Without sympathy or suspicion

The statistics are offered as evidence that these were false cases brought by disgruntled wives.

Updated: July 18, 2014 12:19:50 am

Indira Jaising

Analyse the acquittals under the anti-dowry Section 498A and understand the logic behind the law.

Section 498A of the Indian Penal Code was introduced in 1983, at a time when it became clear that the Dowry Prohibition Act 1961 had failed not only to prevent dowry but also to stop the violence associated with the institution. Cruelty by a husband or his relatives was made an offence punishable with imprisonment for a period of up to three years and made cognisable. Ordinarily, offences punishable with imprisonment of less than seven years are non-cognisable but if the legislature feels that such an offence is a social evil, it is made cognisable. Offences against women fall into this category.

Outraging the modesty of a woman, using obscene words and gestures and now, after 2013, voyeurism, stalking, acid attacks and sexual harassment are all punishable with less than seven years, but cognisable.

Cruelty is defined as wilful conduct likely to drive a woman to commit suicide or cause grave harm or injury to her life or health, mental or physical. It includes harassment of a woman to coerce her or her relatives to meet an unlawful demand.

It is obvious that the threshold of behaviour required to constitute cruelty is high and so there is an inbuilt safeguard in the section itself for invoking it. What is noteworthy is that the offence is not confined to the giving and taking of dowry, but extends to all conduct that causes mental or physical injury of a high order to the woman by her husband. The word “harassment” itself refers to continuous conduct that causes mental anguish to the woman.

To qualify as cruelty, the conduct must be of a grave nature, but to place it so high as to expect police intervention only when there is an actual attempt at suicide by the woman would be to defeat the purpose of the section. Hence, the section is and must be invoked when women are oppressed in the matrimonial home. Denial of food, locking her up and preventing communication with the outside world and repeated threats to drive her out of the matrimonial home all qualify as mental cruelty.

In 1986, the IPC was again amended to introduce Section 304B, which said that if the death of a married woman occurs in unnatural circumstances within seven years of the marriage, and it is shown that just before her death, she was treated with cruelty in relation to a demand for dowry, it shall be presumed that her husband or relatives caused the death. We must appreciate that the two sections are part of a composite scheme — one is invoked before the woman dies and is preventive in nature, and the other after she is dead. Surely, the purpose of law must be to keep the woman alive.

If Section 498A were properly invoked, we would not see the number of dowry deaths that we continue to see today. Our law reports are full of cases of husbands and their family members convicted for dowry deaths. No court has ever suggested that the dead woman lied or misused the law, as the dead body is proof of the cruelty she faced. Judgments under Section 304B are full of exhortations by judges to parents-in-law to treat daughters-in-law as human beings, condemning the institution of dowry. However, when it comes to women who are alive and using Section 498A, judges are quick to dismiss them as “disgruntled wives”.

How does one explain this hurt for the dead and condemnation for the living? Could it be that the very use of Section 498A in the exercise of one’s right to stay alive is seen as a misuse of the law? Is this not an attempt to intimidate women into not using the law? A denial of access to justice? And what does one understand by the expression “disgruntled wife”?
The Supreme Court’s July 2 judgment in Arnesh Kumar vs the State of Bihar offers statistics of the high rate of acquittals as evidence that these wives have misused the law. When faced with an acquittal rate of 93 per cent, the court ought to have been alerted to the fact that the prosecution was not properly concluded. Instead, by inverted logic, these statistics are offered as evidence that these were false cases brought by disgruntled wives.

A high rate of acquittal can result from a botched investigation, the benefit of doubt given to the accused or plain bias against women accessing the law. Add to this the fact that the SC itself has encouraged settlements under Section 498A, making a non-compoundable offence compoundable. Many acquittals could be women turning “hostile” due to pressure from family, or settlements. The point is, without analysing the cause of acquittals, sympathy for the husband’s family is misplaced.

Women are not particularly fond of criminal law, nor interested in sending their in-laws to jail any more than other aggrieved persons. The law of bail is the same for offences punishable with imprisonment below seven years and above. It is also the same for “disgruntled wives” and those who are cheated, beaten or murdered. So, one fails to see why wives have been cast as vindictive in accessing criminal law. Civil law is notoriously expensive. If anything, statistics point to a dysfunctional and moribund legal system, and the judges would do well to look within.

The writer is a former additional solicitor general of India.
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