with the nature of demand. It should not bear a mere connection with marriage:
Madan Lal v. Amar Nath, (1984) 2 Rec Cr 581.

(iii) Abetment is a preparatory act and connotes active complicity on the part of the abettor at a point of time prior to the actual commission of the offence;
Muthummal v Maruthal, 1981 Cr LJ 833 (Mad).

4. Penalty for demanding dowry.

If any person, after the commencement of this Act, demands, directly or indirectly, from the parents, relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to 2 years and with fine which may extend to Rs.10,000.
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.

STATE AMENDMENTS

Himachal Pradesh
After section 4, insert the following sections-

4A. Bar of certain acts- Any person who-

(i) displays any present made at the time of marriage in the form of cash, ornaments, clothes or other articles, or

(ii) gives in the form of “Shagun” at the time of “tahaka”, betrothal or Tikka” any thing the value of which exceeds eleven rupees; or

(iii) gives to the parerts or any other relation to a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage;

shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees, or with both.

4B. Penalty for depriving any party of the rights and privileges of marriage-

(1) If after the marriage any party to the marriage with or without assistance of any other person deprives the other party of the rights and privileges of marriage or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which may extend to one year and with fine which may extend to five thousand rupees.

(2) The provision of this section shall be in addition to and not in derogation of any provision or the subject contained in any other law for the time being in force.

[Vide Himachal Pradesh Act 25 of 1976, sec. 4 (w.e.f. 24-6-1976).]

Punjab
After section 4, insert the following sections, namely-

4A. Bar of certain Acts- Any person who-

(i) display any presents made at the time of such marriage in the form of cash, ornaments, clothes or other articles; or

(ii) takes in a marriage party more than twenty- five persons exclusive of minors and the members of the band; or

(iii) gives in the form of sagun at the time of thaka, betrothal or marriage anything the value of which exceeds eleven rupees; or

(iv) gives to the parents or any other relation of a party to the marriage anything on the occasion of “milni” or any other ceremony performed in relation to betrothal or marriage; or

(v) serves to the marriage party more than two principal meals,

Shall be punishable with imprisonment for a term which may extend to six months or with fine which may extend to five thousand rupees or with both.

Explanation- Here “principal meal” means lunch or dinner.

4B. Penalty for depriving any party of rights and privileges of marriage-

Any Party to the marriage who after marriage, deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party, for non-payment of dowry, and any person who assists such party in the commission of such offence, shall be punishable with imprisonment for a term which may extend to one year and fine which may extend to Rs.5000.
[Vide Punjab Act 26 of 1976, sec. 4 (w.e.f, 20-5-1976).]

West Bengal
After section 4, insert the following section, namely:-
4A. Penalty for depriving any party of the rights and privileges of marriage-
(1) if after the marriage, any party to the marriage with or without assistance of his parents or guardians deprives the other party of the rights and privileges of marriage, or tortures or refuses to maintain the said other party for non-payment of dowry before, during or after marriage, he shall be punishable with imprisonment which shall not be less than three months, but may extend to one year or with fine which shall not be less than Rs.2000, but may extend to Rs.5000 or with both.

(2) The provisions section be in addition to, and not in derogation of any provisions on the subject contained in any other law for the time being in force.

COMMENTS
(i) Mere demand for “dowry” before marriage, at the time of marriage or any time after the marriage is an offence;
Bachni Devi v. State of Haryana, AIR 2011

(ii) The offence of demanding dowry stood committed even before the marriage was performed and also when the demand was repeated again and again after the performance of marriage in respect of the same items of dowry;
Harbans Singh v. Smt Gurcharan Kaur alias Sharan Kaur, 1993

(iii) The deceased had before being set on fire by her in-laws written a letter to her father that she was being ill-treated, harassed and threatened of dire consequences for non-satisfaction of demand of dowry. Thereby proving that an offence of demanding dowry under section 4 had been committed;
Bhoora Singh v. State of uttar Pradesh, 1993

(iv) There had been no agreement between either parties to the marriage nor their relations to give any property or valuable security to the other party at or before or after the marriage. Held that the demand of TV, refrigerator, gas connection, cash of Rs. 50,000 and 15 tolas of gold will not amount to demand of dowry but demand of valuable security and the said offence does not attract section 4 of the Dowry Prohibition Act;
Shankar Prasad Shaw v. State, 1992

(v) Furnishing of a list of ornaments and other household articles at the time of settlement of marriage amounts to demand of dowry and accused are liable to be convicted under section 4;
Raksha Devi v. Aruna Devi, (1991)

(vi) Section 4 of Dowry Prohibition Act is not ultra vires nor does it contravene articles 14, 19, 21, 22 of the Constitution;
Indrawati versus Union of India, 1991

4A. Ban On Advertisement.

If any person,-

(a) offers, through any advertisement in any newspaper, periodical, journal or through any other media, any share in his property or if any money or both as a share in any business or other interest as consideration for the marriage of his son or daughter or any other relative.
(b) prints or publishes or circulates any advertisement referred to in clause (a),

he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to five years, or with fine which may extend to fifteen thousand rupees:
Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than six months.

5. Agreement for giving or taking dowry to be void.

Any agreement for the giving or taking of dowry shall be void.

6. Dowry to be for the benefit of the wife or her heirs.

(1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman-
(a) if the dowry was received before marriage, within three months after the date of marriage; or
(b) if the dowry was received at the time of or after the marriage within three months after the date of its receipt; or
(c) if the dowry was received when the woman was a minor, within three months after she has attained the age of eighteen years,
and pending such transfer, shall hold it in trust for the benefit of the woman.

(2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor or as required by sub-section (3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both.

(3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being:
Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall,-
(a) if she has no children, be transferred to her parents, or
(b) if she had children, be transferred to such children and pending such transfer, be held in trust for such children.

(3A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) or sub-section (3) has not, before his conviction under that sub-section, transferred such property to the woman entitled thereto or, as the case may be, her heirs, parents or children, the Court shall, in addition to awarding punishment under that sub-section, direct, by order in writing, that such person shall transfer the property to such woman or, as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such Court and paid to such woman or, as the case may be, her heirs, parents or children.

(4) Nothing contained in this section shall affect provisions of Section 3 or Section 4.

COMMENTS
(i) Since the woman had died issueless, the articles constituting dowry are to be returned to her parents and not to her husband;
Rajiv versus Ram Kishan Jaiswal, 1994

(ii) The wife had died within less than three months of marriage, therefore not leaving behind any issue and the contention of the husband that he was the heir of the dowry articles was negatived and dowry articles were transferred to the parents of the wife;
Prithichand versus Des Raj Bansal, 1990.
also, Manas Kumar Dutt versus Alok Dutta,1990

(iii) Dowry items are required to be transferred to the parents and not to husband of the deceased;
Pradeep Kumar versus State of Punjab, 1990

7. Cognizance Of Offence.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-

(a) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

(b) no Court shall take cognizance of an offence under this Act except upon-
(i) its own knowledge or a police report of the facts which constitute such offence, or
(ii) a complaint by the person aggrieved by offence or a parent or other relative of such person, or by any recognized welfare institution or organisation;

(c) it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorised by this Act on any person convicted of any offence under this Act.

Explanation-
For the purposes of this sub-section, “recognized welfare institution or organisation” means a social welfare institution or organisation recognized in this behalf by the Central or State Government.

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.

(3) Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act.

COMMENTS
(i) The point of time at which the cognizance is to be charged is the time when cognizance is actually taken;
M.L Sethi v. R.P.Kapoor 1967

(ii) The expression ‘to take cognizance’ has not been defined in this act nor in the code of criminal procedure. The word cognizance is, however used in the code to indicate the point when the magistrate takes judicial notice of an offence. It is a word of indefinite import and is perhaps not always used in exactly the same sense;
Darshan Singh versus State of Maharashtra, 1971

8. Offences To Be Cognizable For Certain Purposes And To Be Non-Bailable And Non-Compoundable.

(1) The Code of Criminal Procedure, 1973 (2 of 1974), shall apply to offences under this Act as if they were cognizable offences-

(a) for the purposes of investigation of such offences, and
(b) for the purpose of matters other than-
(i) matters referred to in Section 42 of that Code, and
(ii) the arrest of a person without a warrant or without an order of a Magistrate.

(2) Every offence under this Act shall be non-bailable and non-compoundable. 

8A. Burden Of Proof In Certain Cases.

Where any person is prosecuted for taking or abetting the taking of any dowry under Section 4, or the demanding of dowry under Section 4, the burden of proving that he has not committed an offence under those sections shall be on him.

STATE AMENDMENTS
Himachal Pradesh
For section 8A, substitute the following section, namely-

8A. Cognizance of offences- No Court shall take cognizance of any offence under this section except on a police report under section 173 the Code of Criminal Procedure, 1973, or a complaint made by a person aggrieved by the offence, as the case may be, within one year from the date of the commission of the offence:

Provided that no Police officer of the rank lower than that of the Deputy Superintendent of Police shall investigate any case registered under this Act:

Provided further that no Court shall take cognizance of any offence under this Act except with the previous sanction of the District magistrate, having jurisdiction in the area.

Ed. This State Amendment relates to section 8A prior to insertion of section 8A by the Central Act 43 of 1986, sec 8 (w.e.f. 19-11-1986)

Punjab
After section 8, insert the following section, namely-

8A. Institution of proceeding- No prosecution shall be instituted against any person in respect of any offence committed under this Act without the previous sanction of the District Magistrate or such officer as the State Government may by special or general order appoint in this behalf.
[vide Punjab Act 26 of 1976, sec. 7( w.e.f. 20-5-1976)]

Ed. This State Amendment was made prior to insertion of section 8A by the Central Act 43 of 1986, sec. 8 (w.e.f. 19-11-1986).

COMMENTS
(i) Where no specific suggestions given to any of the prosecutions witnesses regarding plea of alibi, the plea is not maintainable;
Pandurang Sivaram Kawathkar v. State of Maharashtra, 2001

(ii) If death of wife is within four years of marriage in abnormal conditions and demand of dowry and cruelty is established, the onus to rebut the presumption of dowry death shifts to defence.
vide Cr. Appeal No. 431 of 1997, decided on 4-2-2004

8B. Dowry Prohibition Officers.

(1) The State Government may appoint as many Dowry Prohibition Officers as it thinks fit and specify the areas in respect of which they shall exercise their jurisdiction and powers under this Act.

(2) Every Dowry Prohibition Officer shall exercise and perform the following powers and functions, namely:-
(a) to see that the provisions of this Act are complied with;
(b) to prevent, as far as possible, the taking or abetting the taking of, or the demanding of, dowry;
(c) to collect such evidence as may be necessary for the prosecution of persons committing offence under the Act; and
(d) to perform such additional functions as may be assigned to him by the State Government, or as may be specified in the rules made under this Act.

(3) The State Government may, by notification in the official Gazette confer such powers of a police officer as may be specified in the notification, on the Dowry Prohibition Officer who shall exercise such powers subject to such limitation and conditions as may be specified by rules made under this Act.

(4) The State Government may, for the purpose of advising and assisting the Dowry Prohibition Officer in the efficient performance of their functions under this Act, appoint an advisory board consisting of not more than five social welfare workers (out of whom at least two shall be women) from the area in respect of which such Dowry Prohibition Officer exercises jurisdiction under-sub-section (1). 

9. Power To Make Rules.

(1) The Central Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for-
(a) the form and manner in which, and the persons by whom, any list of presents referred to in sub-section (2) of Section 3 shall be maintained and all other matters connected therewith; and
(b) the better co-ordination of policy and action with respect to the administration of this Act.

(3) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect as the case may be, so, however. that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

STATE AMENDMENT

Himachal Pradesh
In section 9, in subsection (1) , after the words ‘Central Government’ insert the words ‘or the State Government’ with the prior approval of the Central Government.

Punjab
In section 9, in subsection (1) ,after the words ‘Central Government’ insert the words ‘or the State Government’.

COMMENTS
The Supreme Court directed to states and union territories for awareness regarding the provision of the Act and Rules in the public.

10. Power Of The State Government To Make Rules.

(1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:
(a) the additional functions to be performed by the Dowry Prohibition Officers under sub-section (2) of Section 8B;
(b) limitations and conditions subject to which a Dowry Prohibition Officer may exercise his functions under sub-section (3) of Section 8B.

(3) Every rule made by the State Government under this section shall be laid as soon as may be after it is made before the State Legislature.

You may also like to see:

• Dowry Prohibition Rules, 1985
• Hindu Marriage Act, 1955
• Special Marriage Act, 1954
• Protection of Women From Domestic Violence Act, 2005

Dowry Prohibition Act, 1961
WritingLaw

Child marriage means a marriage where two individuals marry before attaining the age of majority. For marriage, the girl’s age should be 18 years and the boy’s 21 years.

Child marriage is the bad reality of our society, and even after enacting several laws by the parliament, these kinds of marriages are still in practice in India.

Although both boys and girls are the sufferers of child marriage, comparatively, the girl child is the one who suffers the most. Early marriage leads to early responsibilities, early pregnancy, no access to education, etc. Even the girl is not mentally, emotionally, or physically prepared for the marriage and subsequent responsibilities. Such marriage takes away the childhood of a girl.

Child marriage is a violation of human rights as well as the Fundamental Rights of an individual.

In this law note, we will learn about the laws related to child marriage and the issues faced by the girls and boys who enter such marriages.

Meaning of Child Marriage

“Child” means a person who has not completed the age of 21 years in the case of males and 18 years in the case of females”. “Child Marriage” means a marriage to which any of the contracting parties is a child.

Development of Laws on Child Marriage

The origin of child marriage is not certain, but this is a very old concept, and even after making various laws to stop this practice, it is still prevalent in India, especially in rural areas.

The movement against child marriage was first started after the case of Queen vs Haree Mohan Mythee (1890), in which an 11-year-old girl died due to injuries sustained during sexual intercourse with her 35-year-old husband.

The age of consent for sexual intercourse was increased from 10 years to 12 years by the Criminal Law (Amendment) Act, 1891, to protect women from immature cohabitation. Later in 1929, the age of consent was again increased from 12 to 13 years by the same amendment in case of child marriages.

In 1927, a Bill to prevent the solemnisation of child marriages among Hindus by declaring such marriages void if either party was under the age of marriage was presented by Rai Sahib Har Bilas Sarda. The Bill was then converted into the Child Marriage Restraint Act, 1929.

Legislative Provisions for Child Marriage

Legislative provisions brought by the parliament to prevent or restrain child marriages are:

The Child Marriage Restraint Act, 1929

The Child Marriage Restraint Act applies not only to Hindus but also to all the citizens of the society. Initially, the age prescribed in this Act for marriage was 14 years and 18 years for females and males, respectively. Later by an Amendment Act of 1949, the age limit of girls was raised to 15 years. After that, through an amendment in 1978, the age of both boys and girls was increased to 18 and 21 years respectively.

It is believed that an increase in the age of marriage will be better for the development of a girl and her child.

The Child Marriage Restraint Act gives the power to the court to penalise the groom who is above 21 years of age with 3 months of simple imprisonment and a fine for marrying a minor girl. And if the groom is between 18 – 21 years, he shall be punished with simple imprisonment of up to 15 days or a fine of Rs. 1,000 or both.

Parents or guardians can be penalised with simple imprisonment of 3 months along with a fine.

However, a similar option did not exist for a female adult who married a minor boy, probably due to the rare occurrence of such cases.

The Hindu Marriage Act, 1955

The Hindu Marriage Act lays down various conditions for solemnising a valid marriage between a male and a female. Before the enactment of the Child Marriage Restraint Act, 1978, if a male is a minor and has to marry, then the consent of a guardian is a must in such cases. But after the enactment of the Child Marriage Restraint Act, 1978, the age of marriage was increased to 18 years for females and 21 years for males and consent of guardians is not required in such cases.

Section 5 provides the essential conditions for a valid marriage. And if any marriage is performed in contravention of section 5(iii), which specifically lays down the age of parties for performing a marriage, then such a marriage will be voidable.

The Prohibition of Child Marriage Act, 2006 (PCMA)

As per the Prohibition of Child Marriage Act, any party to a child marriage can declare their marriage to be voidable. And a girl can file a petition for a voidable marriage until she attains the age of 20 years or till her remarriage. This Act also allows a girl to take maintenance and residence from the male member (groom) or his parents.

Punishments given under PCMA are quite higher than the Child Marriage Restraint Act of 1929 as the punishment for male adult or anyone who performs, conducts, directs, or abets any child marriage has been enhanced to 2 years of rigorous imprisonment or with a fine up to one lakh rupees or both.

All the offences performed under this Act are cognizable and non-bailable and also allow for an injunction to restrain child marriages.

The provision declaring child marriage invalid and void in specific cases, including kidnapping, abduction, or trafficking of minors, is perhaps the most significant modification made by the Act.

Child Marriage and Reproductive Rights

Every human being has a right to marry voluntarily and the right to reproduction. Child marriage indeed leads to loss of childhood, early pregnancy, etc.

Marrying a girl in her childhood will undoubtedly result in infringement of her reproductive rights as at that age when she is not mature enough to take care of her, how can we expect her to take care of a baby?

The girl is tiny, and she is more prone to become the victim of marital rape, sexual abuse by her husband, undesirable pregnancy, early maternity, and, most importantly, her life is not her own anymore. It is being controlled by her husband or in-laws.

However, Human rights campaigners have long contended that the government must be held responsible for the abuse of reproductive rights because they have a responsibility to defend the human rights of their citizens.

Case Laws Related to Child Marriage

Case laws related to the provisions of child marriage are given below.

Jitender Kumar Sharma vs State (2010)

The court stated that the Prohibition of Child Marriage Restraint Act, 2006, is secular and overrides the Hindu Marriage Act, 1955. However, even after the enactment of the Prohibition of Child Marriage Restraint Act, 2006, there are still certain gaps in the law because it does not prohibit child marriage. The practise of child marriage has been discouraged by regulation, but it is not entirely prohibited.

Naumi vs Narottam (1962)

The Himachal Pradesh High Court held that child marriage is neither void nor voidable.

Mohinder Kaur vs Major Singh (1971)

The Punjab and Haryana High Court observed that the solemnisation of child marriage is not a defence to a claim for conjugal rights restitution.

Conclusion

Child marriage is a severe social problem that infringes on the reproductive rights of girls, which make up the majority of their human rights.

Early marriage and motherhood infringe on a girl’s freedom to manage her own body, limit her educational and professional options, and cause problems for her and her children.

As a result, the human rights of a female child are violated at a time in her life when they are most vulnerable. And even though there are specific legislations enacted by the government to prohibit child marriages, child marriage is still prevalent in our society.

Read Next:
1. What Are the Laws Related to Child Abuse in India?
2. Laws and Policies for the Protection of Children in India
3. What Is the POCSO Act and What Rights It Provide to a Child

Legality of Child Marriage Under Indian Laws
Anushka Saxena

The Protection of Children from Sexual Offences Act (POCSO Act) was passed in 2012, which provides the punishment for penetrative, touch-based, as well as non-touch based sexual offences against children.

The primary goal of the Act is to put children first, including mechanisms for child-friendly reporting, evidence recording, investigations, and speedy trials through Special Courts. The statute requires Special Courts and procedures to hear cases involving children because it places paramount importance on the principle of ‘best interests of the child.’

The POCSO Act came into force on November 14th, 2012.

Salient Features of the POCSO Act

Here is the list of essential features of the POCSO Act:

1. With a focus on safeguarding children’s interests and well-being, the POCSO Act, 2012, was enacted to protect children from sexual assault, sexual harassment, and pornography.

2. A child is defined under the Act as anyone under the age of 18. It is a gender-neutral Act.

3. The law recognises that boys can also be subject to sexual assault.

4. The scope of sexual offences against children is made wider than even in the Indian Penal Code.

5. The Act enforces the children’s right to safety from sexual abuse.

6. This Act establishes procedures to maintain the child-friendly criminal justice system and prevent re-traumatisation.

7. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) will monitor the implementation of the Act.

8. The definition of sexual assault was expanded to include non-penetrative assault and aggravated penetrative sexual assault.

9. Trafficking children for sexual purposes is also punishable by the provisions relating to abetment in the Act.

10. The POCSO Act defines child pornography as “any visual representation of sexually explicit conduct involving a child that is indistinguishable from a child or one that is created, adapted, or modified but appears to depict a child.” Thus, it brings the digital or computer-generated content under the ambit of this Act.

Definition of Child Under the POCSO Act

The POCSO Act under section 2(d) defines a child as any person below the age of 18 years and protects all children under 18 years from any type of sexual abuse.

But, sometimes, it may be difficult to assess the age when the child appears to be on the borderline, and any error in determining the age would be detrimental to justice.

In these types of confusion, the court takes the help of section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015. Furthermore, according to section 34(1) of the POCSO Act, when a child commits an offence under the POCSO Act, he will be dealt with in line with the provisions of the Juvenile Justice (Care and Protection of Children) Act of 2015.

In Jarnail Singh vs the State of Haryana (AIR 2013), the Supreme Court ruled that the procedure for determining a child’s age in conflict with the law can also be used to determine the age of a child victim.

The court said,

“Although Rule 12 is strictly applicable only to determine the age of a child in conflict with the law, we think that the statutory provision should administer, even to children who are victims of crimes. Our view is that from the minority’s perspective, there is hardly any difference between a child in conflict with the law and a child who has been a victim of crime.”

Process for Age-Determination

Under Section 94 of the Juvenile Justice Act, 2015

Any court can follow this process before which the age of the child is in question.

Stage 1: When the child comes before the Special Court, and the court thinks it fit that the child is under 18 years of age. If not, the court will proceed to stage 2.

Stage 2: If the court finds it difficult to determine the age of the victim, then the court may order to:

• Get the birth certificate from school, matriculation or equivalent certification from the examination board.
• If the victim has no certificate mentioned above, he may also produce the birth certificate issued by corporations, municipalities or panchayats.
• If (1) and (2) are not available, the court may order an ossification test of the child. Bone ossification is measured by taking x-rays of a few bones to know how old a person is.

The Rights of the Child Under the POCSO Act

Following are the crucial rights of children provided under the POCSO Act:

1. Children can record their statement at home or at some other location they choose, preferably by a female police officer or by an officer at least as senior as a sub-inspector, dressed in civilian clothing.

2. The police should ensure that the child does not come in contact with the accused during the investigation.

3. The child should not be detained overnight at the police station, and their identity should not be disclosed to the public and media unless otherwise directed by the Special Court.

4. Female doctors should examine female survivors only in the presence of their parents or someone trusted by the child. If neither of those individuals is present, a woman nominated by the institution’s medical director should conduct the examination.

Must Read Next:
1. Laws and Policies for Protection of Children in India
2. Legitimacy of a Child Under Indian Evidence Act With Case Laws

What Is POCSO Act and What Rights It Provides to a Child
Ritesh Kumar

Following the death of 14 civilians in Nagaland on 4 December 2021 because of the armed forces’ actions, the accountability of the armed forces is once again under a question mark.

The debate again arose on the question that under the Armed Forces Special Power Act (AFSPA), do the armed forces have total immunity for any actions they take?

In this article, let us check out the provisions, pros, cons, debate around the Armed Forces Special Power Act and why some people of northeast India want to repeal it.

What Is AFSPA?

The Armed Forces Special Power Act was passed in the wake of the riots after partition in 1947. The President promulgated four ordinances to control riots in Bengal, Assam, East Punjab, Delhi and United Provinces. In 1957, the Government repelled these ordinances. Then, Parliament passed a new Act, especially for Assam and Manipur, known as the Armed Forces Special Powers Act, 1958, to combat the insurgency in the northeastern states.

Today, the Armed Forces Special Power Act is currently in force in:

• Assam,
• Nagaland,
• Manipur,
• In three districts of Arunachal Pradesh, and
• The jurisdiction of 8 police stations in Arunachal Pradesh bordering Assam.

Armed Forces (Special Powers) Act, 1958

The Act grants “special power” to the armed forces, and it applies to the Army, the Air Force, the Central Paramilitary forces, etc., in disturbed areas.

What Is Disturbed Area?

According to section 2 of AFSPA, it is an area that is declared as a disturbed area by notification under section 3 of AFSPA for the time being. Whereas section 3 talks about the power to declare any area as a disturbed area. The law says, “The Governor of a State, the Administrator of the Union Territory, or the Central Government may designate a part or the entire area as a disturbed area if the conditions in such areas are so dangerous or disturbed that use of armed forces is necessary.”

What Happens if Any Area Is Declared a Disturbed Area?

Section 4 of AFSPA grants some special powers to the armed forces in a disturbed area, such as:

1. If prohibitory orders prohibiting assembly of five or more persons or carrying arms or weapons are in force in the disturbed area, the police have the power to use force, including opening fire even to the point of causing death.

2. To destroy any structure used as a hideout, a training camp, or a launching point for attacks.

3. To enter and search premises without a warrant of arrest to recover hostages, arms, and ammunition.

4. Power to arrest without warrant and to use force for the purpose.

5. Further, section 6 of the AFSPA gives immunity to the armed forces for their actions under section 4. Section 6 reads that “No person can be prosecuted or subjected to any legal proceedings for action taken under the Act without the Central Government’s previous sanction.”

Why the Demand to Repeal AFSPA?

1. Many Human Rights Organisations argue that the Act encourages impunity and causes many instances of excesses and atrocities committed by the armed forces under its protective cover.

2. The United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions also called for the repeal of AFSPA. The report noted that “AFSPA allows the state to override rights. We should oppose such legislation since it has no place in a democracy.”

3. In 2000, Manipur activist Irom Chanu Sharmila or the “Iron Lady of Manipur”, went on an indefinite fast to demand the repeal of AFSPA, becoming an iconic figure in the struggle against the law. She ended it only in August 2016.

4. The United Nations Human Rights Commission states that force must be justified by self-defence or by a minimum level of proportionality. In contrast, AFSPA gave vast power to the armed forces.

5. Former Union Home Minister GB Panth said that “the AFSPA is subject to the Code of Criminal Procedure, and the motive in CrPC is the use of minimal force, but AFSPA deviates from it.”

6. The Justice Verma Committee (2012) recommended that members of the armed forces should be subject to ordinary criminal law for sexual assault on women and urged for a review of the continuation of AFSPA immediately.

7. In 2005, the Government appointed a committee of five members, headed by retired Supreme Court judge P Jeevan Reddy, who recommended the repeal of AFSPA. There was a suggestion to amend the Unlawful Activities (Prevention) Act, 1967, to deal with such situations of insurgency and terrorism.

8. The AFSPA created a negative impression among the people of the northeast states.

9. According to The Times of India, between 2012 and 2016, a total of 186 complaints of human rights abuses by defence personnel were recorded in states where the Armed Forces (Special Powers) Act, 1958, is in force.

Government’s Point of View for AFSPA

1. The Indian army is fighting a proxy war. Therefore, the Armed Forces (Special Powers) Act enables the security forces to fight both external and externally backed forces, both of which pose a threat not only to the states but also to the entire country.

2. AFSPA offers both legal protections and operational power for the security of men and material.

3. Pakistan has trained, willing, and available terrorist cadres that may boost terrorist violence in the coming years. Thus, AFSPA is crucial to carry out operations in the borders areas.

Constitutionality of AFSPA

In Naga People’s Movement of Human Rights vs Union of India, AIR 1997 SC, the Petitioner challenged the constitutionality of the Armed Forces (Special Powers) Act in the Supreme Court. The petitioners had argued that:

• Parliament could not legislate on state subjects, i.e., maintaining public order.
• Since AFSPA was a “measure intended to achieve the same result as under Article 352 of the Constitution”, it was illegal.
• This law was arbitrary and conferred vast powers on armed forces.

A five-judge Constitution Bench unanimously upheld the law. The court said that:

• Although the Constitution allows the deployment of armed forces to aid civil power, such deployment is only for a “temporary period” or “until a situation of normalcy has returned.”
• The state government’s opinion must be taken into account when declaring a region a “disturbed area.”
• Under the AFSPA, the officer may not use excessive force against the person violating the prohibitory order.

In Extra Judicial Execution Victim Families Association vs Union of India AIR 2016 SC, a bench of Justices Madan Lokur and UU Lalit observed that:

“Even if army personnel commit an offence, they will not be immune from prosecution by a criminal court constituted under the CrPC. In a constitutional democracy such as ours, outright acceptance of the proposition advanced is equally unsettling and demoralizing, especially as we live under the shadow of weapons that can be used with impunity.”

The court further noted that:

“Killing an ‘enemy’ is not the only available solution, and that is what the Geneva Conventions and the principles of international humanitarian law tell us.”

What are your thoughts on this?

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What Is AFSPA, Demand for Its Repeal, and Constitutionality
Ritesh Kumar

Section 354 of the Indian Penal Code, 1860, deals with assault or criminal force to a woman with intent to outrage her modesty. This section is enacted to protect a woman against indecent assault as well as safeguard public morality and decent behaviour.

Ingredients of this section include criminal force or assault used on a woman, and the accused had an intention to outrage woman modesty.

The term woman’s modesty depends on the facts and circumstances of each case. Punishment to the accused under this section involves the imprisonment of a minimum of one year and a maximum of five years.

Two Important Cases Related to Outraging a Woman’s Modesty

Here are the views of the Supreme Court of India in cases related to outraging a woman’s modesty

1. In Ram Kripal vs State of Madhya Pradesh, the Supreme Court of India defined modesty. In this case, the accused argued that he should not be held guilty of an offence of rape under section 375 of IPC, as he was guilty of outraging a woman’s modesty.

The court rejected his view and stated that the essence of a woman’s modesty is her sex. The court explained that the act of pulling a woman, removing her saree, together with a request for sexual intercourse, would be an outrage to the modesty of the woman.

The court also stated that section 375 IPC involves “sexual intercourse”, which includes penetration, which in itself is sufficient to constitute an offence of rape.

2. In the State of Punjab vs Major Singh, the accused had injured the vagina of a seven and a half-month-old child by fingering. The Indian Supreme Court held that the essence of a woman’s modesty is her sex, young or old, intelligent or imbecile, awake or sleeping; a woman possesses a modesty capable of being outraged.

You must also read:
1. What Are the Laws Related to Acid Attacks in India?
2. What Is the Legal Status of Marital Rape in India?
3. What Are the Rights of a Woman During the Arrest?

What Is Outraging a Woman’s Modesty Under Section 354 IPC?
Ankita Trivedi

The Central Bureau of Investigation (CBI) was established in the year 1963. Before that, a body worked for vigilance cases known as the Special Police Establishment, which afterwards merged with the CBI in 1963.

The Central Bureau of Investigation is not a statutory or constitutional body but derives its roots from the Delhi Special Police Establishment Act, 1946. CBI is a non-statutory body. We can say that the CBI is the primary investigating agency of the Indian Central Government.

Composition of CBI

1. There shall be a director of CBI who heads the department. The union government shall appoint the Director based on the recommendation report given by a three-member committee (Prime minister, leader of the opposition party in Lok Sabha, and CJI of India).

Note: If there is no recognised leader of the opposition party in the Lok Sabha, then any single leader of the largest opposition party can be a member of the committee.

2. There shall be joint directors, deputy inspector general, and superintendent of police.

3. There shall be a Directorate of Prosecution, whose work will be to look after the cases registered under the Lokpal and Lokayuktas Act. The Directorate of Prosecution shall not be a person below the rank of Joint Secretary to the union government.

4. The union government shall also appoint persons for the rank of SP and above to work as subordinate officers with the Commissioners and Director.

Functions of CBI

The role of CBI is to uphold the spirit of the Constitution and provide a far-sighted vision to the police forces to act as an agency for the enforcement of laws and prevention of crimes.

The functions of the CBI are as follows:

1. Its main task is to investigate violent crimes through an effective system and high technology.

2. It helps in dealing with and combating cybercrimes and social platform crimes.

3. It is there to help, supervise, and support police organisations in investigating high-suspension cases.

4. It investigates cases of corruption, bribery, misconduct, and misbehaviour of union government employees. It works under the superintendence of the Central Vigilance Commission.

5. It investigates serious crimes committed by high-level criminals affecting national and international cooperation or national peace.

6. CBI may also take up a case at the State government’s request if the matter relates to public importance.

Note: The same has happened in the case of Sushant Singh Rajput’s case. The matter has been transferred to the CBI at the request of the Bihar government. And SC has further directed Mumbai police to give a status report of the case.

7. It takes up cases on the direction of High Courts and Supreme Court as well. But in case of direction by the court, consent of the concerned state is not required.

8. The CBI in India acts as an agency or National Central Bureau of Interpol (an international organisation that helps police forces of different states to investigate and solve crimes).

9. But before conducting any investigation or inquiry, the CBI is supposed to obtain prior permission from the Central government if the offence is committed by the joint secretary or any person of the above rank.

10. It plays a role in protecting human rights, the environment and those criminals who are causing damage to the country.

Organisation of CBI

Presently the CBI has the following divisions that are working under the union government:

1. Anti-corruption Division
2. Economic offences Division
3. Administration Division
4. Special Crimes Division
5. Directorate of Prosecution
6. Central Forensic Science Laboratory
7. Policy and International Police Cooperation Division

Central Bureau of Investigation (CBI) – Composition, Functions and Organisation
Arushi