Gender Bias in Matrimonial Laws

Law is perceived as a tool for social engineering by the jurists and the scholars. So by its very concept it has to be contemporary and progressive, and certainly not retrograde. Viewed from this perspective, a law which may have been effective at a given point of time, require a re-look at a different point of time in order to effectively cater to the needs of a changing society. A vibrant legal system cannot afford to work on the basis of pre-conceived notions of ‘who is always the victim’ and has to continuously fine tune itself in the context of the changed circumstances for its efficacy and relevance.

In this context let’s examine the working of the Section 498- A IPC. Section 498-A is the sole Section in chapter XXA of IPC which was introduced w.e.f 25-12-1983. It has been functional for almost 25 years as of now and during this period there has been no official review of this law conducted by the Government in order to evaluate its working and effects on the society. On the top of it, it is still not compoundable despite a lot of judicial observations made by the various courts from time to time expressing the desirability of making it compoundable, may be with the permission of the court. The offence is also non- bailable making it absolutely discretionary for the courts or the arresting police officers either to grant or refuse bail to the accused.

Section 498-A of the Indian Penal Code provides as under:-

"Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation – For the purpose of this section, "cruelty" means –

a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

Section 113-A of the Indian Evidence Act, 1872 which too was introduced in 1983 provides as under:-

"Presumption as to abetment of suicide by a married woman. – When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or such relative of her husband.

Explanation. – For the purpose of this section, "cruelty" shall have the meaning as in section 498-A of the Indian Penal Code (45 of 1860)."

Some of the shocking statistics are being reproduced as under:-

  1. 363 children were detained in 2005 and 280 in 2006 under the draconian law when they had to accompany their respective mothers (related to husbands otherwise than as wives) in custody.
  2. As per the NCRB data, more than 81% people prosecuted under Section 498-A IPC have turned out to be innocent and were either discharged or acquitted. 9% accused were not even challaned by the investigating agencies. The conviction rate was only 10% despite the best efforts made by the litigating wives.
  3. Every year 52,000 married men commit suicide in India as against 28,000 married women (source: 2005 – NCRB). The percentage of the married men committing suicides is thus 86% more than the married women.
  4. Every year more than 1,00,000 men lose their jobs and become unemployed because of wrongful arrests under the dowry laws.
  5. World Health Organisation report on Elder Abuse finds misuse of dowry laws by the daughters-in-law as the main reason for the elder abuse in India.
  6. The Supreme Court of India has already termed the dowry laws misuse as "Legal Terrorism".
  7. BBC study indicates that more than 80% women under-trials (related to husbands otherwise than as wives) lodged in Tihar Jail (Delhi) are booked under dowry related laws.

8. 1,20,000 women (related to husbands otherwise than as wives) were arrested in the 4 years (2004 to 2007) under the dowry laws as against the 5,000 women only arrested by the British during the tumultuous decade (1937 to 1947). The Women’s Welfare Ministry is in fact the Wives’ Welfare Ministry.

The above statistics clearly show that these provisions of law have done more harm than good to the society. Experience reveals that whenever a wife files a case under Section 498-A IPC against the husband and other relatives, the chances of her marriage surviving are reduced to minimal. Section 498-A IPC in its present form has proved to be sure tool for destroying the Indian families which are otherwise facing the brunt of western influence and the growing levels of intolerance. Further compounding the problems is a sizeable section of legal practitioners who in pursuit of their own material gains don’t at all hesitate in precipitating an already hostile litigation, and it would not be an exaggeration to state that with the advent of computerization their job has become much easier where they have to simply apply the ‘cut’ and ‘paste’ tools to draft complaints on behalf of an aggrieved wife and then to convince her that she can succeed to showdown her husband and his relatives only if she tows the given line of action.

Rather than addressing itself to practical issues arising out of the misuse of the Section 498-A IPC and taking appropriate remedial measures, the State preferred to look the other way and enacted in haste the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as DVA) which was enforced w.e.f 26-10-2006. Under the novel scheme of this Act, though protection is available to a wife or a woman in live-in relationship with a man against the man and his relatives including his mother and sisters, but no such protection is available to a wronged mother-in-law against her cruel daughter-in-law or a wronged sister-in-law against her brother’s cruel wife. What sort of protection is this? Does this law proceed on the presumption that only a wife can be wronged by her husband’s mother or sisters and not otherwise? This approach is nothing less than what may be termed as ‘sheer legislative perversion’ and this Act should in fact be renamed as Protection of Wives (only) from Domestic Violence Act.

It is high time that the Government of the day should undertake a comprehensive review of the above and other related legal provisions and ensure that suitable amendments are made in the laws to make them gender-neutral and non-discriminatory. Some of the steps which are required to be taken immediately are:-

1 Promotion of the gender-neutral laws to promote family harmony (man/woman to be replaced by ‘person’ and husband/wife to be replaced by ‘spouse’ in Section 498-A IPC and DVA, 2005).

2 Section 498-A IPC to be made bailable, non-cognizable and compoundable to save the institution of marriage. Even the Malimath Committee report has advocated for making Section 498-A IPC bailable and compoundable.

3 The DVA, 2005 should be made gender-neutral and non-discriminatory as it is in all the developed countries of the world.

4 Punishment for misuse of the provisions of the dowry/cruelty/domestic violence laws by default in the event of the complaint/case found to be false. This would certainly create some deterrence amongst the prospective abusers.

5 Strict but reasonable time-schedule should be prescribed for the conclusion of the trials/cases under the above laws as the maximum abuse occurs on account of indefinite delay in the trial of these cases.

6 Workplace harassment legal framework should be made gender-neutral.

7 Duplication of legal provisions for similar benefits should be scrapped to avoid unnecessary and multiple litigations burdening the already over-burdened judicial and administrative resources. 

8 Empowerment of women through proper education to make them actually independent.

These steps if taken immediately would certainly provide a much-needed succour to the Indian society and go a long way in saving the Indian families from drifting and withering away.

: A Review by Sakal Bhushan SC Advocate

Mr. Sakal Bhushan is a Leading Supreme Court advocate and National Secretary of Bharatiya Rashtravadi Samanata Party .

Send your feed back to sbhushan1969(at)yahoo(dot)co(dot)in . Contact Number : 09871066557.

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