Rethinking legal position of Cruelty against women By Jaasir Ashraf Mir

Violence against women (VAW) is a phenomenon that cuts across boundaries of culture, class, education, ethnicity and age. The feminist movement of the 70s and 80s made a major contribution in getting VAW recognized as a critical area of concern in India. In 1980s, the incidences of 'dowry death' were steadily rising in India, so women's organizations across the country pressurized the Criminal Law Amendment Committee (1982) and urged the government to provide legislative protection to women against domestic violence and dowry, so that the victim gets justice while she is still alive. Several enactments and provisions have been brought on the statute book during the last two or three decades to address the concerns of liberty, dignity and equal respect for women founded on the community perception that women suffer violence or deprived of their constitutional rights owing to several social and cultural factors.
With the aim to protect the women Article 15(3) in our constitution has been inserted in part III of the constitution concerned with the fundamental right of the people which says ‘nothing in this article shall prevent the state from making any special provision for women and children’. Thus the separate mandate has been envisaged in constitution for empowering and protecting the women from all forms of discrimination and violence. Meaningful debates and persuasions have led to enactments of special Laws for women. The insertion of Section 498A IPC (Parallel provision in RPC) in 1983 is one such move which penalizes offensive conduct of the husband and his relatives towards the legally wedded wife.
Section 498A is the gender biased offence because cruelty under 498A can be against the women not against men. The provision together with allied provisions in Cr.P.C. is so designed as to impart an element of deterrence. Section 498A in its marginal heading says Husband or relative of husband of a woman subjecting her to cruelty and reads as ‘whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with Imprisonment for a term which may extend to three years and shall also be liable to fine. This section not only punishes the husband for cruelty but also any of the relative even though if the relative is remote he will be booked under this section if a complaint is logged. Now it is important to mention the meaning of cruelty under this section. The expression ‘cruelty’ has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of this section. Creating a situation driving the woman to commit suicide is also one of the ingredients of ‘cruelty’. The offence under s.498A is cognizable (Police can arrest without warrant), non-compoundable (offence cannot be compromised) and non-bailable (bail can be granted only by court).

The Law under S.498A was meant to serve the social purpose but it is now proving the menace for the innocent husbands who are being harassed by their wives by lodging false and frivolous complaints. Supreme Court in Sushil Kumar Sharma vs. UOI (2005) lamented that in many instances, complaints under 498A were being filed with an oblique motive to wreck personal vendetta. The court equated it with a new legal terrorism that can be unleashed. Various High Courts in the country have also observed in several instances, omnibus allegations are made against the husband and his relations.

 It was also observed by the Supreme Court in Preeti Gupta vs. State of Jharkhand decided (2010) that serious relook of the provision is warranted by the Legislature. The Court said: “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints”. The Court took note of the common tendency for implicating husband and all his immediate relations. Due to Preeti Gupta case a concrete report was formulated by law commission in its 243rd Report 2012 on Section 498A. The report observed the gross misuse of the section that has resulted in undue harassment to innocent husbands. Emphasize was laid down to exercise caution in case of arrest of the husband and his relatives and it has been stressed by such steps, the possibility of reconciliation becomes remote and problematic. Commission has appreciated the need to discourage unjustified and frivolous complaints filed under this section and scourge of over-implication.
Recently Supreme court issued guidelines while rendering judgment in case of Arnesh Kumar vs. State of Bihar (2 July, 2014) and observed Section 498A was intended to protect women but it is now sometimes being used as a “weapon rather than a shield by disgruntled wives”. The simplest way to harass the husband and his relatives is to invoke the said provision. In a quite a number of cases, bed-ridden grandfathers and grandmothers of the husbands their sisters living abroad for decades are arrested. The bench directed the all state governments to issue directives to their police departments against making arrest mechanically saying they should furnish reason why the arrest was necessary. The reason will be examined by the magistrates, who order further detention if there is sufficient material.
Section 498A serves the social purpose and every effort is to be raised to bring them together amicably. By making the offence as cognizable, non-compoundable and non-bailable we are leaving no room to set the mechanism of compromise in motion. The V.S Malimath Committee on Reforms in criminal justice system in 2003 had recommended for making section 498A as compoundable and billable offence so to give chance to the spouses to come together for an amicable solution.
It is true that women still face the violence and special Laws endeavors to protect them. However the misuse needs to be equally tackled, as it will hampers utilitarian purpose of the Law.  There no such legislative frameworks till date to combat and protect the innocent husbands and also at the same time maintain the sanctity of the law for the protection of the women. The legislature need to take a holistic and balanced approach in a way that social objective behind the Section should be kept in mind and at the same time need for protecting the innocent husbands. The law enforcement agencies should ensure that complaints filed with false or exaggerated allegations out of ulterior motives or in a fit of emotion should be curbed. Besides this law commission recommendations in its 243th report must be paid due regard and implemented so that social objective of the provision are duly kept at pedestal of sanctity.

                                                                [email protected],  Research Scholar ILI, New Delhi

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