“ GENDER BIAS PROVISIONS UNDER INDIAN PENAL CODE, 1860 ”

Submitted by:

Jyotsana Singh, B.A. L.L.B (Hons.)(1328)

Samar Pratap Singh, B.A. L.L.B (Hons.)(1368)

Submitted to:

Father Peter Ladis,

Faculty of Criminal Law

This rough draft is submitted in the partial fulfilment in criminal law

for the completion of BA L.L.B course.

November 2016

Chanakya National Law University, Patna

 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

DECLARATION BY THE CANDIDATE ............................................................................ 3

ACKNOWLEDGEMENT ..................................................................................................... 4

I. Abstract .............................................................................................................................. 5

1. Aims and objectives................................................................................................. 7

2. Research questions .................................................................................................. 7

3. Hypothesis ............................................................................................................... 7

4. Limitations & scope................................................................................................. 8

5. Research methodology ............................................................................................ 8

6. Review of literature ................................................................................................. 9

II. Gender Neutral provision of IPC: a Step for Justice to men............................................ 11

III. Gender Biased provisions in IPC: A Historical overview ............................................... 13

IV. Barriers To Neutralising Biases In IPC ........................................................................... 16

V. Gender biased provisions under IPC: .............................................................................. 23

VI. Conclusion and suggestion ........................................................................................... 35

Bibliography ......................................................................................................................... 39

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DECLARATION BY THE CANDIDATE

We, hereby, declare that the work reported in the L.L.B (Hons.) Project Report entitled
“GENDER BIAS PROVISIONS UNDER INDIAN PENAL CODE, 1860” submitted at
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA is an authentic record of our
work carried out under the supervision of Dr. Father Peter Ladis. We have not submitted
this work elsewhere for any other degree or diploma. We are fully responsible for the
contents of our Project Report.

(Signature of the Candidate)

Jyotsana Singh (1328)

B.A. L.L.B., 2nd year

SEMESTER -3rd

CNLU, Patna

Samar Pratap Singh (1368)

B.A. L.L.B., 2nd year

SEMESTER -3rd

CNLU, Patna

Dated :

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ACKNOWLEDGEMENT

We would like to show our gratitude towards our guide Dr. Father Peter Ladis, Faculty of
Criminal Law, under whose guidance, we structured our project.

We owe the present accomplishment of our project to our CNLU librarians, who helped us
immensely with materials throughout the project and without whom we couldn’t have
completed it in the present way.

We would also like to extend our gratitude to our friends and all those unseen hands that
helped us out at every stage of our project.

THANK YOU,

JYOTSANA SINGH &

SAMAR PRATAP SINGH

SEMESTER -3rd

CNLU, PATNA

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I. Abstract

“It is a matter of bitter shame and sorrow and deep humiliation that a number of women have
to sell their chastity for men’s lust. Man, the law giver, will have to pay a dreadful penalty for
the degradation he has imposed upon the so-called weaker sex. When woman freed from
man’s snares rises to the full height and rebels against man’s legislation and institution
designed by him, her rebellion, no doubt, non-violent, will be nevertheless effective”

- Mahatma Gandhi.

Although Gandhi was correct in analysing the consequence of the women exploitation those
days. Certainly, he cannot forecast the worst that could happen. Earlier the nature of Indian
society was patriarchal in true sense. In fact, the Gandhian philosophy which influenced the
law makers to make such laws was based on the contemporary situations and popular control
of power. The code formulated in 1833 is the reflection of the time in itself. At that time,
Women were regarded either as goods or as machine for procreation only. The society was
actually harsh towards them. This harshness turned into crimes. But those crimes were
neither properly reflected in police records nor in the judicial pronouncements. The condition
became so pathetic that the law makers needed to intervene. The laws were made stringent
for bringing order in the society. Several special laws were made for protection of women
under article 15(3) of constitution of India. Like —

• The Immoral Traffic (Prevention) Act, 1956,

• The Dowry Prohibition Act, 1961 (28 of 1961) (Amended in 1986)
• The Indecent Representation of Women (Prohibition) Act, 1986
• The Muslim women (Protection of Rights on Divorce) Act, 1986, The Commission of
Sati (Prevention) Act, 1987 (3 of 1988)
• Protection of Women from Domestic Violence Act, 2005
• The Sexual Harassment of Women at Workplace (PREVENTION, PROHIBITION
and REDRESSAL) Act, 2013
• The Criminal Law (Amendment) Act, 2013
These legislations were necessary looking at the graveness of the offences that were
being committed. But do such legislations are still needed? If needed, should they be
in the present form or amendments are required. The most recent amendment in IPC

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was done in 2013 after NIRBHAYA incident. Logically, the question here is “was it
actually needed?” And if that was needed what was the logic. Laws should not be
made due to one bad example or by becoming impulsive due to some emotional
reaction. The statistics of NCRB shows that the most of the FIRs lodged under sec
354 & 376 results into acquittal of the accused or proved to be false in initial police
investigation. On the other hand, there are cases of sexual offences and assault on
men. The law commission has said this in its report.1 In our constitution itself, it is
written that there will be no discrimination will be done in the name of caste, creed,
religion or sex. But here not recognising the offences against men violates Article 14.
Hence, there is a big question on making rape laws totally gender biased after 2013.
It is an undeniable fact that the provisions which were made for protection of women
are grossly being misused these days. The Supreme Court said,
“The fact that Section 498-A is a cognizable and non-bailable offence has lent it a
dubious place of pride amongst the provisions that are used as weapons rather than
shield by disgruntled wives. The simplest way to harass is to get the husband and his
relatives arrested under this provision. In a quite number of cases, bed-ridden grand-
fathers and grand-mothers of the husbands, their sisters living abroad for decades are
arrested.”2
Not only this single judgement but various newspaper reporting and NCRB statistics
tells the same story. Today, the fairer sex is not only challenging the legislation, but
disturbing the social balance too. They use these legislations as tools for extortion of
money, revenge, property and at times for sexual needs satisfaction too.

The commonplace understanding of dowry as akin “to atrocities to the girl side” was one of
the major reasons why the human rights violations of boys’ family inherent in were never
understood. This is called for demystification of the term. The complexity of the
phenomenon, its multidimensional nature, its rapid spread and the confusion surrounding the
concept has made the need for a deeper comprehension of the biased nature of IPC towards
female and problems emanating from it, a top priority. The reasons for its persistence and
rapid proliferation were not very clear. Thus, there was an urgent need for a greater
understanding of the various aspects of the phenomenon.

1
Law Commission of India 172nd Report On “Review Of Rape Laws” March, 2000, para.- 3.1.
2
Arnesh Kumar vs State of Bihar & Anr;(2014) 8 SCC 273.

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The researchers having imagined the far reaching consequences have tried to analyse the
same and put forth a complete report on it. The project has been made from very analytical
and neutral perspective to justify the problem in question and its existence. The project
report aims at finding out each and every question raised above. The study also make a
comparative analysis of the data available prior to 2013 and after 2013. This will make things
easy to be understood about the credibility of the amendments done and the special laws in
place. The research covers a universe comprising of whole of India and its people.

1. Aims and objectives

The researcher wants:

• To study the gender biased (towards males or females) provisions of IPC.

• To know the rationale behind gender biased provisions in IPC.
• To testify the effectiveness of the provisions of IPC, before and after its
commencement, with contrast to the founding principles of it.
• To find out the reason of the problem in question.
• To suggest the required transformation in the laws and provisions for countering the
problem in question.

2. Research questions
• What are the provisions which are gender biased (towards males or females)?
• What are the purposes of making such provisions in IPC?
• Do they serve the purpose they are meant for? If not, why.
• What are the new problems emanating with such provisions?
• What should be the steps & methods to curb such problems?

3. Hypothesis
• The provisions related to Sexual offences against women are of bias against men.
• Bride family misuses such provisions. Instead of protection to women, it has become
a legal tool for exploitation of men.
• The gender bias problems have given a rise in the number of cases in family courts in
India.

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• Sexual harassment against men is an offence.

4. Limitations & scope

The fact that this study was exploring an uncharted territory, that too a clandestine activity
like making the penal laws neutral, presented formidable challenges in conducting the
research. Locating cases of sexual harassment to men was by no means an easy task. Since,
the researchers are 2nd year students of 5 year course at CNLU, Patna, they can access only a
limited area. It lacks the chance of making the project more effective, if the study for it would
have been a comparative one with respect to other provisions listed therein. The researchers
having read the commentary on the IPC could understand the problem clearly but it might
have been clearer if he would have read commentary of more writers. The historical need and
background is also necessary for having a bird’s eye view of the particular topic and it gets
developed only by effective and extended reading over a long period of time. Hence, after
facing all the difficulties the researchers have managed to frame a complete and the clearest
picture of the problem, they could make through their best efforts.

Apart from these, the research work is done in short span of time. Consequently the research
work gets limited to certain depth. The uniqueness of topic makes it difficult for the
researchers to have ample amount of information available on the topic.

5. Research methodology
The research work is centred on the literature available in the library. Hence, the method of
research is purely doctrinal. The researchers while doing this research work relied on the law
commission reports, the newspaper reports, Supreme Court judgements and NCRB data. The
researchers analyse the effectiveness of the provisions by the inflow of cases to family courts
in different years. The researchers also read the commentaries available to ascertain the real
intention of the legislators behind formulating the provisions in question. So, the doctrinal
research methodology helped in bringing the project work in the present form.

The researchers having done doctrinal type of research went through the primary as well
secondary sources. The researcher having gone through this methodology could be able to get
an exact picture of the problem in question. The doctrinal method helped in doing a
comparative study of the topic. This methodology helped in going through not only the work
of one eminent person but of many. This helped in getting the bird’s eye view of the subject.

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To satisfy the need of the project, the researcher keeping in mind the provisions went through
section by section and clause by clause of each section in question. Then, the researcher cross
checked the commentary of those provisions. This methodology proved to be the most
effective in preparing the project.

Prevention, protection and prosecution were the three main areas covered in our third
Objective. This involved critical examination of the existing legal framework for combating
dowry and sexual exploitation related offences, including constitutional provisions, national
conventions regarding them. Special emphasis was laid on analysing the domestic violence,
dowry prohibition act and rape laws with a view to search for the lacunae that could
contribute to the ongoing discussion and reformulation of the law. The next logical step was
to move from identification of lacunae in the law to the law enforcement process and the role
of the police and other enforcement agencies in protection and prosecution. Prestigious
magazines, write ups and commentaries by eminent persons were read carefully to
understand the role of judicial officers, prosecutors, doctors and others concerned. The
judicial response and community response were studied. Finally, the study gave us valuable
insights into the rehabilitation efforts by various agencies – governmental and non-
governmental and also the processes involved in the area of prevention.

6. Review of literature
The researchers are aware of several good literatures available in this topic like — law
commission report and several surveys done by private NGOs.

The law commission report brings to light the true picture and recommends for the
amendment in the provisions of the penal code. It also put forth the survey of an NGO near
Goa. But it is not complete in the sense that relying on the data of an NGO we cannot alter
the laws. Without knowing the method of research and even if the data are correct there
might be possibility that particular problem is local. Hence, the law commission report
although points out the problem but lacks universality of applicability. This research work is
based on NCRB data. The data of every state is cross checked and verified with the survey of
some NGOs. Hence, the report is very commendable work in this regard.

Justice Verma committee report — Today, The opportunistic politics have taken the place of
good and healthy politics. The J. S. Verma committee was formulated in response to the huge
outcry of the civil society led by youth after Nirbhaya incident. The time allotted was only 30

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days. I ask you a question— can such a grave matter can be properly analysed or surveyed
within such a short period. Isn’t it a joke of such a serious issue? For this grave issue, all the
cases lodged should be examined. Extensive survey on the ground needs to be conducted
looking to the both side of the coin and it takes time. Definitely, the J. S. Verma committee
report is not what it ought to be.

The expressions ‘aggravated sexual assault’, ‘Criminal Law’, and ‘speedier justice’ used in
the terms of reference contained in the Notification dated December 23, 2012 constituting the
Committee, have to be interpreted expansively to serve the object of this exercise. This
notification had never intended that the sexual assault on a particular gender only should be
examined. Rather it was a committee to review the whole criminal law. But under pressure
from the public and the opportunist and appeasing government, the committee only focussed
on the assault on women and gave the one-sided decision. This shows the biased intention of
the committee. The committee forgot one thing which was important in order to follow the
popular public demand —the speedy trial and speedy disposal of the pending cases. The most
valuable aspect was given the least importance in the report by the committee.

Although the committee was formed for suggesting amendments in criminal law but the
committee primarily focussed on making laws biased towards women in the name of
protection to the other sex. The report was presented in so much haste that it forgot the
primary objective under the emotional public pressure. Hence, this project is also a critical
analysis of the J.S. Verma committee report.

There are other literatures available on this topic but are not primarily meant for the purpose
this project is meant for. Hence, this project holds an uniqueness of its own kind.

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II. Gender Neutral provision of IPC: a Step for Justice to men

“I believe that no country ever stood so much in need of a code as India and I also
believe that there never was a country in which the want might be so easily supplied ,
Our principle is simply this — uniformity when you can have it ; diversity when you
must have it; but in all cases certainty.”
—Lord Macaulay; 1833; House of Commons; London3
If we go through the history of IPC and the need of its creation, we can understand the
very essence of IPC. As said by Lord Macaulay that the uniform code for the crimes
and offences was needed. The British had come to India for trading and earning
wealth. But for that too, they had to control the administration in an orderly manner. If
the population keeps on fighting, then, it was impossible for them to maximise their
income from India. At that very point of time, there were a number of personal laws
functioning in India. What the “masses” commanded was the law and it decided the
conduct of the people at that time. This created diversity in penal laws all over India.
This problem is dealt by the Macaulay in his address to the House of Commons.
There, he declares that India is the most desperate country which is in need of the
penal code. And the law made was the reflection of the society then.
Since, the society being the patriarchal one, the male members did atrocities on the
female counterparts. The atrocities over women are not one or two days old but
centuries old. We find reference of CHARAN as the punishment for the rapists under
Maratha rule. At that time, the condition of women was pathetic. But the course of
time brought many chances in the society and laws too. According to the need of the
time, laws were made stringent. It always tried to make balance in the society by
putting its weight towards the weaker one. Law always worked as the balancing force
in the society.
Previously, the scenario was that the laws were made to safeguard the female
population from male atrocities. Since, the power was unbalanced and male had an
upper hand in decision making. With the industrial revolution and urbanisation, the
other sex attained a stable and strong position in society. But the common place
understanding, that the other sex is always oppressed, does not change.

3
Jethmalani, Ram & Chopra, D.S, A Comprehensive Commentary in The Indian Penal Code; pg. 12 (Delhi,
Thomson Reuters ,2014).

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Progress in technology is already overcoming the handicaps women suffer in holding

jobs in the market, since jobs in the future industrial societies will be based not on
muscular strength but on skills and discipline.4
In the 21st century, the scenario has changed. Women have acquired power and
awareness. They fight for their right and prestige. They hold responsible posts. They
have started revolting against the old practise. They have already crossed the
imagination of Gandhi and the worst thing has started happening. Today, women have
started taking undue advantage of the rights conferred upon them by the state. Since,
the fairer sex has an important role in balance and smooth functioning of society, their
revolt and unruly acts have become big problems for the population. The trust faculty
which binds the society together has started eroding. There were many discrepancies
which have arisen with time in our social system. But this is the gravest thing
observed so far. It is visible in the new types of offences done by females to the
elderly members of the family and even to the husband or male counterpart. Such
crimes or offences have been done due to certain reasons. 5 This, we will encounter
while pursing through the project work.
The law being the balancing force in society. It brings balance by putting its weight
towards the lighter side. The same was done earlier also for protection of fairer sex.
But now, the reported incidents and false cases have shown that the time has come to
alter the provisions again. It is the high time to change the provisions in order to
protect our social order.

4
Human Development in South Asia, 2000: The Gender Question, The
Mahbub ul Haq, Human Development Centre, Oxford University
Press, 2000.
5
Observed by Justice Chandramauli Prasad in Arnesh Kumar vs State of Bihar & Anr.

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III. Gender Biased provisions in IPC: A Historical overview

“Patil of village Ranjhe was accused of assault and rape … victim committed suicide and
her father came to Shivaji for justice … This Patil was duly tried in his court and after
examining evidence and recording witnesses, Shivaji punished the Patil by cutting his one
arm and one leg …”6
The penal provisions were in existence in India for centuries. But there severity varied with
time. This concept of rape was not in existence as it is now. Historically, rape was the
synonym for the criminal sexual violence in India. Originating in the 1860’s, at a time when
fairer sex had the least or better say, no influence over the shape or substance of legislation
affecting them; the rape law remained, on the statute books for 123 years, untouched.
The change was sought in the light of few popular incidents which raised a lot of hue and cry.
The year of 1983 witnessed a similar situation. A tribal girl was gang raped within the
precincts of a police station. At the time, the family members and girl’s boyfriend were
standing outside the station. The Hon’ble Supreme Court of India branded the complainant as
a “vicious liar”, “habituated to sexual intercourse” and whose failure to ‘resist’ implied
consent to the abuse.7
All of a sudden, the case evoked national level outrage. The immediate community within the
precincts of the police station compelled registration of the case, the mighty media reacted
sharply to the Courts’ comments and the prominent legal academicians demanded review of
the case. Instead of responding, the Court directed law reforms. The case is a classic picture
of myths and stereotypes which pervade legal responses to sexual crimes against women.
Prior to the year 1983, the inadequacy of rape laws, manifested in a number of
judgments of the Supreme Court of India,8compromised justice for women. The intelligentsia
protested strongly. The protests by these women's organizations, social scientists and jurists
against the law to adequately protect rape victims, ultimately led to legal amendments. In
1979, the Government of India referred the matter of revision of rape laws to the Law
Commission. In 1980, a comprehensive Criminal Law (Amendment) Bill was introduced in
Parliament. The same was passed in 1983.

6
Gupta, Yoginder, Balagokulam Guide, lulu.com, pg.- 17; See also, Dave, Anil Madhav , Shivaji & suraaj;
Prabhat Prakashan; 1st edition (Nagpur,2015).
7
Tukaram v. State of Maharashtra AIR 1979 SC 185.
8
See also: Bharwada Bhoginibahi AIR 1983 SC 753; Sidheshwar Ganguly AIR 1958 SC 143).

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The eighties was the decade of law reforms. Most of the reforms relating to violence against
women took place in that period. But still from the very beginning, the law reformers were
less inclined to articulate the goal of such reform and resorted instead to ad hoc, band-aid
amendments. With the result, consent was never defined, past sexual history was retained and
the police were absolved of accountability in failing to register cases. That response pattern
has been characteristic of law reform ever since. In twenty years, perceptions of women and
sexual violence remain the same; myths and stereotypes characterised the most of law
reforms as well as most of the judgments.
It is no surprise that the law reform clearly failed in adopting the defined and realistic goals in
response to women’s experience of sexual violence. This led to another fiasco six years later.
In 1989, the Supreme Court of India reduced the conviction of two police officers again in
another gang rape of a tribal girl (who also was accompanied by her boyfriend). Validating its
act, the Court observed the complainant to be a girl of “easy virtue”, “used to sexual
intercourse” and of “questionable character”.9 Such cases are no longer unique and therefore
evoke less public response. Not only do, they continue to illustrate in the extreme how
terminology used for women entails strong moral judgment, but also how law reform must
work to re-engage public interest.
In the year 2000, the Law Commission of India was directed to suggest amendments to the
existing rape laws. This time also women’s groups pressed for two specific recommendations
emerging from 20 years of experience. “Consent in rape had created an easy entry point for
defence counsel to introduce women’s sexual life and history to discredit her complaint”.
That allowance made it impossible to secure convictions in the absence of any clear
definition. Women’s groups, therefore, proposed a specific definition of consent as
“unequivocal voluntary agreement”. Unfortunately, the latest Law Commission of India
Report rejected this proposal:
“We are, however, of the opinion that no such definition is called for at this stage, for the
reason that the said expression has already been interpreted and pronounced upon by the
courts in India in a good number of cases.”10 It was directly because of adverse
pronouncements of the courts that a clear definition was being called for. But still, the Law
Commission refused to consider a pattern of decision-making which clearly illustrated this
need.

9
Prem Chand v. St. of Haryana 1989 Supp (1) SCC 286.
10
The Law Commission of India, 172nd Report on Sexual Assault Law Reform, 2000, para.- 3.1.

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Finally, in the year 2005, the Protection of Women from Domestic Violence Act was a
notable step taken for exploring remedies beyond criminal law. The Act, inclusively, defined
“domestic violence" as all forms of abuse (sexual, physical, verbal, economic and emotional).
Physical violence means "beating, pushing, shoving and inflicting pain" while sexual
violence covers a few offences such as "forced sex, forced exposure to pornographic material
or any sexual act with minors".

The Act also offered women victim’s civil remedies hitherto unavailable to them. Until
recently, for Indian women, only Section 498A of the Indian Penal Code (IPC) was the
recourse available to them for filing a complaint against an abusive spouse (which deprived
the woman the right, i.e., to stay in her matrimonial home or to demand maintenance from the
abusive partner); the new law now provides her with a civil remedy. The Act also lays down
stringent rules to prosecute men who harass/beat/insult their spouses. Partner abuse can now
land a man in jail for one year or a fine up to Rs.20, 000 or both. Unfortunately, the act is of
little relief for 70% of women in non-urban sectors especially with 3 million pending cases
before the Supreme Court and 30 million pending at the district courts.

Not only had this, in the year 2013, after the Nirbhaya case, the J.S. Verma committee report
recommended that the laws be made more stringent. The punishment under different sub
heads was increased. There happened a big change after recommendation of this committee
that the provisions were made gender biased. The acts no longer recognise the same offences
against non-female gender. But did the amendments show any desired change in statistics? It
is a big question upon the credibility of findings of J.S. Verma committee report and the
amendments done.

After so many re-considerations, one thing got clearer that either the problem is too big or the
remedy sought for is totally wrong. The whole government machinery was working in wrong
direction. Hence, despite bringing reforms in the laws the crime rate remained out of control.
The stringent laws became curse for those innocent male and their families who became prey
to the false accusations and unnecessary litigation.

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IV. Barriers To Neutralising Biases In IPC

The misuse of the provisions under IPC and observations of the Supreme Court in Arnesh
Kumar vs State Of Bihar & Anr11 attracted a huge outcry and comments by different pressure
groups. These pressure groups made various arguments in support of biased provisions. They
are:

Concept of Equality and Equal Protection of law:

The constitution of India—the mother all laws of the land — envisages certain principles
which are to be followed while framing any rule. Under Article 14, it guarantees “Right to
equality” to its citizens. It means government is bound to discourage discrimination on the
basis of caste, creed, sex, religion, race and place of birth in India. But the contention is that
the gender biased laws discriminates on the basis of sex. The other contention is whether
equal Protection of law is being done or not? It aims at equality of treatment in equal
circumstances. It means equals should be treated equally and unequals unequally.
Applications of the same laws uniformly to all of them will, therefore, be inconsistent with
the principle of equality. To avoid that situation laws must distinguish between those who are
equals and to whom they must apply and those who are different and to whom they should
not apply.12
For instance, we have two types of cases: one where it seems that injustices have been done
to women and accused took the benefit of doubt and get acquitted. These acquittals,
sometimes, are the result of ambiguity in provisions themselves. Such cases are:
• In the Mathura rape case13, wherein Mathura- a sixteen year old tribal girl was raped
by two policemen in the compound of Desai Ganj Police station in Chandrapur
district of Maharashtra. Her relatives, who had come to register a complaint, were
patiently waiting outside even as the heinous act was being committed in the police
station.
The case came for hearing on 1st June, 1974 in the session’s court. The judgment was
in favour of the accused. Mathura was declared a liar and stated that since she was

11
(2014) 8 SCC 273.
12
Shukla, V.N.;Constitution of India; p 39,(Lucknow: Eastern Book Company) (2007).
13
Tukaram v. State of Maharashtra AIR 1979 SC 185.

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‘habituated to sexual intercourse’ her consent was voluntary. The court under the
circumstances took it only as sexual intercourse and not rape.
While on appeal the Nagpur bench of the Bombay High Court set aside the judgment
of the Sessions Court, and sentenced the accused namely Tukaram and Ganpat to one
and five years of rigorous imprisonment respectively. The Court held that passive
submission due to fear induced by serious threats given by the offenders could not be
construed as consent or willing sexual intercourse.
When the appeal was made to the Supreme Court, the Senior Counsel “Ram
Jethmalani” while defending the accused Policemen classified the concept of consent
into two parts i.e. Express and Implied consent. He said that there was no express
consent but it was implied as Mathura raised no alarm, there was no tearing of
clothes, no semen on clothes, no cry for help etc, he again said if there had not been
any consent, there would have been at least a cry for help. These circumstances are
enough to show that there was implied consent. The Supreme Court acquitted both the
accused and held that Mathura had raised no alarm; and also that there were no visible
marks of injury on her person thereby negating the struggle by her.
The Court in this case failed to understand that a helpless resignation in the face of
inevitable compulsion or the passive giving up is no consent. The Criminal Law
Amendment Act, 1983 has made a statutory provision in the face of Section.114 (A)
of the Evidence Act , which states that if the victim girl says that she did no consent to
the sexual intercourse, the Court shall presume that she did not consent.
• In Mohd. Habib Vs State14 , the Delhi High Court set free a (rape accused) rapist
merely because there were no marks of injury on his penis- which the High Court
presumed was a indication of no resistance. The most important facts such as the age
of the victim (being seven years) and that she had suffered a ruptured hymen and the
bite marks on her body were not considered by the High Court. Even the eye-
witnesses, who witnessed this ghastly act, could not sway the High Court’s judgment.
• In State of Punjab vs. Gurmit Singh15 , the Supreme Court has advised the lower
judiciary, that even if the victim girl is shown to be habituated to sex, the Court
should not describe her to be of loose character.

14
1989 Cri LJ 137.
15
1996 AIR 1393.

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

• In the case of State of Maharashtra Vs. Madhukar N. Mardikar16, the SC held that “the
unchastity of a woman does not make her open to any and every person to violate her
person as and when he wishes. She is entitled to protect her person if there is an
attempt to violate her person against her wish. She is equally entitled to the protection
of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown
overboard.”
• In Chairman, Railway Board vs. Chandrima Das17, a practicing Advocate of the
Calcutta High Court filed a petition under Article.226 of the Constitution of India
against the various railway authorities of the eastern railway claiming compensation
for the victim (Smt. Hanufa Khatoon) – a Bangladesh national- who was raped at the
Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as
compensation.
An appeal was preferred and it was contended by the state that:
a) The railway was not liable to pay the compensation to the victim for she
was a foreigner.
b) That the remedy for compensation lies in the domain of private law and not
public law. i.e. that the victim should have approached the Civil Court for
seeking damages; and should have not come to the High Court under
Article.226
In all these cases, there was violation of the rights and chastity of women where either the
laws were altered or the judiciary took a step towards justice. In all these cases the other sex
had done heinous act on women.
But, there is similar second type of cases where men became prey to the unjust laws or
negligence of judiciary due to lack of proper provisions. Such cases are:
• Arnesh Kumar vs State Of Bihar & Anr.18 : In a bench headed by Justice
Chandramauli Kr. Prasad and Justice Pinaki Chandra Ghose, gave a judgment in
Arnesh Kumar vs State Of Bihar & Anr on (2 July, 2014) where the Supreme Court
gave certain guidelines to be followed, they are, all state governments has to instruct
its police officers that they cannot automatically arrest a person under Section 498a of
IPC but under parameters of Section 41 of Cr PC. These police people should be
given check list specifying the Section 41(1)(b)(ii). Then these officers should fully

16
AIR 1991 SC 207.
17
(2000) 2 SCC 465.
18
(2014) 8 SCC 273.

18
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

add in the reasons which made them to arrest a person and then produce him before
magistrate without delay for further actions. Magistrate can then authorise detention
of such person only after perusing the reports produced by police officer and then
record the same. If a decision has to be put for not arresting the accused, then it must
be done within 2 weeks from the institution of the case and it has to be in writing to
the Magistrate. These directions of court will apply even to Section 4 of the Dowry
Prohibition Act along with Section 498a of IPC.
The court specifically mentioned in its judgement Indian Penal Code, Section 498A -
Dowry Prohibition Act, 1961 Section 84 In a number of cases provisions of Section
498-A and Dowry Prohibition Act are being mis-utilized by disgruntled wives to
harass to husband and his relatives of husband to get them arrest - Police directed not
to make arrest without reasonable satisfaction as to the genuineness of allegation.
• Pinakin Mahipatray Rawal vs State Of Gujarat19: in this case the respondent was
accused of maintaining extra-marital relationship with one of his colleagues which
allegedly caused provocation to his wife to commit suicide. But the prosecution failed
to prove the same in the court of law. Though the suicide was within 7 years of
marriage but the court was not satisfied with the prosecution that the death falls within
the purview of 498A. The court observed and it viewed that just because the husband
had an intimate relation with another person, even though he was married and failed
to discharge of his martial obligations, would not amount to cruelty and not so severe
mental cruelty that it leads the wife to commit suicide to fall under Section 498a of
IPC. Here, also the 498 A was misused against the accused by the prosecution.
• There are many such cases where court sensed foul play and misuse of the provisions.
like — Ashish Dixit & Ors. vs State Of U.P. & Anr.20 In which the court held that Wife
cannot implicate one and all in Domestic Violence case.
In Adil & Ors. vs State & Anr.21 The court held Domestic Violence Act is not meant to
enforce the legal rights of property.
Going through all these cases, it cannot be said that only the females or only the males were
weak. The equality of treatment in equal circumstances cannot be done until and unless each
and every case is seen as a unique case in itself. The weak and strong classification needs to

19
(2013) 10 SCC 48.
20
(2013) 4 SCC 176.
21
2010 (119) DRJ 297.

19
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

be done from beginning in each case because it is not necessary that only particular gender
remains strong or weak.
Hence, it can be said that equal should be treated equally and unequal unequally but when the
“unequal” have at par with the “equal” then the previously made laws should be changed.
Article 14 of Indian Constitution provides for equality before Law and equal protection of
law. Similarly article 7 of Universal Declaration of Human rights, 1948 provides that all are
equal before law and are entitled without any discrimination to equal protection of law.
Article 3 of the Covenant on Economic Social and Cultural Rights 1966 and the Covenant in
Civil and Political Rights 1966, provides that State parties to these covenants undertake to
ensure equal rights for men and women, given under these covenants. Article 15(3) of Indian
Constitution is considered as an exception to general rule of Article 14. If there is
discrimination in favour of particular sex, it is permissible provided that the classification is
the result of other considerations beside the fact that the persons belonging to that class are of
a particular sex.22
If a wife has a law to protect herself against the cruelty of her husband, why doesn’t husband
have it? When male goes with genuine complaint the police at max can record a Non-
Cognizable offence against the women. Every 100 male suicides have 45 married males, and
every 100 women suicide have 25 married women. Married women suicides have default
arrests of the in-laws under presumed dowry death. Married men suicide entitle wife for a
50% share in the property. What kind of equality is this? Equality is a dynamic concept
which goes on changing with changing times and social contexts and must be understood in
that sense. There is no prohibition clause in the section 498A that would stop women to
misuse it against the men.23
Hence, the Supreme Court said,
“Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed,
cabined and confined’ within traditional and doctrine limits. From a positivistic point of
view, equality is antithesis to arbitrariness. In fact equality and arbitrariness are sworn
enemies; one belong to the rule of law in public while the other, to the whim and caprice of
the absolute monarchy. Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and is therefore violative of article 14.”

22
Basu ,Durga Das, Commentary on the Constitution of India, Vol-I, p.986 (2007).
23
Mohini ,Lalsa, “Legitimacy of Section 498A of Indian Penal Code” Cri. LJ, Vol-117, April, p.127-128,
(2011).

20
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

Whenever law tries to impose weight on any party in the name of equality without proper
logic it will be arbitrariness and noting else.

Females are highly prone to Sexual offences:

It is a well known that the females are often subjected to sexual assaults. In fact the number
runs in 4 digits. Neither the researcher nor the NCRB data denies the very fact. It also does
not deny from the fact that the fairer sex was the oppressed class for centuries. Even today, in
the rural areas, they are highly subject to similar treatments. But the law makers, while
framing the law, forgot one thing that there is also one section of young boys which is being
oppressed by the members of either the same sex or opposite sex. All the members of male
group or all the members of female group are not equally capable. Each group has strong and
weak members. In each of these groups the stronger one exploits the weaker one. Hence,
stereotypically favouring one sex will hamper the interest of another.

Today, not only women but also the young boys are becoming prey to forced sexual assaults.
Trauma and psychological damage to a boy is never less than the trauma to a girl in this
situation. Boys and girls both are being subjected to oral sexual intercourse too. According to
survey by some NGOs and social activists like Ms Sheela Barse, both young boys and girls
are being rampantly used for various or say all types of sexual acts and sexual perversions
especially in certain tourist centres like Goa - mainly for enjoyment of the foreign tourists.
Sakshi24 have also recommended for widening the scope of the offence in section 375 and to
make it gender neutral. 25 The law commission accepted the proposal and included that in its
report sent to the govt. of India.

Not only has law commission or an NGO but the legislature also accepted the fact that the
boys or male members are also prone to such offences. Goa Children's Act, 2003 and POCSO
Act are the live proof of the same. The objectives for bringing these legislations are:

• Provisions of IPC aren't specific to children's needs.

• Laws have no provisions for repeat offenders
• What about the teenagers who choose to have sex with each other?
• No provisions for bail-able and non bail-able offences and lots more.

24
An NGO working for atrocities on women.
25
Supra, note at 10.

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

• The age of Child varies in every law.

• IPC 375 doesn't protect male victims or anyone from sexual acts of penetration other
than "traditional" peno-vaginal intercourse.
• IPC 354 lacks a statutory definition of "modesty". It carries a weak penalty and is a
compoundable offence. Moreover, what about the outrage of the modesty of a male
child?
• In IPC 377, the term "unnatural offences" is not defined. It only applies to victims
penetrated by their attacker's sex act, and is not designed to criminalize sexual abuse
of children.

Here, there are statistics which were the basis for the formulation of these acts.26

• 53.22% children in India are reported to be sexually abused, in a study by the

Ministry of Women and Children Development.
• In the same study, out of above mentioned number 50% had been abused by people
who they knew or were held in a position of trust and responsibility.
• According to UNICEF, across the world, more than 150 million girls and 70 million
boys have witnessed forced sexual intercourse or other forms of violence involving
physical contact.
• About 19% of the world's children live in India constituting 42% of India's
population.
Despite knowing the fact, the government is neglecting a very important issue. Not
recognising the offence against such a large section of boys is totally against the
ethics of our constitution. This shows how dubious our penal system is. This is also a
reason for the non-effective penal system.

26
Childline India Foundation; Child Sexual Abuse- The Law And The Lacuna;
Available at:< http://www.childlineindia.org.in/child-sexual-abuse-law-and-lacuna.htm> ;accessed on: 04-11-
2016;19:18.

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

V. Gender biased provisions under IPC:

The Researchers, after going through whole Indian Penal Code, came to know about the
various sections of IPC which are biased towards female. These sections are 304B, 354,
354A, 354B, 354C, 354D, 366A, 366B, 375, 376,493,497 & 498A. In addition to it, there are
various adaptations made in the light of statutes like Hindu adoption and maintenance act,
1956 and Special marriage act. Hereafter we will analyse each of these section:

• 304B, 498 A, Dowry prohibition Act and Domestic violence act :

It is no doubt that in history of crime against women there were and there are many
such black pages which compelled the legislature to come up with tight fist in order to
contain the menace. Since, amendments are the regular course of action in legal
system, in 1983 certain amendments were made in Indian Penal Code, Code of
Criminal Procedure and Indian Evidence Act on the recommendations of the 91st law
commission. S. 498A of Indian Penal Code, 1860 provides that whoever, being the
husband or the relative of the husband of a woman, subjects such woman to cruelty,
shall be punished with imprisonment for a term which may extend to three years and
shall be liable to fine. Similarly, S.113-B of Indian Evidence Act, 1872 provides that
in case of dowry death, the Court has to presume that dowry death was caused by the
person who is shown to have subjected the woman to cruelty or harassment soon
before the death. Moreover, S.406 of Indian Penal Code, 1860 provides for the
punishment for criminal breach of trust. Wives can file a case against their in-laws
under this section if ‘Streedhan’ is not returned. The Protection of Domestic Violence
Act, 2005, under sec 31, provides that Magistrate may file case under Sec 498-A of
Indian Penal Code in appropriate case. Protection officers, Service providers and
Magistrates are under duty to inform aggrieved party of her right to file a complaint
under S. 498-A of Indian Penal Code 1860.
Dowry and gift during marriage has a long history in the whole world. In India, the
payments of dowry were prohibited in 1961 by Indian law and subsequently by
section 304B and 498A of the Indian Penal Code were to provide wife with redress
from the physical harassment of the husband’s family. The giving and taking dowry,
its abetment or the demand for it have been made as an offence punishable with
imprisonment or fine both (Section 3 and 4 of Dowry Prohibition Act 1961). Section

23
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

5 of the act, makes the agreement for giving dowry to be void which means that such
an agreement is unenforceable by law. Even at International level various efforts
were made for the protection of women. International Conferences like Vienna 1993,
Cairo 1994, Copenhagen 1995 and Beijing 1995 highlighted problems of women. In
1998, 50th anniversary of ‘Declaration of Human Rights’ was celebrated by the United
Nations with global campaign for elimination of gender based violence and
discriminations.27 Basically anti-dowry laws and other laws relating to women
protection are safeguard women from the atrocities of in laws and husband.
But there is also another section of women who often abuse the authority of law.
The disgruntled wives use these laws as “weapons rather than shield”. It is very
obvious that we don’t always have Sita in every frame of woman, in fact, now a day
Sita is quite rare. The law which was meant to protect the women is no longer a
protective rather an aggressive law which often hits back the husband with deep
incised wounds. The provisions of Indian Penal Code, Code of Criminal Procedure
and Domestic Violence Act, 2005 become handy tools or say, weapons for those
wives who want to settle any scores with the “husband” or “in-laws”. It has become
an easy way for the wife to dictate her own terms to the husband and the in–laws even
if mentally and physically she remains elsewhere outside her matrimonial home.28
The objects with which these provisions were added in the statue books were noble
one. But these provisions have been misused over the years by the unscrupulous
litigants to serve their oblique motives.
According to a lady Magistrate, Prabha Tak, who has lot of experience of cases of
dowry deaths, young girl marry with lots of aspirations based on movies and films.
Their expectations are totally unrealistic. They are away from the mundane realities of
life, this leads to tensions and frustrations when realities down their marriages. The
new culture of not teaching the girls any household makes their life miserable when
they have to involve in these jobs. They have not learnt cooking; naturally their cloth
will catch fire if they are not careful.
Similar are views of DCP Crime (women cell) and many of them who were
interviewed. Most of the cases of dowry harassment are actually cases of marital
maladjustment. The wife commits suicide out of the frustration of work or because of

27
Proffulah Padhy, Social Legislation and Crime, p.143, (2005).
28
V.K Dewan, Law relating to Cruelty and Offences against Husbands, p. 4., (2009),

24
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

her inability to make adjustments and the poor husbands and his family have to take
the blame for the acts of his over sentimental wife. The girl’s parents by blaming the
in-laws for demanding more dowries or perpetrating atrocities, actually cover up their
own responsibility of not bringing up their daughter properly. In most of the cases the
fault could be appropriated to both, the husband as well as wife. It was the mental
blocks and lack of desire to adjust with each other.29 It is not fair to pre-establish that
domestic violence happens to a wife only in the Indian family. In a typical situation a
wife can act cruel to her husband physically, mentally or by her anti-social behavior.
As in most Indian families, husband’s parents live with him, so wife can be also cruel
to them. In such circumstance, many husbands and their old parents committed
suicide after being neglected by everyone including the police, courts and civil
societies. The common reasons for misuse of anti-dowry laws are:-
• To maintain her illicit relations and extra–marital relations after marriage.
• Abusing the parents, sisters and brothers of her husband with filthy words.
• Demanding the separation of husband from his old parents.
• Demanding transfer of property and assets just after marriage to her name.
• Aborting the child without telling husbands or his parents.
• To extract money from husband and her in laws.30

Sole object of women protective laws was to give legal protection to the married women
against victimization by in-laws. But these laws have now become a handy weapon for many
women to black mail, harass, humiliate and falsely implicate the innocent members of the In-
laws family in dowry-demanded cases and extract money from them before finally setting the
marital dispute.

There is phenomenal increase in matrimonial disputes in recent years. The institution of

marriage is greatly revered in this country. Section 498-A of the IPC was introduced with
avowed object to combat the menace of harassment to a woman at the hands of her husband
and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has
lent it a dubious place of pride amongst the provisions that are used as weapons rather than
shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives
arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-

29
Shobha Saxena, Crime against Women and Protective Laws, p.359 (2004).
30
Prof. Ajay Kumar, “Institution Of Marriage-Judicial Approach”, All India Reporter, January, p.6, ( 2010).

25
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mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India
2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs
shows arrest of 1, 97,762 persons all over India during the year 2012 for offence under
Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested
under this provision in 2012 were women i.e. 47,951 which depict those mothers and sisters
of the husbands were liberally included in their arrest net. Its share is 6% out of the total
persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5%
of total crimes committed under different sections of penal code, more than any other crimes
excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as
high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As
many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are
likely to result in acquittal.31 This shows how Supreme Court has analysed and observed in
Arnesh kumar’s case. While it gave orders not to make instant arrest in such cases in Pinakin
Mahipatray Rawal vs State Of Gujarat32. It means that there should be a rethink over this
provision. Not only two cases but there are various cases where SC has showed its decent
from the law like Vinita Saxena Vs. Pankaj Pandit33, and Anu Gill Vs. State & Anr.34 where
the court contradicted and condemned this provision.

Adverse impact on family and children:

There is also severe adverse impact of the same in terms of well being of family and children.
The act of one not only affects the two but the lives of many other people. Minor children to
marriage are innocent victims, who don’t face legal action but they do face social problem
like, single parenting, criminogenic atmosphere of up-bringing which results in ‘broken
personality’. The criminal trial leads to immense sufferings for all the concerned. Even
ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of
ignominy. A large number of these complaints have led to enormous social unrest affecting
peace, harmony and happiness of the society.

According to latest data by National Crime Records Bureau (NCRB), close to 60,000 married
men committed suicide in 2014 as compared to 27,000 married women. Around 550 divorced
men committed suicide as compared to 410 divorced women.

31
Supra, note 11.
32
(2013) 10 SCC 48.
33
AIR 2006 SC 1662.
34
2001 (2) JCC (Delhi) 86.

26
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

The data show, overall 66% of all suicides were committed by married people. Only 21% of
those who committed suicide were unmarried, while widows/widowers and divorced people
made up for less than 3% of all suicides. Among reasons for suicides, family problems score
the highest. They claim lives of over 21% of all suicide victims. It is also the biggest killer of
men claiming over 18,000 lives in 2014. Family issues cost over 9,900 women their lives.
Illness as a reason follows closely leading to 18% of all suicides. Here too, no of men
(16,078) is twice that of women (7,663). It shows that more husbands are compelled to
commit suicide because of unbearable harassment, mental torture, disturbed family life,
financial pressure etc.35

• Section 354, 354A, 354B, 354C, 354D: all of these sections deal with the offences of sexual
harassment, outraging the modesty of women, voyeurism and stalking. The punishment in
these sections ranges from 3-6 years of imprisonment.

The right to be protected from sexual harassment and sexual assault is, therefore, guaranteed
by the Constitution, and is one of the pillars on which the very construct of gender justice
stands.36 The gender justice is one of the components of the human rights. The State is, in
addition, responsible for any inaction that may cause or facilitate the violation of human
rights.37 Here, the SC in its famous judgement of Vishakha, said that our constitution
guarantees protection from sexual harassment and it guarantees protection universally and
not to any particular group or gender. But the sections in Indian Penal Code do not recognise
the sexual harassment and exploitation done to men or boys. The same, although accepted
and suggested by the law commission in its 172nd report, has not been adopted in our penal
laws. The sexual harassment to boys is so immense that the government although not
recognising it under IPC but came up with a special act —POCSO act. There, the legislature
accepted the very fact but still it is not included in IPC. This is evident that such special laws
don’t have effect in practise until and unless adopted in penal law.
On the other hand, there are recent judgements and incidents which embarks on the misuse
these provisions.

35
Deeptiman Tiwary; Married men twice as likely to commit suicide than married women: Report; TOI;
published on: Jul 26, 2015, 01.59 AM IST;
Available at: < http://timesofindia.indiatimes.com/india/Married-men-twice-as-likely-to-commit-suicide-than-
married-women-Report/articleshow/48220552.cms>; accessed on 5-11-16; 10:52.
36
See also the observations of the Supreme Court of India in Vishakha v. State of Rajasthan, AIR 1997 SC 3011
and Apparel Export Promotion Council v. A.K. Chopra, AIR 1999 SC 625.
37
NHRC Order dated April 1, 2002 in Case No. 1150/6/2001-2002.

27
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

In a recent judgement, Bombay high court said that “Even if you keep your hand on the
shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was
friendly, brotherly or fatherly,” said Bombay High Court Justice Naresh Patil, ruling against
Machindra Chate's appeal urging the court to squash an FIR filed under Section 354 of the
Indian Penal Code.38
This seemingly pro-women pronouncement ought to hearten those of us concerned about
sexual harassment, except it does not.
The problem here is that even the bare facts of the alleged crime committed by Chate do not
appear to rise to the level of a Section 354 offense. The owner of a chain of coaching classes
is accused by the victim of abusing and pushing her away in "such a way that made her feel
ashamed". This inappropriate physical contact, however, occurred in the context of a heated
altercation between Chate, students and their parents over syllabus-related issues -- and in the
presence of two other girls and a boy.
The question is not of Chate's innocence, the issue here is whether such an act, however
criminal, meets the standard of Section 354.
The term "outrage the modesty" is, of course, wide open to interpretation, but the Supreme
Court did offer some clarity in a 2007 judgement. The Times of India reported at the time:
For over a century courts have tried thousands for the offence of "outraging the modesty" of
a woman without a precise definition of what constitutes a woman's 'modesty'. And now, the
Supreme Court has finally defined modesty. Its definition: "The essence of a woman's
modesty is her sex."
The result of the labour of the Bench comprising justices Arijit Pasayat and SH Kapadia will
help fill a glaring void in the Indian Penal Code, 1860, but the scope of the definition of
'modesty' as mentioned in Section 354 appears to go far beyond what framers of the code
possibly had in mind.
"The act of pulling a woman, removing her saree, coupled with a request for sexual
intercourse...would be an outrage to the modesty of a woman; and knowledge, that modesty is
likely to be outraged, is sufficient to constitute the offence," the Bench said in a judgement
that has drawn from several verdicts by different courts. 39

38
Lakshmi Chaudhry; Misusing Section 354: Why a recent HC ruling should worry us all; F. India; Updated:
Feb 28, 2014 19:46 IST
Available at :< http://www.firstpost.com/india/misusing-section-354-why-a-recent-hc-ruling-should-worry-us-
all-1412651.html>; accessed on 5-11-16; 04:35.
39
Dhananjay Mahapatra; SC defines what is a woman's modesty; TOI; published on Mar 21, 2007, 12.00 AM
IST.

28
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

By this standard, Chate's alleged crime does not meet the criteria of Section 354 primarily
because there is no evidence that the inappropriate contact had anything to do with the sex of
the victim. As Chate's lawyer argued in court, "It was a scuffle, where was the intent to
molest her?"
In response, the judges referred to the infamous KPS Gill who was convicted under Section
354 for slapping the posterior of Rupan Deol at a party, using his conviction to conclude, "To
say there was no intention [to outrage modesty] is not possible." It takes great judicial latitude
to compare slapping a woman's behind in a state of inebriation to shoving her in the course of
an argument. And even more so to further conclude that even keeping a hand on a woman's
shoulder can be constituted as outraging her modesty -- if she chooses to interpret is as such.
This kind of "enlightenment"—which violates the intent of the original law—does women no
favours. It is precisely this kind of misuse of Section 354—both by the police who booked
Chate under 354 when they had many other options and the court that has foolishly upheld
the decision -- that aids and abets the many misogynists who resist strengthening sexual
violence laws in this country.40
There is another popular case of Rohtak sisters:
The Rohtak sisters viral video controversy involves a video that went viral on the social
media in India in late November 2014 and the events that followed. The first video showed
two sisters (referred to as the Rohtak sisters or the Sonepat sisters) beating three young men
with a belt alleging that the men had harassed them. Soon, the video was being broadcast by
television channels. The girls were praised by the media and given the nickname "brave
hearts". After a second video emerged within a few days, which showed them kicking
another boy, the opinions began to shift towards negative. Six women claiming to be
passengers on the bus had testified in front of the police. They said it was not an issue of
harassment, but a dispute over seats as the girls had been occupying a seat allotted to a sick
woman. A longer unedited video had been found on the internet, in which the girls asked a
third girl, who had filmed the incident on their phone, to return it. Later another man came
forward and claimed that he had been similarly accused of molestation by the girls and he had
to pay ₹20,000 to have the charges dropped.

Available at : < http://timesofindia.indiatimes.com/india/SC-defines-what-is-a-womans

modesty/articleshow/1785567.cms>; accessed on 5-11-16;04:27.
40
Supra note, 35.

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

After the truth came out, the women commission ordered a through probe. The commission
has ordered the SPs to lodge FIR if false cases are registered on help line numbers.41
In another case, A Delhi court has ordered the police to register an FIR against a woman who
had allegedly filed false complaints against a Delhi-based pharmacist last year. Police said
she had a record of having filed 10 cases — mostly of molestation and rape — against
various people who registered counter FIRs against her.
In the present case, the pharmacist Naveen Kumar complained that this woman had falsely
accused him on charges that were recently amended to section 354 of the Indian Penal Code
(IPC). His story goes that on the night of March 30 this year, when he was returning home
from Kondli Mor after dropping his colleagues, the woman suddenly jumped in front of his
car and started crying. She then threatened to call the police, taking Rs 5,000 and his gold
chain. A policeman was present on the scene and he took Kumar to the Kalyan Puri police
station where the woman filed her statements against him (the court has now directed that
these be probed properly).
Kumar realised that the woman was known among his colleagues. Later, he started receiving
anonymous phone calls on behalf of the same woman, demanding Rs 50,000. If he failed to
serve up to it, he was threatened with more criminal implications.42
There are a number of cases where misuse of the existing provision has been reported. The
critics had previously warned against the misuse of anti-stalking laws too. This law is
rampantly being misused by various duping gangs. They previously befriend a stranger on
social sites and later on threaten them and extract money for not lodging FIR against him.
Hence, there is need to rethink over the provisions and make them neutral.

• 366A and 366B: these sections deal with anti trafficking provisions. These are
specifically made to stop the menace of trafficking. The trade in minor girls are very
rampant. There are cases where girls are sold by their parents themselves for money.
They cannot afford to feed their children. The trade opens up in the name of giving
work in big cities but later on the girl loses her contact with the parents and no one

41
Ravinder Saini; SPs told to book women for false complaints; The Tribune; published on Posted at: Mar 4,
2015, 12:12 AM.
Available at: <http://www.tribuneindia.com/news/haryana/sps-told-to-book-women-for-false-
complaints/49275.html>; accessed on 5-11-16; 04:50.
42
Avantika Mehta ;Woman booked for misuse of new anti-stalking law; Hindustan Times, New Delhi ;Updated:
Jul 05, 2014 00:10 IST
Available at: < http://www.hindustantimes.com/india/woman-booked-for-misuse-of-new-anti-stalking-law/story-
2KTJIHJncuaR098JbKLnrN.html>; accessed on 5-11-16; 05:02.

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

knows about the girl. The same is the cases with the minor boys. They are also
trafficked to work in fire cracker factories, carpet industries and bangle making
industries. There are other laws for curtailment but is like toothless tiger until the
same is recognised and prohibited under IPC. Here, there is no matter of gender but
protection of childhood.
• Section 375 & 376: these sections specifically deal with rape and its punishment. The
researchers have repeatedly emphasised in whole project that rape is not only being
committed upon girls but boys also. The law commission report and the statistics by
UNICEF are the proof of the same. This is one point for making the IPC gender
neutral but the other aspect that the same is grossly misused against men as tool of
exploitation.
The current data of 2015 shows that there are total of 34651 Rape cases registered in
India which amounts to 1.2 % of the total crimes while the rate of crime remains 5.7
% only. The most astonishing thing is that our police being so active files charge
sheets in 96.1 % of the cases but the conviction rate falls 1/4th — 29.4% only.
Whatever the reason may be but it is sure that there is something wrong in the system.
Similar is the case of Attempt to commit Rape where total cases are 4437 amounting
to 0.2% of total crimes while crime rate remains low 0.7 with very high charge sheet
filing rate that is 91.7% but still the conviction rate is even less than 1/4th — 19.8%.
This thing points a very serious question.
1. The victims are traumatised by the offenders or the family members to with draw
the cases. But this is hard to believe that 60 % of victims undergo same treatment.
It may be true for some case but not for such a large number.
2. The cases registered are weak or false. They might be due to wrong policing or
registering the cases under wrong sub heads which means that a huge number of
cases are being wrongly registered and are false cases.

Raising serious concern UNICEF data shows that 50.2% of children undergo sexual
exploitation which contains majority of male child. Hence, rethink over this point is
very necessary.

• 497: It says, “Adultery — the adultery is only applicable to men as if only he is guilty.
Since, the woman is married; she is no more a child but an adult. She could understand
the consequences and also the nature of the act.

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

Section 497 of the Indian Penal Code punishes adultery. It is very astonishing to note that
in this case only the male partner is made liable for punishment.
The dubiousness of this provision is on two points:
• As the sexual intercourse does not amount to rape, necessary implications follows
that woman is willing and consenting party to the act of sexual intercourse. Why
then women is exempted from liability?
• Even if she invites a male for this purpose, she will not be held guilty of any
offence. This is very ridiculous.
A married woman has more accountability than the stranger as she has taken vow
under marriage. Although the act done is consensuous only the stranger is made
liable. This is a clear discrimination and opposite of what is called protective
discrimination. The SC has already said in Vijaylakshmi Vs. Panjab University43
that as a result of joint operation of Article 15(1) and (3), the State may
discriminate in favour of women against men but it may not discriminate in favour
of men against women. Discrimination would be permissible provided it is not
only on the ground of sex. But excluding her from criminal liability is not based on
any convincing logic or reason. Hence, it is totally unconstitutional.
Indian Penal Code’s provision of ‘adultery’ are of dubious nature. Not only
Ranbir Penal Code, 1932 which is in force in Jammu and Kashmir State penalizes
such wife but also Pakistan, Saudi Arabia, Iran, Egypt etc. punishes both
participants i.e. man and woman are punished for adultery. In ancient Hindu Law,
adulteress is also held liable by Manu and was punishment for the same.44 It is like
giving a blank cheque to married women for open exemption to indulge in free sex
with as many as she likes. Notwithstanding the fact that she lured the man, only the
male will be punished and held liable for the same. Can on earth there is be any
such discriminatory law which openly discriminates between men and women and
punishes men alone even though women abetted it?
At least not in my knowledge have I ever heard of such a law! There were various
recommendation earlier too for changing this provision. These committees were:
• The Fifth Law Commission of India in its 42nd Report, 1971 had recommended the
retention of Section 497 in its present form with the modification that even the wife,

43
AIR 2003 SC 3331.
44
Kulkarni, Dr. H.G., “Erratic Dimensions of Law” Vol:118, Cri LJ, p.29, January(2012).

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

who has sexual relations with a person other than her husband, should be made
punishable for adultery. It also recommended for revision of the current punishment
for the same, which is five years, as it felt that it is, “unreal and not called for in any
circumstances.” The suggested modification was not accepted by the legislature.
• Joint Selection Committee suggested equal culpability of both the sexes for their
promiscuous behavior, but it was of the view that the old punishment of five years
should be retained as it is.45
• Justice Malimath Committee Report on Reforms of Criminal Justice System in
2003 recommended: “In view of the fact that an adulterous relationship cannot take
place without the consent of the married woman, it is highly discriminatory to hold
only the man guilty of the offence without making the adulterous women liable for
her infidelity.” Justice Malimath Committee recommended deletion of section 497
IPC and making adultery a civil offence only.
• Even the Apex Court in Sowmithri Vs. Union of India46 held; it is commonly
accepted that it is the man who is the seducer and not the woman. This position may
have undergone some change over the years but it is for the legislatures to consider
whether Section 497 should be amended appropriately so as to take note of the
transformation which the society has undergone.
• The Fourteenth Law Commission in 1997 in its 156th report on IPC also suggested
by Joint Selection Committee advocated to decriminalise adultery.
• The draft National Policy on Criminal Justice formulated by the Madhava Menon
Committee also recommended de-criminalizing adultery.47 Existing Law does not
seem that it is competing with present era. Malimath Committee and Report of the
Law commission must be taken into consideration. Necessary amendments be made
to Sec 497 of IPC, so as to do away with irregularities, and in the interest of doctrine
of equality.48
• The National Commission of Women had also criticized the British era law of being
anti-feminist as it treats women as the property of their husbands and has
consequently recommended deletion of the law or reducing it to a civil offence.
Besides, even women must have the right to sue anyone having adulterous

45
Sirohi, Sanjeev, “Section 497 of IPC Must Be Amended”, Cri LJ, p.79, June (2013).
46
AIR 1985 SC 1618.
47
Singh, Kiran, “Protection of ‘Innocent Victims’ Of Matrimonial “ Cri. LJ , Vol:116, September, p.243, (2012).
48
Kumar ,Purushottam, “Women Must be Penalized in Adultery”, Vol:116, Cri LJ, p.58, February(2010).

33
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

relationship with her husband and not just men alone as most unfortunately section
497 presently entails. At least now our Government must act and initiate necessary
changes in it by either making it gender neutral or decriminalizing it entirely.

Media should also play its part in this regard by debating it more vigorously and prominently
to draw the attention of our law makers in this regard. No other section of IPC so blatantly
discriminates between men and women with men here being at the receiving end and women
being at the gaining end. No men can ever stare continuously at women without her consent;
leave alone the question of having physical relationship.49 The law is being misused as a
bargaining tool by those women who indulge in adultery. When their nefarious acts are
exposed they take recourse to misusing this law, thereby deflecting the needle of crime on
innocent husband and his family. This law being an exception in criminal law presumes the
accused as guilty until proven innocent; hence the women’s word is taken as a gospel of
truth. And there from begins the saga of unending trials, tribulations and destruction for an
innocent man and his family.50

49
Supra, note 34 at pg.79.
Sharma, Dr. Shobharam, “Legal Terrorism in India: Need to Change the Law” Cri LJ, Vol:117, p.374,
50

December(2011).

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

VI. Conclusion and suggestion

After going through all the provisions, reports of law commission, cases and various news
reportings, the true picture of problem and its solution came forth. The researchers have
understood where actually system is failing. Although it might not be the only thing but it is
one of the things responsible for the failure of our penal system.

The researchers have found their entire hypothesis true and upright. The first hypothesis of
the project was that the provisions related to Sexual offences against women are of bias
against men. This is definitely true and has been proved through various cases and statistical
data. The provisions prima facie only recognises the offences only against women and
prescribes punishments ranging from 3-7 years and in some cases even life term too. The
provisions particularly sec 498, 497,354, and 304 B are rampantly misused by the
“disgruntled wives” as tool for settling scores with in-laws or by the women for extorting
money from strangers. There are cases where after the death of wife the in-laws of the
husband files cases under sec 304 B although the ingredients are not fulfilled and the court
does not easily grant him bail or interim relief of any kind.

The second hypothesis of the researchers is that Bride family misuses such provisions.
Instead of protection to women, it has become a legal tool for exploitation of men. This also
stood upright. The researcher came across various supreme court rulings like Arnesh kumar
case, Pinakin Mahipatray Rawal vs State Of Gujarat51,Vinita Saxena Vs. Pankaj Pandit52, and
Anu Gill Vs. State & Anr.53 where the court contradicted and condemned this misuse of
provisions. Not only this but the conviction rate and charge sheet rate also surprised the
researchers. The huge difference between both the rates raises serious question. In most the
cases the charge sheet filing rate is 90% or even 95% plus. But in none of the cases the
conviction rate touched even 30% and it even fell down to 9 % in one or two cases.

The third hypothesis of the researchers was the gender bias problems have given rise in the
number of cases in family courts in India. Although the acts like domestic violence and
dowry giving or taking are criminalised by IPC and are supplemented by the sec 498 A, even
then; they give rise to various family issues. It is irrelevant that the cases filed against the

51
(2013) 10 SCC 48.
52
AIR 2006 SC 1662.
53
2001 (2) JCC (Delhi) 86.

35
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

husband and his in-laws were true or false but the fact is that filing a case will sour the
relations and no family will accept the women after such filing of case. Ultimately, that
results in most of the cases in divorce and separation. There are other things which follows
divorce like custody of children and maintenance giving rise to cases in family courts.

The fourth hypothesis that Sexual harassment against men is an offence is not recognised
under IPC. This has not been criminalised. Previously, the words in provisions dealing with
the sexual offences contained words like ‘whoever’, ‘any person’ which was replaced by term
‘women’. It totally shifted the weight of the provision towards the other gender. The other
words like ‘modesty of women’ widened the interpretation so that its misuse increased
manifolds. Such words cannot be ascertained or defined with precision. The law, however,
recognises the same act under different act like sexual offences against men are not
recognised under IPC but are recognised under POCSO Act. While, the same has been
recognised in J&K within our country and other parts of the world.

Hence, all the hypothesis of the researchers stood and brought the real solutions for the
problems emanating from such provisions.

We have seen that not only women but men are equally prone to all types of offences. The
difference is that in common parlance the female are always supposed to be weak. Still,
people are of the view that the physical weakness of the women affects them or the society is
patriarchal. It might be true for some rural settings but not in all cases. Today with the time
progress in technology is already overcoming the handicaps women suffer in holding jobs in
the market, since jobs in the future industrial societies will be based not on muscular strength
but on skills and discipline. The situation has changed and needs the laws to change also.
This report is not denying the fact that women are victims of such offences but men are also
largely affected from them. to protect them from such injustice laws need to be amended. The
only solution is by making them gender neutral and recognising them for all that we should
recognise rape or sexual harassment or adultery as a crime against men too.

For those who say the gender biased laws are solution for cubing menace to women, I put a
question— do after amendments in IPC in 2013 crimes fall? In fact the number surged
upwards. The number of the cases in the courts is still beyond counting. Still huge numbers of
cases are going unreported or people rarely wants to fall in cycle of litigation. The only thing
that has changed is upsurge in misuse of the provisions and few words in the bare act.

36
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

The researchers after doing the project found three major factors although there can be more;
responsible for not getting the desired result:

1. Huge pile of pending cases in courts.

2. Delay in justice delivery system
3. Irresponsible policing

The reason for first two problems is ill investigating agencies and inadequacy of judicial
staff. In comparison to yesteryears, the no. of cases have increased manifolds but still we
have conventional justice delivery system and no digitalisation has been done at the level of
lower judiciary.

The reason for irresponsibility is lack of will and competencies. The police officials down the
hierarchy lack competency and knowledge of law. No police officer is willing to investigate
the matter before registering or even after registering the FIR.

Suppose an FIR is lodged against a boy under sec 354. The police officer knows that the boy
is a juvenile but still they will mention him as a major because that will increase their work.
JJ act will have to be applied and the boy will have to be sent to special home or children’s
home. Hence, they will put him as major and now it is upon boy and court to settle the age
issue later. Therefore, a responsible policing is required.

Suggestions :

1. The Attitudinal changes to correct the aberration of gender bias have to be brought
about in the institutions of governance to improve the work culture, and in civil
society to improve the social norms for realizing the constitutional promise of
‘equality’ in all spheres for the womenfolk.54 In the Committee’s view, without the
improvement in this aspect, mere additions in the statute book are of no avail. Focus
on the machinery for implementing the laws is, therefore, a significant part of this
exercise.

2. The provisions meant for protection for women should be made more sensible. The
police should do proper investigation of the matter and report to the magistrate within
24 hrs or certain prescribed time. Upon that report the magistrate will issue the order
accordingly for the arrest.
54
J.S. Verma committee report , page 8, para 8.

37
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

3. The provisions should also recognise the similar crimes for men. The term rape
should be recognised as sexual harassment to men also.

4. The justice delivery should be made fast. Fast does not mean that investigation or
decision should come in haste on the basis of botched up investigation. Everything
should be proper. For this a separate magistrate should be appointed in each session’s
court. The time should be prescribed for submitting the report to the police. The other
investigation, say, forensic test, the appropriate system should be brought in place.

5. The police officers should be given proper training so as to ascertain the age of
offender with more precision if not accurate. The police should also be given update
regarding any amendment in laws.

6. The courts should centralise all the courts through computer central data base system.
All the cases regarding a particular person should be clubbed together even if
committed at two different places. This will help in tracking the offender and easy
disposal of cases can be done. This will also facilitate the victim to lodge the
complaint directly to the magistrate without being more victimised by the society.
This will also lessen the rush in the courts and promote work culture.

Hence, the project validly submits that the laws should be made gender neutral because mere
change in words in bare act brings no fruit. The solution of the problem is something else and
we are working in wrong direction. The research made one thing very clear that—“It is not
the gender which makes one prone to exploitation but the chance to exploit and get
exploited.”

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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

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1. Basu ,Durga Das, Commentary on the Constitution of India, Vol-I (Lexis

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5. Sharma, Dr. Shobharam, “Legal Terrorism in India: Need to Change the Law” Cri LJ,
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39
 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

1. Justice Malimath Committee Report on Reforms of Criminal Justice System , 2003.

2. Justice Verma committee report, 2013
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 GENDER BIASED PROVISIONS UNDER IPC,1860 2016

Available at: < http://www.hindustantimes.com/india/woman-booked-for-

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41