Tuesday, April 5, 2011


Violence against women is a phenomenon that cuts across boundaries of culture, class, education, ethnicity and age. The feminist movement of the 70s and 80s made a major contribution in bringing pressure on the  Central Government and the Criminal Law Amendment Committee (1982) to provide legislative protection to women against domestic violence and dowry so that the victim gets justice while she is alive. As a result significant amendments were made in the Indian Penal Code, the Indian Evidence Act and the Dowry Prohibition Act, with the intention of protecting women from marital violence, abuse and dowry demands. The most important amendment came in the form of the introduction of Section 498-A in the Indian Penal Code which reads as follows:-
 “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
 Explanation-  For the purpose of this section, "cruelty" means-
 (a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
 (b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand.”
The offence under Section 498-A is cognizable (the accused can be arrested and jailed without warrant or investigation), non-compoundable (the complaint cannot be withdrawn by the petitioner) and non-bailable  (the accused must be produced in court for getting bail and he will have to be put behind the bars till bail is granted).
In several cases, the FIR (complaint given by the wife) is typically an imaginary story, running into many pages, with absolutely no supporting evidence. It typically takes about 3 to 8 years for the accused (husband and his relatives) to prove their innocence in the court. There is no penalty for the misuse of this provision of law and after acquittal of the accused the courts are reluctant to entertain defamation and perjury cases against the falsely testifying witnesses. This has given rise to the formation of Harassed Husbands Associations in various States and also at the All India level. Seminars, Conferences, Processions etc are organized by such associations to throw light on the harassment suffered by the husbands at the hands of their wives.
The Supreme Court of India,  in  Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 266 was pleased to observe as follows:
“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner  many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:
         “16.4.4.  Less tolerant, 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, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn 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 can not 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.
      16.4.5.  This section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non compoundable, makes an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together.”
Taking cognizance of the increasing number of false complaints being filed under section 498-A of the Indian Penal Code (IPC), the Central Government recently issued directives to the State Governments not to make any immediate arrests but conduct thorough investigations before taking any action. However, it is widely felt that unless women are punished for lodging false complaints, this directive would not help.
- P.RAJENDRAN     www.prajendran.com