Essays

The recent years witnessed the unfortunate rise in reported cases of domestic violence and murder. Some of these appeared to be linked to dowry demands. There were cases of married women, seeking redress against abusive and violent husbands, as also parents, whose daughters had been murdered by their in-laws, seeking help in getting justice from police and courts. However, their experience of approaching (lie police and law courts turned out to be a very disappointing one foe most of them. Husbands and in-laws got away with torture and even murder, because the women and their families found it difficult to 'prove beyond doubt' that they were victims of violence and extortion.

From that experience, domestic violence and abuse to lie seen is a one-way affair, largely because most of those- whose cases reached women's organisations, police stations and law courts, happened to be wives who had complained against their husbands As a result of determined campaigning and lobbying by women's organisations, significant amendments were made to the Indian Penal Code, the Indian Evidence Act and the Dowry Prohibition Act, with the intention of protecting wives from marital violence, abuse and extortionist dowry demands. The most notable ones are sections 304B, 406 and 498A of the Indian Penal Code, and Section 113 A of the Indian Evidence Act.

However, the actual implementation of these laws has left a bitter trail of disappointment, anger and resentment in its wake, among the affected families. Many victims of domestic violence as well as many women's organisations felt that despite the existence of supposedly stringent laws, that enshrine the dual objective of helping the woman gain control over her stridhan and punishing abusive husbands and in- laws, in reality most victims fail to receive necessary relief.

In most cases, even where the circumstantial evidence clearly indicated that the wife was killed, the police seemed to go out of their way to convert her death into a case of suicide. In many instances, families of victims found it difficult to register an accurate F.I.R. or have the case properly investigated. Thus, numerous women continued to suffer humiliation and battering, many even to the point of death, despite the existence of stringent laws in their favour.

The tide turned during the 1980's, when far reaching changes were introduced in our criminal laws to deal with domestic violence. Prior to 1983, there were no specific provisions to deal with marital abuse and violence. But husbands could be prosecuted and punished under the general provisions of the Indian Penal Code dealing with murder, abetment to suicide, causing hurt and wrongful confinement. Since marital violence mostly took place in the privacy of the home, behind closed doors, a woman could not call upon any independent witnesses to testify in her favour and prove her case 'beyond reasonable doubt' as was required under criminal law. Therefore, women's organisations lobbied to have the law tilted in women's favour by bringing in amendments which shifted the burden of proof on the accused and instituted fairly stringent, pre-emptive measures and punishments against the accused.

All these amendments placed draconian powers in the hands of the police without adequate safeguards against the irresponsibility of the enforcement machinery. The truth is that there are adequate provisions in the IPC Sections 323, 324, 325 and 326 for use against anyone who assaults a woman or causes her injury. Though no new principles of accountability were added to the Police Act, special Crimes against Women Cells were created in select police stations to handle women's complaints. And, in some places, Family Courts were put into operation.

The Indian Penal Code was amended twice during the 1980s—first in 1983 and again in 1986 —to define special categories of crimes dealing with marital violence and abuse. In 1983, Section 498A of the IPC defined a new cognizable offence, namely, "cruelty by husband or relatives of husband". This means that under this law the police have no option but to take action, once such a complaint is registered by the victim or any of her relatives. It prescribes imprisonment for a term which may extend to three years and also includes a fine. The definition of cruelty is not just confined to causing grave injury, bodily harm, or clanger to life, limb or physical health, but also includes mental health, harassment and emotional torture through verbal abuse. This law takes particular cognisance of harassment, where it occurs with a view to coercing the wife, or any person related to her, to meet any unlawful demand regarding any property or valuable security, or occurs on account of failure by her, or any person related to her, to meet such a demand.

During the same period, two amendments to the Dowry Prohibition Act of 1961, enacted in 1984 and 1986, made dowry giving and  receiving ;i cognizable offence. Even in this ease, where a person is prosecuted for taking or abetting dowry, or of demanding dowry, the   burden of proof that he had not committed an offence was placed on the accused. However, no punitive provisions were added (or those making false allegations or exaggerated claims. There is, of course, the law against perjury or lying on oath. But the law against perjury has hardly ever been invoked in India.

A person guilty of giving or taking dowry is punishable with imprisonment for a term ranging from six  months to two years, plus a fine, or the amount of such dowry. Needless to say, no case is ever registered against dowry 'givers' and it is only dowry 'receivers' who arc put in the dock. Not surprisingly, the law is invoked very selectively. 1'lie very same family which would declare at the lime of marriage that they only gave 'voluntary gifts' to the groom's Family, does not hesitate to attribute all their 'gift-giving' to extortionist demands, once the marriage turns sour and is headed for a breakdown.

Section 406 prescribes imprisonment of up to three years for criminal breach of trust. This provision of IPC is supposed to be invoked by women to file cases against their husbands and in-laws for retrieval iil their dowry. Furthermore, another Section 304B was added to the IPC to deal with yet another new category of crime called 'dowry death'. This section states that if the death of a woman is caused by bums or bodily injury, or occurs under abnormal circumstances, within seven years of her marriage and it is shown that just prior to her death she was subjected to cruelty by her husband or any relative of her husband, in connection with any demand for dowry, such a death would be called a 'dowry death', and the husband or relative would be deemed to have caused her death.

The person held guilty of a 'dowry death' shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life. By inserting a new section 113B in the Indian Evidence Act, the lawmakers stipulated that in cases that get registered by the police as those of 'dowry death', the court shall presume that the accused is guilty unless he can prove otherwise.

Under section 304B, in the case of a 'dowry death', where allegations of demand of dowry or non-return of dowry are made, the accused are frequently denied anticipatory or even regular bail. The burden of proof is shifted to the accused party. The basic spirit of Indian jurisprudence is that a person is presumed innocent till proven guilty. However, in all such cases a person is assumed guilty till proven innocent. This is understandable in cases of death because the unnatural demise of a woman through suicide or murder is in itself proof that something was seriously wrong in the marriage.

But problems arise when the same presumption applies to cases of domestic discord where the underlying cause of conflict is not due to a husband's violence or abuse but due to the couple's inability to get along with each other. With the enactment of 498A, the tendency to include dowry demands in every complaint of domestic discord or cruelty, even when dowry was not an issue at all, received a further fillip. The police as well as lawyers encourage female complainants to use this as a necessary ploy to implicate their marital families, making them believe that their complaint would not be taken seriously otherwise. Thus, mentioning dowry demands seems to have become a common ritual in virtually all cases registered with the police or filed in court. This has created an erroneous impression that all of the violence in Indian homes is due to a growing greed for more dowries. This makes the crime look peculiarly Indian, but the truth is that violence against wives is common to most societies, including those which have no tradition of dowry.

Often, highly exaggerated or bogus claims are made by unscrupulous families who demand the return of more than was given as stridhan, using the sections 498A and section 406 of the IPC as a bargaining tool. Sometimes the goal is reasonable—the woman wants the return of all items that legitimately belong to her, but she is encouraged to overstate her case and to demand an enhanced settlement as a pre-condition for divorce by mutual consent.

A large number of cases registered under 498A are subsequently withdrawn, not necessarily because they were false. The complexity of women's lives, particularly within a violent marriage, has to be comprehended beyond the context of popular ethics. The conviction and imprisonment of the husband may not be the best solution to the problems of a victimised wife. And her limited choices and constrained circumstances often make it impossible for her to follow up the criminal case. Since the section does not protect a woman's right to the matrimonial home or offer her shelter during the proceedings, she may have no other choice but to work out reconciliation. At this point she may be forced to withdraw the complaint as the husband would make it a precondition for any negotiations.

If a woman decides to opt for a divorce and the husband is willing for a settlement and a mutual consent divorce, then also withdrawing the complaint would be a precondition for such settlement. If a woman 10 separate or divorce on the ground of cruelty, she would have to follow two cases—one in a civil court and the other in a criminal court. Anyone who has followed up a case in court would well understand the tremendous pressure this would exert, especially when she is at a stage of rebuilding her life, finding shelter, a job and child care facility. Under i lie civil law she would at least be entitled for maintenance which would l)c her greater priority. So if she has to choose between the two proceedings, in most cases, a woman opts for the civil case where she would be entitled to maintenance, child custody, injunction against harassment and finally a divorce which would set her free from her violent husband. Thus, many women end up dropping the criminal Proceedings. In most cases, criminal proceedings are 'quashed' as a result a settlement or compromise by presenting, with mutual consent, a joint petition in the High Court u/s 482 Cr. P.C.

Nobody has established as yet whether the abuse of these laws is rampant as it is made out to be. Some think that the scare caused by isolated cases of misuse has caused a reaction in our society, making people exaggerate the damaging consequences of these laws. They dismiss the charges of abuse by pointing to the very low rate of convictions under 498A.

While it is true that very few people have actually been given sentences under 498A there is no doubt that a large number of families have been locked up in jail for a few days or weeks, some even for months, following the registration of a police F.I.R. That is punishment enough for most. In many instances, out-of-court settlements are made using 498A as a bargaining point by the woman's family. Many cases do not go far because the charges are so exaggerated that the cases fall through. All these and other factors may be contributing to an abysmally low conviction rate.

The law was recast, heavily weighted in the woman's favour, on the assumption that only genuinely aggrieved women would come forward to lodge complaints and that they would invariably tell the truth. In the process, however, the whole concept of due process of law had been overturned in these legal provisions dealing with domestic violence.

The basic problem with the present laws dealing with domestic discord and marital abuse is that instead of providing effective remedies through civil laws, the whole matter has been put under the jurisdiction of criminal laws, with very draconian provisions to make their implementation stringent. It is indeed a tragedy of independent India that we have not yet learnt to distinguish between reasonable and unreasonable laws, between implementable and unimplementable laws, just as we have failed to create a law-enforcement machinery capable of providing genuine recourse to all those whose rights have been violated. In such a scenario, promoting family harmony and true gender equality is the need of the day.