GGSIPU - USLLS

Offences Against Women in

India
Anirudh Chadha - 01716503511

With special reference to Muslim Law

Contents

INTRODUCTION............................................................................................2
DOWRY AND CRUELTY TO WIFE...................................................................3
Dowry Death.............................................................................................3
Section 498A of the Indian Penal Code, 1860...........................................4
HUMAN TRAFFICKING..................................................................................5
Rescue......................................................................................................6
SEXUAL OFFENCES......................................................................................7
Rape.........................................................................................................8
PERSONAL LAW.........................................................................................10
Marriage.................................................................................................10
Divorce......................................................................................................12
(i) Talaq.................................................................................................12
(ii)

Khula and Mubaraat......................................................................12

(iii)

Judicial divorce...............................................................................13

MAINTENANCE...........................................................................................14

INTRODUCTION

Muslim women face double discrimination in India: gender discrimination

from traditional patriarchy, and discrimination against religious minorities.
The result is their exclusion and oppression in large numbers. Indias
progressive Constitution and several pro-women laws and judgments
have failed to achieve justice for women from minorities primarily because
they lack of knowledge of their rights and the lack effective support in
accessing rights.
The Rights of Muslim Women in India is a compilation of the legislations,
judicial pronouncements and personal laws most relevant to Muslim
women. This project seeks to provide a basic understanding of the broad
spectrum of these rights and avenues for redress. It deals with various
aspects of rights, including constitutional rights, rights within the criminal
justice systems, specific laws relating to girls and women, and Muslim
personal laws. It is intended that laypersons and activists will benefit from
this simplified version of the essentials of Muslim womens rights.

DOWRY AND CRUELTY TO WIFE

Although contrary to the precepts and practices of Islam, the system of

dowry is present among some Muslims in India. Under the Dowry
Prohibition Act, 1961, dowry means any property or valuable security. It
is given, or agreed to be given, by one party of the marriage to the other
party. It can be given at the time of marriage, before marriage, or anytime
after the marriage. Dowry does not include dower/mahr.
It is not an offence to give presents at the time of marriage to the bride or
bridegroom, where no demand has been made for such presents. These
presents should be of customary nature and should not be too expensive
as compared to the financial status of the persons giving such gifts.
Although giving or taking dowry is an offence, if dowry has been given, it
should go to the wife (bride). If anyone else receives it, the dowry must
finally be given to the wife (or bride).
1. If the dowry was received before marriage, it must be transferred to
her within 3 months after marriage
2. If the dowry was received at the time of the marriage, or after the
marriage, it must be transferred to her within 3 months after that
date.

Failure to transfer this dowry within the correct time is punishable with
imprisonment between 6 months and 2 years. Instead of imprisonment, a
fine may be imposed of minimum Rs. 5,000 and maximum Rs. 10,000.

Dowry Death
If a woman is killed for dowry the punishment is much greater.
Under section 304B IPC a dowry death has occurred if a woman dies
within 7 years of her marriage due to unnatural causes (e.g. burns) and
shortly before her death she had been harassed for dowry.
The punishment for dowry death is imprisonment for a minimum of 7
years, which can be extended to life imprisonment. Under the Evidence
Act those who had harassed the woman for dowry will be presumed to
have caused her death, and they must prove their innocence. If a woman
is killed for dowry after 7 years of marriage, the guilty will be punished for
murder (Section 302) where the punishment is death or life imprisonment
and fine.

Section 498A of the Indian Penal Code, 1860

A married woman can make a complaint under Section 498A of the IPC
when any kind of cruelty is inflicted on her by her husband or his relatives.
This complaint can also be filed by her father, mother, brother, sister or by
her fathers or mothers brother or sister or, with the permission of the
Court, by any other person related to the woman by blood, marriage or
adoption.

A complaint can be filed against the husband and his relatives (including
his mother, father, sister and brother). Punishment under this section is
for 3 years imprisonment.
As per section 498A cruelty means:
Any act
1. likely to lead a woman to commit suicide, or
2. likely to cause grave injury or danger to her life or health, or
3. harassment related to dowry

HUMAN TRAFFICKING

The Immoral Traffic (Prevention) Act, 1956 aims to end the practice,
trading and transporting of human beings for immoral purposes
(commonly referred to as prostitution). It also makes provisions for the
rescue and rehabilitation of victims. This Act defines prostitution as the
sexual exploitation or abuse of persons for commercial purposes.
The law provides for rehabilitation of sex workers so that a woman found
to commit prostitution can be sent to a correctional institution. If any time
after six months it seems that she can lead a useful and productive life
without getting back into the sex trade, she can be discharged.

Offences and Punishments Under The Immoral Traffic

(Prevention) Act, 1956
Offence

Keeping a brothel (any

place used for
prostitution by two or
more prostitutes) or
allowing ones premises
to be used as one,
whether as tenant/lessee

Punishment

Up to 3 years imprisonment

or as owner/ lessor

An adult knowingly living

Up to 2 years imprisonment

on the earnings of a

and/or fine of Rs. 1,000 or

prostitute

both. If the prostitute is a

below the age of 18 years the
punishment is minimum
imprisonment of 7 years and
maximum of 10 years

Making a person enter

Punishment can extend up to 7

the sex trade as a

years with fine, but if the

prostitute

procured person is a child, it

may extend up to life
imprisonment.

Trafficking (trading and

Seven years imprisonment on

transporting of human

first conviction and life

beings for immoral

imprisonment on second

purposes/ prostitution)

conviction

Carrying on prostitution

Imprisonment up to 3 months

Imprisonment by up to 6

in or near a public place

(both client and sex
worker). Schools,
colleges, hotels, temples,
hospitals, are examples
of public places.

Trying to attract

attention in order to

months and fine of Rs. 500

tempt someone for the

purpose of prostitution in
a public place

Rescue
The Magistrate may direct the police to remove a person from a brothel
when he has reason to believe that she is being forced into prostitution.
After confirming that she needs care and protection, she can then be
placed in a protective home by the order of the Magistrate. If the rescued
person is returned to her guardian, husband or parents, the Magistrate
should be satisfied about their capability and genuineness.
A sex worker may herself make an application for her own care and
protection. After an inquiry and confirmation of the facts, she can be
directed to be kept in a state licensed protective home, correctional
institution or under the supervision of a person appointed by the
Magistrate for a specified period.

SEXUAL OFFENCES
Sexual Offences and Punishments Under the Indian Penal Code
Offence

Punishment

Causing serious hurt or damage

Minimum 10 years imprisonment, can

by throwing acid

extend to life imprisonment. Also fine

which will be paid to the victim and
must be just and reasonable so as to
meet the victims medical expenses

Attempt to cause serious hurt

Minimum 5 years imprisonment, can

or damage by throwing acid

extend to 7 years

Assault or criminal force to

Minimum 1 year imprisonment, can

outrage a womans modesty

extend to 5 years

Word or gesture to insult a

Imprisonment up to 3 years and fine

womans modesty
Sexual harassment e.g. by

Rigorous imprisonment for 3 years,

physical contact, demanding

fine

sexual favours, showing

pornography against a womans
will
Sexual harassment by passing

imprisonment for 1 year, fine

sexually coloured remarks

Using force to dirsrobe a

Minimum 3 years imprisonment, can

woman or forcing her to be

extend to 7 years

naked
Voyeurism or watching or

Minimum 1 year imprisonment, can

capturing image of a woman

extend to 3 years, fine

doing a private act by intruding

on her privacy
Stalking or following a woman
and trying to make contact with
her against her will

3 years imprisonment, fine

Rape
Rape occurs when a man puts his penis, mouth or any object into a
womans private parts or mouth, or uses any part of the womans body to
make this happen:
1. Against her will
2. Without her consent
3. Getting her consent by putting her or any person in whom she is
interested in fear of death or hurt
4. Getting her consent by pretending to be her husband
5. With her consent when the woman does not understand the nature
and consequences of the consent because she is of unsound mind
or intoxicated
6. Intercourse with a women (below the age of 18), whether with or
without consent
7. When the woman is unable to communicate consent
The punishment for committing rape is imprisonment for at least seven
years, which may extend to life imprisonment, and a fine.
In the following cases, the punishment is greater;
1.
2.
3.
4.

Rape in custody by a policeman

Custodial rape by a public servant
Rape by a member of the armed forces in an area of deployment
Rape of a woman in custody by staff of a jail, remand home,

womens home, childrens home

5. Rape by hospital staff of a woman in that hospital
6. Rape by relative, guardian or teacher
7. Rape during communal or sectarian violence
8. Rape of a woman known to be pregnant
9. Rape of a woman under sixteen years of age
10.
Rape of woman incapable of giving consent
11.
Rape of a woman by a man in position of control or dominance
12.
Repeated rape of a woman

In such cases the punishment is minimum imprisonment for 10 years,

which may extend to life imprisonment, and a fine. In such cases life
imprisonment means imprisonment for the rest of the offenders life. If, as
a result of injuries suffered during rape, the victim dies or is left in a
persistent vegetative state, the punishment will be rigorous imprisonment
for at least twenty years, or life imprisonment for the rest of the offenders
life. In cases of gang rape, the punishment will be rigorous imprisonment
for at least twenty years, or life imprisonment for the rest of the offenders
life, and a fine. The amount of the fine shall be paid to the survivor to
meet her medical and rehabilitation expenses. Courts can also order for
monetary compensation to be given in other cases of rape.
Any public servant, including a police officer, who fails to follow the
requirements of law while dealing with cases of sexual offences against
women, can be punished with rigorous imprisonment for at least six
months or up to two years.
When rape occurs an FIR should be registered in the local police station or
a complaint filed before the Magistrate. Rape is a serious offence and
cannot be compromised between the parties or by any local body or
panchayat.
A man can be held guilty of rape solely on the basis of the statement of
the woman. However, conviction is easier if this is supported by medical
proof. This is why it is important for a victim to undergo medical
examination as soon as possible. Courts in India do not lay a lot of stress

on medical evidence as in many cases, especially in rural areas, women

do not easily have access to such facilities.
Society tends to stigmatise the rape survivor. This makes it difficult for a
woman to follow the procedures of informing the police and getting
medically examined immediately. For this reason courts do not consider
an allegation of rape to be weak merely because there was a delay in
filing the FIR.
Rape cases should be dealt with on a priority basis and the inquiry and
trial should be completed within two months of filing the chargesheet.

PERSONAL LAW

In personal matters Muslims in India are governed by Muslim law or the

Shariat. This has been done primarily through the Muslim Personal Law
(Shariat) Application Act, 1937 (the Shariat Act for short). In matters
relating to succession, marriage, gift, guardianship and wakfs, Muslim law
is applicable. The general laws of India are applicable in all other matters
e.g. the Indian Penal Code, Juvenile Justice Act, Domestic Violence Act and
others.
The Shariat Act does not define the term Muslim. However it is
understood that Muslim law in India applies to:
1. Muslims by birth (a person born a Muslim remains a Muslim for life
unless they renounce the religion by an unequivocal renunciation of
Islam)
2. Muslims by religion (i.e. those who have converted to Islam)
As far as the law is concerned, the minimum requirement for being a
Muslim (whether by birth or conversion) is to acknowledge (i) that there is
but one God and (ii) Muhammad is his prophet (La ilaha ill lil lah
Muhammad ur Rasul Allah).

Marriage
The three essentials of a Muslim marriage are:
1. Proposal and acceptance
Before a couple can be married both a proposal (ijab) and an
acceptance (qubul) must take place in the same meeting in the
presence of either two male witnesses, or one male and two female
witnesses. No witnesses are necessary for a Shia marriage.
2. Capacity to contract marriage
The parties to the marriage should have reached puberty and should
be of sound mind. A person is presumed to reach puberty at 15
years of age. A minor or a person of unsound mind can be given in
marriage with the consent of the guardian.
3. Absence of any impediment
The third essential is that there should be no impediments or
prohibitions to the marriage of the parties.
Impediments can be of two kinds:
(a) Absolute impediment
1. Polyandry: woman cannot have a second marriage while still married
to the first husband
2. Consanguinity: Marriage to close biological relatives is prohibited
(mother, grandmother, daughter, brother, sister, paternal and
maternal uncles and aunts).
3. Affinity: A man cannot marry certain persons related by marriage.
These include the wifes mother, wifes daughter, fathers wife and
sons wife.

4. Fosterage: If a child is breast fed by a woman who is not the childs

biological mother the rules of prohibition on grounds of
consanguinity or affinity also apply.

A marriage where there is an absolute impediment is void

(b) Relative impediment
1. Marrying a fifth wife
2. Absence of proper witnesses to the marriage (not relevant to Shias)
3. Difference of religion: a Sunni male can marry a kitabia, i.e. a
female who is Christian or Jewish. Marriage to women from any
other religion is irregular, but can be made regular if the wife
becomes a Muslim, Christian or Jew. A Muslim female can only marry
a Muslim male
4. Unlawful conjunction: a Muslim man cannot have two wives at the
same time who are closely related by consanguinity, affinity or
fosterage as defined above. So, for example, he cannot marry two
sisters.
5. Woman undergoing iddat: Iddat is the period of chastity which a
Muslim woman is supposed to observe after the death of her
husband or after divorce.
Marriages with relative impediments are irregular but not void.
A valid Muslim marriage confers rights such as dower, maintenance and
suitable matrimonial residence. Dower (mahr) is the sum of money or
property which the wife is entitled to receive from the husband.
Dower can be:

1. Specified dower: fixed by agreement between the parties either

before, after or at the time of marriage
2. Proper dower: if there is no agreement or specified dower the wife
may claim a reasonable amount of dower
3. Prompt dower: prompt dower is payable immediately the marriage
takes place and must be paid on demand
4. Deferred dower: deferred dower is payable after death of the
husband or on divorce

Polygamy, while permitted in Islamic law, is subject to very severe

conditions which are almost impossible to fulfil. The Quran permits it
reluctantly in conditions of great social hardship and for humanitarian
purposes and only as the last resort.1

1 Dr. Riffat Hassan, The Quran on Polygamy (Dawn.com, June 5th, 2009)

Divorce
The law recognizes the following forms of divorce and divorce can take
place in the following ways:
(i) By the husband (talaq)
(ii) By mutual consent of parties (khula or mubaraat)
(iii) By judicial decree in a case filed by the husband or the wife

(i)

Talaq

Any husband of sound mind who has attained puberty can divorce his wife
at will without giving any reasons. While talaq among Shias must be
pronounced orally in the presence of 2 male Muslim witnesses, there is no
fixed format for talaq among Sunnis. Talaq without intention is void among
Shias, but for Sunnis a talaq is valid even if it is given under compulsion or
in jest or in a state of voluntary intoxication.
Talaq can be sub-divided into:
1. Talaq us sunnat, which is of two kinds: Talaq ahasan: this consists
of a single pronouncement of talaq followed by abstinence from
sexual intercourse for the iddat period
2. Talaq hasan: this involves three pronouncements of talaq, once
during each of the three successive intervals between

menstruations, and abstinence from sexual intercourse until the

third pronouncement
3. Talaq ul biddat (or talaq i - badai): this is applicable to Sunnis
only. This form of talaq is considered sinful or irregular, though valid
in law. This form of divorce is also of two kinds: Three declarations at
one time or at short intervals (also referred to as triple talaq)
4. One single declaration (generally in writing) showing clear intention

that it is irrevocable.
1

(ii)

Khula and Mubaraat

Khula is divorce by mutual arrangement on request from the wife. The

wife makes an offer to her husband (usually a portion of her mahr) to
compensate him if he agrees to divorce her. Mubaraat is divorce by
mutual consent, where both sides seek to end the marriage. In mubaraat
the wife is not required to pay any compensation to the husband.

(iii)

Judicial divorce

The Dissolution of Muslim Marriages Act, 1939, was passed to clarify the
rights of Muslim women to divorce under Muslim law. The Act is applicable
to all Muslims in India. The grounds under which a Muslim woman is
entitled to divorce are:

(i)

The whereabouts of the husband are not known for four years

(ii)

or more
The husband has not provided maintenance for two years or

(iii)

more
The husband has been sentenced to imprisonment for seven

(iv)

years or more
The husband has, without reasonable cause, failed to perform

(v)

his marital duties for three years or more

The husband was impotent at the time of marriage and

(vi)

continues to be so
The husband has been insane for two years, or is suffering

(vii)

from leprosy or a virulent venereal disease

The wife, having been married before the age of fifteen, has
repudiated the marriage before turning eighteen. If the

(viii)

marriage has been consummated the she cannot do this.

The husband treats the wife with cruelty. For example, the
husband commits assault, disposes of her property or does
not let her exercise her legal rights over her property, has
more than one wife and does not treat her equitably as per

(ix)

the dictates of the Quran

The wife can sue for divorce on any other ground recognized
as valid under Muslim law (for example, lian)

Lian (false charge of adultery)

When a Muslim husband makes a false charge of adultery against his wife,
the wife has a right to sue for divorce on ground of lian.

MAINTENANCE
Under Muslim law the right to maintenance can arise due to :(i)

Obligations in marriage

The wife is entitled to maintenance from her husband even if she

has the means to maintain herself and her husband is without
means. But the wife must be faithful and obedient to her
husband or the husband is not bound to maintain her. A father is
bound to maintain his sons until they attain puberty and his
daughters until they are married. If the father is poor, the mother
must maintain the children. If she does not have means, the
paternal grandfather assumes the responsibility. An adult son is
not entitled to maintenance unless he is infirm. A father is not
bound to maintain an illegitimate child, but, if Sunni, a mother is.
(ii)

Obligations in blood relationship

A person who has sufficient means is required to maintain his or

her parents and grandparents if they are in financial hardship.
The Criminal Procedure Code, 1973, has provisions on
maintenance which are also applicable to Muslims. Under

Section 125 of the CrPC, the following persons can claim

maintenance from men with sufficient means:
1.
2.

a wife who is unable to maintain herself

legitimate or illegitimate minor child unable to maintain himself

3.

or herself, whether married or not

legitimate or illegitimate child who has attained majority, but is
unable to maintain himself or herself due to any physical or

4.

mental disability or injury, or who is a married daughter

parents unable to maintain themselves

In the case of Ahmed Khan v. Shah Bano Begum2, the Muslim womans
right to maintenance under Section 125 of the Criminal Procedure Code
was challenged. The Supreme Court upheld the right of divorced Muslim
women to claim maintenance under this provision. In view of the protests
that followed from conservative sections of Muslim society, the
Government of India passed the Muslim Women (Protection of Rights on
Divorce) Act, 1986. Under this Act, the right of divorced Muslim women to
claim maintenance under Section 125 of the Criminal Procedure Code was
taken away. The new law said that this provision would be applicable only
if both the divorcing husband and wife agreed to proceed under it. The
divorced wife had no right to file a case on her own under Section 125.
The Act of 1986 states that the husband must make fair and reasonable
provision for the wife within the iddat period.

2 AIR 1985 SC 945, (1985) 2 SCC 556

This was challenged in the case of Danial Latifi v. Union of India3. It was
argued that the Muslim Women (Protection of Rights on Divorce) Act, 1986
was discriminatory as it provided protection to divorced Muslim women
only for the iddat period (roughly 3 month). The Supreme Court instead
gave the 1986 law a new interpretation. It held that under this law, the
Muslim husband was bound to make fair and reasonable provision for his
divorced wife, and he must make this arrangement and payment within
the iddat period. Therefore, the iddat period does not limit the period
for which a divorced wife is to be maintained, it limits the time
within which a Muslim husband must make this payment.
The Maintenance and Welfare of Parents and Senior Citizens Act 2007
provides rights to maintenance to senior citizens. Under this Act a senior
citizen means any Indian citizen who is sixty years of age or above.
Senior citizens unable to maintain themselves from earnings or property,
can make an application claiming maintenance from:
1. Their adult children or grandchildren
2. An adult legal heir (relative)
The obligation of the children or adult legal heir is to enable the senior
citizen to lead a normal life.
The application should be filed before a Maintenance Tribunal set up under
this Act. The Tribunal may also initiate a case on its own. The Tribunal can
order such children or relative to pay a monthly allowance. The Tribunal

3 2001) 7 SCC 740

can also order the payment of interim maintenance while the case is
going on.
If the children or relatives ordered to pay maintenance fail to do so
without sufficient cause, they can be imprisoned for a term which may
extend to one month or until payment of the maintenance amount,
whichever is shorter.
Abandonment of a senior citizen is punishable with imprisonment of up to
three months or a fine of up to Rs. 5,000 or both.