Book excerpt: Don’t scrap section 498A but treat perjury as a serious offence
In her book Intimacy Undone, divorce lawyer Malavika Rajkotia looks at the evolution of institution of marriage in India, from its historical roots to the present.books Updated: Jul 20, 2017 11:50 IST
On the misuse of gender-specific laws
The Indian judicial system is seen as particularly prone to vengeful or misutlized litigation. A US State Department warning to Americans travelling to India states, ‘since the police may arrest anyone who is accused of committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often used to escalate personal disagreements into criminal charges. This practice has been increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other persons with whom the US citizen has a disagreement, occasionally resulting in the jailing of US citizens pending resolution of their disputes.’
Readers will note that ‘estranged spouse’ is only one possible category in which vendetta-type litigation is seen as common here. Vindictive litigants are prone to misusing any law and the legal system usually evolves to protect itself against misuse, not by doing away with the law, but by tightening procedure to filter frivolous litigation. Given our clogged legal system, which seems unable to protect victims of malicious prosecutions generally, the debate about the misuse of laws—which invariably focuses on the misuse of Section 498A2 IPC and such criminal cases filed by wives—seems to miss the point. Or perhaps, it only too clearly reveals the level of social resentment about women-enabling legislation.
The benefits of women-enabling legislations in criminal law far outweigh the pain and suffering of misuse and abuse of process generally.
The law must remain. The way to deal with misuse of criminal law in matrimonial matters is no different from the way to deal with misuse of any law: careful and sharp investigations, robust but fair prosecutions, and balanced judgments delivered in an efficient timespan that punish false and malicious prosecutions heavily.
When Section 498A was promulgated, I was a cub lawyer with a trendy left liberal law chamber that also housed Shekhar, a quick-witted Malyali stenographer. Shekhar had been suspended from a government job for insubordination. Like all good Keralites, Shekhar bristled with legal rights. I trod softly around, till I discovered his sense of humour. It was then easy to understand why a humourless government babu would mistake Shekhar’s deadpan satire as rude and insubordinate.
One day, he handed me a sheet of paper on which was typed:
• We were married on [date].
• We have [x] number of children.
• Right from day one of marriage he troubled me.
• They demanded dowry and my father did the best he could, even though it was beyond his capacity.
• On [date] the entire family beat me because I did not get enough dowry…
• On [date] they beat me again. My father visited on [date] and they humiliated him.
Poker-faced, Shekhar told me that he would cyclostyle the document and I could just fill in the blanks for each woman complainant. I solemnly stood up to salute the singular courage of this literary endeavour in a feminist chamber.
Similarity in FIRs, which often begin to sound much like Shekhar’s standard form, is indeed disturbing, but it needs to be understood that what Shekhar standardized as fodder for his dark humour were the attitudes and customs that prevailed as common and popular. The similarity of complaints is that they all reflect disappointed expectations of transactional opportunities that celebrate gender inequality.
Many complaints seem patently false because we look at them from our own cultural perspective; we like to claim that we live in a milieu where dowry is ‘not an issue’. The truth is that the problem of dowry does not always lie in the act of giving and taking—demand and reluctant supply—but attitudes that reflect and enact deep-rooted gender biases.
Given that marriage has traditionally been about extending spheres of influence, it is not surprising that if not most, certainly many people expect some betterment from a valuable connection made by marriage. It may not be money itself, but opportunities that could translate to money,or influence that comes with some economic benefits. Even in the West, which claims to have transcended ‘arranged’ marriages and to believe in love, the advantages of ‘marrying the boss’ or the ‘boss’s daughter’ are well known and the expectation remains that if a ‘brilliant’ match that helps up the social ladder can’t be made, it should at least be a ‘sensible’one that does not drop social status. This, incidentally, is not to say that love marriages reduce the problem for women: the practice is that many love matches too retain the customary trappings of monetary exchanges.
On this issue, most families are almost never what they seem to be. Treat the following as true of most of North India and certainly of Delhi. After families agree to the marriage, the standard questions are ‘what’s your budget? What are you giving your daughter? What car will you give?’ followed by the standard demands: Wedding should be at a five-star venue; the barat is to be received with ‘respect’ and here is a list of the boy’s relatives who have to be ‘respected’. In a case I did for W, despite the high intensity and frequency with which the word ‘respect’ was buzzed into the heads of the bride’s parents, it still took a while for the straightforward, simple couple to realize that to receive the barat with ‘respect’ did not mean just an elegant bow but the financial equivalent of a full body obeisance.
The milni ceremony is common in Punjab where corresponding male relatives of both families meet in a ceremonial bear hug and the girl’s relative hands a gift to his counterpart. In the Sikh Punjab that I know, the charming remnant of the milni custom is a loi or a large shawl. Today there will also be an ‘envelope’ and other goodies, but the loi is a must, maybe due to the North Indian cold and the martial tradition of the hardy Sikhs on horseback. The light and flexible shawl provided warmth while riding with a gun or sleeping on the ground under a tree.
Traditionally, the girl was carried away on a palki, but the modern equivalent is the car bought by her father, into which her dowry, jewellery and clothes are packed. One groom had the good sense to feel some embarrassment about the naked avarice that dowry customs feed. So, he chose not to drive off in the car gifted by his father-in-law but send for it the next day. I know another story where the car was not collected by the groom because he thought it below his ‘standard’.
The next transaction is at the daughter’s arrival to the marital family fold. Brides are expected to hand over their jewellery to the mother-in-law, ostensibly for safekeeping. Any desire to keep the jewellery with herself may be considered an insult, because it demonstrates mistrust and an unseemly assertion of independence.
After the wedding, every auspicious event, festival and birth is marked by gifts and money given to the groom and his family by the bride’s parents. Obviously, not all of these can be counted as dowry, under the strict technical meaning of the term, but they point to the underlying feeling and philosophy of the marriage equation that gives rise to dowry.
This is that we, the parents of this daughter, are most grateful that you have taken charge of her and we will do our best to ensure that she is not a financial burden to you. This carries on till the weddings of the next generation where the maternal family is expected to make the heaviest cash gift.
This insidious evil custom seeps through every class. Women suffer the most for it, as for them, the social security of being in a marriage is even more important than the financial. How likely is this, I thought, when coming across a reported case of a woman lawyer being brutalized by her lawyer husband and his family. They beat her with sticks and a belt, vilified and humiliated her, and she continued to suffer for the sake of ‘her matrimonial life’. I was repulsed by the idea and could not really believe that an empowered woman was allowing this to happen to her. But I had to rethink my initial scepticism when I met another young lawyer who also faced the consistent and persistent erosion of her persona by the family-in-law. She continued to suffer, believing that it was she who was failing them by not being subservient enough.
It is not difficult to guess that the lack of self-esteem at home, even amongst career women, is a problem deeper than the lack of individual self-confidence. Women fight a difficult battle every single day to retain their integrity and confidence against the shocking misogyny of their workplace: they look for comfort in their homes and become even more vulnerable when they don’t find it there.
As the problem of violence and dowry demands increased, The Dowry Prohibition Act (1961) made the giving and taking of dowry a criminal offence, though voluntary wedding gifts listed under the signature or thumb impressions of the couple were exempted. The act is inert and passive. In 2012 there were 7,455 prosecutions and 673 convictions. I have never seen the list the act mandates, and the dowry problem still rages.
Long prior to this legislation, many regional customs served the same purpose as the lists required under the act, but these good protective customs have been jettisoned. As a child, I have a memory of a room in the wedding house glowing with the splendour of jewellery and poshak of the daj and vari displayed on velvet cushions. The older pieces of jewellery were wrapped in delicious stories recounted to us by aunts and old family retainers. The exhibition would then be listed in the handwriting of the mother of the bride and a member of the family-in-law. This custom is now dismissed as unfashionable and rustic by city-wallahs and I too found it gauche and garish till the wisdom of the signed list and display protocol struck me recently. A woman client claimed that her mother-inlaw sent no vari to her parental home, but gave her jewellery on the day of the wedding reception party, only to take it back the same evening. Of course, this was difficult to prove.
Soon after Section 498A was enacted, there was an outburst of apprehension that scheming vindictive families of the girl would misuse the law to extort settlements. Over time, many courts noticed and commented that indeed there was such a problem. False complaints were filed against the husband and even the extended family was roped in to mount pressure.
In a case, acting for H, I told W’s lawyer, ‘You have given my clients the moral handle they were looking for, by roping in the entire family. Now they are going to fight fiercely for their honour.’ He thought for a moment and said, ‘but I would have no case, without all of them in the fray.’
Yes, these laws are misused—just as all laws are. The bane of this country is the abuse of power by the new feudal lords—politicians, and the influential—to settle scores. So common is this that I am not in the least surprised that politicians across party fronts are united in their position that not only an accusation but even conviction of a criminal offence should not (while an appeal is pending) bar them from contesting elections, even if they are in jail at the time. The problem is that while a politician can use jail time as a career opportunity by becoming a martyr to a hazy cause, ordinary people view incarceration as causing irreversible social damage. This is what makes 498A fearsome. Any ordinary family who has the misfortune of having a son in a bad marriage is vulnerable.
Even so, it is important not to let the misuse argument create scepticism about the cause of women that is benefited by this section acting as a deterrent against atrocities. The Supreme Court has discussed the danger of presuming misuse of 498A and advised effective filtration systems of robust police investigation to discard false complaints.
Why is S. 498A misused?
Though I have appeared for many unfortunate men and their families who have suffered these complaints, let me consider a genuinely aggrieved woman: a young bride spends days and nights missing her parents’ home and looks to her husband to support and protect her from overbearing intrusion by his family. Her effort at negotiating intimacy with her husband and acceptance into the family is a complex process: She must not be too independent; must not talk too much. Frequent conversations with her parents are called interference. She must excel in the kitchen.
They magnanimously ‘let’ her work, but long hours in office are frowned upon. Her desire to go to parties is shocking; her desire to meet friends without her husband is suspect. If the first year goes by with no ‘news’, she is unworthy, as her basic purpose of child-bearing is not being realised.
A lot is forgiven when a baby arrives; a lot more if she bears a son, but there never is a time when she is entirely without blame. Even without dowry demands or physical abuse, a family-in-law can radiate enough disapproval to create a painfully unhappy girl.
Such girls suffered silently and helplessly in the past. Now that they have legal remedies it is possible that they resort to these tactics fuelled by feelings of anger, disappointment and betrayal. Compound that with the desperation of such a girl being told that the end of a marriage is the death of her life, and her rage when she is invariably told that she should think of her ‘fault’ in this—maybe she did not ‘adjust’ enough.
I am only suggesting possibilities, but of course there is no one complete explanation. There never can be; the clients (husband or wife) always tell their story with conviction, but we need to be aware that often the truth is embellished by them. There is always a shade of extra or special pleading and we have to listen carefully for the true note in the clamour. As we work through such opaque situations towards fair resolutions, the client’s conduct exposes the lies s/he speaks. Let me explain how. While I write this, the anticipatory bail of a client (H) has been rejected in Bombay. The wife sent joyful messages to her friends in Delhi asking them to spread the word. To me, her happiness exposed her as shallow and vindictive: he was not a murderer. Her best case was that he was cruel because he ignored and demeaned her and he kept back her jewellery. That would certainly not be served better by his being denied bail.
Yet, upon careful thought, I did manage to understand a woman who felt slighted by her family-in-law and was now gleeful about them having to attend to her. I could not take that away.
I am not claiming to be more virtuous than her: I do dislike some people and do admit to slight malicious pleasure when they are troubled.
But the lawyer in me knows how wrong a case can be, how trumped up, how lethal it is to be framed by accusations cooked in malice. When and if I see true retributive justice, I have never felt joyous, but am almost always sickened by the price of obtaining it and the cause that led to it.
One can never feel glee.
How to deal with misuse is not to scrap 498A but to treat perjury as a serious offence. In a country where we have to shriek to be heard, it is no surprise that people tell lies for a day in court. Lies and crassness are the domain of public discourse and not limited to 498A.
Intimacy Undone: Marriage, Divorce and Family Law in India
By Malavika Rajkotia
Publisher: Speaking Tiger
Price: Rs 799
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