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Home Truths: Why we need a strong law against domestic violence

Diluting Section 498A of the Indian Penal Code will deprive women of necessary and crucial legal protection from domestic violence and dowry harassment, say women’s rights activists and lawyers

india Updated: Dec 03, 2017 08:58 IST
Niha Masih
Domestic violence doesn’t always leave tell-tale signs of physical injuries. It often scars the person deeply from within.
Domestic violence doesn’t always leave tell-tale signs of physical injuries. It often scars the person deeply from within.(Shutterstock)

The first time Seema’s* husband hit her, she remembered what her mother had told her about marriage: ‘girls have to bear these things quietly’. Especially girls who do not bring enough dowry. It started with yet another jibe from her mother-in-law over household work. Seema had made it a habit to keep quiet. That day she replied softly, “But now I even work and earn money.” Her mother-in-law flung a plate full of food on the ground in anger for her rudeness.

In silence, Seema picked up the plate and cleaned the floor. Then she went upstairs to the bedroom with her three-year-old son. Within minutes, her husband and mother-in-law came rushing behind her. Her husband held her hands and slapped her repeatedly. With each slap, her eyes stung with tears. He only stopped when the child began crying in fear. “

After that day, violence became routine. Once he beat me when I asked him to put a tubelight in place of a zero-watt bulb in the room when I was preparing for my government job exam. If I had to count, maybe once or twice every week. It became a way for my husband to vent his frustration,” Seema recalls. She finally walked out of her husband’s home the day he used a wooden stick to beat her. That day, she feared for her life.

‘The overarching concern is on the family and marriage as an institution. The woman’s well-being is subordinate to the preservation of the family. While this can be a socio-cultural construct, a court bound by the rule of law cannot subjugate the rights of women to family and marriage,’ says lawyer Vrinda Grover.

Seema’s story is not easy to narrate – neither the slow drip of venom she was subjected to since the day of her wedding 13 years ago, nor the physical violence which it morphed into. When she didn’t bring a car in her dowry, she was turned into an ‘unpaid maid’. Her position remained the same even after she started working, though her salary was taken from her by her husband. The violence never broke her bones or gave her bodily injuries. What it did do was to break her spirit and once, even her will to live.

Back at her parents’ home now, she has spent the last few years battling to get justice for the abuse she faced. She chose to file a criminal complaint under section 498A of the Indian Penal Code which deals with mental and physical cruelty towards wives (including dowry-related harassment). This week section 498A is back in focus as the Supreme Court expressed reservations over an earlier order of the court which had laid down guidelines to prevent “misuse of the law”.

What The Other Half Says

Over the years, section 498A has come under relentless attack from men’s rights groups, which have argued that it gives wives undue power over hapless husbands or in-laws and is used to exact money or revenge. The non-bailable, cognisable (police have the authority to arrest people without a warrant from a magistrate or court) and non-compoundable (charges cannot be dropped by the complainant at will) nature of the section have also been cited as reasons behind its misuse.

But this view disregards the tragic history of dowry deaths which preceded the legislation. Though the practice was outlawed in 1961, dowry harassment leading to deaths or suicides continued unabated, with news reports in the early 1980s suggesting as many as five deaths every day in Delhi alone. The women’s movement argued for an expanded legislation that could provide an avenue for victims while alive. The law was expanded in 1983 to include two more sections: 304B to deal with dowry deaths; and 498A dealing with any form of violence in the domestic sphere.

The narrative now, however, is of a ‘draconian’ provision – at whose stake is not only the fate of men but the entire Indian family. A slew of court judgments over recent years, too, have brought into this view. In 2010, the Supreme Court asked the Law Commission of India to examine whether the section should be made compoundable. The court stated, “It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations.”

In 2014, the Supreme Court directed that no automatic arrests should happen in 498A cases and before any arrest, the police need to furnish reasons for doing so. The court said, “The institution of marriage is greatly revered in this country…The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.”

In July 2017, the Supreme Court stopped all arrests, instead forming Family Welfare Committees to determine whether arrest was required for every case. The court ruled, “Many of such complaints are not bona fide. At the time of filing the complaint, implications and consequences are not visualised…Uncalled for arrest may ruin the chances of settlement.”

In July 2017, the Supreme Court stopped all arrests, instead forming Family Welfare Committees to determine whether arrest was required for every case. This week the Court expressed reservations over the earlier order .

Questioning the reasoning, lawyer Vrinda Grover says, “These court orders have not merely diluted but decriminalised the provision, effectively. The latest order obstructs women’s access to justice by removing them from the legal sphere and creating a parallel track of family welfare committees.” The allegation of ‘misuse’ of the section is also a claim repeated by organisations like the Save Indian Family Foundation (SIFF). On its website, the organisation states it “fights for men’s human rights and seeks to protect men and their families from Government sponsored undemocratic social experiments”. Rajesh Vakharia, one of the founders of the organisation, asks HT on the phone from Pune, “Are men’s rights not human rights? Don’t men have hearts? Why is the power to file a complaint only with the married woman, not mother-in-law – can’t she be mentally tortured?”

Contrary to the patriarchal language and logic used in courts and by organisations like SIFF, the data doesn’t suggest wide-ranging misuse.

According to figures from the National Family Heath Survey, 2015-16, every third married woman (between 15-49 years) faced spousal violence. Ten years ago, every second woman in the country had faced this. In real numbers, this means that a staggering 5.5 crore women in India have faced violence in marriages (based on 2011 census figures).

When read in conjunction with the number of 498A cases registered, it in fact highlights how rarely women file such cases. In 2016, there were 1.1 lakh cases filed under section 498A. So fewer than 0.5 per cent of all women who faced abuse went to the police to register a case. Though at 32 per cent, cruelty cases form a majority of all crimes against women – higher than rape and assault.

Chaitali, a project officer at the violence intervention team in Jagori – a women’s rights organisation – says most of the women who approach them have faced domestic violence, but barely any want to go to court. “Breaking the family is taboo even for women. Where will she go once she files a case? What about the children? Not everyone can go back to their parents’ home. Filing a case only happens when there is no other option.”

Of these cases, six per cent were reported as ‘false,’ while 2.6 per cent ended due to ‘mistake of fact or law’, as per the latest Crime in India report. Chaitali argues that false cases cannot be the sole benchmark. “False cases maybe filed under any law but that doesn’t mean we discontinue the law. The focus should be on strengthening the system so this doesn’t happen.”

Fake Cases?

It is also pertinent to point out that chargesheets were filed in 83 per cent cases in 2016. This means that the police investigation found sufficient prima facie evidence in most cases or else they could have filed a closure report. Of the chargesheets filed, only about 2,000 people were discharged pre-trial for lack of evidence.

The rather contentious ‘arrest’ figures too belie the misuse charge. Eighty five per cent of the individuals arrested were chargesheeted by the police. The other allegation made about the unfair arrest of aged in-laws at the behest of the daughters-in-law is also not supported by data. Only three per cent of all arrests under 498A are of people above the age of 60.

Despite the high chargesheet rate, the conviction rate is a paltry 12 per cent. But low convictions plague many crimes in India, not just those under section 498A.

From general problems like overburdened courts, ineffective prosecution, poor investigation to more specific reasons like settlement between the two parties to lack of fool-proof evidence (since the offence is committed within the confines of a home) to cases withdrawn by women given the financial burden and arduous nature of judicial process, the reasons are varied.

Low conviction rate should not be read as a sign that cases are fake, according to Grover. “Cops file a chargesheet after investigation. Why are they doing it if a woman is filing a false case? Why is the trial initiated by the magistrate if it’s false? Does this mean the entire criminal justice system is corrupt or compliant?”

Conversations with police sources, too, point to how the emphasis is on reconciliation than criminal complaint. When women approach a police station for filing a 498A complaint, the first step is counselling. Three sessions are held between the couple to try and resolve the marital dispute. The most common advice dispensed is to live separately from the in-laws.

If those fail, another three sessions of mediation are held which aim to bring a formal resolution to the dispute, including monetary settlements. It is only after these options are exhausted with no resolution that an FIR is filed.

After this year’s July judgment, before the police proceeds with its investigation, it will be required to send the case to the Family Welfare Committees (FWC) made up of citizens who may not even have a legal background. The judgment made one exception: if there are ‘tangible physical injuries or death,’ the directives can be disregarded and arrests made. But emphasis on physical injuries ignores violence which scars the person deeply without any visible marks, like in the case of Seema.

Grover questions this ‘Nirbhaya-like’ standard when it comes to violence against women inside homes. “The overarching concern is on the family and marriage as an institution. The woman’s well-being is subordinate to the preservation of the family. While this can be a socio-cultural construct, a court bound by the rule of law cannot subjugate the rights of women to family and marriage.”

What Lies Ahead

In October 2017, Nyayadhar, an NGO from rural Maharashtra, filed a petition demanding that the new three-member family welfare committees include two women. In reply, the Supreme Court observed that they were in fact ‘not in agreement’ with the July judgment, which had suggested the formation of FWCs. This week the Court questioned the need for these guidelines, as it is an IPC provision. The final arguments on whether these guidelines will hold or not will be heard in January.

Seema gets angry when I tell her about the court decision over arrests. “The woman is not given notice when there is cruelty, so why should there be any notice given to the culprits?” She admits, though, that she did not want to drag the matter to court. “I put up with everything for the sake of my son,” she says. And still, after four years of ‘torture,’ her husband asked for a divorce. Even at that moment, she hoped he would come around.

At the hearing, she was shocked when her husband cited her misbehaviour to in-laws as grounds for divorce. “That is when I realised I had to stand up for my rights,” she says. She registered an FIR in 2009 and the trial which began in 2013 is dragging on in one of the district courts in Delhi. She doesn’t know how long it will continue. There are moments when she wants to give up. “Even if I win the case in the future, so much of my life, money and effort would have been spent in this fight. But at least the courts will not question women like me.”

* Name changed to protect identity