Legal Mirror
Do you think you can Legalize your Second Marriage by Islam Conversion? Think Again!
Mar 8th
Monogamy is an integral part of Christian Faith. In 1860 when Indian Penal Code was framed, Bigamy was declared an offence under Sections 494 and 495 is punishable with fine and imprisonment of seven years or both. Both man and woman can be punished under these sections.The Sections apply to all communities in the country apart from Muslim males. The tribal man and woman are also exempted from the same if their customary laws do not consider the plural marriages void.
The Hindu Marriage Act 1955 prescribes strict monogamy for Hindus. But the act is deficient in certain respects. The Muslim females can be punished for the said offence. Solmnization of marriage (performance of specific ceremonies) is given a lot of importance, which is contrary to the interests of the victim and helps the offender.
Existence of an existing valid marriage is an essential condition to prove the said offence. The accused must enter into a second marriage which must be valid. The subsequent marriage would be declared void under the section 17 of the Hindu Marriage Act.
Conversion to islam is often used as a shield to protect the conviction under section 494. Under the Muslim law an polygamy is allowed to a muslim male. He can thereby have four wives at a time. In Sarla Mudgal v. UOI , the Supreme Court held that if a marriage is solemnized under a particular personal law it cannot be dissolved by the application of another personal law. The parties have to be governed by the personal laws that governed them before the conversion took place. The courts must decide such cases on basis of equity, good conscience and justice.
In Lily Thomas v. UOI, the Supreme Court re-affirmed its decision. The court held that the the Sarla Mudgal Case did not violate the Article 20(1) and 25 of the Constitution. It does not hinder the right to freedom of conscience, religion or profession of an individual. Moreover the court said that conversion for purposes of commission of an offence of Bigamy has no sacred purpose and it only makes mockery of Islam.
Quran specifies that a Muslim male must treat all his wives equally. He should be able to maintain and satisfy them. If he is unable to do so he must remain a monogamist. Even the dissolution of Muslim Marriages Act,1939 treats unequal treatment between co-wives as a ground for divorce available to the aggrieved wife but no law can prosecute him for bigamy.
In muslim countries like Pakistan, Bangladesh, Iraq, Syria, Jordan, Egypt, Yemen and Morocco bigamy has been subjected to administrative or judicial control while Tunisia and Turkey have legally banned bigamy.
“Since it is not the object of Islam nor is the intention of the enlightened Muslim community that the Hindu husbands should be encouraged to become Muslim merely for the purpose of evading their own personal law by marrying again, the courts can be persuaded to adopt a construction of the laws resulting in denying the Hindu husband converted to Islam the right to
marry again without having his existing marriage dissolved in accordance with law”.
The Law Commission Report suggests:
1. In the Hindu Marriage Act 1955, after Section 17 a new Section 17-A be inserted to the effect that a married person whose marriage is governed by this Act cannot marry again even after changing religion unless the first marriageis dissolved or declared null and void in accordance with law, and if such a marriage is contracted it will be null and void and shall attract application of Sections 494-495 of the Indian Penal Code 1860.
2. A similar provision be inserted at suitable places into the Christian Marriage Act 1872, the Parsi Marriage and Divorce Act 1936 and the Dissolution of Muslim Marriages Act 1939.
3. The Proviso to Section 4 of the Dissolution of Muslim Marriages Act 1939 – saying that this Section would not apply to a married woman who was originally a non-Muslim if she reverts to her original faith – be deleted.
4. In the Special Marriage Act 1954 a provision be inserted to the effect that if an existing marriage, by whatever law it is governed, becomes inter-religious due to change of religion by either party it will thenceforth be governed by the provisions of the Special Marriage Act including its anti-bigamy provisions.
5. The offences relating to bigamy under Sections 494-495 of the Indian Penal Code 1860 be made cognizable by necessary amendment in the Code of Criminal Procedure 1973.
Wife Swapping : A Blow to Indian Marriages – An Overview on Adultery as Crime
Mar 6th
Sunita was married to Anant Sharma for ten years. She had two children from the blissful relationship. One day she discovered that her husband was involved with his colleague Sameera, who was fully aware of his marriage. Unfortunately the court can prosecute neither Anant nor Sameera for adultery according to the Indian Penal Code.
Section 497 of Indian Penal Code declares adultery as a crime. However to constitute the offence a man should have consensual intercourse with a married woman. Sexual intercourse which is a must take place, is often established by circumstantial evidences. Under the Section 497, only a man can be prosecuted and woman cannot be termed as a abettor. The entire burden of crime rests on the man alone, for seducing the woman and interfering in her marital life.
It is necessary that the woman should be married and sexual intercourse between a widow, prostitute or unmarried woman and a married man would not attract any punishment under the present section.
The consent of the husband is taken as a defence in the cases of adultery. If a husband consents or does nothing to oppose the adulterous behaviour of his wife. The same. Wife’s lover cannot be charged of adultery. If the argument of volenti non fit injuria (what is voluntary cannot injure) is taken as a defence in such cases, then wife swapping cannot be deemed as a crime in the country. In wife swapping couples exchange their spouses for sexual intercourse. In cities like Bangalore, Delhi, Jaipur, Mumbai, Chennai, Chandigarh etc practice of wife swapping is gaining momentum.
Even Though the Section clearly states that the sexual intercourse must be consented and must not amount to rape (Section 365). The consent of woman and not that of husband is important. If the husband consents but the wife does not the accused would be prosecuted for rape under the section 375 of IPC.
The provision treats women as chattels and property of their husbands. Where on one hand it recognizes that woman can transgress their marital boundaries on the other hand it imposes no punishment on their husbands for the same acts. If a man has extra-marital affairs with a unmarried woman, widow or prostitute, the wife has no recourse against her husband or the other woman. Only the husband has the right to charge his partner for adultery, no such right is granted to wife.
In Yusuf Abdul Aziz vs State, Constitutional validity of the provision was challenged but the Supreme Court held otherwise. The Supreme Court observed that woman was a victim and not the seducer in the crime. It further stated that the law allows the spouses to make up and gives them an opportunity to save their marriage.
Social deterrence is required to control offences such as adultery. Adultery is not only a crime against ones partner but its also effects the society at large. It shatters the beliefs and trust of one’s children, relatives and other acquaintances. It is a crime which can never be controlled solely by law. This deviant behaviour of adultery can be avoided by building better understanding between spouses. Morality and mutual trust comes from within and no external agency can impose it entirely. I believe that the victims must still be given some legal recourse in such cases. It would definitely deter such offences to some extend. The punishment (5 years) prescribed must be scaled down but provision of compensation to the victims must be added. The male spouses must maintain their wives in the same manner as before the institution of proceedings.
The law must impose uniform punishments on both the partners of crime. The irrational classification between man and woman, in limiting the class of offenders to men it violates Articles 14, 15 & 21 of the constitution. The same punishment must be imposed on married men and their accomplice. Since wife swapping is becoming a prevalent practice these days, both the legislature and the courts must define “consent of the husband” more vividly. If the law is amended and adultery by both husbands and wives is punished then the word “consent or connivance” must be abrogated. It should be done because sometimes the wives due to numerous reasons are unable to oppose the deviant behaviour of their husbands. In these circumstances the husband must not be granted the defence of “volenti non fit injuria”.
Another Flawed Law – Communal Violence Bill 2009: Harms the Victims, Protects the Perpetrators
Mar 5th
After the mass opposition by all spectrums of society over the Communal Violence Bill 2005, UPA government has re-introduced the bill with 59 amendments. Unfortunately it hardly makes any structural changes. It has been highly criticized on certain grounds. The bill treats communal violence as a law and order problem but fails to recognise its threat to the socio-economic basis of the society.
The definition of communal violence given under the bill is not comprehensive and includes any scheduled offence under Section 19. Instead of the word communal, ‘sectarian’ must be employed. The ‘Schedule’ only list outs a number of IPC Sections and few Sections of other Acts. The schedule is erroneous in its very nature. The Sections 6(3) and 8(2) of the Explosives Act, 1884 listed in the schedule do not exist at present. Section 6 of the Places of Worship (Special Provision) Act, 1991 and Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 does not define any offence. They only prescribe punishments for contravening the provisions of Section 3(2) and Sections 3 to 6(3) of their respective Acts.
Although the punishment for offences related to communal violence has been enhanced, offences are restricted to penal statutes only. It doesn’t include provisions related to sexual violence, social and economic boycott, segregation, discrimination and communal writing in textbooks. Moreover the fines enumerated in most of these acts are considerably low and even twice the amount may not serve the purpose. It must define these offences and punishments vividly.
Under the bill, the State can declare certain areas as communally disturbed areas. However Section 55 empowers the Central Government to give directions to the States to take immediate measures to curb communal violence. If such directions are not followed the Central Government may declare any area within the State as a ‘communally disturbed area’ by a notification. It may also deploy Armed forces on a request from State Government. But the bill is quiet on what would be done if the State Government does not request the Central Government to deploy the Armed forces or opposes such deployment in the State. No immediate relief is provided in these situations. There would be considerable lapse of time in the issuing of directions by the Central Government to the State which would affect damage control adversely.
Review committees and Special Investigation teams may be constituted by the states. The State governments have wide discretionary powers in these matters. The accountability of such committees has also not been laid down. It does contain provisions related to witness protection by providing punishment for threatening a witness and by concealing their identity.
The bill also states that Women police officers must be provided by state to record any information relating to the commission of a scheduled offence committed against women or children. However it is silent on sexual offences which form a major portion of communal offences. It also contains no provisions related to compulsory inclusion of at least two women members in the state, national and district council.
The Special courts may be established or abolished by the states in any communally disturbed area. The states have wide jurisdiction in this regard. It may prove detrimental to national interest as happened in Gujarat riots and Bhagalpur Case. To avoid such situations these courts must be monitored by National Human Rights Commission (NHRC). Their decision must be time bound and the public prosecutor to be appointed must not belong to the state in which communal violence has taken place.
It does provide compensation to the victims on basis of the nature of the offence, the motive, the economic status of the offender and the claimant but there is no uniform scale of compensation for death, injury, rape and destruction of individual and religious properties during communal riots. The state holds no responsibility or liability in cases of destruction of religious properties. There is no provision granting ex-gratia payments to the victims. The right of reparation must be clearly stated and must not be left on the discretion of state governments. Information must be provided at every stage of proceedings. Right to legal representation of their choice, counselling, rehabilitation etc must be included.
The District Magistrate and competent authority may take preventive measures. They can order to deposit, search, detain and seize of arms & ammunition in communally disturbed areas. They may even prohibit certain acts or even control the conduct of persons in such areas. Punishments may be imposed for loitering near prohibited areas. A person may also be punished for being in possession of arms without license, assisting offenders, giving financial aid for the commission of certain offence or even for threatening witnesses. Even public servants can be punished if they act in a mala fide manner. But the political leaders, administration and police officials neither have any mandatory nor are they accountable for their reckless actions.
The Public Officials must be debarred from their jobs if the offence is proved. If the Special Court observes that the D.M. and S.P. could have prevented such situation by taking an advance action, they should be held responsible. If media is found irresponsible or misreporting a fine must be imposed on the news agency. Public recognition must be given to people who help in the relief measures. The law must protect and not harm the interests of the public.
Is It Crime to Be Gay in a Country which Proclaims to be the Governor of All Human Rights
Feb 24th
The recent judgment of Naz Foundation v. Government of NCT and Ors had created havoc all over the nation. The Delhi High Court stated that “Section 377 of the Indian Penal Code is unconstitutional as it criminalises consensual sexual acts of adults in private, violative of Articles 19, 21, 14 and 15 of the Constitution. The provisions of Section 377 I.P.C will continue to govern non-consensual penile, non-vaginal sex and penile non-vaginal sex involving minors.” The ruling was prospective in nature and was not binding on cases already decided. The court further clarified that the term ‘adults’ would constitute persons above 18 years of age. However this decision is binding only in the territory of Delhi and has persuasive value elsewhere. Therefore a proper legislation is required in this regard.
Section 377 is based on the Judo-Christian principles of morality. The British believed that such acts were
unnatural and unproductive. They were against the order of the nature and against the will of the god. Homosexuality was not an alien concept to the country. There have been evidences of the same in the Rig-Veda, Manusmriti, Tantric rituals and Kama Sutra. For past 150 years Angaar (which is a small village in Gujarat), marriages between two males take place on the auspicious occasion of Holi.
Different religions have different perspective in this regard. Most of the religions condemn homosexuality on grounds of procreation. But procreation should not be a basis of discrimination as infertility exists in heterosexual couples also. Buddhism does not lay more stress on procreation as such. The Buddhist literature is silent on Homosexuality but it is presumed that the lay monks are allowed to practice homosexuality. Traditionally in Christianity homosexuality was condemned on basis of being unnatural. But now a days many Christians believe that it is akin to other unnatural acts like alcoholism. In Hinduism ancient texts like Manusmriti and Bhagwat Gita condemn such acts. In Islam it is considered sinful and publishable.
Countries like U.K., USA (some states like Georgia, Texas etc), Canada, Australia, Fiji and Nepal have decriminalized homosexuality and have recognized the Right to Privacy argument. Countries like Afghanistan, Iran, Mauritania, Pakistan, Saudi Arabia, Sudan and Yemen prescribe death penalty for the homosexual conduct. In nations like Cambodia, China, The Philippines, Thailand, Vietnam and Hong Kong there is no criminal prohibition on Homosexuality.
Section 377 penalizes private non-commercial sex between two consenting adults of the same sex in the same manner as it penalizes bestiality, forced sodomy and paedophiles. The conduct in this provision relates to man with man, man with woman, and man with animal. The present law is often misused police officials. In Jayalakshmi v. The State of Tamil Nadu, a eunuch had committed suicide due to the harassment and torture at the hands of the police officers. He was continuously subjected to forced anal and oral sex. Similar incidents happened in Bangaluru where a transsexual was raped by a group of hooligans.
The section interferes in the private life of individuals. Medical evidence has proven that Homosexuality is not a disease and cannot be treated. It is not by choice but by birth. Morality and public opinion cannot be the basis of any law. The rights of the transgenders, transsexuals and homosexuals need to be protected. They have as much right to choose their sexual partners as the heterosexuals. Consensual Sodomy between adults must not be subject to any punishment. Even A.I.D.S can be prevented if sexual deviance is checked.
Due the pressure from the society most of the homosexuals are forced to live the lives of heterosexuals. This affects the lives of both the homosexual and his heterosexual partners.
In Moina Khosla vs Amardeep Singh Khosla A decree of nullity of marriage is granted to the wife under section12(1)(a) of the Hindu Marriage Act as the husband was a homosexual who could not consummate the marriage in spite of the repeated efforts of the wife.
The present law has also proved a hindrance in the path of social workers. When a group of A.I.D.S activists went to the Tihar jail to distribute condoms amongst the prisoners, they were not allowed to do so (as it was contrary to Section 377). The punishment prescribed under Section 377 for consensual sodomy is ten years or life imprisonment. It is more than the minimum punishment stated for rape i.e. seven years.
A new legislation is required. Even if section 377 is not struck down completely, it must be definitely amended. Section 377 is the only Section in I.P.C. which deals with Child Assault. There must be separate and specific laws for paedophiles and zoophiles in the country. If people are not made aware of the new law then the same would be manipulated easily. Most of our population lives in rural areas and thus implementation of the same must be done effectively and efficiently. It is contended that a proviso (exception) may be added to Section 377 stating that “a non-commercial homosexual act in private provided that the parties consent thereto and have attained the age of eighteen years would not be prosecuted under the act.”
An Insight on Travel Laws in India – Do They Really Exist?
Feb 19th
India is a land of culture, diversity and tradition. Athithi Devo Bhava which means “guest is god” has been one of the ideologies of the nation. But unfortunately some people have brought disgrace to the country on the world forum. There are dozens of cases in which foreigners are harassed, raped, deceived and abused.
The government and the administration always tries to suppress the news related to ill treatment of foreigners. It is done in order to save the country from insult and global pressure. But all efforts have turned out to be futile. The perpetrators usually think that they are free to harass foreigners on following grounds a) they are alien to the country b) they are unaware of any laws c) no one recognizes them c) they carry foreign currency d) their liberal attitude.
I would like to further elaborate on the last point. It is true that the lifestyle of the west is quite different from ours but it doesn’t mean that anyone has a license to harass their ladies. People who see vulgarity and nudity would not even spare a woman in sari.
Shantaram Naik, (a congress M.P. from Goa) while commenting on alleged rape of 25-year-old Russian woman in Goa said “Rape is a heinous crime but an alleged rape of a lady who moves with strangers for days together even beyond the middle of the night is to be treated on different footings.” The statement is absolutely absurd and disgusting which holds no water.
The law definitely protects the tourists but here I would like to focus on the preventive steps that can be taken by them to avoid such harassment.
1. Try to contact a Authorized Travel Operator who would ensure your bookings at safe places.
2. Do not roam around on streets late at night.
3. Try to avoid staying at deserted guest houses or hotels.
4. Don’t go for a very cheap hotel. It may not turn out to be a safe place.
5. Try not to expose bare bodies as it might attract unnecessary attention.
6. Always take a prepaid taxi or auto.
7. If you decide to lodge a complaint inform your embassy about it as well.
The Indian Government must also take vital steps to prevent such harassment and molestation. The only law in the country which remotely concerns molestation is Section 354 of Indian Penal Code under which if a person outrages the modesty of a woman he is punished. It is very difficult for the courts to construe what amounts to modesty of a woman. Therefore most of the times the offender is acquitted in such cases. The offender can be charged for rape under Section 375.
The government must definitely come up with the legislation to criminalize molestation and sexual harassment. The tourists must be provided with a helpline number which they can call at times of emergency. Moreover the government must discourage tourist agencies which do not have government authorization. Citizens must also take active part in preserving the image of the country.
Please find a real life incident which happened with a guy from Norway in Jaisalmer, Rajasthan. This was received by one of my friend who himself is a tour operator. I just published it so that people can read and feel how the foreigners are ill-treated in our country. I would suggest all my readers to just go through it once..
“Dear Sir/ Madam
I’m writing to you because of an unpleasant incident I hope you can help me with. I was involved in an accident during a camel- safari in Jaisalmer, Rajhastan, this week.
I was supposed to take part in a 2 days- 1 night camel- trek into the desert, but shortly after the start of the camel ride the strapping holding my seat to the camel broke and the entire contents, including myself, fell off. The accident took place because the equipment (the saddle) clearly was not in a good condition, and therefor putting the rider at risk.
The seat slid off the camels back, with me falling the same way, hitting hard ground with my lower back first and then my head. It caused enormous pain, and I could not sit up. Thankfully we had a nurse with us on the trip, and she made sure nothing was broken. I insisted on returning back to town, as the pain was too much to handle for further riding. The camel drivers wanted me to continue, obviously trying to ignore the seriousness of the situation, but I refused to do so because I did not want to put myself in any danger of worsening the injury.
An hour later I was picked up by the company’s jeep so I could return home. Upon my return I was met by an ignorant staff of owners who tried to laugh away the whole episode by claiming that this happens all the time. (Like that would make the situation better?)
As is common in Jaisalmer, it is the different hotels who also run the camel- safaris. I was surprised with the amount of resistance and denial of responsibility I was met with. Not only did the owners refuse to apologize for the incident, they also said that an equipment failure was not their responsibility at all. At one point they tried to blame the camel drivers, but I think it’s important to underline that these people treated me nothing but well, and that the full responsibility belongs to the owners of the equipment.
I had a doctor visiting the same afternoon, who confirmed that I had a slight concussion and a heavily bruised lower spine. I was very lucky, but it scares me to think what could have happened if I wasn’t. It’s a 2 meter fall, and others might not be that lucky. This episode caused some further problems.. I had to stay in bed for 3 days, luckily not longer, but this also caused a total change in my travel plans. I contacted the management and claimed a refund of the organized camel trek, which seemed more than fair as I only took part of the trek for an hour, and on top of that caused me an injury. The management still refused that this was really their responsibility, and first only wanted to refund half of the amount. After a lot of back and forth we got the whole sum returned, but only by arguing that we also had paid a lot of money during our lengthened hotel stay in terms of food and payment for our room.
All the time I was treated with ignorance, either being told that “they had fallen of many times-take a pill and you’ll be better” obviously claiming that this is not serious. Or just refusing to say that they have any responsibility for the tours they arrange, and the safety of the people they bring on these tours. This is the thing that frightens me the most; that a whole town- where not one safari company is officially registered, everyone refuses to take any responsibility for what might happen to innocent tourist when they go into the dessert on their arranged tours.
During our stay in Jaisalmer we contacted the local tourism force, who barely spoke any english, and basically said there was nothing we could do. And we also went to the local police station who said that the desert was outside their jurisdiction, and therefore they could not help us. You feel very helpless as a tourist in a place where family bonds stand stronger than the official law, and no one is willing to help.
This was not the only problem though. When I fell of I also had a Digital SLR camera on my neck, with a value of £700. When I fell, this smashed in the ground with me and the lens was broken. I found out about this after my return to the hotel, and the first thing I did was to contact my travel insurance, explaining the situation. They said that this was the responsibility of the tour arranger, as it was broken while I was in their care, due to third part responsibility. When bringing this up with the management it caused more denials of responsibility, and they actually said something in the lines of; “get your money back from your travel insurance, and be happy, this is your fault, not ours.” I tried to make them understand that they had to contact the insurance company they had for their travel company, but it soon became clear that they only had an insurance on their hotel and not the safari tours. Thereby they kept denying any responsibility, as they otherwise had to pay for this themselves.
Now I find myself in a hopeless situation. It is personally very frustrating to be handled with such ignorance,but also a total denial of all responsibility is unacceptable. They didn’t seem to care at all, and would continue running the same way, meaning that other travelers might be put in unforeseen danger. The company pointed out countless times that they did not see the point in having a third part insurance, as, according to them, any incidence should be covered by the travelers own insurance. As this is not the case, I don’t have much choice than to cover the cost of my broken lens myself.
This has been a very unpleasant episode, and it has also taken a lot of energy in a situation where I didn’t have any. I’m writing this to you mostly because I hope I can help to prevent other travelers to end up in the same situation. But also because I wonder what one should do in such a case. When neither the police, local tourist force or the tour operator wants to cooperate, who do you turn to?
Who should cover the damage of goods when its a third parts responsibility?
I would be grateful for a reply if you have any suggestions to how I should handle this. I found myself in a very helpless situation, any advice on how to act in such a case would be an enormous help.
With best regards
Maiken Olsen, traveller from Norway (maikenfko@yahoo.no)
Dated: 27th of july 2009
PS. I know that this might not help me any further on, but please know that I more than anything wanted to inform you about this because I hope that an awareness of the irresponsible tour arrangements in Jaisalmer might result in a safer and more regulated industry for other travelers.”
Gosh… This certainly happened in India…
Forceful Sex by relatives – Do we Have Laws in India to Protect the Victims?
Feb 19th
A few days back I read that a father had impregnated his 15 year old daughter. His wife was aware of his acts. But she couldn’t do anything to protect her daughter. She was continuously threatened by her husband. When questioned by the police she confessed that she said she supported him because she was financially incapable. She was convinced that this was the best way to protect her daughter’s future and family’s reputation. On knowing the truth the society could have abandoned the daughter and the family (which would have affected the future of her other children as well).
The sexual intercourse between close relatives is referred to as incest. Certain cultures and tribes support incest. In Andra Pradesh, Menarikam marriage takes place where maternal uncle is married to his niece or marriage between cross cousins take place. Marriage between cross cousins is also allowed in Muslims, Zoroastrians and Jews. But in most cases incest is not consensual. In India crime of incest is considered a taboo and is seldom discussed.
Unfortunately it is not the offender but the victim who suffers the wrath of the society in such matters. When a child is raped or abused by her/his father, brother, uncle or any other close relative, her/he is also forced to continue the relation. The abuser usually threatens the child and convinces him/her that silence is the only resort he/she is left with. The child is continuously harassed and sexually abused by the perpetrator. It affects the child mentally, physically and psychologically. The mental agony may result in deterioration of health or diet. It is difficult for these victims to trust others in future.
A study by Tata Institute of Social Sciences points out that one out of three girls and one out of 10 boys had been sexually abused as a child. Fifty per cent of child sexual abuse occurs at home. 15 per cent were used for masturbation mostly by male relatives when they were less than 10 years old. Seventy- five per cent of the abusers were adult family members.
In India we do not have any specific legislation regarding “incest” whereas in many developed countries like U.S.A, Britain and Germany incest is treated as offense. The present Indian Law is insufficient to prevent child abuse. We have no specific law on child abuse. The Indian Penal Code recognizes rape and sodomy as an offence but it doesn’t treat child abuse specifically. Anything less than rape comes under the ambit of “outraging the modesty of a woman”, which is vague and open to interpretation. Moreover Section 354 (outraging the modesty of a woman) is a bailable offence and in many cases the accused may abscond easily. It only relates to women and therefore males cannot be protected under this section.
Although Section 23 of the Juvenile Justice Act deals with assault the punishment prescribed in it is only 6 months. Again Section 5 of the Immoral Traffic Prevention Act, 1956 prescribes punishment for seven years for inducement of child into prostitution but it does not address child abuse. The abuse of boys is usually overlooked. Only Section 377 talks about unnatural acts under which offences like sodomy may be charged.
Sexual abuse by relatives must not be spared. In most cases the family supports both the victim and the offender. If the perpetrator is acquitted, then the victim may be again subjected to the same violence. Regular workshops must be organized at schools to educate the children of their rights. Counselling must be provided to the victims. We generally deny the presence of incest in our society. This encourages the offender to commit such crimes. He is often convinced that the societal pressure would never let his victim reveal the truth. The weakness and inability of the society to react has always resulted in more of such crimes. We definitely need stringent laws in this regard. But we also need the help of students, teachers, parents, neighbours, police, judiciary, lawyers etc for implementing them.
The Clinical Establishments (Registration and Regulation) Bill, 2010: Will It Change the fate of accident victims?
Feb 15th
The 201st Law Commission report states that “Road accidents are increasing at an alarming rate of 3% annually. About 10.1% of all deaths in India are due to accidents and injuries. A vehicular accident is reported every 3 minutes and a death. A trauma-related death occurs in India every 1.9 minutes.”
In India, the witnesses of an accident become mere spectators due to the fear of subsequent legal procedures and their lack of awareness about pre-medical care. Often the doctors ignore such victims by denying the authorization of these medico-legal cases. There is a lapse of almost 35 to 45 minutes time between the accident and the arrival at the hospital. This is usually because public is very scared to offer any help to the victim. The people are frightened that the same would turn out to be a police case. Very few people take up the responsibility to help him. Some formalities have to be addressed when the victim arrives at the hospital. Ultimately the patient is provided with some treatment. But at times the delay may even result in his death. In such cases the responsibility lies not only on the hospital but on the entire system.
The Court has not remained silent on the issue either. In Parmand Katra v. Union of India the Supreme Court observed that “Every injured citizen brought for medical treatment should instantaneously be given medical aid to preserve life and thereafter the procedural criminal law should be allowed to operate in order to avoid negligent death.” “The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment.”
Samantha Mukherjee a 20 year old student died. The hospital had discontinued his treatment when a fee of RS 15,000 could not be arranged. The National Consumer Disputes Redressal Commission on hearing the case, stated that medical aid cannot be refused on the grounds that victim is unable to pay the fee. The victim’s family was subsequently compensated with Rs.10 lakhs.
Fortunately, the enactment of a new legislation is on the cards. Movies like Munna Bhai M.B.B.S and others have always drawn our attention towards the miserable condition of accident victims who are often left unattended by the doctors. Favorably on 22 February things might change.
The Clinical Establishments (Registration and Regulation) Bill, 2010 if passed by the Parliament would bring smiles to the face of many people. Although it primarily provides a legislative outline for the registration and regulation of clinical establishments in the country. It would also make it mandatory for doctors, hospitals and other medical establishments to treat and stabilize victims of road accidents and other emergency conditions. The act would apply to all systems of medicines and not only particularly to allopathy. The act would also apply to small clinics and even single doctors. The act would however not apply to Armed Forces Medical Service. The Act would primarily be applicable in Arunachal Pradesh, Himachal Pradesh, Mizoram, Sikkim and all the union territories. It is expected to be implemented by other states as well. Similar legislation have already been passed by Delhi, Maharashtra, Punjab, Nagaland, Andra Pradesh and Orrisa. It would also set minimum standards of facilities and services which surely improve the health services in the country.
It is definitely an optimistic step put forth by the legislature. It would highly benefit the accident victims. The victims would not only be given initial medical care but if the hospital is found incompetent to provide the same the patient would be transferred to another hospital with adequate facilities. The doctors would no longer be allowed to leave such patients in agony. They would be obligated to provide them with due medical assistance.
The people must be made aware of the Act by advertisements and other means. The notices should also be displayed in all clinics, dispensaries and hospitals. There is an urgent need for well-equipped and well-maintained ambulances in the country. Pre-medical training must be given at governmental and educational institutions.
In United States the person giving pre-medical assistance to accident victims is not subjected to any kind of damages. Similar position must be adopted in India as well. The common notion that prevails in the country that helping an accident victim would result in problems must be addressed. Law has only a minimum role to play when the moral responsibility of the citizens is involved. The constant fear of the public must be addressed both by the government and the police. For this more and more Community Policing schemes must be encouraged. The people who help accident victims must be given credit and recognition. Saving life is not only by saving people from drowning or murderers but also by providing the adequate medical help at the time of need.
Suicides – Can Legalization of Them Promote Murders?
Feb 12th
The World Health Organization predicts that ‘Every year, almost one million people die from suicide; a “global” mortality rate of 16 per 100,000, or one death every 40 seconds.’
The 2006 report of the National Crime Records Bureau says that India has a suicide rate of 10.5 per 100,000 of population. In which maximum females belonged to age group (15-29 years), and males belonged to the age group of (30-44). As per occupations, the stats are as follows:
Self Employed (41%)
Students (5%)
Unemployed (7.5%)
Housewife (21.2%)
Service (11.5%)
Retired (0.9%)
Others (12.8%)
These statistics indicate many things. The maximum number of females who committed suicide belonged to the age group of (15-29) years which is a real cause of worry. The group definitely include adolescent girls (reasons may be parental or peer pressure, exams, love or harassment) and young woman (may include rape victims, newly married wives, house wives, working women, victims of domestic violence and dowry etc). Another statistics related to occupations suggests that house wives commit most number of suicides after Self Employed people.
It can be easily inferred that most female deaths (which may occur due to domestic violence) are either colored to be suicides or they are actual suicides which occur due to the harassment faced by them. The 91st Report on Dowry Deaths and Law Reform by the Law Commission of India rightly points out that “dowry deaths always take place in closed doors”. If right to suicide is granted then it might happen that many murders would be cloaked as suicides. It would definitely benefit dowry seekers, harassers and assailants but would definitely harm the interests of the victims. Presently abetment to commit suicide is also punishable under Section 306 of I.P.C. If Section 309 which declares attempt to suicide as a crime is abrogated, then this Section may also be amended. If Section 306 is amended or repealed in various cases of domestic violence the accused would be acquitted easily.
Its not just female suicides we are concerned with India faces a huge of farmer suicide as well. In Vidarbha 1,065 farmer committed suicides in 2006 whereas in Chhattisgarh the number was 1,483. The State Governments have always presented low figures of farmer suicides in their territory. They have often shredded their responsibility and have seldom blamed the Center or even the farmers for their miserable condition. If suicide is legalized then it is pretty evident that the government might just comment “It’s their right and they exercised it. What can we do?”
Another thing worth mentioning is the suicide rate amongst the retired which is the lowest. One of the possible reasons might be that they are contended and satisfied with their lives. Various studies have predicted that the most number of suicides occur when a person is depressed or mentally unbalanced. Such decisions cannot be said to be taken with all due care.
Euthanasia is observed by different nations in different approaches. Netherlands, Finland, Sweden, Belgium recognize mercy killing as a right but countries like India and Pakistan. Euthanasia is of two types: active (in which some other person takes steps to hasten the death of other like Cancer or A.I.D’s patients.) and passive (when the person’s life is supported by artificial means).
Mercy killing is a debatable issue. Where some countries believe if we cannot give life we cannot take it either, the others believe that a person has the right to die in such circumstances. Suicide and mercy killing might appear similar but they aren’t. Where mercy killing is usually granted on medical grounds, reasons of suicide are numerous.
In India Article 21 enumerates Right to Life some jurists believe that it also includes Right to Die. Section 309 of the I.P.C makes attempt to suicide a punishable offense with imprisonment up to 1 year or fine or both. In P. Rathinam case the Supreme Court declared 309 as unconstitutional as it violated Article 14 and 21. But the decision was subsequently overruled in Gyan Kaur case. The court observed that “When a man commits suicide he has to undertake certain positive overt acts and the genesis of those acts cannot be traced to, or be included within the protection of the ‘right to life’ under Article 21. The significant aspect of ‘sanctity of life’ is also not to be overlooked. Article 21 is a provision guaranteeing protection of life and personal liberty and by no stretch of imagination can ‘extinction of life’ be read to be included in ‘protection of life’.”
For various reasons mentioned above I would not recommend the legalization of suicide. But Section 309 imposes double punishment on a victim. He is already unsatisfied with his life and wants to end it. Imprisonment or fine would definitely enhance his miseries. Instead of imposing deterrent punishments on him medical assistance, counselling and help must be granted.
An Insight Story on Serial Killers – The Next One Might Be Just Around Your Neighbourhood
Feb 11th
.jpg "Charles Sobhraj - Image Credits : CrimeandInvestigation.co.uk")
Some lawyers are known for their good deeds some aren’t. Ted Bundy, a handsome law student stalked and murdered dozens of college going female who had close resemblance with his former girl friend.
The infamous case of Robert Pictone was not only the longest trial in Canada but the investigation was worth $100 million dollars. It is believed that he was responsible was a death of 60 women and his targets were usually sex workers.
Those who assume that serial killers are only males who are guided by sexual pleasures must look at the recent case of Kempamma (probably the first woman serial killer of India). Kempamma who resided in Bangalore had poisoned dozens of her victims with cyanide injections. Her modus operandi was very simple. She convinced innocent and distressed women in temples that she knew the art of healing their grievances by performing special religious prays at homes. The gullible women when allowed her at their houses, she would murder them by injecting cyanide and after robbing the place would elope. The court awarded her death penalty. The woman neither had an accomplice nor any sexual abhorrence against males.
Educated and affluent people can’t be serial killers think again. Thrice married Mohan Kumar, a Manglore based teacher had targeted eighteen young women aged 22-35-years. He preyed on young unmarried women convincing them to marry in future and after having sex and killing them by making them take cyanide as an anti-pregnancy measure. His plans were well executed and organised. He usually took the span of two months for his potential victims and scouted for others in the same period. Studies reveal that impersonating methods like poisoning (Mohan Kumar and Kempamma) is infrequently observed among the serial offenders.
British identified Thug Beraham as the first serial killer of the country. It is estimated that he had around 931 victims. He had an entire gang which befriended tourists and later on killed them. Thug is a word now used to connote a deceit.
Charles Sobhraj is a notorious personality known worldwide. He was also known as the bikini Killer as a few of his victims were found murdered in Bikini. He had a lavish life style and had killed 12 victims. He was awarded a life imprisonment in Nepal.
In 1995 Auto Shanker was hanged. He had been convicted of murdering 9 teenage girls in a period of 6 months in 1988 in Chennai. His other accomplices including his brother were awarded life imprisonment.
There have been many serials made on the stone man who targeted beggars and homeless on the streets in mid 1980’s. The identity was never established and the murders were stopped in 1987.
Serial Killer is a subject which is both interesting and challenging. The number of victims is used as a criterion for determining whether a crime is serial in nature. Where the North American National Institute of Justice defines serial murder as involving two or more victims, the FBI suggests that serial crime (rape, murder, arson) has at least three victims. The term serial crime evolved post 1980’s, prior to which they were usually known as mass murders. But now mass murders are presumed to occur when the victims are killed in single event. When the murders take place at different places but are in continuation of the same event the same is termed as spree murder.
Various studies have suggested that a serial offender possesses a combination of psychopathic, narcissistic, sadistic, paraphilic and fantasy prone tendency. It is often seen that serial offenders lack remorse and guilt. Although seldom they are found legally insane they possess personality disorders. They usually have no respect for other person’s rights. They not only kill or rape their victims but also use them as objects of perverse gratification. Where the acts by psychopaths are impulsive it is observed that serial offenders work in an organized and planned manner. The style of victimization is consistent and repetitive. It is observed that they lack apathy towards others. Geberth once said that ” A serial killer, despite of his outward facade, is a very insecure individual. He is without any power until he has a victim under his control.”
Physiologists have propounded that the sadistic tendencies in a serial killer is established in his childhood or adolescence. Sadistic are the people who enjoy the psychiatric suffering of others. Various serial criminals seek to demean or humiliate their victims. In many rape cases nude bodies of the victims were found in open grounds. Often the corpus is positioned in a dramatic position to seek the attention of observers.
Where in conventional crimes a relation exists between the victim and the offender the victims of serial crime are strangers. It is argued that the Serial Killers work under delusion or fantasy. Richard Trenton Chase used to kill his victims for their blood assuming that it would prevent his own blood from evaporating. Edward Gein believed that making masks from corpses and wearing them would transform him to a different person.
Various sources like the crime scene data, witness reports and confessions by the offender can help in establishing the evidence. There are varied indicators of victimization. For example in rape cases a violent treatment may be done to the victim (eg. torture, biting, burning etc) or souvenirs may be collected (personal belongings of the victim). In cases of murders cannibalism, sexual assault, souvenir collection, evisceration and dismemberment may occur.
Serial Offenders can chose anybody as their victims. It is difficult to identify a serial killer. He may look normal and may even impress you. A victim of a serial killer is an unfortunate bate who may not be able to judge the ill intentions of an amiable person. Courts grant them sentence after their legal sanity is established. But if they are deemed to be legally insane then medical help is provided to them. Sometimes the offender is never caught and the crimes stop all of a sudden. In such cases it is assumed that he had accomplished his motive. As I said before Serial Killer is a subject which is both interesting and challenging. They cannot be defined in strict terms and cannot be given the same treatment. The reasons and methods of crime are very individualistic in nature. They cannot be judged solely by legal dogmas. Their condition, punishment and treatment has to be adjudged by both law and forensic psychology.
Raped – Now, What? Do I Have to Suicide or Is There Something Written in Indian Law to Protect Me
Feb 10th
Posted by meghna in Legal Mirror
2 comments
1. A Rape is committed every 54 minutes;
2. Molestation every 26 minutes;
3. Kidnapping or abduction every 43 minutes;
4. Eve-teasing every 51 minutes;
5. Dowry death every 1 hour 42 minutes;
6. Criminal offense against women every 7 minutes.
Rape is a reality which is detested by all. It is a crime not only against the body of an individual but also against his mind, psyche and reputation. The rapist is only questioned once caught but the raped is questioned at every stage and by every strata of the society. The victims have experienced that the police is often reluctant to lodge their complaints. Even if the complaint is lodged, the justice is far from being delivered. In courts circumstantial evidence is highly relied upon. The defense always supports the theory that the intercourse was with mutual consent.
In various cases the absence of injury has been considered as a proof of consent by the courts. Victims are forced to lay every slight detail of the incident which may not be possible. Mostly the facts are not presented in an appropriate manner which often leads to the acquittal of the accused.
In traditional society like ours raising voices against any crime of sexual orientation is considered a taboo. Many girls have witnessed oppression from their own family members in such instances. A rape victim needs a lot of courage to bring the matter into notice. But the agony does not end here. It is continued at every stage whether it is medical treatment, lodging of F.I.R or even attending a trial. The entire system is harsh to her. Time and again some N.G.Os have provided the victims both financial and psychiatric support but practically they are unable to help all of them.
The accused may be known or complete strangers. The crime of date rape has increased significantly in the past few years. Not to forget the rape committed by one’s own relative (including fathers and husbands) and those committed by stalkers, taxi drivers, guides and may be a co-worker. Statistics suggest that in about 7 percent of the cases, fathers or other intimate members of the family or close relatives were themselves the offenders. About three-fourth of the offences were the result of offence by Neighbours and other persons known to the victims. Only one-eighth of the offences were committed by strangers. Reports have also shown that when a married woman is raped, she looses her love for husband and bond with the family. This effects not only her but her children and husband as well.
A rape victim deserves certain rights irrespective of her nationality or religion. In December 2009, came the shocking statement of Shantaram Naik, (a congress M.P. from Goa) who said that the alleged rape of 25-year-old Russian woman in Goa was blown out of proportion by the electronic media. “Rape is a heinous crime but an alleged rape of a lady who moves with strangers for days together even beyond the middle of the night is to be treated on different footings.”
Different in what footings? This is just another way of getting rid of their responsibility. Maligning the character of a buried woman only shows how low politicians can get for their self interest. Instead of protecting tourists targeting their character is both shameful and intolerable.
Not only this asking Imrana to marry her rapist father in law was no viable solution put forth by the religious protagonists. Instead of punishing the culprit the decided to reward him. What kind of justice is this?
The offense of rape declares a punishment not less than 7 years which may extend up to life imprisonment too. But a husband who rapes his wife who is below 12 years of age is only liable for an imprisonment which may extend up to 2 years or fine or both. Sparing child rapes even by a husband is very disgusting. Rather they should be more stringently punished. The Indian law doesn’t recognize the crime of marital rape yet. Also there is no section in IPC which punishes boys under 16 years of age for committing rape. They can be prosecuted only under Section 377 (Unnatural Offences) of I.P.C.
Whether capital punishment must be awarded to such offenders is still a debatable issue. The then Marxist leader and Chief Minister of Bengal Buddhadeb Bhattacharjee said: “The government and I are in favor of the death sentence in this particular case. The Center has been informed of this. The message should go loud and clear to the perpetrators of such crime.”
The infamous case of Hetal Parekh indeed deserved this punishment for the accused Dhananjoy Roy who not only raped 14 year old Hetal but also brutally murdered her. His plea to the president for remission of sentence was rejected by Mr APJ Abdul Kalam. The decision was welcomed by almost everyone in the country.
There is an urgent need of speedy trial for such cases. It may be done by introducing a separate legal system for such sexual offenses. Medical help must be provided to the victims which should include counseling and vocational training (in cases where the woman has be out casted from the society and has no means sustenance). The same can be provided by state fund. The fine for such offenses must not be kept nominal.
If the medical examination is not conducted within 48 hours of rape the offense is very difficult to prove. Most of the females are unaware of this and to get rid of the physiological scars they take bath before medical surveillance. Awareness programs must be conducted to demonstrate what a victim must do in case of rape. Moreover keeping in mind the mental state of the victims a female doctor must be appointed for the examination.
The recent amendment in Criminal Procedure Code(Cr.pc) is a very optimistic step in this regard. Now such cases have to be presented before a female judge. A more effective witness protection scheme is also being guaranteed. The statements of the victim would be recorded at their house or some other safe place preferentially in presence of a female officer. A female may engage a lawyer to help the prosecution with prior permission of the court. The investigation has to be completed within three months from the date when information was recorded by the officer in charge of the police station. Protection of the victim’s identity, maintaining the confidentiality of the name and address of the parties, camera trials and conduct of trials by a woman magistrate are also provided in the amendment.