Supreme Court Order on Domestic Abuse Cases Is a Step Back for Women’s Rights Law

By saying that the misuse of IPC Section 498A is rampant and needs to be tackled by instituting welfare committees to look into cases before action is taken, the court has revealed its biases.

On July 27, the Supreme Court laid down directions in Rajesh Sharma and Ors vs State of UP “to prevent the misuse of Section 498A [on a husband or his relative subjecting a woman to cruelty] of the Indian Penal Code (IPC) as acknowledged in certain studies and decisions”. Incidentally, this is the same court that chose to look the other way when LGBT activists, in Suresh Kumar Kaushal vs Naz Foundation, brought to its notice the wanton abuse of another sister penal provision, Section 377, saying that “mere fact that the section is misused by police authorities” would not impact upon the legality of the provision.

Section 498A of the IPC has “terrorised menfolk” for a while now since its birth in the statute book in 1983. Statistics of a large volume of non-follow up or acquittals under this provision adulterated with a generous measure of anecdotal evidence of cases of “husband and in law harassment by false implication in ‘dowry cases’” has contributed to the successful counter narrative of “misuse” which the court has bought into the Rajesh Sharma order.

Shaken by the all-round criticism of its retrograde acquittal in 1978 of the constables who allegedly raped a tribal girl in Mathura, India’s top court has had a catharsis with a series of pro-women judicial decisions. Be it the Mary Roy case (1986, when the Supreme Court upheld Christian women’s inheritance rights), the Shah Bano case (1986, upholding Muslim women’s right to maintenance on divorce), the Rupan Deol Bajaj case (1988, in favour of women co-employees’ right against sexual harassment), the Vishakha judgement (1996, listing guidelines on workplace sexual harassment), the Gurmit Singh case (1996, ruling that the sole testimony of a woman is sufficient to convict a rapist), or the Githa Hariharan case (1999, granting a mother’s right to be a guardian) – the top court has been emphatic about its gender sensitivity.

The peculiarities of Rajesh Sharma

But Rajesh Sharma closes that chapter and the golden run for women’s rights might just be over. Rajesh Sharma has done nothing dramatically new. In fact, the case notices how several high courts, such as the Delhi high court in the Chander Bhan case (2008) as well as the Madras high court, have jumped in to rein in and “judicially acknowledge” the “misuse” of Section 498A, by stipulating directions to the police on how to “investigate” complaints of cruelty by a married woman. In fact, the top court itself stepped in to protect innocent husbands and in-laws from harassment in the Arnesh Kumar case (2014) when it had restrained police officers from automatically arresting the accused in a complaint under section 498A and made action in such complaints subject to magisterial oversight.

Why then should Rajesh Sharma merit singling out and criticism from feminists? The only addition it brings is that it introduces the concept of a ‘Family Welfare Committee’, to be constituted in each district by the District Legal Services Authority, which shall give a “report” to the police in a month after “looking into” any complaint under Section 498A. Till such a report, “no arrest should normally be made”. The court directed that such committees should be peopled by “para legal volunteers/social workers/retired persons/wives of working officers/other citizens” and should be imparted “basic minimum training” and given “such honorarium as may be considered viable”.

A judgement is often more than the lis (latin for dispute) it decides. Else Marbury vs Madison (where the US Supreme Court gave itself the power to judicially review and overrule laws enacted by Congress) would have been a simple employment dispute between the rich Washingtonian William Marbury and the new secretary James Madison, who had suppressed his warrant of appointment as Marbury had been appointed by the outgoing president. The wily Chief Justice Marshall, sensing the political hot potato the case was, took off on a tangent, holding that the law which Congress had enacted giving Marbury the right to bring his case directly to the top court was itself bad and beyond the power of the Congress to enact. While the new president won and the old appointee lost, the court emerged as the serious winner, having established that it was the final word on the validity of laws enacted by the legislature and could even quash such laws.

Similarly, Brown vs Board of Education (which ended the segregation of blacks in the US) would have just been a school admissions case and Shah Bano (which tarnished Rajiv Gandhi’s Camelot when he undid the verdict by enacting a law taking away maintenance rights of muslim women) would have remained a matrimonial conflict involving a Bhopali lawyer who did not want to give his ex wife a few hundred rupees.

The impact of Rajesh Sharma is not confined to the quixotic book-club type bodies it has dreamt of, where retirees and officers’ wives would oversee and sanction legal action which should otherwise have followed the Criminal Procedure Code, which does not subject any complaint to such a pre-scrutiny. Rajesh Sharma institutionalises the prejudices and rehabilitates the myths which the women’s movement in India has battled over decades, with even some measure of success.

The progression of women’s rights law

The march of women’s rights law has closely mirrored India’s strides in development. The early 1980s, with the fallout of socialist policies, saw women as marginalised and playthings in the hands of men. Dowry was indeed a method of economic transition for the marrying groom, and the nation witnessed a rash of “dowry deaths”. Law, as usual, like the proverbial Bollywood police, had to always play catch up. The inadequacies of the law and the complacency and connivance of the legal system witnessed the mothers Satyarani Chadha and Shah Jahan take their battle against the dowry deaths of their daughters and the botched prosecution to the steps of the Supreme Court. The anti-dowry movement led to law reform. Dowry deaths were made a special offence. A presumption was inserted into the penal code that an unnatural death within seven years of marriage would be presumed to be a dowry-related death. It was during this period that Section 498A made its maiden appearance in the penal code. It punished the cruel treatment of married women at the hands of husbands and their relatives. Three years was the stipulated maximum punishment. The offence was cognisable (so the police could investigate without any court order) and non-bailable (only the court could grant bail).

The 1990s witnessed the unfolding of unprecedented liberalisation of India. This got more women into the workplace, more women educated and more women conscious of their legal rights and entitlements. While dowry remained a constant, like the North Star, women’s problems had mutated and become more complex. Sexual harassment at the workplace, stalking, acid attacks – the list only becomes more morbid. The law continued to play catch up. The Supreme Court proposed the idea of the Vishakha Guidelines on Sexual Harassment in 1996, but parliament got its act together in 2013.

While the court was covering itself with glory championing women’s empowerment, gradually the momentum for a counter narrative was also building up. The whispers slowly grew louder as the issue was mainstreamed in the new millennium. The murmurs were on the law’s perceived bias towards women and the reverse discrimination against men. Groups such as “husbands facing violence” and “movement for section 498B” gained traction. Soon, anecdotal evidence of “misuse of the dowry law” by women and reports about the bias of the legal system against husbands received public acceptance.

The myth is that Section 498A is a brahmastra in the hands of the wife, which was to be deployed to settle petty matrimonial scores. The modus operandi being to falsely and indiscriminately implicate the husband and his relatives – the old, young and infirm – and extract a hefty settlement under the threat of criminal prosecution. The other myths can be listed a follows:

• Women are not best at deciding for themselves.
• Women rush into matrimonial litigation at the slightest of pretexts.
• Women are best served through encouraging reconciliation and acceptance of subordinate roles.
• Women can only be treated with cruelty for dowry.
• Real and actionable violence is only “physical”.

Why Rajesh Sharma is a step back

Unfortunately, in Rajesh Sharma, the court gets entangled in each of these prejudices and they form the inarticulate (though sometimes articulated) major premise of this decision. Perhaps the court, having completely bought into the narrative of “misuse”, proceeds ahead with the conception that women “rush” into filing complaints without thinking through the consequences. This threatens “reconciliation” and also endangers “senior citizens” and women who are the in-laws at risk of arrest and police action.

While the “studies” of the wanton abuse of the “dowry law” seemed contrived and anecdotal, truth be told, there was a ring of truth in the accusation. This was on account of the gaping void in the law. On a lighter vein, having plodded through hundreds of matrimonial pleadings, I can say with certainty that “not serving the groom’s friends water” is the favourite add-on for a cut and paste divorce petition from a husband. Is this really the best that we can come up with against an errant wife? The wives’ lawyers have evidently been more creative. The best I have heard being “my mother-in-law snatched my mangalsutra and wore it herself.”

The question we must ask ourselves is why the need was felt to embellish and over implicate the dewars, nands and jethanis in the first place. This stemmed from the very prejudices and misconceptions which have been legitimised by Rajesh Sharma. First, that “cruelty” under Section 498A must somehow involve dowry. Second, it had to involve serious physical harm. Rajesh Sharma, in fact, makes an exception for serious physical injury and death cases – these cases do not need to be sent to the welfare committee of do-gooders on honorarium.

Nothing can be farther from the truth. A plain reading of the provision makes it crystal clear that for “cruelty” to be actionable under Section 498A, neither does it need to be related to dowry, nor does it have to involve physical cruelty or death.

The reason why many women felt compelled to exploit the criminal remedy was that the law either offered her the bhramastra of 498A with the police, arrest, jail and the attendant pressures of settlement or the languid civil option of fighting a contested, expensive and meandering matrimonial suit. There was nothing in the middle – a halfway house which could provide a woman facing domestic violence emergency relief of shelter, medical assistance and child custody, and restraining contact with a battering husband without having to throw her husband into prison. As a civil case would have zero impact on a husband dead set on litigating his wife into surrender, she is left with no option but to embrace the criminal remedy. Ingenuous lawyers over time came up with creative means of shoring up this option – throw in a dowry angle, involve the NRI sister-in-law, implicate the engineering-college-student dewar and so on and so forth. Telling the truth as it is, without the blood and gore, is felt to be inexpedient.

In my young days as a lawyer working with NGOs, I was scarred pretty early when a domestic violence victim reached out to me after a gender sensitisation intervention by ticking me off for trying to sell the idea that domestic violence need not only be physical or dowry-based and that it could be mental, verbal, sexual and economic. “Do you know what the judge told me?” the survivor asked, and I presumed her outrage remained undiminished by what was a repetition of her story. “She told me ‘Why are you making such a big deal about a slap or two in a marriage? Arrey ghar mein do char thappar to hum bhi kha letein hein (Even I get slapped a few times at home)’.”

It was such voices from the grassroots that convinced feminist advocates that there is a need for domestic violence law to campaign for a holistic definition of violence, which would recognise all facets of violence, including, for instance, nutritional violence where the girl-child bearing daughter-in-law is punished with a less nutritious or a wholesome diet. The success of this campaign, in the form of a comprehensive definition of domestic violence and its emancipation from the prism of dowry-related physical violence in the Protection of Women from Domestic Violence Act (PWDVA), lies in tatters in the wake of Rajesh Sharma.

The misuse counter-narrative, now entrenched with Rajesh Sharma, must be tackled by its horns. Rajesh Sharma cites National Crimes Record Bureau statistics to bolster the false cases narrative. I have already referred to the Section 377 case, where the top court shied away from legitimising consensual same-sex intercourse based on the dignity and privacy argument and on the strength of the misuse by police of the penal provision. I may also point out a few other facts. Before the PWDVA was conceived of as a alternative legal remedy which gave a battered woman an option other than 498A or civil litigation, women who resorted to criminally prosecuting their husband would often abandon the same midway. There were a host of factors involved, half-hearted attempts on account of cultural inhibitors being the most dominant. The women would settle the case and move on as contrary to the narrative, most women are wise enough to know that securing a violence-free, economically-stable life for themselves and their children was any day a more enticing alternative than sending the sasural to jail. In many cases, as 498A was non-compoundable (so cannot be officially settled), women would be forced to tank the criminal case once they had settled with the husband. In pure statistical terms, this would bolster the ranks of “false cases” and “acquittals”, though the truth was something else altogether.

What the court should have done

The road to hell is paved with good intentions. In my opinion, the most devastating fall out of Rajesh Sharma is that perhaps it unconsciously restores and legitimises the construct of a woman facing violence as a person who does not deserve autonomy. This is combined with the construct that she rushes into litigation and criminal prosecution unmindful of the toxic effects of the same on her matrimonial relations. Nothing could be farther from the truth and the learned judges perhaps are not exposed to how battered women are weighed down by gender and social constructs, and internalise and digest the violence and find justifications for the same. Most access the law well past breakpoint. Rajesh Sharma wants to send them back to the violent habitat. Conciliation and saving the marriage, but not the woman from violence, seems to be the priority for the court. I was also in the save marriage camp and 15 years ago that is what I told my client Sonia when she spent an agonising hour with me discussing how much her parents were pressuring her to return to her violent home with her year-old infant son. In fact, her father had also tried to get me to “put in some sense into her”. I was the welfare committee that the court in Rajesh Sharma now contemplates, and I sent Sonia back only to lose her to flames a week later.

The PWDVA was enriched by the experiences of activists and advocates who have been fighting for Sonia and Satyaranis. The adversarial legal system has failed India’s women – from the South Delhi socialite who could afford that page-three divorce lawyer, to the slum-residing domestic worker Trilokpuri whose greatest worry was how to explain to her employer the latest black eye bestowed by her unemployed, alcoholic husband. That is why the PWDVA came up with ‘protection officers’ who were to be that outreach person who would to serve as the bridge between the court and the violence survivor. The protection officer was also to coordinate in her area the services of doctors, shelters, paralegals and the police to afford coordinated, one-stop outreach for the violence survivor. States have not invested at all in realising the violence-free society that this law wanted to secure. Instead of ensuring a protection officer for each police station, most states have simply appointed a handful of protection officers in token compliance. In many cases these officers are also on contract with no incentives or job protection. Many states have also diverted existing officers to be protection officers, with other assignments to be discharged additionally.A city like Delhi, with lakhs of women, has about 17 protection officers.

Instead of constituting committees with retirees and housewives, the court in Rajesh Sharma should have directed all the states to increase the number of protection officers and to provide infrastructural support to such officers under the PWDVA. This would have provided timely assistance to women and would have steered them towards a meaningful redressal of their maladies, preventing the misuse of the criminal law which was the concern of the court.

Sanjoy Ghose is a Delhi-based lawyer.