|
|
Doing
Violence To Justice
When amendments related to law
are made with the aim of providing justice to women who are victims of
domestic violence, it is reasonable to expect that the law be implemented
in its true spirit by lawyers, the investigating agencies and the courts.
However, this reasonable expectation has recently been shattered, and not
for the first time. The judgement of the High Court of Delhi in the case
of Savitri Vs Ramesh Chand has once again revealed the shortcomings of
Section 498A of the Indian Penal Code.
In the early 1980s, amendments were passed to make certain forms of
domestic violence criminal offences. While Section 304B of the Indian
Penal Code (IPC) was incorporated to deal with murders of newly
married-women, section 498A was added in the IPC to cater to women being
ill-treated by the husband or his relatives for reasons linked to dowry or
otherwise.
It is well settled that this law (498A) also covers mental cruelty, which
has been recognized to cause far more injury to the health and well-being
of a woman than physical battering. It is another story that establishing
this aspect of domestic violence is a burdensome task because of the
attitudes of our investigating agencies and the judiciary. The offence as
of today is non-bailable and cognizable, and to be tried by a Magistrate
of the First Class.
According to the petitioner (the woman) - in the case of Savitri Vs Ramesh
Chand - all the members of her husband's family should have been subjected
to trial under section 498A. Instead of simply dismissing the petition on
its merits, the judge under "constraint" recommends that the law should be
reviewed and the offence made bailable and compoundable. His reasoning:
The law has been "abused unfortunately" by the investigating and
prosecuting agencies and "exploited by the women and their relatives to
such an extent that it has proven to be ineffective to curb dowry".
Making the offence compoundable implies that the complainant may withdraw
her police complaint at any point of time. In the eyes of the judge, this
might give the marriage another chance but it can, just as easily, make
the woman even more vulnerable to exploitation in the given Indian
context.
In a majority of the cases, a woman filing a petition would (along with
her children), be financially dependent on her husband; and she would have
approached the police/courts only because of unbearable violence. In all
probability, and in most cases - assuming the offence were to be made
compoundable - the husband and the woman's in-laws would offer
reconciliation so that the woman withdraws the case. Again, given the
Indian familial context, the woman is most likely to give in, but by doing
so she would end up being far more vulnerable to cruelty and violence.
Since the effect of compounding an offence is that of acquittal, the
perpetrators would also know that they cannot be tried again for the same
offence. The most likely scenario would then be that the woman would be
thrown out the house, left to her meager or nil resources to file claims
for maintenance, alimony or custody of her children. If at all she is able
to approach the criminal justice system again, her case would be
dismissed, she would be regarded as a troublemaker who cannot make up her
mind and whose only intention is to harass her husband and in-laws.
In consideration of the large number of women who suffer (and die from)
dowry-related problems, there are several questions that need to be
addressed. By making the offence less stringent, can the social problem be
solved? Wouldn't bailing out the abuser and compounding the offence give
more power to the police and the investigating agencies to further misuse
the law? Is such a change likely to instill discipline or humane
considerations in the abusive husbands and their relatives? When stringent
laws have not succeeded in preventing the social evil, what is the
guarantee that diluting the law will act as magic?
The answer - from a practicing gender lawyer - is a resounding NO.
Assuming for a moment (without accepting it), that 498A has been or is
being misused, the larger issue is: which law is not being misused? And if
all our laws are being used or misused, why a hue and cry only about 498A?
And then, who is responsible? The duty, and indeed the onus, of ensuring
that the law is not misused is that of the investigating and prosecuting
agencies, the lawyers and the courts. It should be considered that the
woman who comes out for help does not know the intricacies of law.
There can be no doubt that this law has helped and given hope to millions
of Indian women. Perhaps it is only now that women are learning to use the
laws put in place for their protection. Where are the statistics and hard
figures that show 498A is being misused? Which agency of the state has
bothered to undertake such an exercise? Even if some "innocent" men have
been roped in, what about the thousands (and may be more) of women who
have died, and the cases in which the abusers have gone scot-free? On the
contrary, there are several cases that show the abuser and the lawyer
having either abused the woman in a way that no evidence is available in
her support, or having manipulated evidence so that it goes against the
woman.
The need at this stage is to focus on better implementation and to put
things in the right perspective. Sensitivity is required to understand why
a woman whose marriage has just broken because she has been battered
physically, mentally or both, would want to rope in everyone that she can
think of.
The judgement blames the woman for having sought redressal for her
violations in law. The "rising divorce cases", the "social fabric" and
"marriages dying in their infancy" are matters of concern for the judge at
the cost of the rising dowry and harassment related murders of women!
The remark (in the judgement) that remarriage becomes difficult is
unwarranted and mistaken. The underlying presumption is that marriage is
the only option for every Indian woman.
The nature of the law - 498A being criminal - implies that it is not meant
to confer rights but to define as offences, behavior that is socially
reprehensible, and to impose punishment for such offences.
Legislation on domestic violence is critically important in addressing the
problems and agonies faced by Indian women. Besides the fact that we need
better and more effective laws and their right implementation,
investigating agencies and the judiciary need to keep in step with the
larger issue of women's rights.
While no one is against the "family or the institution of marriage", the
ground reality is totally against the women of this country. For justice
to be accessible to women, we need laws such as the civil law on domestic
violence which has been proposed by the women's movement and accepted and
recommended by the Parliamentary Standing Committee of the Human Resources
Ministry of the Government of India.
– Leena Prasad
July 27, 2003
(Leena Prasad is an advocate
practising in Delhi, and is associated with the women's programme of
Lawyers Collective.)
By arrangement with
Womens Feature Service
Top
|
|
