By Devansh Singh
Abstract
Gramscian hegemony finds its application through centuries of patriarchy, sexism, and oppression which has led to the development of a dynamic between men and women where the former dominates the latter. Not only this, but men are also conditioned to be aggressive and perpetrators of violence whereas women are at the receiving end and are expected to endure it silently. It has seeped its way into the institution of marriage by putting certain expectations on women like proprietary rights of a husband over her body and more. Due to this unfair power dynamic, wives have faced both physical and mental harassment. To protect married women from such cruelty, the legislature in India introduced Section 498A in the Indian Penal Code which makes cruelty against a married woman a criminal offence. The law has tried to abridge the disadvantage women are at due to the patriarchal setup. It is unclear how helpful the law has been. This paper discusses the flaws in the application of Section 498A and delves deeper into the validity of the argument for misuse of Section 498A.
History of 498A and its Conception
Women in India have been battered/harassed over the years through many acts of transgression. There have been more than 4,28,278 cases of violence against women registered in India in 2021 with a lot more unregistered ones. One of the forms of such violence is cruelty or harassment of married women within the four walls of the household which is very prevalent irrespective of class and caste. At a time in the late 70s and even now, this question of cruelty or harassment is tied to the unfulfillment of the dowry demands of a family; many young brides who failed to fulfil the demands for dowry made by their marital families were murdered. As a result, there were massive protests against these laws towards the end of the 1970s and early 80s. These protests led by women like Satyarani Chadha and internal demand from the legislature itself provoked the government to introduce Section 498A in the IPC. This was done with the passage of the Criminal Law (Second Amendment) Act in 1983, which introduced Section 498A to the IPC (1860) by then Minister of Home Affairs, Venkata Subbaiah. According to this provision,
A husband (or a member of his family) who treats his wife “cruelly” could be fined and imprisoned for up to three years. It is a non-bailable offence that is cognizable i.e., the accused can be arrested without a court-issued warrant.
It defines “cruelty” as –
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is intending to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
Since its conception, it has also acted as a supplement to acts like the Protection of Women from Domestic Violence Act 2005. The validity of this Section and its definition has been tested over time and more specifically in the 21st century.
498A, though created with the good intention of protecting married women, has its issues concerning the application of the Section. On the face of it, a major problem is the application of the law. For a fair application of the law, the various institutions involved with the enforcement and adjudication of disputes like the Judiciary, Investigative Agencies need to be free of any biases. So, when dealing with this Section, actions need to be precise because Section 498A of the IPC has far-reaching consequences for a section of the society which has been disadvantaged. Moreover, the inception of this Section was to break the patterns that have prevailed for centuries, and its removal might take many women back in time.
It is the responsibility of the Judiciary to adjudicate and the police to investigate. But they share a common objective, specifically when dealing with 498A, of protecting married women who face harassment. But the courts have taken a perspective which has diluted the idea of protection guaranteed by Section 498A through its judgements in cases like Rajesh Sharma and others v. State Of Uttar Pradesh. In this case, the court directed the constitution of Family Welfare Committees. Every complaint under Section 498A received by the police or the Magistrate is to be referred to and investigated by such a committee. In cases where a settlement is reached, it will be open to the District and Sessions Judge to dispose of the proceedings including closing of the criminal case if the dispute primarily relates to matrimonial discord. There are two major problems with this approach of the SC. Firstly, it again emphasises the idea of reconciliation which does more damage to the relationship ergo to the people in it and related to the stakeholders. This idea of conciliation is related to the normative notions of the preservation of marriage. This preservation is extremely antithetical to the idea of Section 498A. This approach not only ignores a human right (violation of a woman’s bodily autonomy) but also shifts the focus on saving the institution of marriage. Secondly, this approach forgets that a woman approaching the courts under Section 498A does this as a last resort because she is trying to break the barrier of conciliation or saving the marriage for the sake of her children or the honour of the family. The attempt and emphasis on conciliation, mediation, or counselling by the courts might convince her to go back to her matrimonial home. But some women have gone back and faced even more harassment with nothing left. This provision was supposed to be a shield which saved them in a society which is already working against their right to bodily autonomy or harassing them to get more money. It in no way wanted to promote the sham of coercive harmony.
The police are not far behind in these situations, they focus on emphasizing conciliation on matters like that of Section 498A. Due to the power structure, corruption, institutionalized sexism, patriarchy, and misogyny, the police might ignore a woman’s appeal and let the person go with a warning suggesting conciliation or both as a first response. The police might refuse to file a complaint or consider the complaint with suspicion. It is worse if the husband or his family is affluent because then the Police might inform her husband about the demand for a complaint.
Over the years the argument for the validity of Section 498A has been raised concerning the claims of misuse of Section 498A. It is argued that women do this to get back at their husbands or use the Section as a bargaining chip to seek money. To understand this the paper will first understand the reasoning behind the “misuse” argument and then understand if Section 498A stands valid.
There is a widespread belief among the Indian public that this provision is used primarily to file false charges to harass or blackmail an innocent spouse and his relatives. This can be further understood by claims made by many magazines like Manushi, which have talked about the cases when Section 498A was misused by levelling false dowry allegations against a family. It revealed that police would often use the threat of arrest under Section 498A to extort money from a husband’s family. Lawyers and police officers are reported to have encouraged complainants to make these false allegations to implicate the male partner’s family members in these lawsuits. Similarly, women are encouraged to overstate their claims of domestic violence to demand an enhanced settlement as a pre-condition for divorce by mutual consent. A similar example would be, “Organizations like Save Indian Family claim that they are approached for help by a large number of males complaining of harassment even by women, even violence”. These incidents are not only misuse of the law but also abuse the innocent husbands and their family members which might involve old parents. The SC too has concurred with this opinion of misuse in several cases like Sushil Kumar Sharma v. Union of India. In this case, the court while giving the decision said, “Many instances have come to light where the complaints are not bona fide and have been filed with oblique motives… The provision is intended to be used as a shield and not as an assassin’s weapon. A similar judgment was passed in Arnesh Kumar v State of Bihar which has diluted the cognizable nature of cruelty and harassment powered by 498A. It laid down guidelines for arresting a person under Section 498A. It directed the police not to automatically arrest a person when an offence under Section 498A of the IPC is registered. This judgment arose from the reasoning that there is a misuse of the Section by women. The court even recommended that the government must set up a panel to investigate the laws that were passed for women’s rights but are currently being abused. Similarly, the Malimath Committee Report concluded that Section 498A is grossly misused without offering any statistics to support this finding. As a result, a petition alleging the misuse of Section 498A was admitted by the Rajya Sabha (Upper House of Parliament) Committee on Petitions in 2011.
This claim of misuse also raised several questions about the constitutional validity of Section 498A. Many of these questions reached the SC. The court’s attitude in cases like Ram Gopal Verma v. State of MP the court seems to agree with the claim of misuse, but the court has deferred from declaring the Section constitutionally invalid. This can be inferred through its decision in several cases. Sushil Kumar Sharma v. Union of India was one of the first to challenge it for misuse. However, the court dismissed the claim and held that the mere possibility of misuse did not render a provision invalid. In cases like Inder Raj v. Sunita and Krishan Lal v. Union of India, Delhi and Punjab and Haryana High Courts have dismissed the claims of Section 498 being ultra vires to the constitution by violating article 14. The court held otherwise. The court in the latter case argued that the constitution guarantees that the government may differentiate among people based on reasonable classification. Here, women are the lower differentiated group.
With all the claims, arguments, and recommendations of misuse of Section 498A by the courts, committees, and society one needs to understand its reasoning. The first argument is about the higher acquittals in cases of Section 498A and the low rates of conviction. But this argument can be countered with arguments that most of the cases are compounded, and applications are filed to quash the FIRs provided the culture of silencing women. Secondly, there is a lack of evidence provided the crime occurs inside a household (getting the benefit of the doubt being a direct result, or bias against women while accessing the law which can help in acquittal). Thirdly, society has a culture of silencing married women and resolving “matrimonial disputes” like these in homes. Moreover, one cannot ignore the fact that millions of women experienced violence but very few end up reporting them.
Additionally, the very idea of questioning the existence of laws based on their misuse is not justified because many laws are way more arbitrary, with low rates of conviction, and have no social purpose like sedition. On a similar line of reasoning, Justice A.K. Ganguly has labelled the calls for repeal as “male chauvinism”. He argued that even SC believes that many laws have been abused but it does not mean they should be repealed. He gave an example of Section 307 about an attempt to murder which has a similar pattern. It may be whataboutery but this argument still questions the place from where this voice of misuse is coming. It can be construed to mean that this Section facilitates challenging an age-old structure of marriage and the stereotypical gender roles. Thus, the Section is being challenged as if its sole aim is harassment.
Conclusion
India has been a patriarchal society and the gender norms created as a result have evaded every sphere of life including marriage. From the above arguments it can be concluded that Section 498A had been designed to protect married women but as time passed the issues and flaws with the application of Section 498A became obvious. Sometimes, the emphasis on conciliation that worked antithetical to the aim of Section 498A or the dilution of laws to protect the rights of men showed the failures. In other instances it was the failure of the police and lawyers to approach the issue expectedly, this was suggested by the 243rd Law Commission too. Moreover, the argument of misuse of the Section might be genuine in many cases but it is not sufficient to change the law and dilute its impact because even today there is a major population of women that are still fighting to get justice.
Author’s Bio
Devansh Singh is an aspiring lawyer in the 3rd year of his law school journey at Jindal Global Law School.
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