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Author: Bindu N. Doddahatti

The Dowry Prohibition Act, 1961 failed to address the various forms of abuses meted out to married women, and the alarming increase of dowry deaths. This prompted the women’s rights movement in the 1970’s and 80’s to undertake an unrelenting campaign to bring “marital cruelty” under the ambit of the criminal law. Due to their sustained efforts, and assiduous campaigning, the Parliament amended the Indian Penal Code, 1860, in 1983, and section 498A which deals with, “husband or relative of husband of a woman subjecting her to cruelty”, was introduced to protect women facing “cruelty” in matrimonial homes.

Along with section 498A, which is cognizable, non-bailable, and non-compoundable, section 113A was added to the Indian Evidence Act, 1872, and sections 174, 175, and 176 of Criminal Procedure Code, 1973, too were amended. Subsequently in 1986, section 113B, and section 304B was added to the Indian Evidence Act, and Indian Penal Code respectively. All these additions and amendments provided tough legal provisions to fight the dowry menace, and other forms of cruelty, by widening the definition, and putting deterrent punishments in place.

However, since the very beginning, section 498A IPC has been targeted by various men’s rights activists (“MRA”). They claim that women are “misusing the law”, “misuse is reflected in the low conviction rate”, and so forth. They have succeeded in influencing various institutions of the State which has now resulted in partial dilution of the law. The fact that the central government is trying to further dilute the already diluted section 498A IPC by making it bailable and compoundable is in fact a very dangerous scenario. Abused and battered women questioning the abuse are being atrociously labelled as “disgruntled wives”, while the mistake lies someplace else. Such allegations made against married women are deplorable, and hold a mirror up to the patriarchal mind-sets of persons responsible for dispensing justice. Mere low conviction rate does not reflect the real picture. Higher acquittals may also result from inadequate investigation, the benefit of doubt given to the accused, or bias against women accessing the law.

As per the National Crime Records Bureau (“NCRB”), over 36.4 % of all the cases registered in 2014 under crimes against women are of “cruelty by husband or his relative”. These cases have increased by 3.4% during 2014 over the previous year. The total number of cases reported in 2015 are 113403, and it was 122877 is 2014. The cases have decreased by 7.7% during 2015. However, these figures are only the tip of the iceberg as under-reporting of domestic violence in India is an established fact. Violence against women in India is higher than what is depicted in the national crime statistics. Various studies suggest that the statistics provided by the NCRB, especially crimes against women, are grossly under-reported. The National Family Health Survey (NFHS-3) has revealed that over 40% of married women in India face varied forms of domestic violence, and going by those numbers, not even 1% of married women facing domestic violence actually lodge complaints under section 498A. In such a scenario, the Supreme Court, and the Law Commission of India have repeatedly and very casually used the NCRB statistics to paint a very ugly picture of women using the law to address the violence faced by them inside their marital homes. Those observations and guidelines issued by the Supreme Court based on the NCRB data have had a deleterious effect on women using the law as they contribute in deterring the women from opening up about the violence, and most importantly, decide the direction in which the investigation under these cases are headed.

Over the past two decades, the men’s rights activists have been very aggressively propagating their vicious campaign against married women which has resulted in women getting targeted at every stage of the justice delivery system. Basing conviction rate to decide the fate of a certain provision of law is fundamentally flawed. The number of true or false cases every year has nothing to do with the percentage of conviction of that year. When the average time period for a 498A case to reach its logical end is 6-8 years, it would be fallacious to draw conclusions relying on the percentage of conviction vis-à-vis total number of registered cases in the year. Further, one has to explore and acknowledge the structural infirmities of Indian criminal justice system that affects the outcome of these cases both directly, and indirectly.

The Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar & Anr had passed certain guidelines regarding the arrest of the accused persons which has virtually made it impossible to arrest. Even before Arnesh Kumar, the 2009 Amendment to CrPC had laid down certain rules to effect arrest, which has brought down the number of arrests significantly. However, the campaign against 498A has time and again targeted the provision to arrest by quoting the flawed statistics provided by the NCRB.

It is high time that we re-imagine the notion of justice from a woman’s perspective which is evidently absent in the current judicial framework. It is crucial to broaden our understanding of the pattern, and nature of violence which often does not get reflected in the FIRs and charge-sheets. We have to work towards creating a criminal justice system that is not hostile to women accessing the law.

Considering the fact that there is no concrete data available to back the claims of certain vested groups that section 498A IPC and Dowry Prohibition Act, 1961, (“DP Act”) are being misused, women’s rights groups should initiate research projects and campaigns that will put to rest such false speculations and provide a comprehensive framework to deal with these cases judiciously and diligently. The systemic bias, prejudice, corruption, and the socio-economic vulnerabilities of women litigants have a direct correlation to the low conviction rate in 498A cases, and this law is not misused by the victims of marital cruelty but in fact, is being abused by State and its agencies on the whole.

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