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LATEST NEWS UPDATES | Diluting a law by TK Rajalakshmi

Diluting a law by TK Rajalakshmi

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published Published on Feb 23, 2012   modified Modified on Feb 23, 2012

The Law Commission recommends making Section 498A, IPC, compoundable, and women's groups say that would affect women's interests.

A REPORT of the Law Commission of India on “Compounding of (IPC) Offences” suggesting that Section 498A of the Indian Penal Code, which prescribes punishment for a husband or his relatives for subjecting a woman to cruelty, be made compoundable with the permission of the court, is fraught with several implications. The report explains compounding in the context of criminal law as “forbearance from the prosecution as a result of an amicable settlement between the two parties”.

The definition of cruelty as given in the clause covers conduct that can drive a woman to suicide or cause grave injury or danger to life, limb or health (mental or physical), or cause harassment of the woman by coercing her or her relatives to meet an unlawful demand for property or valuable security. Thus, dowry-related harassment and violence are covered under the scope of the clause. The Law Commission report observes that quite often prosecution under Section 498A of the IPC is coupled with prosecution under Sections 3 and 4 of the Dowry Prohibition Act, 1961.

The argument in favour of compounding an offence is that if a woman is prepared to condone the ill-treatment and harassment meted out to her, either because her husband is repentant or because she has received some reparation for the injury caused to her, the law should not stand in the way for terminating the criminal proceedings. The section should not be allowed to become counterproductive and a balanced and holistic approach is called for in “handling a sensitive issue affecting the family and social relations”, the report observes.

The report suggests that a doctrinaire and isolated approach cannot be adopted while dealing with the issue. Also, the sensitivity of a family dispute and individual facts and circumstances cannot be ignored. In sum, the argument is that there is little social good to be achieved by criminalising 498A.

The argument against making offences under the section compoundable is that dowry is a social evil and the law designed to punish those who harass their wives with a demand for dowry should be allowed to take its full course and private compromises should not get a seal of legal approval.

Women's groups have argued that often women victims are forced to compromise either for the sake of their children or for their own economic survival. The conditions of compromise and reconciliation are often unfair to the victims. Women's organisations also find that women facing violence in their marital homes do not seek recourse under 498A as frequently or as indiscriminately as it is made out to be.

Marital harmony and women's welfare

The Law Commission's view is that undesirable consequences will follow if compounding is not allowed. Social harm or societal interest cannot be considered in a vacuum and that a holistic and rational view needed to be taken, the report says. “While no impediments shall be placed against the effective operation of law enacted to curb a social evil, it should not be forgotten that society is equally interested in promoting marital harmony and the welfare of the aggrieved women,” it says, arguing for a rational and balanced approach where more avenues are open to the aggrieved couple to put an end to the criminal proceedings.

“If a wife who suffered in the hands of the husband is prepared to forget the past and agreeable to live amicably with the husband or separate honourably without rancour or revenge, the society would seldom condemn such a move nor can it be said that the legal recognition of amicable settlement in such cases would encourage the forbidden evil, dowry,” says the report.

It dismisses as non-substantive the argument that uneducated women with no means of livelihood may be forced to withdraw the legal proceedings and purchase peace even if the grievance remains unaddressed. The report argues that courts will play an active role while dealing with an application for compounding the offence under 498A. It has also recommended the introduction of a subsection, (2A), into Section 320 of the Criminal Procedure Code (CrPC), laying down the procedure for dealing with an application for compounding an offence under Section 498A.

The issue is a problematic one. Women's organisations, at least those that are closely identified with the women's movement, have repeatedly spoken out against the dilution of the section. They point out that laws meant to protect women are seldom put into effect, and misuse is a bogey that should be addressed as a separate issue. There is a provision for the quashing of criminal proceedings under the section. So the argument that estranged couples wanting to get back together will be left with no recourse if Section 498 is not made compoundable seems overstretched.

Government reports showing low conviction rates, low reporting of crimes by women victims and an increase in IPC crimes against women seem to bolster the arguments of women's groups. The fifth periodic report “Staying Alive”, prepared by the Women's Rights Initiative of the Lawyers' Collective, reviewing the implementation of the Protection of Women from Domestic Violence Act, 2005, indicated that knowledge of the law was poor and implementation by the state tardy.

The process of looking into the alleged misuse of 498A began in the 1990s. But it has picked up momentum in recent years. In 1996, the 154th Report of the Law Commission espoused the inclusion of the section under the list of compoundable offences. The Law Commission reiterated the stance in its 177th report in 2001.

The Department of Legal Affairs sought the Law Commission's view in December 2010; the Home Secretary's office had sought its view a year earlier, in September 2009. The rationale for seeking a view on making the said clause compoundable is rooted in the premise that the law is being misused. A Supreme Court order in 2010 observed that it was time the legislature took into consideration the pragmatic reality and made suitable changes in existing laws.

In the name of family

The Commission then circulated a questionnaire eliciting opinions. It received representations from many organisations claiming to stand up for the institutions of the family and marriage and demanding that 498A be made compoundable. It also received representations from women's organisations seeking that the clause be retained as it was.

Sporadic statements issued from government sources and vociferous campaigns by groups claiming to be working to save the Indian family emerged in this period. Among the organisations that sent in their views to the Commission over the last one year were outfits such as the Save India Harmony, the National Family Harmony, the Mothers and Sisters Initiative, the Bharat Bachao Sangathan, the Pirito Purush Porishad, the All India Forgotten Women's Association and the Members of Million Women Arrested Campaign.

To add meat to its argument to make 498A compoundable, the Law Commission report used the Justice Malimath Committee's report on reforms to the Criminal Justice System, which held that the section helped neither the wife nor the husband. It said that since the charges brought under the section were non-bailable and non-compoundable, it was possible for innocent persons to undergo stigmatisation and hardship. It also called the provision heartless, recommending that “it is therefore necessary to make this offence a) bailable and b) compoundable to give a chance to the spouses to come together”.

The National Family Health Survey 3 (2005-06) detailed the frequency and propensity of domestic violence faced by women in India. It said that one-third of the women in the age group 15-49 years had experienced physical violence; one-tenth had been victims of sexual violence; and only one among four women had sought help. A shocking 54 per cent of the women surveyed justified wife-beating. The latest figures of the National Crimes Record Bureau reveal shocking statistics. In the period 2006-10, crimes against women went up by 29.6 per cent.

Barrier to empowerment

Recent government documents such as the Report of the Working Group on Women's Agency and Empowerment to the XII Plan prepared by the Women and Child Development Ministry for the Planning Commission accept that gender discrimination will not be corrected automatically by development. The working group was mandated to review, analyse and evaluate the existing programmes and provisions for women and make recommendations to the Planning Commission. Violence, says the working group report, is a major social and structural barrier to women's empowerment. A sharp fall in household income levels has led to an increase in unpaid domestic work for women and an increase in domestic violence, it says.

Economic independence and access to credit for women are also found to be limited. For instance, women own only 20.8 per cent of total deposit accounts in scheduled commercial banks. They have access to only 19.8 per cent of small borrowal accounts in scheduled banks. Legal commitments, too, have not translated into concrete action and the enforcement of women-specific laws has not been at the desired levels, the report notes. There are reports of denial of registration of cases by the police, inadequate investigation and lack of prosecution in court. Court procedures themselves lead to delays in the delivery of justice. The Protection of Women from Domestic Violence Act, which came into force on October 26, 2006, did not provide for financial assistance to State governments and Union Territories for the implementation of the Act, the report notes.

The report has recommended several procedural amendments to the Criminal Procedure (Amendment) Act, 2008, to make procedures more women- and child-friendly, including the abolition of the two-finger test to determine whether sexual assault or rape had taken place. The report has also recommended amendments to the Dowry Prohibition Act, relating to the definition of dowry and penalties for the parties concerned.

It has recommended a ceiling for marriage costs. Quoting NCRB data, it has noted that dowry deaths have continued unabated in the 28 years since the amendment of the Dowry Act. It has recommended a stand-alone law to deal with honour crimes, a Marital Property Act to give women rights to their husbands' property, and a review of maintenance laws.

“It has also been seen that even where rights have been given to women through specific legislations such as right to residence under the Protection of Women from Domestic Violence Act or inheritance rights in ancestral property, women have not been able to access these rights for a variety of reasons,” observes the working group report.

Frontline, Volume 29, Issue 04, 25 February-9 March, 2012, http://frontline.in/stories/20120309290410100.htm


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