-By Khushi Agrawal
With the incidents of domestic violence increasing by manifolds during COVID-19 times, it becomes pertinent to throw light on a 2017-judgement which reduced the importance of section 498-A IPC to a major extent. Section 498-A provides that if any person being the husband or the relative of the husband of a woman, subjects her to cruelty, that person shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Recently, expressing its concern over a magnificent spike in cases of dowry death, a local court in Jammu and Kashmir appealed to the Government to ensure that marriage counselling centres are set up in every district of Jammu and Kashmir. Among other points, the effectiveness of such a solution to tackle the menace of dowry deaths will be discussed in this present article.
Ever since Section 498-A was introduced in the Indian Penal Code, 1860 [“IPC”], questions and allegations about its misuse by women have perpetually sprung ever. While the public seems to be divided with respect to the validity of such allegations, the Supreme Court [“SC”], in the case of Rajesh Sharma and Ors v. State of UP, (heavily basing its decision on the National Crime Records Bureau [“NCRB”] data) adjudged that the said section was indeed being misused by women, and laid down several guidelines in order to curb or lessen such misuse. The major reason that prompted the court to lay down these guidelines was to prevent women from roping in all family members to settle a matrimonial dispute.
In this article, first and foremost, the author shall provide various flaws in the NCRB data, the most paramount ground on the basis of which SC has held that Section 498-A is being misused. The author shall then analyse as to why it was erroneous on the part of the court to approach the act (Section 498-A) by its action (filing a case under Section 498-A). Next, the author shall analyse as to why the way of tackling the issue of roping in all family members adopted by this court was fallacious, and shall also provide alternative ways in which the problem could have been dealt with. Finally, the author shall analyze the guidelines issued by the court to curb the alleged misuse of the said section, and show that the guidelines, in addition to being inefficient, do not abide by the object and purpose of the IPC.
I. FLAWED NCRB DATA
The court relied upon the following data in order to hold that directions to prevent misuse of Section 498-A are required:
“Out that of 4,66,079 cases that were pending in the start of 2013, only 7,258 were convicted while 38,165 were acquitted and 8,218 were withdrawn. The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.”
However, the portion of the NCRB data relied upon by the court provides an incomplete picture with regard to the disposal of cases relating to Section 498-A by the court in the year 2013. In order to understand the intricacies of the data, let us first see how the conviction rate was calculated by the NCRB.
A. Acquitted v. Discharged:
The conviction rate (as provided in the NCRB data) was calculated by comparing the cases registered under the “convicted” head with those under the “acquitted or discharged” head. Now, calculating the conviction rate on the basis of a combined head of “acquitted or discharged” is severely problematic because of massive difference between both the terms (acquitted and discharged). To understand why the same is problematic, let us understand the difference between discharge and acquittal.
The regular procedure of law is that after completing its investigation, police file the final charge sheet under Section 173 of the Code of Criminal Procedure, 1973 [“CrPC”] and thereafter trial against the accused begins. However, Sections 239 and 227 of CrPC provide that before the charges are framed against an accused person, he can be discharged. This happens if, upon due consideration of the police reports and all the documents along with examinations of the accused, and on hearing both sides, the charge is found to be devoid of any ground. In such a case, the accused is discharged and the magistrate records his reasons for such discharge.
For the purpose of deciding whether the grounds are sufficient or not for proceeding against an accused, the court determines the question whether the material on record, if it is un-rebutted, is sufficient to make the conviction possible. However, being discharged does not mean that the accused is innocent, or that a false complaint was filed against him. Under Section 227 of the CrPC, the accused is released on the ground of non-availability of the materials collected by the office during the investigation. Such discharge primarily happens due to ineffectual investigation; the accused, however, is not absolved of all charges at this stage. Acquittal only takes place once conclusive innocence of the accused is established after a full inquiry is done.
Why this difference is the most important one when it comes to cases filed under Section 498-A is because the nature of the crime is extremely personal. The abuse, harassment, beating, takes place within the four walls of the house. Because of this, collection and availability of evidence becomes/is really difficult. Thus, an accused being let off the hook at the discharge state does not ensure that the complainant had filed a false complaint.
Therefore, relying on the conviction rate calculated on the basis of “acquitted or discharged” rate does not provide a conclusive and clear picture of the percentage of people.
B. Cases withdrawn or compounded by the parties (8218):
Although Section 498-A is a non-compoundable offence, courts have held that despite the offence being non-compoundable, as long as the parties reach an ‘amicable’ settlement, they should be allowed to do so. The word of focus here is ‘amicable’, which means without any discord or disagreement. In such cases, High Court allows criminals proceedings to be quashed if, in its view, the compromise reached at between the parties would reduce the possibility of conviction, and continuation of criminal case would put the accused to extreme injustice and oppression in case the proceedings are made to continue with.
Another point of prime importance to be noted is that the institution of family reserves a very pertinent position in the India culture. Thus, if reconciliation ends in fruitful success of making the parties re-united, the concerned Judge would not proceed with the matter further. In the same breath, the courts, while respecting the integrity and privacy of the institution of family, allows the parties to reach an amicable settlement in Section 498-A cases.
Further, some cases are settled before coming to court itself, i.e., in women cells, police stations and mediation cells, and are withdrawn before they see the light of the day in courts. In cases of settlement done in police station, women are forced to settle by the police officers due to the stigma attached to women pursuing legal actions against their family in India. Donna Fernandes, one of the founders of Vimochana (forum for women rights) said that “Even though the law does not mandate it, women filing dowry harassment cases are being subjected to forced counselling by the police”.
Thus, the NCRB data presents an incomplete and dishonest picture when it portrays the conviction rate to be 16% as it does not take into account the cases compounded.
II. APPROACHING THE ACT BY ITS ACTION – WHY WOMEN STILL NEED SECTION 498-A IN INDIA?
Section 498-A was introduced to protect helpless women who were regularly being abused and beaten by their husbands and his family members. To introduce this section was the need of the hour. In such a scenario, to bring changes under the said section so as to destroy all the benefits given to women would make sense only when the object behind introducing the section is fulfilled. This is to say, when the condition of women is improved, both socially and economically. Approaching the said section and bringing changes in it because there is a chunk of population that is misusing the act does not seem to fulfill the purpose of the said section in any manner.
The author would like to bring to light certain statistics which would go on to show that violence against women is still prevalent in India, which is why they still need Section 498-A to shield themselves.
According to the 2015-16 National Family Health Survey (NFHS-4), 52% of women and 42% of men agreed with one or more of the specified reasons for wife beating, which included, she goes out without telling him, she neglects the house or the children, she argues with him (which are very minute things). India was ranked as world’s most dangerous country for women due to the high risk of sexual violence. Furthermore, India is globally ranked at 133 out of 167 countries in Women, Peace, and Security Index. Economically, women still remain inferior to men. The labour force participation rate for women in India was only 28.5% in 2017. Even when women are able to access employment, their pay is unequal. Women in India, on average, earn up to 30% less than their male counterparts. In India, 22 women have been killed in dowry-related murders every day. Around 31% of married women have witnessed physical, sexual or emotional abuse from their partners, the NFHS-4 indicates. In India, the gender gap is as high as 67%. 80% of working women suffer domestic violence at the hands of their husbands.
These numbers go on to show that women in India continue to be victims of discrimination, inequality, violence, cruelty, assault at the hands of the patriarchal Indian society. The need to protect the interests of women must still be of paramount importance to the lawmakers as well as the judiciary.
In such a scenario, laying down guidelines defeating the purpose of the section would further deteriorate the condition of women in India. Women already feel hesitant in reporting such cases against them, what would happen when the law turns against their favour is a thought for a dark day in India’s legal history.
III. MEANING OF “RELATIVE” UNDER THE SECTION
One of the reasons why the court laid down these guidelines was because it noted that there was a growing tendency to abuse the said provision to rope in all the relatives, including parents of advanced age, minor children, siblings, grand-parents and uncles merely of the basis of vague allegations, and complete absence of any evidence of physical or mental harm or injury.
In the author’s opinion, this issue arises because the word is not defined anywhere in the IPC, which gives the victim sweeping powers to rope in as many people as she wants to. However, from a range of cases, it can be construed that the word ‘relatives’ would include people related to the husband by blood, marriage, or adoption, and people such as foster sister of the husband and sister of the complainant shall not find a place in such definition.
Thus, the court in Rajesh Sharma and Ors v. State of UP committed the grave error of approaching the issue of non-comprehensiveness in the act by diluting the provision itself. The Court must have, in the absence of definition of phrases by statute, understood them in the natural, ordinary or popular sense.
However, even in cases of blood relatives, etc., there might arise an issue that really old and sick parents, people from extended family (related by blood) are also roped in. In such cases, what the author believes is that such people should be put under house arrest, instead of being dragged to police stations. Although the term `house arrest’ does not find any mention in the CrPC or the IPC, but certain judges have invented this term to justify their decree, by falling back upon Article 142 of the Constitution of India that empowers the Supreme Court to “pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India…until provision in that behalf is so made ….in such manner as the President may by order prescribe.” What I am suggesting is an amendment in the CrPC which should allow all courts the power to order for house arrest. When the accused(s) are produced before the magistrate after 24 hours the magistrate must be provided an option by law to order house arrest (in addition to sending them back to jail or ordering a judicial remand). House arrest means confining a person within his house or any other place of choice. In addition to the restriction placed on the person’s communication, he is also put under constant police surveillance. In house arrests, what is beneficial is that all the relatives of the husband who are roped in would be allowed to stay in the comfort of their homes, while being under police scrutiny as well. Now, the issue that arises is who among the relatives is to be sent back to prison, given a judicial remand, or put under house arrest. To resolve this issue, the courts must be accorded the power to pass any orders “necessary for doing complete justice in any cause or matter pending before it”. Thus, the courts must use their discretion from case to case basis while deciding the question of who to be put under house arrest and who to be held back in jail, or given judicial remand.
IV. UNEFFECTIVE GUIDELINES
Now that we understand why relying on the NCRB data to come to the conclusion that Section 498-A is being misused is problematic and even incorrect, let’s understand how the guidelines provided for prevention of the misuse (if any) are neither comprehensive nor effective enough to serve the end that it seeks to achieve.
The SC, in its judgement, provided for the constitution of one or more family welfare committees in every district whose task would be to look into the complaints reported to the police or the magistrate under Section 498-A. The committee is then supposed to form a report on the matter in which it may give a brief of factual aspects and its opinion of the matter. This report must then be considered by the investigating officer on its own merit. Till the report of the committee is received, no arrest should normally be affected. Now, the two very problematic aspects of such a committee are as follows:
- No arrest is to be made before such a report is given by the committee to the concerned authorities. The time period provided to the committee to complete this task is one month. Why this is problematic and does not serve the purpose of the code is because it indirectly has the effect of converting the crime under Section 498-A from a cognizable offence into a non-cognizable offence. The reason why Section 498-A was made a cognizable offence was, a. due to its severity, b. due to the ability of the accused to flee away if there is time gap between investigation and arrest, c. to prevent the accused from manipulating the evidence as well as the victim (which is very easy in a social set up like India’s where females are still vulnerable at the hands of a patriarchal society), d. since the crime takes place within the four walls of the house, it is difficult to establish guilt within a short period of time, therefore women should be protected from any further cruelty that may be meted out to her in that time period. The time period of one month provided to the committee to make a report provides a window to the accused to both flee as well as manipulate the evidence.
In such a scenario, making the offense non-cognizable is as good as abrogating the offence all together. This, in turn, defeats the purpose for which Section 498-A was introduced, which was to protect women from being subjected to cruelty and harassment by her husband and family members.
- The second flawed aspect is the constitution of the committee. The judgement provides that the committee may consist of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing. The members that have set out the judgement are the one who have no prior knowledge as well as experience of dealing with “legal disputes” as well as “counselling couples”. All that it says is that members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time. Having said that, it takes years and years of study as well as experience in the concerned field for one to be a lawyer as well as a counsellor or a mediator. In such a case, “minimum training” from “time to time” seems to be way too casual and insincere for a crime of such a serious nature that it seeks to deal with. Furthermore, it fails to clearly define the characteristics of a “suitable” citizen.
It is to be noted that there might be a chunk of the population that would be misusing the said provision. However, placing heavy reliance on the NCRB data to come to the conclusion that the majority of the cases are false is also a misdeed in itself because of the reasons stated above. Further, the guidelines laid down by the court to deal with the problem of misuse of the said provision, instead of dealing with the misuse, dilutes the object of the code by making the said crime non-cognizable, and lays down the constitution of the committee in a non-serious manner. With the statistics provided above, it is to be noted that women still are in a vulnerable position as compared to men in India, which is why they still need the help of the said provision to fight the battle of abuse against them. Although there is a tendency of the victim to rope in as many relatives as she can, the issue has to be dealt with by providing a comprehensive definition for the term ‘relative’ and not by diluting the provision itself. As seen above, the courts have walked on the path of defining the term and have been successful as well.
Thus, the approach of the court in dealing with the misuse, has by and large, negated the object and purpose of introducing the said provision.
[The author is a second year B.A.LL.B student at NLU Jodhpur.]