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print versionPeople’s Democracy, 2 January 2011
Below we reproduce the main points of the memorandum which the All India Democratic Women’s Association (AIDWA) submitted to the Rajya Sabha Petitions Committee on December 23 with regard to the amendments in Section 498-A of the Indian Penal Code (IPC). Subheadings have been added.
THE All India Democratic Women’s Association (AIDWA) is deeply shocked and distressed that the Rajya Sabha Petitions Committee is considering a petition filed by one Dr Anupama Singh to completely dilute and undermine the provisions of Section 498-A of the IPC. The petition of this doctor has demanded that an offence under Section 498-A be made non-cognisable, bailable and compoundable. Section 498-A recognises the fact that acute domestic violence and dowry related torture is a serious offence, and prescribes a punishment of up to three years for it. The attempt in this petition is to make Section 498-A totally ineffective so that no guilty husband or in-laws can be prosecuted under it.
We want to point out that Section 498-A was incorporated under the IPC after a sustained and long struggle by women’s organisations and others. However, dowry related torture and domestic violence has continued to escalate even after Section 498-A and Section 304(B) (dowry death) were incorporated in the law. Currently, according to official NCRB statistics, about 80,000 cases of torture under Section 498-A are filed every year all over the country. Every few minutes a woman is killed for dowry. However, very few complaints result in convictions. This is mainly because of the poor implementation of the law by the police and other authorities as well as certain loopholes in the dowry related act. We feel that any dilution of Section 498-A will further weaken the efficacy of the law to deal with the issue.
WHAT THE SUGGESTED AMENDMENTS MEAN
Making Section 498-A non-cognisable would mean that the police will not respond to any complaint made under this section by a woman in distress, and will not embark on any investigation if that woman has suffered physical and mental violence as defined in Section 498-A or/and has suffered harassment and torture for dowry. Thus making Section 498-A non-cognisable will in effect mean that no cases would be registered under this section, and women would have to go to court to file their complaint before a magistrate. Very few women in our country will have the means or ability to do so.
Making the said section bailable would mean that no person can at all, at any stage, be arrested by the police without an order from a magistrate. It is relevant to point out that only non-serious offences, usually punishable with up to two years of imprisonment, are bailable under the Indian Penal Code. Making Section 498-A bailable would be suggesting that within-home violence on women is not serious, and no action should be taken by the police to even separate the violent husband from the woman who is getting battered. According to us, if we are governed by a rule of law, this cannot be done; battered and tortured women must be protected by law.
We feel that if Section 498-A is made compoundable it will only result in the women facing yet more pressure to compromise. In any event, if a compromise is reached in such cases, these are recognised by courts, including the High Courts, who readily quash the criminal proceedings.
The proposal made by the petitioner seeks to amend or dilute the law as it is alleged that false complaints, based on no evidence, are being filed. The petition also alleges that “the section is being fearlessly abused and misused by a large section of unscrupulous people with ulterior motives.†It is important to point out that no statistics of any kind are given in this petition which also states that adulterous women and women who want to get out of a marriage and extort money, etc, are filing petitions under Section 498-A. The petition is therefore extremely vague and based on false assumptions, and should not have been entertained at all.
In any case, we wish to point out that the amendments to the Criminal Procedure Code (CrPC) in 2009 have included an amendment on the power of the police to arrest somebody. It states that the police should carry out a proper investigation in cases punishable by imprisonment of up to 7 years before arresting a person. It also states that ordinarily no arrest will be made if the accused cooperates with the police and does not tamper with the evidence, etc.
OBSTACLES WOMEN GENERALLY FACE
Our organisation has dealt with, and continues to deal with, several thousand complaints of dowry harassment, dowry death and domestic violence on a daily basis. It is our experience that women victims of violence do not file complaints under this section unless they have suffered prolonged harassment and torture in their marital homes. It is only when they are not able to tolerate the daily, repeated violence that complaints are filed. Even then, we have found that the women who make complaints under Section 498-A have to face the brunt of gender bias, corruption and inefficiency in the criminal justice system. They have faced several obstacles in using the law as detailed under:
1) Our experience in dealing with these cases is that the police take an extremely long time to even register a complaint, if they do so at all. They have to make repeated trips to the police station to convince them to register the FIR.
2) In Delhi and other metropolitan cities like Mumbai, special methods have been devised to deal with these cases. In Delhi, Crime against Women Cells have been instituted by the police to deal only with dowry harassment cases and cases under Section 406 IPC. Instead of registering an FIR under Section 498-A and/or Section 406 IPC (criminal breach of trust for return of streedhan) and the Dowry Prohibition Act, these cases are first referred to the Crime Against Women Cells. Here women are forced to attend conciliation proceedings while their complaints are put on hold. In the meanwhile, no recovery of even their streedhan and dowry is made and valuable evidence is often lost as the in-laws have time to get rid of or hide the streedhan etc, especially jewellery and other valuables. The case is registered only when the conciliation fails and there is no compromise. This often takes a long time.
3) Even when their complaints are registered, proper investigation is not carried out by the police. The statements of the complainants and other members of the family/relatives and other witnesses are either not recorded or recorded in an extremely shoddy manner. Other evidence, which may be vital to the case, are not gathered.
4) Victims and their families have complained that the police and sometimes the courts seem to be biased against them and treat their cases as ordinary domestic squabbles.
5) Victims have also complained that often the police do not act without bribe or other influence; they have also complained that often their husbands are able to either bribe or influence the police.
6) It is relevant to mention that a number of women who file complaints are forced to compromise by being told that they will not get justice from the courts either in terms of punishment or other rights like maintenance.
PETITION: AN INSULT TO WOMEN
The propounders of these proposals are mostly interested parties and those being dealt with under this law, who feel that dowry harassment is not a crime. We feel that if these recommendations are implemented the entire law will get diluted and misused. The police do not need any directions to be cautious about these complaints as they already take a long time to even register an FIR and start an investigation.
Complaints under Section 498-A should be dealt with as complaints under other serious crimes are dealt with. A perusal of the judgements under this section shows that there are hardly any cases in which the accused have been held guilty under Section 498-A on its own. It is only in cases in which death has occurred that the accused, most often, get punished for cruelty and harassment under Section 498-A. This shows that rather than being misused, Section 498-A is being under-used.
If there are any false complaints under Section 498-A, these should also be dealt with according to law on a case-by-case basis. It is relevant to mention that several laws in our country are being misused by certain sections in our society. However, no one talks of amending these laws.
We therefore feel that this petition should not have been proceeded with, and we are filing our objections to it. We also wish to point out that the petition is couched in extremely insulting and derogatory language towards women in general, and displays total insensitivity to the degree of suffering of the affected women. It would have been more relevant to consider a strengthening of the dowry laws to ensure that women can live a life free from violence.
