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Misuse of “Gender Biased Laws”

“I am the banner and the head, a mighty arbitress am I: I am victorious, and my Lord shall be submissive to my will.”
-Rig Veda (Book 10)

Introduction

I

ndia has a great history and heritage to boast about. A major part of this has been expatiated upon the position of the women; though, the status has often been vacillating. Initially daughters of Vedic era were nurtured with love and affection but the innumerable invasions obliterated the culture. In India family has always been prime importance marriage being an important social institution since Vedic period. It was regarded as the alliance between body and soul of two people (husband and wife).There was a considerable downfall in the socio-cultural and legal status of women. In the modern era few attempts to curb the barbaric attitude were made, but the initiative was not welcomed. Though, 62 years down the row, tables have turned. Sexual Discrimination has become despicable and punishable. The reforms have been possible only because of the legal initiatives. Various legislations and laws passed in the recent years have been instrumental in strengthening the position of women in society. Not only provisions favorable to women were incorporated in the Constitution when it was framed but various legislations like Dowry prohibition Act, 1961, The Equal Remuneration Act, 1986, The Hindu Marriage Act, 1956, The Hindu Succession Act, 1956, The Muslim Women (Protection of Rights on Divorce) Act, 1986, the commission of Sati (prevention) Act, 1987, Protection of the Women from Domestic Violence Act, 2005 have been introduced from time to time as required. Separate sections have been incorporated in the Indian Penal Code, which deal with the offences committed against women. Though, such attempts have often been condemned and criticized as being gender biased and violative to the right to equality; but, the truth is that even such specious arguments cannot justify why daily newspapers are coloured with articles on crimes committed against women, or why every another day dignity and integrity of a woman is sacrificed to meet an insatiable demand of the patriarchal society. Had the laws already implemented been executed in their letter and spirit, India would have been a different place to live in. Thus, it is much evident that the need of the hour is the stricter execution not the abolition of gender biased laws.

 With the passage of time the traditional concept of marriage has greatly changed and Hindu marriage is considered to be of dual nature i.e. of both religious sacrament and contract, where mutual consent and benefit of both the parties are duly aided by different legal provisions and reform and time to time there are various changes made in the laws with an attempts to bring about changes in the status of women  but all this can achieve little success without a simultaneous movement to stop the misuse of the laws by the women’s.

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It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including Supreme Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.1

The main reason for unrest in the family life is laws related to demand for dowry and domestic violence they are the biggest social evils facing our society, and no civilized society should tolerate this and every effort should be made to eradicate this evil, people giving and demanding dowry and doing domestic violence should be punished severely, but other side of coin, often unlooked upon should not be ignored. And this side of the coin is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family and misuse of these laws endanger the institution of marriage. It feels constrained to comment upon the misuse of the provisions to such a extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the welfare of the society at large so there is great need felt for stopping the misuse of the section 498-A of IPC.

Biased Indian laws

Marriage is the union of two hearts; success of married life depends on the edifice built on mutual trust, understanding, love, affection, service and self-sacrifice. Once the edifice shaken, happy married life will be shattered into pieces and when one partner files a false case on the other partner and his family all the above best qualities are lost and the married life shattered into pieces.2 In March 2003, the Committee on Reforms of the Criminal Justice System set up by the Ministry of Home Affairs, chaired by Justice V S Malimath, and suggested amendments to Section 498 A of the Indian Penal Code (IPC) on the plea that it was being misused. Section 498 A is a criminal law under which a woman and her parental family can charge the woman’s husband and any or all of his family members, including elderly parents and minor-aged siblings of physical or mental cruelty. Anyone charged with Section 498 A is liable to be arrested by the police without any initial investigation.3 The biased nature of Section 498-A and anti dowry laws favors misuse by women. Under these laws the burden to proof is on accused and the wife and her parents or any other social service group can file a case on behalf of the wife under section 498A of the IPC and can charge any or all the husbands family for physical or mental cruelty.

Characteristic of 498-A Indian Penal Code.

IPC- 498 – A read 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-

Any willful 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

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 meet such demand.4 

Characteristics of 498-A Indian Penal Code.

Cognizable – The accused can be arrested and jailed without warrant or investigation.

Non–Compoundable – The complaint cannot be withdrawn by the petitioner chances of                                                                               living together again are lost)

Non-Bailable – The accused must appear in the court to request bail.

It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona-fide and are filed with oblique motive.5

The judicial recognition of blatant misuse of these laws is not new. Way back in 1987 In Balbir Singh vs. The State of Punjab6 court had said that the amendments introduced in the penal code are with the laudable object of eradicating the evil of dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relative’s i.e. fast emerging. It is the time to stop the unhealthy trend which results in unnecessary misery and torture to numerous effected persons and sometimes not just ruined their life but also social status of the family.

In Saritha vs. R. Raamachandra 7 it was said, that the court would like to go on the record that for very trivial issues the educated women are approaching the courts for divorce and restoring to proceedings against in laws under 498-A IPC and this is nothing but misuse of the beneficial provision intended to save the women from unscrupulous husbands. It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well-meaning people or the courts. And the sanctity attached to the marriage through conciliatory efforts till last, are being buried neck deep.

The misuse of Section 498-A can lead insurmountable harassment agony and pain to the complaint accused and his close relations. So it’s very necessary that allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protected criminal trials lead to rancor, acrimony and bitterness in the relationship amongst the parties. it is also a matter of common knowledge that in cases filed by the complainant if the husband or the husbands relatives had to remain in jail even for some time , it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful and due to this kind of false allegation the social status the family concerned is damaged.

The other main issue regarding the misuse of the provision is that it does just not add to the suffering but it is also the violation of individual fundamentals rights8 against whom these laws are used with bad motive.

There are many instances when the member of Parliament have been raising questions in the parliament at regular interval regarding the heavy misuse of IPC Sections 498-A, 304-B, Dowry Prohibition Act and related laws. Please find some of the questions raised by members of Parliament regarding heavy misuse of women centric laws in the table given by7. A Right to Information application directed to the Ministry of Home Affairs in 2005 revealed some shocking figures. In 2005, among the 58,319 dowry cases that were registered, 10,491 cases were not charge-sheeted because they were based on frivolous grounds. In the same year, 134,757 people underwent arrest for 58,319 complaints under Section 498-A and Dowry Prohibition Act. Among these, 4,744 people who were accused were above 60 years of age and arrested without any verification of the veracity of the complaint.9

We know it is always said that law is the instrument of social change and every act of society has an impact on law and every law had an impact on the society but due to the misuse of these laws there is great negative impact on the society. People are now some way or the other doesn’t think marriage as a religious sacrament and it’s taking shape of contractual form between the parties to the marriage. Due to misuse of these laws many marriages are at the verge of end and many number of marriage already ended in the past by way of seeking divorce. Ones there is a divorce between two parties we find that small children’s are thrown to live with a single parent either mother or father and that’s effects there social and moral development. This is also seen that children who live with one parent are more involved in illegal activities and they are less socially, morally and intellectually well versed. These laws are made to protect women form the torture but it has left a very bad taste because women’s not just use the laws for their protection but also use it as a weapon to harass there husband and his family. So the misuse of these laws leads to a great negative impact on the society and social welfare. The most common and extreme form of exploitation of a husband and his family by a wife and her family is by making false charges of 498-A.10 There are many cases when the court had found that these laws are being misused.11

Due to misuse of 498-A lot of people including small children’s, old ladies and men are put behind the bar and that effect a lot to them due to their physical condition even sometimes school going children are farmed with these charges which leads to loss of their academic and also criminalize their  innocent minds.

Role of Media and Family MemberS

 The  family members play a direct role in false complaints and even sometimes its seen that they help the wife to formulate false situation and false statement, sometimes they directly help by being witness in the case and the wife is  also supported by her family to meet the litigation cost which some way or the other put forward the wife to make false allegation against her husband and if we see media  plays a big negative role in these kind of false cases and due to them all the sympathy of general public goes with the wife and from the very first day of the filing the report the husband is shown as the culprit and media show the case in such a way that a natural kind of biasness develops with the wife and due to which the society and women’s  organizations are provoked and the husband and his family are implicated as guilty there are rallies and Dhahran’s in front of their  houses, representations to the highest authorities and lot of harassment. Though often police becomes active in apprehending, arresting and interrogating them, the result is that the verdict precedes trial. There are pressures to punish the guilty even before the guilt is established this has a bad effect on the course of trial besides, such reports in newspapers etc. cause irreparable damage to their honour and dignity. The whole world reads the story of the newspapers where innocent may be falsely implicated but when after a due trial they are acquitted being not guilty, no one would know.12 Is this not a source and form of extreme torment and anguish to innocent men and families?

Conclusion

Anyone who has been awake the last two decades knows how section 498-A of IPC has been heavily misused, dragging innocent men and women into police stations, lock-ups and courts, thus depriving many young children of a happy childhood, many youth of productive careers and many senior citizens of mental peace in the last leg of their lives. The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband but after going through all the above cases I have come to the conclusion that section 498 -A of IPC is heavenly misused and there are clear instances when this law which is meant to protect the women is used like them as a weapon to harass their husbands and there family. And there is no doubt that there is great need to protect our society from the misuse of these laws and following are few steps that will help to stop the misuse of these laws.

We still have a huge responsibility to appraise, the still oblivious large section of the society, of the bane it possesses. Gender biased laws have relevance and need to be upheld till the journey to an equalitarian society is successfully accomplished. “Yathra, Narayanthya Pujyathe Raman the Tatra Devatha”, has been the culture of our society and the girls have been worshipped and held in high esteem, so, the laws which establish the same, are germane and should be upheld. Thus, gender biasness in Indian context is a matter of great discussion.

Suggestions

  • No arrest before final Judgment/Order in case of a complaint under 498A
  • Implement recommendations of Law Commission and “Malimath Committee” to make 498-A bailable.
  • Pass necessary orders to stop arbitrary arrest of elderly persons, children and pregnant sisters.
  • Punishment for those filing false cases under 498-A, 304-B, Dowry Prohibition Act and related laws.
  • Direct the Union Government to bring in amendments to make IPC 498-A “Gender Neutral” so that those husbands and in-laws who are harassed can also make complaint under this IPC section.

About The Author

Shambhavi Mishra

REFERENCES:

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1. Preeti Gupta vs. State of Jharkhand and Another criminal appeal no. 1512 of 2010.

2. P.K.Das, Law relating to Cruelty to Husband, (Universal Law Publishing .Co. Pvt. Ltd 2008) p.50.

3. https://www.harmonyindia.org/hportal/VirtualPageView.jsp?page_id=6193 (Accessed on 12 July 2013, 4:20 pm).

4. Universal Criminal Manual, (Universal Law Publishing Co. Pvt. Ltd. 2009) p.549.

5. Preeti Gupta vs. State of Jharkhand and Another criminal appeal no. 1512 of 2010 .

6. 1987(1) CRIMES -76.

7. (2003) DMC 37 ( DB ).

8. Article 20-No person shall be convicted of any offence except for violation of the law in force at time of the commission of the act charged as an offence as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

9. www.498a.org.in (Accessed on 12 July 2013, 4:40 pm).

10. Ministry of Home Affairs, RTI No. 24013/20/2006-SC/ST-W.

11. Kusum, ‘Harassed husbands’, Regency Publications New Delhi, 1993 at p.25.

12.  www.498a.org.in (Accessed on 12 July 2013, 4:40 pm).

13. Kusum, ‘Harassed husbands’, Regency Publications New Delhi 1993 at p.35.

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July 19, 2016

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