January 31, 2005

The Use and Misuse of 'Dowry' Laws

On Section 498A, IPC

Sometime ago, I found the following comment in the list waiting for approval before being displayed on my site.
    Name : MisuseDowryLaws 
    URL : http://misuseof498a.clawz.com 
    Comment : Because of extremism displayed by some selected Feminists in India, there will be great fun in coming years. Please search for dowry 498a in google and find the emergence of a backlash and angryharry.com in India.
I was somehow rather surprised by it because whoever wrote it seems to associate Section 498A of the Indian Penal Code exclusively with Indian anti-dowry laws. I have, of course, often heard allegations of the section being misused but have very rarely heard any actual cases being cited to support such a claim.

In fact, a Tata Institute of Social Sciences study in 1999 indicates that few women's organisations recommend recourse to section 498A IPC as a first resort and that the number of such cases are miniscule in comparison to the prevalence of domestic violence. However, such studies have done little to stop a large spectrum of people ranging right from husbands and their families to some members of the judiciary from voicing their complaints.


There seem to be two sides to the story : one is that Indian society is patriarchal and public attitudes are firmly in favour of men and wives are usually held responsible for marital problems as the following statement in a report prepared by the legal adviser to the Delhi Commissioner of Police in November 2000 shows: "...the reasons for disharmony between the wife and the husband arise only when either the wife is reluctant/refuses to adjust herself in the family circumstances or if the husband feels reluctant to accommodate his wife either on account of unnecessary interference by the parents of the wife or non-cooperative attitude of the wife."

It would be hard for anyone to deny that domestic violence is rampant -- a look at any given day's edition of a local newspaper would probably report at least two cases of women who've been killed / burned to death by it. And those are just the most extreme cases. No one really knows how many instances of domestic violence go completely unnoticed and it seems faintly ridiculous to me to repeal or to render useless one of the few laws which exist to combat it.

This, however, is precisely what the The (all male) Malimath Committee appears to have suggested in a way by recommending that such complaints be made bailable and compoundable. The committee produced a 600 page report which among other things included 16 research papers but for some reason excluded not only any discussion on the issue of violence against women but also excluded any inputs either from victims of marital cruelty or from those working in the field. Some of its reasoning seems to have been encapsulated in 16.4.4 of the report which says:
"A less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, especially if the husband cannot pay. Now the woman may change her mind and get into the mood to forget and forgive. The husband may also realize the mistakes committed and come forward to turn over a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family."
But the other side of the story is that there is abuse of the law although the extent to which such abuse takes place has never been firmly established. There are of course women who use Section 498A of the IPC for their own ends but what one also has to realise is that very often women are encouraged by others to add that the violence they faced was related to dowry so that their complaints are taken 'seriously'. And that is what is ironical because Section 498A itself is not designed exclusively in reference to dowry-related problems : in itself, it is meant to deal with all forms of domestic violence.

Section 498A is, in a way, in favour of women. It was created by an amendment to the Indian Penal Code in 1983. Complaints under it are cognizable, non-bailable and non-compoundable. Close on its heels came two amendments to the Dowry Prohibition Act of 1961 -- in 1984 and 1986 -- which made dowry giving and taking cognizable offences. Those accused of a crime under Section 498A of the IPC or of taking dowry are required to bear the burden of proof; contrary to the general rule, the accused are, as per statutory law, required to prove that they have not committed a crime. (Section 8A of the Dowry Prohibition Act states: 'Where any person is prosecuted for taking or abetting the taking of any dowry under Sec. 3, or the demanding of dowry under Sec.4, the burden of proving that he had not committed an offence under those sections shall be on him.')

Tilting the balance in favour of women has often been useful since previously women could not meet the burden of proof quite simply because marital violence usually occurred behind closed doors and that being the case, in the absence of independent witnesses, there was no easy way for women to prove their cases beyond reasonable doubt as is required under criminal law.

The problem, however, has been that there was no working mechanism brought into play to ensure that no false claims were made under Section 498A of the IPC. The law against perjury has not been known to be especially effective in India and, although there exist a number of provisions in the Indian Penal Code (in Sections 191 to 211) which deal with perjury, it could be argued that there have been no strong deterrents brought into play to help ensure that only genuine complaints are made under Section 498A of the IPC.

In December 2003, the Minister of State for Home Affairs, I. D. Swami said, "There is no information available with the Government to come to the conclusion that many families in India are suffering due to exaggerated allegations of harassment and dowry cases made by women against their husbands and other family members involving them in criminal misappropriation and cruelty."

The statement is probably not entirely true although cases of abuse of Section 498A may simply be isolated ones and not part of a general trend. The solution to potential misuse of the Section though probably doesn't lie in making the law bailable and compoundable (much less in repealing it) but developing a working mechanism to deter the making of patently false complaints. Separating bonafide and malafide complaints by enforcing the provisions of the existing law including, where necessary, those relating to perjury would, in all likelihood, solve the problems spoken of in relation to Section 498A of the IPC.

References:

1. Statement referred to in reply to Rajya Sabha starred question no. 230 for 17.12.2003 regarding amendments in sections 406 and 498A of the IPC: http://164.100.24.219/annex/200/AS230.htm

2. Laws against domestic violence : Underused or Abused? by Madhu Kishwar: http://www.indiatogether.org/manushi/issue120/domestic.htm

3. Misuse of 498A - much ado about nothing? by Bikram Jeet Batra: http://www.indiatogether.org/2004/mar/law-sect498a.htm

Update | Jan 2012 wrt. marital rape and domestic violence:

In early 2012, Tripti Lahiri wrote a piece on how to report a rape in India where she described what should happen in the process of reporting rape (although not necessarily what does happen), while Rupa Subramanya spoke of the colonial hangover of India’s rape law highlighting reasons why it needs to be amended. I was, however, individually told of concerns persons had about making marital rape a criminal act at par with stranger rape; these concerns were expressed in conjunction with claims about the allegedly widespread misuse of Section 498A of the IPC which deals with a woman being subjected to cruelty by her husband or his relative.

Those against S 498A, IPC appeared to: (a) say that the Supreme Court held 498A is legal terrorism although my understanding is that the Supreme Court stated that by misuse of s 498A, 'a new legal terrorism can be unleashed', not that 498A itself is legal terrorism; and (b) claim that the non-conviction rates in 498A cases (apparently at 74%; I didn't cross-check) indicated that most cases are false, ignoring the fact that the lack of a conviction (in any case) doesn't automatically always mean that it was filed with absolutely no basis. Finally, those against S 498A fell back on the rhetoric of misuse — depending on who spoke to me, misuse was pegged between 95% and 'all' never mind that the claim of 498A being nothing but a tool to torture husbands was not even supported by a misinterpretation of conviction rates. As is probably obvious, I'm not especially sympathetic to those against S 498A per se although I do acknowledge that it can be misused (like any other law); my views (above) on it today haven't changed much from what they were about ten years ago.

(The first paragraph of this update has been cross-posted from Genderlog.)



Addenda:

There's an oft-repeated line about how very many men in India commit suicide due to Section 498A of the Indian Penal Code being abused; 62,000 a year is the figure used. This is what one morning's reading led me to: