We can’t let a patriarchal barrier erect between the battered women and the law.


The latest Supreme Court order on domestic violence and abuse cases, ostensibly to “prevent the misuse of Section 498A of the Indian Penal Code” that penalises violence by husband and in-laws, is one more regressive step that undoes many decades of the feminist fight for equal rights, and women’s right to legal remedy in situations as delicate and volatile as domestic violence.

On July 27, the apex court pronounced its judgment issuing a new set of directions to “prevent the misuse of Section 498A of the IPC”, as the two-judge bench of Justices AK Goel and UU Lalit asked for the constitution of “family welfare committees” to look into cases against Section 498A before any action is taken on the matters.

The judgment, in case titled, “Rajesh Sharma and Ors versus State of Uttar Pradesh”, is, in fact, the latest in the now long line of regressive verdicts that seek to overturn and undo the decades of women’s struggles for legal recourse, for bodily autonomy and privacy over family matters and patriarchal fetters informing those setups. In fact, in 2014, the top court had ordered that no automatic arrests should be undertaken under Section 498A of IPC because there’s “misuse” of the law by disgruntled women.

violence-women-body_080117034837.jpgThe narrative of ‘terrorised menfolk’, ‘battered husbands’, has consolidated itself enough to elicit a strong response from not only the SC, but also the Union Ministry of Women and Child Development.

The narrative of “terrorised men”, “battered husbands”, “victims of Section 498A”, “Section 498A as a brahmastra in the hands of wives/women” has gained so much traction over the last decade that male journalists do not hesitate to peddle this bunkum at the altar of equal rights. But when the Supreme Court itself falls for such a well-crafted male entitlement narrative, then commentators and “men’s rights activists” shouldn’t be singled out, though it’s definitely because of their relentless attempt to hijack the feminist achievements that the SC too has given in.

Subsuming women’s access to law

It’s worthwhile to note the return to the patriarchal roots in the 2014 judgment of the Supreme Court, when it said:

“There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and the relatives arrested under this provision. …The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across as heads…”

Family welfare over woman’s well-being

Just like in 2014, the focus has shifted from the battered woman to the family and well-being of the older in-laws, thereby once again consigning the autonomy of the woman to dust. In the latest 2017 judgment, the directions to create the “family welfare committee” are intended to save the institution of marriage than the woman who’s being abused within that institution.

This is dismissing her pleas of help as mere overreaction by a disgruntled wife, considering domestic violence as part and parcel of marital relationship, and not something that merits automatic action by the authorities, as well as chaining the woman to the marriage and erecting a patriarchal barrier of family welfare between her and the law, obstructing her to right to direct access and equality before law.

In fact, this 2017 order subsumes the married woman’s autonomy and infringes on her fundamental right to equality before law, right to life and liberty by asking mediators to come between her and the law that’s supposed to safeguard her.

Inserting patriarchy between women and law

The latest judgment of the Supreme Court has given the following directions:

i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.  

(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. 

(c) The Committee members will not be called as witnesses.

(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication.

e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f) The committee may give its brief report about the factual aspects and its opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be effected. 

It’s extremely disconcerting that “misuse” of law has been used as an excuse to water down the law itself, the Prevention of Cruelty in Domestic Violence Act, which was legislated in 2005 after much hue and cry and struggles by women’s rights groups and feminist advocates. As advocate Sanjoy Ghose observes, this is classic Supreme Court double standards because the top court had no qualms upholding Section 377 in the Suresh Kumar Kaushal versus Naz Foundation (also known as the infamous Kaushal judgment) of 2013, when it chose to overlook the misuse by police authorities and overturn Delhi High Court judgment of 2009 reading down Section 377.

The narrative of “terrorised menfolk”, “battered husbands”, has consolidated itself enough to elicit a strong response from not only the SC, but also the Union Ministry of Women and Child Development. Maneka Gandhi, in a twisted logic that reinserts male entitlement as a prerequisite to decide how the law should take its course, has said the need for a “window” to address men who complain of false cases. In a letter sent to the National Commission of Women chairperson Lalitha Kumaramangalam, Gandhi has asked for the window to be “operationalised within a fortnight” as she is particularly “concerned with the fact that the (men are battered) voice [becoming] more and more loud in the last few months”.

While Gandhi might be looking at addressing the rising concern, it’s the verdict from the Supreme Court that’s the real dampener.

In fact, advocate Sanjoy Ghose has explained how women in domestic abuse or violence, marital rape situations have little recourse but to slap Section 498A, as fighting a long-winded and extremely expensive civil suit for divorce and child custody remains a completely nonviable option for the women.

It is tragic that “family welfare” has become the lens through which to look at women’s grievances, and not via the women’s right to life, physical well-being, non-discrimination, etc.

This is a classic case of patriarchy rearing its head again and asserting itself through family welfare over and above the woman’s right as an equal citizen before the eyes of the law.

This clearly puts forward the mindset that women are not capable of speaking for themselves, and are emotional beings who use the law for vindictive purposes, weaponising the “shield”. This is classic distrust of the woman as an infantile hysteric not to be entrusted with looking after herself, or representing herself in the eyes of (a very patriarchal and once-again misogynistic) law.

The very fact that the SC has decided to resurrect the very biases that women’s organisations and legal NGOs fought tooth and nail to cast aside, at least from the rule book, is a blow to the foundations of the decades-long movements for women’s liberation, autonomy, financial and bodily independence, equal rights and non-discrimination, remedy against sexual harassment, abuse and domestic violence and many more struggles.http://www.dailyo.in/politics/supreme-court-domestic-abuse-womens-rights-section-498a/story/1/18704.html