The Supreme Court recently ruled that there will be no automatic arrests in cases filed under the special anti-dowry provisions set out in the Indian Penal Code and the Dowry Prohibition Act, 1961.
The police and magistrates are now required to go through a nine-point checklist before deciding if a husband accused of subjecting his wife to cruelty will be arrested. Failure to follow directions will attract disciplinary action.
The court’s ruling decries the misuse of these laws, which are supposedly ‘used as a weapon’ by ‘disgruntled wives’. Justices CK Prasad and PC Ghose cite National Crime Records Bureau (NCRB) figures, which state that “the rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads.” This is an old argument. Since its enactment in 1983, Section 498A — a provision that defines the offence of matrimonial cruelty — has, repeatedly, come under attack from the judiciary. The court observed in 2005 that the misuse of the section amounted to ‘legal terrorism’. The court cites the low conviction rate as justification for the ruling but does not point towards any accurate data to indicate how frequently the section is being misused and by whom. A closer look at the NCRB data shows that only around 10% of registered cases in 2012 were ‘declared false on account of mistake of fact or of law’.
The court ignores the ground reality that in most cases, matters relating to domestic violence do not end in acquittal by trial. Parties tired of being browbeaten by the notoriously long-drawn legal process usually settle dowry cases out of court. Other reasons for a low conviction rate are: Lack of support from the family of the woman who is pursuing legal action, resulting in out-of-court settlements; cultural biases against female litigants and divorces; crippling financial dependence of the woman on her husband; fear of homelessness, and; fear of physical security of children.
Most notably, the court fails to recognise that most cases of domestic violence go unreported. The apex court judgment may, sooner than we can imagine, lead to a serious security concern for those wives who are victims of domestic abuse and who do muster up the courage to come forward. Renuka Chowdhury, the former minister for women and child development, once said that “70% of women” were victims of domestic abuse. A woman — living in the same house as her abusive husband — is unlikely to have the luxury of time that the police need to move an application for arrest before a magistrate in compliance with the SC’s judgment.
Further, without the fear of arrest there is little to deter an abusive husband or his family from committing atrocities. One dowry death takes place every 77 minutes in India. Denying a victim speedy justice through this enforced delay could well cost us the woman’s life.