Theme: Crimes & Violence

If I leave my house because of domestic violence, will I be able to see my children again?

Yes, you will be able to see your children again. You can ask the Protection Officer to help you file an application for temporary custody for your children. However, the magistrate can only give you a right to keep your children with you temporarily. For you to obtain the right to keep your children with you permanently a case will have to be filed by way of other laws.

What evidence will be used to prove domestic violence that is verbal or emotional on the court?

The court will rely primarily on the testimony of the victim of domestic violence. If there are eyewitness accounts then the court will rely on those testimonies as well. However, since domestic abuse happens primarily at home and it is unlikely that there will be many eyewitness accounts in support of the woman, the court will rely primarily on the victim’s account. The case of domestic abuse need not be proved beyond reasonable doubt. That is, the court only needs to believe that the women were subject to abuse after considering all the facts and circumstances.

My parents-in-law had started assaulting me physically compelling me to starve for days. Lastly on 13.03.2020 they caused me to hospitalization making half-dead. My father lodged FIR u/s 498A but the mother-in-law is still avoiding arrest while my father-in-law, after jail custody of 3 months, is out now. I begged for getting safe entry in my in-law\’s house as my parents are very poor and I have got a child on 14.12.2020. Virtually I am roofless now. My parents-in-laws have driven me out of the share way back on 15.03.2020. High Court has advised me to take resort of other efficacious remedy and I am asking for going to the appropriate court of law for immediate protection.

A woman can file a domestic violence complaint against any person with whom she is/has been in a domestic relationship. This includes:

  • Husband/male partner
  • Relatives of her husband or male partner, including in-laws, aunts, uncles, etc.

To seek immediate protection from domestic violence, you should file an application with the Court with the help of a Protection Officer or a lawyer. The Court will pass a protection order to give you and your child protection from the harasser. The order passed by the Court will be temporary, but for a fixed duration until the Court feels that such an order is not required due to a change in circumstances. You can take the help of your lawyer to extend the duration of the order, if you require it.

Apart from the Court, you can also approach:

Are Hijras transgender?

Yes, hijras were brought under the umbrella term of transgender and are recognized as “third gender” under the law. Transgender is generally described(( National Legal Services Authority vs. Union of India (UOI) and Ors.  (2014) 5 S.C.C. 438 (para 11).)) as an umbrella term for persons who do not conform to their biological sex and hijras fall under this category. Hijras typically claim to be part of “third gender”. Among Hijras, there are emasculated (castrated, nirvana) men, non-emasculated men (not castrated/akva/akka) and inter-sexed persons (hermaphrodites).

What can I do if I see a transgender person being arrested or harassed on the road?

Many states have anti-begging laws by which police officers specifically target transgender persons and arrest them. In such situations if you see a transgender person being arrested/harassed on the road, you can take the following steps:

  • Intervene, and ask on what grounds the police is harassing/arresting the transgender person. 
  • Get help and support from lawyers NGOs, etc and inform them of the incident taking place.  Support the person being arrested by informing them of the rights they have under the law while being arrested. 

If you witness such an incident, you can file a complaint with the Police Complaints Authority of your State, which is empowered to investigate accusations of serious misconduct, like illegal arrest, rape, death in custody, etc. For example, you can file a complaint here for Delhi Police Complaints Authority. Many states have the option of emailing the complaint to a specified email address that can be found on the respective PCA’s website. 

What is Section 377 of Indian Penal Code?

Section 377 of the Indian Penal Code, 1860 was used to punish same sex intercourse between adults above the age of 18 and still punishes intercourse with animals, also known as bestiality. After 2018, Courts have held that same sex intercourse and same sex relationships are not a criminal act anymore. You cannot be arrested under this law for having consensual sexual intercourse or relationships. You can choose who you want to be with.

Can I file a complaint against a family member for rape or sexual violence?

Yes, if a family member has raped or sexually assaulted you, you can file an FIR with the police. If a relative, guardian, teacher, or any person in a position of trust or authority, rapes a woman it is known as aggravated rape, under the law. You can use section 376 (2) of the Indian Penal Code, 1860 while filing an FIR with the police. The punishment for this crime is jail time upto  10 years and a fine.

What does sexual orientation mean?

Sexual orientation refers  to a person’s sexual attraction and sexual relations with someone of their same gender or a different gender. This is known as ‘sexual orientation’. This is a right recognized under the law and it is not a crime to be sexually intimate with someone of the same gender.

As a queer person, who can I file a complaint against for rape or sexual violence under the law?

The law for rape and sexual violence, recognizes specific genders to be victims or offenders/harassers. See below to see what remedies are available to you, based on your gender. 

If you are woman/transwoman

You have a right to file a complaint under the laws on sexual violence in India but only against a man. If you are a transwoman and the police refuses to file the FIR stating that you are not a ‘woman’ under the law, then read here to see what steps you can take.  

If you are a man/transman

You cannot file an FIR under the laws on sexual violence in India, since men/transmen cannot be victims of sexual violence. Your only alternative is to file an FIR with the help of the laws which punish those who hurt or injure you. 

What do I do if someone harasses me or blackmails me on a dating site because I am an LGBTQ+ Person?

If you are being harassed or blackmailed on a dating site/platform, you can first block or report them, and approach the administrators of the specific site to report the abuse you are facing. If the administrators of the platform are not being responsive or the kind of harassment you are facing is severe and repetitive, then you can also file a complaint at the local police station or cyber cell only if you are a woman/transwoman. If you are a man/transman, you will be able to file an FIR with the laws which punish those who hurt or injure you. 

Which authority can I approach for help other than the police as an LGBTQ+ person?

If you do not want to approach the police or you have been turned away by the police, you can approach the following institutions:

  • National Human Rights Commission, which looks at matters concerning human rights violations, such as custody harassment, illegal detention, etc. As the NHRC is located in Delhi, you can approach the State Human Rights Commission situated in your state, and ask them for help. 
  • National Commission for Women, which is a national level government organisation that works in the protection of women from violence such as sexual crimes, domestic violence, etc.

What happens after filing the FIR as an LGBTQ+ Person?

Once you have reported the crime by filing an FIR, the officer in charge must send the details of the FIR to the Magistrate (Court), who will take note of the case without any unnecessary delay, and proceed with the investigation. This is a mandatory step that the police have to follow, as it allows the Magistrate to take control of the investigation, and if necessary give appropriate directions to the police. There may be situations where the police may conduct a preliminary enquiry before approaching the Magistrate. Such details will also have to be given to the Magistrate with the report.

When the police are done with their investigation and have found enough evidence to proceed with a criminal case, they will note down the details of their findings and they will file a charge sheet with the Magistrate. However, after the investigation if they have not found anything proving the commission of a crime, they will suggest the closing of the case by filing a closure report to the Magistrate.

What are the cases in law that I can use while approaching the police?

While approaching the police, you can primarily use two cases by the Supreme Court of India, which are:

  • NALSA Judgment (National Legal Services Authority v. Union of India): This judgment declared transgender people are the ‘third gender’, with fundamental rights, and the right to self-identification of their gender as male, female or third-gender. 

Navtej Singh Johar & Ors. v. Union of India: This judgment decriminalised all consensual sex among adults in private, including homosexual sexual intercourse. 

My family has locked me in the house because I told them I am gay. What do I do?

It is a crime to lock you and restrain you inside your house for any reason. No one can forcibly confine you against your will as it violates your liberty and freedom of movement. Under the law, this is known as wrongful confinement, and anyone found guilty of doing this can face jail time up to one year and a fine of Rs. 1000. 

Your first step should be to reach out to government helplines, or an NGO, that can help you file a complaint with the police. You can file a complaint with the help of  Section 340/342 of the Indian Penal Code, 1860.

Stopping the Abuse

Online abuse is any type of abuse that happens on the internet, whether it’s over chat, posting on message boards and forums, through social networks, playing online games or using mobile phones. 

Online abuse happens on various platforms on the internet such as social media, chat, forums, etc. When faced with online abuse, your first step should be to see what the anti-abuse policy of the platform is, and what steps the platform recommends for you to stop it. We have compiled a list of steps you can take for responding to abuse (blocking and reporting) on Facebook, Facebook Messenger, Twitter, Instagram, SnapChat, Reddit, YouTube, WhatsApp, and text messages on your phone.

If the administrators of the platform are not being responsive or you are unhappy with the results, you can also file a criminal complaint at the local police station or cyber investigation cell. It is not necessary for you to get recourse only after approaching the platform administrators. You can directly approach the police station or cyber cell to file a complaint.  When you go to the police station to file a first information report (FIR), the police have to note down the information you provide. Different provisions in law1 make online abuse and online harassment a crime. The victims of such crimes can be male or female.

  1. The Indian Penal Code, 1860; Information Technology Act, 2000 [↩]

Violence Against Women

In the first half of 2021, Delhi alone saw a rise of 63% in acts of violence against women. We believe that this underlines the need for legal awareness amongst women regarding their rights against violence and harassment. Watch our videos to learn more about laws preventing violence against women.

Medico-Legal Guide for Survivors of Sexual Assault

How can the guide help you?

The Nyaaya Guide on Medico Legal Examination for Sexual Assault helps survivors by providing a summary of the process along with some things to be kept in mind if a person is sexually assaulted. The guide helps in understanding the procedure of the forensic medical exams that survivors go through to preserve possible evidence, including DNA, and to get important medical attention. It gives an overview of the survivor’s rights and dispels various myths. While dealing with sexual assault, health workers play a dual role – one, providing medical treatment and psychological support and two, collecting evidence and ensuring good quality documentation of evidence. In 2014, the Ministry of Health and Family Welfare put out guidelines and protocols for medico-legal care for survivors of sexual violence.

What are the laws being discussed in the guide?

The guide discusses the legal aspects of the medico legal guidelines by the Ministry of Health and Family Welfare in 2014. The guidelines are based on various requirements outlined in the Criminal Law Amendment Act, 2013, the Indian Penal Code,1860 the Protection of Children from Sexual Offences (POCSO), 2012 and the Code of Criminal Procedure,1973.

First Steps

MEDICAL AID & EXAMINATION

Medical examinations play an important role in corroborating the survivor’s statement, which is why it is important to get yourself examined by a registered medical practitioner as soon as possible.

If possible avoid brushing, bathing, urinating, defecating, changing clothes, combing hair, rinsing mouth or cleaning the genital area prior to the medical examination. It may assist in collection of evidence.

Anyone can accompany the survivor during the exam.

A relative, friend or person of their choosing can accompany the survivor during the medical exam.
The facility may even provide them with a trained professional for support.

Medical Exam

OVERVIEW

What are the objectives of a medical exam?

The medical exam has two objectives.

1. The first is to give medical care, which can mean anything from looking after any sexual health needs by testing for pregnancy or STIs, to providing prescriptions.

2. The second is forensic, which means the medical practitioner will use their medical skills to help the police investigation, taking DNA swabs, identifying, and photographing injuries, describing the subject’s emotional state, finding foreign material and running toxicology tests.

The medical exam can take 2-4 hours.

Under what circumstances does a survivor undergo a medical exam?

There are three circumstances under which a survivor can undergo a medical exam:

1. When the survivor approaches the hospital/clinic for treatment for the effects of assault.

2. When there is a police requisition after police complaint; or

3. After a court directive or on the order of the Court.

Is an FIR mandatory for a medical exam?

An FIR is not mandatory for the medical exam. Further, the survivor can choose not to file a complaint. It is advisable to undergo a medical examination as soon as possible. The medical professionals will also inform the survivor of their right to file a complaint against the assault. In case the survivor does not want to file a complaint, the medical personnel should document the survivor’s informed refusal. However, they are duty bound to report the incident to the police.

Who conducts the medical exam?

A registered medical practitioner with the Medical Council of India can conduct the exam. The consent of the survivor must be taken for each stage of the exam. The medical practitioner has to skip a particular step, if the survivor does not consent to it. It is advised that a female doctor conducts the exam. If a female doctor is not available, a male doctor can conduct the exam, with the survivor’s consent. The survivor can choose to have a male doctor conduct the exam.

Is the medical exam free of cost?

Doctors are required to give first aid or medical treatment, free of cost, to survivors who approach them and disclose sexual assault at both private and government hospitals.

Remember….
The survivor can choose to stop, pause, or skip a step at any time during the exam.

Medical Exam

PROCEDURE

What is the procedure of a medical exam?

1. An exam begins with treating any injuries that need immediate care.

2. Then, a survivor’s medical history is taken down by the medical practitioner.

3. Details of what happened, including identifying places on their body or clothes that may show evidence is collected.

4. Next, the medical professional may give a head-to-toe examination, which may include internal examinations of the mouth, vagina, and anus.

5. Blood, urine, body, and hair samples are collected for evidence from the survivor.

6. The healthcare provider may also take photos of the survivor’s body to document injuries.

7. STI prevention treatment or an emergency contraceptive is provided to the survivor if necessary.

8. Additionally, in cases where the survivor was the drugged, the healthcare provider may conduct a drug-facilitated kit, which involves taking blood and urine samples for testing.

9. The survivor will also undergo testing for pregnancy as well as for sexually transmitted infections (STI), HIV, Hepatitis B.

What medical history is collected?

Post assault, the medical practitioner collects information on the activities of the survivors like:

1. changing of clothes, cleaning of clothes

2. bathing/ showering

3. washing genitals, menstrual cycle, urinating, defecating

4. rinsing mouth, drinking, eating

5. vaccinations, recent sexual activity T

his information would have a bearing on the evidence collected from the survivor. However, information on the number of sexual partners or past sexual experiences is not necessary unless it is relevant to the assault in any way.

Is the Two-Finger test legal?

The two-finger test, also known as PV (Per Vaginal) examination or ‘virginity test’, is a practice where the examining doctor notes the presence or absence of the hymen and so-called laxity of the vagina of the rape survivor by putting his or her two fingers inside the woman’s vagina.

Medical practitioners cannot carry out the two-finger test in India as per the Medico Legal guidelines issued by the Ministry of Health and Family Welfare.

This is different from the internal examination of the survivor’s vagina to test for injuries and infection, and is a part of medical treatment extended to them.

Medical Exam
FORENSIC EVIDENCE

How is forensic evidence collected?

1. Semen, saliva, hair, and fingernail scrapings are studied for DNA. These can identify a suspect and link them to the survivor or crime scene.

2. An examination of internal and external injuries also takes place. Injuries can indicate use of force or violence from an attacker and resistance from the survivor.

3. Blood and urine can show whether a survivor was under the influence of alcohol or drugs and could not consent.

4. And foreign material like clothing fibres, foliage and soil can link a suspect to the offence. This is done to gather as much evidence as possible to support and corroborate a version of events.

The collected evidence is stored in a clean dry sanitized pack which is sealed with a sticker to ensure the evidence is not contaminated or tampered with.

What happens if the survivor has cleaned away evidence?

Medical examinations are still possible even if the survivor has showered or cleaned themselves. However, if it is possible to avoid showering, combing hair, brushing teeth, rinsing mouth, urinating, defecating, changing clothes and cleaning up the genital area or other areas of assault as it may assist in collecting the evidence. The likelihood of finding evidence reduces after 72 hours (3 days). Usually evidence is collected up to 96 hours in case of unclear timelines.

What happens in cases where there is no forensic evidence?

A medical examination cannot ascertain the presence or absence of consent. That’s something only the survivor can really testify to. Consent is the most important aspect in determining whether an act was rape or not. If little to no evidence is found, this does not mean that the crime has not taken place. The police will still continue their investigation.

Is semen the only form of forensic evidence?

While finding semen is still a primary focus of any exam, advances in DNA technology mean that other genetic evidence is collected and used as well.

Swabs from areas of the body the attacker may have touched, kissed, or bitten, fingernail clippings in case the survivor has any DNA under their nails, and the collection of scalp and pubic hair are all potential sources of evidence that may help identify and convict a rapist.

Legal Process

AT THE HEALTHCARE PROVIDER

The health professionals (Doctors, Nurses, and other Medical Personnel) have the following duties when a survivor come to hospitals/clinics for medical or other forms of support:

1. Explain to the survivor in simple and understandable language the rationale for various procedures and their respective steps

2. Follow special steps when dealing with a survivor from marginalized groups such as children, persons with disability, LGBTI persons, sex workers or persons from a minority community.

3. Ensure confidentiality and explain to the survivor that they must reveal the entire history to health professionals without fear. At this stage, survivors are encouraged not to hide any existing medical history or information.

4. Explain to the survivor that genital examination may be uncomfortable but is necessary for legal purposes.

5. Inform the survivor about the need to carry out additional procedures such as x-rays, etc which may require them to visit other departments in a medical facility

What are the duties of hospitals?

Every hospital must have a Standard Operating Procedure (SOP) for management of cases of sexual violence:

1. The absence of a female doctor should not deny or delay the examination. If a male doctor is examining, it must be in the presence of a female attendant. For minors/persons with disability his/her parent/guardian/any other person with whom the survivor is comfortable may be present.

2. In the case of a transgender/intersex person, the survivor has the choice whether they want to be examined by a female doctor, or a male doctor in the presence of a female attendant.

3. Police personnel cannot be in the examination room during the consultation with the survivor. If the survivor requests, her relative may be present during the examination.

4. There must be no delay in conducting an examination and collecting evidence.

5. Providing treatment and necessary medical investigations is the prime responsibility of the examining doctor. Admission, evidence collection or filing a police complaint is not mandatory for providing treatment.

6. The history taking & examination should be carried out in complete privacy in a private room set up in the hospital for examination of sexual violence survivor.

7. After the examination is complete the survivor should be permitted to wash up, using the toiletries and the clothing given by the hospital if her own clothing is taken as evidence. The hospital is obliged to give such clothing at no charge.

8. Admission is unnecessary unless the survivor requires indoor stay for observation or treatment.

Remember…

Survivors of sexual violence should receive all services completely free of cost.
The survivor can get a copy of all documentation (including that pertaining to medico-legal examination and treatment), free of cost.

Guidelines for when a survivor reports to the hospital without first going to the police.

Given below are some guidelines the health professionals need to keep in mind in such situations:

1. If the survivor has come to the hospital without the police, the hospital is bound to give treatment and conduct a medical examination with consent of the survivor/ parent/guardian (depending on age).

2. The hospital must treat the patient immediately without delay, irrespective of whether the police has arrived or not. Collection of medical evidence must take place as early as possible.

3. If a person has come on their own without FIR, they may or may not want to lodge a complaint but require a medical examination and treatment. Even in such cases the doctor is bound to inform the police as per law.

4. Neither court nor police can force the survivor to undergo a medical examination. Only in situations, where it is life threatening the doctor may initiate treatment without consent as per section 92 of IPC.

5. In case the survivor does not want to pursue a police case, a medico-legal case (MLC) is registered. The police or the medical professional should inform the survivor about the survivor’s right to refuse to file FIR. An informed refusal must be documented in such cases.

6. The police should record the medico-legal case and provide its case number to the survivor along with the details of the police station where the complaint can be registered. This Medico-legal case number is useful in case the survivor has a police requisition or wishes to lodge a complaint later.

7. In all three circumstances, it is mandatory to seek an informed on sent/refusal for examination and evidence collection. Consent should be taken for the following purposes: examination, sample collection for clinical and forensic examination, treatment, and police intimation. The consent form must be signed by the survivor, a witness, and the examining doctor.

Rights of a Survivor and Duties of their Caregivers

Given below are the rights of a survivor and duties of caregivers during investigation and trial of sexual offences committed against the survivor:

01. Right to Privacy of the Victim
No person can disclose the name of the rape survivor. If anybody discloses the name, the punishment is a term which may extend to two years and along with a fine. Further, there should be an incamera trial for all rape survivors. For instance, the media cannot release the name of the survivor. (Section 228 A IPC & Section 327(2) CrPC)

02. Right to Free Medical Treatment /Duty of Medical Institutions
This law fixes liability on medical institutions, both public or private to give medical treatment free of cost to survivors of sexual assault, together with a duty to inform the police of such incident. Failure to comply with the above provision is a punishable offence. (Section 357C CrPC & Section 166B IPC)

03. Right to Examination by a Female Doctor
Only a registered female medical practitioner can conduct the examination of a female survivor. Unless, there is no female practitioner available and the survivor consents otherwise to an examination by a male registered practitioner. (Section 53A[5] CrPC)

04. Right to a Detailed Examination of the Perpetrator
Legally, the perpetrator can be ordered to undergo a detailed medical examination by any registered medical practitioner, preferably employed in a hospital run by the Government or a local authority. This examination is done to gather other physical evidence that can corroborate the story of the survivor. (Section 53A CrPc)

05. Right to a Speedy Trial
Investigation should start and end within two months from the date on which the police officer recorded the information in charge of the Police Station. Special fast track courts have been set up for this purpose. (Section 173A CrPC)

06. Duty of a Public Servant
This law ensures failure of a public servant to record any information of such offences as a punishable offence, prescribing both rigorous imprisonment and fine for the guilty. (Section 166A IPC, Section 154 [1] CrPC)

07. Duty of Court to Presume Absence of Consent
The court during any trial for rape will presume the absence of consent by the survivor. (Section 114-A, Indian Evidence Act)

Resources

Contact Information 

Women’s Helpline – 1091 

Women’s helpline gives 24/7 immediate and emergency response to women affected by the violence, both in private and public spaces. They give assistance to file complaints. They can guide the survivor towards a hospital for a medical examination etc.

Police – 100

Police will arrive in case of an emergency.

Checklist

1. Collect copy of entire medical report free of cost

2. Collect copy of FIR for free.

3. Carry a change of clothes when you go for the medical examination.

4. If possible avoid brushing, bathing, urinating, defecating, changing clothes, combing hair, rinsing mouth or cleaning the genital area prior to the examination.

5. Registering an FIR is not mandatory for thee examination.

6. The examination is conducted free of cost and as soon as possible to preserve forensic evidence.

7. The survivor can skip any part of the process if desired, all aspects of the procedure must take place with the consent of the survivor.

8. The survivor can take a person along with them for the medical examination for emotional support.

9. A female doctor should carry out the examination unless the survivor consents otherwise.

10. Request for medical tests for pregnancy and sexually transmitted illnesses.

 

Sources of Information

Guidelines 

  1. Towards victim friendly responses and procedures – Partners for Law and Development, Department of Justice (Ministry of Law and Justice) and United Nations Development Program accessed at <https://doj.gov.in/sites/default/files/PLD%20report.pdf>
  2. National Commission of Women – Rape accessed at <http://ncw.nic.in/sites/default/files/Chapter02.pdf>
  3. Guidelines and Protocols, Medico-Legal Care for survivors/victims of Sexual Violence, Ministry of Health and Family Welfare (2014) accessed at <http://www.mati.gov.in/docs/GG%20cell%20materials/womens%20rights/Guidelines%20and%20Protocols_MOHFW%20(1).pdf>

Legislation

  1. The Criminal Law Amendment Act, 2013
  2. Section 357C of the Code of Criminal Procedure, 1973
  3. Section 166B of the Indian Penal Code, 1860
  4. Protection of Children from Sexual Offences (POCSO), 2012

Sample Forms

  1. Form to be filled by medical personnel conducting an examination: http://www.mati.gov.in/docs/GG%20cell%20materials/womens%20rights/Guidelines%20and%20Protocols_MOHFW%20(1).pdf

Glossary

Forensic Evidence – Forensic evidence is evidence obtained by scientific methods such as ballistics, blood test, and DNA test and used in court. Forensic evidence often helps to establish the guilt or innocence of possible suspects.

Genital Examination – Visual and Manual examination of genital area by a doctor. A speculum may be used to check for DNA on the vaginal wall and cervix. The doctor does a “bimanual” examination, meaning that he or she uses his or her hands to examine the internal reproductive organs. The examiner’s hands will be gloved for the bimanual exam, and may have lubricating jelly on them causing them to feel cold.

DNA – Hereditary material in humans and almost all other organisms. Nearly every cell in a person’s body has the same DNA. It is used to identify individuals and link them to crimes.

STI – An infection transmitted through sexual contact, caused by bacteria, viruses or parasites. These infections are usually passed from person to person through vaginal intercourse. They can also be passed through anal sex, oral sex, or skin-to-skin contact. STIs caused by viruses include hepatitis B, herpes, HIV, and the human papilloma virus (HPV).

Medico – Legal Case – Medico-legal case (MLC) refers to a case of injury or illness that indicates investigation by law enforcement agencies to establish and fix the criminal responsibility for the case according to the law of the country

FIR – Stands for first information report. It is a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Its is a written document prepared by the police when they receive information about the commission of a cognizable offence

Consent – Consent occurs when one person voluntarily agrees to the proposal or desires of another.

Two – Finger test – A doctor performs the test by inserting a finger into the female’s vagina to check the level of vaginal laxity and recent sexual intercourse. This test is illegal.