Archive for December, 2009

Social Security Disability or SSDI Benefits

Tuesday, December 29th, 2009

One of the biggest problems that most people make when applying for SSDI or Social Security Disability benefits is to go through the process unprepared and not having all the facts. When you file for SSDI the examiners who review your case file do not become aware of the lapse in time as to when you decided to file a claim to the actual time the claim was submitted. By being proactive and obtaining all the proper paperwork and information you need to file for your claim will give you a good advantage on pleading your case for disability income. When you have everything you need and you feel confident you need to get the ball rolling with the filing process.

There are a number of reasons why people put off their filing for social security. In some cases, they seem to be simply hoping that the condition they are suffering from is going to improve, or that somehow the job that they are doing is going to be able to accommodate their disability. Most individual tend to simply put off their filing of their application because of the work involved or they feel that they are incapable.

Many claimants end up feeling caught up in the process because they are worried about filing for disability and becoming denied. Unfortunately, when you are denied by your SSDI or SSI application, it may mean spending a great amount more time pursuing your claim by climbing the appeals ladder. For many of those applying, this is a scary idea and it leads them to stress themselves out about applying at all. Luckily, there are ways that you can eliminate or lessen these fears and focus your attention on properly and completely preparing

When you decide that you want to apply for these SSDI and SSI benefits, the first thing that you should do is to find out more information about having someone on your side, such as an attorney or an advocate. You can file as soon as you feel that you are ready, but you should not file until you have worked with a professional and determined whether or not you are fully prepared. Your attorney or advocate will be able to tell you if he or she feels that you will qualify for disability, and will help you shape your application or appeal accordingly. With any additional support you may receive from possibly an attorney or disability advocate you will be able to go through the process smoothly do to the fact there there will be no gray areas determining whether or not you are well prepared.

If you are not working because of your disabled status or condition, then it is time to find out more about applying for SSI or SSDI benefits. When you have someone that is fighting on your side with you, it will make it easier for you to prepare your case and to determine whether or not you are prepared to file your claim.

Misconceptions About Women in Islam

Friday, December 25th, 2009

misconceptions about women in islam

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i`ll quote some of the points mentioned in the letter & show you the Islamic rule on them :

-”The Koran allots daughters half the inheritance of sons. It decrees that a woman’s testimony in court, at least in financial matters, is worth half that of a man’s.

Under Shari’a, or Muslim law, compensation for the murder of a woman is half the going rate for men.”

about the inheritance issue :

First, the principle of women inheriting half the money is only applicable in 45 percent of the cases. In the other 55 percent, women inherit the same amount or sometimes even more. For example, a mother and a father each inherit the sixth of their son’s property when they are not the only inheritors.

In addition, the laws of inheritance in Islam are proportional to the duties of spending. Indeed, a man in Islam has the responsibility of supporting his family, his brother’s children (when his brother dies), his parents (when they retire and do not have an income), his children from his previous marriage (if he has them) and his household, including his wife and children. A woman, on the other hand, does not bear this responsibility. She has the freedom to use the money she collects from her dowry or work as she pleases.

You might object here, saying that women today are working and helping their husbands pay the expenses, which entitles them to share equality with men. In fact, you should know that women’s economic assistance to their husbands, which has become the norm today, is only an answer to the females’ wishes. Islam does not oblige women to spend on their households. It is a free choice many women have themselves taken today to feel more liberated, so it does not entitle them to a bigger portion of the inheritance.

about the testimony of a woman :

[ 2:282] O you who believe, when you transact a loan for any period, you shall write it down. An impartial scribe shall do the writing. …….. Two men shall serve as witnesses; if not two men, then a man and two women whose testimony is acceptable to all. Thus, if one woman becomes biased, the other will remind her. It is the obligation of the witnesses to testify when called upon to do so. …… Financial transactions are the ONLY situations where two women may substitute for one man as witness. This is to guard against the real possibility that one witness may marry the other witness, and thus cause her to be biased. It is a recognized fact that women are more emotionally vulnerable than men. If the woman as a witness was worth half that of a man, the verse would have stated so clearly. But obviously that is not the case. Women’s testimony in all other matters are equal to that of a man or even supersedes his testimony as in the case of a wife testifying against her accusation of adultery

about compensation for the murder of a woman is half the going rate for men

This is totally false as both men and women are equally treated and compensated according to the Quran. Such laws are found in the fabricated books of Hadiths and Sunna and they are not the laws of God in the Quran

2-178 “O you who believe! retaliation is prescribed for you in the matter of the slain, the free for the free, and the slave for the slave, and the female for the female, but if any remission is made to any one by his (aggrieved) brother, then prosecution (for the bloodwit) should be made according to usage, and payment should be made to him in a good manner; this is an alleviation from your Lord and a mercy; so whoever exceeds the limit after this he shall have a painful chastisement. ”

“For a woman to prove rape in Pakistan, for example, four adult males

of “impeccable” character must witness the penetration, in

accordance with Shari’a.”

i guess that you should the verse from the quran to realize that it has been twisted in your quote :

islam stood by the side of the woman if she`s been accused of adultary, & the witnesses must be at least four to say such word about her, but your quote is totally untrue & is not even in the quran , you can read the whole quran & won`t find such thing , the real case is :

24-4 “And those who accuse free women then do not bring four witnesses, flog them, (giving) eighty stripes, and do not admit any evidence from them ever; and these it is that are the transgressors, ”

24-5 “Except those who repent after this and act aright, for surely Allah is Forgiving, Merciful. ”

“In Islam, women can have only one spouse, while men are permitted four.”

read the verse about having more than one wife, very carefully. [4:3]

“And if you fear that you cannot act equitably towards orphans, then marry such women as seem good to you, two and three and four; but if you fear that you will not do justice (between them), then (marry) only one or what your right hands possess; this is more proper, that you may not deviate from the right course. ”

What does it say? And what do you understand from it?

Man Supports And Protects Women

Do you understand that one must take on the role of supporter, protector, provider, custodian and servant to the family (man’s role)?

Woman Gives Birth – Raises Children

One must take on the role of carrying the child and delivering it and then feeding it and raising it to become a true servant of Allah (woman’s role).

Not Equal – But Treated Fairly In Justice

Men and women are not the same nor are they “equal” as some folks would have us believe. Whatever is on one side of an ‘equals’ sign must be exactly the same as what is on the other side without any difference in value, only in the way that it is expressed. How then could we say that a man, who is unable to conceive or give birth and then breast feed a baby is the equal to a woman who can?

Equal In Faith And Actions

They are equal in their beliefs and good deeds of course. But still they are not the same as each other. Each one must fulfill their role as humans.

Children’s Rights Protected

Islam is also very much about rights. Children also have rights in Islam. When a man dies his wealth is left to his family. How could the court know who to give the wealth of a man, if he was one of several husbands to a woman? How would a child know who his father was? No society ever supported the concept of a woman being married to two or more men at the same time.

Women’s Right – Best Treatment

Almost every society supported the concept of a man having more than one woman. Yet, they did not limit the number nor did they provide the protection and maintenance that Islam insists on for each one. Islam came to set things straight. Women were given rights. Men were strictly ordered to treat their women with the very best of treatment.

Limit – Number in Marriage

When the verse was revealed the companions of Muhammad, peace be upon him, did not run out with the attitude that they were going to get four wives all of a sudden. Some of them already had much more than that and these men had to divorce their wives, if they had more than four. So this was not an order to go out and get four wives. It was an order to begin limitations. And the first limitation was; No more than four.

Limit – Equal Maintenance and Treatment

Second, the limitation of equal treatment for all of them. How could a man keep more than one wife unless he was exceedingly wealthy and/or exceedingly strong and virile?

Next, the limitation very clearly states; “.. but if you fear that you shall not be able to deal justly (with them) then only one …”

Woman’s Right To Choose Any Husband She Likes -

Even If He Is Already Married

One very important point that is often overlooked by modern society is the right that Islam gave to women which isn`t given to men. A man is limited to marry only from the woman who is not already married. Obviously, this provides rights for the children and the right to inherit from the father. But Islam also permits the women to marry a man who is already married to protect her in a society where the number of women outnumbers the population of men. Additionally, the woman has a large selection of men to choose from. In fact, she has the right to choose from any man in the community as long as he does not already have four wives. She also has the opportunity to see how the other wife was being treated and go into a marriage knowing exactly what to expect from her husband. After all, he must treat her in the same way as he is treating the other wife.

Women Need Husbands – Allah Provided the Answer

The prophet, peace be upon him, predicted that in the Last Days the women would outnumber the men to a great extent. Today we are seeing this become a reality all over the world. Allah has already provided for us for this occasion. After all, He is the One who makes it all happen and He already knew that many women would come into Islam in these days. He also knew many of the Muslim men would be killed or die at an early age, just as it is happening these days. Allah these women need husbands. Allah has given us the solution to all of life’s problems.

“Muhammad’s favorite wife, A’isha, according to her biographer, was

six when they wed, nine when the marriage was consummated. In Iran

the legal age for marriage is nine for girls, 14 for boys”

Allah has willed for this to happen in order to keep the sirah (life) of prophet Mohammad pbuh alive even after his death, because she had fresh memory at a young age , remembered everything, & she was the first one in number of Hadiths (sayings & acts of prophet Mohammad pbuh) she narrated.

The Prophet Muhammad (peace and blessings of Allah be upon him) was the last of the Prophets and the best of creation; and ‘A’isha was a very intelligent and observant young girl with a very good memory. ‘A’isha (may Allah be pleased with her) spent the next nine years of her life with the Prophet (peace and blessings of Allah be upon him), and she grew into womanhood, she remembered all that she saw and heard with great clarity, for to be the wife of the Prophet was even more than extraordinary. So much happened around him – the Quran continued to be revealed, verses by verses, and people’s hearts were constantly being turned over and transformed, including hers and she was a witness of so much of all that took place. It is not surprising, therefore, that a great deal of the knowledge that we still have today, about how the Prophet (peace and blessings of Allah be upon him) lived and behaved, was first remembered and then taught to others by ‘A’isha. It is thanks to this exceptional marriage, between a man nearing the end of his life and a woman still near the beginning of hers, that we know so much about the both of them

“Wives in Islamic societies face great difficulty in suing for

divorce, but husbands can be released from their vows virtually on

demand, in some places merely by saying “I divorce you” three

times.”

a wife can demand for a divorce if she does not like her husband for any reason. She can do so giving him back the bridal money he gave her. This is lawful as proved in the Qur’an and the prophetic narration: Allaah says (which means): {… Then if you fear that they would not be able to keep the limits ordained by Allaah, then there is no sin on either of them if she gives back (the Mahr or a part of it) for her Al-Khul’ (divorce).}[2: 229] , this case is called “Khulu”

The Prophet said to the wife of Thaabit Ibn Qays “Will you return his garden?” She said, “Yes”, then the Prophet ordered Thaabit to accept the garden and divorce her.” [al-Bukhaari]

the same case if a man divorces his wife, he has to pay for her.

“”Islam supposedly gives me the right to divorce,”

she says. “But what about my rights afterward?”"

In Islam, the woman is not neglected after the divorce. Indeed husbands are instructed to provide housing to the divorced wife until her waiting period is completed

“Women’s rights are compromised further by a section in the Koran, sura 4:34, that has been interpreted to say that men have “pre-eminence” over women or that they are “overseers” of women.”

first let`s read the verse : 4-34 “Men are the protectors and maintainers of women because of what Allah has preferred one with over the other and because of what they spend to support them from their wealth.”

What does it mean that men are “protectors and maintainers” of women? To answer this question, let us first look at the Arabic word that we are translating as “protectors and maintainers”. This word is “qawwâmûn” the plural of “qawwâm”.

This word – qawwâm – in turn, is an emphatic form of the word “qayyim”, which means a person who manages the affairs of others. The qayyim of a people is the one who governs their affairs and steers their course. Likewise, the qayyim of a woman is either her husband or her guardian – the one who has to look after her and ensure that her needs are met.

When Allah says: “Men are the qawwâmûn of women…” it means – and Allah knows best – that men are held liable for handling the affairs of women and are responsible for the women under their care. A husband, therefore, has the responsibility of taking care of his wife, protecting her, defending her honor, and fulfilling her needs regarding her religion and her worldly life. It does not mean – as all too many people have falsely assumed – that he has the right to behave obstinately towards her, compel her, subject her to his will, suppress her individuality, and thus heinously negate her identity.

His status as protector and maintainer is pure responsibility, pure liability, and not so much a position of authority. It requires from him that he uses his good sense, thinks carefully about what he does, and exercises patience. It means that he cannot be hasty and offhanded in his decisions. It does not mean that he can disregard his wife’s opinions and belittle her good person.

“beating is so prevalent in the Muslim world that social workers who assist battered women in Egypt, for example, spend much of their time trying to convince victims that their husbands’ violent acts are unacceptable.”

this is what islam says :

prophet Mohammad pbuh said “Do not beat the female servants of Allah”

he said as well : “the best of you is the best to his wife”

he also said :”Some (women) visited my family complaining about their husbands (beating them). These (husbands) are not the best of you.”

In another Hadith the Prophet (p.b.u.h.) is reported to have said: “How does anyone of you beat his wife as he beats the stallion camel and then he may embrace (sleep with) her?”

” Each year hundreds of Muslim women die in “honor killings”– murders by husbands or male relatives of women suspected of disobedience, usually a sexual indiscretion or marriage against the family’s wishes.”

“There is no such concept in Islam that is called “honor killing”. Islam holds every soul in high esteem and does not allow any transgression upon it. It does not allow people to take the law in their own hands and administer justice, because doing so will be leading to chaos and lawlessness. Therefore, based on this, Islam does not permit such killings.

First of all, in order to sanction killing, it must be through a binding verdict issued by an authoritative law court. Individuals themselves have no authority either to judge cases or pass judgments. Therefore, a Muslim should not sanction such killing because doing so will be leading to the rule of the law of the jungle. A civilized society cannot be run by such laws.”

“Like all other religions, Islam strictly prohibits murder and killing without legal justification. Allah, Most High, says, “Whoso slayeth a believer of set purpose, his reward is Hell for ever. Allah is wroth against him and He hath cursed him and prepared for him an awful doom.” (An-Nisa’: 93)

The so-called “honor killing” is based on ignorance and disregard of morals and laws, which cannot be abolished except by disciplinary punishments.

“In Islam, there is no place for unjustifiable killing. Even in case of capital punishment, only the government can apply the law through the judicial procedures. No one has the authority to execute the law other than the officers who are in charge.

Honor killing could be a wrong cultural tradition. It is unjust and inhumane action. The murderer of that type deserves punishment.”

“Female circumcision, also called female genital mutilation, is another case

in point. It involves removing part or all of a girl’s clitoris and

labia in an effort to reduce female sexual desire and thereby

preserve chastity.”

female circumcision is more a cultural practice than a matter of Islamic teachings. the hadîth (sayings of prophet Mohammad pbuh) which refer to the practice are all weak. The presence of that practice in Egypt an Nubia up to this day is just a continuation of a practice that has been around since the time of the Pharaohs. It is often hard for people to give up deeply ingrained customs and cultural practiced. They continue to be passed down from generation to generation.

Another example of the tenacity of custom is the practice among Indian Muslims where the woman pays a dowry to the husband. This is a pre-Islamic Indian custom that Islam declares false. Islam requires the husband to pay a dowry to the wife. Nevertheless, this custom persists among Muslims in both India and Pakistan, even though the history of Islam in India goes back for many long centuries.

Likewise, Islam put an end to many pre-Islamic customs that marginalized women and denied them their rights. It put an end to people condemning each other’s lineages. It put an end to the practice of wailing at a person’s burial. Nonetheless, these practices can still be seen in some Muslim societies and are often regarded by the people of those societies to be part and parcel of Islamic Law.

The Shâfi`î school of law has been the prevalent legal school in Egypt since its formative years. It may be that the scholars of the Shâfi`î school who promoted the view that female circumcision is obligatory had been influenced by the prevailing culture of the region.

There is no evidence that this practice was widespread among the Pious Predecessors. Moreover, the practice has never been prevalent in the regions where Islam originated – Mecca and Madinah and the surrounding areas of Arabia. It is extremely rare. If female circumcision had truly been endorsed by Islamic Law, it would certainly have been practiced and perpetuated in those regions. Only male circumcision is practiced, due to the authentic evidence in the Sunnah that it is part of the natural way (fitrah).

We conclude that female circumcision is merely a cultural practice that has no prescribed Islamic ruling for it and that is supported by no decisive ****ual evidence. It is simply a regional custom in the places where it is practiced. We must then take into consideration that many medical professionals consider it to have detrimental affects for the girls who undergo the operation. On that basis, it would be impermissible to allow this custom to continue. In Islamic Law, preservation of the person – the life and bodily soundness of the person – is a legal necessity. Anything that compromises this legal necessity by bringing harm to the person is unlawful.

“They are required to cover their bodies–in varying degrees

in different places–for fear they might arouse the lust of men

other than their husbands.

But many Muslim women feel cultural and family pressure to cover themselves.”

Muslim women observe HIJAB (covering the head and the body) because Allah has told them to do so.

“O Prophet, tell your wives and daughters and the believing women to draw their outer garments around them (when they go out or are among men). That is better in order that they may be known (to be Muslims) and not annoyed…” (Qur’an 33:59)

Other secondary reasons include the requirement for modesty in both men and women. Both will then be evaluated for intelligence and skills instead of looks and sexuality. A Muslim school girl is quoted as saying, “We want to stop men from treating us like sex objects, as they have always done. We want them to ignore our appearance and to be attentive to our personalities and mind. We want them to take us seriously and treat us as equals and not just chase us around for our bodies and physical looks.” A Muslim woman who covers her head is making a statement about her identity. Anyone who sees her will know that she is a Muslim and has a good moral character. Many Muslim women who cover are filled with dignity and self esteem; they are pleased to be identified as a Muslim woman. As a chaste, modest, pure woman, she does not want her sexuality to enter into interactions with men in the smallest degree. A woman who covers herself is concealing her sexuality but allowing her femininity to be brought out.

Often forgotten is the fact that modern Western dress is a new invention. Looking at the clothing of women as recently as seventy years ago, we see clothing similar to hijab. These active and hard-working women of the West were not inhibited by their clothing which consisted of long, full dresses and various types of head covering. Muslim women who wear hijab do not find it impractical or interfering with their activities in all levels and walks of life. Hijab is not merely a covering dress but more importantly, it is behavior, manners, speech and appearance in public. Dress is only one facet of the total being. The basic requirement of the Muslim woman’s dress apply to the Muslim man’s clothing with the difference being mainly in degree. Modesty requires that the area between the navel and the knee be covered in front of all people except the wife. The clothing of men should not be like the dress of women, nor should it be tight or provocative. A Muslim should dress to show his identity as a Muslim. Men are not allowed to wear gold or silk. However, both are allowed for women.

For both men and women, clothing requirements are not meant to be a restriction but rather a way in which society will function in a proper, Islamic manner

“Muslim countries tradition keeps ordinary women at home and off the

Street”

This also is not true. The social structure in the East where Islam (Submission) prevails encourages the woman to make her house her first priority but there is no prohibition whatsoever on women having to work and earn their living. The Muslim (submitter) woman has been given the privilege to earn money, the right to own property, to enter into legal contracts and to manage all of her assets in any way she pleases. She can hold a job or run her own business and no one has any claim on her earnings including her husband. Historically, Muhammed’s first wife was a merchant who hired Muhammed to work for her. Muslim women went along with their husbands, fathers and brothers during battles to take care of the wounded and help in the back lines of the troops..

“no right for woman to vote in islam”

This also is not true. Women in Islam (Submission) have the right to vote, express their views on any public matter, run for an office and even be the head of a state

Allah said in the Holy Quran :

60-12 “O Prophet! when believing women come to you giving you a pledge that they will not associate aught with Allah, and will not steal, and will not commit fornication, and will not kill their children, and will not bring a calumny which they have forged of themselves, and will not disobey you in what is good, accept their pledge, and ask forgiveness for them from Allah; surely Allah is Forgiving, Merciful”

Rape Laws in India

Monday, December 21st, 2009

THE RAPE LAWS IN INDIA, revisiting the concepts  .

Is ‘Rape’ merely a word described in section 375 of the Indian Penal Code, 1860, to be interpreted stricto senso? Or is it a psychological phenomenon to be understood and dealt with, with more empathy and less legality? What is the scope of this word and its narrow definition according to law and what is the impact of this definition on the judgments meted out to the hapless victims of this excruciating mental agony? This project aims to study the lacunas in the present definition and scope of the phenomenon called Rape.

The word ‘Rape’ is derived from the Latin term ‘Rapio’, which means ‘to seize’. Thus, rape literally means a forcible seizure and that is the essential characteristic feature of the offence. In common parlance, it means intercourse without her consent by force, fear or fraud. In other words, rape is violation with violence of the private person of a woman.

Though the law is said to grant justice to the innocent, the same is sadly not true in case of rape victims. Justice prides herself on being blind to everything but the truth – yet as far as rape is concerned, the facts paint a different picture. Rape laws in India are extremely antiquated. Although the laws outline the crime in clear terms, the courts are filled with people who favor the accused and challenge the veracity of the victim’s allegation.

The Supreme Court has opined in Maharashtra v Madhukar Narayan Mardikar , that
“..even a woman with easy virtue is entitled to privacy and no one can invade her privacy as and when he likes. So also, it is not open to any and every person to violate her person as and when he wishes. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard.”

Rape laws in India are antiquated; Instances where justice has failed the victim because of interpretation of law, assessment of evidence, long delays at the trial and harsh and humiliating cross-examination of the victim are reported with alarming frequency. This report deal with the incumbencies in the existing laws relating to rape in India and certain recent developments in this field.

Rape is a weapon that distorts a woman’s sexuality, restricts her freedom of movement and violates her human rights. It leaves a woman feeling exposed, humiliated and traumatised. A rapist not only violates the victim’s privacy and personal integrity, but also causes serious physical and psychological damage. The law must take a fresh look at itself and take positive steps to make it more difficult for an accused to get judicial reprieve. . What is sad about rape in India is the lack of seriousness with which the crime is often treated.Statistics from 2000 showed that on average a woman is raped every hour in India

As observed by Justice Arjit Pasayat:
“While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female.”
Sexual harassment is nothing less than the showcasing of male dominance. Given an opportunity, such men (those committing sexual harassement) would try fulfilling their desire.

Rape

Rape means an unlawful intercourse done by a man with a woman without her valid consent. (Section 375 of the Indian Penal Code)
A man is said to commit “rape” if he has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

Against her will.

Without her consent.

With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

With or without her consent, when she is under sixteen years of age.

Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Impediments to Justice:
Rape is defined in India as intentional, unlawful sexual intercourse with a woman without her consent. The essential elements of this definition under Section 375 of the Indian Penal Code are ‘sexual intercourse with a woman’ and the absence of consent. This definition therefore does not include acts of forced oral sex, or sodomy, or penetration by foreign objects; instead those actions are criminalized under Section 354 of the IPC, which deals with ‘criminal assault on a woman with intent to outrage her modesty’ and Section 377 IPC, covering ‘carnal intercourse against the order of nature’.

The definition leaves a few questions unanswered. For instance, what about sexual intercourse by a man with his wife, and without her consent, where the wife is over 16 years of age? Judicial interpretation has also meant that sexual intercourse in a custodial situation (police station, public hospital, remand homes, and jails) is deemed an offence, without going into the question of consent. Also, anal or oral penetration and penetration with objects do not fall within the ambit of section 375.

It also does not recognize other forms of sexual assaults, like protracted sexual assault by relatives, marital rape etc. as aggravated forms of rape. This causes grave injustice to many victims. In many cases of child rape, the child has been penetrated through fingers or by objects or been force to perform oral or anal sex; yet this is not considered rape by the Courts.

Also, if the victim is a minor, the onus is on the accused to prove his innocence. But if the victim is a major, it is up to her to prove her charge. Therefore, the defence finds it worthwhile to prove that the victim is a major. Another problem is that unless the woman is examined medically within 24 hours, it becomes difficult forensically to prove that rape has occurred. Very often, unable to prove penetration, judges find themselves trying “rape” cases under more watered down sections: ‘outraging the modesty of a woman’, for instance, carrying much lighter punishment.

Adding to this is Section. 155(4) of the Evidence Act (Repealed), which allows the victim to be questioned of her past sexual history which the defense uses to humiliate the victim in the Courtroom. At the same time, section 54 stated: “In criminal proceedings (including rape) the fact that the accused person has a bad character is irrelevant, unless evidence has been given (by him) that he has a good character, in which case it becomes relevant.”

Section 375 of the Indian Penal Code (IPC) only considers forced peno-vaginal penetration to be rape. Penetration with any other object, be it life-threatening (a knife, an iron rod, etc), though more physically harmful is not rape. The penis is accorded a privileged position in comparison with other objects that can be inserted, because of the primacy put on the virginity of women. The rupture of a woman’s hymen — the ultimate symbol of her sexual purity — must be avoided at all costs. “Sexual intercourse by a man with his own wife, the wife not being under 15 years of age, is not rape,” according to this section. In other words, forced sex within marriage is outside the scope of the offence of rape.

The manner in which some courts have interpreted the law or assessed the evidence has often proved to be an obstacle also. In spite of Supreme Court judgments to the contrary, lower court judges often insist on evidence of physical resistance or marks of injuries to hold that a woman has not consented. A woman’s evidence without corroboration is not considered sufficient.

Therefore rape laws in order to be of great deterrence, must have a cooperative victim, professional investigation, diligent prosecution; and an expeditious trial. For otherwise it shall not be the law, that fails, but the applicants, the process and application

Earlier Developments

Several difficulties with the rape law were highlighted through some insensitive treatment by the judiciary

·        The Mathura rape case is illustrative.( TukaRam v. State of Maharashtra, AIR 1979 SC 185In March 1972, a 16-year-old tribal girl was raped by two policemen in the compound of Desai Ganj police chowky in Chandrapur district of Maharashtra. Her relatives, who had come to register a complaint, were patiently waiting outside even as this heinous act was being perpetrated in the police station. When her relatives and the crowd threatened to burn the police chowky down, the two guilty policemen, Ganpat and Tukaram, reluctantly agreed to file a panchnama. At the Sessions Court, Mathura was accused of being a “liar” and that since she was “habituated to sexual intercourse”, her consent was given. The Nagpur bench of the Bombay High Court set aside the judgment holding that that passive submission due to fear induced by serious threats could not be construed as willing sexual intercourse. However, the decision of the Supreme Court remains a blot on its record to this day. The rationale for acquittal was that Mathura had not raised an alarm and there were no visible marks of injury on her body. The judgment did not distinguish between consent and forcible submission

The Mathura rape case galvanised the women’s movement into asking for reforms of the criminal law that dealt with rape. In 1983, the government passed the Criminal Law Amendment Act. It amended Section 376 IPC and enhances the punishment of rape it also provides enhanced punishment of minimum of 10 years of imprisonment for police officers or staff of jail, the remand homes or other places of custody established by law. The Act further inserts a new Section 114-A IEA, by raising a presumption as to absence of consent in cases of custodial rape, rape on pregnant women and gang rape at least partially, removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India, unlike the occident a disclosure of the girls identity, rehabilitation in society for all times to come and unless her story was painfully true she would not have taken such a grave risk merely to malign the accused.The Act also provides for trial in camera. It also inserts a new section in the IPC Sec 228(A), which makes disclosure of the identity of the victims in These amendments were not enough to stem the rise in the number of cases of sexual violence against women. One crucial defect in the law was the definition of rape under Section 375 of the Indian Penal Code (IPC), which took into account only penile-vaginal penetration. Other physical and mental injuries were left to be dealt with under Sections 354 and 509 of the IPC as `outraging the modesty of a woman’.

Although the amendment had only partly accepted the demands of the campaign, the enactment was an indication of some measure of success. However, the inadequacy of these measures became clear in the Suman Rani case.[In spite of the rigorous punishment brought in through the amendment in cases of custodial rape, the Supreme Court reduced the sentence to five years on grounds that the woman was of ‘questionable character’ and ‘easy virtue’ with ‘lewd’ and ‘lascivious behaviour’. The court also dismissed a review petition filed by women’s groups. The Suman Rani case was no exception; the judiciary was routinely awarding less than the minimum sentence in rape trials despite the statutory mandate laid down by the amendment. In Mohd.Habib v. State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis, which the High Court presumed was indicative of consent.

·        In Mohd.Habib Vs State, the Delhi High Court allowed a rapist to go scot-free merely because there were no marks of injury on his penis- which the High Court presumed was a indication of no resistance. The most important facts such as the age of the victim (being seven years) and that she had suffered a ruptured hymen and the bite marks on her body were not considered by the High Court. Even the eye- witnesses who witnessed this ghastly act, could not sway the High Court’s judgment.

·        In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala, who was lured to Ernakulam with the promise of finding her a good job, where she was sold and forced into prostitution. There for eighteen long months she was held captive and raped by clients. Finally she was rescued by the police- acting on a complaint filed by her neighbour.With the help of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the upper echelons of the bureaucracy and society of Kerala.The suit was squashed by the High Court, while observing that ‘ it is improbable to believe that a man who desired sex on payment would go to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for granted.’

·        Whereas, in State of Punjab Vs. Gurmit Singh, the Supreme Court has advised the lower judiciary, that even if the victim girl is shown to be habituated to sex, the Court should not describe her to be of loose character.

·        The Supreme Court has in the case of State of Maharashtra Vs. Madhukar N. Mardikar, held that "the unchastity of a woman does not make her open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate her person against her wish. She is equally entitled to the protection of law. Therefore merely because she is of easy virtue, her evidence cannot be thrown overboard."

In Chairman, Railway Board Vs. Chandrima Das, a practicing Advocate of the Calcutta High Court filed a petition under Article.226 of the Constitution of India against the various railway authorities of the eastern railway claiming compensation for the victim (Smt. Hanufa Khatoon)- a Bangladesh national- who was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs as compensation.

The Supreme Court also held that the relief can be granted to the victim for two reasons- firstly, on the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948 which has international recognition as the ‘Moral Code of Conduct’- adopted by the General Assembly of the United Nation.

In view of the above, the Supreme Court has laid down the following guidelines for the trial of rape cases:

1.The complaints of sexual assault cases should be provided with legal representation. Such a person should be well acquainted.

2. Legal assistance should be provided at the police Station, since the victim may be in a distressed state.

3. The police should be under a duty to inform the  victim of her right to a counsel before being interrogated.

4. A list of lawyers willing to act in these cases should be kept at the police station.

5. Advocates shall be appointed by the Court on an  application by the police at the earliest, but in order that the victim is not questioned without one, the Advocate shall be authorized to act at the police Station before leave of the Court is sought or obtained.

6. In all rape trials, anonymity of the victim must be maintained

7. It is necessary to setup Criminal Injuries Compensation Board with regard to the Directive Principles contained under Article. 38(1) of the Constitution of India. As some victims also incur Substantial losses.

8. Compensation for the victims shall be awarded by the Court on the conviction of the offender and by the Criminal Injuries Compensation Board- whether or not a conviction has taken place. The Board will take into account pain, suffering, shock as well as loss of earnings due to pregnancy and child birth if this accrued as a result of rape.

Recent Developments

In 1997, Sakshi, an organisation involved in issues on women and children, approached the Supreme Court through a writ petition asking for directions concerning the definition of rape in the IPC. Although the Supreme Court did not interpret the provisions of Section 375 IPC to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina penetration, finger/anal penetration, and object/vaginal penetration within its ambit. Instead, the judges sought refuge behind the strict interpretation of penal statutes and the doctrine of state decisis - a view that any alteration [in this case, of the definition of rape] would result in chaos and confusion, it directed the Law Commission of India to respond to the issues raised in the petition. The Law Commission, under the chairmanship of Justice P. Jeevan Reddy, responded by saying that the 156th Law Commission Report had dealt with these issues. The Supreme Court, however, agreed with Sakshi that the 156th Report did not deal with the precise issues raised in the writ petition. In August 1999, it directed the Law Commission to look into these issues afresh. (Sakshi v. Union of India)

After detailed consultations with the organisations, the Law Commission released its 172nd Report on the Review of Rape Laws, in 2000. The Law Commission recommended changing the focus from rape to `sexual assault’, the definition of which goes beyond penile penetration to include penetration by any part of the body and objects, taking into account cunnilingus and fellatio.

The report recommended the deletion of Section 155(4) of the Indian Evidence Act, which would prevent a victim of rape from being cross-examined about her `general immoral character’ and sexual history. It suggested graded sentences, with higher punishment for rape committed by the relatives and persons in `trust or authority’, public servants, and superintendents, management and staff of hospitals. It introduced a new Section 376(E), which would include sexual harassment at the workplace.

The commission recommended shifting the burden of proof of consent to the accused. It suggested specific provisions that would deal with the medical examination of the victim as well as the accused by a registered medical practitioner. It said that girls who are victims of rape should be questioned only by a female police officer, in the absence of whom a qualified woman from a recognised social organisation should do the questioning. The commission suggested that the law relating to sexual assault be made gender neutral, that is, men and women can be charged with the rape of men, women and children. This meant that for the first time the sexual assault of minor boys was made prosecutable under the law. It asked for Section 377 of the IPC to be dropped, thus decriminalising sodomy.

However, the recommendations did not take into account marital rape. It raised the age of consent of the wife from 15 to 16 years, after which the woman is not protected from rape by the husband. It also continues to provide a window for Judges to reduce the sentence in case of convictions below the minimum sentence specified, as suggested by the commission which states: “Any number of situations may arise, which the Commission cannot foresee th Based on the Law Commission’s recommendations, the government enacted an amendment in the winter session of Parliament in 2002, which deleted Section 155(4) and inserted a proviso to Section 146 of the Indian Evidence Act, which means that a victim of rape can no longer be questioned about her past sexual conduct and her `general immoral character’..

Criminal Law Amendment Bill of 2005

The Bill, drafted by Ms Kirti Singh advocate and legal convener of AIDWA, is based on 172nd report of the Law Commission to amend the laws relating to sexual assault in Section 375, 376, 354 and 509 IPC and the relevant sections of the Code of Criminal Procedure 1973 and the Indian Evidence Act 1872. The recommendations are based on the national consultation on the issue organized by the national commission for women

·        The major changes sought to be brought about through this amendment are substitution of existing section 375 of the IPC with the following:

“375.Sexual Assault: Sexual assault means –
(a) The introduction (to any extent) by a man of his penis, into the vagina (which term shall include the labia majora), the anus or urethra or mouth of any woman or child–
(b) the introduction to any extent by a man of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a woman
(c) the introduction to any extent by a person of an object or a part of the body (other than the penis) into the vagina(which term shall include the labia majora) or anus or urethra of a child.
(d) manipulating any part of the body of a child so as to cause penetration of the vagina (which term shall include labia majora) anus or the urethra of the offender by any part of the child’s body;”

Similarly, Amendment, 2005 brought forth many changes in rape laws, especially related to detailed procedure of examination of victim and accused both by inserting new sections: 164-A, 174 (1A), (b), and 53-A (a) CrPC, and made it clear that in addition to physical examination, it also shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the RMP thinks necessary in a particular case. Section 174 (1A), (b), CrPC inserted to make mandatory inquiry by the Judicial Magistrate in cases of custodial rape and murder cases.

Changes recommended in the Indian Evidence Act, 1872 are in S

Latent shortcomings in section 4 of Muslim Family Law Ordinance

Thursday, December 17th, 2009

On account of a fundamental rule of inheritance under Muslim law that “a nearer in degree excludes the more remoter” the children of a predeceased son or daughter can not inherit the property of their grandfather or grandmother who is survived by a son or sons. All the schools and sub-schools of Islamic law unanimously accepted this fundamental rule. So it is evident that in the opinion of Islamic jurists the provision of representation in respect of inheritance is absence in Muslim law. As under this principle grandchildren are excluded from inheritance, different Muslim countries of the world attempted to solve this problem by taking various devices.

In Syria and morocco the children of a predeceased son who would be excluded from succession  under sharia  law ,are now entitled to either the share of their father which they would have taken ,had he survived the propositus or one third of the net estate ,whichever is  less .But till now no provision has been made for the children of the deceased ‘s daughter.

In Egypt the children of a predeceased son or daughter is entitled to  the share of their parent which they would have received ,had  he or she survived the propositus ,but within the maximum limit of one third of net estate.

Some Middle Eastern countries have adopted the device of ‘obligatory bequests’. In Libya the will act 1994 introduced obligatory bequest for orphaned grandchildren through predeceased sons. But Bangladesh and Pakistan have accepted the rule of representational succession for the orphaned grandchildren. Section 4 of Muslim family law ordinance1961 provides;

In the event of the death of any son or daughter of the propositus before opening of succession ,the children of such son or daughter ,if any ,living at the time of succession opens ,shall per stirpes receive a share equivalent to the share which such son or daughter ,as the case may be ,would have received if alive.’

According to this section a grandson or granddaughter represents his or her father or mother at the time of death of grandfather or grandmother and inherit what their parent would have inherited if alive, it is called representation. So representation means a more distant relative steps into the shoes of a nearer relative (e.g. a son representing his father) and inherits in an identical manner to the individual he represents. This doctrine of representation has brought in some cases caustic injustice to some heirs of the deceased .For the better understanding the latent injustices in section 4 of MFLO; we can discuss it by giving some examples;

Firstly; a dies leaving behind one daughter and one son’s daughter. So under Islamic law of inheritance daughter gets three-fourths and granddaughter gets one –fourth but according to this ordinance daughter gets one-third and granddaughter gets two-thirds. Only this single injustice upsets the whole community. Here both the heirs are female one is one degree nearer than the other one but nearer gets half of property of remoter. Do you think it is justice?

Secondly; under the ordinance the doctrine is applied only for the descendents of the deceased. It means the entire property which the deceased son would have inherited, if alive, goes to his children, depriving his wife and other relatives. For example; A dies leaving B, a son and D a grandson from predeceased son C and C’ s wife E. Here the property will be divided into two. B gets half and the rest half goes to D. So E is completely deprived .Is it justice?

Thirdly; the propositus dies leaving a daughter of a predeceased son and a full brother. Under MFLO, the entire property goes to son’s daughter and she completely excludes full brother. Is it not injustice?

Fourthly, Son is duty–bound to maintain his father but son’s son is not obliged to maintain his grandfather .So equal distribution among son and grandson is not justice.

Although section 4 of MFLO protected the right of grandchildren yet for the abovementioned injustices to the heirs it should be amended.

References:

A Text Book On Islamic Law– Dr. Muhammed Faiz-ud-din.

Shariah Law and Society– A.M.Siraj uddin.

Principles of Mahomedan Law– D.F. Mulla.

The Muslim Law of India– Tahir Mahmood.