Response to the Committee on Petitions of the Rajya Sabha considering a petition praying for amendments in Section 498 A IPC 1860

The Committee on Petitions of the Rajya Sabha is considering a
petition praying for amendments in Section 498 A IPC, 1860. The
petitioner has alleged abuse and extensive misuse of the provision by
stating that without any evidence “abused population undergoes
tremendous harassment and torture”. Accordingly, the Committee is
considering suitable modification in the section to check abuse and
protect interest of innocent persons.  Full petition is attached with
this mail and also be read at the Rajya Sabha website
www.rajyasabha.nic.in.

This debate on amendments in Section 498 A has been around for some
years and women’s organizations strongly believe that the law protects
women who are victimized by their partners or his family. Any attempts
to dilute this law would only make it inaccessible to the victims.

With the committee fixing December 30, 2010 as the last day of
receiving comments and suggestions on the Section, it becomes
imperative that we respond to for the rejection of this petition
vehemently. Yesterday I met the chairperson and it seems that he has
strong views about its misuse. Please see below the response submitted.

 

TO: COMMITTEE ON PETITIONS

This response is rendered to the petition submitted by one Dr. Anupama Singh before the Rajya Sabha seeking amendments to Section 498A of the Indian Penal Code (IPC), 1860. Section 498A was incorporated in 1983 after a long and arduous struggle by the women’s movement to address the domestic violence and dowry related torture endured by Indian women. The petition in question prays that Section 498A be made non cognizable, compoundable and bailable. WomenPowerConnect (WPC), Centre for Social Research (CSR), and its partner organisations vehemently object to these amendments and seek that the petition be quashed in its entirety.

BACKGROUND OF SECTION 498A

Section 498A reads as follows:

Husband or relative of husband of a woman subjecting her to cruelty- 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'[1] means:

(a) any wilful 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 to meet such demand.

113A reads as follows:

Presumption as to abetment of suicide by a married women.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the   other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation- For the purposes of this section, "cruelty" shall have the same meaning as in section 498 A IPC

Section 113B reads as follows:

Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation-For the purpose of this section `dowry death' shall have the same meaning as in Section have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).

Section 498A was incorporated into the Indian Penal Code after a long struggle by women’s rights activists highlighting the increased number of dowry deaths despite the enactment of the Dowry Prohibition Act.  This amendment was groundbreaking in that it sought to make domestic violence a criminal offence. While Section 304B of the Indian Penal Code was incorporated to deal with murders of recently married women, Section 498A was now added in the IPC for women being ill-treated by the husband or his relatives. The sphere of Section 304B, dealing with death by burns, bodily injury or any other unnatural manner of a woman being subjected to cruelty or harassment for dowry within seven years of marriage, was held to be distinct from the area covered by Section 498A. This section was brought in specifically to deal with cases not only of dowry deaths but also of cruelty towards married women by their husbands, in-laws and relatives. It therefore made cruelty per se punishable. Under the law the offence is cognizable, non-compoundable and non bailable, and offenders are liable for imprisonment as well as a fine.

DOWRY RELATED VIOLENCE INCREASING

Regardless of this historic amendment, women continued and still continue to suffer violence within their homes. Rather than diluting this existing law which seeks to provide protection, institutions should be engaged in strengthening its implementation so it can be effectively used by the population it is meant to serve. Studies have shown that the number of cases registered under 498A are minuscule compared to the prevalence of domestic violence. Dowry deaths and claims of torture have been steadily increasing according to NCRB statistics. There is no doubt that a large number of cases go unreported or do not enter the domain of the law. 

Currently, according to the official NCRB statistics, 81,344 cases were filed under Section 498A in 2008.[2] This number is a drop in the bucket for the percentage of women who face domestic violence. Women generally are not aware that this law exists for their protection. Human Rights Watch reports that police, including those at Crimes Against Women (CAW) Cells and other special departments, fail to inform women who are victims of domestic violence and other crimes of their right to have an FIR registered under section 498A.[3] Even when complaints are registered, proper investigation and carrying out of justice is lacking both by the police and in courts. Furthermore, lengthy trials inhibit access to justice. The case of State of Haryana V Jasvinder Singh (2002), heard by the Supreme Court on appeal, rebuked the callousness of the State for letting the case remain pending for seven years.

Dr. Anupama Singh cites NCRB statistics from2003-2006. Of 5,01,020 arrests made under Section 498A, only 2,94,147 made it to the trial phase,  and out of these only 58,842 convictions were rendered.[4] The large discrepancy in the cases registered and actual convictions illustrates a gap in implementation. Victims often turn to the police only as a last resort and typically when the violence has escalated. Yet, the police do not treat domestic violence as a normal criminal offence to be registered and investigated, with the perpetrators arrested or monitored. Instead, they encourage compromise between domestic violence victims and their spouses or spouses’ families, even when women allege repeated physical abuse. Authorities fail women victims of violence when they coerce reconciliation and ignore state obligations to promote safety and implement the laws. 

CLAIMS OF 498A MISUSE UNSUPPORTED

Allegations of misuse of section 498A by women have been voiced, exemplified by the said petition. Most such allegations have been anecdotal or general in nature with little statistical data to substantiate these claims. Dr. Anupama Singh's assertions fall into this category. Many claims have been made regarding the misuse of the law, yet no data to corroborate such statements is provided. Furthermore, it is well settled that mere possibility of abuse of law does not per se invalidate legislation. 

In Sushil Kumar Sharma vs. U.O.I (2005), the Supreme Court refused to strike down Section 498A as unconstitutional and invalid. It observed that the provision had been brought in because the increase in the number of dowry deaths was a matter of serious concern. Addressing the issue of abuse of the Section, the court held that the mere possibility of abuse of a provision of law does not invalidate the law. In cases of abuse, it is the action and not the Section that may be vulnerable. The court, while upholding the provision of law, may still set aside the action, order or decision and grant relief to the aggrieved person.

The Malimath Committee cited by Dr. Anupama Singh, aside from giving a blanket statement on misuse, also provides no evidence of it in its 600 page report.  The report included 360 pages of data, considered 16 research papers and 23 reports, as well as answers to questionnaires the committee sent out.[5] Yet none of these discussed the issue of violence against women, much less section 498A.[6] Neither did the Committee get the views of either victims of domestic violence, or of groups and individuals working on these issues in arriving at its recommendation of making Section 498A compoundable and bailable.[7]

It is also worthy to assert here that no law is free from misuse, rather in most cases, misuse occurs by those in power. Despite evidence suggesting gross misuse of various laws, a serious question arises as to the selection of this particular petition and the need to amend Section 498A. The key issue here is that this law was introduced to protect women facing violence in society dominated and controlled by patriarchy. It was introduced to uphold the dignity of women as enshrined in the Constitution of India and to protect their vulnerable situation.

498A MUST REMAIN COGNIZABLE, NON COMPOUNDABLE, NON BAILABLE

A non cognizable offence prevents the police from registering a FIR, investigating, or ordering an arrest without the express permission or directions from the court. In effect this would mean that the police could not respond to any complaint made by a woman in distress under this Section. Most women affected by domestic violence do not have the resources or ability to navigate through the judicial process to file an initial complaint.  It would therefore place an undue burden on the party for whose benefit this law was enacted.

Making the offence compoundable implies that the complainant may withdraw her police complaint at any point of time. In the eyes of the authorities, this might give the marriage another chance but it can, just as easily, make the woman even more vulnerable to exploitation. In most cases the husband and the woman's in-laws would offer reconciliation so that the woman withdraws the case. She would be subjected to increased pressure to compromise. Given the Indian familial context, the woman is most likely to give in, but by doing so she would end up being far more vulnerable to cruelty and violence. This is highlighted in case of Brij Lal v Prem Chand (1989). The Supreme Court observed a compromise was reached and the deceased came back to live with her husband and in-laws after receiving assurance that she would no longer be in danger.  The Court went on to say "…it is regretted to say that the High Court dealt the matter in a somewhat superficial manner and acquitted the accused on the basis of imaginary premises. High Court has failed to comprehend evidence in its full conspectus and instead has whittled down the evidence by spurious reasoning." Effective from August 1, 2003 the state of Andhra Pradesh made the law compoundable as per Section 320(2) of the Cr.PC. Yet, no data has been produced to demonstrate how effectively such a change has curtailed the alleged misuse of the Section 498A.

Section 498A should remain non bailable, requiring the accused to appear before a magistrate to obtain bail. Otherwise perpetrators would not be arrested. Already in many cases, accused husbands obtain bail immediately. In other cases, they forgo the arresting procedure completely when they are taken directly to the courts with corrupt police assistance.

SAFEGUARDS AGAINST FALSE CLAIMS EXIST

As for making a false assertion under any provision of the Indian Penal Code, safeguards against abuse and misuse already exist. Section 182 makes giving false information to a public servant with the intent to cause injury to another person punishable by imprisonment. Additionally, making a false claim in court and a false charge with the intent to injure are punishable under Section 209 and 211 IPC respectively.  Moreover, new amendments to the Code of Criminal Procedure have been incorporated to curtail the arresting power of the police. Per Section 41A, the police instead of arresting the accused, will be obliged to issue him a notice of appearance for any offence punishable with imprisonment up to seven years. The person can be arrested only if he does not appear before the police in response to the notice. Additionally, it has been held in Joginder Kumar v State of U.P (1994) that “no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing and the justification for the exercise of it is quite another. The police officer must be able to justify the arrest apart from his power to do so…No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional right of a citizen and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to the need to effect arrest.” The court in Som Mittal v Government of Karnataka (2008) referring to the holding in Joginder Kumar v State of U.P goes on to say that “despite this categorical judgment of the Supreme Court it appears that the police is not at all implementing it. What invariably happens is that, whenever an FIR of a cognizable offence is lodged, the police immediately goes to arrest the accused person. This is clear violation of the aforesaid judgement of the Supreme Court.”

 

RECOMMENDATIONS AND CONCLUSION

All laws are capable of and subject to abuse and misuse, including Section 498A. The solution, however, does not lie in dismissing the law or taking away its teeth by making it non cognizable, compoundable, and bailable. The accusation that upper class and educated women misuse the law is misplaced. Dr. Anupama Singh used the statement from a study conducted by the Centre for Social Research (CSR).[8] However that statement was incorrectly cited and presented out of context. If the study is viewed in whole, the findings by CSR reveal that Section 498A is not being utilized enough by victims of domestic violence. It concludes that victims find the Section useful and felt the need for further strengthening it. The provision is the only Section which acts as an effective redress mechanism for victims of domestic violence. If the law enforcing mechanism does its job properly, such so called misuse would not happen. Steps need to be taken towards more effective use of the law. Other improvements include defining the term “cruelty” better and providing operational indicators to reduce its ambiguity in use. It has been the experience that due to this vague terminology, proving physical and mental torture becomes difficult, resulting in the acquittal of the accused for lack of evidence.

In conclusion, we call upon the Committee to quash the petition submitted by Dr. Anupama Singh. It lacks any substantive claims, rather relying only on frivolous assertions. In addition, we would like the Committee to severely take note of the extremely derogatory and degrading language used in the petition regarding women. Until the time comes when women are not victims of this demonstrated patriarchy, a gender neutral law cannot exist. It is the responsibility of the State to ensure that all its citizens, especially the most historically marginalized, are provided the protection deserved to live a life of dignity and respect. In taking consideration of the issues presented by this response regarding to Section 498A, we urge the investigating and implementation agencies, as well as the judiciary to keep in step with the larger issue of advancing women’s rights. 

                                                           

 

 

 

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[1] Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order for the application of Section 498A IPC. Cruelty has been defined in the explanation for the purpose of Section 498A. It is to be noted that Sections 304B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. Cruelty is a common essential to both the Sections and has to be proved.  The explanation to Section 498A gives the meaning of cruelty. In Section 304B there is no such explanation about the meaning of cruelty.

[2] NCRB, 2008. Crimes Against Women. Ministry of Home Affairs.

[3] Broken System: Dysfunction, Abuse and Impunity in the Indian Police. Human Rights Watch. 2009.

[4] NCRB (2003-2006), Ministry of Home Affairs.

[5] Report of the Malimath Committee on Reforms of the Criminal Justice System: Some Observations. Amnesty International India, 2003.

[6] Id.

[7] Id.

[8] A Research Study on the Use and Misuse of Section 498A of the Indian Penal Code. Centre for Social Research.  2005.