Legal Terrorism

In 2013 for instance 21,096 men committed suicide because of family problems while 11,229 women committed suicide for the same reason. More than 2000 women also committed suicide because of dowry issues in 2013.

The above NCRB data manifestly projects following plausible inferences and end up easily showing  blatant misuse of  Section 498A and Dowry Prohibition Act 1961 :

1. A steep rise in cases registered under Section 498A every year.
2. Conviction rate is very low. Number of acquittals have increased consistently. Cases are rising but conviction rate is dropping.
3. More men are committing suicide than women.
4. Nearly 20-25% women arrested were booked under Section 498A. It means innocent sisters, old aged mother are being arrested.

Any jurisprudence would always delve upon legal practices that stops the abuse of law. And neither the Legislature nor the Judiciary is exception to it. And since judiciary always realized its duty, in plethora of its judgments it has noticed misuse of Section 498A and D.P. Act. In recent judgment pronounced by Honourable Supreme Court in Arnesh Kumar v. State of Bihar, it appreciated the matter of misuse of Section 498A/Dowry Prohibition Act and gave strict guidelines to follow  Section 41 of Cr.PC in such cases.  

The Honorable Court said,

” The fact that Section 498A 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 shield by disgruntled wives. the simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand fathers and grand mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498A of IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal…..

All the State Governments to instruct its police officers  no to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing  from Section 41 Cr. PC.”

On 13th September 2005, Parliament of India enacted The Protection of Women from Domestic Violence Act 2005 to protect women from domestic violence. It was brought into force by the Indian government from 26 October 2006. The Act provides for the first time in Indian law a definition of “domestic violence”, with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse.

The Protection of Women from Domestic Violence Act 2005 differs from the provision of the Penal Code – section 498A of the Indian Penal Code – in that it provides a broader definition of domestic violence.

Law maker thought that Domestic Violence Act to be a blessing for people in abusive or violent relationship but, a careful analysis reveals that, this law is yet another misguided attempt to enact legislation to create a society where men are deprived of their rights.

There are three fundamental problems with this law – a) it is overwhelmingly gender biased in favor of women, b) the potential for misuse is astounding and c) the definition of domestic violence is too wide.

The DV act singles out men as perpetrators of domestic violence and assumes that only women are victims. As per this law, only a woman can file a complaint against her male partner. A man, who is a victim of domestic violence, has no rights under this law. By giving sweeping legal powers to women while withholding protection to male victims tantamount to systematic legal victimization of men. In the western world, the domestic violence laws are gender neutral and provide protection to the victims, both men and women. The fact that the Indian version explicitly prohibits any male victim to seek relief under this law defies all logic and is beyond comprehension.

The second significant flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to “teach a lesson” to their male relatives and will file frivolous and false cases. If wife demands money from her husband for any reason and then husband is legally bound to pay that amount in full, failing which he can be convicted under the pretext of preventing economic abuse of women, this law legalizes the extortion of money by women. Interestingly, if he asks for money from her, he can be jailed for that as well. Husband can be booked under the DV act if she feels that she has been insulted. Insult is a relative term, which is totally left to her discretion. Interestingly, if she insults and abuses him verbally or even physically, he does not have any legal recourse in this law

These are just some of the ways in which women can exploit men in a legally permitted manner. The fact that the complaint by a woman will be treated, prima facie, as “true and genuine” opens up a whole new realm of possibilities where innocent men will be accused and implicated in false cases, just because they refuse to give in to her unreasonable demands.

The third major flaw in this law is that it provides an all-encompassing definition of domestic violence and some terms (insults, name calling) are extremely subjective. The radical feminists claim that 70% of women in India face domestic violence which comes as no surprise as even an insult is considered domestic violence. Interestingly, they are mum on how many indian men suffer domestic violence using the same criteria. This law strikes at the very foundation of marriage by promoting intolerance and litigation for petty domestic disputes. It is universally recognized that from time to time differences arise in a marriage and sometimes people, both men and women, behave in hurtful ways towards each other. Most people, though, are able to work them out and lead a more or less happy life with their loved one. However, this law makes it very easy to escalate the domestic problems in daily life to such a level that it eventually leads to a breakdown in marriage. Once a man has been accused of domestic violence for a something relatively minor (insult), while he might have been subjected to the same treatment from her, he will perpetually feel threatened by his partner and that is the beginning of the end. This law will lead to more divorces, broken homes and the children will pay the ultimate price by getting deprived of a pleasant childhood. There are degrees of domestic violence and not all conflicts in a relationship can be termed as domestic violence. This law trivializes the issue of domestic violence by including minor differences in its realm and by explicitly denying protection to half of the population.

Even different Courts have given their apprehension against mis use of DV Act. Madras High Court Bench here has observed that Protection of Women from Domestic Violence Act, 2005 suffers from inherent flaws which tempt women to misuse their provisions and men to dread being prosecuted under the law without any rhyme or reason.

Dismissing a writ petition, Justice S. Vaidyanathan of Madras High Court  said: “The notable flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to their male relatives and will file frivolous and false cases.  “Now-a-days, filing cases under the Domestic Violence Act by women has become a common one. Therefore, a neutral and an unprejudiced law is needed to protect the genuine victims of domestic violence irrespective of their gender.”The judge also said that a similar trend of misuse was observed in the case of Section 498A (a woman being subjected to cruelty by her husband or his relatives) of the Indian Penal Code. It forced the Supreme Court to term such misuse as “legal terrorism.”

Metropolitan Magistrate of Saket Court in New Delhi, Shivani Chauhan, has dismissed the domestic violence complaint of a woman, who resides in south Delhi, saying that she had falsified and concocted various allegations and suppressed important facts in order to harass her husband and her in-laws. The court noted that the complainant woman misused legal provisions as a tool to extort unjustified money from her husband and her in-laws for unjustified personal gain. The court also imposed a cost of Rs. 1 lakh on her as exemplary costs.

The law in its current form is grossly inadequate to tackle the problem of domestic violence. It imposes a lot of responsibility on men, without giving them rights. On the other hand, it gives lots of rights to women without requiring them to be responsible. At the very minimum, it should be made gender neutral, offering protection to both men and women. Also, provisions for stringent punishments need to be incorporated into the law to prevent misuse. Moreover, the law needs to be made more practical by differentiating between various degrees of conflicts and by unambiguously defining what constitutes domestic violence.

The fact is domestic violence is a serious problem and a neutral and unprejudiced law is needed to protect the genuine victims of domestic violence, irrespective of gender. The perpetrators of domestic violence need to be appropriately punished and dealt with. At the same time, protection cannot be withheld from real victims for any reason whatsoever, least of all their gender. One can be certain that there is something sinister about a law, when it intimidates and instills fear in innocent people. When a person who has not committed any crime, begins to fear punishment under the provisions of a law, it is not a law anymore – it is state sponsored terrorism.

DV act was enforced around 22 years after Section 498A. Question is whether 498A is not effective so another section has been introduced, which covers physical, sexual and even verbal abuses. It shows that on one hand lawmaker think that Section 498A is not effective tool on the hand of females so Domestic violence act was introduced. Then logically after enforcement of domestic Violence act, 498A should have scrapped as law makers also think that this section is not adequate.

Now the solemn responsibility lies on the Govt/Legislature to take into consideration the pragmatic realities that necessitates making necessary changes in relevant provision of law where misuse of statute is so apparent. Any democratic society that calls itself precursor of rule of law must make law immune to its misuse.

It is impeccable need of the hour to look beyond Arnesh Kumar judgment, in order to control the misuse of Section 498A, D.P. Act and D.V. Act, we demand following immediate changes in the statute from the Govt i.e. the legislature:

1. Making Section 498-A and Section 3/4 of D.P. Act, bail able sections and these sections must be compoundable as they emanate from domestic tiff.
2. Making these sections non-cognizable, FIR can only be registered after due investigation and permission from the magistrate.
3. No arrest of old aged parents and family members of husband.
4. Gender neutral law. Wife also perpetrates cruelty on husband and his parents, there are so many instances that are reported daily, so a new section Section 498-B to counter this menance should be brought in IPC at par with Section 498-A.
5. Dowry givers must also be punished. They must not be excused under the grab of gender biased law.
6. Making domestic Violence act as gender neutral.
7. Provision in DV Act for mother-in-laws to file cases against their daughter-in-laws if they are subjected to inhuman treatment in hand of their daughter-in-laws.