- What’s the issue?
- About the judgement
- Directives by the court
- Misuse of the legislation
- Facts on crimes against women
- Drawbacks in the verdict
- What’s missing?
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What’s the issue?
- The recent Supreme Court’s verdict on section 498A of IPC dealing with domestic violence was primarily based on the idea that the law was misused by women.
- The verdict has created resentment among women’s rights activists.
About the judgement
- The judgement has an unwritten assumption that women “misuse” the law and thus it must be emasculated.
- The court has relied upon the data of the National Crime Record Bureau (NCRB) to arrive at this conclusion.
- Based on the number of people arrested, convicted and acquitted, the court concluded that since the conviction rate was low, most of the cases registered were “false”.
Directives by the court
- SC has passed a directive to police and magistrates that there would be no automatic arrests or coercive actions arising out of complaints lodged.
- Instead actions should follow only after ascertaining the validity of the complaints.
- The verification of the complaints shall be carried out by a special police officer and a district-level Family Welfare Committee.
- Family Welfare Committee will preferably comprise of three members, who can be “paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing”.
- The court, however, has assured that grave physical injury or death of the aggrieved person would be exceptions to this directive on verification.
Misuse of the legislation
- There were opinions that complaints under section 498A were being filed on the basis of personal vendetta.
- The conviction rate of cases registered under Section 498A IPC was also a staggering low at 15.6%.
- The recent concern brought up was, to check if there was a need to roping in all family members to settle a matrimonial dispute.
Facts on crimes against women
According to NCRB data in 2011,
- Total 1,14,372 cases were registered under crimes against women in matrimonial homes.
- 53% of the women had never gone to the police.
- 64% of them reported violence during pregnancy.
- 39% experienced physical violence.
Drawbacks in the verdict
- Only after the report of the Family Welfare Committee is submitted, can the police perform the policing function.
- Cognisable offences have been turned into non-cognisable offences, special rules for bail for husbands have been created, and the provisions of the Passport Act are relaxed.
- Section 498A is particularly effective when invoked against an NRI husband who tries to evade the law and abscond to foreign land.
- The purpose of this provision is defeated with the recent verdict which gives scope for the NRI husband to leave the country except in cases of “tangible physical injuries or death”.
- There doesn’t seem to be a point in arrest after the woman is dead. The purpose of all law is to sustain life, not support its destruction.
- The scope of the word ‘cruelty’ underlined by the bench has no quantitative indicators to be validated by an external Family Welfare Committee.
- Its leaves the responsibility to test the truthfulness of the complaints on arbitrary personalities in the Family Welfare Committee who are likely to be influenced by patriarchal mindsets.
- By creating the Family Welfare Committee, the court creates one more layer between the victim and the justice system, and as a result, her access to justice is compromised.
- Moreover, the creation of an intermediate body suggests that the judiciary does not trust the very beneficiaries of this legal provision.
- Exceptions to the directive such as grave physical violence or death, implies that mental torture, emotional or sexual violence are disregarded.
- The court has made an observation that filing complaints would affect the later reunion of the couple as also the reputation of the husband and the family.
- This sends a wrong message that would encourage women to shy away from lodging complaints to protect the honour of the family.
- It expects woman to internalise and normalise violence in private spaces for matrimonial relationships, which strongly goes against the idea of gender equality.
- The language of the judgment – condemning the “violation of human rights of the innocents” (the husband and his family), seems to lack the understanding of legal provision meant for women’s rights and protection.
- The naming as ‘Family’ Welfare Committee places family above individual woman’s rights, dignity or agency that the provision is meant for.
- In the bid to prevent misuse of the law, the court has ignored the aspect of preventing the violence itself and seems to go against all measures taken to achieve women’s rights in private spaces in India.
- The court should have called for expert evidence and consulted the services of women’s studies centres which exist in all universities.
- The court could have correlated NCRB data with the recent data of National Family Health Survey (NFHS) – 3 which has highlighted numerous cases of women who experienced some form of physical or sexual violence.
- As per NFHS, a mere two per cent of these women may have sought police support, while the rest have not accessed the law.
- There are many true cases of physical violence, violence during pregnancy, abuse with instruments, sexual violence in the form of forced sexual intercourse, and attempted suicide as a consequence of the ongoing abuse. To deny all these in the notion of “misuse of law” is starkly against protection of rights of women which the country is supposed to ensure.