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Diluting dowry law betrays Gender Bias

It is high time we place the blame of the ‘misuse’ (or for registering ‘false cases’) squarely where it belongs — with the police. To blame women for corruption within the police is adding insult to injury.

The recent announcement by the ministry of home affairs, that the government is planning to dilute the provisions of Indian Penal Code’s Section 498A due to its alleged misuse has alarmed not just women’s rights advocates, but also the minister for women and child development, Maneka Gandhi. All are worried that such a move would be detrimental to women, as this is the only criminal provision to ensure their safety.

Though the popular projection of this section is that it is an anti-dowry law, the reality is that the section was introduced to safeguard women who are subjected to grave physical or mental cruelty for whatever reason. Sec. 498A clearly states that its objective is “to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-law’s and relatives”.

Yet, surprisingly, the entire discussion about its misuse revolves around “dowry” with scant attention being paid to the physical or mental violence that women face every day. United Nations statistics reveal that one in every three married woman in India is a victim of domestic violence.

In Mumbai, a highly litigation metropolis, the total number of cases registered in 2014 under Sec. 498A were a miniscule 524. In the same year, 113 women were either murdered or committed suicide in their matrimonial homes.

The irony is that in most cases of domestic violence, women who approach the police are driven away. In cases of extreme brutality, with severe injuries, at best a non-cognisable complaint is recorded. Instead of providing protection to the woman, the couple is sent for “joint counselling”, which in most cases amounts to reconciliation on husband’s terms. No norms or guidelines are followed and “save the marriage” appears to be the motto, even at the cost of the woman’s safety and dignity.

So how did the 524 women succeed in registering their complaints, you may wonder. An officer at a police training explained: “They come to us with their lawyers, or referrals from higher officers, a politician or an influential community leader, and ‘force’ us to lodge a complaint.” Women who cannot exert such “pressure” fall by the wayside, howsoever brutal the violence they are being subjected to. Seldom are complaints registered and arrests made as per the merit of the case. The status of the parties involved and the nexus between police and criminal lawyers are the dominating factors.

The two main contentious issues in the context of “misuse” of Sec. 498A are lodging of “false” cases and “arbitrary” arrests. There are a number of Supreme Court guidelines to curb both.

Regarding lodging a “false” case, the Constitutional Bench’s ruling in Lalita Kumari vs State of Uttar Pradesh, 2014, laid down that if a woman’s complaint discloses commission of a cognisable offence, it is mandatory for the police to register an FIR. When the information does not disclose a cognisable offence, the police can conduct a preliminary inquiry. If after inquiry no cognisable offence is disclosed, the complaint can be closed. Reasons for the same must be furnished to the complainant within a week.

The second and more important issue is of “arbitrary” arrest. The scathing remarks about women misusing the law by various high courts and the Supreme Court are made in the context of “arbitrary arrests” — the arrest of a sister-in-law residing abroad, a 17-year-old brother-in-law in the midst of exams, and an old, infirm, bedridden mother-in-law are the oft-cited examples. Here again women are blamed.

Registering an FIR and arrest are not synonymous. The section dealing with arrest (Sec. 41, Code of Criminal Procedure) was amended in 2008 to clarify that arrest must be done with caution. In July 2014, in Arnesh Kumar vs State of Bihar, the powers of the police to arrest in cases under Sec. 498A were further curtailed and it is now mandatory to obtain the permission of the magistrate as per a checklist provided.

The police have the final option of not filing a chargesheet and closing a case by filing a closure report before the magistrate. Yet, it’s surprising to note that in 93.6 per cent of cases registered under Sec. 498A, after investigating the offence, the police filed chargesheets, which indicates that investigations revealed that the complaints were genuine.

In spite of it being obvious that in a criminal case the power to lodge, arrest, investigate and chargesheet lies only with the police, the perception that “women are misusing the law” persists. The discussion around “false case” takes place only in cases of domestic violence, and only when women are the victims.

On March 3, Union minister of state for home Haribhai Chaudhary stated in the Lok Sabha that 10,193 cases filed under Sec. 498A were found to be false in 2011; the number rose to 10,235 in 2012, and reached 10,864 in 2013. He did not state what these figures are based on. If they are based on acquittals, the reason for acquittals are many and not all indicate that the case filed was “false”. For a case to be categorised as a “false case”, it should go through a full-length trial and the judgment must contain a clear indictment against the complainant and criminal proceedings need to be initiated against such persons. The fact is that many reported cases get “settled” due to a compromise arrived at between parties, or in divorce proceedings. This does not make the case “false”. All criminal cases have very low conviction rate as they have to be proved “beyond reasonable doubt”. This does not mean that these cases were false.

It is high time we place the blame of the “misuse” (or for registering “false cases”) squarely where it belongs — with the police. To blame women for corruption within the police is adding insult to injury. To further dilute one of the most significant criminal provisions introduced to ensure women’s safety in their marital home would be akin to throwing out the baby with the bath water. Instead, we need to address the issue of under reporting. Thousands of poor and marginalised victims are turned away from police stations and deprived of their right to a life with dignity. Some of them end up dead, only because the state failed in its fundamental duty to protect them. Surely, when Prime Minister Narendra Modi talks of “beti bachao”, he also means saving her from physical abuse by her own family.

The writer is the programme director of Majlis, a legal centre that provides socio-legal support to women survivors of violence

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