India (openDemocracy) – The backlash against gender-just law which seeks to protect women against dowry violence reveals the full extent of the patriarchal mindset that underpins the criminal justice system in India.
According to the popular discourse in India, laws which were introduced to protect women against violence have allowed women to file false and vexatious cases against their husbands and their in-laws. Section 498A of the Indian Penal Code, which came into being largely due to the failure of the Dowry Prohibition Act 1961, criminalises the husband or his relatives who harass, injure the life, limb or health of a woman, or drive her to suicide for the failure to provide a dowry. This has been seen in conservative circles, as giving a carte blanche to women to bring false cases of harassment against their husbands, a perception that has been undeniably strengthened by a controversial Supreme Court judgment in the case of dowry related cruelty in Arnesh Kumar vs State Of Bihar in which the judge condemns the use of these progressive laws as ‘weapons rather than shields by disgruntled wives’.
Arnesh Kumar’s wife, Sweta Kiran, had initiated criminal proceedings for offences of cruelty under section 498A. It is an offence for which the police can arrest the accused without a warrant and carries a maximum sentence of three years. S Kiran complained that her father and mother-in-law demanded a Maruti car, television, air conditioner and a sum of Rs 800,000 (£8000 approximately). When the wife sought her husband’s support, his response was to echo his parents’ demands and to threaten to marry another woman if the dowry demand was not met. The issue before the Supreme Court was not to do with the truth or otherwise of the allegations levelled by the wife, because at that time the trial had not yet taken place. The sole issue to be decided was whether or not to grant bail to the husband and his relatives in anticipation of their impending arrest as the lower courts had rejected his application for bail.
The Judge, sympathetic to Arnesh Kumar, granted bail stating by way of explanation that “There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the Indian Penal Code was introduced with the avowed object of combatting the menace of harassment of a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shields by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.” It spoke to much deeper concerns and fears – fears about changes to the revered institution of marriage. The case was widely reported in the media and has since been uploaded on various men’s groups’ websites as proof of the ongoing misuse of Section 498A.
To my horror, this perception/misperception is not limited to those who may have been direct victims of its misuse and spent a night or two in jail and are therefore understandably angry about the injustice they suffered, or the men’s rights groups which have sprung up in the last decade – but ordinary law students, lawyers and judges who subscribe to the view that false cases are endemic.
Moved by this unified chorus of voices from different corners of the country, I was compelled to ask a very simple question: Exactly what constitutes a false case? False case, as perceived by whom? The accused, complainant, police, lawyers or judges? I think some qualitative research to explore this issue would be extremely useful. Based on my knowledge and experience of working with impoverished and marginalized sections of Muslim, Dalit and very poor working class women, women take court action only as a last resort, and then only with the support of their family. Women and their families usually try to address issues of violence informally either through mediators or NGOs before going to the police.
The only research evidence I could unearth of false cases actually being filed comes from a small scale research study which showed that around 6.5 per cent of cases investigated by police were found to be false. However, how the police decide that a case is false is not clear. False, because they could not get sufficient witnesses ? Or because the witnesses were giving a version of events that contradicted that of the complainant ? Or that they had unearthed facts which showed that the complainant was lying?
The quality and impartiality of police investigation is perhaps the biggest question mark facing the Indian criminal justice system. It has been repeatedly raised by various eminent national level commissions such as the National Police Commission reports, and the Malimath committee report in 2003. However, for the sake of argument, let’s accept this figure is accurate. Are false cases per se really exceptional in the Indian context? Justice Prasad, who ruled in the Arnesh Kumar case, himself produced the history of well-documented evidence of misuse of police powers, framing of the accused, and the control of the police by the financially, politically and criminally powerful. To my knowledge, there has been no research to investigate the level of false cases for other serious crimes to date, and therefore certainly there is no evidence to suggest that the 6.5 per cent of false 498A cases is any higher than other serious offences.
In my view, there are two ways in which we can claim that a case is false: the case does not have all the required legal ingredients to constitute a section 498A case; or that the woman falsely claims dowry harassment. In the first instance, the fault lies with the lawyer, police and/or prosecutor who fail to notice and properly advise their client. The second scenario would be exposed during contested trial proceedings and would require a longitudinal study to assess the extent of this problem.
Contrary to exaggerated fears about the institution of marriage being in danger, section 498A is actually used by women and their families to preserve the marriage, or as a last ditch attempt to ensure a fair divorce settlement. The vast majority of cases are filed as a desperate attempt to ensure that the husband’s family desists from further violence and harassment, or feels compelled to negotiate a fair divorce settlement. In my experience of dealing with women who are totally economically dependent on the husband and/or his family, a divorce is only possible if her own family is willing to support her financially. The latest available data for 2014 shows that there were over 120,000 section 498A offences registered, constituting 36.4% of all criminal offences committed against women, which include around 8,500 dowry related deaths.
Let’s consider another justification given in the Arnesh Kumar case: concern for female relatives of the husband and the injustice they suffer by being arrested. The National Criminal Records Bureau for 2012 shows that number of arrests of women family members was about 25% of the total, amounting to almost 47,951 cases. This is not surprising given the cultural context of the extended family system in India; problems and difficulties arise as a result of the misuse of power within the family structure by mothers, and sisters-in-law against daughters-in-law. These cases do not generally arise in the context of a couple living independently.
The second possible justification offered in this judgment is the low conviction rate of 15%. Can we equate low conviction rates with false cases? Everyone knows that there are multiple systemic failures of criminal justice that account for the low conviction rates, but in 498A cases, there are a higher number of illegal compromises – a unique feature of the Indian criminal justice system which routinely allows compromise agreements with alleged rapists and violent wife beaters, simply by the witness turning hostile and in the process changes or fails to present the evidence on which the prosecution is founded. As part of a compromise agreement reached by the parties involved, pressure is brought upon the witness to deny her earlier statement in court, a process that appears to be sanctioned by lawyers and approved largely by judges. In fact, even after rape convictions, the compromise culture persists. Justice Devdass of Madras High Court granted interim bail to a man sentenced to seven years for rape so that he could participate in mediation talks to marry the minor he had raped. The High Court quickly responded to the outrage and revoked the bail order, and the Supreme Court rightly denounced the idea of compromise and mediation, but neither Court lays down guidelines of what action should be taken to prevent this illegal but accepted cultural and institutional practice of seeking compromise in serious criminal cases.
It is this complex and entrenched institutionally supported culture of illegal compromises in serious criminal cases of rape, looting and even murders, that is severely eroding the very basis of the criminal justice system and needs urgent attention- rather than the allegations of the falsity of 498A cases. It reflects the prevalence of the patriarchal mindset at all levels of the justice system. The state has failed miserably to effectively implement existing legislation to prevent dowry related violence against Indian women.
This report prepared byfor openDemocracy.