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Supreme Court’s Judgment Ignores Lived Reality of Married Women

The Supreme Court’s judgment in the Rajesh Sharma v State of UP which passed adverse remarks about the “misuse” of Section 498A of the Indian Penal Code by women to harass their husbands and in-laws, ignores the lived realities of a vast majority of married women.

This article was earlier published in the EPW website.Flavia Agnes (flaviaagnes@gmail.com) is a women’s rights lawyer and director of Majlis, which runs a rape victim support programme in Mumbai.

The judgment of the Supreme Court in Rajesh Sharma v State of UP delivered on 27 July 2017 seems to convey that the violence inflicted upon women is a mere figment of their imagination and that cases registered under the anti-dowry law—Section 498A—of the Indian Penal Code (IPC) are false. Further, it implies that women are irrational beings. Without weighing the implications of their actions, in the heat of the moment, they file false complaints of cruelty and dowry demands. Later, when reality dawns they want to retract and save their marriages. But by then it is too late, the marriage is broken irretrievably. Mind you, the marriage does not break because the husband’s family demands dowry, humiliates the woman or throws her out of the matrimonial home. The only reason that marriages break, according to our judges, is because the wife approaches the police and files a complaint. Adding insult to injury, the judges proclaim that the guidelines issued by them to the police not to arrest the accused until a family welfare committee investigates the case and sends in a report will be beneficial to the wife.

This narrative projected by our judges is totally out of tune with the lived realities of women. The experiences of several women’s organisations indicate that women approach the police as a last resort. This is because they, more than anyone else, are acutely aware that there are very few options open to them outside the marriage. Their natal families do not accept them. The government has failed to provide alternatives such as emergency shelters, halfway homes, subsidised housing, jobs for single women, prompt injunctions and maintenance orders, etc, as have been done in several other countries where the issue of domestic violence came out of its closeted existence in the 1970s and 1980s.

Yet, despite the odds, women venture to file complaints out of sheer desperation. We are told that Indians do not endorse Western values, and believe in the sanctity of marriage.

Ironically, we have all the laws in place, brought about through sustained campaigns by women’s organisations over several decades—covering cruelty to wives, a special provision to deal with wife murders (termed as “dowry deaths”) and abetment to suicide. When these criminal provisions did not yield the expected results and curb the menace of dowry violence, two decades later, the Protection of Women from Domestic Violence Act (PWDVA), 2005 for securing civil remedies such as protection, injunction and residence orders was enacted.

These legal provisions give credence to the fact that women in India are subjected to extreme domestic violence—dowry related or otherwise. The acute domestic violence in India has been highlighted through various national and international studies. The most significant among them is the National Family Health Survey-III (NFHS-III) conducted in 2005–06. It revealed that 31% of married women were physically abused and 10% were subjected to “severe domestic violence.” Twelve percent of those who reported severe violence suffered at least one of the following: bruises, wounds, sprains, dislocation, broken bones, broken teeth, or severe burns, and 14% experienced emotional abuse.

In the World Economic Forum’s (WEF) Global Gender Gap Report, 2016, India’s rating in the category “health and survival” is dismal. It ranks second from the bottom from among 144 countries.1 The issue of violence against women is dealt under this category. This makes India one of the worst countries for women in the world! This ought to be a matter of great embarrassment for the nation with its claim of development and progress.

Interestingly, almost all women who approach the police to complain about dowry-related violence appear to be Hindu. Perhaps Muslim women are too poor to avail of these options or face several cultural barriers. Yet the plight of these urban, middle class women does not seem to move us. There seems to be a great deal of hostility and distrust against these women. Our judges seem to believe that the humiliation these women are subjected to for bringing inadequate dowry is not serious enough to warrant the filing of a complaint.

These judgments seem to give the impression that going to a police station and registering a complaint is very easy, that the police immediately respond and initiate criminal action against the husband. Our experience at Majlis, a Mumbai-based non-governmental organisation (NGO) that provides legal advocacy and litigation help to women facing domestic violence, reveals that when a poor woman with bleeding injuries or a skull fracture approaches the police, she is asked to go back and “adjust,” for after all it is only her husband who is beating her! It is termed as “normal wear and tear” of marriage.

The Dowry ‘Demand’

Though the scope of Section 498A is sufficiently wide to include all types of violence, both physical and mental, the police narrow it down to only dowry-related violence. This view is affirmed by the media, the lawyers, the courts and the public at large who term it as “dowry law.” So for a complaint to be registered under it, even in the case of acute domestic violence, there is the requirement of adding a dowry demand. Though this is done as per the suggestion of the police, it is termed as a “false case.” A woman could be mentally tortured for myriad other reasons, including not giving birth to a male child, not being fair-complexioned or due to the husband’s extramarital affair. However, according to our judges, all this is not serious enough to drive her to suicide.

There is also a class bias that operates here. When a woman from the poorer section approaches the police, there is nothing to be gained. But when a middle or upper class woman with influence does so with a written complaint drafted by her lawyer, the police swing into action. Every lawyer who makes public statements about the “misuse of Section 498A” would have commercially gained by the provision, either by helping the woman to file a case or by rushing to the court with a bail application or an application for quashing it.

According to our judges, at this stage, women should be “counselled” and sent back to the same violent marriage without any protection. Not a word about restraint upon the husband and his family about the insistent dowry demands and physical and mental cruelty inflicted upon the wife. There is no judgment which states that there was no demand for dowry or that there was no violence. The legal narrative only concerns itself with the arrest of other members of the family.

Let us examine the facts of the Rajesh Sharma case. It is not denied that the husband demanded ₹3,00,000 and a car after the marriage. The wife’s complaint was that when the demand was not met, her husband left her at her maternal home when she was pregnant. She experienced severe trauma and, thereafter, suffered an abortion. The order of the lower court, as reproduced in the Supreme Court judgment, states

After perusal of the file and the document brought on record, it is clear that the husband Shri Rajesh Sharma demanded car and three lacs rupees and in not meeting the demand, it appears that he has tortured the complainant.

How then is this a “false case”?

When charges against the husband’s relatives were not framed, the wife moved the sessions court which directed that charges should be framed against all the accused. Accordingly the lower court framed charges. When the husband challenged this order in the high court, the matter was referred to mediation. The mediation efforts failed. The high court did not interfere with the order of the lower court. Against this, the husband approached the Supreme Court where the judges passed adverse comments about women filing false cases.

Let us examine the facts of an earlier case Arnesh Kumar v State of Bihar,2 where too adverse comments were made about women filing false cases. The Court had directed that arrest of the husband and his family members could be made only after obtaining the permission of the magistrate. The allegation levelled by the wife against the husband’s parents was that they had demanded ₹8 lakh, a Maruti car, an air-conditioner, a television set, etc, as dowry and when this fact was brought to her husband’s notice, he supported his mother and threatened to marry another woman. Thereafter, due to non-fulfilment of the demand for dowry, she was driven out of the matrimonial home.

In Savitri Devi v Ramesh Chand,3 a case decided by a single judge of the Delhi High Court, the wife had filed a complaint of cruelty and dowry harassment against her husband and in-laws that they did not like the dowry articles and expressed unhappiness that they were not given a Hero Honda motorcycle and cash of ₹50,000. Her husband’s relatives too taunted her about this. While charges were framed against the husband and father-in-law, the other relatives named in the complaint were discharged since there were no specific allegations of dowry demand against them. The wife had filed an appeal against this discharge. It is interesting to note the comments of the single judge of the Delhi High Court while holding that the allegations levelled by the wife did not make out a case of either “cruelty” or “harassment” as contemplated by Section 498A, IPC.

Non-acceptance of gifts might have hurt the wife’s feelings and other remarks might have been unkindly and incisive but by no stretch of imagination, such conduct is an offence under Section 498A IPC. Such a conduct does not drive the woman to commit suicide, cause grave injury nor is likely to cause danger to life or limb, nor amounts to tormenting her either physically or mentally to compel her or her relatives to fulfil the demands of any property or valuables.

Hence it was held that her complaint was misconceived and used as a tool to hold the entire household to ransom and jeopardy.

Subsequently, in Sushil Kumar Sharma v Union of India4 where the constitutional validity of Section 498(A) was challenged, the Supreme Court declined to grant the petitioner his prayers and held,

Mere possibility of abuse of provision of law does not, per se, invalidate legislation. If provision of law is misused or subjected to abuse of process of law, it is for the Legislature to amend, modify or repeal it.

Justice Arijit Pasayat who authored the judgment scathingly criticised the generalised views expressed by the single judge, Justice J D Kapoor in Savitri Devi (above) where the judge held that the law should be amended or struck down, that these observations may be appropriate for seminars or workshops, but should not have been incorporated as part of a court judgment.

Yet all these judgments find a mention in Rajesh Sharma as examples of women filing false cases. Yet another judgment often cited as an example of “misuse” is by Justice Katju in Ramgopal v State of Madhya Pradesh5 where the husband was convicted for causing grievous hurt to the wife under Section 326, IPC. Thereafter there was a settlement between the parties and they moved for compounding the offence. (This is a usual practice where after a conviction for rape or domestic violence, in order to escape the prison sentence, the accused offers to “settle.”) Justice Katju merely held that since the offence is non-compoundable, it is in the domain of the legislature to make it compoundable.

We seem to have come a full circle from the early days of the anti-dowry campaign when judges made scathing comments about the practice of demanding dowry. Irrespective of the facts of the case, they could be included to add spice to the judgment. For instance, in a case of wife murder in 1983, Virbhan Singh v State of Uttar Pradesh,6 the opening comments were as follows:

It is an unfortunate and disturbing phenomenon that has recently arisen in many parts of our country that instances of bride killing are alarmingly on the increase. If society should be ridden of this growing evil, it is imperative that whenever dastardly crimes of this nature are detected and the offence brought home to the accused, the courts must deal with the offenders most ruthlessly and impose deterrent punishment.

These comments were totally out of context to the facts of the case. The violence in this case did not revolve around the issue of dowry. The woman was married for nine years and was humiliated and tortured because she could not bear children. The mother-in-law wanted to get rid of her and get another wife for her son. The husband and mother-in-law had caused her death by severely beating her and then hanging her body to make it appear as suicide. Relying on medical and forensic reports, they were convicted for murder and were awarded life imprisonment. Though the facts did not relate to dowry, the dowry rhetoric was invoked while deciding a case of martial murder as these two terms had become synonymous.

In another case decided in 1990, the Supreme Court commented:

Bride burning is a shame of our society. Poor never resort to it. Rich do not need it. Because, it is basically an economic problem of a class which suffers both from ego and complex.(sic) Unfortunately the high price rise and ever increasing cost of living coupled with enormous growth of consumer goods effacing differences between luxury and essential goods appear to be luring even the new generation of youth, of the best service, to be as much part of the dowry menace as their parents.7

The Supreme Court called for social boycott of the entire family and for debarring a boy from such a family from remarrying as this was the only way the problem of dowry could be solved.

The comments regarding consumer goods, luxury items, avarice and greed were out of place as the parties belonged to the lower economic strata. The demand was for a mere ₹5,000 or an autorickshaw, but even this could not be met as the girl’s father was very poor and had seven daughters. Hence he had to suffer the ignominy of witnessing his daughter being beaten in his presence.

In yet another case decided in 2003, Hira Lal v State (Govt of NCT) Delhi,8 the Supreme Court had commented:

A bride leaves the parental home for the matrimonial home, leaving behind sweet memories therewith a hope that she will see a new world full of love in her groom’s house. She leaves behind not only her memories, but also her surname, gotra and maidenhood. She expects to be a daughter in law. The alarming rise in the number of cases involving harassment to the newly wed girls for dowry shatters their dreams. In-laws are characterized to be outlaws for perpetrating a terrorism which destroys matrimonial home. The terrorist is dowry, and it is spreading tentacles in every possible direction.

From this position of a benevolent patriarch, the discourse in courts seems to have changed to one of distrust. For instance, in Sushil Kumar Sharma case the Court commented that the provision is intended to be used as a shield and not a weapon and that the law has created legal terrorism.

Domestic Violence

But the moot question is—have we got rid of the menace of abuse and torture of women in their homes? Rajesh Sharma based its ruling on the National Crime Records Bureau (NCRB) data on dowry arrests and that a large number of cases are pending trial. As a contrast, let us examine the statistics for Mumbai obtained from the commissioner of police. In 2004, 69 women were killed or driven to suicide due to dowry demands and the number of cases registered under Section 498A were 226, a little above three times the number. In 2009, the number of women who died unnatural deaths went up to 84 and correspondingly the number of cases under Section 498A rose to 356. In 2016, the cases of women who died rose to 107 and the cases under Section 498A rose to 576. Are we to believe that in a city of over 20 billion people, 300–500 cases filed regarding dowry violence constitute misuse of Section 498A? To a rational mind it appears that there is a proportionate increase. More disturbing, the anti-dowry laws have not had the desired effect and have not curbed dowry demands nor gruesome violence against women.

But these concerns do not affect our judges. All that seems to matter are the arrests—a married sister-in-law, a young brother-in-law and the bedridden grandfather of her husband should not have been arrested. Not that women should not be killed, tortured or humiliated in their matrimonial homes.

It is tragic that Rajesh Sharma has made a reference to the Domestic Violence Act only to the extent that the law provides for counselling. This comment alone exposes the inherent bias of our judges. The PWDVA provides for protection against domestic violence, compensation against the injuries suffered, injunction against dispossession, custody of children and maintenance for the survivor and her children. Yes, every case under Section 498A needs to be linked to the PWDVA and magistrates need to be alert to provide women civil remedies at the earliest stage.

It is true that a large number of cases are languishing in our courts. It is because once the husband and relatives are released on bail, they abscond. Since it is non-compoundable, the cases cannot be easily closed and become dormant. The role of the complainant is limited only to giving evidence in court. Until the case reaches this stage, she is kept in the dark. Meanwhile, she might have moved on or there may have been a compromise. This act on her part to rebuild her life cannot be termed as “false case” or “misuse of law.” If only our judges took a keen interest in securing the rights of women and ensuring their dignity, the Rajesh Sharma case would have reached a different conclusion. 

Notes

1 Though in politics we are among the top 10 countries and have made considerable progress in education at 113 place, in the economic sphere we rank 136 out of 144 countries and in health and survival, we are at a lowly 142 place. See India Ranked at Lowly 87 in Gender Gap Index,Indian Express, 26 October 2016, indianexpress.com/article/india/india-news-india/india-ranked-at-lowly-87-in-terms-of-gender-equality-3103633/.

2 [(2014) 8 SCC 273].

3 [ILR (2003) I Delhi 484].

4 [(2005) 6 SCC 281].

5 [(2010) 13 SCC 540].

6 Virbhan Singh v State of Uttar Pradesh, AIR 1983 SC 1002.

7 Ashok Kumar v State of Rajasthan, AIR 1990, SC 2134.

8 AIR 2003, SC 2865.

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