Introduction

Article 23 and 24 provides fundamental right against exploitation. The exploitation of lower castes by upper caste, practices like Sati Pratha, Devadasi system, forced prostitution, human trafficking, employing children in hazardous industries are some of the very common incidences of exploitation in India.

Through Article 23 and 24, the constitution of India expressly mentions its commitment to save humans being from the scourge of exploitation.

Meaning: Exploitation

Exploitation is a word borrowed from French. ‘Exploitation’ means depriving a person of his due through force or fraud. When a person is denied his share, reward or remuneration for his contribution of labour and service for producing the wealth then it is known as exploitation.[i] Marx links exploitation with that of surplus-value. It is a phenomenon where one enjoys the fruits of labour without performing any of the tasks of labour.

Article 23: Prohibition of Trafficking of Human Being and Forced Labour

Article 23(1) prohibits 3 aspects of exploitation-

1. Trafficking

2. Begar

3. Forced Labour

and mandates that any contravention of such prohibition shall be an offence.

The parliament has power under Article 35 to make a law prescribing punishment for all those acts which are prohibited under part III of the constitution.

In pursuance of such power, parliament has enacted several laws prohibiting forced labour, begar and trafficking. Laws passed by the Parliament in pursuance of Article 23:

A. Suppression of Immoral Traffic in Women and Girls Act, 1956

B. Bonded Labour System (Abolition) Act, 1976

Human Trafficking

It means the sale and purchase of human beings mostly for sexual slavery, forced prostitution, or forced labour. Slavery is not expressly mentioned under Article 23 but it is included within the meaning of ‘traffic in human beings.’

Begar

It means forcing a person to work for no remuneration. A person is compelled to work against his will.

Other forms of forced labour

It is considered forced labour if the less-than-minimum wage is paid. This article also makes ‘bonded labour’ unconstitutional. Bonded labour is when a person is forced to offer services out of a loan/debt that cannot be repaid.[ii]

The Calcutta High Court in Dulal Samanta vs Dist. Magistrate[iii] interpreting the expression -other similar forms of forced labour held that the expression is to be interpreted ejusdem generis and it has to be something like either traffic in human beings or begar.

Exception

Ban against traffic in a human being is absolute but ban against forced labour is subject to one exception as mentioned in Article 23(2)

ARTICLE 23(2)

The state can impose compulsory services for a public purpose like national defence, removal of illiteracy or the smooth running of public utility service like water, electricity, postage, rail, and air services.[iv]

In making any such provision compulsory for public purposes, the state cannot discriminate on the grounds of religion, race, caste or class or any of them. Sex is not a prohibited ground of discrimination which indicates that women could be exempted from compulsory public service. Term class is used in pure economic sense.

However, no such law at the central level is made in India so far in its history. For a brief period in Nagaland, there was a law that said that in case of impeding blood able-bodied person can be called to join the army.

Important Judgments on Rights against exploitation (Article 23)

1. People’s Union for Democratic Rights v. Union of India AIR 1983 SC 1473 [v]

The Supreme Court interpreted the scope of Article 23. The petitioner scrutinized the working conditions of various people employed in Asiad projects. It was discovered that the labourers were subject to great exploitation, they were not given minimum wages, subjected to an inhumane working environment. PIL was filed.

J. PN Bhagwati observed that the scope of Article 23 is vast and unlimited. It is not merely ‘begar’ which is prohibited but this Article strikes at forced labour in whichever form it may exist. Every form of forced labour is prohibited.

No person shall be forced to provide labour or services against his will even if it is mentioned under a contract of service.

The word ‘force’ has a very wide meaning under Article 23. It not only includes physical or legal force but also recognizes economic circumstances which compel a person to work against his will on less than minimum wage.

 2. Sanjit Roy vs State of Rajasthan AIR 1983 SC 328 [vi]

In this case, the state had employed people for the construction of roads. Their work was allowed under the famine relief act. These workers were paid way less than the minimum wages.  It was contended that this payment of wages lower than minimum wages was violative of Article 23. 

Court held that the state is not allowed to take undue advantage of the helplessness of people with an excuse of helping them to meet the situation of famine or drought.

 The court observed that they must be paid fairly for the work into which they put in effort and sweat, and which provides benefits to the state.

3. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 [vii]

Bandhua Mukti Morcha is an organization that works against the prevalent system of bonded labours in India.

This case is special in the sense that the court for the first time accepted and treated a letter written to J.Bhagwati as a petition for PIL. The letter described the ordeal of a large number of workers in the Faridabad district of UP who were working in inhuman and intolerable conditions.

The court laid down guidelines for the determination of bonded labourers and pointed out that it was the duty of the state government to identify, release, and rehabilitate the bonded labourers.

Article 24- Prohibition of Employment of Children in Factories, etc

Article 24 must be read with A. 39(e) and A. 39(f) of DPSP which provides for the protection of health and strength of children and that the tender age of children should not be abused.

Article 24 prohibits employment of children below 14 years of age in any factory, mine or any other hazardous employment.

The Supreme Court in Peoples Union for Democratic Rights v. Union of India (AIR 1982 SC 1473) [viii] held that building construction work was such hazardous employment where children below the age of fourteen years should not be employed. The court also pointed out the horizontal nature of Article 24. Prohibition of Article 24 could be enforced against everyone, whether State or private individual.

In MC Mehta Vs State of Tamil Nadu [ix] – MC Mehta brought before the court the plight of children engaged in Sivakasi cracker factories. In this case, the Supreme Court directed setting up of Child Labour Rehabilitation Welfare Fund and asked the employer to pay Rs. 20,000 as compensation to each child.

India is also a signatory of the Convention on the rights of child, 1989[x] Article 32 of the convention requires that each state party to the Convention shall protect the children from economic exploitation and any hazardous work. India ratified the convention in 1999. In pursuance of the obligation under Article 24 and international instruments, parliament has enacted various laws against child labour–

Factories Act 1948; Mines Act, 1952; The Bidi and Cigar Workers(Conditions of employment act),1966; the apprentices’ act,1961; the employment of children act 1938; and other similar acts.

Child Labour (Prohibition and Regulation) Amendment Act, 2016[xi]amended the child labour (prohibition and regulation) Act, 1986.

The amendment act prohibited the employment of children below 14 years of age in all occupation and industries except those run by the child’s own family. Before the amendment employment of children below 14 years in domestic work was completely legal.

 A complete prohibition has been imposed on the employment of child labour (i.e. a person below the age of 14 years) in any establishment whether hazardous or not. A child is permitted to work only to help the family in family enterprise after school hours or during vacations.

India finally ratified convention number 182 of the International labour organization[xii] which deals with prohibition and elimination of worst forms of child labour and provides that no child shall be employed in a hazardous occupation. Interestingly, India is one of the last countries to ratify the convention. Nevertheless, the act introduced a new category called adolescents which cover person between14-18years of age. The amendment permits the employment of adolescent labour except in hazardous processes or occupation.

The number of hazardous occupations and processes has been reduced from 83 to only 3-mining, explosives, occupations mentioned in the factories act 1948. It leaves children open to employment in all other kinds of hazardous industries including construction, asbestos, brick kilns, glass factories and garbage picking.[xiii]

It provides for the setting up of the Child and Adolescent Labour Rehabilitation Fund[xiv]in which all the amounts of penalty have to be realized. This provision has been drawn from MC Mehta judgment.

The amendment has been widely criticized for being toothless and instead of eradicating child labour by its very root, it rather makes way for child labour to thrive.

Conclusion

The existence of practices like exploitation and child labour is a blot on a civilised society. The truth remains that despite numerous laws made in pursuance of article 23 and 24 we are still far from achieving a status of zero exploitation. Instead, India is home to 10 million child labourers and more than 42.7 million children are out of school [xv].

The exploitation of the weak by the stronger continues unabated. Forced labour, bonded labour, trafficking continues to exist. The thrust needs to be on education, awareness, concerted efforts on part of concerned authorities, generation of funds, creating employment opportunities in curbing the evil.

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Introduction

Laws are often enacted by legal experts under the guidance of experts of different fields and hence, the wordings or phrases used in these laws might cause confusion or result in ambiguity. Interpretation literally means to explain or to understand. The basic purpose of interpretation is to help understand the various statutes and provisions of law.

For dealing with such ambiguity, interpretation of statutes comes into picture.

Definition of Interpretation of Statutes

Salmond gave the definition of interpretation of statutes as follows:

• Interpretation of statutes is the procedure by which the courts aim to understand the meaning of a legislation through the means of the authoritative forms in which is expressed.

Blackstone also provided for the definition of interpretation of statutes which is as follows:

• He said that the fairest and most rational method of understanding and interpreting a statute is by exploring the intention of the legislation through the most natural and probable signs.

It can also be said that the Statement of Objects and Reasons and the Preamble at the start of every Statute provides a guideline for the way in which the particular Act should be interpreted.

Importance of interpretation of statutes

Interpretation of statutes is necessary for the following three reasons:

1. The complexity of Statutes: As mentioned earlier, laws are enacted by individuals who are experts in their particular fields and as a result, the provisions might be complex for a layman to understand. Hence, interpretation is deemed necessary.
2. Legislative Intent: Sometimes, due to the complex nature of the statute, the legislative intent might be lost and in order to understand the intent of the legislature, it is important to interpret the statutes.
3. Multifaceted Nature of Language: The problem with the English language is that the same word might have different meanings in different contexts. For example, the word “PLAY” has different meanings in different contexts – “Have you watched the play XYZ?” or “Are the kids playing?” Both the words are the same, however, their meaning is different in both the sentences.

Literal Rule of Interpretation

In order to interpret statutes, the courts use various principles which help them understand the principles. One of the principles is called the “Literal Rule of Interpretation”

The literal rule of interpretation has been termed as the primary rule of interpretation. As the name suggests, the literal rule of interpretation means that the judge literally interprets the statute. It can also be called the plain-meaning rule or the grammatical rule.

Statutes are constructed using the ordinary meaning of language given to the term and the judges are not required to interpret the terms in any other way.

In other words, the provisions have to be read word to word and no other meaning can be given to the statute.

In order to avoid ambiguity, the Act generally has “definitions” mentioned in it. If a particular meaning is given in the definition clause, the particular meaning shall be used and no other meaning.

In the literal rule of interpretation, the courts are required to observe the ordinary and natural meaning of words, interpret the phrase or words as it is. Judges are not required to add words or modify meaning and they must observe the actual intent of the legislature. It is the safest rule of interpretation.

The literal rule of interpretation, in a way, is against the use of intelligence in understanding language. Judges are bound by the literal meaning of the words and cannot use their judicial minds to deviate from it.

Sub Rules under the Literal Rule of Interpretation

• There are a few sub-rules that are followed in the literal rule of interpretation:

1. Ejusdem Generis: It literally translates to “of the same kind”. It means to follow the general meaning of word or words of similar kind.
2. Casus Omissus: It literally means cases omitted. It can also be interpreted as a point which is not provided for by the statute. Where a point is not provided for by the statute, it is governed by case laws.
3. Expressio Unius Est Exclusio Alterius: It literally means that one thing has been mentioned whereas the other has been left out.

Advantages of Literal Rule of Interpretation:

1. Literal rule enables layman to understand the issue in hand.
2. It enables to understand the intent of legislature simply and clearly.
3. This rule respects the parliamentary supremacy.

Criticisms of Literal Rule of Interpretation:

A major criticism of this rule of interpretation is that the meanings of words might change from time to time and hence the literal interpretation leads to injustice. Misleading precedents may be created due to this.

Some ambiguity might still arise while interpreting due to the use of words like “or”, “and”, “all”.

Another criticism of this rule is that it restricts and bounds the court making it unable to use its judicial mind to deviate from the literal meaning of the terms.

Sometimes, a court might ascertain an absolute absurd meaning which the legislature never intended.

Case Laws on Literal Rule of Interpretation

1. Maqbool Hussain v State of Bombay [i]: In this case Maqbool, an Indian citizen, upon returning from an international trip brought some gold with him. According to the Sea Customs Act, no Indian citizen was allowed to bring any valuables such as gold and hence, his gold was confiscated. He was then prosecuted under the Foreign Exchange Regulation Act, 1947. Maqbool contended that since the gold had already been confiscated, and that was a trial in itself. He cannot be prosecuted under FERA, 1947 as it would amount to double jeopardy. However, the Supreme Court held that confiscation of gold cannot be termed as prosecution and hence it was not a case of double jeopardy according to the strict and literal interpretation of Article 20(2).
2. Ram Avtar v Assistant Sales Tax Officer[ii]: Under the Central Province and Berar Sales Tax Act, vegetables were tax-free. Ram Avtar contented that pan leaf is also covered under the purview of vegetable according to its dictionary meaning and hence should be tax-free. However, the court said that the dictionary meaning shall be referred to only when there is ambiguity in the provision and there wasn’t any ambiguity, hence the court rejected his plea.
3. CBI Bank Securities & Fraud Cell v Ramesh Gelli & Ors [iii]: In this case, the Supreme Court held that a managing director or chairman of a private bank will come under the purview of “public officer”.

Conclusion

From the above discussion, it is clear that the literal rule of interpretation is the primary rule of interpretation under which courts interpret statutes and provisions in the literal and ordinary sense without adding any meaning to them and without modifying them. This rule is helpful in cases where there is no ambiguity.

[i] Maqbool Hussain v State of Bombay AIR 1953 SC 325

[ii] Ram Avtar v Assistant Sales Tax Officer 1961 AIR 1325

[iii] Central Bureau of Investigation Bank Securities and Fraud Cell v Ramesh Gelli & Ors AIR 2016

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Section 506 of The Indian Penal Code

506. Punishment for criminal intimidation.— Whoever commits, the offence of criminal intimidation shall be punished with imprison­ment of either description for a term which may extend to two years, or with fine, or with both;

If threat be to cause death or grievous hurt, etc.—And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprison­ment of either description for a term which may extend to seven years, or with fine, or with both.

Introduction

Section 503 IPC defines criminal intimidation and section 506 IPC is the penal provision prescribing punishment for the offence committed under section 503 IPC.

Before understanding the provision of punishment for criminal intimidation it is important to decode what constitutes criminal intimidation. Threatening someone with life and reputation is dealt with great seriousness under IPC. Section 503-510 IPC defines various offences of the nature of criminal intimidation and prescribes punishment for the same.

Essentials of Section 503 IPC

 In Narendra Kumar & others Vs. State( 2004) [i] Delhi High court pointed out essential ingredients of an offence under section 503IPC

1. There should be a threat of injury

a) To a person

b) To his reputation; or,

c) To his property; or,

d) To the person or reputation of anyone in whom that person is interested.

2. The threat must be with the intent

a) To cause alarm to that person; or,

b) To cause that person to do an act which he is not legally bound to do as the means of avoiding the execution of such threat; or,

c) To cause that person to omit to do any act which that person is legally entitled to do as means of avoiding the execution of such threat.

Injury

The term ‘Injury’ is defined under section 44 IPC which means any harm that is caused illegally to any person in mind, body or reputation.

Intention

‘Intention’ is a mental condition. Intention plays an important role in determining whether the accused is guilty and the same can be determined in view of the facts and circumstances of the case.

Intimidation

‘Intimidate’ according to Webster’s Dictionary means “(1) to make timid, make afraid, overawe; (2) force or deter with threats or violence.[ii]

Threat

‘Threat’ is derived from the Anglo-Saxon word “threoton to lire”, (harass). It is the declaration of an intention to inflict punishment, loss or pain on another.[iii]

Alarm

The Orissa HC in Amulya Kumar Behera vs Nabaghana Behera Alias Nabina (1995) [iv] tried to explain the meaning of the term ‘alarm’ used in the section. The court tells us that the use of the term alarm is rather new and earlier words like distress and terror were used.

Threat causes great mental anguish and anxiety to a person. Any threat is measured through the lens of a man of common firmness, a man of reason and prudence.

The Orissa HC observed that the degree of alarm may vary in different cases but what matters is that the alarm raised should be of such a nature and extent that it unsettles the mind of the person in whom it operates and he loses control over his free voluntary actions.

The test, therefore, is whether the threat was of such an extent and degree that it could overcome a man of ordinary nerves. If yes, it would amount to criminal intimidation.

What constitutes ‘Criminal Intimidation’?

In Amulya Kumar Behera vs Nabaghana Behera(1995) [v], the complainant alleged that the accused abused him in filthy language and if the witnesses had not intervened and saved him, the accused would have given him more injuries than a mere fist blow.

The complainant admitted that he was not alarmed by the threat given to him by the accused. The court observed that creating an alarm in the mind of the threatened person is an essential ingredient to attract 506IPC and since this important element was missing, it did not amount to criminal intimidation.

In Romesh Chandra Arora Vs State( 1980)[vi] the accused threatened person X and his daughter, of injury to reputation by releasing nude pictures of the daughter until the money was paid to him. The court agreed that these pictures if made public would undoubtedly compromise the reputation of the girl and her father.

The court further observed that the accused intended to cause alarm to X so that having been threatened X could give in to all his demands and give him the money and thus ensure that the accused would not execute the threat of posting those pictures on public platforms. This amounted to criminal intimidation as it raised sufficient alarm for X.

In Manik Taneja Vs State of Karnataka (2015) [vii] In this case, the appellant met with an accident, she clashed with auto-rickshaw, passenger of auto sustained injuries. She paid for the expenses of the hospital and the matter was amicably settled. Later she was called to the police station, she alleged that the police officers misbehaved with her and threatened her with charges of rash and negligent driving. Aggrieved by this she posted comments on the Facebook page of Bangalore traffic police accusing the police inspector of harassment and harsh behaviour.

Consequently, FIR was filed against the appellant under section 506 and section 353 of IPC.

Supreme Court held that mere expression of any words without any intention to cause alarm would not be sufficient to bring in the application of Sections 503 and 506 IPC. There was no intention on the appellant’s part to cause any alarm.

In Surinder Suri v. State of Haryana[viii], Punjab and Haryana HC observed that the gist of the offence under Section 503 IPC, is the effect which the threat is intended to have upon the mind of the person threatened. The threat must be one that can be put into execution by the person threatening. A mere vague allegation by the accused that he is going to take revenge by false complaints cannot amount to criminal intimidation.

In a recent case of Shri Padma Mohan Jamatia vs. Smt. Jharna Das Baidya (2019)[ix] Tripura HC held that the mere use of abusive words, filthy language and body posture during the speech of a political leader is not included within the ambit of the provisions of criminal intimidation under the IPC.

Section 506 IPC: Analysis

Section 506 IPC can be divided into 2 categories-

1. First part covers simple cases of criminal intimidation which is punishable with imprisonment for a period that may extend to two years, or a fine, or both.

Classification of offence– the offence is non-cognizable, compoundable, bailable.

Triable by- Any magistrate.

2. Second part of the section covers a comparatively graver form of criminal intimidation

If the threat is to cause-

a) Death or grievous hurt;

b) Destruction of any property by fire;

c) To cause an offence punishable with imprisonment up to seven years or life imprisonment or death;

d) To attribute unchastity to a woman.

 In such a case the punishment would be simple or rigorous imprisonment for a term extending to seven years; or a fine; or both

Classification of the offence– This part is non-cognizable, bailable and non-compoundable offence.

Triable by– Magistrate first class.

The very essence of the 2^nd part of section 506IPC is that there must be a threat of either causing death or grievous hurt.

In Ghanshyam vs. State of Madhya Pradesh (1989) [x], the accused entered the house at night, armed with a knife. He threatened to kill the residents. This was held to be criminal intimidation under Part II of the provision.

In Subramanian Swamy (Dr.) vs. C. Pushparaj, (1998) [xi] In this case complaint was filed on a speech delivered by the petitioner which the complainant found offensive and threatening under 506 IPC

The court observed that for an offence to amount to criminal intimidation one must look at to whom it was intended, whether the alarm was caused, what are the actual words employed. The mere mentioning of sections and putting a person to face the trial is nothing but the abuse of the process of the Court. The court held that mere outburst is not sufficient to hold that it would fall within the mischief of Sec. 506.

Conclusion

Above discussion makes it clear that the immediate purpose of criminal intimidation is to induce the person threatened to do, or to abstain from doing, something which the person was not legally bound to do or to omit. It is therefore a punishable offence. Section 506 is the penal section which states the punishment for the offence of criminal intimidation, the offence itself is defined in s. 503. Section 506 IPC is divided into 2 categories which are lesser and graver forms of criminal intimidation and thus punishment is given accordingly. In IPC offence of criminal intimidation is expressly laid out and tries to cover all facets of criminal intimidation.

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SECTION 13 HINDU MARRIAGE ACT 1955- DIVORCE

Divorce among Hindus was not recognized until the Hindu marriage Act, 1955. Manu says that a marriage can end only with the death of one of the spouses. Any divorce taken otherwise was not only frowned upon but deeply stigmatized and prejudiced. Divorce was considered as a sin.

British India only had the Divorce Act, 1869[i] which provided for the divorce procedure in India for people professing the religion of Christianity. Other than that there was no enactment for the divorce process in India.

It was only in 1955 that parliament passed the Hindu Marriage Act 1955 and provision related to the concept of divorce was introduced in the act. Divorce, the said term has not been defined in the act but it simply means, dissolution of marriage. Various grounds of divorce are mentioned under section 13 of the Hindu Marriage Act[ii].

GROUNDS OF DIVORCE

1. ADULTERY- Section 13(1)(i)

Adultery means voluntary sexual intercourse outside lawful wedlock.

It is for the petitioner to prove that there was a lawful marriage and that the respondent had sexual intercourse with a person other than him/her. Marriage must be subsisting at the time of the act.

Supreme Court in Joseph Shine Vs Union of India[iii] ruled that adultery is not a crime and struck down section 497IPC. It was observed that two individuals may part if one cheat but to attach criminality to infidelity is going too far. Adultery is a personal matter and how do couple deals with it is a matter of privacy at its pinnacle. This loss of moral commitment in marriage which creates a dent in the relationship has been left for the personal call of the couple. If they wish to, they can proceed with the divorce.

2. CRUELTY- Section 13(1)(ia)

Treating the petitioner with cruelty after the solemnization of marriage is a ground for divorce. Cruelty can be both physical and mental. Physical beating or causing bodily injury to the spouse amounts to physical cruelty. Physical cruelty is easy to determine. It is difficult to say what constitutes mental cruelty. Cruelty is also an offense under section 498A IPC[iv]

ESSENTIALS- [v]

a) The conduct complained of should be “grave and weighty”

b) The petitioner spouse cannot be reasonably expected to live with the other spouse.

c) It must be something more serious than “ordinary wear and tear of married life”.

Some instances of mental cruelty-

1. False accusations of adultery

2. Demand for dowry

3. Alcoholic and abusive partner                

4. Impotency of wife

5. Immoral life of the partner

6. Incompatibility

3. DESERTION- Section 13(1)(ib)

It can be simply understood to mean abandoning a spouse. As per section 10(1) of HMA[vi], divorce can happen if the petitioner had been deserted for a continuous period of two years immediately after preceding the presentation of the petition.

Essentials-

a) Factum of separation

b) Animus Deserdendi i.e., intention to desert

c) Desertion without any reasonable cause

d) Desertion without consent of the other party

e) Statutory period of 2 years must have passed before a petition is presented

4. CONVERSION- Section 13(1)(ii)

If any spouse ceases to be Hindu and converts into another religion without the consent of the other spouse, a divorce can be granted.

5. INSANITY-Section 13(1)(iii)

There are two requirements of insanity as a ground of divorce-

a) The respondent has been of incurable unsound mind

b)  Respondent suffering continuously or intermittently from mental disorder of such a kind or extent that it would not be reasonable for the petitioner to continue living with the respondent.

6. LEPROSY – Section 13(1)(iv) (Omitted)

Leprosy was earlier one of the grounds of divorce is now omitted. The Law Commission in its report had recommended repeal of any provision which were discriminatory against leprosy-affected people. India is also a signatory to a UN Resolution which calls for the elimination of discrimination against persons suffering from leprosy. Parliament on 13^th February 2019 passed, Personal Law Amendment bill[vii] removing leprosy as a ground for divorce under five personal laws including the Hindu Marriage Act.[viii]

 7. VENEREAL DISEASE –Section 13(1)(v)

A sexually transmitted disease that is incurable and transmittable forms a ground of divorce, if either of the spouses is suffering from any such disease. A disease like AIDS is called venereal disease.

8. RENUNCIATION -Section 13(1)(vi)

When one of the spouses decides to renunciate the world and enters a holy order, then the other spouse can file a divorce petition. Renouncement of the world by entering any religious order must be absolute. It amounts to civil death and has the effect of excluding a person from inheritance and the right to partition.

8. PRESUMPTION OF DEATH- Section 13(1)(vii) 

If a person has not been heard of as being alive for at least seven years, by those persons who would naturally have heard of it, had that party not been alive, this is a legal presumption of death.

This presumption may be rebutted if a person has not been heard of for the last 7 years due to special circumstances such as absconding on a charge of murder.[ix]

SECTION 13(1A)(i) – NON-COMPLIANCE WITH DECREE OF JUDICIAL SEPARATION

If there has not been any resumption of cohabitation between the couple even after one year has elapsed since the passing of the decree for judicial separation, a spouse can present a divorce petition. Resumption of cohabitation simply means living together in a conjugal relationship.

The court will grant a decree for divorce under 13(1A) if there is no bar as laid down in section 23 of HMA.

SECTION 13(1A)(ii) -NON-COMPLIANCE WITH DECREE OF RESTITUTION OF CONJUGAL RIGHTS

Restitution of conjugal rights means restoration of marital obligations. If there has not been any resumption of conjugal rights for one year after the passing of a decree under section 9 of the act, then either of the spouses may present a divorce petition.

The court before granting a decree for divorce on this ground may be satisfied that the petitioner is not disentitled to this right because of any bar laid down in s. 23 of the Act.[x]

In Saroj Rani Vs Sudarshan Kumar[xi] it was held that where the husband has obtained a decree for restitution of conjugal rights, only to seek a divorce under s. 13(1 A)(ii) of the Act and preventing the wife from performing her conjugal duties by driving her away from the house, this constituted misconduct under s. 23(1)(a) of the Act as the husband was taking advantage of his wrong and hence he was not entitled to any relief under s. 13(1A) of the Act.

SPECIAL GROUNDS OF DIVORCE FOR WIFE

The wife has been given special grounds to seek divorce.

SECTION 13(2)(i) – BIGAMY

If a husband already has a wife before the commencement of the act and after the commencement of the act he gets married to another woman, either of the two wives may apply for divorce. The only rider is that the divorce petition would be successful if the other wife was alive at the time of the presentation of the petition.

SECTION 13(2)(ii)- RAPE, SODOMY or BESTIALITY

A wife can file a divorce petition if her husband has been guilty of Rape, sodomy, or bestiality since the solemnization of marriage.

Rape is a criminal offense under section 375IPC. Section 375 IPC which defines rape does not criminalize marital rape. Rape laws in our country continue with the patriarchal outlook of considering women to be the property of men post marriage. After marriage, a woman is supposed to have given implied consent for her body to be used in and as the way her husband likes.

Exception 2 to section 375 reads that sexual intercourse or sexual acts by a man with his wife who is not below 15 years of age, is not rape. Section 42A was inserted in the POCSO Act which says that the provisions of POCSO would prevail over any other law including IPC to the extent of the inconsistency. According to POCSO, a child is a person below 18years of age and any sexual intercourse with a child below 18years is a punishable offense. POCSO prevails over IPC. However, the law is still silent over the rape committed by a husband of his wife who is 18 or above.

Sodomy is committed by a person who has carnal copulation with a member of the same sex or with an animal or has non-coital carnal copulation with a member of the opposite sex. Bestiality means sexual union by a human being against the order of nature with an animal.[xii]

SECTION 13(2)(iii)- DECREE OR ORDER OF MAINTENANCE

When a decree for maintenance of wife under section 18 of Hindu Adoptions and Maintenance Act, 1956 or

An order of maintenance has been passed under section 125CrPC against the husband

The wife has the option to present a petition for divorce if 2 conditions are satisfied-

a) That she was living apart

b) There has been no cohabitation between her and her husband for at least one year after the passing of such decree.

SECTION 13(2)(iv)- MARRIAGE BEFORE ATTAINMENT OF AGE OF FIFTEEN YEARS

A wife may present a petition for divorce if marriage was solemnized before her attaining the age of 15 years. Such a child bride can opt-out of marriage on the attainment of puberty and can ask the court for repudiation of the marriage after attainment of 15 years of age but before completing 18 years of age.

Courts allow child brides to exercise this right to protect those who may have been coerced into marriage.

CONCLUSION

Section 13 presents various grounds for divorce that are present to the spouse. Additional grounds have been provided to wives to claim divorce. Hindu marriage act adopts fault theory in the matter of divorce which means that marriage can be ended when one of the spouses is responsible or liable for the offense under matrimonial offenses. The innocent spouse can seek the remedy of divorce.

As pious a relationship of marriage is, recognizing divorce in a civilized world is important. Apart from the various ground mentioned here, divorce by mutual consent, irretrievable breakdown of marriage is some of the other grounds available to a married couple for seeking a divorce. Increased emphasis on individual liberty and their choices has increased acceptance of divorcees in our country and stigmatization too is seeing a decline which is a positive change in society.

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Introduction

An American abolitionist once said, “All history attests that man has subjected women to his will, used her as a means to promote his gratification, to minister his sexual pleasures, to be instrumental in promoting his comfort; but never has he desired to elevate her to that rank she was created to fill.”[i]

Eve teasing can be understood to mean sexual harassment of women in public places such as streets, public transportation, workplace etc. A lewd stare, sly whistle, well-timed clap, a warranted bump, a seemingly casual touch, humming of a suggestive song, giving unwelcome call are some of the common methods of eve-teasing. [ii] A woman becomes a victim of such obscene behaviour of men daily. Studies reveal that when faced with such a situation most women choose to remain silent, many are not aware of the remedies they have. Women, as per the societal norms are supposed to be submissive, passive, and obedient. Retaliation is not her feature and if she dares enough to retaliate, the repercussion is daunting.

Meaning of Eve Teasing

Eve teasing is one of the forms of gendered crimes against women. It is one of the methods of enjoyment of men who sees women as mere objects. What makes eve-teasing more insidious than any other form of violence is that it is often viewed as a harmless crime. But the truth remains that sexual harassment of women by men in India is pervasive. This practice is apparently so routine that it has a special name: ‘Eve teasing‘.[iii]

Eve is believed to be the first woman that God made on earth. All women are therefore generically termed as eve.

The literal meaning of teasing is to make fun of a person, playfully, unkindly or annoyingly.  

Sociologist, Pratikha Bakshicalls eve-teasing a euphemistic expression that lives in post-colonial India and refers largely to sexual harassment of women in public places, thereby constituting women as eves, temptresses who provoke men into sexual titillation. She goes on to say that the way sexual harassment is popularly perceived, belittles the phenomena as a joke where women are both a tease and deserve to be teased. [iv]

Supreme Court in Vishakha Vs State of Rajasthan [v] describes acts which amount to sexual harassment-

1. If there is unwelcome sexually determined behaviour, either directly or indirectly.

2. Any type of physical contact or advances,

3. Any demand or request for sexual favours

4. Sexually coloured remarks,

5. Any other type of physical, verbal or non-verbal conduct which is sexual will amount to sexual harassment.

Laws dealing with Eve teasing

IPC does not define eve-teasing as such. But the code carries the meaning of eve-teasing under several of its sections.

Section 294 IPC [vi]

The section penalizes certain acts of obscenity in public places i.e., whoever sings, recites, utters any obscene song, ballad, words to the annoyance of others is made punishable.

Punishment-  Three months of imprisonment or fine or both.

It is for the prosecution to prove that the accused committed an obscene act or recited or uttered any obscene song, ballad, words and that this was done in or near a public place. It is often difficult to prove these facts in a court of law.

Section 354 IPC [vii]

This section prescribes punishment for such acts of accused which not only causes insult or outrages the modesty of a woman but also causes or threatens to cause physical harm to her.

The offence is non-bailable, cognizable and non-compoundable.

Punishment– One to five years of imprisonment and fine.

Section 509 IPC [viii]

This section penalizes all those acts which are intended at outraging and insulting the modesty of a woman.

• Whoever, through words, gestures, sounds, or any objects intrudes upon the privacy of a woman AND
• Does such an act with an intention that such word or sound shall be heard or seen by some women shall be punishable.

The burden is on the prosecution to prove that the accused had uttered words or made such a gesture that intruded into her privacy. It is very difficult to establish this. Complaints are filed, files languish for years and doers move freely, unpunished.

Section 509IPC is a cognizable and bailable offence. Punishment is simple imprisonment for three years or a fine or both.

India witnessed a national outrage after the Nirbhaya incident in December 2012. Justice Verma Committee was constituted in the wake of this outrage to provide a strong deterrent for crimes against women. 

After the Criminal law amendment act 2013, stalking and Voyeurism became a non-bailable offence if repeated for a second time.

Section 354A [ix]

• Any man who shows pornography to a woman against her will,
• Makes sexually coloured remarks,
• Demands or requests for sexual favours etc. then he is said to have committed the offence of sexual harassment.

Punishment- Maximum 3 years or fine or both

In case of sexually coloured remark, punishment is 1 year of imprisonment or fine or both. The offence is bailable.

Section 354B IPC– Disrobing [x]

If any man uses criminal force against a woman with an intention either to disrobe her or compel her to be naked then he will be liable for punishment.

Punishment- Three to seven years of imprisonment and fine. It is a non-bailable offence.

Section 354C- Voyeurism [xi]

• Any man who watches or captures the image of a woman
• Who is engaged in either intimate behaviour or acts of undressing, sexual activity, or any acts that are considered private then he will be held liable under this act.

First conviction- Punishment may range from a minimum of one year which can extend to three years and fine, bailable offence.

Subsequent conviction- Punishment ranges from a minimum of three years imprisonment which can extend to seven years and fine, Non-bailable offence. 

Section 354D – Stalking [xii]

• Any man who follows a woman and tries to contact her or
• monitors the use of the internet, email or any electronic communication by her repeatedly
• Despite a clear indication of disinterest shown by her commits the offence of stalking.

Punishment-

First Conviction- Upto 3years+ fine, bailable offence

Subsequent Conviction- Upto 5years+ fine, non-bailable offence

Apart from this, it is always advisable for women to call on 100 i.e., police control room or 1091 i.e., women helpline number at the time of the incident.

Filing Complaint

The victim or complainant should immediately visit the nearest police station to register an FIR.

FIR once registered shall be numbered and she should take the registration number or receipt for the same.

It is also important to note that no police station can refuse to register FIR citing jurisdiction issues. After the Verma Committee report which led to the criminal law amendment act 2013, the provision of zero FIR[xiii] came up which requires FIR to be filed in any police station and the same can be later transferred to the appropriate police station.

Immediate filing of FIR plays a crucial role in the efficient investigation and quick nabbing of the accused.

Conclusion

The impact of eve-teasing is severe. The offence begins initially as an attempt to catch the attention of a girl and thus appears harmless, but subsequently, it may also lead to abduction, kidnapping, rape and murder. Evil, therefore, needs to be nipped in the bud. Eve teasing is a traumatic experience that can leave deep psychological scars on the victim women. It also leaves negative consequences on the community at large. There is no specific legislation as such dealing with eve-teasing. In the absence of any law, the offence of eve-teasing was usually dealt with in sections 294IPC and 509 IPC. After the criminal law amendment act 2013, offences like stalking, disrobing, voyeurism etc. is recognized and thus scope for punishment for eve-teasing has been widened.

Dr Samuel Johnson says that nature has given women so much power that the law has given them very little.[xiv] Our laws have so far failed to curb the menace. Eve teasing laws in India requires an overwhelming antidote. Stricter punishment, better enforcement mechanism, gender sensitization, public education could be some of the effective methods to curb the evil.

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Introduction

Marriage among Hindus is considered as a holy and a sacrosanct union. It is a religious sacrament that binds a man and a woman together in a permanent relationship.

Sociologist, R.N.Sharma(i) defines marriage as a relationship in which a man and a woman are bound together for the physical, social, and spiritual purposes of dharma, procreation, and sexual pleasure.

In Tekait Mon Mohini Jemadai vs Basant  Kumar Singh(ii), the court held that marriage under Hindu law was a sacrament, an indissoluble union of flesh with flesh, bone with a bone to be continued even in the next world.

Codification of Hindu Laws very much changed the nature of marriage. The Hindu Marriage Act, 1955(iii) added provisions of divorce, remarriage of widows, etc. which was earlier frowned upon. But it would be an overarching remark to say that Hindu marriage is purely a contract.

Section 7 of the act emphasizes marriage according to religious rites and ceremonies, essentials of a valid contract are missing. While consent and a legal age are necessary to enter into the bond of marriage, child marriage or marriage with a person of unsound mind is not void per se.

Be that as it may, marriage once solemnized, whether contractual or sacramental gives rise to a bundle of rights. It changes the status of the couple to legally wedded husband and wife, legitimacy is conferred on children born out of this marriage. Marriage thus marks the beginning of a family.

Meaning of Restitution of Conjugal Rights

Restitution means- Restoration

Conjugal rights mean rights emanating from a marital bond.

Cumulatively these rights are called conjugal rights and form the very essence of a marital union. Restitution of conjugal rights means the right to stay together.

It is an accepted norm that each spouse is entitled to the society and comfort of the other and if any spouse, without any reasonable cause leaves any spouse, the latter can move the court for a decree of restitution of conjugal rights.

The restitution of conjugal rights is a positive remedy that is given to a spouse to protect their marriage, to facilitate cohabitation among couples, and to save the sanctity of marriage.

Section 9 | Essentials

In the Hindu marriage act, 1955 remedy of restitution of conjugal rights is provided under section 9 (iv)

Following are the essential requisites of section 9-

1. There must be a marriage between the parties i.e., the parties should be legally wedded, husband and wife.

2. There must be a withdrawal of one spouse from the society of the other spouse.

3. This withdrawal should be without any reasonable cause.

4. The aggrieved party in such a situation may apply for restitution of conjugal rights.

5. There should be no other legal ground for refusal of the relief.

6. The court should be satisfied with the truth of the statement made in the petition

7. Accordingly, the court may grant a decree in favor of the aggrieved party.

8. If the suit is successful, the couple would be required to stay together.

Meaning of Withdrawal from Society

Law Commission in its 71st report titled- Irretrievable breakdown of marriage as a ground of divorce in para 6.5 reads-“The essence of marriage is a sharing of common life, a sharing of all the happiness that life had to offer and all the misery that has to face in life. Living together is a symbol of such sharing. Living apart is a symbol indicating the negation of such sharing.”(v)

Law commission makes it clear that cohabitation is an essential condition of marriage. Cohabitation means living together as husband and wife, wife rendering wifely services to her husband; the husband rendering husband like service to his wife. They must live together not merely as two people living in one house, but as husband and wife.(vi)The object of the restitution decree is to bring about cohabitation between the estranged parties so that they can live together in the matrimonial home in amity.(vii)

Besides physical separation, withdrawal also involves a mental process. It is a process resulting in a physical separation where parties are willfully avoiding marital obligations.

Burden of Proof

An explanation has been appended to the section in the year 1976 which places the burden of proving reasonable excuse upon the spouse who has withdrawn from the society.

The petitioner would first prove his case that the other spouse has withdrawn from his society without any reasonable cause. The burden would then shift to the other spouse for the defense of a reasonable excuse.

Reasonable Clause

What constitutes a reasonable excuse or a just cause is left to the subjective determination of each court. No straitjacket formula as such has been laid out. What would be a reasonable excuse will depend on the facts of each case. The reason must be grave and convincing.

In Smt. Sumanbai vs Anandrao Onkar Panpatil, 1976 (viii)- the court held that there can be no more insulting injury to the wife than her own husband questioning her chastity. And such a remark would amount to a reasonable excuse for the wife to withdraw from the society of her husband.

Iqbal Kaur vs Pritam Singh(ix), A Punjab HC judgment- the court held that allegation of unchastity was sufficient to amount to cruelty and reasonable excuse within the meaning of Section 9 of the Hindu Marriage Act.

R.Natarjan vs Sujatha Vasudevan 2011(x), the court held that if a wife is asking to live separately from husband’s aged parents, it does not amount to a reasonable excuse of withdrawal and the wife can be granted a decree for restitution of conjugal rights.

Sushila Bai v. Prem Narayan(xi), the husband deserted his wife and thereafter was unresponsive towards her. It was held by the court that such behavior is sufficient to show that he had withdrawn from the society of his wife, and therefore the wife’s petition for restitution of conjugal rights was allowed.

Constitutional Validity of Section 9

Andhra Pradesh HC– T. Sareetha v. T. Venkata Subbaiah(xii), section 9 of Hindu Marriage Act, 1955 was held as unconstitutional because this decree snatches the privacy of the wife by compelling her to live with her husband against her wishes.

Delhi HC in Harvinder Kaur v.Harmander Singh (xiii), held section 9 of the Hindu Marriage Act as valid.  Justice Krishna Iyer observed, “Introduction of the Constitutional Law in the Home is most inappropriate, it is like introducing a bull in a China shop”.

 This view was upheld by the Supreme Court of India, in Saroj Rani v. S.K. Chadha(xiv). The SC held that in the privacy of home and married life Article 21 or Article 14 has no place.

With Supreme Court declaring the right to privacy as a fundamental right in K.S. Puttaswamy (xv) and Joseph shine(xvi) clarifying that privacy depends on the exercise of autonomy by individuals and the right to privacy cannot be infringed by considering familial structure a private space, debate is once again ripe on the constitutional validity of this section.

Conclusion

Section 9 HMA enables a spouse to file a petition for obtaining a decree of restitution of conjugal rights against the other spouse who has left his society without any reasonable cause. It is a positive remedy and a marriage-saving clause.

Marriage among Hindus is a sacrament, a relationship beyond birth and death, and section 9 facilitates the protection of such marriage. But times have changed and so have people.

Section 9 has emerged as a coercive clause that compels two adults to live together against their wishes. It is an anomaly that on one hand we advocate about freedom and personal liberty of an individual and on the other hand, a provision like section 9 exist which every so often compels spouses to live with each other even when there is no affection and care left.

The law that was taken from England was banned by England way back in 1970. But we have been stuck to our colonial roots.

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