Also by Audrey Dmello
A recent study of over 4 lakh FIRs in Haryana has found that from filing FIRs to getting convictions, the legal process is stacked against women. As an NGO working in Mumbai with women and child victims of sexual and domestic violence, we resonate with this experience. Women who come to Majlis face grave domestic violence: Physical violence, including beatings with an object, banging their head on the wall, choking, strangulation, kicking, etc; economic abuse like not giving money, forcefully taking away earnings, asking the woman to get more money from her parents, etc; verbal abuse, including humiliation using filthy language, and emotional abuse, taunting a woman about her looks, education, cooking skills, etc; sexual violence, including non-consensual and forced sex, and beatings if a woman resists. One of our clients was burned and kicked in her genitals because she refused to have sex.
Crimes against women have increased year on year. As per the National Crime Records Bureau (NCRB) report 2015, every day 21 women die because of dowry in India. According to the NCRB report 2019, 4 lakh cases were registered under Section 498A of the Indian Penal Code (IPC). As per the National Family Health Survey 5 (2019-20), 30 per cent of women between the ages of 18 and 49 experienced physical violence from the age of 15 (that’s over 20 crore women), while six per cent experienced sexual violence in their lifetime.
To address the gruesome violence women face in their homes, a number of laws have been enacted. Section 498A of the IPC was introduced in 1983 to tackle the problem of the large number of women dying in their homes. This is not to say that prior to this, women did not have legal provisions. Sections 319 to 338 of the IPC deal with assaults and grievous hurt in various forms. But the police refused to apply these general provisions to cases of domestic violence. Hence, there was a need to introduce a special section. One part of Section 498A IPC addresses the subjection of any woman to cruelty (whether mental or physical) of such a nature that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. The other part deals with unlawful demand for any property or valuable security.
Forty years later, the reluctance of the police to file FIRs even in grave incidents of domestic violence is shocking. The police are responsible for recording crimes and investigating a case. However, when it comes to recording FIRs in cases of domestic violence, burking (refusal to record FIRs) is done with a sense of righteousness — go for counselling and resolve the matter; save your marriage and family, what are you going to achieve by filing a criminal complaint; we cannot just file an FIR without talking to both the parties; the case will take very long and you won’t get anything; we can’t file a case in family matters, go to court. That women have gone through endless counselling by family members, elders and NGOs and have finally reached the doorstep of a police station seems to be completely lost on them.
When women are turned away at this stage, they lose all hope and some of these cases end in suicide or murder.
While the police’s apathy towards recording FIRs in cases of domestic violence stems from a patriarchal mindset, one cannot negate the impact of demeaning comments by the Supreme Court and the various high courts. A casual internet search on Section 498A throws up reams of posts with comments by the judiciary about how women are misusing the law. The media has also been instrumental in sensationalising the issue.
In the recent case of Rakesh and Reena Rajput v The State of Jharkhand the Jharkhand High Court stated, “There is a phenomenal increase in matrimonial disputes in recent years and it appears that in many cases, the object of Section 498A IPC is being misused and the said section is used as weapon rather than shield by disgruntled wives.” In media reports about the case, there were headlines like “Disgruntled wives are using S 498A IPC as a weapon rather than a shield”. The said case was filed by the husband’s sister and her spouse for quashing criminal proceedings against them. The facts of the case as reported in the judgment are that the woman was married in 1998 and several articles and cash were given. There were two minor children from this marriage. The said criminal case was filed fifteen years later. One of the incidents mentioned in the FIR was that on April 2, 2013, the husband’s sister and father assaulted her and tried to burn her face. The woman also stated that they wanted her father to provide money for her husband’s new business as his previous venture had failed. The court held that the allegations against the husband’s sister are general and omnibus and that there were inconsistencies in the date as the sister had tickets to prove she was travelling on April 1, 2013.
Both these errors, if at all, seem to be the responsibility of the police and not the woman. It is the police who record the victim’s statement, investigate the matter and file the chargesheet. If the police were not convinced of the facts, why did they not file a “B summary” report and close the case? Why did the magistrate take cognisance of the case? Why were Section 41 of the Code of Criminal Procedure and guidelines from Arnesh Kumar v. State of Bihar regarding arrest not followed by the police and court? Instead of pulling up the police and magistrate for these oversights, the court placed the onus on the woman and then went on to make the sweeping comment that “women are misusing the law”. Such comments send out a dangerous message to all the implementing agencies and will only serve to snuff out the hopes of women approaching the law to address the serious issue of domestic violence.
Dmello is the Director of Majlis and Agnes is a legal scholar and women’s rights lawyer
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