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Laws to Safeguard Women: Use & Misuse
Heer Shah 24 Aug 2017

Laws to Safeguard Women: Use & Misuse

Laws to Safeguard Women: Use & Misuse

 

Introduction

Feminism is at its peak and the focal point of the legislators is to introduce more laws which put a protective cloak around women. Sections 498A, 304B, 354 & 376 of the Indian Penal Code (IPC) & The Protection of Women Against Domestic Violence Act, 2005 are some of the judicial provisions which are designed to safeguard the interests of women. However, recent cases of misuse of these provisions through frivolous and vexatious applications have raised an alarm among the judiciary. Question arises as to what can be done to prevent such provisions and acts from becoming draconian? How can innocent men be brought to justice?

 

Cruelty and Dowry: Recent Cases

    • Section 498A: Husband and relative of husband of a woman subjecting her to cruelty which includes Demand for Dowry. The Section has been criticized for giving “disgruntled women” a legal option for harassing their husbands and his relatives (in-laws).
    • Section 304B: Dowry Death, where the death of a woman is caused by any burns or bodily injury which occurs within 7 years of her marriage and includes cruelty and harassment.
    • Dowry Prohibition Act, 1961: Payment of dowry, gift-often financial, has a long history in many parts of the world. In India, the payments of dowry was prohibited in 1961 under Indian law and subsequently by section 304B and 498A of the Indian Penal Code were enacted to make it easier for the wife to seek redress from potential harassment by the husband’s family. The giving and taking dowry, its abetment or the demand for it have been made as an offence punishable with imprisonment or fine both (Section 3 and 4 of Dowry Prohibition Act 1961.
    • In Preeti Gupta v. State of Jharkhand[1], Supreme Court observed that a serious re-look of entire section 498A of Indian Penal Code is needed. All of these recommendations are in against the rigidity of this provision. The simple principle has been revealed here that if procedural laws are made too hard then object of the substantive law will be frustrated. The simplicity in the procedural laws will give the scope of amicable settlement of family disputes because this offence is very much related to marriage and family. If chance of reconciliation is not given then the whole institution of family will come to an end. But cardinal rule of family law is to make the family not to break the family.[2]
    • In Rajesh Sharma v. State of U.P[3], Supreme Court perused the National Crime Record Bureau’s statistics where it was stated as follows:

“That according to Reports of National Crime Record Bureau in 2005, for a total 58,319 cases reported under Section 498A IPC, a total of 1,27,560 people were arrested, and 6,141 cases were declared false on account of mistake of fact or law. While in 2009 for a total 89,546 cases reported, a total of 1,74,395 people were arrested and 8,352 cases were declared false on account of mistake of fact or law.”

    • The Supreme Court in the above mentioned case issued a set of guidelines to look into dowry harassment cases and accordingly held:

“In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members.”

 

 Domestic Violence Act: The Misconception

    • The Madras High Court Bench here has observed that Protection of Women from Domestic Violence Act, 2005 suffers from inherent flaws which tempt women to misuse their provisions and men to dread being prosecuted under the law without any rhyme or reason.
    • There are three fundamental problems with this law –

a) It is overwhelmingly gender biased in favor of women,

b) The potential for misuse is astounding and  

c) The definition of domestic violence is too expansive.

    • Under the Protection of Women from Domestic Violence Act, 2005 the aggrieved party is always “any woman”. Man does not come within the purview of such definition. Aggrieved under the Act is only for women. Even the preamble speaks for “rights of woman. The worst part of the legal provision is to be found in Section 32(2) of the Act which provides that on the sole testimony of the aggrieved person, in this example the wife, the Court may conclude that the offence has been committed by the accused.

 


Rape Laws: The Gender Bias

    • Section 375 & 376 : The provision under the Indian Penal Code mentions describes what constitutes rape and the punishment for same is not less than seven years which may extend to life term.
    • After the Criminal Law Amendment Act, 2013 which was proposed as an after effect to the Gang Rape Incident in Delhi, the rape cases have increased and the basic premise derived is that women usually get involved in a sexual act willingly and then cry rape;, the innocent men in such cases become scapegoats in the hands of law.   

    • The innocent men who are accused of Rape often lose their jobs, dignity and many even commit suicide. This may potentially create an atmosphere where men live in perpetual fear of the law.
    •   A trend among women filing false rape cases stands exposed with the Delhi Commission of Women (DCW) revealing shocking statistics showing that 53.2% of the rape cases filed between April 2013 and July 2014 in Delhi were found 'false'. 
    • The Delhi High Court, in a recent case observed that false rape cases are a menace to the society as they create frivolous litigation . It was remarked that :

“No sooner that the news of a person having been accused of rape spreads in the society, he is looked down upon by all and sundry.”


Conclusion

The time has come to implement strict legislative mechanisms to combat such misuse of the legal provisions. The Supreme Court has rightly set guidelines in the recent case regarding Dowry harassment. The Apex Court should set up special committees to look into such loopholes in the law and enquire every incidence so that the innocent person is not prosecuted.

 

“An unjust law is itself a species of violence. Arrest for its breach is more so.”  -Mahatma Gandhi.



[1] AIR 2010 SC 3363

[2] Dr Partha Partim Mitra, “ A new look on matrimonial cruelty with criminal law”, Indian Bar Review, Vol XL(1) 2013,  p.87

[3] Criminal Appeal No. 1265 Of 2017

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