MISUSE OF LAW RELATED TO WOMEN: WHETHER ANY WINDOW IS AVAILABLE TO HUSBAND

 

MISUSE OF LAW RELATED TO WOMEN:  WHETHER ANY WINDOW IS AVAILABLE to husband

Anil K Khaware

Advocate

After having written about the difficulties that women faces in family and the fact that the obstacles accentuates further in pursuing their cases, however, there is another dimension that cannot be overlooked. i.e harassment meted out to husband, live-in-male partners, relative of husband, even minors from womenfolk. The instances may be many, however fewer are reported, owing to lack of law and outlet not being available in this regard, more particularly the male being victim is dismissed in its inception. The irony is that the predicament faced by some males is a reality as well.  The problem cannot be brushed aside lightly. The welfare society shall have to afford equality in law to all and equality shall be meaningless, unless, equitability is ensured. There is no denying that vast majority of women – rural women, in particular are in receiving ends of the onslaught and ironically the laws enacted to accord leverage to them goes unnoticed by them, though, a section of urban women uses the law to the hilt and to their advantage and sometime law is misused with impunity. The law cannot be lopsided, and even if it is lopsided for expediency, the onerous duty is cast in courts of law to ensure that the misuse of law is minimized.

The penchant of a section of women to frame their husband and in-laws has become a pattern and is to be dealt with in similar manner. Whether law is outwardly feministic or it only seeks to neutralize male chauvinism are the aspects craving for answers, not in theory, but from the stand point of proceedings that is conducted in court of law. Whether there are safeguards against the misuse of matrimonial law? Whether such laws have to received by males to their chagrin? If the safeguards are there against misuse, whether that is enough?  How to cope up to the situation, should one is beset with matrimonial issues?     

In this backdrop, the hon’ble Supreme Court had to deal with a situation in a matter reported  as ARNESH KUMAR VERSUS STATE OF BIHAR & ANR, CRIMINAL APPEAL NO. 1277  OF 2014

 

The hon’ble Supreme Court has observed:

“ There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-a is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498-a IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal”

The aforesaid data is alarming and thus the hon’ble Supreme court had indulged in it.  The hon’ble Supreme Court had observed that if the provisions of Section 41 of Cr.P.C which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. It was further observed by the Supreme Court that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 of Cr.P.C for effecting arrest be discouraged and discontinued.

Directions passed by hon’ble Supreme Court:

(i)           All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section41 Cr.P.C;

(ii)          All police officers be provided with a check list containing specified sub- clauses under Section  41 (1) (b) (ii));

(iii)        The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(iv)        The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

(v)          The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(vi)        Notice of appearance in terms of Section 41 A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

(vii)       Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(viii)     Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

The hon’ble Supreme Court made it clear that directions aforesaid shall not only apply to the cases under Section 498-A  of the I.P.C. or Section 4 of the Dowry Prohibition Act, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

Misuse of section 498 A of IPC

The preceding discussion shall reveal that the safeguards available to males are procedural in nature and aimed at according some leverage in the event false cases are foisted against them. The averments in the complaint filed by women is to be taken at face value and F.I.R is registered in case cognizable offence is disclosed in the complaint filed by a woman. The police officer how3ever has to scrupulously investigate, to ascertain if arrest is necessary. He has to record the reason for arresting. Generally, the notice is required to be given as per section 41 of Cr.P.C before seeking arrest of husband or in-laws. In case, pressure is exerted on police and if the arrest is contemplated, then the only remedy available to the alleged offender is to approach courts of sessions for seeking anticipatory bail i.e pre-arrest bail. Even transit bail may be obtained if the husband or in-laws are ordinary resident of other city, whereas F.I.R may have been registered somewhere else. The transit bail is granted only for limited period and meant to enable the accused to apply for bail in a court of competent jurisdiction only.

                   RECOMMENDATION   BY Justice Malimath Committee

Justice Malimath Committee had recommended review of laws and suggested that reform shall be necessary to create balance in as much as the law is being misused being lopsided. It was recommended that innocents should be protected and perpetrated of crime should be booked. It was felt that the sweeping parameter of section 498 A of IPC brings in its ambit everyone in a family merely on the premise of allegation by a women and some time complaint is lodged with a vendetta and to wreak vengeance and the innocents should be protected from the tyranny. The recommendation however is not as yet acceded to. There is no denying that womenfolk, more particularly in the rural area is even unaware of laws meant for their protection, conversely, a section of urban women is found to misuse of law and finds the law as an outlet to rope in everyone in a family. The Domestic Violence Act has been a recent enactment which appears to be oblivious to its prospective misuse. The man is considered to be perpetrator and every woman as the victim. In reality, it is found that even after decades and despite living separately for ten (10) years the women invoke DV Act for seeking maintenance and other such relief. Any law without probable outlet to the one who may be framed shall be prone to misuse. The courts of law also have to go as per letter of law and there is little room to see though the design of the complainant. The presumption of guilt as is the case in women related laws does not cater to the need of the society, rather the problem is accentuated.    

DOMESTIC VIOLENCE ACT 2006

The Domestic Violence Act 2006 appears to be enacted without adequate analysis and in a bid to formulate a law in favour of women with uncanny zeal and without appreciating the overlapping provisions. The question is whether the DV Act was needed and that has it served the purpose of its enactment is a moot point. The law in any case is vague. In fact, this has just become additional tool in the hands of some woman who prefers application for oblique reasons. The courts of law while finding the overlapping issues of maintenance and such other additional things has to suitably factor these case when a principal family courts or a magistrate u/s 125 of Cr.P.C faces the cases with overlapping issues and jurisdiction. The enacting of multiple laws is no answer to the grievances raised by an aggrieved party, effective implementation of law is. Forum shopping causes undue harassment to the other party and creates complexities. The verbal, mental and emotional abuse in itself is vague and cannot be quantified. The relatives of husband are in receiving ends, more often without reason and sometimes they go behind the bar pursuant to complaint and stigma cast on them and tyranny undergone cannot be neutralized.

The guidelines of hon’ble Supreme Court of India and recommendation of Justice Malimath Committee seeking protection to the one who are falsely implicated and suggesting devising of machinery to filter the false cases have not really been acceded to. Resultantly, the unleashing of false cases torments a family and family system at large. In its succinct report the committee had raised a concern about less tolerant impulsive woman may register F.I.R even on trivial issue and sword of arrest in that event may hang on the husband and his family members.

LAW/JUDICIAL PRECEDENTS

There are some judgments worth reckoning in its context.

(i)           After section 498 A of Indian Penal Code was made part of statute book, the hon’ble Supreme Court soon thereafter had to deal with the misuse of the provision in a matter captioned as Balbir Singh Vs The State of Punjab 1987 (1) CRIMES-76.  It is observed by the hon’ble Supreme Court that though the amendment introduced in the Penal Code are with laudable object of eradicating the evil of dowry , such amendments cannot be allowed to be misused by the parents and relatives of a psychopath who may have chosen to end her life while imputing all allegation on husband and in-laws in a vindictive pursuit.  

(ii)          In Sushil Kumar vs Union of India & Ors reported as JT 2005 (6) 266  the hon’ble Supreme Court has held that object of the section 498 A of Indian Penal Code which has become part of statute book in 1983 is to prevent the dowry menace, but there are many instances where complaints are not bona fide and have been filed with ulterior motive. The fact that in such cases accused has to face trial and even if he is acquitted after long drawn trial it does not remove the tyranny that he had to undergo for no reason. The esteem in society also erodes. The reporting in media and ignominy suffered during trial also cannot be overstated. 

(iii)        Similarly, hon’ble Punjab & Haryana High Court in Bhupinder Kaur vs State of Punjab reported as 2003 Crl LJ 3394  had expressed shock on misuse of section 498 A of Indian penal Code, in as much as two minors were roped in by a woman and no probable motive or act could have been ascribed on them

(iv)        Hon’ble Delhi High Court had occasion to deal with the menace in a matter captioned as Savitri Devi vs Ramesh Chand reported as 2003 CrlLJ 2759  the hon’ble court had observed that though the enactment was made with good intentions but in effect it is being misused by several quarter and the implementation of law has left much to be desired. The hon’ble court had recorded with anguish that the provisions are being misused and in such cases solitary intention of a woman is to seek arrest of husband in in-laws and even minors without being any genuine and corresponding reason to that effect. The role of parents also in some cases are found to be aiding the wrongdoer.

(v)          Yet again, in a matter reported as Jasbir Kaur Vs State of Haryana reported as (1990) Rec. Crl R 243 the Punjab & Haryana High Court had the occasion to deal with the issue of section 498 A of Indian Penal Code and it was observed by the high court that a wife of an estranged marriage may have uncanny zeal of roping in each and every one in the family of husband and the complainant in such case shall try to inflict as much  the tyranny on them as may be possible.

(vi)        The hon’ble Supreme court in a matter reported as Mohd Hoshan Vs State of A.P 2002 CrlLJ 4124  had occasion to delve in the issue of mental cruelty and it was held that the aspect of mental cruelty is essentially a question of fact and is contingent on various factors i.e education of perpetrator and victim, sensitivity index of a person, social background and there cannot be a straight jacket formula to bring any issue under that ambit. The matter of mental cruelty thus may differ in case to case basis and on the premise of mere allegation inference to the contrary is not warranted.

(vii)      The hon’ble Karnataka High Court in a matter reported as State Vs Srikanth CrlLJ 3605 has categorically held that the penchant of roping in every one in the husband’s family including sisters-in-law without any direct allegation against them is deprecated.  

(viii)     The hon’ble Supreme Court in a matter captioned as Kanaraj Vs State of Punjab reported as Crl LJ 4124 has held that  if the fault relates to husband, then the in-laws or other relatives should not be allowed to be roped in. The mere allegation is not enough as the same has to stand on the touchstone of law and during the process of trial.

REMARK

There are catena of judgments to the aforesaid spectrum and there is no need to multiplying the judicial precedents. Suffice to say that there are safeguards to men, in case, false case or cases are saddled on them. The law is on the other side, though, and not without reasons. However, the misuse are reported often and courts are faced with floods of such litigations. It is of course, left on the courts to discern and segregate chalk and cheese and chauff from the grain. The hon’ble Supreme Court has issued guidelines as is specified in the very onset. However, in order to be effective, guidelines are to be properly appreciated by the police i.e the first window itself and the magistracy. It is observed that there are glaring difficulty in seeking implementation of guidelines, more particularly in the level of police station it is quite pervasive. The penal provisions, more particularly, section 498-A of Indian penal Code, being non-bailable, onerous duty is cast on court to see the reason and analyse from the judicial perspective and anticipatory bails are granted by courts of sessions in cases where abuse of law appears to be manifest. The role of lawyers, Judicial Magistrates in trial and that of Courts of Sessions are of paramount importance. The cases reaches High Courts and Supreme Court after filter and a length of time is consumed in that process and therefore it is of utmost importance that in the very first instance safeguard is accorded and in apt cases innocents are protected. The role of magistracy and that of Sessions Court are the first ladder of judicial interface, the first for trial as regards alleged cruelty, harassment on women and the latter i.e Sessions court is empowered to pass pre- arrest bail. No doubt, when a criminal case is set in motion, the hardship in facing that is inherent and a resolve to tryst with destiny begins through courts of law. However, this is time suitable calibration in law is mooted so as to create a balance. Presumption of guilt merely on the premise of complaint is archaic and relegating the accused to face peril of trial for years, on the basis of assumption is catastrophic and as the family system itself is in receiving end , hence, lopsided law deserve a revisit.

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