On 2 July 2014, the Supreme Court ruled that the police cannot "automatically" arrest the husband or in-laws of a woman merely upon receipt of a complaint of harassment under Section 498A of the Indian Penal Code (IPC) and directed the police to satisfy themselves about the need for an arrest by using the parameters prescribed in Section 41 of the Criminal Procedure Code.

Under Section 498A of the IPC, “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offence is cognizable, non-compoundable and non-bailable.”

By way of explanation, the law clarifies,

“For the purposes of this section," cruelty" means

           (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 with a view to coercing 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.”

498A can only be invoked by a wife or a daughter-in-law or her relative. The various high courts and Supreme Court in India have repeatedly affirmed that most of the cases where Sec 498A is invoked turn out to be false, as they are mere attempts of blackmail by the wife (or her close relatives) in a strained marriage.

The Law Commission of India and the high courts in different states had in the past recommended amendments to the law. The Law Commission of India’s Report No. 243 on Section 498 A IPC dated August 2012, says:

“Keeping in view the representations received from various quarters and observations made by the Supreme Court and the High Courts, the Home Secretary, Government of India through his D.O. letter dated 1st September, 2009 requested the Law Commission of India to consider suggesting amendment, if any to s.498A of Indian Penal Code or other measures to check the alleged misuse of the said provision. Thereafter, in the case of Preeti Gupta vs. State of Jharkhand, (2010) the Supreme Court observed that a serious relook of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases”.

The Supreme Court had termed the instances of abuse of Section 498A as Legal Terrorism, and Parliament had pondered over the issue time and again. But nothing had happened till now. The broad implication of the recent ruling is endorsement of the assertion that the law is being grossly misused by many married women and their families who have an axe to grind, often financial.

A filmmaker’s perspective: What’s wrong with 498A?

Around the world, marital disputes are dealt with under Civil Law and not Criminal Law. Several police officials have confessed that in more than 95 per cent of 498A cases in India, the complaint arises out of a situation of marital discord between husband and wife. So how does it justify the arrest of an 80-year-old grandfather/mother, married sisters, teenagers, other daughters-in-law, relatives staying in different cities or even countries – basically anyone and everyone whom the woman names?

“In my personal opinion, they (the husbands and their families) have been even more victimised due to the gross abuse of this process. 498A has lost its sheen. It was the need of the hour, but sadly today it has become a tool of extortion and blackmail,” says Deepika Bhardwaj, who is making a film on this precise issue.

Deepika Bhardwaj

Deepika, was motivated to make a documentary film (still in process) called Martyrs in Marriage because she saw all this happening with a close friend. She did not take much notice the first time. But it repeated itself with a cousin and she felt she had to do something about this serious anomaly in the law, where young women and their parents or families were grossly misusing this section to harass their husbands and their families, even when there was no dowry demand or domestic violence involved.

But her first real brush with the extremities of this law came through a suicide video of the late Syed Ahmad Makhdoom, fourth husband of his estranged wife - who killed himself, tired of fighting a false dowry case and separation from his beloved son.

“It shattered me, jolted me. That....was the motivation for Martyrs of Marriage. It marked my first-hand experience with the police, court, lawyers; the extortion racket that I witnessed in the process motivated me to do something and I thought a documentary film would be the best possible way.”

Martyrs of Marriage presents three case studies: one of a woman who fought but lost, with her brother ending his life, another of a woman who fought and won after a 5-year struggle and the third of a woman who is still fighting, not knowing when it will end. All three women are sisters who were married before their brothers, but were named in the cases as ‘relatives’ of the husband. With their own marriages in jeopardy because of these cases, the tales convey how laws made for women are adversely affecting women themselves.

These stories are accompanied by several other stories of men and aged parents who have suffered because of abuse of this law. There are cases of suicide that appeared in news reports while Deepika was working on the film, where men harassed by the wife and in laws took the extreme step. Two of these cases are a part of the film.

Deepika has ferreted out cases from Delhi, Meerut, Bangalore, Mumbai, Hyderabad and Dehradun, in which men have been falsely accused and entire families have fallen apart after they were charged under Section 498A. One calls it “legal terrorism” while Justice Shiv Narayan Dhingra himself acknowledges that the section is being grossly misused, placing innocent lives of young men and their families in jeopardy.

Another advocate interviewed in the film, Sunil Gupta, says, “Many women themselves admit that they have deliberately trapped their husbands and are pressuring them to gain their own ends. Most of these cases are found to be baseless.”

To add to the woes of the accused families is a very loose definition of the law. Anything can be termed mental cruelty. Any complaint of mental harassment turns into a 498A. Eventually even if the person is acquitted after 5-7 years, the question remains if the trauma and ordeal of the entire process were justified.

According to Deepika’s findings from research, in 2012, a person was arrested every 2.5 minutes under IPC 498A. Every ten minutes, a woman was put behind bars, every hour a senior citizen was arrested for demanding dowry and every day a child was detained in custody along with the mother. Thousands of men and women lost their jobs because of wrongful arrests.

4,78,000 women have been arrested under IPC 498A over the last 15 years alone - more than under any other provision in the IPC ever. Cases and arrests under this provision form a whopping 50 per cent of total arrests in ‘crime-against-women’ cases in India!

A protest in Bangalore demanding protection for men in false cases of dowry. Pic courtesy: Deepika Bhardwaj

Out of 46,054 cases sent to courts under 498A in 2012, 39,138 resulted in acquittal or discharge and a mere 6916 cases saw convictions. In most cases, 498A complaint is followed by a demand for a huge amount of money (extortion) to settle the case out of the court. According to National Crime Records Bureau, only 15 per cent of those arrested for dowry offences under Section 498A of the Indian Penal Code in 2012 were convicted.

While the Supreme Court in its recent judgment has relied on the low conviction rate (15 percent) of cases registered under Section 498A, lawyers argue that this fact in itself does not represent proof of the ‘misuse’ of the law, but is rather a reflection of the punishing process of law which invariably results in parties opting to settle matters out of court.

Can Section 498A end dowry violence?

The other moot question in the debate is over the effectiveness of legal procedures and punitive action in actually putting a stop to the incidence of dowry and related violence. The Dowry Prohibition Act was enacted in 1961. 498A itself has been in the statutes for around 30 years now. But despite such laws, dowry as a practice shows no sign of getting wiped out.

If the first Act had been able to wipe out this evil practice, the country would not have needed an additional provision to arrest the husband’s family without a warrant, as soon as a wife filed a complaint of harassment, violence and torture. Dowry cannot be done away with unless people stop ‘giving’ and ‘taking’ dowry and the legal machinery implements the punitive action already written in the statutes.

Reactions and response

The Association of Oppressed Husbands in Kolkata is one group that is happy with the change that the apex court ruling will bring. Rabindranath Mullick, General Secretary of the organisation points out that the Supreme Court has added that the government of every Indian state must ensure that for any complaint against crimes entailing a sentence of seven years or less, the police must not take any steps to arrest the accused without proper investigation. Under the earlier legal proviison, the accused could be arrested without giving him/them a chance to be heard. That has changed now.

Mullick adds that arrests of innocent bedridden grandparents, NRI sisters of accused husbands could now see a decline. “This conditional modification of Section 498A will work as a safeguard for innocent victims, wrongly implicated and arrested,” he feels.

“Cruelty should be a gender neutral offence. A wife can be equally cruel to a husband. There has to be a law to punish that too,” says Deepika.

However, people acquainted with the nuances of gender violence, including activists and feminists, are up in arms against the Supreme Court ruling qualifying the law. Shashi Panja, Minister of State (Independent Charge) for Women & Child Development, in the Government of West Bengal says, “Maybe the law was indeed being misused, but by only a few. In most cases the complaints came from genuinely harassed and oppressed wives. In the larger cause of women, it would have been better if this change had not been made.”

She also points out that by and large, in rural areas, the police generally do not heed the complaints of harassment brought by rural women or treat them seriously enough. This change is further likely to aggravate their woes by providing immediate impunity at least for husbands and their families.

Sunanda Mukherjee, Chairperson, West Bengal Women’s Commission, says, “The Supreme Court decision reflects the highest court’s blind empathy to patriarchy. If the Supreme Court, the highest court of law in the country goes against women, where will the tortured women go for help? Every law is misused and abused to some extent. The judicial machinery is there to check the misuse and the abuse of Section 498 A. This kind of change is not warranted if the safety and security of our women are to be taken into account.”

Kolkata High Court advocate Sharmistha Roy Choudhury, who is also a member of the Executive Committee of the Bar Association, said, “The decision undoubtedly goes against women. It must be fought against by people from all strata of society. Accused people involved in various cases of dowry and other harassment currently being fought in different law courts in the country will use this decision as an excuse to escape punitive action.”

“The Supreme Court’s order requiring the police to get magisterial approval before making arrests in dowry harassment cases could lead to costly delays that could jeopardize a woman’s life and security, in cases where she is a victim of abuse,” says Kiran Singh, Advocate, Delhi High Court, a counsellor with the Delhi State Legal Services Authority and associated with legal services NGO MARG

Deepika however, adds a note of dissent. During the making of her film, she had to meet lawyers to seek their opinion on Section 498A. “Most of the lawyers I have spoken to,accept the misuse. They also say that misuse is larger than legitimate use especially in urban areas. Courts today are clogged with these cases. Matrimony disputes have shot up to an all time high. There are more than 3 crore cases pending in Indian Courts,” she says adding emphasis on the pile of 498A cases that are building up year after year.

In several of these cases, the couple have obtained a divorce even as the husband is fighting 498A. Then there are cases where the husband keeps fighting 498A while the wife goes in for another marriage. Meanwhile, the case between the state and the husband goes on.

Which way does one go to ensure the delicate balance of justice? In a recent panel discussion on Doordarshan, some panelists were of the view that most of the ‘false’ allegations pertain to urban women, so the amendment might serve the purpose of urban husbands and their families where the authenticity of the allegations can be verified through proper and timely police investigation and follow-up.

But what about the rural women, who are often victims of extreme forms of dowry harassment? They are illiterate, ignorant of their rights and the law and therefore, victims of abuse at the hands of husbands and in-laws. With the present ruling in place, even if they approach the police, what assurance do they have of justice? If instant arrests are outlawed by the recent amendment, the risks of more severe abuse following complaints and even dowry deaths are higher than ever before.

Right now, there seem to be more questions than answers, but this seemingly insoluble dilemma needs to be sorted out after careful deliberation and close collaboration between legal experts, civil society, feminist activists and of course, law enforcement agencies.