Special Provisions related to Women under the Code of Criminal Procedure 1973: A Critical Analysis

Provisions related to Women under the Code of Criminal Procedure 1973: A Critical Analysis

Written by: Eshti Kapoor[1]

Introduction

Women are victims of violence in every country, regardless of their culture, class, education, money, race, or age. India has been a male-dominated nation from the dawn of time, and widespread illiteracy among women has resulted in widespread violence against women. As a result, Indian women, like women all around the world, have been victims of domestic violence such as purdah.

Provisions related to women under the Criminal Procedure Code

The provisions for the wife’s maintenance are laid out in Section 125 of the Code of Criminal Procedure. There is no mention of religion in this section. This clause allows women of any religion to file a claim for maintenance. The section’s goal is to help destitute women who have been denied maintenance by their spouses and have no other sources of support. The provision under Section 125, according to the Supreme Court of India, is “a measure of social justice specifically established to safeguard women and children. It tries to eliminate vagrancy and destitution by requiring those who can provide support to those who are unable to sustain themselves[2].” This clause is in accordance with Article 15(3) of the Indian Constitution, which gives the state the ability to establish laws.

Maintenance under Section 125 of the Code of Criminal Procedure

Following marriage, it is the husband’s job to look after and safeguard his wife. If he neglects or refuses to pay, the wife is entitled to support. The injunction issued under this clause is just a temporary measure to safeguard women and children from vagrancy. Civil courts determine the final status.

If the husband has sufficient means, the wife can apply for maintenance under this section, and if the husband refuses or neglects to support her, the magistrate can compel the husband to pay maintenance commencing from the date of application[3]. The provision’s goal was to safeguard women from living in poverty. It does not, however, empower them to seek maintenance if their husband is unwell or does not provide adequate financial support for their upkeep[4]. In the scenario described above, the woman should petition for divorce first, then for maintenance. Its goal is to provide the forsaken wife with some food, clothing, and shelter[5]. The right under this provision is a statutory right that exists independently of the parties’ personal laws, i.e. the deserted wife can claim maintenance even if the personal law does not allow for it or only provides for it in a limited way[6]. A maintenance order issued under section 125 cannot be declared illegal just because it conflicts with personal laws[7]. This provision has an overriding effect, meaning that benefits awarded under this section will take precedence over those provided under personal laws[8].

For the purposes of maintenance, the term wife includes divorced wives as well[9]. In Rohtash Singh vs. Smt. Ramendri[10], the Supreme Court declared that a divorced woman retains her wife status for the purpose of maintenance until she remarries or becomes self-sufficient. The Punjab and Haryana High Court declared in Ajay Bhardwaj vs. Jyotsana and others[11] that a woman in a live-in relationship is entitled to maintenance just like a legally married wife.

The procedure of Arrest for Woman

The arrest of a person is governed by Chapter V, that is, Section (41 and 60A) of the Criminal Procedure Code, 1973. The procedure for arrest has been covered at great length under this heading. The provisions of this chapter have given the police broad authority to carry out the arrest process. However, in some cases, particularly those involving the arrest of women, certain reasonable limitations have been imposed on the police’s use of such powers. Whatever the circumstances, obedience to the provisions of the above-mentioned chapter is required to effect an arrest.

The Madras High Court held in the case of Roshan Beevi vs. Joint Secretary, Government of Tamil Nadu[12] that “there cannot be a second opinion that the method and execution of arrest of a person intended to be arrested should be performed only in the manner prescribed in the statute and that all other methods of execution are forbidden, otherwise the entire provision of S.46, code of criminal procedure, would be nullified.”

The essential procedures for the arrest of a woman are outlined in Section 46 (4) of the Criminal Procedure Code, which was enacted by virtue of Section 6 of the Criminal Amendment Act, 2005. The following is an example of what it says:

Unless there are exceptional circumstances, no woman shall be arrested between the hours of sunset and sunrise, and where such exceptional circumstances exist, the woman police officer must obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made by filing a written report.

The text of this law expressly indicates that a female police officer must make the arrest. It further states that no woman should be arrested after nightfall and before sunrise under normal circumstances. If the offence is significant or it is otherwise necessary for the accused woman to be arrested immediately between sunset and sunrise, the woman police officer must request permission from the Judicial Magistrate within whose local jurisdiction the offence was committed or the report was to be made.

During the hearing of the recent PNB Scam in the Bombay High Court, the provisions of Section 46(4) of the Code of Criminal Procedure were given careful consideration. The court found in favour of the woman who was arrested at her home at 8:00 p.m. for being one of the scam suspects.

The Bombay High Court ruled that if a law states that no woman may be detained after sunset and before daybreak and that an arrest of a woman must be made by a female police officer, the statute’s stipulations cannot be simply disregarded[13].

A Medical Examination of an Arrested Woman

If there is a reasonable suspicion that the medical examination of an accused person will aid in the procurement of evidence relevant to the offence committed, a registered medical practitioner can conduct such an examination at the request of a police officer not below the rank of sub-inspector or any other person acting in good faith[14].

If the accused individual summoned for a medical examination is a woman, the examination must be conducted by or under the supervision of a registered female medical practitioner[15].

Rights of Arrested Woman

People in India are entitled to free legal assistance[16] of the Constitution. If any person is unable to cover the cost of civil or criminal proceedings, it is the state’s responsibility to provide that person with adequate legal assistance, at its own expense, in order to ensure proper representation in a court of law.

Legal aid, as defined by His Lordship Justice P.N. Bhagwati, is “a structure in society that makes the machinery of administration of justice freely accessible and within reach of individuals who have recourse to it for enforcement of rights granted by law.” This clause is inclusive of all members of society, including women. If a woman is charged with a crime, she is entitled to free legal assistance, which will guarantee that she is properly represented in court.

In Hussainara Khatoon vs. State of Bihar[17], the Supreme Court declared that if an accused cannot afford legal services, he has a right to free legal help at the state’s expense.

Right against Manhandling

In the instance of an accused woman’s executing arrest, her surrender to custody on oral intimidation of arrest should be presumed. Furthermore, if touching an accused woman is required to complete the arrest process, it must be done by a female police officer. No one other than a female police officer may touch the lady who is being arrested unless it is absolutely necessary or the situation appears to be out of control[18].

Right to be informed regarding grounds for Arrest and Bail

The arrested person has the right to acquire information about the reasons for his arrest and the police officer or any other person carrying out the arrest must provide it to him. This right is available to both accused men and women[19].

A woman who is arrested without a warrant for an offence other than a non-bailable one is advised of her right to be freed on bail once sureties are arranged on her behalf[20].

Rights during Detention

A police officer cannot retain an apprehended individual for more than 24 hours in his custody under justifiable conditions[21]. If the person detained is a woman, the arrangements for her custody must be established with the utmost respect in mind. Keeping in mind a woman’s modesty, detained males and females cannot be kept in the same jail, according to moral conventions.

In the case of Sheela Barse v. State of Maharashtra[22], the Supreme Court of India paid close attention to this problem. It was found that it is the responsibility of the arresting officer to ensure that arrested ladies are separated from men and confined to a female-only section of the police station. Arrested women should be held in a separate room if there isn’t one available.

Conclusion

For many years, women in India have been subjected to many sorts of discrimination. The patriarchal bent of society has made repeated attempts to diminish the status of women in society. In the light of such major issues as gender inequality, the law’s concern for women has yielded favourable results. The law has empowered women to raise their voices against numerous crimes and to stand out effectively by virtue of their abilities and strength by providing them with many rights and privileges that a biased society failed to grant them.

Criminal law regulations are likewise closely aligned with the protection and promotion of women and their rights. The benefits afforded to women accused of crimes are a standout aspect of the criminal law, which promotes the ideals of public morality and female modesty. However, despite being enacted, the laws have failed to take root because many women in the country are still uninformed of their rights and are routinely subjected to prejudice and abuse.

About the Author

Special Provisions related to Women under the Code of Criminal Procedure 1973: A Critical Analysis

Eshti Kapoor

Student at Vivekananda School of Law and Legal Studies, VIPS.

She has participated in various academic events at VSLLS including successfully completing the Legal Drafting and Office Management Course at Vivekananda Institute of Professional Studies. She has a keen interest in writing and has written many articles for various legal blogs. She is an author of “Equal Pay for Equal Work” Research Paper published at Journal of Emerging Technologies and Innovative Research (JETIR)


[1] B.B.A LL.B (Hons.) student of 4th year Vivekananda Institute of Professional Studies, VSLLS, VIPS, Guru Gobind Singh Indraprastha University

[2] Chaturbhuj vs. Sitabai, AIR 2008 SC 350

[3] Section 125 of the Code of Criminal Procedure 1973

[4] Sew Kumher vs. MongriKumharin, AIR 1959 Cal. 454.

[5] Id.

[6] Mithu Devi vs. SiyaChoudhary, 1975 Cri, LJ

[7] In Re, Hussain Saheb, 1985 Cr LJ 1505

[8] Umar Hayat Khan vs. Mahaboobunnisa, 1976 Cr LJ 395

[9] DD Basu- Code of Criminal Procedure 5th Edition

[10] Rohtash Singh vs. Smt. Ramendri, AIR 2000 SC 952

[11] Arunima Bhattacharya, Women in Live-In Relationships Entitled to Maintenance Akin to Legally-Wedded Wives ( https://www.livelaw.in/women-live-relationships-entitled-maintenance-akin-legally-wedded-wives-punjab-haryana-hc/ ) (Last Visited: 25.08.21)

[12] 1984 Cri. LJ 134

[13] (2018) SCC Bom 1095

[14] According to Section 53(1) of the Code of Criminal Procedure 1973

[15] According to Section 53(2) of the Code of Criminal Procedure 1973

[16] According to Article 39A of the Indian Constitution 1950

[17] 1979 AIR 1369

[18] According to the proviso of Section 46(1) of the Code of Criminal Procedure 1973

[19] According to Section 50(1) of the Code of Criminal Procedure 1973

[20] According to Section 50(2) of the Code of Criminal Procedure 1973

[21] According to Section 57 of the Code of Criminal Procedure 1973

[22] 1983 SCR (2) 337

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