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Aug 2, 2017

Is Section 498A anti women?

Rajini Menon, Oxfam India Gender Expert

 

What is Section 498A? 

 

 

Where is the Evidence on the Misuse on Section 498 A? 

 

The recent supreme court verdict of diluting Section 498 A will only serve to add one more layer of structural barrier to the aggrieved women in accessing justice. Women experiencing dowry harassment from husband and relatives will have to go through an additional process of verification by Family Welfare Committees at the district level. The apex court remarks that through the judgement it rules out the possibility of brushing aside the human rights of both parties involved.  However, the Supreme Court order came in the wake of petitions on the misuse of this law by women leading to the ‘uncalled for arrests’. Oxfam India’s researches based on the case studies of women who had filed cases in the district courts  and also the judicial pronouncements reflect that ‘misuse of Section 498 A’ is a myth prevailing in our social fabric.  It also portrays a distorted perception of domestic violence which is predominant in our society. National Family Health Survey (NFHS) 2015-16 reports that 28.8 per cent of women experience some form of domestic violence. However, only one in four seek support (NFHS, 2005-06). Though all forms of violence against women are of grave concern, domestic violence is particularly so as it is perpetuated with the safety of homes and have negative repercussions on the next generation. By analyzing and enforcing new provisions in Section 498 A (especially relaxations to personal appearances to outstation members during the trail) from a gender neutral lens, this judgement has offered a lee way to the perpetrators.  It sets a field for reinforcing the negative social norm of inflicting violence on women in marital relationships when dowry needs are not met, especially in a country where we have fairly high rates of child marriages. Child brides are more prone to violence within marriages since they do not have much agency to question norms as a new bride. And families chose to marry off their daughters before the legal age of marriage due to a variety of reasons.

 

The public discourse on violence against women in India started as a concerted campaign against incidents of stove deaths (later unveiled as dowry deaths) in the 1970s and 80s. As a result of sustained efforts by women’s rights organisations, the government responded by enacting Section 498A in 1983 of the Indian Penal Code (IPC), which made ‘cruelty by husband or his relatives’ a cognizable and non-bailable offence. Oxfam India had conducted studies in Uttar Pradesh and Odisha analyzing the myths of misuse of Section 498 A by women between 2010-15. The findings from the studies revealed very poor conviction rates with very poor number of cases moved for conviction orders by the trail court. It is evident from the case studies that the acquisition orders had gained importance. Over 90 per cent of the cases were quashed due to lack of evidence. Compromises were made in the course of hearing with constant pressure on reconciliation. The studies draw on the finding that it is impossible for women who alleged cruelty in matrimonial home to collect evidence and pursue witness to speak in their favour. The huge gap between the origin of the case and its final disposal impacts the process of decision making.  Inordinate delays in arriving at a decision leaves the evidences, witnesses and the investigating agencies powerless or hostile.  

 

Most of the women survivors reported that they initially had not disclosed their problems on the cruelty inflicted on them by the in-laws and husband, even to their parents, as they were well aware of the economic stress their parents had experienced in arranging a significant amount of dowry. Almost all survivors reported that mistreatment started within the first week of their marriage, whereas they approached the police much later as a last resort expecting an immediate response. In the current situation, the police officers could act only in the case of physical injuries or death. In all other cases, the police will consider both the accused and survivor from the equal footing thereby, leaving the women double deprived. The systems and processes become very complicated, especially for the rural women from far flung villages.  This leaves her and natal family with a delayed justice. Justice delayed is justice denied!

 

In this regard Oxfam India endorses the petition submitted by Women’s Rights Organisations to the Chief Justice of India on 31st July 2017 seeking the review of the judgement in the Rajesh Sharma Case.

 

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