By Dr S.Saraswathi
(Former Director, ICSSR, New Delhi)
On 14th September, the Supreme Court, dealing with a PIL stated that Parliament that enacted a law to protect women from matrimonial cruelty is now obliged to enact another law to protect men (husbands) from misuse of that law by their wives and relatives.
The object is to curb harassment of husbands and their relatives under Section 498A of the Indian Penal Code introduced in 1988 to prevent domestic violence against women for dowry.
Hardly a couple of months ago, the same court issued a direction to governments against automatic arrest of a person under the SC and ST (Prevention of Atrocities) Act on receipt of a complaint without making any preliminary enquiry.
One is intended to correct gender injustice against “males”, and the other to prevent caste injustice against “upper castes” arising from the application of social reform legislations enacted to protect Constitutional right to equality without sex or caste discrimination.
The question is: Are we suffering from an overdose of protective legislations and over-enthusiasm in using these and have to apply breaks now so as to halt wreckage of the system and introduce sobriety and maturity in bringing order in family and social relationships?
The Supreme Court is at times constrained to issue timely warnings to prevent protective legislations from becoming a cause for new forms of cruelty and injustice. Such legislations have been enacted to reform customary practices that violate liberty and equality enshrined in the Constitution and undermine concepts of human rights. Courts are now obliged to protect the traditional and original offenders from becoming victims in the hands of original victims – an unforeseen but inevitable development.
In both instances, misuse of well-intentioned laws has led to judicial advice to trim these to achieve their objectives without causing unintended injury to anybody in the process. Judicial thinking is that protection mandated by law cannot be allowed to become a cause for fresh injustice.
Section 498A was added to the Indian Penal Code in 1983 which widened the meaning of “domestic violence”, which was understood as dowry related harassment only. This section provides, “Whoever being the husband or 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 may be liable to fine”.
Cruelty under this section means any wilful act which is of such a nature that is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb, or health (physical or mental) of the woman; or harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or for failure to meet such demand. The offence is cognizable and non-bailable which indicates its serious criminality.
In practice, the number of complaints made under this Section increased enormously, but many turned out to be false or frivolous. Thousands of fake cases resulted in acquittal. The Delhi High Court said in a case in 2008: “there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes”. The National Crime Research Bureau provides an incredible figure of 466,079 cases pending in the beginning of 2013 under this law, 38,165 ending in acquittal and only 7,258 in conviction.
This Section was widely used and it was even reported in the press in 1993 that police officers were instructed in Mumbai not to register cases hastily under this action unless they were related to dowry issues. Instances of false cases to wreak vengeance on old enmities were not wanting.
Due to high chances of victimisation of husbands under this law, an association by name Society for Prevention of Cruelty to Husbands was formed soon after adoption of Sec.498A in 1988 to help husbands falsely implicated and imprisoned under dowry related complaints.
Pertinent is the provision in this Section that holds the person against whom the complaint is made to be guilty until proved to be innocent. The onus is on him, the defendant, to establish his innocence — a clause contrary to our basic judicial norm which holds the accused not guilty until proved guilty. It can be argued that by this, injustice and inequality are imparted by law itself.
Section 498A was challenged in 2005, but upheld by the Supreme Court. In 2010, in another case, the Supreme Court lamented the possible misuse of this section and recommended detailed investigation. Parliament set up a committee for this purpose.
The 237th report of the Law Commission in 2011 recommended that the offence under 498A should be made compoundable with the permission of the Court. It means that the parties can make an out-of court settlement and withdraw the case. Extensive discussions then took place on the question of compounding, the arguments being the importance of promoting social consciousness by allowing legal proceedings and the need to permit amicable mutual settlement wherever possible and avoid litigation.
This was reiterated in 243rd report of the Law Commission in 2012 but with a rather firm assertion that the possibility for misuse by itself should not be a ground to denude the provision of its efficacy keeping in view the larger societal interests. In 2014, the Supreme Court recommended proper procedure to be followed before making any arrest.
In July 2017, the Supreme Court scrapped its earlier decision to set up district level committees to look into dowry harassment complaints before arrest on the ground that it was “impermissible” and not consistent with the “statutory framework”. It also directed the setting up of Family Welfare Committees from para-legal volunteers, social workers, retired employees, wives of working officers, and other citizens. It was a device to reduce the severity of Section 498A.
According to a report of the UNO, nearly 50 nations have adopted laws to check domestic violence. Marital rape is considered a crime in several western countries. However, wife battering is a worldwide phenomenon not excluding the US. In the East and Middle East, concepts like “teaching a lesson to disobedient wife”, or “correcting an erring wife” is traditionally considered as the prerogative of husbands, and obedience and submission as virtues of wives. Under this situation, social reform through legislation has to do a balancing act between two extremes — legal over-reach and social backwardness.
The Supreme Court, concerned about what it termed as “super-sensitivity” or “over-zealousness” of police officers to arrest husbands under Section 498A, observed that this could lead to “social disaster” with the “potential to vertically divide the society”. To prevent such a development, the judges have expressed the need for a law to check misuse of Section 498A and provide for careful scrutiny of the genuineness of the complaint to establish the need for arrest.
Though Parliament is the supreme law making body, it has to listen to the voice of the judiciary which echoes the impact of social legislations without political considerations. —INFA