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An underused law

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ISSUE According to a study, in India most women still need IPC Section 498A to protect them from domestic violence, writes S.S.KAVITHA

For years, Indian women who spoke out about matrimonial cruelty got unhelpful responses from their elders. “After all, he is your husband. What will happen to the kids if you leave him? Do you want them to grow up fatherless?”

All these social responses insist on one thing – that a woman should remain amicable. However bad a husband is, she must learn to tolerate him and continue to live with him.

Until 1983, when the Indian Penal Code 498A was passed, wife beating was not considered a crime. This Section declared matrimonial cruelty to women a cognizable, non-bailable and non-compoundable offence.

“This was the first attempt made to consider matrimonial cruelty against women a criminal offence. It directs husbands not to ill treat and harass their wives,” says Bimla Chandrasekar, Director, EKTA Resource Centre for Women. “For women who want a solution and solace, IPC 498A comes to the rescue.”

She says, however, that the criminal justice system has not taken adequate measures for the implementation of the Section. She cites increasing reports of women committing suicide, being forced to commit suicide, or being harassed or killed because they did not bring enough dowry, and of the perpetrators escaping the law.

On the contrary, some men have alleged that Section 498A has broken down the foundation of the Indian family system.

“This allegation is not true at all,” says Phavalam, who undertook a six-year study on the impact of Section 498A in 12 districts in Tamil Nadu.

She says in Tamil Nadu, 44.1 per cent of married women are victims of some form of physical or sexual or emotional violence by their husbands. The national average is 39.7 per cent.

According to the National Crime Record Bureau, incidences of crimes against women within marriage (2002-2008) have steadily increased from 1,43,034 to 1,95,856. Phavalam adds, “There is a significant increase of 65 per cent in cruelty incidents under 498A in 2008 when compared to 2002, in spite of Dowry Prohibition Act, 1961 being in force.”

Among the conviction rates of various crimes committed against women, the percentage for cases of ‘cruelty by husband and relatives’ is only 23.9. This is very low compared to the conviction rate for offences under the Dowry Prohibition Act (26.7 percent) or for dowry death (34.1 percent).

“IPC 498A is less used,” says Phavalam. “Out of 1 lakh women, 44,000 suffer some form of harassment (physical, sexual and mental) and 880 women seek police help. Out of that, only 26 complaints are converted into First Information Report and five cases are convicted in trial courts and 0.8 go for higher appeal.”

“Similarly, among the crimes against women like sexual assault, molestation, kidnapping and abduction, sexual harassment, dowry death, offences under the Dowry Prohibition Act, cruelty by husband and his relatives accounted for the highest number,” she says.

Phavalam says, “One of the reasons for this study to be undertaken was the systematic and sustained attack by certain groups on Section 498A alleging that it has broken down the foundation of the Indian family system.”

Opponents of the law allege that it enables the widespread arrest of elders, women and minors and encourages false charges. “In reality, it is not the case,” she says. “There are only five arrested below 18 years and only 4.0 per cent of elders above 60 are arrested.”

She quotes magistrates as saying that there is no case under the section without ingredients of cruelty, but some women weave in an additional charge to express the intensity of the harassment, and then fail to prove it. “Similarly, acquittal does not mean that the accused are innocents. This happens when the prosecution fails to prove the guilt due to lack of evidence or the prosecution cannot prove the guilt beyond reasonable doubt.”

In her view, these opinions from the judiciary nullify the arguments that Section 498A encourages false charges.

In Tamil Nadu, between 2003 and 2008, 24,070 cases of were filed under the Act. Out of these, the Government withdrew 34 cases and the parties withdrew 140 cases. As many as 1145 cases led to convictions and 4513 led to acquittals. During the same period, out of 44,098 persons arrested, 12,134 were tried and only 2559 were convicted.

Phavalam adds, “The study was undertaken also to highlight the fact that if the section is made bailable and compoundable, it would dilute the very objective of this provision and weaken its efficacy.”

The accused can often appeal a conviction in the district court, high court and Supreme Court from the trial court, whereas in the case of the victim the Government must appeal on her behalf.

“This difference shows how strong the First Information Report should be, without any loopholes.”

Phavalam says, “Awareness should be created among women and police about the Act and how it should be handled. This we could achieve by establishing a separate wing with counsellors who could brief the victim about the Act and its course of action.”

ILLUSTRATION :

SATHEESH VELLINEZHI

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