Sexual offences- what needs to be done?

Another case of gang rape and the victim dying has stirred the heart of the nation. However, even amidst the protests, the incidents of sexual offences are not coming down. A number of steps need to be undertaken to ensure that it becomes a safer world for the fairer sex:
(1) The law relating to kidnapping, abduction, outraging the modesty of women and rape needs to be revamped and stricter punishments should be incorporated.
(2) A woman cell should be made at police stations where the victim can report directly to police women to avoid any undue embarassment as well as to avoid any form of sexual harassment at the station.
(3) Investigation and trial should take place at a fast speed with conviction made within 3 months. Speedier trials and high conviction rate can instil a feeling of fear in the minds of offenders and will bring down the rate of crime.
(4) Hospitals should have a direct contact with police station so that the victim is moved immediately for medical check-up and treatment as well as for the collection of evidence.
(5) Juvenile offenders should not be given the benefit of age as to commit such a crime, they have sufficient understanding to know the nature of the offence.
(6) CCTV should be installed at all public places and ensured that they are in proper working condition. The cameras should not only watch but also record.
(7) Creating awareness at school and college level as well as at public addresses are seesntial.
(8) The society should ber educated so as not to blame the victim. You are not robbed because you have money, you are robbed because somebody wants to get what is not lawfully not his by easier means.
(9) Films and television should play an active role in imparting education about the equality of sexes and should not telecast such offences or incidents and aboveall not glorify them. Films play an important role in effecting impressionable minds, those of children and illiterate people, and so they should have an active role in impressing the difference between what is right and what is wrong.
(10) Aboveall, families should create an atmosphere where every man knows how to respect a woman.

State’s responsibility to protect its citizens

The Constitution under Article 19(1)(a) guarantees the freedom of speech and expression  to every citizen of India subject to restrictions under Artile 19(2). The freedom of speech includes the right to question any government action that impacts the public life. In variou cases the judiciary has upheld the right of speech and expression pointing out that this freedom is fundamental to the principle of democracy. Without the freedom of speech there cannot be democracy and justice.

However, today’s society is witnessing a gross violation of this right. The arrest of two young girls for questioning the closing of the city is an example of the same. No person has a right to vandalise anybody’s residence or place of work because of what they said. Any kind of mob action amounts to unlawful assembly under the provisions of Sections 141-149 of the Indian Penal Code, 1860. Further, the unlawful arrest and confinement of a girl who has not committed any crime is also an offence under the Code.

The duty of the State is to protect the rights of its citizens and not to persecute them for excercising their freedom. The principles of the Constitution need to be cherished and an individual’s freedom should be protected from any excesses of State action. The guilty should be made liable and be made answerable to the public on why they violated an individual’s freedom.

Adoption under Hindu law

Adoption once made is permanent and it cannot be cancelled neither by the adoptive parent nor by the adopted child. Section 15 of the Hindu Adoption and Maintenance Act states that: No adoption which has been validly made can be cancelled by the adoptive father or mother or any other person, nor can the adopted child renounce his or her status as such and return to the family of his or her birth.

Both men and women can adopt a child under Hindu law. A Hindu major man can adopt a child whether he is a bachelor, married, divorcee or widower. For a married man, consent of his wife is essential; otherwise the adoption will be void. However, if a Hindu male adopts a female child, he should be older by at least 21 years to validate the adoption. A Hindu unmarried woman cannot adopt a child. However, a widow can adopt.

No person can make adoption unless he or she is a major and of sound mind.

Section 9(4) provides that giver cannot be taker. Thus, a person cannot adopt his own illegitimate child; a guardian cannot adopt his ward.

Restrictions on adoption

Section 11 lays down conditions for adoption. It provides that:

In every adoption, the following conditions must be complied with:

(i)        if the adoption is of a son, the adoptive father or mother by whom adoption is made must not have a Hindu son,  son's son or son's son's son  (whether by legitimate blood relationship or by  adoption) living at the time of adoption;

(ii)       if the adoption is of a daughter, the adoptive father or mother by whom the adoption is made must not have a Hindu daughter or son's daughter (whether by legitimate blood relationship or by adoption)living at the time of adoption;

(iii)       if the adoption is by a male and  the person to be adopted is a female, the adoptive father is at least twenty one years older than the person to be adopted;

(iv)      if the adoption is by a female and the person to be adopted is a male, the adoptive mother is at least twenty -one years older than the person to be adopted;

(v)       the same child may not be adopted simultaneously by two  or more person;

(vi)      the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in case of an abandoned child or child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption:

PROVIDED that the performance of datta homam shall not be essential to the validity of adoption.

Adoption of a son: at the time of adoption, the adoptive parent should not have a son or a son’s son or a son’s son’s son whether legitimate or adopted living.

Adoption of a daughter: at the time of adoption, the adoptive parent should not have a daughter or a son’s daughter whether legitimate or adopted living.

Adoption by single parent: if a single parent wants to adopt a child of opposite sex, the age difference between the adoptive parent and the adopted child should be a minimum of 21 years.

Divorce under Special Marriage Act

Section 27 of the Special Marriage Act lays down the provisions relating to divorce. The various grounds for divorce are:-

(a)    Having voluntary sexual intercourse with any person other than his or her spouse;

(b)   Desertion for a continuous period of not less than two years;

(c)    Undergoing imprisonment for seven years or more for an offence under IPC;

(d)   Treated petitioner with cruelty;

(e)   Incurable unsoundness of mind;

Subsection 1-A provides for wife’s special grounds of divorce as:-

(i)                  The husband has been guilty of rape, sodomy or bestiality;

(ii)                In a suit under section 18 of hindu adoption and maintenance act or section 125 CrPC a decree was passed and the wife has been living separately.

Subsection 2 further provides that a petition for divorce may be presented on the following grounds:-

(i)                  There has been no cohabitation between the parties for a period of one year or upwards after the passing of decree for judicial separation;

(ii)                There has been no restitution of conjugal rights for a period of one year or upwards after the passing of said decree.

Section 28 of the Act provides for divorce by mutual consent. A petition maybe presented by both parties that they have been living separately for a period of one year or more and they jointly decide that the marriage should be dissolved.

Guardianship under Muslim law

The term ‘guardian’ is defined in the Guardians and Wards Act as a person having the care of the person of a minor or of his property, or of both his person and his property.

Kinds of guardianship under Muslim law:

Muslim law makes a distinction between guardian of the person, guardian of the property and guardian for purposes of marriage in case of minors.

(1)    Guardianship in marriage (jabar)- the following persons can act as guardians in the marriage of a minor, in the order of enumeration:-

(i)                  Father

(ii)                Father’s father

(iii)               Full brother and other male relations on the father’s side

(iv)              Mother

(v)                Maternal relations within prohibited degrees

(vi)              Qazi or the court

Shia law recognizes only the father and failing him the father’s father howsoever high as guardian in the marriage of a minor.

The rule of Muslim law is that when a remote guardian allowed marriage, when the nearer one is present, the validity of the marriage is dependent upon the latter’s ratification and consent. A marriage by a remoter guardian when the nearer guardian is present and has given his consent is not only irregular but void.

(2)    Guardianship of person of the minor for custody (hizanat)

(i)                  Mother- under hanafi school, mother is quardian of her minor till he attains age of 7 years and of her daughter till she reaches puberty. Under shia school, mother is guardian of her son till he attains the age of 2 years and of her daughter till she attains the age of 7 years.

An illegitimate child is left in the charge of mother till the age of 7 years but legally belongs to neither of his parents.

In the absence of mother, under hanafi school, custody belongs to:

(a)    Mother’s mother

(b)   Father’s mother

(c)    Full sister

(d)   Uterine sister

(e)   Consanguine sister

(f)     Full sister’s daughter

(g)    Uterine sister’s daughter

(h)   Consanguine sister’s daughter

(i)      Maternal aunt

(j)     Paternal aunt

However, the right of hizanat of the mother and other female relations is lost if she leads an immoral life or, neglects to take proper care of the child or, marries a person not related to the child within prohibited degrees or, if during the subsistence of marriage, she goes and resides at a distance from the father’s place.

In Rahima Khatoon v Saburjanessa[1], the court held that the mother loses the guardianship of the minor daughter if she remarries with a person not related to the child within prohibited degrees. In this case, the court granted the certificate of guardianship to the child’s paternal grandmother.

In default of mother and other female relations, hizanat belongs to:

(a)    Father

(b)   Nearest paternal grandfather

(c)    Full brother

(d)   Consanguine brother

(e)   Full brother’s son

(f)     Consanguine brother’s son

(g)    Full brother of the father

(h)   Consanguine brother of the father

(i)      Son of father’s full brother

(j)     Son of father’s consanguine brother

(ii)                Father- father is the defacto guardian of son over the age of 7 years under Hanafi school and 2 years under Shia school and unmarried daughter over the age of 7 under Shia school and who has attained puberty under hanafi school.

The court will interfere with the father’s guardianship of his children only if he is unfit in character and conduct or is unfit as regards external circumstances or waives his right or enters into an agreement to the contrary or is out of jurisdiction of the court or intends to go abroad.

Illegitimate child- the mother of an illegitimate daughter is entitled to its custody.

Termination of hizanat

(a)    General disqualifications- minor and non muslim

(b)   Disqualifications affecting females- immoral, has married a stranger, resides at large distance from father, neglects the child.

(c)    Disqualifications affecting males- no male entitled custody of female child who is not within prohibited degree.

(d)   Disqualifications affecting parents- The court will interfere with the father’s guardianship of his children only if he is unfit in character and conduct or is unfit as regards external circumstances or waives his right or enters into an agreement to the contrary or is out of jurisdiction of the court or intends to go abroad.

The mother does not lose her right to the custody of the children by divorce by the father of the children.

(e)   Disqualifications affecting husband- if the wife has not attained puberty, mother has greater right over her.[2]

 

(3)    Guardianship of property

(a)    Dejure guardianship- legal or natural guardian order of persons entitled to guardianship of the property of a minor:-

(i)                  Father

(ii)                Executor appointed by father’s will

(iii)               Father’s father

(iv)              Executor appointed by the will of father’s father

(b)   Certified guardianship- guardian appointed by the court- in absence of legal guardians, the duty of appointing a guardian falls on the court.

(c)    De facto guardianship- a person who is neither a legal guardian nor a guardian appointed by court but has voluntarily placed himself in charge of the person and property of a minor is known as de facto guardian. He is a mere custodian of the person and property of the minor and has no right over them.

Removal of guardian

A guardian can be removed in the interest of the minor. The court may remove a guardian appointed or declared by court or a guardian appointed by will or other testament if:

(1)    He abuses trust

(2)    Fails to perform his duties

(3)    Incapacity to perform duties

(4)    Ill-treatment or neglect of ward

(5)    Continuous disregard of provisions of Guardianship and Wards Act or of any order of the court

(6)    Conviction of an offence showing moral turpitude

(7)    Having interest adverse to his duties as a guardian

(8)    Ceases to reside within limits of the court

(9)    Goes insolvent (guardian of property)

(10)Cease to be under the law to which the minor is subject

Cessation of authority of guardianship

(A)   Guardian of person

(1)    Death, removal or discharge

(2)    By the court of wards assuming superintendence of the person of the minor

(3)    Ward ceases to be minor

(4)    In case of female, her marriage

(5)    In case of minor whose father was unfit for guardianship, with father ceasing to be so.

(B)   Guardian of property

(a)    Death, removal or discharge

(b)   By the court of wards assuming superintendence of the property of the minor

(c)    Ward ceases to be minor

 

Difference between shia and sunni law

(1)    Under shia law, only father and true grandfather are guardian for marriage while under sunni law, a number of other relations are also guardians.

(2)    Under shia law, marriage by any other guardian is ineffective unless ratified while under sunni law it maybe repudiated upon attaining majority.

(3)    Under shia law, mother is guardian of son upto age of 2 years and of daughter upto age of 7 years while under sunni law, she is guardian of son upto the age of 7 years and of daughter till she attains puberty.

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[1] AIR 1996 Gau 33

[2] Nur Kadir v Zuleikha Bibi

Anti-slavery law

Slavery is the ancient form of labour in which the slave is bonded to the house of the master and has no free will of his own. Under the slavery system, the slave is treated like a chattel and can be transferred from one master to another for a price or as a gift. A slave and his children are the property of his master.

Slavery has existed through ages. It includes chattel slavery, bonded labour and forced labour. Slavery demeans the human worth and equates human life with that of animals or as lifeless objects. It is considered to be one of the biggest violations of human freedom and dignity.

The Universal Declaration on Human Rights has declared freedom from slavery as one of the fundamental human rights. Article 4 of the Declaration forbits slavery in all its forms. The International Covenant on Civil and Political Rights also declares freedom from slavery as a fundamental freedom. It prohibits slavery and enforced servitude. Article 8 of the Convention provides that no one shall be held in servitude and it prohibits slavery and slave trade in all forms.

In India, the Constitution prohibits bonded labour and beggar. Article 23 of the Constitution prohibits traffic in human beings and forced labour. It prohibits 'beggar' which is forced involuntary labour without payment. Further, the Directive Principles of State Policy lay down the principles of equal pay for equal work. These are also fundamental towards abolishing the practice of bonded or forced labour.

The Bonded Labour System (Abolition) Act, 1976 also lays down provisions relating to the abolition of slavery. Section 2 defines bonded labour system as system of fully or completely forced labour in lieu of any debt or by virtue of birth. Section 4 of the Act provides that with the commencement of this Act, all bonded labourers are discharged from any obligation to render bonded labour and stand free. Section 5 further abolishes all customs validifying bonded labour. Section 6 of the Act further extinguishes all obligations to repay debt. The Act further lays down provisions as to vigilance committees and empowers the District Magistrate to ensure the compliance with the provisions of the Act and take action against violations. Enforcement and advancement of bonded labour is punishable under the Act and tried by Executive Magistrate.

However, after all these legal provisions also, the menace of slavery still exist the world over. It needs to be addressed at public platforms. Social consciousness alone can curb it.

Doctrine of public trust

The public trust doctrine provides that certain resources are preserved for the public use and the government is required to preserve and maintain the same for public’s reasonable use. This doctrine is used mainly in the conservation of natural resources specially the non renewable ones like fossil fuel.

The public trust doctrine is an important aspect of the concept of sustainable development. It aims at creating and preserving a reserve of resources while handling developmental activities.

In the case of M C Mehta vs Kamal Nath[1], the Apex Court stated that the doctrine of public trust is applicable in India. In the given case, the lease granted on 27 bigha and 12 biswas of land to the Span Motels private limited was set aside and the Himachal Pradesh government was ordered to restore the land to its original natural condition.

In the case of Shri Balaji park residents welfare vs vice chairman, Vishakhapatnam[2], the Andhra Pradesh High Court observed that: “The obligatory functions leave no manner of doubt that park being a property having vested in the Municipality, has the duty to maintain the develop the same. It, of course, has a discretionary duty, inter alia, to construct and maintain a Community Hall but the same cannot be done at the cost of ecology and greenery. The State, as noticed hereinbefore, has a duty to look after the environment, safety and improvement.”

In T.N. Godavarman Thirumulpad vs Union of India & Ors[3], the Supreme Court observed “that Natural resources are the assets of entire nation. It is the obligation of all concerned including Union Government and State Governments to conserve and not waste these resources. Article 48A of the Constitution of India requires the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Under Article 51A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wild-life and to have compassion for living creatures.”

The doctrine finds its importance in matters relating to allotment of petrol pumps, lease of land, use of non renewable energy sources and other natural resources likes minerals.

The concept behind this doctrine is that it is the duty of the government to conserve natural resources for the use of future generations.

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[1] (1997)1 SCC 388

[2]AIR  2001 AP

[3] 2005 SC

Divorce under Muslim law

Kinds of Divorce:

A Muslim marriage can be dissolved in the following manners:

(1)    By husband

(A)   Talaq

(i)                  Talaq-us-sunnat

(a)    Ahsan- husband pronounces talaq in one pronouncement, during wife’s period of tuhr and abstains from intercourse during the period of iddat. Cohabitation revokes talaq. It becomes irrevocable on the expiry of iddat period.

(b)   Hasan- three successive pronouncements during wife’s period of tuhr or at gap of 30 days each and no sexual intercourse during these three periods of tuhr. It becomes irrevocable on third pronouncement.

(ii)                Talaq-ul-biddat- irregular mode of talaq. Shias and malikis do not recognize it. In this, the husband pronounces talaq in one sentence only. It is also known as ‘triple talaq’.

(B)   Ila- husband of sound mind swears by God that he will abstain from sex and abstains for four months or more. Ila is cancelled by having intercourse during four months or a verbal restriction thereof. Ila is not practiced in India.

(C)   Zihar- a sane and adult husband compares his wife to his mother or other females within prohibited degree. Wife has right to refuse sexual intercourse till he frees a slave, fasts for two months or feeds sixty poor people or she can apply to the court requiring him to perform penace or for regular divorce.

(2)    By wife- talaq-e-tafwiz- wife pronounces divorce to herself under husband’s delegated power. Wife does not divorce her husband but divorces herself on behalf of the husband.

(3)    By mutual consent

(A)   Khula- there is an offer by the wife accepted with the consideration (evaz) for release and the offer is accepted by the husband.

(B)   Mubarat – the offer may be from either side, it becomes irrevocable once it is accepted.

(4)    Lian (false charge of adultery)- where a husband charges his wife of adultery and the charge is false, the wife can sue for and obtain divorce.

(5)    Faskh- a muslim woman can approach qazi for the dissolution of her marriage.

(6)    By judicial decree under Dissolution of Muslim Marriage Act, 1939- under section 2 of the Act, a muslim woman can obtain a decree for the dissolution of her marriage on the following grounds:-

(i)                  Absence of husband

(ii)                Failure to maintain

(iii)               Imprisonment of husband

(iv)              Failure to perform marital obligations

(v)                Impotency of husband

(vi)              Insanity, leprosy or venereal disease

(vii)             Repudiation of marriage by wife

(viii)           Cruelty of husband

(ix)              Grounds of divorce recognized by muslim law- includes ila, zihar, khula, mubarat and tafweez.

Difference between shia and sunni school of law

(1)    Under Sunni law talaq may be orally or in writing but shia school does not recognize talaq in writing unless husband is physically incapable of pronouncing it.

(2)    Sunni law does not require witnesses but shia law requires two male witnesses at the time of pronouncement.

(3)    Under shia law, intention is essential, talaq pronounced in intoxicated state or jest not valid while it is valid under sunni law.

(4)    Sunni law recognizes talaq-ul-sunnat as well as talaq-ul-biddat while shia law recognizes only talaq-ul-sunnat.

Recidivism

Recidivism may be defined as the tendency to repeatedly indulging in criminal activities. A recidivist repeats the offence again and again even after he has been arrested and punished. The persons involved in such activities may include individuals that are emotionally unstable, those who have received inadequate correctional measure, unskilled, less educated persons or hardened criminals. Individuals who feel mistrusted are more likely to repeat offences. They generally form a group and commit the offence in group. The crimes that are most commonly repeated include theft, robbery, burglary, larceny, forgery, etc.

Open air camps and correctional work inside prisons are thought to be effective measure for the reformation of the criminal. Adequate after care on release to rehabilitate the individual for upright living is also essential. Further, the cases should be treated in fast track courts so that the reformative procedures are taken upon as early as possible instead of making the individual more prone towards committing offences.

Restitution of conjugal rights under Hindu law

Marriage according to Hindu law is a sacrament. By saying that marriage is a sacrament it means that the primary function of marriage is the performance of religious and spiritual duties by married couple and that the union is a permanent one.

In order to maintain the permanancy of marriage, law provides for the provision of restitution of conjugal rights in the event of one party withdrawing from the society of the other without any reasonable cause. The law seeks to maintain a stability of marital relations and favors all attempts in order to prevent the breakdown of marriage.

Section 9 of the Hindu Marriage Act provides for the restitution of conjugal rights.

Section 9 states that: When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

The essential provisions of this section are:

(1) One party has withdrawn from the society of the other,

(2) Such withdrawl is without any reasonable reason,

(3) The aggrieved party applies for the restitution of conjugal rights.

The object of decree of restitution of conjugal rights is to bring about cohabitation between the estranged parties so that they an live together in the matrimonial house with amity. It does not aim at forcing a person to sexual relationship. Further, the decree is granted if the reason for withdrawl is not reasonable. If the court finds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. Further, if after the passing of the decree, the parties do not cohabit continuously for one year, then it beomes a ground for dissolution of marriage under Section 13.

Reasonable grounds for withdrawal:

(A)   If there exists a ground on which the respondent can claim any matrimonial relief.

(B)   If the petitioner is guilty of any matrimonial misconduct.

(C)   If the petitioner is guilty of such act, omission or conduct which makes it impossible for the respondent to live with him.

Husband’s neglect of his wife[1] or the constant demand for dowry[2] is reasonable grounds for the wife to stay at her parent’s place.

Burden of proof:

The initial burden to prove that the respondent has withdrawn from the society of the petitioner is on the petitioner. Once that burden is discharged, it is for the respondent to prove that there exists a reasonable excuse for the withdrawal.[3]

Constitutional validity of Section 9

It has been contended in many cases that Section 9 of the Hindu Marriage Act, 1955, is violative of right to privacy under Article 21. In many cases the wife has stated that the Section is misused by husbands to force the wife into living with them against her wish. In the case of T Sareetha v T Venkata Subbaih[4], the court observed that Section 9 is violative of right to privacy and human dignity given under Article 21 of the Constitution and hence, ultra vires the Constitution. However, this was overruled by the Supreme Court in Saroj Rani v Sudarshan.[5]
Law seeks to provide stability of marriage, it does not force a person into unwanted relations. The decree is passed only when there is an unreaonable withdrawl of society. However, it maybe misused by husbands or wives into coercing their unwilling partners into cohabitation. Therefore, it is the duty of the courts to enquire judiciously and order accordingly.

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[1] Ram Chandra v Aadarsh AIR 1987 Del 99

[2] Ashok v Shabnam AIR 1989 Del 121

[3] Atmaram v Narbada AIR 1980 Raj 35

[4] AIR 1983 AP 356

[5] AIR 1984 SC 1562