![WISDOM CRUX [ISSN 2456-6233]](https://www.wisdomcrux.lawtimesjournal.in/wp-content/uploads/2020/12/WISDOM-CRUX-ISSN-2456-6233.png)
[Volume 2, Issue 7] – July, 2017
Author – Akanksha Tiwari; B.A.L.LB (Hons), Amity Law School Noida
Co-Author – Prakriti Dadsena; B. A.LL.B (Hons.), Amity University, Noida
INTRODUCTION
Indian society is complex in its nature. The status of women in our society has not been uniform. During the Vedic era Women had equal rights as men in all aspects of life. Their position in society deteriorated in the medieval ages when the widows were not allowed to remarry and fell victim to sati system. Mughals brought the purdah system to the society. During the British rule the condition improved as many reformers such as Ram Mohan Roy, Ishwar Chandra Vidyasagar and Jyotirao Phule fought for women’s rights. The feminist activities started in 1970s and since then they have successfully spread awareness regarding women’s rights and brought changes to improve the status of women and strengthen them. Today they have successfully been empowered to a large extent and contrary to the common perception, a large percentage of women are being educated and have jobs. But as every coin has two sides, these laws that have been made to protect women from domestic violence or sexual assault etc. and to empower them to step out of the house and make a career of their own, are being manipulated. Today they not only understand how to protect themselves but sadly use the loop-holes in these laws to their unfair-advantage. The most commonly misused laws in our society are the ones made to protect women from domestic violence.
The honorable Supreme Court in the Arnesh Kumar vs State Of Bihar & Anr(([2014] 8 SCC 273)) was of the opinion that Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The simplest way to harass is to get the husband and his relatives arrested under this provision.
No crime is gender specific. Domestic violence is a pattern of behavior in any relationship that is used to gain or maintain power and control over the other. This kind of abuse can be physical, sexual, emotional or economic etc. It can happen to anyone of any race, age, sexual orientation, religion or gender. A major loop hole in the laws made to prevent these heinous crimes is that they are gender specific. In our country the laws made for this purpose protect only the women and leave very less or no chance for the accused “men” to defend himself.
Through this research we aim to bring to light the severe need to bring a neutral and unprejudiced law which protects the genuine victims of domestic violence, irrespective of their gender.
GENESIS OF THE DOMESTIC VIOLENCE ACT
In our society there is an overwhelming amount of violence. Examples of these violent acts are everywhere and ironically it is most prominent behind the doors of our own homes. All across the country, people are being tortured, beaten and killed. This violence is not only practiced in rural areas but also happens on a large scale in metropolitan cities as well. The most common victims of these acts are women. Since the beginning of time the acts of domestic violence has been an inherent part of the society. These acts are a result of the desire to exploit someone for personal gains and maintain superiority in a relationship. Such acts are committed by only those people who need to feel the flare of the commanding position in a family or any intimate relationship. On various occasions, psychological problems and social influence also add to the vehemence. The most common causes for domestic violence committed against women include dissatisfaction with the dowry and exploitation of women for more of it, arguments with their spouse, incapability to produce children, neglecting children, having a successful career of their own, not looking after in-laws so on and so forth. The major factors which leads to domestic violence in most of the rural households are the desire for a male child accompanied by alcoholism of the spouse. There have been ghastly reports of brides who are burnt alive and fall victim to continuous physical mental or sexual harassment due to dissatisfaction of the family regarding the amount of dowry.
Our government introduced acts like The Domestic Violence Act (2005) or section 489-A of The Indian Penal Code for the speedy disposal of the cases where the woman is being subjected to cruelty at the hands of her husband or in laws.
498A of IPC clearly states that – Husband or relative of husband of a woman subjecting her to cruelty. —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. Explanation. —For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.((http://dl.geekupd8.com/law/acts/IPC-1860.pdf))
These acts have brought relief to a huge number of victims in our countries but it is only the tip of the iceberg there is a lot of work needed to combat these crimes.
In the case of Shobha Rani V. Madhukar Reddy ((AIR 1988 SC 121 [prakash kaur v. harijinderpal singh, AIR 1999 raj 46])) Wife petitioned for divorce on the ground of persistent demand made inter alia by her husband and in-laws. There was also evidence that the wife made statements after her marriage and right up to the time, she died that she and her parents were being harassed by the husband and in laws for the dowry. An amount of Rs. 20,000/- to 25,000/- was also demanded for setting the husband in the business and they were unable to satisfy these demands. The Supreme Court held that the husband and father-in-law were accused under section 498-A and sentenced to rigorous imprisonment of one year and payment of fine Rs. 100/-
Similarly in the case of Adarsh Prakash V. Sarita(([AIR 1987 Del 203]))The husband and his parents were greedy people. Their desire for dowry was insatiable. They went on demanding dowry even after two years of marriage, and since the parents of wife could not meet these, they started ill-treating her with a view to coercing her parents to give dowry. The Delhi High Court held that this amounted to cruelty.
Rishi Kumar V. State of Haryana(([CRIMINAL APPEAL NO. 335-B of 1985])) is another instance where The allegations against the husband were that he abused and beat his wife, forced her to have a common kitchen with a harijan family, accused her of adultery and of carrying in her womb someone else’s child, pressurizing her to agree for an abortion, and such other acts. This amounted to a willful conduct of cruelty towards wife.
In Pathan Hussain basha V. State of Andhra Pradesh(([AIR 2012 SC 3205]))At the time of marriage, it was promised that a dowry of Rs. 25,000/-, besides other formalities, would be paid by the side of the wife to the husband. Out of this amount, a sum of Rs. 15,000/- was paid at that time and it was promised that the balance dowry of Rs. 10,000/- would be paid. But Father of a girl was not able to pay the same. Deceased died by hanging at in-laws house after about a year of marriage. There were allegation of demand of dowry and harassment.
There is no doubt that these laws have brought about a considerable positive impact on the society and have helped in improving the condition of women in our country. These acts have empowered women to fight for their cause and break away from the chains of domestic violence in all its forms. But a very big loophole of these acts are that they are gender specific and the crime of domestic violence is not.
THE PROBLEMS FACED IN THE MODERN ERA
The main purpose of this act is to prevent women from domestic violence. But this purpose is lost and instead manipulation of these laws has become rather common. In the 21st century women are at par with men in all arenas and the well educated women have begun to use these acts for unlawful purposes. This helps women get away scot-free. Many women today grab the smallest opportunity to file a case. Such misapplication and misuse of law results in destruction of many families and and careers of the falsely accused men. The person accused of such crimes against women is tormented by the society even when the accusations have been proven wrong.
In the modern era the violation of the goals and aims of these laws are on the rise due to women who make frivolous allegations against their husband and their family as it has become the easiest way to get rid of them.
Like in the case of Savitri Devi v Ramesh Chand & Ors((II (2003) DMC 328)), the court held It appears that the legislature was mindful of the fact and situation that this provision may be exploited that it defined ‘cruelty’ and for that purpose “harassment” falling within the parameters of “intentional conduct’ “of such a degree that may either drive the woman to commit suicide or cause danger to life, limb or health or cause ‘grave’ injury. Of course “health” means not only physical but mental also. But unfortunately, these provisions have been abused by the Investigating and Prosecuting Agencies and exploited by the women and their relatives to such an extent that these have proved to be most ineffective in curbing the evil of dowry as well as disciplining the husband and his relatives to treat the woman in human and humane manner and give the bride or wife proper respect and honour.
Section 498-A of the Indian Penal Code was made with the aim to protect married woman from exploitative husbands but it is intelligibly misused by few women and this has been strictly condemned in Saritha v R. Ramachandran((I (2003) DMC 37 [DB]))where the court went on record and said that for nothing the educated women are approaching the Courts for divorce and resorting to proceedings against their in-laws under Section 498-A IPC implicating not only the husbands but also their family members whether they are in India or abroad. This is nothing but abuse of beneficial provisions intended to save the women from unscrupulous husbands. But it has taken a reverse trend now.
According to the National Crime Records Bureau statistics, nearly 200,000 people, including 47,951 women, were arrested in regard to dowry offences in 2012, but only 15% of the accused were convicted.((ncrb.nic.in))
In the last 20 years the laws relating to violence against women in India has been misused on many instances. Civil society, police, politicians and even judges of the supreme court and high court have opposed this misuse vehemently. One such view was expressed by former Justice K T Thomas in his article titled ‘Women and the Law’, which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a “general complaint” that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused. It is important therefore that such “arguments” are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women.
The biased nature of this laws is evident from that fact that unlike almost all laws in India the burden to prove innocence lies on the accused. This means as soon as the complaint is made, whichever persons are named in the complaint are accused in the eyes of law. These accused and their families regardless of the fact they were involved or not are roped into it and have very little or no chance to escape or defend themselves. Section 498a of the IPC is a criminal law in which the wife and her parental family can charge any or all of the husband’s family of physical or mental cruelty. This law is unique to India, it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband.
Recent Judgments:
In India the courts have finally started to notice the rise in the misuse of domestic violence acts and are looking into the matter. Section 498-A provides that just by filing the FIR not just the husband his entire family can be roped in. Hence the courts, in their judgments show their angst over this law. Here are some recent judgments to support the same.
In Kanaraj vs. State of Punjab((2000 CriLJ 2993)), the apex court observed as:
“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
Supreme Court, In Mohd. Hoshan vs. State of A.P.((2002 CriLJ 4124))case, observed as:
“Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana(([1990]2 Rec Cri R 243)), case as:
“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”
Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab((2003 CriLJ 3394)), held :
“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law
Karnataka High Court, in the case of State Vs. Srikanth((2002 CriLJ 3605)), observed as:
“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”
Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others((JT 2005(6) 266)), observed as:
“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that 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 the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence 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.
But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not 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 straitjacket 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 for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. 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.”
THE RECOMMENDATION
“Domestic violence needs to be punched out, it’s a scourge on our society”
As per the present scenario where the Domestic violence across our country is growing with the increase in crimes, our Constitution has no law to fight with such forms of Domestic Violence. As there is urgency of law in our country. Due to limited definition of cruelty subjected to married women, section 498A and DV Act 2005 has been misused at large.
Since 1983, With the introduction of 498A in Indian Penal Code the domestic violence has been acknowledged as a specific Criminal offence. Section 498A talks about, husband or in-laws of a woman subjecting her to cruelty and also punished with rigorous imprisonment for a term of three years.
Due to increasing instances of Domestic violence in the society and across the country Government of India has passed a Domestic Violence Bill, 2001, “Protection of women from violence which has been occurring within the family and to provide for matters connected therewith or incidental thereto”. Apart from the bill an act named Protection of women from Domestic Violence Act, 2005 [DVA, 2005] also has been passed this act makes sure that when a report of Domestic Violence against a woman is filed then the officer must prepare a report of the same and submit it to the magistrate and forward the copies to the police officer in-charge at police station.
When husbands are accused by their in-laws or women under S.498A IPC by making the offence non-bailable and cognizable, if the man is unimpeachable he does not get justice quickly and ‘justice delayed is justice denied’. Therefore, the legislator must suggest some method by which the laws can be made unbiased to the individuals where the person committed crime should be punished and justice is given.
The Court has to make certain changes if the laws of matrimonial cruelty are to be of any deterrence. Looking into the recent statements and the misuse of the Sections, there should be certain changes in the functioning of the law and the society needs to be brought:
1. Awareness through NGO’s:
Awareness programs should be conducted for both women and men. The organization should investigate the complaint without any biasness towards the women that is knowing the fact how the law is being misused by the women towards the husband and his family. Women should not be encouraged to file frivolous cases against their husbands or in-laws. Research and survey should be conducted by the organization to bring awareness and educating people about the consequences.
2. Counselling centers for Family:
In last few years numerous cases have been coming across the country where men and their families are being harassed by their wife’s and in laws. To put their point of view and to look into their cases no organizations has been set up. There is need of counselling centers across the country to help the men and his family from being harassed.
3.Bailable:
The main reason because of which section 498A being misused is because of its non-bailable nature. As men or his family convicted under section 498A cannot be bailed easily. Therefore, section 498A should be made bailable offence to prevent the innocent from being convicted under the crime not performed by them.
4.Compoundable:
As soon as the FIR is been registered no one can withdraw it even if the wife has realised her mistake and wants to return to her in laws home. So to save the marriage the law should be made compoundable. Further if any couple wants to end their marriage through a mutual divorce, the continuation of criminal proceeding causes obstruction in their life.
5. Arrest Warrants:
Arrest warrant should only be issued against the accused after all the investigations is complete and after the cognizance of the crime. Accused family should not be arrested before it has been made certain that such a crime has indeed been committed.
6. Punishment for frivolous accusations:
When the court realises that the allegations made are false then stringent action should be taken against the person making such allegations and they must be punished severely as a way to discourage such misuse of law. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families.
7.Negligence of Duty:
If the courts find that proper investigation has not been conducted and the accused and his family were charge sheeted without proper evidence of the crime then the investigating officer should be charged with gross negligence of duty.
8.Gender Neutral
Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife.((After looking to the report of following suggestions have been made Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 http://www.mha.nic.in/pdfs/criminal_justice_system.pdfchapter 16.))
CONCLUSION
The condition of the women in our country is still pitiable. They don’t need any more rights to alleviate themselves in society but proper implementation and practice of the existing rights. The educated woman of today must agree with the mantra of equality and demand the same but the trend is slowly getting reversed. Women are taking undue advantage of the fact that they are referred to as the ‘weaker sex’ and on the foundation of rights ensured to them are violating others’ rights. Domestic violence is one of the biggest social evils faced by our country, and no civilized society should tolerate this, every effort should be made to eradicate this evil, people committing these crimes notwithstanding the gender should be punished severely. But other side of the coin which is often ignored is that these provisions are misused by some unscrupulous wives to wreak havoc on husband and family.
These laws provide remedy to women only and these days it is being used as ‘brahmastra’ by them, it is an extremely debatable issue these days and the problem is rising. if this problem is not solved by legislation it may become a bane for the society. People’s trust over the judiciary will come to an end. So it’s high time that these laws be amended and some changes ought to be made to revive the feeling of faith in the judicial system.