Misuse of Domestic Violence Laws: A Legislative Dynamism

"No nation founded upon injustice can stand. From the sand enshrouded Egypt, from the marble wilderness of Athens, from every fallen, crumbling stone of once mighty Rome Comes a wail, as it were the cry. No nation founded upon Injustice can permanently stand.'[1]

What is violence?

Violence is an act of aggression that crosses the boundary of another person's autonomy and identity. It is a coercive instrument to 'assert one's will over another, to prove or feel a sense of power'[2]

Domestic Violence

The term 'domestic violence' implies the incidents of familiar or intimate battering having reference to an idealised family unit functioning in a protected and secluded manner, appropriately shielded from the public.[3]

Domestic violence is undoubtedly a human rights issue and serious deterrent to development. It manifests as verbal, physical or psychological abuse, often in forms that are more subtle than the violence elsewhere in the society. The reconciliation with the subrogation, in the wake of limiting social circumstances, violates the case of human rights –liberty and human dignity.[4]

Domestic Violence Act, 2005 is a result of Legislative Dynamism, it is a well-intended Social Legislation that was introduced when all the other previous Statues failed to achieve the desired results as a last resort and to protect the women from Domestic Terrorism. Therefore, this paper attempts to cover the situation of Women Protection laws before the enactment of the Domestic Violence Act.

'Power tends to corrupt and absolute power corrupts absolutely'[5] therefore, this paper also tries to scrutinize the potential of these provisions to be misused by the Domestic Violence Act.

The phenomenon of Domestic Violence is widely prevalent but has remained largely invisible in the Public Domain. Presently, where a woman is subjected to cruelty by her husband or his relatives, is an offence under Sec 498-A of The Indian Penal Code.

The victim's inability to access the law makes the legal remedies ineffective, and the four walls of the so-called 'home' render the law incapable of reaching the victims, which is even more tragic. Most victims of the domestic violence are at risk of further violence or even death when they attempt to leave the abusive relationships.

Most incidents of domestic violence go unreported because women are reluctant to bring a complaint against the members of their own family.

All these factors render the issue of domestic violence very different from other forms of violence, because of women's weak and vulnerable position inside their matrimonial home. It also explores the myth that the women are subjected to harassment and violence on the streets and at their workplace while the home is the safest 'heaven'. The phenomenon of domestic violence is widely prevalent but has remained largely invisible in the public domain. Presently, where a woman is subjected to cruelty by her husband or his relatives under, Sec. 498-A[6]of the Indian Penal Code. The civil law does not, however, address this phenomenon in its entirety.

Protection of women from Domestic Violence Act, 2005

Domestic Violence is a long-debated issue and its journey started long back in the year 2001 when the bill was introduced in Parliament, in 2005, and finally, the Act was passed. This Act was important to prevent women who were ostracised by their 'own' people in their 'own' homes. There were long discussions to have consensus, a number of changes were made, and serious lacunae which existed were filled.

Objectives

The objective of this Act is to provide for more effective protection of the rights of women, guaranteed under the Constitution, who are victims of violence of any kind of occurring within the family and for incidental matters. The Act was bought into force in October, 2006. The basis of which a woman files the case of domestic violence-

• Physical Abuse
• Sexual Abuse
• Verbal Abuse
• Economic Abuse

Physical Abuse is defined as any act or conduct which is of such nature as to cause bodily pain, harm, or danger to life, limb or health. Thus physical violence is:

i. Any kind of bodily harm;
ii. A threat of bodily harm;
iii. Beating, slapping and hitting; and
iv. Includes criminal intimidation and criminal force.

Sexual abuse is any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of the person and covers the instances where a woman is forced to have sexual intercourse with her husband against her will. Thus it includes:

i. Forced sexual encounter;
ii. Forcing a woman to look at pornography or any obscene pictures; and
iii. Any act of sexual nature to abuse, humiliate or degrade a woman�s integrity.

Verbal and emotional abuse has been defined as an insult, ridicule, humiliation, name calling and such acts as:

i. Any kind of accusation on a woman�s character or conduct;
ii. Insult for not bringing dowry;
iii. Preventing a woman from marrying a person of her choice and;
iv.Any form of threat or insults for not producing a male child.

Economic abuse is deprivation of economic or financial resources which an aggrieved person requires out of necessity. Other examples of economic abuse are

i. Not providing money, food, clothes or medicine;
ii. Causing hindrances to employment opportunities;
iii. Forcing a woman to vacate her house; and
iv. Not paying rent

SECTION 498-A: Husband or relative of husband of a woman subjecting her to cruelty

Section 498-A is a criminal offence which has been introduced by the Criminal Law Amendment Act, 1983 to fight against the danger of dowry deaths. Some years ago, the problem of dowry death was increasing at a steady rate as many incidents of dowry death have been reported. A ‘dowry- death' is defined as the murder of young woman committed by her in-laws when she fails to fulfil the demands of her in-laws like property, money or any other valuable thing. Many organizations working for the cause of dowry deaths laid a stress on the Government demanding the legislative protection to women against dowry and domestic violence. This lead to significant amendments in the Indian Penal Code, Dowry Prohibition Act, the Indian Evidence Act etc. Section 498-A is considered as one of the most important amendment in this regard. It states as follows:

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.

If a woman commits suicide within a period of seven years of marriage then, it is shown as if the husband or any other relatives of the husband had subjected her to some sort of cruelty. The word ‘cruelty' has been defined in the explanation part of Section 498-A which is given below:

Explanation.- For the purpose 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.

Cruelty may be physical or mental. By interpreting the explanation to this section, cruelty is of four types:[7]

a) Any conduct which is likely to drive a woman to commit suicide
b) Any conduct which causes grave injury or danger to life, limb or health of the woman
c) Harassment of woman for demand of any property from her relatives
d) Harassment of woman when she fails to fulfill their unlawful demands.

Section 498-A is a criminal offence under the Indian Penal Code, 1860. It is non-bailable, non-compoundable and cognizable offence.

Unfortunately, this section had been subjected to extreme unlawful use especially by the women. This legislation was introduced for the benefit of the woman but regrettably, it is being extremely misused by the woman themselves.

In the year 2012-14, a total number of 16,35,14,204 and 531 cases have been registered under the Protection of Women Against Domestic Violence Act, 2005. Around one lakh cases, were investigated every year and approx. More than 10,000 complaints turned out to be false.[8]

From the above quoted figures, it is clear that the Protection of Women Against Domestic Violence Act, 2005 is one of the most abusive law. The reason behind its misuse can be the loopholes in the formulation of the legislation or the conduct of the concerned officers. According to National Crimes Record Bureau (NCRB) data, referred by the Apex Court while delivering the judgment regarding 498-A said that, in the year 2013 around 93 percent cases were registered under section 498-A and among them all conviction orders were passed only in 15 percent of the cases.[9]

This law is abused to an extreme level and in future, if a family has a daughter-in-law who is less alienated towards the family, then the whole family can be put behind the bars under section 498-A of IPC based on the complaint filed by their daughter-in-law.

The family can't avoid the complaint filed under section 498-A, unless, they know how to deal with this problem or what are the remedies available to them. Otherwise, a case will go on for years.

The main objective of the daughter-in-law behind filing a false complaint under section 498-A, which is generally reported is the demand of share in her in-laws and husband's property.

The Supreme Court has condemned section 498-A as 'LEGAL TERRORISM' in the case Sushil Kumar Sharma v. Union of India[10].

LEGAL TERRORISM:

SECTION 498-A IS AN EXTORTION SCAM

• In a legal sense, section 498-A is a criminal offence which is cognizable (police authorities are bound to register a complaint and investigate into the matter before taking an action), non-bailable (the bail is ordered by the judge), non-compoundable (the complaint cannot be withdrawn by the petitioner). But, in actual sense, section 498-A is an offence which is cognizable (police authorities arrest the family against whom the complaint is filed in order to make money from both the parties), non-bailable (the bail is ordered at the discretion of the Magistrate so the family is put behind the bars and all sort of games are played. This happens only when the Magistrate is corrupt and the Cops too.), non-compoundable (the court allows the withdrawal of the complaint if the parties agrees for the settlement of the case outside the Court).

• The legislation fails to provide justice to the real victims of the dowry harassment.

• This exposes the innocent family members to the evil of corrupt judicial system. As soon as the complaint is filed, the whole family is put behind the bars including old parents, pregnant woman and children. A criminal case is registered against even though they are not at fault. This affects the career of the family member to a great extent.

• This law is violative of Article 14 and 15 as it supports gender biasness.

• The involvement of corrupt Indian police and overburdened and unregulated lower courts had made section 498-A a better tool of extortion.

REASONS OR MOTIVES:

• MONEY MAKING
• TO COVER UP FOR SOME MISTAKE
• GUILT(ADULTERY)
• DISLIKING HUSBAND OR IN-LAWS
• EXTRA-MARITAL AFFAIR

In 2005, the law which the government of India passed was a new legislation on domestic violence called the Protection of Women from Domestic Violence Act 2005 (PWDVA). It is feminist law and the women are given special privilege under this act the motive of civil law is aimed at providing relief to millions of women including wives, mothers, daughters and sisters affected by violence in their homes.

'The notable flaw in this law is that it lends itself to such easy misuse that women will find it hard to resist the temptation to teach a lesson to their male relatives and will file frivolous and false cases.'[11]

Since the enactment of the law which was basically made for the women welfare is now highly being misused, the women tend to file the false cases against her husband and in-laws.

In the present scenario, the situation of most of the countries of the world is that the most countries in the world, are against the domestic violence and provides protection to both the men and the women.

In India, family violence against men is almost legal as there is no provision in any law to protect man. Here a man gets trapped when the women lodges the false complaint against him and his family. It is not only that the men are charged for the false cases charged against him but the brutal wife in connivance with her own family abuses, batteries and tortures the husband but at times the violence becomes so grave that husband suffers extreme injuries and in few cases, he is also killed.

'Inherent flaws tempts the women to misuse the provisions and the men to the dread of being prosecuted'

When judiciary acts as an 'agent of wives'?

• Judiciary has taken an official stand of not punishing wives and her relatives when they attack the husband or his relatives physically.

• At times, such attacks are either fatal in nature or injure the man severely. Wife and her relatives are given a free license to commit atrocities on husbands and then file a complaint of 498A to cover their own crimes.

• And, the judiciary accepts this behaviour as normal and punishes the husband for 498A and lets off the wife without any punishment.

• Cases linger for years together because judges do not follow the due process in the cases and allow any number of adjournments to the wife when she does not attend the court hearings.

• Judges do not dismiss the cases even if the wife does not attend the cases for years together. Judges take months together to merely decide on bail petitions.

The suggestions for the government that I would like to suggest are:-

• Make 498A bailable and non-cognizable

• To insert a special provision to punish those police and judicial officers who do not follow the law properly and report such malpractices under the cover of Sec 498A.

• Drop the move for amending 498A to make it compoundable.

• Stop the extortion and blackmailing the men in the name of mediation and counseling

• A committee should also be formed where the innocent men have been acquitted, as watchdogs to monitor and review orders by the judiciary.

• A proper investigation must be made before arresting any individual, as domestic violence under (498A) is a non-bailable and no proof is required for arrest.

[1] THE WORKS OF ROBERT G. INGERSOLL, BY ROBERT INGERSOLL,
[2] Robert Litke, 'Violence and Power', (1992) 44/2 International Social Science Journal 173-83.
[3] M.A. Fineman, Preface in M.A. Fineman and Mykituk R. (Eds.), The Public Nature of Private Violence, The Discovery of Domestic Abuse (Routledge, New York 1994)
[4] The United Nations Committee on Convention of Elimination of all Forms of Discrimination Against Women (EEDAW).
[5] Lord Acton, a British historian of the late nineteenth and early twentieth centuries.
[6] Husband or relative of husband of a woman subjecting her to cruelty. Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.
[7] The Indian Penal Code Ratanlal & Dhirajlal (Student Edition)
[8]http://www.firstpost.com/india/flipside-of-dowry-law-men-recall-how-section-498a-is-unfairly-used-against-them-2172943.html
[9]http://www.deccanherald.com/content/470904/misuse-section-498a-reality-check.html
[10]Writ petition(C) no.141 of 2005
[11] Said by Justice S. Vaidyanathan. Madras High Court