GENDER NEUTRAL LAWS – NEED OF THE HOURNovember 29, 2018
CONSTABULARY COMPETENCY, IN SEARCH AND SEIZURE IN CONTEXT WITH CRIMINAL LAW IN INDIADecember 12, 2018
It is no secret that in India, gender-based violence [including Domestic Violence] has been the dominant narrative for centuries. Therefore, in order to curb domestic violence, Section 498A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. Harassment for dowry and to actuate a woman to commit suicide falls under the dominion of this section. The offence under s.498A is cognizable, non-compoundable and non-bailable. However, this section has become controversial due to the rise of false complaints and arresting innocent men on whimsical allegations topped with incompetent and inefficient investigation, ruining the sanctity of marriages.
CRUELTY AGAINST WOMEN: AN ANALYSIS
Section 498A states that, Husband or relative of husband of a woman subjecting woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.
Throughout history, India has witnessed violence and cruelty against married women mostly for the demand of dowry or to make women sub-ordinate to men. Dowry is the bride price paid by the bride’s family to the groom’s. It is imperative that 498A should be read with Sect.113B of Evidence Act which provides for presumption in cases of dowry deaths. Section 304B of the I.P.C deals with dowry death i.e., death of a married women within seven years of her marriage in connection to dowry demanded by her husband or his relatives.
Women can be subjected to either mental or physical cruelty. In Savitri Pandey v. Prem Chandra Pandey, the Apex Court observed that mental cruelty is the conduct of other spouse which causes mental suffering or fear to the matrimonial life of the other but must be differentiated from the normal wear and tear of life. Causing injury to body, limb or health is considered as acts amounting to physical cruelty. Whereas in A.P. Marry v. K.G. Raghvan, the Madhya Pradesh High Court observed that a single act of physical violence may amount to cruelty. Similarly, series of small act of violence may cumulatively amount to cruelty.
MISUSE OF 498A OF THE IPC
With the passage of time, the society has been afflicted with tremendous changes, both positive and negative. While women have been made more conscious about the need for their own empowerment, some women have turned the tables against men and try to find ways to harass innocent men. According to the National Crime Records Bureau Report,
Crime in India 2012 Statistics, the conviction rate under 498A is a meager 15% which is indicative of the number of false cases. The primary reason for such harassment is extortion of money from the husband and harassing the husband and his family. In Sushil Kumar Sharma v UOI, the constitutional validity of section 498A was questioned on certain grounds such as:
That it has been grossly abused by married women to harass their husbands, in-laws and relatives by instituting frivolous and unfounded criminal proceedings,
That it has become an easy tool in the hands of the Police and other agencies to hound the persons with the threat of arrest,
That the investigating agencies and the courts start with the presumptions that the accused persons are guilty.
The 2003 Malimath Committee reported that there is a general complaint that Sec 498A is subject to gross misuse, using it as a justification for amending the provision. However, it did not provide any data as to how frequently it is misused. Reference is made in this context to the decision of Delhi High Court in Chandrabhan Vs. State and the decision of Madras High Court in case of Tr. Ramaiah Vs. State, where the respective courts have given directions to the police authorities as to how to conduct investigation in an adultery case and not out rightly arrest the accused without evidence and exercise utmost caution in case of arrest of husband or his relatives. Section 498A has been dubbed as “legal terrorism” in the same case of Sushil Kumar Sharma vs. UOI as the SC felt that “complaints under s.498A were being filed with an oblique motive to wreck personal vendetta.” This section has therefore become a tool used for legal extortions, blackmails and baseless claims by wives and has rightly earned the title of ‘legal terrorism’.
Judiciary is often considered the last resort of victims and through the due process of law must ensure fair and affordable litigation to all. Time and again, the need for transformative constitutionalism has been harped on – that laws must be molded so as to supplant archaic or invidious laws. However, the truth remains that women still face hurdles when they knock the doors of Law.
The criminal justice system response to the cases of violence against women has clearly played a role in educating the public on what is not acceptable in our community against women. Laws that are drafted to reflect the reality of women’s experience of violence inside or outside the home, if fully implemented will provide justice for women who have suffered violence and even protect against further abuse.
However, educating on gender violence should not be a partisan tutoring. Mutual respect for all genders must be emphasized on accompanied by exacting laws to keep people on their toes. It is indispensable to make more laws of the like of Protection of Women from Domestic Violence Act 2005, Dowry Prohibition Act 1961, National Commission for Women Act, 1990 and Medical Termination of Pregnancy Act, 1971 but also the same are effectuated methodically and uncompromisingly. The directives of the High Courts in regard of the conduct of the law enforcement agencies must be attended. The Apex and the High courts have played an innovative role in achieving gender-parity and securing Women’s right while assuring that such laws are not desecrated by some contemptible women.
Legislature must implement lasting policies to ensure reduction in intimate domestic violence. Some other ways to ensure insulation of married women from domestic cruelty could be done by:-
Advocating violence against women unacceptable and for such violence to be addressed as a public health problem.
Provide comprehensive services, sensitize and train health care providers in responding to the needs of survivors holistically and empathetically.
Prevent recurrence of violence through early identification of women and children who are experiencing violence and providing appropriate referral and support
Promote egalitarian gender norms as part of life skills and comprehensive sexuality education curricula taught to young people.
Generate evidence on what works and on the magnitude of the problem by carrying out population-based surveys, or including violence against women in population-based demographic and health surveys, as well as in surveillance and health information systems.
Even though the primary concern should be protection of women from such violence, it would do well to conform to the SC’s modified directives [Social Action Forum for Manav Adhikar & Ors. Vs UOI] dealing with domestic violence cases to ensure no misuse of the provision. And last but not the least, we must understand that legislature and judiciary can mitigate domestic violence to certain extents but the clear message that must be sent to men and women is that, violence or harassing either of the sexes is unacceptable.
ABOUT THE AUTHOR:
Teresa Dhar is II year B.A L.L.B student at Chanakya National Law University.