The abuse of section 498 A relating to dowry has seen many an innocent husband landing in jail. but with the supreme court forbidding automatic arrest, succor is in sight.
By Bhavdeep Kang
A woman is murdered for dowry every hour in India—a widely quoted statistic backed by a mind-googling number of news reports on women brutally killed by in-laws or husbands in just the last three months. In conjunction with the almost 1.2 lakh cases of domestic violence lodged at police stations by battered women in 2013, it would appear that wives do, indeed, have a hard time. And yet, it seems the sandal is on the other foot—men too are being subjected to extortion, humiliation, emotional abuse and imprisonment by “disgruntled wives”.
So rampant is the abuse of Section 498A of the Indian Penal Code, relating to harassment for dowry, that the Supreme Court (SC) stepped in with a directive on July 2, forbidding automatic arrest in such cases. It also read the police a homily on misuse of this provision. “Section 498-A (has)…dubious place of pride amongst the provisions that are used as weapons rather than a shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a number of cases, bedridden grandfathers and grandmothers of the husbands and their sisters living abroad for decades are arrested.”
Left in the lurch
How does it work? Let’s look at a case from Mumbai. The wedding over, the newlyweds checked into to a hotel to “rest” before leaving for the honeymoon. But the bride had other plans. Three hours after leaving the shaadi ka mandap, she informed her husband that she hadn’t wanted to marry him in the first place and departed (with a substantial amount of jewellery), leaving the red-faced groom to face his family, friends and colleagues.
Worse was to come. After several weeks, he applied for an annulment on grounds of desertion. Two days later, a contingent of Mumbai police appeared on his doorstep to arrest him on grounds of harassment for dowry and domestic violence.
The groom’s story would have struck a chord with V (name withheld), who married a pretty Kolkata girl in good faith, only to be told she was in love with someone else. Unlike the film Woh Saat Din, in which the reluctant bride falls for her unprepossessing husband and dumps her handsome lover, she left him for her boyfriend within a week. To add insult to injury, she charged him and his entire clan with harassment for dowry. Only a large financial settlement staved off arrest.
Lawyers have a fund of such stories: a Haryana boy who paid Rs. 45 lakh to his estra-nged wife to secure the release of his mother from jail; an MNC executive who spent a horrifying night in a police lock-up before he coughed up money; a divorcee who took a second plunge, only to find that his bride was schizophrenic and his in-laws were bullying him—on the threat of arrest for domestic violence—to sign over his properties to them.
In a bizarre twist to the standard pay-up-or-I’ll-put-you-in-jail plot, a Bangalore-based Infosys executive murdered his wife in 2010, claiming she had threatened to file a dowry harassment case against him, which would render his aged parents vulnerable to arrest.
It was, therefore, natural that widespread relief greeted the SC directive of July 2. The case that caused the court to give this order was a standard one: young Arnesh Kumar’s wife had accused his parents of demanding dowry in cash and kind and kicking her out when she did not comply. He’d applied for anticipatory bail, which was rejected both by the sessions and high court, and filed a special leave petition in the SC.
The SC pointed out that almost two lakh people had been arrested in 2012 under the section, of which a quarter were women (mothers, sisters, etc, of the accused). Going by the statistics, it would appear that harassment for dowry is the third most common crime in the country. What’s more, the rate of charge-sheeting in such cases is close to 94 per cent, while the conviction rate is only 15 per cent. Extrapolating this, the SC said that of the 3,72,706 cases pending trial, 3,17,000 were likely to result in acquittal.
So, instead of knee-jerk arrests, the police are now required to secure a magistrate’s approval for detention on the basis of Section 41 of the CrPC, which governs arrest without a warrant. If this procedure is not followed, the police personnel concerned are themselves liable to be prosecuted.
In the 15 years preceding this SC verdict, a series of reports pointing to misuse of the Dowry Act had come out. In November 2000, the legal adviser to the Delhi Commissioner of Police suggested that Section 498A was being misused by women to harass their husbands. The Malimath Committee on Criminal Justice System reforms in 2003 observed that the provision “helps neither the wife nor the husband. The offense being non-bailable and non-compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions…operate against reconciliations”. The Law Commission in 2012 said the offenses under this provision should be made “compoundable” and arrest resorted to only in cases of serious magnitude.
The courts, too, had made the same suggestion in a number of such cases. The high courts of Delhi, Tamil Nadu and Andhra Pradesh had all animadverted against knee-jerk arrests. The Delhi High Court in 2003 observed that 498A was a “much abused provision and exploited by the police and the victims to the level of absurdity…unless the allegations are of a serious nature and the highest magnitude, arrest should always be avoided”.
Mumbai High Court lawyer Abhishek Khare says the low conviction rate in 498A cases bears out his own experience—having handled over a hundred divorces—that “95 per cent are fabricated”. Some states, he says, are worse than others. The police go after the husband and family either out of fear of strictures from the court, pressure by NGOs or to make money off the accused.
Naturally, beleaguered husbands have banded together to protest. A host of websites offer advice to husbands charged under 498A or domestic violence: savefamily.in, saveindianfamily.org, menrightsindia.net, rakshakfoundation.org, indianfamily.net and 498a.org, to name a few. “A Guide to Surviving IPC 498 A” is an oft-downloaded document. Support groups are full of advice on how to avoid arrest under this section: grooms are warned to be observant and keep an eye out for “symptoms” of impending litigation.
Khare says there’s really no way of avoiding arrest, except to “run away and then file for anticipatory bail”. Exactly what S (name withheld) did. He returned home from work to find his wife of four years on the landing, accusing him of domestic violence and dowry demands, within the hearing of his neighbors. Embarrassed and perplexed, he slunk into his apartment and called a friend. “Pack a toothbrush and leave,” he was advised. Sure enough, his office called the next morning to say that the police were looking for him in a dowry harassment case. He then approached a senior police officer he knew, but was told it was all but impossible to avoid arrest. “But I didn’t do anything,” he protested. Pat came the res-ponse: “You got married, didn’t you?”
On the flip side is the continuing harassment, even murder, of women for dowry. These are samples from the month of August: a woman tied to a tree in Chhindwara and burnt by her in-laws; dowry death protestors block traffic in NOIDA; a former Delhi MLA and his family arrested in a dowry death case. The National Crime Records Bureau recorded 8,233 dowry deaths in 2012, 8,618 in 2011, 8,391 in 2010 and 8,383 in 2009.
Significantly, the July 2 SC judgement evoked cautious responses from gender activists and women lawyers. By and large, they took a nuanced stand, admitting that the law had been misused by a section of women—educated, aware and generally, middle-class. What they objected to was the judgment’s characterization of complainants as “disgruntled wives”. Senior lawyers like Malvika Rajkotia, Pinky Anand and Rebecca John observed that there were ample instances of abuse, but warned against diluting the law, as harassment of women was an ugly reality. Besides, every law has the potential to be misused.
The flaw, then, lies in the implementation of the law. Supreme Court lawyer Santosh Kumar points out that the accused in such cases is not a habitual offender. “The husband is not a hardened criminal with a history-sheet, so the police should not treat him as one.” The police can refrain from arresting the man and his family while investigating the case, he says, because there’s ample legal protection for the woman. She has the right of residence and is not being thrown out into the street and once she has filed a complaint, will have a secure environment in the home.
Often, Section 498A and the Domestic Violence (DV) Act come into play during acrimonious divorce proceedings. Canny lawyers make it a point to inform the police authorities, the state Human Rights Commission and the State Commission for Women before filing for divorce. In some cases, husbands have avoided arrest by pointing out that their divorce
petition preceded the dowry harassment complaint.
A case in point is that of Deepinder Hooda, son of Haryana chief minister BS Hooda, who was able to show that he had filed for divorce before his wife filed a complaint against him and his family.
The DV Act has also come in for criticism, not because of its intent but the wide definition of what constitutes violence. Verbal, emotional and economic abuse fall within the purview of the act and are described in such general terms that any domestic dispute or denial of expenditure—whether deliberate or inadvertent—and perceived shortfall in domestic goods, can amount to abuse.
Rajesh Vakharia, who runs the Save Indian Family Foundation, essentially a “rights of men” organization, says: “The SC itself has described the law as clumsily drafted…if the gas cylinder is exhausted and delivery of the new one delayed, technically the man can be accused of abuse.” He says the law is discriminatory because it defines the home solely in relation to the wife. “What about the other women in the home—the mother-in-law, the sisters-in-law?”
In his vast experience of acrimonious divorces, he says: “I find that the police entertain complaints from wives, but not mothers-in-law and unmarried girls. The moment a woman becomes a mother-in-law, she is transfigured from potential victim to potential demon.” The National Commission for Women, he complains, functions like the National Commission for Wives.
The SC judgement will surely bring respite to beleaguered husbands. “Courts have passed strictures before. But the police have failed to respond. Let us hope that this time, they follow the letter of the law,” says Vakharia.