Diversity has been India’s most prominent feature which is a common thread running through the social structure of the country. This diversity factor is prevalent in the form of marked differences in the customs, social traditions and beliefs of people separated by mere political boundaries of states. One such feature which is analogous to our society is the dominance of males in our social system. Since time immemorial, the power of decision making is single handedly bestowed on the physically stronger sex in almost all realms of life whether it is economic, family related, political etc. Such prejudice had weakened the status of women in India who were reduced to mere child bearing tools. However with development and promotion of education, social awareness has played a vital role in uplifting the status of women and protecting them from unnecessary social evils such as dowry harassment, sati, polygamy, domestic violence etc.
EMERGENCE OF DOMESTIC VIOLENCE ACT
To confront the issues of exploitation of women in the form of domestic violence and to protect not only the wives but also other women in the household, Domestic Violence Act, 2005 was introduced. Some of the highlights of this legislation are:
Ø Harassment by way of unlawful dowry demands on the woman or her relatives also comes under this definition.
Ø The law will cover those women who are or have been in a relationship where both parties have lived together in a shared household, and are related by marriage or adoption.
Ø Preventing one’s wife from taking up a job or forcing her to leave job are also under the purview of the Act
Ø One of the most important features of the Act is that it also provides a woman a right to reside in the matrimonial and shared household, whether or not she has any title in the household.
Ø Husbands or live-in partners who would be guilty of domestic violence can be put behind bars for a year and fined Rs 20,000
Ø And all crimes in the Domestic Violence Act are non-bail able
In addition to physical violence of beating, slapping, hitting, kicking and pushing, the Act also covers sexual violence like forced intercourse, forcing his wife or mate to look at pornography or any other obscene pictures or material and child sexual abuse. The new law also addresses sexual abuse of children and forcing girls to marry against their wishes. This certainly proves that the new Act has been formed keeping the current relationship culture in India and the irregularities in the previous Domestic Violence Laws in mind.
The Act not only recognizes women who are in a live in relationship but also extends protection to other women in the household, including sisters and mothers thus the Act includes relations of consanguinity, marriage, or through relationships in the nature of marriage, adoption, or joint family thus, ‘domestic relationships’ are not restricted to the marital context alone. However the mainstay of this Act is in reference to dowry harassments and other marital abuse caused to women.
INJUSTICE TO MEN ( Unconstituionality of Section 498A?)
However the introduction of this piece of legislation has triggered a contentious debate regarding the prejudice caused to the men who are exploited by women under the biased cover of this legislation. Many provisions under this Act, in the quest of ensuring protection to the distressed and abused wives have ended up being a convenient weapon in the hands of shrewd women who exploit these laws to their undue advantage and harass their male counterparts. The bent towards women in this legislation (mainly aiming at upliftment of women in the society) have ended up being mere tools for harassing their men and extracting towering amounts of alimony as maintenance despite being capable of sustaining themselves.
Certain provisions of this legislation are very often than not used in this regard to cause nuisance and to get back at their husband and his family and cause their arrest and ill treatment in the hands of the police force. Section 498 is one such provision. It provides
“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.”
Thus Section 498A is a
v Cognizable offence (The accused can be arrested and jailed without warrant or investigation)
v Non-Bailable offence (The accused must appear in the court to request bail)
v Non-Compoundable offence ( The complaint cannot be withdrawn by the petitioner)
The stringency of this and many other such provisions under this statute (though intended to provide protection to the tormented wives) has led to its wide misuse. When an FIR (First Information Report) under IPC section 498A (anti-dowry law) is registered by a woman, the accused – i.e. the husband and his old parents, brothers, sisters, relatives - are arrested and jailed without investigation. The Supreme Court of India has ruled several times that arrest should be an exception, and not compulsory, yet under the cloak of this section the police leaves no stone unturned to harass the husband and his family without examining the veracity of the complaint. And in case the police do not react on a woman’s fabricated complaint, the women groups are given untoward powers to take legal action against the officer-in-charge of the police station. These innocent people undergo stigmatization and emotional trauma even before the trial in the court of law, which leads to emotional, physical and financial torture. Some of the falsely accused have committed suicide after being jailed, unable to bear the social consequences.
In 2004, CNN-IBN published some astonishing statistics regarding the use or rather misuse of section 498[1]:
- 58,319 dowry cases were registered in the country.
- 1,34,757 men were arrested.
- 47,828 cases have reached the charge sheet stage.
- 10,491 dowry cases were not charge sheeted as they were based on frivolous ground.
However, 5,739 men have been convicted but which is only around 5% of the men booked and harassed under this section and more than four times that number have been acquitted (24,127).
Many such provisions under this statute in an attempt to do justice to the abused women and punish their chauvinist and cruel husbands and in-laws, has ended up causing gross injustice to those guiltless male counterparts who are victimized and subjected to ill treatment in view of a malicious complaint. The lop-sidedness of this piece of legislation can be easily deduced from the fact that it specifically and clearly exculpates women from being prosecuted as the principal accused of Domestic Violence, excepting mothers, sisters, etc. of the accused man being prosecuted as abettors etc., and also specifically provides that the prescribed reliefs, such as maintenance, restraining orders, can be obtained ONLY by a woman and NEVER against a woman! Some of such other biased provisions under this statute are enumerated below :
- Section 32(2) says that under the sole testimony of the aggrieved person, the court may conclude that an offence has been committed by the accused.
- Section 18 allows the magistrate to protect the woman from acts of violence or even “acts that are likely to take place” in the future and can prohibit the respondent from dispossessing the aggrieved person or in any other manner disturbing her possessions, entering the aggrieved person’s place of work or any other place that the abused woman frequents.
- Section 4 of the Act says that the information regarding an act or acts of domestic violence does not necessarily have to be lodged by the aggrieved party but by “any person who has reason to believe that” such an act has been or is being committed. This means that any third party can file a complaint against the husband which gives an easy way to settle personal vendetta under the shield of this statute.
NEED FOR UNPREJUDICED LAW
Thus there is a growing discontent among the masses towards these grossly misused provisions and it is the need of the hour to revise these laws which in the attempt to provide protection to women should not cause prejudice to the guiltless males and endeavor to establish the supremacy of justice and truth as envisaged by our legal system. It was not until the Union Minister for Human Resources Development (Arjun Singh) was accused of dowry harassment that Renuka Chaudhary (Union Minister for Women welfare) finally acknowledged the misuse of anti-dowry laws in public.
Recent times have seen many writ petitions being filed questioning the validity of Section 498 which according to the petitioners is unconstitutional and violates their fundamental rights. As per Constitution of India all people of India shall be guaranteed and secured social, economic and political justice; equality of status and opportunities before law; and fundamental freedom which is hideously being violated under the cloak of social justice to the weaker sex.
CASE LAWS ON:
In Sushil Kumar vs. Union of India [2]the petitioner under Article 32 of the Constitution filed a writ petition praying to declare Section 498A of the Indian Penal Code to be unconstitutional and ultra vires and instead formulate such a law which does not victimize the accused as intended by unscrupulous persons fabricating allegations only to settle personal scores. In this case the Supreme Court remarked
“The object of the provision is prevention of dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question therefore is what remedial measures can be taken to prevent abuse of well intentioned provision. Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may therefore become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by the misuse of the provision, a new legal terrorism can be unleashed. This provision has been intended to be used as a shield and not as an assassin’s weapon. If cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual wolf appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straightjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope of any pre conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the court start with the presumptions that the accused persons are guilty and the complainant is speaking the truth. This is too wide available and general statement. Certain statutory presumptions are drawn which is again rebuttable. It is to be noted that the role of investigating agencies and the Courts is that of watch dog and not of blood hound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases the law laid down relating to circumstantial evidence has to be kept in view.”
There is a need to create awareness among such accused of their rights and a legal machinery needs to be installed which ensures protection of such innocent persons who are wrongly accused in order to balance the skewed process of justice. For instance Somit Das (name changed) whose wife filed a baseless petition under 498A as a ground for divorce did not succumb to the atrocities and instead started a “Save Indian Family Foundation” to expose the lop sidedness of the provisions of Dowry concerned provisions of law. [3]These instances clearly depict that there is a need for shedding our pre conceived notions and take steps to formulate ‘gender neutral’ and ‘crime based’ laws for the welfare of men in order to protect the interest of exploited men under these dowry provisions.
Women empowerment is no doubt an excellent thought and needs to be whole heartedly promoted. But the mode to bring about the empowerment shall be in vain in the true sense if it creates imbalance in the social structure and causes prejudice to the males who also constitute as vital members of our society. Perverted laws and draconian rules have given rise to the misuse of the same by urban women. These laws, which were to reach the rural and semi-urban masses have got bottle necked in the urban misuse. The law makers should ensure that the right intention of such laws is upheld and they are not reduced to revenge taking and settling personal vendatta tools. Indeed the social standing of women in India has not reached its due position as envisaged by our venerable leaders but their status is heavily skewed. The women in urban India are by and large educated and well aware of their rights and adept in sustaining themselves unlike their rural counterparts who are still trapped in the orthodox mindset and are exploited and denied basic privileges which are imperative for leading a dignified life. Thus the law makers should devise such dowry and anti-exploitation laws keeping in mind the exigency of the modern India and the disparity of status of women in urban and rural areas in order to prevent its misuse by devious women to their advantage. Such gross misuse needs to be urgently addressed as it is slowly and gradually eroding the social fabric of family values which constitutes the mainstay of Indian tradition and ethics which is undoubtedly the strength and identity of our culture and society.
References:
1) Bare Act - Domestic Violence Act 2005
3) “Behind closed doors” Domestic violence in India by Rinki Bhattacharya
4) Handbook on Law of Domestic Violence by Indira Jaisingh Eastern Book Company publication
[2] Citation : JT 2005 (6) SC 266
[3] Ref: Article “Domestic violence grossly misused” http://www.expressindia.com/latest-news/domestic-violence-act-grossly-misused/290054/
