Are Indian women misusing Section 498A?

Pushpa Achanta defends and answers increasing charges of women taking recourse to dowry law to harass men.

The Sections 498A and 304B of the Indian Penal Code (IPC) as well as the Protection of Women Against Domestic Violence Act, 2005, are three closely-related legal and judicial provisions designed to safeguard the interests of married women in India.

They are very significant considering the large numbers of women that suffer domestic violence – physical, sexual, verbal, emotional, mental, et al – at the hands of their husband or the marital family. Whereas these laws deal with all forms of cruelty meted out by the husband or any of his relatives, quite notably, certain clauses of Section 498A also protect women in live-in relationships.

Of course, since the last couple of years concerted efforts have been made to discredit the complaints filed under them on the grounds that Section 498A, in particular, is being ‘misused’ by supposedly vengeful wives and daughters-in-law. In fact, even the Supreme Court issued an order in July 2014 preventing the arrest of the husband or his family members till there were sufficient and valid reasons.

“We direct all the state governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 CrPC,” ruled a bench headed by Justice C.K. Prasad.

One of the grounds on which the Apex Court gave its judgment was the 2013 National Crime Records Bureau (NCRB) data. Jayna Kothari, a well-known Bengaluru-based litigator, elaborates, “The NCRB data, which the Supreme Court referred to while pronouncing the judgment regarding 498A, reveals that in 2013 around 93 per cent cases of crimes against women were booked under section 498A. Among them, the accused was convicted in only 15 per cent cases.”

However, S.T. Ramesh, former Karnataka Director General of Police-Human Resources and Training, is quick to point out that he is, in fact, “surprised and glad that the conviction rate is 15 per cent because it is usually much lower”. He explains, “Essentially, the NCRB obtains data from the state governments. In some states, the actual number of cases registered is not reported or deliberately shown to be less because large figures are considered a black mark on the police department.”

Through the many years that Shanthamma has been working with Vimochana, a forum for women’s rights in Karnataka, she has provided support and guidance to many women in distress in Kolar district. Her experiences of dealing with the police definitely confirm Ramesh’s observation that the registration of cases is not always above board. Shanthamma vividly recalls meeting Maya who had filed a domestic violence case against her husband but ended up being brutally beaten by the law enforcers.

“After Maya, who works with a large Information Technology firm in Kolar, lodged a domestic violence complaint with the police, her husband, a lawyer, filed a counter case. Consequently, she was picked up from her office one afternoon and taken to the police station where she was brutally beaten. Eventually, it was revealed in the local media that her husband had paid off the police to torture her,” she says.

Then there are also times when a complainant, her natal family as well as friends and well-wisher are either threatened or ‘counselled’ into withdrawing the case. Take the case of Rekha, 23, who was married to a gym instructor in Attibele, a small town in Anekal taluk of Bangalore Rural district.

Elaborates Mamatha, another committed activist with Vimochana, who reaches out to women fighting sexual harassment, domestic violence and other kinds of gender crimes, “Rekha was being mentally and emotionally harassed by her husband. He used to taunt her on her appearance and even forced her to watch pornographic material. Yet, when the disturbed young woman approached the police for help, they tried to ‘counsel’ her and told her to ‘put up’ with him as he was her husband.”

When Mamatha tried to intervene and insisted that the police file a formal FIR, she invited the wrath of the husband. “I have been regularly receiving threats from him. Consequently, Rekha is now scared of going to the police or the courts. She lives in constant fear,” she adds.

Unrelenting stress and trauma also got the better of Julie, 26, who passed away last year of a massive cardiac arrest. She was fighting a domestic violence case where she was repeatedly being told to ‘adjust’ with her husband. Tanzeen from Vimochana, who supported Julie as she went through the ordeal, says, “It was a bad time. She was humiliated by the police as well as the judge and told to withdraw the case. In the end, she lost the custody of her three-year-old child as well. It was too much to bear.”

Typically, it’s not easy to get a domestic violence complaint registered let alone gain a conviction. This is largely due to the inherent bias in the system toward women who are ‘audacious’ enough to want to complain against their husbands. Says Ramesh, “Most policemen grow up seeing their father beating their mother, an older brother receiving a hefty dowry or a teenaged sister being married off. So they don’t see anything wrong in their attitude. The women in the force follow in the footsteps of their insensitive male counterparts as they don’t want to be labelled as soft or be accused of favouring women.”

This outlook is held by some judges, too, who are inclined to deliver biased verdicts. Recalling an incident in court Mamatha says, “Even when a domestic violence case is tried the sentence delivered can be really disheartening. In a case where the accused husband was actually found guilty, the complainant was only given a compensation of Rs 60,000 instead of the Rs 3 lakh that was due to her. Additionally, the judge advised that she use her ‘pleasant’ physique to start a beauty salon for women.”

“I find that there is a real reluctance to change,” says Donna Fernandes, founder of Vimochana. She recalls how when she had approached a senior judge of the High Court of Karnataka with the idea of conducting gender sensitisation sessions with members of the judiciary, he had dismissed it as “unnecessary”.

Quite predictably, some domestic violence cases collapse during trial owing to political pressures or other threats and influences exercised to turn witnesses hostile. Apart from this, a survivor could withdraw her complaint or decide not to testify against her husband or his family fearing social stigma and ostracisation, due to emotional or financial dependence, or concern for the well-being of children born out of the marriage.

Despite the many challenges that women are up against while attempting to file and pursue a domestic violence or dowry complaint against their marital family, case loads show no signs of reducing. Moreover, as per data gathered by Vimochana from the Bengaluru police in 2014, a majority of the cases booked under 498A were indeed genuine.

Nonetheless, there are times when women reporting harassment can be ill-advised or misguided by their lawyers to ‘include’ Section 498A to strengthen their case. Fernandes feels that although harassment and assault on a woman for dowry constitutes domestic violence, offenders should be charged under the Dowry Act 1961 and not under Section 498A.

Unfortunately, though, domestic violence against women, dowry and harassment are an undeniable reality of Indian society.

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