1. Gender _____________________________ Gender CommunitySolution Exchange for the Gender CommunityConsolidated ReplyFOR COMMENTS: Amendments to Section 498A Indian PenalCode (IPC)Compiled by Malika Basu, Resource Person and ModeratorIssue Date: 4 August 2011From Vinita Aggarwal, Director, Ministry of Women and ChildDevelopment (MWCD), Government of India (GoI)Posted 1 July 2011Section 498A was introduced in Indian Penal Code (IPC) in the year 1983 to protect marriedwomen from ‘cruelty’ by the husband or his relatives. It provides for punishment of imprisonmentup to three years and fine. An offence committed under Section 498A IPC is cognizable, non-compoundable, and non-bailable.‘Cruelty’ under Section 498A IPC has been defined in a broad manner, so as to include: • Any willful conduct likely to drive woman to suicide or cause her physical or mental harm to the body or health; or • Acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. This includes harassment or demand for dowry.As per the National Crime Records Bureau (NCRB), there has been a steady increase in thenumber of cases under Section 498A IPC. In the year 2009 alone, a total of 89,546 cases wereregistered under this section, which is an increase of over 10% from the previous year.The Ministry of Women & Child Development (MWCD), as the nodal Ministry for womenand child issues, is concerned with effective implementation of Section 498A IPC and ensuringaccess to justice for women who face cruelty in the matrimonial home. The Ministry has alsoreceived representations regarding non-implementation of the provision as well as its alleged“misuse”.The NCRB data shows that in 2009, convictions were only 2.3% (7380 cases). Pendency of caseswas high at 86.3% (2, 78,921 out of a total 3, 23,355 cases) and the cases disposed of were only11.5% (37,323 cases). Of this, acquittal was 9.3% (29,943 cases). The percentage of casescompounded or withdrawn was 2.2% (7,111 out of a total 3, 23,355 pending cases). All thisbuilds a case for a comprehensive review.The Law Commission of India (LCI) is currently examining the need for amendments to Section498A IPC. A “Consultation Paper-cum-Questionnaire” has been prepared by the LCI, which raisesseveral questions including, whether Section 498A IPC should be amended to make it
2. compoundable and bailable. The feasibility of making Section 498A IPC a bailable offence hasbeen raised in several quarters. The LCI has emphasized on the need for greater sensitization ofpolice and legal profession to curb unwarranted arrests and bring a sense of responsibility.In view of the above, I would like to raise the following issues with the Gender Communitymembers and seek your comments on the same. • In your view, what are the reasons for low convictions and high pendency in Section 498A cases? • Do you think that Section 498A IPC should be made compoundable? What kind of impact is this likely to have on women’s access to justice? • Do you think making the offence bailable would address the problem of allegedly unwarranted arrests while also safeguarding the woman’s (complainant’s) interests? • What are the measures you would suggest to ensure greater accountability of the police? • In addition, in your view, who should be conducting counseling of parties and what should be the role of police in this process? Some States/Union Territories (UTs) have set up Crime against Women Cells/Mahila desks, which deal with complaints under Section 498A IPC. What is the current practice of these Cells/Mahila desks in dealing with cases under Section 498A IPC? In your opinion, should they be involved in conciliation/counseling of parties? Should this model be replicated?Through this consultative process and discussion with the Gender Community members, theMinistry hopes to develop further its understanding of the provision as well as the issues relatingto it. The inputs and suggestions received from the Gender Community would facilitate theMinistry in preparing its response to the Law Commission and greatly contribute to the largerprocess of strengthening of Section 498A IPC, which we hope would lead to furtherance ofwomen’s rights.Responses were received, with thanks, from1. Anagha Sarpotdar, Mumbai, Maharashtra2. JAGORI - Violence Intervention Team, New Delhi3. Akmal Razvi, Legal Advisor, Newzfirst.com, Bangalore, Karnataka4. Aasha Ramesh, Gender and Development Consultant, Bangalore, Karnataka5. Indrani Sinha, Sanlaap, Kolkata, West Bengal6. Srabani Das, Task Force on Violence Against Women (TFVAW), Bhubaneswar, Orissa7. Anuradha Kapoor, Swayam, Kolkata, West Bengal8. Suman Sinha, Consultant, New Delhi9. Poonam Kathuria, Society for womens Action and Training Initiatives (SWATI), Gujarat10. Bimla Chandrasekar, EKTA Resource Centre for women, Madurai, Tamil Nadu11. Sanjay Agarwal, SATYA, Rajasthan12. Satish Girija, Nav Bharat Jagriti Kendra, Hazaribag, Jharkhand13. Bappaditya Mukherjee, Prantakatha, Kolkata, West Bengal14. Subhalaxmi Mohanty, Delhi15. Dolon Ganguly, Jeevika Development Society, West Bengal16. K. Satyavathi, On behalf of Bhumika Women’s Collective, Hyderabad, Andhra Pradesh17. Karuna Singh, Independent Consultant, New Delhi18. Mitu Khurana, New Delhi19. B. Keerthi, Vasavya Mahila Mandali, Vijayawada, Andhra Pradesh20. Medha Dubhashi, Centre for Gender Studies, Vaikunth Mehta National Institute of Co-operative Management (VAMNICOM), Pune, Maharashtra
3. 21. Flavia Agnes, Majlis, Mumbai, Maharashtra22. Swati Y Bhave, APOLLO Hospital and AACCI, New Delhi *23. Joseph Joute, Bible Hill YCs Women Development & Research Center, Churachandpur, Manipur *24. Angela Ralte, Center for Peace and Development, Aizwal, Mizoram*25. Mohan Rambha, Swami Vivekananda Institute of Technology, Secunderabad, Andhra Pradesh **Offline ContributionFurther contributions are welcome!Summary of ResponsesComparative ExperiencesRelated ResourcesResponses in FullSummary of ResponsesSection 498A was inserted into the Indian Penal Code (IPC) in 1983 via an amendment toprotect married women from ‘cruelty’ by the husband or his relatives. The amendment was aresult of a sustained campaign by the women’s movement that sought a strong effectivelegislation to check the increasing violence against women (VAW), particularly rising incidences ofcruelty in marriages and dowry harassment. An offence committed under Section 498A IPC is acriminal offence that is cognizable, non-compoundable, and non-bailable.The existence of a section such as 498A is viewed as important and relevant as it challengesthreat to women’s life and personal liberty that is caused by incidents of domestic violence.Need for Section 498AMany argue that the context within which S.498A was introduced has not changed; rather, theIndian society continues to be in a perpetual state of patriarchal domination, where the girl childis still unwanted and discriminated against. Further, VAW is rampant in all its forms and thehome, a supposedly safe place for women is the site for untold violence on them.According to the National Crime Records Bureau (NCRB) statistics, in 2009, torture in thematrimonial home constituted 44% of the total crimes committed against women. Variousresearch studies and reports (e.g. Journey from Violence to Crime, Shades of Courage, NFHS-3report) conducted by various organizations (e.g. Centre for Social Research (CSR), Ekta, MARG,Swayam) have also highlighted the extent and prevalence of domestic violence. The need forSection 498A to protect women from domestic violence thus cannot be understated. Many of thestudies/reports however conclude that only a small number of women actually use the law; infact, the conviction rate in 498 (A) cases is negligible compared to the other sections within theIPC.Low Convictions and High PendencyAs per the NCRB 2009 statistics, although charge sheets were filed in over 93% of 498A cases,convictions occurred only in 19.8% of cases. This, as argued, is not indicative of false cases butis reflective of the reluctance of courts to convict - due to attitudes that condone and acceptmarital violence, as well as the difficulty of proving marital violence which happens within thefour walls of a home. Such attitudes force women to compromise with their husbands despite theviolence they face and to withdraw cases under section 498A, which they may have filed throughquashing cases in the High Court. Further, women may also choose not to pursue the case due
4. to pressure to reconcile with the husband, social stigma, divorce settlements, disillusionment withthe criminal justice system or other settlements between the families outside the courts.Some of the specific reasons cited for low convictions and high pendency also include: • Lack of investigation skills, commitment and insensitiveness to the seriousness of the violence under 498A, and subsequent failure to build the case, leading to acquittal of cases • Investigating agency takes a long time to complete the investigation; with the passage of time, vital evidences for investigation are lost • The complainants do not make consistent follow-up to see that the investigation is moving in the right direction • The justice delivery system operates depending upon the mind set, attitude and conviction of the individual judicial officers; some are prejudiced and pre-determined and conducting trial with the pre-conceived view that women are misusing S.498AIt is suggested that one of the ways high pendency and low conviction can be tackled is byadding a legislative provision of time bound trials.The Myth of MisuseDemand for amendments to Section 498A stems from a myth that the section is misused.Statistics seem to show that rather than Section 498A being misused, it is a section that is ‘hardlyused’ by women. For instance, the National Family Health Survey (NFHS-3) showed that 40% ofmarried Indian women face domestic violence of any form. If that is so, then going by the NCRBdata (2008), it appears that only 0.03% of women who face domestic violence actually file casesunder S.498A.The point is, in a context, where women are mostly dependent on their husband and their familyfor their basic necessities and support is not forthcoming from their families, society and stateagencies, they do not really have the means, ability or power to file cases under S.498A letalone ‘false cases’. Further, it is contended that when the expectation of society from women isthat they should put up with violence, the very act of registering a case of 498A is seen asmisuse, and not a crime.In view of the fact that many laws are misused and only S.498A, a law to protect women fromviolence has been singled out for amendment clearly shows social attitudes towards domesticviolence that accept and condone it. Several judgments (e.g. Sushil Kumar vs Union of India)have held that mere possibility of misuse can not render a provision invalid and on those groundsno law enacted by a competent legislature can be struck down.If the law enforcing mechanism does its job properly, any misuse can be prevented. In addition,there are existing provisions in the IPC for misuse of any law and if 498A is misused, thesesections – s.182, s.209 and s.211, can be invoked. It is also the duty of the state administrationto ensure that no law is misused by the police using any extra-constitutional powers whichamount to an abuse of power. Further, since it is only after the initial onus of proof has beendischarged that the Court can invoke Section 113 A; this clearly indicates that unless theprosecution initially presents a water-tight case with sufficient evidence of ‘cruelty’ the case willnot proceed and therefore the question of misuse does not arise.Arguments Favouring Gender Specific Nature of S.498AA law can be made gender neutral only if all the concerned persons are on an equal footing. Noone can argue that women and men in India are on an equal plane; such a statement would notonly be fallacious but also imprudent. If S.498A is made gender neutral, it will fall within therealm of laws relating to assault which has already been provided for in the IPC. The substratum
5. of the section is to protect women from cruelty and harassment in their matrimonial home and ifit is made gender neutral it will negate the rationale behind the law. Also, it is feared thatmaking the law gender neutral will make women completely vulnerable and result in menabusing women, and filing cases before women can gather the courage and support to do so.Any amendment to Section 498A to say the least will abrogate the constitutional mandate ofArticles 14 and 15 (3); it will be a failure of the State to achieve its intended goal of genderequality.The Indian State is responsible to ensure that all its citizens, especially the most historicallymarginalized, are provided protection to live a life of dignity and respect. Article 15 of theConstitution of India (also refer to Yusuf Abdul vs The State of Bombay and Hussenbhoy Laljee)and International Conventions like Convention for Elimination of all forms of Discriminationagainst Women (CEDAW, which India has ratified) has recognized the unequal status of womenand therefore made special provisions for women to address this inequality. Sections 498A, 304B,Dowry Prohibition Act (DPA), Protection of Women against Domestic Violence (PWDVA) are alllegislations to address the gendered nature of violence against women and also illustrate theposition of the government that the institutions of marriage and family are not insulated fromstate interventions, particularly where there is violence against women within such institutions.The courts have also upheld the validity of the special measures in legislation and executiveorders favoring women (e.g. in Laxman Ram Mane Vs. State of Maharashtra; Nripen Roy andothers v State of West Bengal; Satya Narayan Tiwari @ Jolly & Anr. Vs. State Of U.P; Inder RajMalik And Ors vs Sunita Malik; Gurbachan Singh vs Satpal Singh & Ors). It may be added thatthrough the Code of Criminal Procedure (CrPC) Amendment Bill 2010, there are restrictions nowon the police as far as arrests are concerned; the arrest can be done only after properinvestigation in the reported matter.Arguments against Making Section 498A IPC Compoundable, BailableMaking the offence compoundable implies that the complainant may withdraw her policecomplaint at any point of time. Marital violence is a crime and compounding it will send out amessage that the gravity of crime is less than that of other similar crimes. Further, women will beunder pressure to withdraw complaints and compromise by family, the other party, lawyers andcourts and may end up being far more vulnerable to cruelty and violence. A procedure forquashing 498A cases already exists in the High Court and can be utilized where women decide towithdraw the case. The law must remain non-compoundable to ensure that social pressure doesnot result in women being forced to withdraw cases. The non compoundability of the Act isa principled position it takes and important to the spirit in which it was enacted i.e.violence is non negotiable and unacceptable under any circumstances.Likewise, amending S.498A to make it bailable would reduce the gravity of the offence andremove the fear component in the society, particularly the perpetrators of matrimonial violence.By doing so, the minimal deterrent effect it has would get depreciated. This would dilute the verypurpose of introducing S.498AMaking the offence bailable will imply that the accused can be granted bail by the local policestation and will no longer require appealing before the Court for bail. Considering the lack ofintent and rampant malpractice that exists, making the offence bailable will open the doors formore corruption and will further block the access of women to justice. Section 498A shouldremain non bailable, requiring the accused to appear before a magistrate to obtain bail.Alleged unwarranted arrests can be addressed by developing and implementing better guidelinesfor arrests in such cases, and by expediting the disposal of bail applications in the trial court.
6. Why S.498A needs to remain Cognizable?In the present situation, when offences under S.498A are cognizable, hardly any arrests aremade by the police. Making the section non-cognizable will mean that it will be the responsibilityof the police to bring search warrant from the Courts and arrest the accused. A non cognizableoffence prevents the police from registering a FIR, investigating, or ordering an arrest withoutthe express permission or directions from the court. The fact that the law is cognizable allows thepolice to take immediate action on the complaint of a woman. Making the offence non-cognizablewill place a huge burden on women who will have to go through the judicial process to file aninitial complaint thus making it difficult, if not impossible for women for whose benefit this lawwas enacted, to use the law.Accountability of PoliceThe police cannot be made accountable for just one section of IPC; if they are to be madeaccountable they must be accountable in general. Nevertheless, with regards to 498A, fewsuggestions have been put forth to ensure greater accountability of police. These include: • Higher authorities in the police force visit local police stations on inspection visits without notice, and make sure that they interact with victims/survivors of VAW from time to time • In remote villages, enable police outposts with requisite infrastructure and necessary skills to deal with cases under 498A (and other cases of VAW) • A functional 24-Hours Helpline in all police stations based in the rural areas to offer help to victims/survivors of VAW; ensure that information of such Helpline reaches the remotest villages • Minimize the gap between the lodging of the FIR and the filing of the Charge-sheet • It is crucial to change the mindset of the Police; include regular orientation sessions at all levels of the police system and put in place monitoring tools that will evaluate the performance of the police officials with regards to dispensation of responsibilities • Assign a law professional with the investigating wing so that any procedural and technical lapse that weakens the prosecution could be checked at the earliest • Constitute a special grievance cell in each All Women Police Station (AWPS), which classifies the petitions from the women victims into matrimonial cruelty, matrimonial dispute, domestic violence and violence in public domain; establish support centres for women in AWPS where qualified social workers take up the cases • Since ‘matrimonial cruelty’ is an offence that takes place in private domain, the Supreme Court has held that the statement of Prime Witness (PW1), if strong enough to prove the guilt of the offence is suffice to punish the offender. Hence, the investigation agency should not stress for witnesses to corroborate the case • In the same way, there must be space for the parties of litigation for compromising during the investigation process after registering FIRs with the permission of superior authority of the police to avoid concluding the case as ‘mistake of facts’ • Encourage video recording of statements of complainants so that the victims need not repeatedly speak many of the sensitive issues related to the offences • Ensure effective coordination between the investigation agency and prosecution agency; make mandatory approval of application before filing charge-sheet to correct the limitations in the investigation and preparation of charge-sheet; enhance the veracity of the case in the trial proceedings • Prescribe time limits for filing of charge-sheet, framing charges, completion of trial proceedings, and pronouncement of order • Train the police to understand the objectives of S.498A, DPA and PWDV Act, the linkages between the three legislation, the application of different provisions and the role of police in implementing each of the legislation (as the case is built based on their investigation)Counseling of Parties and the Role of Police in this Process
7. Counseling is necessary and depends entirely on the requirements of the respective parties and itmust be done by sensitively trained counselors and non-partisan counselors. Police are nothaving professional skills in counseling. Women or couple who require counseling can bereferred to civil society organizations managing counseling centres; there are also Legal AidClinics managed by the Legal Cell Authority. The easy access of aggrieved women to the Talukaand District level Legal Service Authorities and/or credible NGOs with professional counselorsshould be ensured by appropriate measures.Importantly, enforcement of PWDV Act has created a space for counseling by trained and expertfamily counselors with the help of Protection Officers and High Court Mediation Cells. Hence, it isargued that the police after the first level of screening (e.g. if the woman is not interested towalk out of marriage, interested to bring husband to negotiation, etc) must forward all matters torespective Protection Officers. However, it should file the FIR where things have gone out ofreconciliation.It is also suggested that social workers/mediators with experience in counseling and conciliationskills and legal knowledge can be appointed in each All Women Police Station (AWPS) along withDowry Prohibition Officers; they could be part of the investigation team.Other Recommendations • Define the term “cruelty” better to reduce its ambiguity as it makes it difficult to prove physical and mental torture, resulting in the acquittal of the accused for lack of evidence • Grassroots organizations need to be involved more for successful implementation of S.498A • No excuse for parents of a girl as well, who say that they were forced to give dowry for customs, social coercion, fear of marriage being broken, loss of face in society, etc • Dowry is a social evil; there is a need for a revolutionary social reform to do away with this custom, which will be far more effective and long lasting than laws which can be misused by some section • Give shelter to women if they are involved in a case of 498 A • Develop a protocol at a national level for skilful police investigation of cases registered under S.498 A • Critically review judicial decisions of compounding/reconciliation in cases registered under S.498 A • Capacity building of the criminal justice system to be able to understand domestic violence as a crime and regard mental violence as a legitimate evidence to be treated at par with the physical violence. • Have a Crime against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A; equip the cell with gender sensitized men or women personnel and effective and free legal aid services, facilities such as shelter homes, medical facilities and counselors • If petitioner chooses legal recourse and prefers civil relief, refer her to the Protection Officers under the PWDVA; if she prefers criminal action, FIR should be filed, and referred to the Special Investigation Team comprising of police, legal experts and social workers; hold preliminary enquiry to screen frivolous complaints at this stageSection 498A together with its allied Code of Criminal Procedure (CrPC) provisions is not meant toact as an instrument of oppression and counter-harassment and become a tool of indiscreet andarbitrary actions on the part of the police.S.498A has a lofty social purpose; it must remain on the statute book to intervene whenever theoccasion arises. Its object and purpose cannot be stultified by overemphasizing its potentialityfor abuse or misuse. What perhaps needs to be looked at seriously is the proper
8. implementation of it and ensure that it is not misused. While steps must be taken toensure that the criminal justice system takes S.498A as seriously as other crimes, what is equallypertinent is the need for the enforcement agency personnel to be educated appropriately on theuse of this Section. If this is done properly, then the complaint that it is being misused andinnocent people are facing the brunt could be checked.Comparative ExperiencesAndhra PradeshGender Sensitization of Police Force Applauded (from K. Satyavathi, On behalf of BhumikaWomen’s Collective, Hyderabad, Andhra Pradesh)Bhumika in Andhra Pradesh constantly interacts with the Home Department (Police). It hasstarted giving trainings on gender sensitization to the Rakshak Police who do the work ofpatrolling on the roads, streets, lanes, etc. They are the first who identify the distressed women.So, Bhumika gives training to them, and also distributed a booklet which caters to the entireinformation on the support services and systems pertaining to vulnerable groups. This has beenappreciated and applauded by the Home Department. These types of trainings help in lookinginto the issues pertaining to women in a sensitized manner.MaharashtraSection 498A – A Preventive Measure to Curb DV (from Anagha Sarpotdar, Mumbai,Maharashtra)A research conducted by TISS namely Shades of Courage, focusing on 498A covered 69 policestations in the city of Mumbai, representing 1,397 women over a period of 8 years. It revealedthat 40 percent of the cases were registered after the death of the women. The study suggeststhat in such a situation, it can be said that S.498A is the only section in the IPC, which can beused as a preventive measure to curb domestic violence and save lives of women. Read moreMyth of Misuse of S.498A (From Flavia Agnes, Majlis, Mumbai, Maharashtra)Majlis in Mumbai has been working on the issue of women’s legal rights for the past 20 years. Ithas represented more than 50,000 women in litigation. Almost all its clients are victims ofdomestic violence. Less than 5% of these women have filed complaints under Section 498A ofthe Indian Penal Code. Further, during a spate of suicides by married middle class women in themonths of March-May, 2011 in Mumbai, Majlis found that in not a single instance, a complaintunder Section 498A was filed by the woman prior to her death. This reaffirms that the myth ofthe misuse is propagated by certain vested interests.West BengalFrom Dolon Ganguly, Jeevika Development Society, West BengalA Neighbourhood Support Group’s Experience shows that Section 498A is rarely usedBetween June 2009 and June 2011, Alor Disha, neighbourhood support group initiatied by NGO,Jeevika Development Society, dealt with 98 cases which could all have been registered ascomplaints under section 498A. However, only 20 cases were actually registered as complaintsout of which only 2 cases were filed. This shows S.498A is rarely used or is used only as the lastresort by victims/survivors after all their attempts at reconciliation have failed. In most cases,women lodge a General Diary and go beyond that only when the torture becomes unbearable.Comments from Police Officers Disheartening for VolunteersFirst hand experience of volunteers of Alor Disha, a neighbourhood support group, with the Policehas not been positive. Apparently they are at the receiving end, if they try to help lodge
9. complaints under S.498A. This is illustrated by various comments allegedly made by policeofficials such as ‘you have to pay the price of petrol if you want me to complete theinvestigation’; ‘it is okay if your husband has beaten you up’; ‘you can be booked under criminaloffence; have you forgotten that you gave dowry in your daughter’s marriage’. Read moreAttitudes Influence Low Conviction Rates Under S.498A (from Anuradha Kapoor,Swayam, Kolkata, West Bengal)A study conducted by Swayam, a NGO in Kolkata, reveals that a majority of judges identified thata woman would probably face the most serious problems in her life in marital home ranging fromtorture to death. 80% said that they would encourage their female relatives who asked foradvice in situations of domestic violence to ‘adjust’ and ‘compromise’ and put up with theviolence unless it reached ‘unbearable proportions’. 48% said domestic violence is a familymatter and 78% believe that women are somehow to blame for the violence inflicted on them.These attitudes are perhaps reflected in the low conviction rates in cases under Section 498A.Read moreMultiple StatesFrom Anuradha Kapoor, Swayam, Kolkata, West BengalStudies show that 40-50% of Indian Women Face Violence in their Homes but do notReport itVarious studies on Domestic Violence show that between 40-50% of Indian women face violencein their homes but do not report it. For example, aaccording to National Family Health Survey-3(NFHS-3): 40% of married Indian women face Domestic Violence of any form, physical, mentalor sexual; According to a Survey by International Clinical Epidemiology Network (INCLEN): 50%married Indian women face Domestic Violence in any of its forms. According to the NFHS-2 56%wives from 90,000 interviewed believed that their husband has the right to beat them. Accordingto a Study conducted by Swayam, with 1500 female students, 44% said they would forgive himor forget if their husband physically assaulted them.NCRB Statistics Draws Attention to Crimes against WomenAccording to the National Crime Records Bureau (NCRB), in the year 2009: 9675 women weremurdered due to dowry i.e. more than 34 women a day (Dowry Death – 8383; Murder due toDowry – 1267; Culpable Homicide due to dowry- 25); 2847 women committed suicide due todowry related demands and violence (i.e. almost 8 women a day). Thus, 12,522 women weremurdered/dead every year due to marital violence. Further, 89,546 women faced/ were torturedby their husband and his relatives in their own homes i.e. more than 245 women a day. Torturein the matrimonial home constituted 44 % of the total crimes committed against women.Related ResourcesRecommended DocumentationFrom Multiple SourcesIndian Penal CodeCriminal Code; India, 1860http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode.htm Main criminal code of India; intended to cover all substantive aspects of criminal law; references made to s.182, 209, 211 which can be invoked if there is misuse of any law including 498ASection 498 A Indian Penal Code (IPC)Criminal Law; India, 1983
10. Available at http://www.vakilno1.com/bareacts/indianpenalcode/s498a.htm Section states that whoever being the husband or relative of the husband of woman, subjects such woman to cruelty shall be punished with imprisonment, also liable to fineSection 304 B Indian Penal Code (IPC)Available at http://www.vakilno1.com/bareacts/indianpenalcode/S304B.htm Section deals with dowry deathCode of Criminal Procedure, 1973http://delhicourts.nic.in/CrPC.htm Main legislation on procedure for administration of substantive criminal law in IndiaCode of Criminal Procedure (CrPC) Amendment Act 2010Act; Government of India, 2010Available at http://www.voice4india.org/wp-content/uploads/2010/03/The-Code-of-Criminal-Procedure-Amendment-Bill-2010.pdf Aims to curb arbitrariness of police arrests, it fixes the responsibility and makes a police officer justify the arrest or letting go of an accused and keep a written record of itThe Constitution of India, 1949http://indiacode.nic.in/coiweb/coifiles/part.htm Provides Index-wise access to Constitution of IndiaArticle 14Fundamental Rights; The Constitution of India, 1949http://indiacode.nic.in/coiweb/coifiles/p03.htm States that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”Article 15(3)Fundamental Rights; The Constitution of India, 1949http://indiacode.nic.in/coiweb/coifiles/p03.htm Nothing in this article shall prevent the State from making any special provision for women and childrenArticle 21Fundamental Rights; The Constitution of India, 1949http://indiacode.nic.in/coiweb/coifiles/p03.htm Provides that every person has a right to life and personal libertyNational Family Health Survey (NFHS-3), 2005-2006http://www.nfhsindia.org/nfhs3.html; also viewhttp://hetv.org/india/nfhs/nfhs3/NFHS-3-Chapter-15-Domestic-Violence.pdf Provides data on key indicators and information on population, health and nutrition in India, NFHS-3 included a module of questions on domestic violenceProtection of Women from Domestic Violence Act (PWDVA)Act; Government of India, 2005Available at http://bellbajao.org/resources/faqs-on-the-law/ Provides protection and relief to women facing domestic violenceThe Dowry Prohibition Act (DPA)Act; Government of India, 1961
11. Available at http://www.vakilno1.com/bareacts/dowryprohibitionact/dowryprohibitionact.htm Prohibits the giving or taking of dowryConsultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code(from Vinita Aggarwal, Ministry of Women and Child, Government of India)Paper-cum-Questionnaire; by Law Commission of India,Available at http://lawcommissionofindia.nic.in/reports/cp-s498.doc Paper prepared to invite the views of the public/NGOs/institutions/Bar Associations etc. on the various points related to 498 A before preparing a report for the governmentFrom Anagha Sarpotdar, Mumbai, MaharashtraJourney from Violence to Crime: A Study of Domestic Violence in the City of MumbaiReport; by Anjali Dave and Gopika Solanki, Tata Institute of Social Sciences (TISS), Mumbai,2001Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/res04071102.pdf (PDF; Size: 1.38MB) The study reveals that women continue to struggle to get any institution recognize and act upon family violenceShades of Courage: Women and Indian Penal Code Section 498 AReport; Tata Institute of Social Sciences (TISS), Mumbai, 1999Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/res04071101.pdf (PDF; Size: 329 KB) Suggests S.498-A alone is insufficient to deal with domestic violence problems, pending a comprehensive legislation, scope of 498 A should not be curtailed in any mannerA Research study on the use and misuse of Section 498A of the Indian Penal CodeReport; by Centre for Social Research, 2005Available at http://www.csrindia.org/attachments/498A%20Seminar%20Report.pdf Based on information available from NGOs shows before registering a complaint under S.498 A at every stage, the woman is asked to reconcile and put up with the situationGender Equality and Women’s Empowerment in IndiaReport; National Family Health Survey (NFHS-3) 2005-06, Ministry of Health and Family Welfare,Government of India, August 2009Available at http://www.nfhsindia.org/a_subject_report_gender_for_website.pdf Presents key findings on gender equality and women‘s empowerment in IndiaLaxman Ram Mane Vs. State of Maharashtra on 7 October 2010Citation: 2010 STPL (Web) 942 SChttp://www.stpl-india.in/SCJFiles/2010_STPL(Web)_942_SC.pdf The Supreme Court upheld the conviction of the accused in 498A and 306 IPC stating that illicit relationship of a married man with another woman amounts to cruelty within the meaning of Section 498-ANripen Roy and others v State of West BengalCitation: 2010 Indlaw CAL 763To access click here; Registration required While upholding the conviction under section 304B and 498A, the Calcutta High court observed that a lesser sentence will send wrong signal to potential offender and will not yield the desired resultSatya Narayan Tiwari @ Jolly & Anr. Vs. State Of U.P. on 28 October, 2010Citation: 2010 AIR SCW 7144
12. http://indiankanoon.org/doc/1149159/ The Supreme Court expressed its anguish over the state of affairs prevailing in the Indian society as brought to fore by repeated incidents of bride-burning; it held that such crimes need to be dealt with an iron-handPreeti Gupta & Another Vs State of Jharkhand & Another (from Akmal Razvi, LegalAdvisor, Newzfirst.com, Bangalore, KarnatakaCriminal Appeal No. 1512 OF 2010 Arising out of SLP (Crl.) No.4684 of 2009http://www.nicepear.tw/gt/view/id-20807 The Court held that advocates must maintain its noble traditions, and treat every complaint under section 498-A as a basic human problem, and must make serious endeavor to help the parties in arriving at an amicable resolutionWithin the Four Walls: A profile of Domestic Violence (from Aasha Ramesh, Gender andDevelopment Consultant, Bangalore, Karnataka)Study; by Multiple Action Research Group, New Delhi, 1995For a copy, write to firstname.lastname@example.org Presents a profile of domestic violence based on interviews with victims, those helping them in dealing with the violence, also focuses on implementation of 498AFrom Anuradha Kapoor, Swayam, Kolkata, West BengalGender Equality and the Judicial System in West BengalReport; by Swayam, Kolkata, West Bengal, 2001For copies write to Swayam at email@example.com Examines the nature, extent of bias against women within the judicial system, suggests ways in which the processes of administering justice could become more gender sensitiveConvention on the Elimination of All Forms of Discrimination against Women(CEDAW)Convention; by Division for the Advancement of Women, United Nations; New York, USA; 1979Available at http://www.un.org/womenwatch/daw/cedaw/ International bill that outlines the rights of women, ratified by IndiaA Study on Section 498A in Tamil Nadu (from Bimla Chandrasekar, Ekta Resource Centre forWomen, Madurai)Study; by Ekta Resource Centre for Women, Madurai, 2011For copies, write to Bimla Chandrasekar at firstname.lastname@example.org Study finds the conviction rate under S.498A for the period from 2003-2008 in trial courts around 20%, in appellate courts it declined to 3.2%From Mitu Khurana, New DelhiWoman SC judge lists daughters as liabilityArticle; CNN-IBN, 28 December 2010Available at http://ibnlive.in.com/news/woman-sc-judge-lists-daughters-as-liability/138837-3.html A sitting judge of the Supreme Court listed her unmarried daughters as liabilities, triggering sharp reactions from women rights activistsThe Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of SexSelection) ActAct; Government of India, 1994Available at http://pndt.gov.in/index2.asp?slid=49&sublinkid=31 Act for prohibition of sex selection, for regulation of prenatal diagnostic techniques for the prevention of their misuse for sex determination leading to female feticide
13. From Flavia Agnes, Majlis, Mumbai, MaharashtraKrishan Lal And Ors. vs Union Of India (Uoi) And Ors on 4 May 1994Citation: 1994 CriLJ 3472http://www.indiankanoon.org/doc/1632112/ The Court upheld the constitutional validity of S.498A, and that S.498A is not arbitrary and it is not violative of Article 14 of the ConstitutionInder Raj Malik And Ors vs Sunita Malik on 30 January 1986Citation: 1986 CriLJ 1510, 1986 (2) Crimes 435, 1986 RLR 220http://www.indiankanoon.org/doc/322263/ The Court held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is crueltySushil Kumar Sharma vs Union of India (UOI) and Ors on 19 July 2005Citation: JT 2005 (6) SC 266http://www.498a.org/contents/judgements/SupremeCourtJudgement_LegalTerrorism.pdf Widely quoted in support of the amendment because the Court held that any misuse of this provision of law amounts to unleashing Legal Terrorism, mere possibility of abuse of a provision of law does not per se invalidate a legislationYusuf Abdul Aziz vs The State of Bombay and Husseinbhoy Laljee on 10 March 1954Equivalent citation: AIR 1954 SC 321; 1954 SCR 930http://www.advocatekhoj.com/library/judgments/index.php?go=1954/march/3.php Any law making special provisions under Article 15(3) cannot be challenged on the ground of contravention of Article 14.Gurbachan Singh vs Satpal Singh & Ors on 26 September, 1989Equivalent citation: 1990 AIR 209, 1989 SCR Supl. (1) 292http://www.indiankanoon.org/doc/21652/ The Supreme Court held that persistent ill-treatment of a woman for dowry amounted to abetment to suicideThe Indian Evidence ActAct; Government of India, 1872http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm Contains a set of rules and allied issues governing admissibility of any evidence in the Indian courts of law; reference to s.113 A of this Act made while arguing against misuse of s. 498A IPCState of the World Population - The Promise of Equality: Gender Equity, ReproductiveHealth and the Millennium Development GoalsReport; United Nations Population Fund (UNFPA), 2005Available at http://www.unfpa.org/swp/2005/english/ch1/index.htm Report observed that as many as 70 percent of married women in India between the ages of 15 and 49 are victims of beating, rape or coerced sexThe Hindu Succession Act, 1956 (from Mohan Rambha, Swami Vivekananda Institute ofTechnology, Secunderabad, Andhra Pradesh)Act; Government of India, 1956 amended in 2005http://www.vakilno1.com/bareacts/hindusuccessionact/hindusuccessionact.htm
14. Act lays down a uniform and comprehensive system of inheritance, following amendment daughters given equal rights with sons in coparcenary propertyFrom Malika Basu, Resource PersonMemorandum - Violence Against Women Group, Mumbai (A coalition of Women’sGroups and Organisations working on Violence Against Women in Mumbai)Memorandum; by Violence Against Women Group in Mumbai to the Chairperson,Committee on Petitions, The Council of States (Rajya Sabha), 24 December 2010Available at http://xa.yimg.com/kq/groups/15287701/1666137821/name/Memorandum.doc Memorandum written in response to the petition by Dr. Anupama Singh to the Rajya Sabha praying amendment to the Section 498 (A) of the Indian Penal Code of 1860The Controversial Section 498AArticle; by Pankaj Sharma, Zee Research Group, Zeenews.com, June 2011Available at http://zeenews.india.com/news/zee-exclusive/the-controversial-section-498a_714675.html Highlights the review ordered by the Home Ministry of S.498ARecommended Organizations and ProgrammesFrom Multiple SourcesMinistry of Women and Child Development (MWCD), Government of Indiahttp://wcd.nic.in/ Nodal Ministry for the advancement of women and children, formulates plans, policies; enacts/amends legislation; guides/coordinates efforts of organizations working in the field of Women and Child DevelopmentLaw Commission of India (LCI), Ministry of Law & Justice, Government of Indiahttp://lawcommissionofindia.nic.in/ Constituted by the Government and empowered to recommend legislative reforms with a view to clarify, consolidate, codify particular branches of law where the Government felt the necessity for it; reviewing the s. 498A IPCNational Crime Records Bureau, Ministry of Home Affairshttp://ncrb.nic.in/ Through Information Technology, Criminal Intelligence enables Indian Police to enforce the law, improve public service delivery; obtains, compiles, analyzes National Crime StatisticsJagori (from Aasha Ramesh, Gender and Development Consultant, Bangalore, Karnataka)B-114, Shivalik, Malviya Nagar, New Delhi - 110017, Delhi; Tel: 91-11-26691219, 91-11-26691220; Fax: 91-11-26691221; email@example.com; http://jagori.org/about-jagori Advocates for the rights of women, supports diverse groups of women facing domestic violence, caste violence, dealing with prejudice, exclusion and other forms of violenceFrom Anuradha Kapoor, Swayam, Kolkata, West BengalSwayam# 9/2B Deodar Street, Kolkata-700019, West Bengal, India; Tel: 91-33-24863367-68; Fax: 91-33-24863409; firstname.lastname@example.org; http://www.swayam.info/ A women’s rights organization committed to ending violence against women and childrenInternational Clinical Epidemiology Network (INCLEN)
15. # INCLEN INC. Office, Philadelphia, 1420 Walnut St, Suite 411, Philadelphia, PA 19102-4003USA; Tel: 1-215-735-8170; Fax: 1-215-735-1905; email@example.com;http://www.inclen.org/research/ws.html#contact A unique global network of clinical epidemiologists, social scientists, other health care professionals to strengthen national health care systems, improve health practicesSANLAAP# Central Office, 38B Mahanirban Road, Kolkata - 700 029, India; Tel:91-33-2464 9596,24653429; Fax: 91-33-2465 3395; firstname.lastname@example.org; http://www.sanlaapindia.org/ A developmental organization working towards addressing social imbalances, which present themselves as gender injustice and violence against women and childrenSociety for Womens Action and Training Initiatives (SWATI) (from Poonam Kathuria)# B-2, Sunshine Apartments, Dr S Radhakrishanan Marg, Ahmedabad 380015, Gujarat, India;Tel: 91-79-26305694; email@example.com; http://www.swati.org.in/women-and-health.html Works on issues related to the empowerment of women; raises issues related to violence against women with the communities, relevant authorities, and the StateEKTA - Resource Centre for Women (from Bimla Chandrasekar)# Bethel Nagar, Bible Bhavan Street, Bypass Road, Ponmeni, Madurai - 625 010, India; Tel: 91-452-2381309; Fax: 91-452–2382454; e-mail: firstname.lastname@example.org, email@example.com;http://www.ektamadurai.org Works with women, adolescents, youth and men towards realizing the goal of establishing a gender just society; recently did a study on 498A in Tamil NaduJeevika Development Society (from Dolon Ganguly)# Flat 1/A, South End View Building, Diamond Harbour Road, P.O. Joka, South 24-Parganas743512, West Bengal, India; Tel:91-33-24673060, 24533843; Fax: 91-33-24753077;firstname.lastname@example.org; http://jeevikadevelopmentsociety.org/ Committed to working towards furthering the rights of women, facilitated neighbourhood support group – Alor Disha, which provides legal support to victims/survivors of VAWMajlis (from Flavia Agnes)#A 2/4 Golden Valley, Kalina-Kurla Road, Kalina, Mumbai-400098, India; Tel: 91-22-26662394,Fax: 91-22-26668539; email@example.com; http://www.majlisbombay.org Works towards securing the rights of women and marginalized through litigation, pedagogy, campaigns, academic inputs and support to women lawyersRecommended Portals and Information BasesFrom Malika Basu, Resource PersonSupreme Court Judgments related to 498A (upto November 2005)Available at http://www.498a.org/contents/judgements/SupremeCourt_498a_Judgements.pdf Cites a number of cases related to 498A and judgments passed by the Hon’ble Supreme Court of IndiaWomen Corner- 498AGuidelines; Hyderabad City PolicyAvailable at http://www.hyderabadpolice.gov.in/womencorner/498a.htm Provides a set of points to help prevent abuse of 498 A and strengthen the complainants case498A.ORG
16. http://www.498a.org/ A website providing information on various aspects of 498A, with said focus on its misuseRelated Consolidated RepliesFor Comments: Study Report on Nyaya Panchayats and Domestic Violence Law, fromSubhash Mendhapurkar, SUTRA, Himachal Pradesh. Gender Community and DecentralizationCommunity. Issued 06 March 2008. Available atftp://ftp.solutionexchange.net.in/public/decn/cr/cr-se-decn-gen-06030801-public.pdf Comments on the recommendations of report covering issues of using Nyaya Panchayats in implementing Protection of Women from Domestic Violence Act (PWDVA)For Comments: Monitoring Indicators for Domestic Violence Act Implementation fromIndira Jaising, Lawyers Collective Women’s Rights Initiative, New Delhi. Gender Community.Issued 30 June 2007. Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/cr-se-gen-27040701-public.pdf Shares feedback on the questionnaires and suggests strategies for developing effective monitoring indicators for implementation of Domestic Violence ActDiscussion: Implementing the Protection of Women from Domestic Violence Act fromGouri Chowdhury, Action India, New Delhi. Gender Community, New Delhi. Gender Community.Issued 1 March 2007. Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/disc01-t01-fullsumm.pdf Discusses implementing the protection for women from domestic violence act through effective mechanisms, training and advocacyThe Protection from Domestic Violence Bill 2005 from Nidhi Prabha Tewari, SanketInformation and Research Agency, New Delhi. Gender Community. Issued 16 August 2005.Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/cr-se-gen-16080501-public.pdf Offers insights into issues to be considered by Parliament in making legal and social protections currently available to victims of domestic violence more effectiveResponses in FullAnagha Sarpotdar, Mumbai, MaharashtraI am glad that the Gender Community has put forth for discussion the issues surrounding sociolegal aspects of the Section 498 (A) IPC. I have been working on reported cases of domesticviolence since the year 1999. I was part of the research namely, Journey from Violence toCrime: A Study of Domestic Violence in the City of Mumbai done by the Tata Institute ofSocial Sciences (TISS), Mumbai. As a member of the women’s movement, I am presenting herebefore the Gender Community and the MWCD, the response of the women’s organizations andgroups to the proposed amendment to the Section 498 (A) IPC for making it non bailable andnon compoundable. This response is a joint representation by the women’s organizations/groupsin Mumbai. 1. Article 14 of the Indian Constitution provides equality to both men and women while in order to upgrade her status, the State Governments as per Article 15(3) is empowered to make any special provision for women and children. In addition, the courts have upheld the validity of the special measures in legislation and executive orders favoring women. Harassment of women for dowry has resulted in deaths in the form of both murders and suicides. Further Article 21 provides that every person has a right to life and personal liberty. In this regard, existence of a section such as 498 (A) IPC is of importance
17. and relevance as it challenges threat to women’s life and personal liberty that is caused by incidents of domestic violence. Back in 1961, Dowry Prohibition Act (DPA) was introduced and it penalized the act of giving and taking dowry. Unfortunately, the enactment of the DPA prevented neither the demand for dowry nor the act of giving it. The practice of dowry continued and its association with violence and death in the matrimonial home became more evident. During the early eighties, public protests against dowry deaths received wide media coverage. It is in this context that the IPC was further amended in the year 1983 to recognize cruelty to a married woman as an offence u/s 498 A. It is a result of a determined campaign and advocacy by the women’s movement to highlight the rising incidences of cruelty in marriages and dowry harassment. In 1988, within four years, however it became necessary to enact Section 304 B IPC, to deal with the death of a woman in the matrimonial home, as it concluded that Section 498 (A) IPC did not prevent women from dying. Section 498 (A) IPC primarily aimed to give justice to the women while she is still alive.2. The most recent National Family Health Survey (NFHS-3) conducted by the Ministry of Health and Family Welfare, Government of India (GOI) of the year 2005-6 recognizes ‘spousal violence’ and this study further reveals various forms of domestic violence which women and girls generally face at home. The NFHS–3 findings link is given here http://www.nfhsindia.org/a_subject_report_gender_for_website.pdf for your ready perusal to enable us to understand the gravity of offence. The NFHS–3 data tells us that only 2 percent of abused women have ever sought help from the police. This establishes the fact that intervention by police is the last resort in situations of domestic violence. In addition, National Crime Records Bureau (NCRB) data of 2008 available for your reference at http://ncrb.nic.in/ divulge the fact that Section 498 (A) IPC constitutes only for 3.9 percent of the total crimes registered for the Indian sub continent. Hence, we have research studies to show the extent and prevalence of domestic violence; and that these studies have concluded that only a small number of women actually use the law and that the allegation of widespread misuse of the provision is not backed by any research study.3. The statistics provided by the NCRB available at www.ncrb.nic.in for your reference for the year 2008 state that 8712 women died because of dowry deaths across India while 81,344 women registered cases for cruelty against husband and his family under Section 498 (A) IPC. It is a known fact that Section 498 (A) IPC came into existence as the Section 304 (B) pertaining to dowry death was falling short to address the menace of domestic violence while the women were still alive. It can be said that lives of the 81,344 women have been saved because of the existence of Section 498 (A) IPC that could have been deaths due to domestic violence otherwise. A research done on women and Section 498 (A) IPC by TISS namely, Shades of Courage, published in the year 1999 covering 69 police stations in the city of Mumbai, representing 1,397 women over a period of 8 years reveals that 40 percent of the cases were registered after the death of the women. In such a situation, it can be said that Section 498 (A) IPC is one of the prominent and only section in the IPC which can be used as a preventive measure to curb domestic violence and save lives of women.4. The NFHS – 3 of 2005-06 report namely, Gender Equality and Empowerment of Women available for your ref at http://www.nfhsindia.org/a_subject_report_gender_for_website.pdf in India reconfirms a well-known fact that gender inequality is deeply entrenched in the Indian society leading to disempowerment of women. The legal provisions related to women cannot be changed from being gender specific to gender neutral at the demand of few individuals who have no substantive data to prove that gender neutral laws are need of the day. In
18. India, marriage is seen as holy sacrament and family as a sacred institution, while domestic violence as private and personal matter. Our social culture has further made the women believe that she must silently bear the violence and not address in the court of law. However Section 498 (A) of IPC, the Protection of Women from Domestic violence Act, 2005 (PWDVA), DPA and other criminal law provisions have been enacted which clearly illustrates the position of the government that the institutions of marriage and family are not insulated from state interventions, particularly where there is violence against women within such institutions. Hence, it is in tune with our Constitution, as it obliges states to protect the marginalized sections of the society, such as women. However, an important point to be noted is that, through the Code of Criminal Procedure (CrPC) Amendment Bill 2010, there are restrictions on the police as far as arrests are concerned. Police officers will be responsible to record the reasons for either arresting or not arresting the accused persons after registration of the FIR which are open to the scrutiny of the court. Moreover, the arrest can be done only after proper investigation in the reported matter. The conviction rate in 498 (A) cases is also negligible compared to the other sections within the IPC. Infact the study done by TISS - ‘Journey from Violence to Crime’ (2001) brings out that women continue to struggle to get any institution recognize and act upon family violence. It further says that to violate a woman seems to be a norm and to criminalize violence is an aberration. Every attempt is made by the natal family to neutralize, minimize, and trivialize the experience faced by the daughter. It is observed that only when the violence becomes extreme and various attempts to stop it fail, is the last alternative to register a case under Section 498 (A) IPC. As per the study conducted by the Centre for Social Research (CSR) - available at http://www.csrindia.org/attachments/Research%20-%20498A.pdf, it tells us that information available from NGOs shows that before registering a complaint under Sec 498 (A) IPC at every stage (police station, Crimes against Women’s Cell and courts) the woman is asked to reconcile the matter and put up with the situation. Therefore, the contention by the petitioner the Section 498 (A) IPC is being grossly misused by the women and their parents is not a fact.5. It is pertinent to note that there is an argument that Sec 498 (A) IPC is used as medium by the women complainants to extort large amounts of money from the innocent matrimonial families and to deny custody of children to the fathers. We need to understand that it is a long legal battle and struggle for aggrieved women to seek their matrimonial rights through courts. Hence, it would be irrational to label women who are putting up a fight for their rights within marriage as being ‘manipulative’ and ‘scheming’. In the following two cases, the Hon’ble Supreme Court took cognizance, but only after the death of the women. Had these cases been dealt by the police and lower courts promptly, deaths could have been prevented! a) In Laxman Ram Mane v State of Maharashtra (2010 Indlaw SC 217) the Hon’ble Supreme Court upholding the conviction of the accused in 498A and 306, IPC said that, "We are of the opinion that an illicit relationship of a married man with another woman would clearly amount to cruelty within the meaning of Section 498-A. Even assuming for a moment that this did not amount to cruelty within the meaning of Section 498 (A) IPC it could still be used as a piece of evidence of harassment and misbehavior of the appellant towards the deceased. We have also perused the Panchnama and the site plan. We find it difficult to believe that a woman who had been living in the area would have gone to answer the call of nature at a place where the water was 9 ft. deep and at a confluence of two rivers. It appears to us, therefore, that this was a case of suicide on account of harassment meted out to the deceased.” b) In Nripen Roy and others v State of West Bengal, (2010 Indlaw CAL 763), while upholding the conviction under section 304B and 498A, the Calcutta High
19. court has said, "We do not wish to interfere in the matter as we find that a lesser sentence will send wrong signal to potential offender considering that such crimes are on rise and lesser sentence will not yield the desired result.” c) I would like draw attention of the Gender Community members to the fact that the Hon. Supreme Court of India in its judgment dated 28th Oct’ 2010 given in the case of Satya Narayan Tiwari vs. State of Uttar Pradesh has expressed serious concern and said that wife murder crimes are to be treated as the ‘rarest of rare’ ones and extreme punishment of death should be awarded to offenders. A Bench consisting of Justices Markandey Katju and T.S. Thakur states that although bride-burning or bride-hanging cases have become common in our country, in our opinion, the expression ‘rarest of rare’ does not mean that the act is uncommon; it means that the act is brutal and barbaric. Bride killing is certainly barbaric. Justice Katju said, “Crimes against women are not ordinary crimes committed in a fit of anger or for property; they are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment.”6. Section 498 (A) IPC is the only section in the IPC that recognizes domestic violence against women as a crime. It is our experience that it takes tremendous courage on the part of the women to approach the police for registration of a case under Section 498 (A) IPC. Any amendment to the section will defeat the courage and motivation of women who dare to break the barriers and speak up against violence. Similarly, it also dilutes the purpose and sprit of the section in totality. It will send a message to the society that the State is not looking at domestic violence as a crime and as an issue of serious concern. Making the Section 498 (A) IPC compoundable will only create further scope for the role of police in pressurizing women to reach compromises and withdraw complaints and thus make more room for louder accusations about the misuse of all laws meant to protect women and girls against domestic violence. It is therefore imperative to ensure that the Section 498 (A) IPC is maintained as it is and at the same time to effectively implement the Prevention of Domestic Violence Act, 2005 in the state of Maharashtra.7. There is also opposition to any proposed amendment in making Section 498 (A) IPC gender neutral. If we go by numbers and studies, it is evident from the statistics that women are harassed and tortured for numerous reasons at home. We have never heard that the husband or his relatives such as parents etc. being kept without food, given no clothes, not allowed to speak to neighbors, beaten up severely or burnt to death. Hence the petitioner’s say that indiscriminate registration of cases under Section 498 (A) IPC leads to ‘poor’ and ‘innocent’ members of the matrimonial family including senior citizens, teenage girls and/or boys and women being ‘targeted’ and ‘harassed’, husbands being alienated from their family, causing growth in elder abuse does not hold true and needs to be substantiated by either researches and/or statistics from any agencies having a credible status. The NCRB figures available at www.ncrb.nic.in for the year 2008 reveal that in 93.7% cases registered u/s 498 (A) IPC the charges of cruelty were admitted by the court. From this it is evident, the courts found substance in the reported matter.8. Section 498 (A) IPC deals with a crime that happens behind closed doors and within the four walls of a matrimonial home. Therefore, it is difficult to prove the violence. Because of the absence of the history of domestic violence due to apathy of the police to register the non-cognizable complaints and non-existence of witnesses to corroborate the violence it is seen that the conviction rate of the crimes registered under Section 498 (A) IPC is low compared to other crimes in the IPC. Further, in our experience, women may choose not to pursue the case due to pressure to reconcile with the husband, social stigma, divorce settlements, disillusionment with the criminal justice system or other
20. settlements between the families outside the courts. In totality, if all these cases which are not proved or proceedings are quashed at the initial stage are viewed as ‘false’ cases or cases where there is ‘misuse’ and the concerned women and/or their natal family members are punished or are compelled to pay compensation to the accused it will be a highly unjust move leading to re-victimization of the concerned individuals. 9. I would also like to draw attention of the Gender Community members and MWCD to the fact that several judgments have held that mere possibility of misuse can not render a provision invalid and on those grounds no law enacted by a competent legislature can be struck down. The Constitutional Validity of Sec 498 A has been challenged in a number of cases on various grounds. Hon’ble Supreme Court dismissing the challenge in Sushil Kumar Sharma Vs Union of India (2000 (6) ALD 217, 2000 (6) ALT 1, AIR 2005 SC 3100, (2005) 6 SCC 281) held that the mere possibility of misuse did not render a provision invalid. 10. In my view and many other organizations in Mumbai, we must unanimously and strongly oppose the petition suggesting and requesting any amendment to the Section 498 (A) IPC and request the following: • There should be no amendment to the Section 498 (A) IPC in any form or in any manner • A protocol should be developed at a National level for skilful police investigation of cases registered under Section 498 (A) IPC • Judicial decisions of compounding / reconciliation in cases registered under Section 498 (A) IPC should be critically reviewed • Capacity building of the Criminal Justice System to be able to understand domestic violence as a crime and regard mental violence as a legitimate evidence to be treated at par with the physical violence.JAGORI - Violence Intervention Team, New DelhiSection 498A was introduced in Indian Penal Code (IPC) in the year 1983 to protect marriedwomen from ‘cruelty’ by the husband or his relatives. It provides for punishment of imprisonmentup to three years and fine. An offence committed under Section 498A IPC is cognizable, non-compoundable, and non-bailable.Before 2005 there was no other law to handle criminal conduct of husband and in-laws except498A and lawyers and social activists took help of this law to: 1. Prove cruelty by in-laws and husband in matters of divorce 2. Prevent violence in matrimonial homes, and to create legal binding on husband and his relatives, in situations where women were not interested to walk out of marriage 3. Create pressure to bring husband to negotiation table in cases of desertion and violence and for purpose of safe reconciliation 4. Pressurize the husband and in laws to come for out of court settlement in dowry harassment cases 5. Get justice in cases of severe violence where a woman wants to punish her husband or in-laws where things have gone out of reconciliation stage and the woman has decided to walk out of the marriage 6. Get justice in dowry related violence where things have gone out of reconciliation stage.When in large number of cases under 498A, and also application of quashing of cases, startedbeing filed in the High Court, the High Court in many of its judgments, directed police to docounseling sessions with the couple to find out any chances of reconciliation before filing anF.I.R under 498 A except in heinous or grave matters. Based on these directions Delhi police aswell as police of other states started counseling process and no direct F.I.Rs were registeredsince then in matters of 498A. This process helped women with intentions from 1 to 4
21. mentioned above, but women with intention 5 and 6 were harassed and faced more violenceand rights violation.After enforcement of Protection of Women from Domestic Violence Act (PWDVA) in 2005,a provision was created for women to seek a civil remedy for their intentions from 1 to 4 andthis was meant to take load off from police and 498A cases of civil nature. PWDVA has created aspace for counseling by trained and expert family counselors with the help of Protection Officersand High Court Mediation Cells, so that now the role of the Police should be to lodge the FIRwhen women reach stage 5 or 6, and not engage in reconciliation and counseling process.According to us, police should stop counseling process for filing F.I.R under 498 A -rather after the first level of screening they should forward all matters under 1 to 4to respective Protection Officers and for matters under 5 and 6, they should registeran F.I.R immediately. This strategy should be used by lawyers, social organizationsand other service providers.498A should be handled as pure criminal law, non-bailable and non-compoundable toprovide justice in cases of cruelty by husband and his relatives. Done in this manner, it wouldreduce the number of quashed petitions, hostile witnesses and acquittals; it would reduce theburden of courts as well as police and would give relief to women fighting for their case in allcategories right from 1 to 6.Akmal Razvi, Legal Advisor, Newzfirst.com, Bangalore, KarnatakaI am an advocate practicing in the High Court of Karnataka. I have practical experience in dealingwith Section 498A of the Indian Penal Code (IPC). Anagha Sarpotdar in her response (posted 04July 2011) has given a comprehensive history and background of Section 498 A. I agree with heron most of the things.The menace of dowry is eating away the roots of our society. It is probably one of the biggestfactors for the skewed male female ratio in India which, I fear, will bring huge law and orderproblems for the country in the near future. Many women are definitely victims of this menaceand therefore the suggestion of deleting the provision of Section 498A is dangerous andshould be opposed. However the abuse of Section 498A is also a fact which we haveto reckon with.Husband and wife in the natural course have differences of opinion and fights. They almostalways make up after these fights and their relationship comes back to normal. However, thereare some marriages where there are inherent incompatibilities between the spouses on accountof personal traits (like stinginess, unhygienic habits, etc), cultural differences (like the status ofthe family elders, lack of freedom to the wife, eating habits and societal aspirations like statusetc). It becomes very clear after some counseling that that the marriage is unlikely to survive.When it is suggested to the parents of the wife that it is better to end the marriage, theyimmediately say that they have spent a fortune on the marriage and blame the husband and hisfamily for the unfortunate break up and then want to extract the entire money they have spenton the marriage by filing dowry harassment case. It is rather unfortunate that the Advocatesdraft a patently false complaint adding that there was an attempt to kill by the husbands’ family.Another sad practice is to include the names of all the brothers, their wives, and sisters of thehusband to blackmail and harass the husband and his relatives. The offense being non-bailable,the relatives are immediately put behind bars.The practice has been abused so much that the Honble Supreme Court in CRIMINAL APPEALNO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another
22. Versus State of Jharkhand & Another, Dalveer Bhandari, J. had to observe that theAdvocates who belong to a noble profession must maintain its noble traditions and should treatevery complaint under section 498-A as a basic human problem and must makeserious endeavor to help the parties in arriving at an amicable resolution of that human problem.The Court said that experience reveals that long and protracted criminal trials lead to rancor,acrimony and bitterness in the relationship amongst the parties. It is also a matter of commonknowledge that in cases filed by the complainant if the husband or the husbands relations had toremain in jail even for a few days, it ruins the chances of amicable settlement altogether. Theprocess of suffering is extremely long and painful.In a country where according to the Law commission of India the jails are overflowing because43% of the inmates should never have been there, if 3.9% of the crime being reported are undersection 498A and if it is translated into numbers, the figure would be huge.As a student of the legal system, let me point out that the argument of Anagha that 93% of thecases were admitted by the Court and therefore they are genuine is incorrect. There is noconcept of admitting a case in Criminal Courts. The Courts simply go by the charge sheets filedby the Police.The Criminal justice system in India is heavily supportive of the complainant. The Police routinelyfile charge sheets knowing fully well that there is no evidence to back the claim of thecomplainant. In an overwhelming majority of the cases, then begins the never ending saga - ofcourt hearings, adjournments, evidence, arguments, and ultimate acquittal. (In the midst of allthis the age of the wife has become such that her remarriage becomes extremely difficult).Therefore it is my suggestion that the section 498 A should be amended to define cruelty toinclude any kind of physical injury, which if backed by a certificate from a doctor should continueto be non bailable. Violence of all kinds especially against women is abominable. However, everyother kind of cruelty alleged should be made a bailable offence which should be compoundable.All other relief that a woman may need are anyway now made available under the Protection ofWomen from Domestic Violence Act, 2005.Aasha Ramesh, Gender and Development Consultant, Bangalore, KarnatakaIt is not surprising that the implementation of Sec 498A has come up for review and there aredemands from various quarters to amend this Section. I think there a couple of key points thatneed to be considered before any amendments are taken up. These are as follows: • This section was introduced after a major struggle of the womens movement that sought a strong effective legislation to check the increasing violence against women (VAW), particularly related to dowry as there were a spate of dowry murders that had occurred in the 1980s • The demand was for a non-bailable, cognisable statute and in keeping with this, Section 498A was introduced • More recently, one observes that laws introduced to check VAW are coming up for criticism on the grounds that they are not being effectively implemented, or that innocent people are facing the brunt of these legislations and therefore the need to review and amend, which I feel is a conspiracy to dilute these legislations.Multiple Action Research Group in Delhi had conducted a study looking at the implementationof Section 498A and this was done specifically looking at the functioning of the Crime AgainstWomen (CAW) cell located at Nanakpura. I was involved in this study and it might be useful for
23. you to look at the study, to understand how this Section is used and misused. It was part of astudy on Domestic Violence.What perhaps needs to be looked at very seriously is the proper implementation of this Act, andensure that it is not misused as often the enforcement agency personnel misguide thecomplainants and force them to file the case under this Section, even if the issue is relatedto child custody etc, as they tend to inform the complainant that only if you bring in a clause ofdowry harassment/torture, only then it will be addressed seriously. Therefore, there is need forthe enforcement agency personnel to be educated appropriately on the use of this Section. If thisis done properly, then the complaint that it is being misused and innocent people are facing thebrunt could be checked.Another key concern is that the enforcement agencys role is to take action, investigate andimplement law. Therefore they should not take on the role of counseling, which tends to happenmore often than not.Counseling is necessary and should depend entirely on the requirements of the respective partiesand should be done by sensitively trained counselors, not limited to have prescribedqualifications, as this alone does not make for sensitive and non-partisan counselors. (I wouldlike to mention here a very eminent and respected counselor, late Ms. Elizabeth Vatsayan.More counselors like her are needed. She had the perspective and the appropriate counseling forthe process, and ‘if law was the only recourse then so be it’ - that was her skill)Further, I fully endorse the points made by JAGORI team (response posted on 05 July 2011) andreiterate that 498A should be handled as pure criminal law, non-bailable and non-compoundable.Indrani Sinha, Sanlaap, Kolkata, West BengalIt is really encouraging to see that such an important subject is being discussed on the GenderCommunity Platform.We (Sanlaap) do not directly work on Violence Against Women (VAW) but work on ‘trafficking ofwomen and children’, which is violence too. We do get some cases and we do lot of training forWomens Organizations on the issue.On this current discussion, I would like to add few things as follows: • Implementation of the law is pretty bad • Most poor women do not have free legal aid to use in their cases, which are long drawn • Women do not get shelter if they involve in a case of 498 A • Police need more training on the law itself and how to provide help to the women and their families.Srabani Das, Task Force on Violence Against Women (TFVAW), Bhubaneswar, OrissaThe topic raised in the Gender Community on whether Section 498 A in IPC has to be madecompoundable and bailable is pertinent. The section applies to only those women who are legallymarried and who make use of this to protect their rights in the marital home. IPC makes this anon-compoundable, non-bailable and cognizable. I have been working with the womensmovement on this since 1999, especially with the Women Cell (functioning in the Office of theDeputy Commissioner of Police, Odisha).Till the Protection of Women from Domestic Violence (PWDV) Act came into force in 2005, thiswas the only alternative within the reach of women. In my understanding, a woman resorts tothis section not at the first instance of violence on her. She is a silent bearer of the atrocities till
24. the ‘explosion stage’. Even though she is aware that she is helpless if deserted or divorced, shefaces the consequences of parting with her children who are minors!!In Odisha, although a number of service delivery systems are in place such as the family court,Mahila and Sishu Desks in Police Stations, State Commission of Women and other homes run bythe government, over the past seven years, several women have been denied custodial rights ofbiological children by in-laws and have been forced out of the house. The basis is that all theseinstitutions resort to appeasement and restoration of conjugal rights than providing relief to theone, who is the victim/victimized.I strongly advocate that offenders under 498A should be taken to cognizance and punishedaccordingly.Anuradha Kapoor, Swayam, Kolkata, West BengalI am writing on behalf of Swayam, a women’s rights organization based in Kolkata, West Bengal,working on the issue of violence against women and domestic violence in particular for the past15 years. We strongly protest against the demands for amendments of Sec 498A to make itcompoundable, gender neutral, non-cognizable and bailable for the reasons outlined below:THE NEED FOR SECTION 498ASection 498A was introduced to address the violence that women faced within their homes whichoften resulted in their death. The context in which the law was introduced has not changed sincethe law was introduced. We still live in a society where the female child is still unwanted andthousands of female foetuses are aborted every year and the girl child is frequently discriminatedagainst in nutrition, educational opportunities, and health care. Further, violence against womenis rampant in all its forms and the home, a supposedly safe place for women is the site for untoldviolence on them. In these ‘safe homes’ • women are murdered for not bringing enough dowry • women commit suicide because of the violence inflicted on them • women are violated and 2 in 3 women face domestic violenceAccording to the National Crime Records Bureau (NCRB), in the year 2009: 9675 womenwere murdered due to dowry i.e. more than 34 women a day (Dowry Death – 8383; Murder dueto Dowry – 1267; Culpable Homicide due to dowry- 25); 2847 women committed suicide due todowry related demands and violence (i.e. almost 8 women a day). Thus, 12,522 women weremurdered/dead every year due to marital violence. Further, 89,546 women faced/ were torturedby their husband and his relatives in their own homes i.e. more than 245 women a day. Torturein the matrimonial home constituted 44 % of the total crimes committed against women.These are reported figures only. All the studies on Domestic Violence show that between 40-50% of Indian women face violence in their homes but do not report it. This is borne out by thefollowing statistics: • According to the National Family Health Survey-3 (NFHS-3) conducted in 2005-06: 40% of married Indian women face Domestic Violence of any form, physical, mental or sexual; 35% women, married or unmarried, between ages of 15-49 face Domestic Violence; 17 % never married women face Domestic Violence (figures do not include women above 49 years) • According to the INCLEN survey 2000: 50% married Indian women face Domestic Violence in any of its forms – physical, sexual, psychological and/or economic • According to the National Family Health Survey 2 conducted in 1998-99 in India: 56% wives from 90,000 interviewed believed that their husband has the right to beat them. • According to a Study conducted by Swayam in 2002, with 1500 female students, 44% said they would forgive him or forget it their husband physically assaulted them
25. It is clear from the above figures that although 40-50% of married Indian women face domesticviolence, only a tiny number actually report it and file a case under Section 498A, due to theshame and stigma attached to it as well as the fact that a large percentage believe that theirhusband has a right to beat them. Women accept violence as a part of their daily maritallife and do not even perceive it as a crime.Further, violence against women, particularly in the home has been increasing at an alarmingrate and over the five year period from 2000-2005 (NCRB data) there has been: • Over 23% increase in the number of women who were murdered or committed suicide for dowry • Over 53% increase in the number of women who faced violence by their husband and his relatives in their own homesHence, the need for Section 498A to protect women from Domestic Violence is moretoday than it was ever before.SOCIAL ATTITUDES TOWARDS DOMESTIC VIOLENCE - OUR EXPERIENCE OFWORKING ON DOMESTIC VIOLENCEOur experience shows that not only are violence against women rampant in our society, domesticviolence in particular is accepted and condoned by society. Everyone including the family, police,judiciary and society at large believe that women have to adjust and put up with some amount ofviolence. The definition of how much violence women should put up with is also very subjective.Families of women in situations of domestic violence also expect her to ‘adjust’, to ‘compromise’or to ‘forget’, as bringing the issue out in the open will bring ‘shame, disrepute and dishonour’upon her and the family.Given the pervasive belief in society that a woman’s place is in her husband’s home, parentsoften push women back into violent relationships rather than encouraging their daughters tobreak loose from violent matrimonial relationships. Besides, women themselves are brought up tobelieve that their final destiny is marriage. They are told that their true home is their husband’shome and once they are married no matter how their husband or his family treats them theyhave to make their marriage work. The responsibility of maintaining family honour and keepingthe family together is placed on women. Further, most women are dependent on theirhusband/families for their basic necessities and cannot take action when they are abusedbecause if they do so they will not have a roof over their heads nor the resources to look aftertheir children and themselves. They also stay on in abusive situations because they feel that theirchildren need their father. Further still, women are unaware of the laws to protect their rightsand do not have the knowledge or resources to access the law.Given this sort of socialization and dependence, when a woman faces domestic violence, she isashamed to talk about it and in majority of the cases wants to compromise. When women cometo us, they mainly want intervention to get the violence to stop and to ‘save’ their marriage. Ifthis does not happen then they want relief in the form of maintenance from the spouse/partner.It is only in a very small percentage of cases that they want to take police action. Even then,they usually want police intervention in the form of negotiation to end the violence or to get backtheir belongings or to record a diary for future. Only a tiny percentage of women register criminalcases under Sec 498A.In the rare case where women want to take action, they come up against numerous barriers.When women approach police stations, in most cases they are reluctant to register generaldiaries let alone FIR’s under Section 498A. These cases are not given importance as they areconsidered to be ‘family matters’ and investigation is slack. It is in very rare cases that family
26. members are actually arrested. In most of the cases, we have worked with the accused usuallyget bail before they are arrested. The attitude of the police is reflected in a study done onSection 498A by Sanlaap, Kolkata where police personnel when interviewed felt that ‘a little bit ofviolence happens in every home’ (so women should not complain) and one even remarked that498A should be used only when a woman faces physical injury at least once a month!In a study done by Swayam, Kolkata, on Gender Equality and the Judicial System in West Bengal,although a majority of judges identified that a woman would probably face the most seriousproblems in her life in marital home ranging from torture to death, 80% said that they wouldencourage their female relatives who asked for advice in situations of domestic violence to‘adjust’ and ‘compromise’ and put up with the violence unless it reached ‘unbearable proportions’;48% said domestic violence is a family matter; and 78% believe that women are somehow toblame for the violence inflicted on them. These attitudes are reflected in the lowconviction rates in cases under Section 498A.HIGH CHARGESHEET TO LOW CONVICTION RATESNCRB 2009 statistics which show that although charge sheets were filed in over 93% of 498Acases indicating that there was sufficient evidence to take the case forward, convictions occurredonly in 19.8% of cases clearly reflecting the reluctance of courts to convict due to attitudes thatcondone and accept marital violence as well as the difficulty of proving marital violence whichhappens between the four walls of a home. These attitudes also force women to compromisewith their husbands despite the violence they face and to withdraw cases under section 498Awhich they may have filed through quashing cases in the High Court.THE MYTH OF MISUSE - 498A IS HARDLY USEDThe demand for amendments to Section 498A stems from a general myth that Sec498A is misused. Our experience in working with women facing domestic violence clearlyshows that rather than Section 498A being misused, it is a Section that is ‘hardly used’ bywomen. Our social context, the extent of domestic violence and the actual use of 498A clearlysubstantiates this fact. As mentioned before, in all these years of work, we have found that anoverwhelming majority of women facing domestic violence who come to us, ask for our help tostop the violence and to reconcile with their husband. They do not take recourse to law until theyhave exhausted all other options to save their marriage. Even after this a large majority does notwant to approach the police. A very small percentage approach the police and even less end upfiling a case under Section 498A. If 56% women in our country feel that their husband has aright to beat them, the question of using Section 498A will not arise in their minds, let alonemisusing it.NFHS 3 showed that 40% of married Indian women face Domestic Violence of any form,physical, mental or sexual. However, if we take 40% of married Indian women in 2008 (ProjectedCensus figures) and see how many have used 498A (NCRB, 2008 data), we will find that only0.03% of women who face Domestic Violence actually file cases under Sec 498A. It is clear fromthese statistics that women hardly use section 498A. (2008 census: 23,42,96,508 marriedwomen, NFHS 2005-06 statistics show that 40% married women face violence= 93,71,86,032.However, NCRB 2008 shows only 81,344 cases reported. Also of these 81,344 cases of 498A,12,389 women were dead due to violence (dowry death/suicide))In a context where women are dependent on their husband and their family for their basicnecessities; support is not forthcoming from their families, society and state agencies, they donot have the means, ability or power to file cases under Section 498A let alone ‘false cases’.When the expectation of society from women is that they should put up with violence, it is hardlysurprising that the very act of registering a case of 498A is seen as misuse, and not a crime. Thisallegation about the misuse of Section 498A stems from these social attitudes.
27. ALLEGATIONS OF MISUSE NOT SUBSTANTIATEDAllegations of misuse are general statements which have no basis or proof and are based on aview that women in India enjoy great power and have the ability to influence the law machineryto immediately act on their behalf and arrest and victimize people without any evidence. Thispoints to a complete lack of understanding of women’s reality in our country today as well as theattitude of the police, towards violence against women.ALL LAWS OPEN TO MISUSEWe would like to highlight that all laws are open to misuse and 498A is no exception. Thepossibility of misuse of a law does not invalidate the law. We must keep in mind the reality andpowerlessness of the overwhelming majority of Indian women and the entire purpose andcontext in which this law has been enacted. There are existing provisions in the IPC for misuseof any law and if 498A is misused, these sections can be invoked: Section 182 makes givingfalse information to a public servant with the intent to cause injury to another person punishableby imprisonment; Section 209 & 211 respectively relate to making a false claim in court and afalse charge with the intent to injure punishable; Section 41A says that the police instead ofarresting the accused, will be obliged to issue him a notice of appearance for any offencepunishable with imprisonment up to seven years.In view of the fact that many laws are misused and only Section 498A, a law to protect womenfrom violence has been singled out for amendment clearly shows social attitudes towardsdomestic violence that accept and condone it. Further, if the law enforcing mechanism does itsjob properly, any misuse can be prevented.WHY GENDER SPECIFIC?Even today, women in India are by and large unequal in every sphere - dependent on men andtheir families for their existence; faced with increasing marital violence and social pressures tomaintain family no matter the violence; lose their lives daily due to marital violence; are unawareof laws to protect them; lack resources and support to pursue the law; and do not have thepower to negotiate or influence. Men on the other hand have exposure, knowledge and resourcesto access the law, and use their power to influence the system and get away with it. Making thelaw gender neutral under these circumstances will make women completely vulnerable and resultin men abusing women and filing cases before women can gather the courage and support to doso, and the purpose of the law will be totally defeated.Besides, the Indian State is responsible to ensure that all its citizens, especially the mosthistorically marginalized, are provided protection to live a life of dignity and respect. Article 15 ofthe Constitution of India and International Conventions like CEDAW (which India has ratified) hasrecognized the unequal status of women and therefore made special provisions for women toaddress this inequality. Section 498A, 304B, 306, PWDVA, 2005 are all legislations to address thegendered nature of violence against women.WHY COGNIZABLE?A non cognizable offence prevents the police from registering a FIR, investigating, or ordering anarrest without the express permission or directions from the court. The fact that the law iscognizable allows the police to take immediate action on the complaint of a woman and the issuecan be addressed without the leave of the court. As it is, women find it difficult to reach thePolice Station and file a complaint as the police are reluctant to take action under Sec 498A.Making the offence non-cognizable will place a huge burden on women who will have to gothrough the judicial process to file an initial complaint thus making it difficult if not impossible forwomen for whose benefit this law was enacted to use the law. If the law becomes non-
28. cognizable, there no action taken will be taken by the police and the law will become totallytoothless and remain on paper.WHY NON- COMPOUNDABLE?Making the offence compoundable implies that the complainant may withdraw her policecomplaint at any point of time. Law sets a standard for society to follow. Marital violence is acrime and compounding it will send out a message that the gravity of crime is less than that ofother similar crimes. Further, women will be under tremendous pressure to withdraw complaintsand compromise by family, the other party, lawyers and courts and will end up being far morevulnerable to cruelty and violence. A procedure for quashing 498A cases already exists in theHigh Court and we can utilize it where women decide to withdraw the case. The law must remainnon-compoundable to ensure that social pressure does not result in women being forced towithdraw cases.WHY NON-BAILABLE?Section 498A should remain non bailable, requiring the accused to appear before a magistrate toobtain bail. The assumption that the police arrest families as soon as the FIR is filed is definitelynot borne out of our experiences or that of other organizations working on this issue. In fact, wesee that a majority of men avoid arrest and get anticipatory bail through influence and withcorrupt police assistance and in a large number of cases, the accused husbands obtain bailalmost immediately. . Everyone who gets arrested under Section 498A feels that the arrest was‘unwarranted’ as they do not think that they have committed a crime as domestic violence hassuch social sanction. While there may be a few cases of ‘unwarranted arrest’, these are few andfar between as women do not have the power or resources to ensure the police acts in thismanner. The fact that the section is non-bailable gives it teeth. If the police are allowed to givebail then no one will ever be arrested and women’s interests will be completely compromised.CONCLUSIONIn view of the facts and context detailed above, the prevailing social attitudes and thewidespread violence against women in their homes, the need for Section 498A is more urgentthan ever before. Hence, Section 498A must remain gender specific, non-bailable,cognizable and non-compoundable. The provision is the only Section which acts as apreventive mechanism for marital violence.We also feel that steps must be taken to ensure that the criminal justice system takes Section498A as seriously as other crimes. The police must undergo gender sensitisation trainings as wellas technical training to ensure that the investigations they conduct and charge sheets they fileare done in a manner that enables convictions under the Section. The term “cruelty” should alsobe defined better to reduce its ambiguity as it makes it difficult to prove physical and mentaltorture, resulting in the acquittal of the accused for lack of evidence. Further, trails should bemade time bound to prevent harassment to all parties.Suman Sinha, Consultant, New DelhiWhat are the reasons for low convictions and high pendency in Section 498A cases? • Perhaps this Act uses the same judicial system which many other Acts, IPC offences and civil cases use. The reason for low conviction and high pendency in section 498 A cases will then not be surprising. Low conviction and high pendency is the rule in our judicial system. • The question then comes how much do we want to change; whether we want a change with respect to the low conviction and high pendency of section 498A or we want change in overall low conviction and high pendency. (If we choose former it shows we continue to live in our ‘silos’ and do not want any meaningful change. If we choose the latter we must be prepared to invest much more time and infrastructure) In the former case, we
29. need a dedicated tribunal and for the latter, a reform of the whole judicial system with a time bound trial. There are many examples in other countries which have higher conviction and low pendency (which could easily be adapted if we want a change)Do you think that Section 498A IPC should be made compoundable? What kind ofimpact is this likely to have on women’s access to justice? • This sort of ‘minor cosmetic change’ would not have much effect rather it would worsen the situation as the offending party would get bail from the police station itself and the fear of law will go just like in the case of traffic offence, which most of us commit as it causes only a small monetary loss (that too if you are caught!!)Do you think making the offence bailable would address the problem of allegedlyunwarranted arrests while also safeguarding the woman’s (complainant’s) interests? • If you reform the judicial system the problem will be solved. Making the offence bailable will remove the fear factor which has resulted in decrease in the number of cases of such offences (number of cases may have increased as per NCRB due to increased reporting from increased awareness about this section). It would not safeguard a women’s interest. Alleged unwarranted arrests can be addressed by developing and implementing better guidelines for arrests in such cases and by expediting the disposal of bail applications in the trial court.What are the measures you would suggest to ensure greater accountability of thepolice? • Police reforms. The problem is deeper and large; any superficial dressing will not heal or help. Police cannot be made accountable for just one section of IPC. If they are to be made accountable they would be accountable in general.Who should be conducting counseling of parties and what should be the role of policein this process? Some States/Union Territories (UTs) have set up Crime againstWomen Cells/Mahila desks, which deal with complaints under Section 498A IPC.What is the current practice of these Cells/Mahila desks in dealing with cases underSection 498A IPC? In your opinion, should they be involved in conciliation/counselingof parties? Should this model be replicated? • Such Cells should be involved. If fact, they should be made more friendly with availability of trained counselors and sensitive staff. This will remove many of the alleged apprehensions and cynicism of the Section and its implementation.Poonam Kathuria, Society for womens Action and Training Initiatives (SWATI),GujaratI am writing to you on behalf of Society for Womens Action and Training Initiatives(SWATI), which is based in Gujarat. Violence against Women (VAW) is a primary objective ofSWATI and we work to combating it at several levels. We have been working towards effectiveimplementation of laws to combat VAW and our response to your query follows below:Section 498A and other legislative provisions like Protection of Women from Domestic ViolenceAct have been specifically enacted to protect a particularly vulnerable section of the society -women, who have been the victims of cruelty and harassment. The social purpose behind it willbe lost if the rigor of the provision is diluted. The abuse or misuse of law is not peculiar to thisprovision. The misuse can however be curtailed within the existing framework of law.A year or so back, the Ministry of Home Affairs issued ‘advisories’ to State Governments to avoidunnecessary arrests and to strictly observe the procedures laid down in the law governingarrests. This is absolutely wrong and in fact giving a signal to the police to undermine the
30. provisions of the Act. We must remember that a married woman ventures to go to the policestation to make a complaint against her husband and other close relations only out of despairand being left with no other remedy against cruelty and harassment. In such a situation, theexisting law should be allowed to take its own course rather than over-reacting to the misuse insome cases.It is important that action is taken by police as once the offending family members get the scentof the complaint, there may be further torture of the complainant and her life and liberty may beendangered if the police do not act swiftly and sternly. It is contended that in the wake of everincreasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section498-A is not warranted. Secondly, during the long–drawn process of mediation also, sheis vulnerable to threats and torture. Such situations too need to be taken care of.The non compoundability of Act is a principled position it takes and important to the spirit inwhich it was enacted i.e. violence is non negotiable and unacceptable under any circumstances.If the act is made compoundable there is a very real possibility of women being pressurized toenter into an unfair compromise and further the deterrent effect of the provision will be lost.We are of the view that the Section together with its allied Code of Criminal Procedure (CrPC)provisions shall not act as an instrument of oppression and counter-harassment and become atool of indiscreet and arbitrary actions on the part of the police. The fact that Section 498A dealswith a family problem and a situation of marital discord, unlike the other crimes against society atlarge, cannot be forgotten. It does not however mean that the police should not appreciate thegrievance of the complainant woman with empathy and understanding or that the police shouldplay a passive role.S.498A has a lofty social purpose and it should remain on the Statute book to intervenewhenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing itspotentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take awayits teeth wholesale.While we are appreciative of the need to discourage unjustified and frivolous complaints and thescourge of over-implication, we are against any measures that dilute the efficacy of S.498A to theextent of defeating its purpose especially having regard to the fact that atrocities against womenare on the increase. A balanced and holistic view has to be taken on weighing the pros andcons.In fact it would be important to create awareness of the provisions among women and society atlarge. More than the women, the men should be apprised of the penal provisions of lawprotecting the women against harassment at home. The easy access of aggrieved women to theTaluka and District level Legal Service Authorities and/or credible NGOs with professionalcounselors should be ensured by appropriate measures.We are of the view that the lawyers whom the aggrieved women or their relations approach inthe first instance should act with a clear sense of responsibility and objectivity and give suitableadvice consistent with the real problem diagnosed. Exaggerated and tutored versions andunnecessary implication of husband’s relations should be scrupulously avoided. The correctadvice of the legal professionals and the sensitivity of the police officials dealing with the casesare very important, and if these are in place, undoubtedly, the law will not take a deviouscourse. Unfortunately, there is a strong feeling that some lawyers and police personnel havefailed to act and approach the problem in a manner morally and legally expected of them.
31. In the context of the issues under consideration, a reference to the provisions of Protection ofWomen from Domestic Violence (PWDV) Act, 2005 which is an allied and complementary law, isrelevant. PWDV Act was enacted with a view to provide for more effective protection of rightsof women who are victims of violence of any kind occurring within the family. Those rights areessentially of civil nature with a mix of penal provisions. Section 3 of the Act defines domesticviolence in very wide terms. It encompasses the situations set out in the definition of‘cruelty’ under Section 498A.An interplay of the provisions of this Act and the proceedings under S.498A assumes somerelevance on two aspects: (1) Seeking Magistrate’s expeditious intervention by way of passing aprotective interim order to prevent secondary victimization of a complainant who has lodged FIRunder S.498A (2) Paving the way for the process of counseling under the supervision ofMagistrate at the earliest opportunity.On the issue of high pendency and low conviction, it can be tackled by adding a legislativeprovision of time bound trial. It is desirable to have a Crime against Women Cell (CWC) in everydistrict to deal exclusively with the crimes such as S.498A. The cell should be equipped bygender sensitized men or women personnel and effective and free legal aid services, facilitiessuch as shelter homes, medical facilities and counselors.Finally, we would like to reiterate that Section 498A must remain gender specific, non-bailable, cognizable and non-compoundable.Bimla Chandrasekar, EKTA Resource Centre for women, Madurai, Tamil NaduThank you for initiating this interactive process via the Gender Community knowledgeplatform. Ekta Resource Centre for Women has released a study on 498A in Tamil Nadu; itwas coordinated by our researcher, Ms Phavalam. On 06 July 2011, we organized a consultationin Madurai which was attended by advocates, Ms Gomathi and Ms Deivakani; Ms Meenakshi(Lady Doak College), Ms Palaniammal (Peoples Watch), Ms Vashitha (a Student Volunteer). MsPhavalam initiated the discussion based on your queries and the process was facilitated by me asthe Director of EKTA. Here is our response to your queries.As per our study, the average conviction rate for the offence under Sec 498A IPC for the periodfrom 2003 to 2008 in the Trial Courts was 20 per cent and the final conviction rate in AppellateCourts declined to 3.2 per cent. The Reasons for Low Convictions are as follows: • Poor knowledge about the various laws on women’s rights among the police is one of the crucial factors. Cruelty within marriage need not always be associated with dowry harassment. Even physical and mental cruelty can invoke S.498A. But in many complaints, the litigants are advised by the police to include dowry component to strengthen the case. These charges cannot be established before the court beyond reasonable doubt, leading to acquittal • This is compounded by lack of investigation skills ,commitment and insensitiveness to the seriousness of this gender violence, corruption; and failure to build the case, paves way for the acquittal of the cases • Due to heavy work load, the investigating agency generally takes long time to complete the investigation. With the passage of time, vital evidences for investigation are lost. Delay in investigation also provides an opportunity to the accused to tamper evidences to create false defense • When the prosecution fails to establish the guilt against any of the offenders, it will give the impression that the case itself is filed on false charges (which weakens the case of the prosecution against the real accused, and the real culprits go scot-free) • Many a time, investigations are being done by the investigation officers mechanically. They hardly make spot visits; prepare the statements of the witnesses, based on the
32. complaint petition and FIR. The real statements of the witnesses hardly find its place in the investigation. The investigating agency fails to collect sufficient evidences to sustain the case. • During the process of investigation, the I/O may be transferred to other stations and the subsequent officer may not show the same interest in that case, which affects the quality of the investigation and there are high chances for acquittal • Delay in investigation not only frustrates the victim but also provides an opportunity for the accused to use his clout in influencing the investigation; longer trial proceedings and delay in delivery of justice dampens the spirit of the complainants and the witnesses • Till recently the approval of the prosecution officer before filing the charge sheet was the norm adopted by I/Os. But of late, as per the Supreme Court (SC) direction, the investigating officer (I/O) is empowered to submit the charge-sheets directly in the court after getting the endorsement from their superior officers; the approval of prosecution officers is not needed. If there is better coordination between the investigation agency and prosecution agency, the chances for limitations in the charge-sheet preparation and final report submission could have been corrected and case could be strengthened • The complainants do not make consistent follow-up to see that the investigation is moving in the right direction • There are judicial officers who are not for convicting the accused. Some are prejudiced and pre-determined and conducting trial with the pre-conceived view that women are misusing S.498A. They fail to uphold their professional ethics and their duty and responsibility. They fail to provide justice to the victims and victimizing the victims by letting the accused scot-free. The Justice Delivery System operates, depending upon the mind set, attitude and conviction of the individual judicial officers • On many occasions, the SC held that the statement of Prime Witness (PW1) - the victim alone, if strong enough to prove the guilt of the offence is enough to punish the offender. However, most judicial officers insist that the witnesses should corroborate the PW1’s statements • Generally, defense counsel fails to cross-examine the witness on the same day of deposing before the Court thus unnecessarily causing hardships to the witness as he/she has to repeatedly present before the court for no fault of theirs (the witness may confuse her/his own statement due to time lapse) • Norms are fixed for the judicial officers and they have to complete the norms prescribed for each month. All the newly appointed judicial officers are anxious and tensed in completing the norm. Their focus is only on quantity rather than quality and ultimately, justice is evasive to the victims • Filing an appeal petition against the order of acquittal is a long and tedious process. Hence, the prosecution agency could not afford sufficient time to prepare opinion for all the acquittal cases, even if it is a ‘fit case’ to move for appeal.Views on Making S.498A Compoundable • By making it compoundable, much pressure will be exercised on the already victimized women to enter into compromise.Views on Making S.498A Bailable • Incidents of matrimonial cruelty is on increase and by amending it to make it bailable would reduce the gravity of the offence and remove the fear component in the society, particularly the perpetrators of matrimonial violence. By doing so, the minimal deterrent effect it has would get depreciated. This would dilute the very purpose of introducing S.498A • Further, Supreme Court has instructed the Sessions Courts and the High Courts to grant anticipatory bail anytime as long as the accused has not been arrested for an offence and not to deny bail. Even if the alleged accused are arrested and remanded, on the same day the accused file bail petitions and they get bail!
33. Suggested Measures to Ensure Greater Accountability of Police • Police as the first referral point need to have adequate knowledge about the Protection of Women from Domestic Violence (PWDV) Act, S.498A as well as provisions on the Dowry Prohibition; the police can not be confused and need to record the real case. They need to collect and present evidences in proof of violation before the court in the delivery of justice. The case is built based on their investigation. Their role, commitment, sincerity, expertise and justness determine the outcome of the case. To ensure greater accountability of Police, the following model is prescribed • As a measure to strengthen the investigating machinery and expedite the process of investigation and enhance the quality of the investigation by capacitating their skill, the investigating wing should be separated from law and order wing • Police should be properly trained to carry out the investigation in a professional and scientific manner, avoiding technical and procedural errors which favor the acquittal of the offenders • The investigating wing should have a law professional so that a procedural and technical lapse that weakens the prosecution could be checked at the earliest. • Social Workers/mediators with experience in counseling and conciliation skills and legal knowledge should be appointed in each All Women Police Station (AWPS) along with Dowry Prohibition Officers and they should be part of the investigation team • The investigation team should be supervised by higher officials and be provided with necessary infrastructure, adequate personnel and logistics to carry out their role • Since ‘matrimonial cruelty’ is an offence that takes place in private domain, the Supreme Court has held that the statement of Prime Witness (PW1), if strong enough to prove the guilt of the offence is suffice to punish the offender. Hence, the investigation agency should not stress for witnesses to corroborate the case • In the same way, there must be space for the parties of litigation for compromising themselves during the investigation process after registering FIRs with the permission of Superior Authority of the Police to avoid concluding the case as mistake of facts • Video recording of statements of complainants should be encouraged, so that the victims need not repeatedly speak many of the sensitive issues related to the offences • The investigating agency should come forward to request the court to record the statement of important witnesses during investigation to strengthen their case and to avoid being tampered • Appearance of Investigation Officers should be made compulsory during the trial proceedings to identify the lapses in the investigation process • Effective coordination between the investigation agency and prosecution agency should be ensured and the approval of application before filing charge-sheet should be made mandatory to correct the limitations in the investigation and preparation of charge-sheet and to enhance the veracity of the case in the trial proceedings • Time limits should be prescribed for filing of charge-sheet, framing charges, completion of trial proceedings and pronouncement of order and the prescribed time limits should be strictly followed • The superior authority of the police, the Home Department are concerned about the number of cases registered, charge-sheeted and pending investigation, cases completed trial etc; however, they are not showing concern about the quality of the investigation, the number of cases ended in acquittal, category of offence ended in heavy acquittal, reasons for the high acquittal etc. In the review meetings of the police, the reasons for high acquittal should be discussed and critically analyzed. • The police should be trained to understand the objectives of S.498A, Dowry Prohibition Act and PWDV Act, the linkages between the three legislation, the application of different provisions and the role of police in implementing each of the legislation
34. Suggested Model • Constitute a special grievance cell in each All Women Police Station (AWPS) • On receiving petitions from the women victims, this special cell should classify the petitions into matrimonial cruelty, matrimonial dispute, domestic violence and violence in public domain • The petitioners seeking the AWPSs with complaint petition that has ingredient for cognizable offences to invoke S.498A/Dowry Prohibition Act/ related Legal Provisions should be oriented on various options such as legal recourses, counseling/conciliation intervention. (If the petitioner prefers counseling/conciliation options, she has to be referred to the counseling team attached to AWPS) • Special skills are needed to provide counseling / conciliation service. Due to paucity of time and profession skills, the police should be restricted from counseling the parties of litigation • If petitioner chooses legal recourse and prefers civil relief, she has to be referred to the Protection Officers under the PWDVA; ff she prefers criminal action, FIR should be filed, and referred to the Special Investigation Team comprising of police, legal experts and social workers • Preliminary enquiry should be held to screen the frivolous complaints only at this stageSanjay Agarwal, SATYA, RajasthanWe would like to bring to your notice that SATYA on 22 February 2011, organized a seminar inJaipur/Rajasthan on the said S.498A. It was conducted jointly with the Law Commission of Indiaand was presided over by Justice Shiv Kumar Sharma. Present at this review of S.498A IPC (andHonor Killings), were members of other NGOs, social activists and other concernedindividuals/organizations. Section 498-A was introduced in 2006 to prevent women from beingabused by their husbands or husband’s relatives, particularly in cases related to the dowry.However, it has come to the attention of many that this law is being abused and women areaccusing their husbands of violence even though it is unsubstantiated. The police often find littleevidence for such claims yet arrest the husband on the assumption that he is guilty.We would like to put the following details before you based on the specific queriesthat you have raised.Our seminar focused on whether the punishment for such claims should be less severe and whatcould be offered as an alternative. On matters of domestic violence, it is often unclear as towhether such claims have any grounds as there are few unbiased witnesses to testify; relativeswho perhaps know something, take sides in such cases and are themselves unreliable as asource of evidence. Justice Shiv Kumar Sharma said that "Instances of cruelty including cases ofdowry harassment are presently non-bailable and non-compoundable offences under S.498A IPCand there has been a crying demand from various corners including recent orders of SupremeCourt which suggested an amendment in the provision. The meeting has been held with variousstakeholders…and the coordination officer will now compile the data for the commission."This seminar was particularly interesting since we often hear of incidents of bride burning anddowry deaths and blame the husband, but cases of abuse towards the husband on the part ofthe wife or her relatives are never documented. Such inequality on the husband could be due tomany things: gender bias-laws that do not recognize cruelty and domestic violence against men,complaints to police of abuse are rarely registered, the presumption of guilt and a corrupt policeforce who carry out little investigation before arresting. Some male activist groups say that theabuse is by educated and independently minded women who falsify documents in order to gettheir husbands to be imprisoned. I feel that such abuse needs to be addressed directly. Thismight mean introducing a new law especially for husbands so that they have the same protectionfrom the law as their spouses, or it may mean making the current law broader so that it
35. encompasses both men and women in its protection. I also think that any person charged withsuch an offence should not receive the current punishment which is extremely difficult to avoid,claims against a person cannot be withdrawn and therefore the frequent result is imprisonment.This has a disastrous effect on the life of an individual particularly if the claims then turn out tobe false! (In fact in England, there are laws to protect both men and women in such cases ofdomestic violence). In August 2010, the Supreme Court of India asked the government toamend the dowry laws to prevent misuse. (All facts must be gathered, before any change isimplemented).Satish Girija, Nav Bharat Jagriti Kendra, Hazaribag, JharkhandI am responding following consultation with our colleagues and practicing advocates. It is truethe essence of 498A IPC is to provide a shield to women who are tortured by husband orrelatives but now it has become a weapon to implicate the innocent people and it has been seenthat entire family including distant relatives are accused; (it is reason of low conviction too aswho constitutes ‘real culprits’ – gets enlarged).It has been seen that due to illiteracy even for trifle matter, a woman knocks the door of thecourt which ends in compromise but the accused persons face lot of troubles during trial. I feelthat that provision of law is misused and subject to abuse and the most important reason isilliteracy as well as incompatible marriage. The tendency of cases can be least if counselingcentre of Civil Courts works in better way and NGOs do their work with full responsibility (and theproblems get sort out in village level or at primary stage of conflict). Further, • I think that the section 498-A should be made ‘compoundable’ since if both the parties (i.e. informant and accused persons) come on the stage of compromise then it should be solved immediately. It has been seen that in case of dissolution of marriage through mutual consent, the informant does not come to court to depose before the Court on the point of compromise, which creates legal impediments for delivering the judgment • I think that this section should not be ‘bailable’ otherwise it would encourage the people for committing the offence. It is a safeguard and weapon for the women, which creates fear to commit offence against women. However, there should be a liberty to women to reach a compromise with the person accused • I think police should see the matter as family matter; if anyone is lodged into jail then the entire family becomes enemy of the girl. So police should show its perseverance and play an important role to solve the issue. I think they should avoid immediate arrest of any person. In such type of cases experienced I.O. should be appointed and arrest should be made after first round of counseling and proper enquiry • That counseling centers of Civil Courts are playing important roles. It has been seen that many times cases are lodged at the instance of parents or guardian but when the matter comes before the conciliators then it is solved immediately. I think that such types of centers should be available in every Panchayat.Bappaditya Mukherjee, Prantakatha, Kolkata, West BengalMain Reason of Low Conviction and High PendencyPrimarily, be it the IO at police station or the Public Prosecutor at court or even the Judges, allstill share one common patriarchal believe that "the law is giving more space for women and isagainst men" - even if the position holders are women then also in most of the cases they sharethe "male gaze" - thus in every step the case gets a cold shoulder to set back. In most of thecases, the victim and the fighter in her favor get barricaded with this unjust gender view point.This keeps delaying and at the end crushing the case! At actual level there might be thousandmanifestations of this, but all stems from that particular view point - and I believe like in case ofIPC 377 or some Anti AIDS Discriminatory laws, 498A also requires cultural backup.If it Becomes Bailable
36. It not only will again put women to further disadvantageous situation, but at the same time "themale gaze" will proclaim this to be a moral win! That further will push the whole movement ofgender justice not only this law, into a back foot! More than its execution features, this changewill push back the moral of gender justice movements. As IPC 377 has never been a deterrent topedophilics rather a law against gender justice - the same will happen in this case whereunwarranted arrests will not stop since that is a criminal psyche programme, instead it will takeaway the small balance that the law has been able to provide!Make Police AccountableThe most important to this cause will be supporting those police personnel with supportive bentof mind through putting them into this work and not to transfer him/her like in any other duties.Else never the morale of dedicated police personnel could be kept up. It is unfortunate but truethat in our country police still has not been able to come out from its colonial mindset and alsoprobably "State" does not want that for obvious vested interests! Given that draw back, policecounseling just adds on to the humiliation of the weaker negotiator. Police in reality is only foruse of force and brutality - in most of the cases barring few exceptions. Thus a soft tool likecounseling is mostly going to be abused in the hands of police since they are in general mostlybeen made up in a particular way to which we all are familiar! Instead this part should be left tothe Civil Society Organizations having professional and practical experience into this.These are my views given the regular fight we are into from a house to a court!Subhalaxmi Mohanty, DelhiThis is one of the pertinent issues being discussed on the Gender Community. It is not the firsttime that section 498A of IPC has evoked discourse. Informally it has remained a topic ofdialogue for many. Its necessity has many times been questioned.For around four years, I was closely associated with these issues of women. I was looking after awomen cell functioning in the premises of the then Police Headquarter of Khurda district inOrissa. I have witnessed the suffering of women who come to us for redress. Hardly any womanwants to drag her in-laws to the clutches of law. As we know very well that the very socializationprocess is deep rooted within us and at any cost we all always try to save a family/marriage.Unless it just crosses the limit we usually do prefer to negotiate with any sort of violence we maygo through. Family and society at large most often take the front seat for many women.Yes, now the trend starts reversing but the change is very minimal. This is the cause that wemay see an increase in the number of cases being booked under 498A. This is not because moreand more false cases have been reported rather it reflects a bit of change in the status of womenand accessibility of legal redress mechanism. The pending rate is high and conviction rate is less- this demands a review of the action taken up by the law enforcing bodies. I know police cannot be just blamed for everything; a lot many factors are responsible. Less conviction does notmean false reporting but lack of evidence to be produced by the woman to prove her sufferingmay give us this picture. For example, it becomes very difficult to prove mental harassments (inany form). I do oppose innocent people being booked under this IPC and then get free. To dealwith this, counseling is a best option but that should be done by a competent counselor not byanybody just being given the responsibility. A person with both attitude and aptitude of acounselor and sensitivity towards the issue should be placed for this responsibility. But here lies abig lacuna in many places. The role of a counselor at many places is being misinterpreted. Thisneeds a re-look. Before cases of this sort going for a legal recourse, they should go throughbiased free and proper counseling - this should be a mandate in each police station. I amstrongly against ‘counseling for name sake’.
37. Those who work with issues of VAW they know well how difficult it is to make women understandthe concept of violence. There is a huge gap between the understanding of general women andwhat have been laid down in international treaties on human rights. To lead a dignified life is thebasic human right of everybody so a woman just because she is a woman should not be deprivedof it. Violence in any form at the domestic level is the worst form of violence for a woman.I have realized while dealing with this issue, the 498A is even not sufficient to address thisproblem because the structural barriers to root out this problem still persist in the society. If498A is reviewed it should be such which would address woman’s problem in a better way. Thefactual data showing the gap in reporting and conviction does not indicate that VAW has reducedand legal provision should go down to be lenient. I am strongly against this, yes it may need are-look but it should be with a purpose of making it a more useful weapon for woman than toaddress other problems arising out of its wrong implementation which I think should not beinterpreted as misuse of the law by the women.Dolon Ganguly, Jeevika Development Society, West BengalJeevika is an NGO that works for the promotion and protection of women’s rights in 45 villagesspread across three blocks in South 24 Paragana District, West Bengal. At this juncture, Jeevikaworks with nearly 7000 underprivileged rural women. One of Jeevika’s principal interventions isthe facilitation of regular residential gender training. The need for launching a separateintervention to deal with increasing incidences of VAW in the operational area was felt in thesegender training sessions. In that direction Jeevika started facilitating Rapid Response Training in2002 which equips rural women with hands-on response mechanism to deal with Violenceagainst Women as and when it occurs in the community. Out of the Rapid Response Training wasborn the forum Alor Disha which acts as a neighbourhood support group and provideslegal/emotional support to victims/survivors of VAW in the operational area of Jeevika.Our response to the issues and concerns raised by the Law Commission of India regarding thealleged “misuse” of section 498A (IPC) is based on the first-hand experience of the volunteers ofAlor Disha who have been working in the rural areas with the victims/survivors of Violenceagainst Women since 2002. We would also like to mention at the outset that all ourobservation/comment is restricted to rural Police Stations and the Magistrate Courts.Our ObservationBetween June 2009 and June 2011, Alor Disha dealt with 98 cases which could all have beenregistered as complaints under section 498A. However, only 20 cases were actually registered ascomplaints out of which only 2 cases were filed without the active intervention of Alor Disha. Thisbrings us to the following conclusions: • Section 498A is rarely used or is used only as the last resort by victims/survivors after all their attempts at reconciliation have failed and all their pleas have been ignored • In most cases, women lodge a General Diary and go beyond that only when the torture becomes unbearable • The Police pays little or no attention to the legal rights of the underprivileged rural womenIn the rural areas, factors like family pressure, community pressure, possibility of stigmatization,etc. prevent women from lodging complaints with the Police even when they are faced withextreme forms of marital violence. For the very few women who decide to take the legal path theaccessibility and affordability becomes an important factor. Most Police Stations require womento travel quite a long distance to lodge a complaint. Most rural women do not have the financialcapacity to afford the travel expenses to reach the nearest Police Station. Finally, the attitude ofthe Police and the indifference with which it deals cases under section 498A (IPC) is a major
38. factor that prevents women from initiating legal procedures. Combination of all these factors isresponsible for rare use of section 498A by the victims/survivors.Role of the PoliceThe following are the the first-hand experience of the volunteers of Alor Disha who have been atthe receiving end of the following comments made by Police Officials: • “You have to pay the price of petrol if you want me to complete the investigation” (comment made after an FIR was lodged) • “You people always bring such cases to me on which I cannot make much money” (comment made to a volunteer of Alor Disha) • “It is okay if your husband has beaten you up” • “Pay 50000 rupees and I will solve the case” • “This is not a murder. This is dowry death” (On being asked why he was giving preference to a murder case while ignoring the killing of a homemaker) • “Do not bring your son to the Police Station. We will have to arrest him. You come here alone” (A Police Official informing the father of the accused over telephone) • “You are a woman of fallen character” (Comment made to a victim when she went to lodge a complaint. This particular victim later got her complaint registered with the help of Alor Disha and has gone on to establish herself as an active and full-time volunteer of Alor Disha,. Her case was filed in 2002 and is still awaiting court transfer • “Your complaint has been registered. We will deal with the case. Do not worry” (Comment made to a victim after she had lodged a General Diary. The Police did not inform her that she needed to lodge an FIR to allow for necessary actions to be taken. Later her husband was summoned to the Police Station and the victim was forced to reconcile at the cost of her dignity, self-respect and exposing herself to more physical and mental injury) • “You can be booked under criminal offence. Have you forgotten that you gave dowry in your daughter’s marriage?” (Comment made to the father of the victim after he went to lodge an FIR for his daughter. He later lodged the FIR through the Court. The victim eventually sought Alor Disha’s support to deal with the case and later joined Alor Disha as a volunteer)Our ConcernsKeeping in view the reality that exists in the rural areas, we are deeply concerned that theproposed amendments to section 498A if brought into effect will worsen the situationof rural women.If made CompoundableMaking the offence under 498A compoundable will allow for more malpractice and corruptbehaviour on part of the Police and will increase the pressure and threat on women to not speakup against injustice. Even in the present scenario when the offence is non-compoundable, thepressure on victim/survivor is immense and the tendency of the Courts and the Police is topressurize the victim/survivor to withdraw the case. Our experience is that though the offenceunder 498A is non-compoundable, in effect however, the Court treats it as a compoundableoffence. We strongly feel that the offence under 498A should not be made compoundable.If made BailableFrom our experience we have learnt that cases filed under 498A are readily granted bail by theMagistrate. The Magistrate hardly pays due attention to the FIR before granting bail to theaccused. Thus he overlooks the fact that the victim has finally lodged an FIR after having facedmarital violence for a long time. Also, without our intervention the Police very rarely allow thevictim/survivor to lodge an FIR. Sometimes, a victim is not allowed to lodge a General Diary.Even after an FIR is lodged, the Police refrain from arresting the accused under some pretext. In
39. such a scenario, our question is: With so little action being taken by the Police and bail beingreadily granted to the accused, why do we want to make the offence under 498A bailable?Making the offence bailable will imply that the accused can be granted bail by the local PoliceStation and will no longer require appealing before the Court for bail. Considering the lack ofintent and rampant malpractice that exists among the local Police officials, making the offencebailable will open the doors for more corruption and will further block the access of rural womento justice.If made Non-cognizableIn the present situation, when offences under section 498A are cognizable, hardly any arrests aremade by the Police. Making the section non-cognizable will mean that it will be the responsibilityof the Police to bring search warrant from the Courts and arrest the accused. Considering thelack of intent, the attitude of the Police and the corruption that exists, making section 498A willvirtually make it impossible to arrest the accused.Our RecommendationsWith regard to the accountability of Police we have the following recommendations: • Higher authorities in the Police Force should visit the local Police Stations on inspection visits without notice. They should also make sure that they interact with victims/survivors of VAW from time to time • In remote villages, the Police Outposts should have the authority to deal with cases under 498A (and other cases of VAW) independently and urgently. They should have the requisite infrastructure available with them and the necessary skill to deal with such cases • All Police Stations based in the rural areas should have a functional 24-Hours Helpline dedicated to offer help to victims/survivors of VAW • The Government should ensure that the information of the existence of such Helpline reaches the remotest village • All Police Stations should have a separate Desk for dealing with offences under section 498A along with all other cases of VAW • The Police should show more responsibility while investigating the case after an FIR has been lodged. The gap between the lodging of the FIR and the filing of the Charge sheet should be minimized • It is crucial to change the mindset of the Police which does not regard crimes committed against women as an offence as other crimes. Quite often the Police attempt to “patch up” while safeguarding the interest of the accused. In order to change this mindset it is important to include regular orientation sessions at all levels of the Police System and to put in place monitoring tools that will evaluate the performance of the Police Officials with regards to dispensation of responsibilities.Finally, based on our experience we think that non-implementation of the Law at the Courts andat the Police level should be our major concern than worrying over the alleged “misuse” of theAct. While a lot of noise is being created over the alleged “misuse” of the Act, the claim is notbeing substantiated with data. Also, why is section 498A being singled out for amendment? Whileinnumerable cases in our courts are pending, why are we so concerned about pendencypertaining solely to section 498A?K. Satyavathi, On behalf of Bhumika Women’s Collective, Hyderabad, Andhra PradeshThe following are our views on the current discussion on Section 498A IPC.Making it Compoundable would lead to disaster as it would be a risk for the women andsecondly, this will negate the women to come out of their homes and speak about the agonythey faced. So they will be forced to stay within the four walls.
40. Establishment of Support Centres for women in the women police stations is a vital step, whichneeds to be strengthened more as in Andhra Pradesh (AP) under OXFAM funding there are fivesupport centres in Hyderabad (2), Karimnagar (1), Warangal (1) and Anantapur (1) - where wehave qualified Social Workers who take up the cases once they come to the Station as the Policerefers the cases to these Centres. Establishment of these Centres has helped the distressedwomen to get the required guidance under the PWDV Act, 2005. The work of these Centres is tobuild an understanding that society is patriarchal and it has developed its pro-woman perspectiveon the basis of feminist analysis. The Support Centre’s analysis of the issue of violence againstwomen, views women as oppressed from a historical perspective, as well as in the presentcontext. A patriarchal society deprives women of equal opportunities and resources in relation tomen. The Centre is committed to the struggle for the rights of women, so that they can gainequal opportunity and resources thereby gaining control over their own lives.The pro-woman perspective within which the Centre intervenes recognizes that the woman whofaced violence is not responsible for the violence inflicted on her, and that within a patriarchalsociety; the misuse of power by men makes her vulnerable to, and a victim of violence. TheCentre perceives her as a survivor of violence, as she has the potential to engage in empoweringprocesses. Moreover, the Support Centre acts on the premise that violence against women is nota personal matter to be resolved by the family alone, and that instead, violence against women isa social issue that needs to be addressed within the public domain.We constantly interact with the Home Department (Police) and in this process we have startedgiving trainings on gender sensitization to the Rakshak Police who do the work of patrolling onthe roads, streets, lanes etc. and they are the first who identify the distressed women. So, wehave been asked to give training to them and also distributed a booklet prepared by us whichcaters to the entire information on the support services and systems pertaining to vulnerablegroups which has been appreciated and applauded by the Home Department. These types oftrainings would help in looking into the issues pertaining to women in a sensitized manner.The other step we have undertaken is “Condemning the move on amending Section 498A of IPCby a Committee on Petitions of the Rajya Sabha”, under the Chairmanship of Shri Bhagat SinghKoshyari, Member, Rajya Sabha. The activities under this were: • Peaceful protest at Dharna Chowk • Press Meet • Invitation from Women Power Connect for a national consultation and Bhumika represented on behalf of entire NGOs in AP StateHence we feel that 498A should not be made compoundable and bailable.Karuna Singh, Independent Consultant, New DelhiDuring this ongoing discussion of amendments in Section 498A (IPC), there appeared a newsitem in the papers of a young girl being burnt alive by her father and brother in the most brutalway only because (as the paper stated) she refused to marry the person her family chose for her(and she was killed in the most horrific way - being burnt under a pile of cow dung patties; thatwould have caused the most excruciating agony to the young girl. Horror of horrors is that thewhole village looked on but no one helped!!) This can only make us hang our heads in shameand seek forgiveness from the umpteen number of girls/women being killed in the name ofhonour, dowry or committing suicide to keep the honor of the family intact or thinkingthemselves as burdens once they dare/ decide to leave the marital home.I keep wondering as to how many sections under IPC we need to make women feel protectedand safe in their own homes and not fear violence/face death penalty from parents/brothers,husbands/in laws/relatives at every stage in their lives.
41. As for section 498A, since it deals with situations that happen inside the confines of a maritalhome of a woman, if she, despite pressures from all quarters, decides to register a case, must begiven due respect, moral support, sympathetic and guilt free environs so that she feels safe,assured and has faith in the system (which usually does not happen; almost everywhere she iscoerced, shamed , or emotionally threatened to withdraw the complaint and if she succumbs tothis pressure and withdraws the complaint which usually happens, this does not make it a falsecomplaint as is being alleged)Crimes against women are social crimes and every act of violence - physical/mental againstwomen strikes at the social fabric of the society. Hence should be dealt with severely and in themost exemplary fashion. There should thus be no amendment in the section 498Awhatsoever in my opinion. My humble views and sincere appeal is • No tinkering with the section 498A in any form • Norms should be laid down for its effective implementation by disseminating information to all the agencies involved and to the women in rural and urban areas (of this section) and making them aware on how to register a complaint and its follow up.Kudos to all those working towards making women feel safe and protected in their own homes.Mitu Khurana, New DelhiI wanted to share with you a news item which was aired on a national news channel recently(http://ibnlive.in.com/news/woman-sc-judge-lists-daughters-as-liability/138837-3.html)This shows how because of the dowry system, even the most educated people consider their un-married daughters a liability. A senior Supreme Court Judge, who has perhaps seen a lot ofdowry cases and after that feels that daughters are a liability! (To me, a senior Judge of theSupreme Court, who has a lot of experience of the Legal system in India, would have labeled herdaughters at least as her biggest assets, and not liabilities). This news article also shows how themindset even at the top most judicial institution is patriarchal. This patriarchal mindset forcesmany women to settle their cases, and go back to their in laws even when there has been dowrydemands, or even when there is a clear cut threat to their lives. This is one reason why theconviction rate is so low in dowry cases.It is therefore no news that sex ratios have declined to all time low in majority of states in India.(Male feticide is unheard of; though if what the anti-498A lobby claims are true, it would havebeen male feticide rather than female feticide which would have been the trend in India). Byamending the 498A act, government will only be adding fuel to the fire of female feticide, whichis claiming millions of lives every year. Parents will feel even more afraid to give birth to theirdaughters. Such articles are just a drop in the ocean of many articles and studies which haveshown that parents do not want girls because they will have to pay for dowry.Rather than implementing the PCPNDT Act and the S.498A properly to stabilize the population ofIndia, the government is looking into increasing the insecurity felt by parents and would beparents of daughters, so that more and more people indulge into female feticide. I just hope thatwisdom will prevail.By diluting the 498A, the parents will consider daughters as a strict no-no, and will increasefemale feticide, female infanticide, etc. In times of declining sex ratios, it is time to give securityto parents of girls, and the girls themselves rather than making them more of a liability.B. Keerthi, Vasavya Mahila Mandali, Vijayawada, Andhra Pradesh
42. I am glad that Gender Community has taken up the discussion on 498A. I am a socialdevelopment professional working with Vasavya Mahila Mandali (VMM). VMM’s vision is topromote comprehensive social, economic and political development for women and children invulnerable situations, thereby empowering communities in Andhra Pradesh to improvetheir quality of life and build a better India. VMM works with women since last 40 years and isalso reviewing the implementation of DV act in Vijayawada with the prime stakeholders inimplementation of the said act: the Police, Probation officer DV cell and the judiciary. During thecourse of its discussions the committee has discussed on 498A. The following are the views:Reasons for Low Convictions and High PendencyMany a times the complainant asks police to keep the case pending and not to file the FIR sothat compromises are possible; hence it is delayed. In 80-90% of the cases, the file is closedbased on the reasons: mistake of fact or no evidence. (Even when the trial starts there is anopportunity for compromise). With regard to the current cases registered under this act, it ismostly urban; the rural women accessing 498A is very less. In rural areas, mostly the communityleaders have influence and the issues will be settled at that level only (these do not even enterinto the arena of judiciary and police)Section 498A IPC – Compoundable, BailableIn our view, yes it should be compoundable, then the process becomes easy. Judicial option isthere like Lok Adalat. It will have positive impact. It should however not be bailable. In AndhraPradesh, the SHO can arrest only the husband. But to arrest either mother-in-law or father-in-law, the unit officer (Commissioner of police) has to give order. Corruption at Police stations levelcan be curbed by involving the final order from unit officer.Measures to ensure greater accountability of the policePeriodical review to be conducted with regards to the status of the 498A cases. Registration ofthe cases under 498A also will give confidence to women. For example in Vijayawada, the casesregistered under 498A there has been an increase for instance, in 2009: 421; 2010: 576; and for6 months in 2011, it is 529. The increase in cases is an indicator of the awareness about thesection.Counseling of Parties and the Role of police in this processPolice are not having professional skills in counseling .Counseling to be done outside the policearena. Hence, the women or couple who require counseling is being referred to CSOs managingcounseling centres. Even there are Legal Aid Clinics being managed by the Legal cell Authority.I hope this discussion will generate useful suggestions that will be useful for effectiveimplementation of 498A.Medha Dubhashi, Centre for Gender Studies, Vaikunth Mehta National Institute of Co-operative Management (VAMNICOM), Pune, MaharashtraThe topic raised in the Gender Community on whether Section 498 A in IPC has to be madecompoundable and bailable is pertinent. The section applies to those women who are legallymarried and to protect their rights in the marital home. IPC makes this a non-compoundable,non-bailable and cognizable offence.It is well recognized that the socialization process is deep rooted within us, which goads us tosave a family/marriage at any cost. Unless it just crosses the limit women usually prefer tonegotiate with any sort of violence. Family and society at large most often take the front seat formany women. Marriage is still regarded as a sacred, social alliance not only between the boy andgirl but also the respective families. Moreover the girl is supposed to be “married into the boy’sfamily”. However in spite of all laws, the expectations of dowry even from well–to-do families are
43. still prevalent. I feel that this is at the base of all atrocities against married women, and despiteall well meaning laws, international treaties on human rights, it cannot be eradicated. Even thereasons for divorce by “mutual consent” or on “grounds of cruelty” are all grounded in failedexpectations of dowry. Unfortunately this mind set hangs on, and unless this is changed theother symptoms will remain, and any number of laws will not reduce atrocities committed onwomen. To lead a dignified life is the basic human right of every woman. Violence in any form atthe domestic level is the worst form of violence for a woman.We may see an increase in the number of cases being booked under 498A; not because moreand more false cases have been reported rather it reflects change in the status of women andaccessibility of legal redressal mechanism. Yet there are cases where the implementation of thelaw is pretty bad. Moreover many poor women do not have free legal aid in their cases, whichare long drawn. The pending rate is high and conviction rate is less - this demands a review ofthe action taken up by the law enforcing bodies.Less conviction does not mean false reporting but lack of evidence to be produced by the womanto prove her suffering. For example, it becomes very difficult to prove mental harassments unlessthe woman is able to produce letters, diaries that record such conversations or transactionsbetween the boy and his parents who ‘plot’ to throw out the girl. In such cases, ‘counseling” failsbecause what is “in the mind” is left unsaid.While dealing with this issue, I have realized, 498A is not sufficient to address this problembecause the structural barriers to root out this problem still persist in the society.Flavia Agnes, Majlis, Mumbai, MaharashtraOur organisation, Majlis, has been working on the issue of women’s legal rights in Mumbai forthe past 20 years. We have represented more than 50,000 women in litigation. Almost all ourclients are victims of domestic violence. We approach the Family Court and Magistrates Courts forcivil remedies on their behalf. We wish to emphasise that less than 5% of these women havefiled complaints under Section 498A of the Indian Penal Code. Further, we wish to add that therewas a spate of suicides by married middle class women in the months of March, April and May,2011 in Mumbai. Many of these women committed suicide by jumping from the terraces of theirhigh rise apartments. In not a single instance, a complaint under Section 498A was filed by thewoman prior to her death. This reaffirms that the myth of the misuse is propagated bycertain vested interests.Moreover, the investigations are carried out by the police and not by the women. Even when acomplaint is filed, it is the police that will investigate the matter and arrest the accused persons.If at all there is any misuse, the blame for it cannot be placed on the women but on the corruptpolice force and lawyers with vested interest who make a huge profit by spreading the scare thatthere is no bail under S.498A. Even when a non-compoundable complaint is filed, the husbandsand the families are advised to run to the Sessions Court for anticipatory bail. This is a lucrativebusiness for criminal lawyers. The nexus between the police and the lawyers is responsible forspreading the myth of the misuse in society while the genuine cases go unreported and womencontinue to die in their matrimonial home either due to suicide or murder. It is this reality thathad forced the government to introduce S.498A within the IPC in 1983. Sadly, nothing much haschanged since then as the following statistics by the National Crime Records Bureau (NCRB) for2008 indicate: • 9675 women were murdered due to dowry i.e. more than 34 women a day • 2847 women committed suicide due to dowry related demands and violence i.e. almost 8 women a day • 12,522 women murdered/dead every year due to marital violence • 42 women murdered/dead every day due to marital violence
44. • 1 woman murdered/dead due to marital violence every 42 minutes• 89,546 women faced violence by their husband and his relatives in their own homes i.e. more than 245 women a day• Torture in the matrimonial home constituted 44 % of the total crimes committed against women1. Constitutional Validity: The Constitution of India, 1950 guarantees the Fundamental ‘Right to Equality’ to all citizens under Article 14. Article 14 states that “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” Equal protection necessitates equal treatment in similar circumstances. It is well settled law that the principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, as the varying needs of different classes of persons often requires separate treatment. It is in this context that a number of laws for the protection and upliftment of women including Section 498 A of the Indian Penal Code have been enacted.2. Further, Article 14 operates on the basis of ‘intelligible differentia’. This means reasonable classification of persons for different treatment. It is in this context that the Constitutional validity of Section 498 A has been upheld. In Krishan Lal v. Union of India (1994 Cr.LJ 3472 (P&H))the Court held “the husband and relatives of husband of a married woman form a class apart by themselves and it amounts to reasonable classification especially when a married woman is treated with cruelty within the four walls of the house of her husband and there is no likelihood of any evidence available” In Inder Raj v. Sunita (1986 Cri.L.J.1510) the Constitutional validity of the said section was challenged on the ground that it gave arbitrary power to the police and the court because the words ‘cruelty’ and ‘harassment’ were vague. The Court held that the imports of these words were clearly understood and therefore the section cannot be held to be violative of Article 14, 20(3) and 21 of the Constitution.3. In the case of Sushil Kumar Sharma v. Union of India (JT 2005 (6) SC 266) which is widely quoted in support of the amendment because of the words “legal terrorism” used therein, the Hon’ble Supreme Court has upheld the constitutional validity of Section 498A. It is pertinent to note that the Court has also observed in the aforesaid judgment: “It is well settled that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done "not with an evil eye and unequal hand"4. Article 15(3) states that “Nothing in this article shall prevent the State from making any special provision for women and children” Thus, it has been held in Yusuf Abdul Aziz v. State of Bombay (AIR 1954 SC 321) that any law making special provisions under Article 15(3) cannot be challenged on the ground of contravention of Article 14. Section 498 A was inserted in the Indian Penal Code, 1960 in 1983. The amendment was a result of a sustained campaign by the women’s movement to highlight the rising incidences of cruelty in marriages and dowry harassment. The Petitioner has stated that the section should be made gender-neutral in light of the “perceived” misuse. Section 498A has been enacted with the specific purpose of protecting women taking into consideration their special needs when customary norms demand that a woman leaves her natal home and goes to her in-laws home to start her matrimonial life. The unequal position in which they are placed warrants a special law to protect women within the privacy of their matrimonial home. If the law is made gender neutral it will fall within the realm of laws relating to assault which have already been provided for in the Indian Penal Code. Thus, making the law gender-neutral will nullify the very purpose of the law. The substratum of the section is to protect women from cruelty and harassment in their matrimonial home and if it is made gender neutral it will negate the rationale behind the law.
45. 5. It has been held in Gurbachan Singh v. Satpal Singh (AIR 1990 SC 20) that the initial burden to prove that the accused has subjected the woman to cruelty is on the prosecution. At that stage the provisions of Section 113 A of the Evidence Act would not be invoked. It is only after the initial onus has been discharged that the Court can invoke Section 113 A. This clearly indicates that unless the prosecution initially presents a water- tight case with sufficient evidence of cruelty the case will not proceed, and therefore the question of misuse does not arise. 6. There are sufficient safeguards within the Code of Criminal Procedure and the Police Manual to prevent any misuse and arrest of relatives who are not central to the abuse like a young sister-in-law or an aged mother-in-law. This cannot be used as a pretext to repeal a beneficial legislation. The law cannot be faulted for its misuse. All laws, not just the provision of S.498A are subject to misuse and it is the duty of the state administration to ensure that no law is misused by the police using any extra- constitutional powers which amounts to an abuse of power. Any perceived misuse must be dealt with at that level and not by bringing amendments to a beneficial legislation which was enacted specifically to prevent violence against women. 7. The myth of the misuse is deliberately projected by unscrupulous lawyers and the police. This negative projection leads to a lucrative legal practise. Lawyers deliberately propagate the myth that since the offence is non-bailable, the husband and his relatives cannot be granted bail. The accused may not be granted bail immediately, as in the case of a bailable offence, but as per the procedures followed in all cases of non-bailable offences, he must be produced before a magistrate within 24 hours of his arrest and can be released on bail on a surety or personal bond. 8. The statistics contained in the National Crime Records Bureau Report of 2008 clearly dispels the myth of the misuse of Section 498A. The following statistics under the heading “Cruelty by Husband and Relatives” shows: No. Of cases reported: 81,344; % to total IPC crimes: 3.9; Rate of crime: 7.1; Charge-sheeting rate: 93.7; Conviction Rate: 22.4.The above demonstrates that only 81,344 cases have been reported under Section 498 A in 2008and therefore this constitutes a miniscule 3.9% of the total IPC crimes. This indicates the under-use of the section. The rate of charge-sheeting is 93.7. The process of charge-sheeting anaccused is a detailed and exhaustive one and undertaken by the police after due investigation.This clearly reveals the bonafides of the cases reported under this section. Moreover, Section498A, is among the offences with the highest charge-sheeting rate in the Report. A 2005United Nation Population Fund Report has observed that around two-thirds of marriedwomen in India were victims of domestic violence.Any amendment to Section 498A will abrogate the constitutional mandate of Articles14 and 15 (3). It will be a failure of the State to achieve its intended goal of gender equality.Gender quality can never be achieved if women are deprived of the few laws available to themthat address the issue of violence against women. It is a well known fact, that there is yet muchto be achieved for the advancement of women in fields relating to health, education and politicalparticipation, among others. Moreover, the depreciated economic status of women in societyfurther weakens their vulnerable position. A law can be made gender neutral only if all theconcerned persons are on an equal footing. It can be nobody’s contention that women and menin India are on an equal plane. Such a statement would not only be fallacious but also imprudent.We therefore strongly oppose the Petition for amendment to the Section 498A of the IndianPenal Code.Swati Y Bhave, APOLLO Hospital and AACCI, New Delhi
46. I have been reading with interest the various comments on this very important issue. While therecan be no two opinions about the need of effective laws to protect the vulnerable women in ourcountry this draconian law in its current form cannot be considered a remedy.The law is most useful for the poor, uneducated, vulnerable women especially in the rural andurban slum sector who unfortunately seldom have the knowledge and the sources to get legalaid. In spite of this law so many unfortunate women are still facing dowry harassment anddeaths. How many of these women have been protected by this law? It has not had a significantimpact in reduction of the evil in our society.So for the section of society where this law is most needed, women are not getting its protectionand on the other hand there are increasing incidences of many educated woman in citiesmisusing it. This law certainly needs amendment to prevent such misuse. This law must stayafter amendments to protect men against its misuse.I work with parents and adolescents through my NGO and I am writing books on “Premaritalcounseling to prevent/reduce divorce” and “Learning to live with the experience of divorce-before, after, and during.” I have done a lot of personal interviews of divorce cases both maleand female to understand the issues. My experience is with the educated middle class and uppermiddle class and in metropolitan cities. What I am sharing is based on this experience. Manypeople publicly support this law to be “politically correct”. It is much better to say “yes wesupport “than court controversy and have various organizations jumping on you as a traitor towoman protection. But privately, most agree, including many lawyers, that it is being rampantlymisusedIn most cases, section 498 is being used as weapon by the educated girls and their families to • ‘black mail’ to get what the girl wants – separate the boy from his family, get the son’s property share, a threat to make the husband ‘dance to her tune’, them with this section, etc • In case of divorce proceeding to use this as extortion to get better terms for maintainace, which are often exorbitant and beyond the financial capacity of the boy • To Punish the boy and the family for having dared to ask for divorce from their daughter • Malign the boy and his family in societyIn most cases, the unscrupulous lawyers ask them to file dowry harassment and domesticviolence. However in most cases in the family court, it is well established that these are falseallegations. So what happens to them – the girls’ family? Nothing! What punishment does thecourt give them for having put the boy and his family through torture? Zero!In my view - the girls’ family should show evidence of the exorbitant dowry claims andharassment. Why is the law only on the side of the woman? In my view, educated, earningwomen with educated well earning parents are not vulnerable section of society that needsprotection from men. S.498A should have an amendment for having stringent punishment forthose unscrupulous lawyers and such girls and their families for having put the boy and his familythrough such torture. So many elderly parents and grandparents are in jail or undergoingharassment on false cases.Dowry is a social evil and we need to have revolutionary social reforms to do away with thiscustom, which will be far more effective and long lasting than laws which can be misused bysome section. There should be no excuse for parents of a girl to say we were forced to givedowry for customs, religion, prestige, social coercion or fear of marriage being broken and loss offace in society etc.
47. We must emancipate our girls to have the courage not to marry into a family that has dowrydemands. We have cases where young girls have publicly broken off such marriages. Why doparents look for a rich son in law instead of a young boy who may not be rich but has goodpotential for future, and good moral values who will keep the daughter happy but not necessarilyrich? Why do they not break off the engagement or marriage at the first hint of dowry? Why cannot we make the girls and their parents strong enough to do this and not be afraid of anysocietal or community reactions? Why do the parents not get back their daughter into theprotection of their home when she tells them about dowry harassment? How many deaths couldhave been prevented if the girl came back home and filed for divorce? Is it worth continuing in amarriage and staying in the matrimonial home when a woman is being harassed for dowry?When we deal with ‘bullying among teenagers and children’ in schools and colleges, the firstthing we teach students is that being a victim is being a party to the crime. We strive to makethem strong to face and fight back any kind of bullying. When we talk of bribery and corruption,is not the best way to deal with it, is to have the courage not to give bribes? We need to makeour girls and our society strong to do away with this evil as dowry; prevention is always betterthan cure.Joseph Joute, Bible Hill YCs Women Development & Research Center,Churachandpur, ManipurSection 498A IPC will have fewer effects or non at all, if it were not streamlined and implementedat the local level.Grassroots organizations need to be involved more for its successful implementation.Angela Ralte, Center for Peace and Development, Aizwal, MizoramAny laws and rules can be misused.I do not think it is a good ground to remove for that provision. What about those who requireprotection of such a provision?Mohan Rambha, Swami Vivekananda Institute of Technology, Secunderabad, AndhraPradeshWhile I appreciate MWCD’s initiative, I am concern that even after the Domestic Violence Act,there is no proper functional budget, investigative or judiciary infrastructure. It has become aninefficient Act for women, who suffer at the hands of their brothers, sons, fathers, uncles, etc.Take also for instance the Equal Property Rights Act; it is unlikely that such rights are actuallybeing enjoyed by majority of women in India.It is thus important to look into the lacunae of the domestic violence Act and the Equal PropertyRights Amendment Act. The same is with 498/498-A that should be implemented to curb genderdiscrimination.In my view, those who fail to act upon gender violence, they should be brought under punitivemeasures. No IPC/CrPC provisions need to be diluted from their existing position; ratherpunishments should be made stringent and faster. Erring executive/judiciary representativesshould also be dealt severely. Irony is, in spite of a Woman President, a Woman Head of theruling UPA government, a woman Speaker in the Parliament, woman Chief ministers in few statesand various women friendly Legislations, no change has come in the gender discrimination atvarious levels. A simple answer is the improper/ineffective implementation by the regulatingagencies. Hence, kindly do not go back in curbing cruelty against women by diluting existing Actssuch as the 498-A.
48. Many thanks to all who contributed to this query!If you have further information to share on this topic, please send it to Solution Exchange for theGender Community in India at firstname.lastname@example.org with the subject heading “Re:[se-gen] Query: Query Subject - Query Type. Additional Reply.”Disclaimer: In posting messages or incorporating these messages into synthesized responses,the UN accepts no responsibility for their veracity or authenticity. Members intending to use ortransmit the information contained in these messages should be aware that they are relying ontheir own judgment. Copyrighted under Creative Commons License “Attribution-NonCommercial- ShareAlike 2.5”. Re-users of this material must cite as their source Solution Exchange as well as the item’s recommender, if relevant, and must share any derivative work with the Solution Exchange Community. Solution Exchange is a UN initiative for development practitioners in India. For more information please visit www.solutionexchange-un.net.in