Gender violence
The directive focuses too much on physical injury and death as proof of domestic violence.
Image for representation - Photo by Senior Airman Rusty Frank via Wikimedia Commons

Sneha* remembers her sister Shruti* as a plump woman, bubbly and easy to break into a smile. But that woman is merely in Sneha’s memory now, for the Shruti who sits before her is nothing like her younger self.

The sisters hail from a conservative family in Kolar district in Karnataka. Seven years ago, Shruti was married to Naveen* against her wishes; soon after the wedding, the verbal abuse began - about how little dowry she brought. Naveen would often belittle and abuse Shruti in front of his parents. And once, when she questioned him before his relatives, he slapped her for the very first time.

From there, it went downhill. Shruti would reach her parents’ home with bruises on her body frequently, and the family would help the couple reconcile, and send Shruti back with Naveen.

Until one day, when Shruti could take it no more, and went with her brother-in-law to the police station.

A complaint was lodged, and one of the sections the case was registered under was section 498A of the IPC, which makes cruelty by the husband or his relatives towards the woman a criminal offence.

However, Sneha alleges that Naveen is a well-connected man, and was never arrested.

On the day of the first court hearing, Shruti’s sisters asked her if she was sure about this. “I have come this far. I don’t want to go back,” Shruti told them. But soon after that, Naveen’s family convinced Shruti to withdraw the complaint, so that “their son’s life wouldn’t be ruined”, Sneha says.

About eight months ago, Shruti was convinced by an elder sister and her mother to give the marriage another shot. She returned to Naveen for the fourth time.

“She came back home three days ago. She’s thin as a stick. We came to know that she hasn’t spoken a word for months. She doesn’t eat if someone is there in the room. And when we leave, she doesn’t eat more than a few morsels. If you take her hand and lead her to a corner, she will stay there. If you make her sit in a place, she will not move. I don’t know what he (Naveen) did to her,” Sneha says.

“Our family kept sending her back because they didn’t want a scandal. Look at what’s happened to her now. How is this better?” Sneha questions.

Section 498A and its ‘misuse’

Like Shruti, thousands of Indian women have similar stories of abuse at the hands of their husbands and the latter’s family. Prasanna, the managing trustee of International Foundation for Crime Prevention and Victim Care (PCVC), notes that section 498A is often the only law which aids married women against violence from intimate partners or family members.

However, in an attempt to remedy the ‘misuse’ of the provision by women to harass husbands and/or their family members, the Supreme Court has laid out a set of guidelines on Thursday. A bench of Justices AK Goel and UU Lalit were deliberating on the tendency to rope in all family members into a marital dispute in the case of Rajesh Sharma & others vs State of UP.

One of the directives of the court is to set up ‘Family Welfare Committees’ in each district, which will preferably comprise of three members. These can be “paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing”. The idea, the order reads, is to involve “civil society in the aid of administration of justice”, apart from sensitisation of investigating officers (IO) and trial courts.

Each case under section 498A received by the police or the magistrate will have to be referred to this Committee. The Committee members will interact with the parties involved in the case – in person or over electronic communication - and prepare a report within a month’s time.

This report, containing factual aspects and the Committee’s opinion - will be submitted to the authority which referred the case. The report can then be considered on its own merit by the IO and magistrate.

An important aspect of this court order was that no arrest can be made before the Family Welfare Committee submits its report. However, these directions will not need to followed in cases where there are signs of physical injury, or death.

The SC has also asked the National Legal Services Authority to submit a report on workings of these directives by April 2018.

Setback to domestic violence survivors

While the Supreme Court has issued these directives with the view to prevent misuse of section 498A, it could have alarming consequences for genuine cases of domestic violence, say experts.

Sheila Jayaprakash, a lawyer practicing in Chennai, notes that most survivors of domestic violence generally file a complaint not after one incident, but when it has turned into systematic abuse. Prasanna too points out that the journey to making the decision to pursue this legally is not an easy one.

“And by setting up these Family Welfare Committees, the court is giving another avenue for the society to question the woman’s experience of violence and harassment. The first thing you should do when someone talks about abuse is to acknowledge it,” Prasanna says.

She adds that not every case registered under section 498A results in an arrest. “There is an investigation, and a chargesheet has to be filed. Only then will the police make the arrest,” she says.

Sanctity of marriage over survivor’s welfare?

Prasanna, Sheila and Darshana, a lawyer with Alternative Law Forum, say that in a country like India where a broken marriage is greatly stigmatised, it is likely that these committees may end up suggesting reconciliation even where there has been abuse.

“People’s perception of what constitutes harassment varies,” says Prasanna. “And sensitivity towards one woman’s experience of violence may not align with that of the committee members,” she adds.

“The name ‘family welfare committee’ itself is a giveaway, orienting the body towards the preservation of marriage, where it is assumed that the woman’s well-being also lies,” says Darshana.

“Sensitivity will not come with choosing people of a certain stature or background,” argues Prasanna, referring to the constitution of the Committee as suggested by the apex court.

Sheila also points out that the Committees may end up being a repetition of the counselling which is provided during trial, where it is mostly the woman who is told to ‘adjust’ to keep peace in the family.

And in a case where the Committee believes that the incidents based on which the complaint is filed aren’t offenses under section 498A, and the IO or magistrate also hold the same view, the woman is left with little immediate relief.

In such a case, it is unlikely that the woman will go ahead and file the complaint if she experiences abuse again. The first time itself is very difficult; many women have no family support as well,” Prasanna says.

A case in point in Shruti’s. While Sneha would like to pursue the case legally to get justice for her sister, she doesn’t believe that Shruti would have the strength to do so again. “She had told me once after they made her withdraw the complaint – ‘I shouldn’t have done it. Naveen will think I am such a coward.’ It will be too difficult for her now, she’s already traumatised,” Sneha says.

Misconstrued misuse?

The judgment order quotes NCRB statistics to make a case against the misuse of section 498A.

“The NCRB records show that in 2009, a total of 1,74,395 people were arrested under 498A and 8,352 cases were declared false. For the year 2012, the rate of charge-sheet filing under the provision was at 93.6%, while the conviction rate was a mere 14.4%,” the order says, reports Bar and Bench.

Even if these figures are something to go by, the ‘false’ cases constituted less than 5% of the total cases. Further, Darshana points out that the NCRB itself doesn’t have any classification of ‘false’ or ‘fake’ cases.

“If, for instance, a woman withdraws a complaint after having filed it for any reason, the case is considered false by those who quote these statistics,” she says. In Shruti’s case for instance, the complaint was withdrawn because of pressure from the family.

Why wait for physical injuries and death?

Prasanna staunchly criticises the judgment when it comes to the directives not applying to women who have physical injuries or in cases where the woman has died. “Most abuse is emotional and sexual, and does not leave physical marks. Why does it have to come to that? Why should we ask a survivor to necessarily have a physical mark of the abuse to believe her?” she questions.

Gender-neutral law?

Sheila points out that while there are many women who need the law, there have been instances of some women using section 498A as a “bargaining chip”.

“I am not saying that everyone does so. But, that is not the spirit in which the law was constituted,” she says.

“Agreed that the new SC directives do take away the advantage from genuine cases, but the law isn’t just meant for women, right? So if these directives make the law a little more gender neutral, it’s something worth considering,” she states.

While Prasanna is on board for making section 498A gender neutral, she does not think that creating another avenue to morally dissuade the survivor from filing the complaint is the answer.

“Even the police tell these women not to pursue the case legally. It starts right there. If you really want to make the law gender neutral, acknowledge that women can also be perpetrators and men can also be victims of domestic violence,” she asserts.

“This is just going to make women more wary of coming forward to complain about domestic violence, or harassment for dowry. Already it is under reported, and this might just make them lose even more faith in legal and judicial system,” she adds.

When 498A cases go down, dowry deaths go up

If Prasanna’s assumption is anything to go by, cases registered under section 498A could go down, which could make things worse for women. A 2011 study on section 498A in Tamil Nadu by EKTA Resource Centre for Women, found a connection between section 498A and section 304B (dowry death).

“The ratio of ‘dowry death’ cases to ‘cruelty by husband and his relatives’ in Tamil Nadu State for the year 2008 was 1:7. This ratio varies between 1:2 and 1:20 in many of the districts. However, in Kancheepuram District, ratio of ‘dowry death’ cases to ‘cruelty by husband’ was 1:1.5; in Vellore District, this ratio was 1:4 and Cuddalore District had the ratio 1:5. The inference is that the lower the registration of cases under Sec 498A, higher is the number of dowry deaths.

The data affirms the statement of Indira Jaising, the Senior Supreme Court Lawyer, and member in CEDAW Committee that “If the matrimonial cruelty is not dealt in time, it will lead to death”,” the report found.

(*Names changed)

With inputs from Theja Ram