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Mainstream, VOL LVI No 1 New Delhi December 23, 2017 - Annual Number

Does Misuse of Law prevail over the Non-existence of Evidence in its Favour?

Patriarchal norms masquerading as Gender Equality

Sunday 24 December 2017



by Abha Yadav

In a first against its own order, Chief Justice of India Justice Dipak Misra has stated in October 2017 that the Apex Court of the country was not in agreement with its earlier judgement on the Anti-Dowry Law. The court was hearing the petition filed by an NGO seeking to include two women in the three-member family welfare committee stipulated by the July 2017 judgement of the Supreme Court.

“We are not in agreement with the earlier judgment diluting the rigour of Section 498A. We think it curtails the rights of women. We can’t scuttle the sphere of IPC Section 498 A (dowry prohibition). Laying down guidelines appears to be an exercise solely in legislative domain,” Justice Misra said. (

The landmark directive of the Supreme Court in Rajesh Sharma and Others v. State of UP and Another in Cr. Appeal no. 1265 of 2017 in July, which has denied automatic arrests in cases filed under Section 498A, IPC, has certainly made waves throughout the legal fraternity and women’s rights organisations for the manifold implications it is the precursor of. The Bench, comprising Justices A.K. Goel and U.U. Lalit, has promulgated the milestone order and wishes to adjudicate on the analysis of the changes and result, if any, brought about in the form of a report from the National Legal Services Authorities by March 2018—with the matter listed for hearing in the summer of April 2018. The instant case was filed to identify if there arose a need to check the tendency to rope in all family members to settle a matrimonial dispute such as in case of Section 498A, IPC.

Another Delhi High Court order (in X v. State NCT of Delhi and Another, CR.L.P. 137/2017 and CRL.M.A. 4027/2017), promulgated on similar lines of the aforementioned Apex Court’s pronouncement, has only added to the severely misbalanced notions of gender the judiciary has taken to follow in recent times. Justice Pratibha Rani reiterated the Bench’s opinion of “women severely misusing law as a weapon for vengeance and personal vendetta” while dismissing the woman’s leave to appeal against acquittal of her live-in partner whom she falsely accused of rape on the pretext of marriage.

The Order of the Supreme Court as well as other similar orders have to be viewed in the light of the fact that there is always and certainly bound to be some or the other amount of misuse or arm-twisting of any law that is promulgated. The test for the continuance, dilution and amendment of any existing legislation is when the misuse of the existing law has deeper detrimental effects than the negative repercu-ssions of the non-existence of the law. In the case of Section 498A of the Indian Penal Code, it is seen that despite government legislations, interventions by agencies, women have continued to suffer due to the ancient and deeply embedded practice of dowry deaths and harassments in the Indian society. This is a disturbing norm plaguing our nation, irrespective of the social strata one associates within our society.

The scourge of dowry is seen in the power corridors, wealthy families, in middle class homes as well as in urban slums. It is obvious that the problem is rampant in rural India where it is tied with customs and traditions that the law has not been able to sway. Indian society has not been able to break the shackles of dowry harassment even as it enters the age of globalisation and digital India. It has only transformed and manifested itself in the form of glitzy and sophisticated ‘gifts’ that the bride is expected to bring with her in the modern Indian family. The dilution of the so-called ‘draconian’ Section 498A which previously allowed for the immediate arrest of family members, relatives including the husband has been reduced in its effect by the formation of the Family Welfare Committees which shall scrutinize the matter instead. In the Indian context the processes and procedures that the FWCs will evolve will only add to the delay in justice meted out to the genuine and actual dowry harassed woman.

In its bid to be gender-neutral, what the SC has done is inflict grave harm upon those whom Section 498A deemed to protect in the first place. The protection that the Section provided to every harassed and abused woman; the fear it evoked in the families and kept them in check from committing such abuse—have all been done away with by the SC’s gender insensitivity.

In the current judgment, the SC has quoted the National Crime Records Bureau 2012 data which stated that “while charge-sheets were filed at an exponentially high 93.6 per cent of cases, only 14.4 per cent ended in convictions”. The report further projected that “out of 3,72,706 cases pending in trials in 2012—only 3,17,000 would lead to acquittals”. The above figures certainly do not take into account the various factors that come into play, such as the inevitable delays in the judicial process while adjudicating upon such cases, the pressure or threats such victims receive to weaken the case, the fear of social stigma, costs of litigation etc. While the SC has simply boiled down the social evil by stating many “disgruntled” women have misused the law, it may also be pertinent to note as to how many actual victims of dowry harassment have been able to get relief from the stipulations in the Act. It cannot be ignored that when a woman files such a case, she faces the wrath of many and is constantly at edge while the case draws out. Insufficiency of actual evidence and pressure from her husband and inlaws—are easy enough factors to make a married woman weaken her resolve to go through with such cases. Even so, when a woman has a child from the marriage—it can easily be used as an emotional exploit by the perpetrators and thus lead to acquittals. The Court cannot turn a blind eye towards such social and cultural practices in a bid to appease ‘harassed’ and ‘innocent’ relatives and husbands.

Rather than diluting the Section, the Court could have, with the aid of women’s organisations, the National Commission of Women etc., focused upon fine-tuning the processing mechanism followed in such cases, the functioning of the CWCs, the causes behind the low convictions and grassroot methods employed by police officials and other authorities involved in the hierarchical chain. The statement of the Apex Court, which has branded women as ‘liars’, is nothing but living proof of the infiltration of misogyny within the judicial bodies. There is no liability accorded for incomplete investigations and inquiries by the law enforcement agencies at the ground level by the Court, which goes against the very principles of natural justice and criminal investigations as outlined by the letter dated 31.07.2017 by women’s rights organisations to the Chief Justice of India in lieu of the judgment dated 27.07.2017.

Mandatory counselling machinery for the complainant should be made available and mandatory along with the presence of hand-holding mechanisms to ensure that the complainants are able to cope with the process and successfully stick through the entire judicial process until its end. It has to be seen that victims are not easily manipulated or forced out from such cases. The Court cannot in any sense neglect the fact that such women have gathered all their strength and wit to lodge a case in the first place. To undo the previous defences at their expense, only further deteriorates their situation.

The lack of compliance of authorities or their non-acknowledgment of the procedural guidelines as issued by the Apex Court in regard of the section, in cases like Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 and such others is said to be the tipping point for this landmark order, along with the Reports of the 243rd Law Commission (August 2012), 140th Rajya Sabha Committee on Petition (September 2011) and judgments of various High Courts. It is disappointing to note that the inadequacy and incompetence of police officers and those involved in this process has been ignored, which is in fact the root of the problem. If such officers disregarded the previous orders and guidelines for arrests, it would have certainly differentiated the real complaints from those which were sham at the ground level. The blame women receive for this order is improper and misplaced; and to have them suffer for it—even worse. Furthermore, the atrocities suffered by men and their relatives, as the judgment proclaims, are by the police authorities and not at the hands of the women who institute the complaint. Therefore, liability has simply been placed upon one party whilst it is indeed the law enforcement agencies themselves who are guilty. If there is a failure to identify whether a complaint is bonafide at the first instance, the role of the authorities cannot be discounted.

Misuse of law or “insensitive investigation” cannot, in any rational or prudent scenario, outweigh the positives or benefit it emanates, especially when it comes to the security of disadvantaged sections of the society. Married women certainly qualify in this sense, for they are in fact living with a house of strangers putting them at a stark disadvantage from the very beginning. The strongest weapon in their arsenal—Section 498A of the Indian Penal Code—has now lost its significance for them. This affirmative discrimination that the section reflected in their favour, as enabled by Article 15(3) of the Constitution of India, 1950, is now taken away.

The Supreme Court’s order goes on to allow automatic arrests only in cases where there are visible signs of injury upon the complainant or likelihood of death faced by her—despite the very section itself defining ‘cruelty’ as grave injury of physical or mental nature’.

Additionally, disregarding lack of tangible evidence of physical abuse over time coupled with mental agony and emotional torture—which are viable signs of cruelty—shows the Court’s incorrect surmising. The mental pressure along with psychological ordeals a victim suffers are of no consequence as per this directive; coming at odds with the fact that mental wounds are at times more severe and have prolong effects than physical scars which tend go away with time.

The Court has erroneously failed to pursue this line of thought or neglected to consider this aspect—which shows that the matter has probably not been thought through as well as one would like to believe. It is also surprising to note that the Court arrived at such an important decision, which has caused a major blow to married womens’ rights, without being assisted or vetted by womens’ organisations or such other qualified agencies.

Furthermore, although the formation of Family Welfare Committees in every district (found in para 19 of the judgment) can be touted as a positive outcome from the midst of all this; it can however as easily be misused and fail its purpose by the participation and involvement of members who bring to the table their own toxic mix of biases and societal perceptions. The time period of one month given to these Committees for profiling and ensuring the reliability of the complaints allows abused and harassed women to ‘change’ their minds or the guilty parties to escape on one pretext or the other.

On the contrary, handing over such powers to non-legal/extra-judicial bodies entities such as the FWCs is an incorrect delegation of powers since they shall be incompetent to deal with such sensitive and technical matters. It cannot be ignored that the role that these Committees are set to play, were previously accorded for within the procedural safeguards given under Section 498A in Lalita Kumari v. Government of UP, (2014) 2 SCC 1.The SC had held in the case that the registration of FIR is mandatory under Section 154 of the Code of Criminal Procedure , if the information discloses commission of a cognizable offence and no preliminary inquiry is permissible in such situations. Preliminary inquiry may be made in matters of matrimonial or family disputes as per the guidelines issued by the Apex Court in the instant case.

Mere training of a few days without specification of qualifications of the members of the Committees only signifies how little thought has been given to the matter; when women’s organisations fought relentlessly for the inclusion of such provisions within the Indian laws.

The very distinction between civil and criminal law originates from the fact that in the former, the burden of proof falls upon the individual who institutes the case; whilst in the latter, the onus in special cases falls upon the alleged perpetrator, allowing ease in some form to the victim(s). One of those cases was the situation Section 498A dealt with. However, this privilege has now been usurped from the women because of ‘disgruntled women rampantly misusing the section’ and ‘men acting as sitting targets in the name of feminism’.

There is no doubt that false and frivolous allegations deny and impair justice, but this cannot be considered as the only facet while coming to such an abrupt and damaging order. What can be done instead in such a context, keeping in mind the absolute sensitivity of the matter, is that Family Welfare Committees can be created once such complaints are instituted to look into the veracity of the matter while arrests are also made simultaneously. If the complaints are found to be bogus, the arrested individuals can be let off in a timely manner while the woman can be dealt with accordingly as seen fit by the Court. To deny such protection and leverage certainly punctures any hope women harboured to escape from their abusive domestic set-ups. It only leads to strengthening of the ‘family-positive’ approach the Court has had, in line with their resolve to not outlaw marital rape.

This is neither a step in the direction of creating equality nor true affirmation of men’s rights in a women-dominated world as many today have come to perceive. It cannot even be considered a win for protection of family set-ups—it is only a re-affirmation of the patriarchal norms prevalent still in modern India that have so severely seized onto women’s freedoms and safety. In a severely gender-misbalanced society, it is a step far from women’s empowerment and even further from the development of a modern civilised society. Hopefully the progressive intervention of the Supreme Court will bring this debate to its logical conclusion and also benefit the women whom it sought to help from its pronouncement.

Dr Abha Yadav is the Deputy Registrar (Legal), Central Public Information Officer and Labour Welfare Officer, Jawaharlal Nehru University, New Delhi.

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