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The SC Order On Sec 498A Addresses The Demands Of 'Men's Rights' Activists

A landmark.

28/07/2017 2:28 PM IST | Updated 28/07/2017 2:45 PM IST
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In a landmark move, the Supreme Court of India has issued a set of directives related to the application of Section 498A of the Indian Penal Code (IPC), with a view to prevent the misuse of this provision in cases filed under it. The order was delivered as part of a judgment in one such case from Uttar Pradesh.

According to reports, no coercive action would be taken against the accused, or arrests would be made, till the veracity of the allegations made by the victim are confirmed. These exceptions would apply to only such cases where there's no visible sign of injury suffered by the complainant.

To this end, the court has defined specific guidelines for the police and other law-enforcing authorities to follow while dealing with cases filed under IPC 498A. There is a precedence for this ruling in Arnesh Kumar vs. State of Bihar & Anr of 2014, where the SC ruled that arrests should not to be made under this section in "a routine, casual or cavalier manner" because it concerns a non-bailable and cognizable offence.

Section 498A, which was passed by the Parliament in 1983, states that "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." Such an offence is cognizable, non-compoundable and non-bailable.

The importance of the law is undeniable in India's patriarchal social structure, but it was especially felt in the 1980s, as a spate of media reports highlighted incidents of 'bride burning'. After sustained advocacy by activists, the law was amended to recognise deaths of women, which occur within seven years' of marriage, as being unnatural. Three decades later, the reality remains no less grim, with a shocking 21 'dowry deaths' reported from across the country every day.

Let that number sink in for a moment.

According to the National Crime Records Bureau (NCRB) data, in 2015 as many as 7,634 women died due to dowry harassment, either killed by their in-laws or abetted to commit suicide. Yet, shockingly, for such an endemic problem, the conviction rates remain a dismal 34.7% out of the 93.7% accused chargesheeted that year.

In the meantime, the custom of dowry continues unchecked, practised as such with impunity or under the guise of giving 'gifts'. And this in spite of the fact that the Dowry Prohibition Act of 1961, amended in 1983, defined dowry as the request, payment or acceptance of a gift "as consideration for marriage". The norm is still stubbornly pervasive in 21st century India, resulting in grievous tragedies, many of which go unreported or are neglected for years due to judicial delay, often until it's too late.

The flip side of Section 498A, however, is its alleged misuse, where, as the bench of Justices AK Goel and UU Lalit noted in the current SC order, women invoke it to harass and intimidate their husbands and/or in-laws. The incidents of such frivolous lawsuits, some of which name 2-year-old toddlers as offenders, explain the low conviction rates mentioned earlier and also often takes a serious toll on innocent lives.

Going by recorded testimonies, Section 498A tends to be misused a lot to exact revenge on men or their families for their perceived misdeeds. In some cases, sources say, the offences may be trivial, such as a husband's inability to guarantee a certain lifestyle for his wife or any other sore point in the marriage that may escalate into a legal battle.

The SC's latest directives are not only meant to curb such flippant misuse of the law but also to prevent, as the bench says emphatically, the "violation of human rights". It should also be noted that the judges admit to being "conscious of the reason" behind this law's existence, even as they acknowledge the flaws inherent in it.

Activist and filmmaker Deepika Bhardwaj, who has been fighting for the rights of men and families wrongly framed under this law, hailed the overall fairness of the judgment. "I'm extremely happy that the results of my work over the past 4-5 years have yielded so soon," she told HuffPost India, describing the guidelines as "a long overdue victory for thousands of people", including for those who began the Save the Indian Family movement.

Among a slew of orders issued by it, the bench has asked for one or more family welfare committees to be set up in each district in every state. From paralegal volunteers to social workers to retired citizens to the wives of government officials, almost anyone can apply to be part of such panels. Whoever is selected to it will be given training for at least a week, sometimes periodically, before they can commence their work.

Such committees will have one month to file their reports and based on their findings suitable actions may be taken, including arrests. However, if "a bail application is filed with at least one clear day's notice to the public prosecutor/complainant, the same may be decided as far as possible on the same day".

The order goes on to clarify that "recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected". The practice of impounding passports of the offending husbands or issuing a Red Corner Notice to NRIs would also no longer apply.

Women's rights activists, who have fought and are still engaged in a long battle to ensure justice to victims of dowry harassment, rightly fear that some of these orders may weaken the grounds for genuine victims, who may be suffering from mental torture not involving physical assault.

The gap of one month, for instance, between filing a complaint and the committee submitting its report is long enough for a major turnaround in a legitimate case of emotional assault. Further, those who join the welfare committees may bring in their own biases that may be inimical to any fair hearing of the cases.

The SC order, Bhardwaj argued, is robust enough to factor in these concerns. "The interpretation of cruelty is a subjective matter anyway," she said. "With the formation of the family welfare committees, corruption at the mediation level will go down." Given the heterogenous composition of the panels, "it would be a rare scenario where the entire committee is corrupt," she added.

The fairness of the court order is apparent from the fact that it is a provisional ruling. The SC has sought a report by 31 March 2018 from the National Legal Services Authority about the need for any changes in its directions and listed the matter for hearing in April 2018.

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