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Failing Gender Justice in Anti-Dowry Law

Vineeta Palkar South Asia Research 2003 23: 181 DOI: 10.1177/0262728003232005 The online version of this article can be found at: http://sar.sagepub.com/content/23/2/181

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SOUTH ASIA RESEARCH

www.sagepublications.com VOL 23 NO2 NOVEMBER 2003 Vol. 23(2): 181200; 041121 Copyright 2003 SAGE Publications New Delhi, Thousand Oaks, London

FAILING GENDER JUSTICE IN ANTIDOWRY LAW

Vineeta Palkar
ILS LAW COLLEGE, PUNE, INDIA

ABSTRACT This article reports on important research in Pune concerning the use of several provisions under Indian criminal law that were designed to protect women against dowry-related atrocities and various forms of domestic violence. It shows that the intentions of the legislators are being undermined by inefcient strategies for implementing these statutory provisions. The result has been a widespread perception that Indias anti-dowry law and the laws seeking to curb domestic violence have remained totally ineffective and do not protect women adequately against any form of cruelty, domestic violence or even murder in the name of dowry. The article outlines the relevant legislation, examines in detail judicial reactions to a large number of complaints under s. 498-A of the Indian Penal Code of 1860, and concludes by making a number of recommendations in order to improve the protection of women with regard to domestic violence. KEYWORDS:

domestic violence, dowry, Indian law, women and law

Introduction
This article demonstrates how, within the context of patriarchal power structures in Indian society, and despite some recent attempts at legal intervention, Indian women continue to be subjected to domestic violence in various forms. On the recommendation of the Law Commission of India, the rst law on domestic violence was passed in 1983 as an amendment to the Indian Penal Code of 1860. The present article is based on a study conducted in 2000 by the ILS Law College in Pune on Implementation and Impact of Section 498-A of the Indian Penal Code. The project examined the various effects of the statutory reforms during the 1980s and identied a number of hurdles in proving the offence and bringing the perpetrators of domestic violence to justice. The report analyses how and why, to a large extent, the female victims fail to get justice. The article concludes with detailed practice-focused suggestions for reform.

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The International Framework

During the past few decades, the discourse on womens rights has developed at the international level under the protective umbrella of human rights. Various United Nations documents, such as the preamble to its Charter of 1946, assured equal status to men and women, based on the principle of the dignity and worth of the human person. One of the rst major international instruments concerning womens human rights, the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), was adopted and opened for signature by the UN in 1979.1 It came into force in 1981 and India ratied it, but with some reservations. CEDAW did not directly address the issue of violence against women, but the international community had at least manifested its concern about this issue. The Seventh Congress on the Prevention of Crime and the Treatment of Offenders held in Milan in 1985 called for further multidisciplinary measures to deal with domestic violence, and the issue of genderbased violence was also raised at a World Conference in 1985 in Nairobi. Following several activities at the UN during the early 1990s,2 and the appointment of Ms Radhika Coomaraswamy, an activist lawyer and scholar from Sri Lanka, as Special Rapporteur to report on violence against women on a worldwide basis,3 the topic also featured in the Fourth World Conference on Women held in Beijing in 1995. With the involvement of many South Asian women activists, the Beijing Platform for Action (Beijing Plus Five) reviewed the implementation of the 1995 Conference resolutions in 2000 and recommended further action for proper implementation of CEDAW with specic reference to womens human rights. India has accepted the obligations under the UN Resolution and has made an ofcial commitment to formulate and operationalize a National Policy on Women. Since the international treaties and conventions ratied by India do not automatically form part of Indian law, they need to be incorporated into it through enabling statutes in order to be enforced by the courts. In the absence of such enabling legislation, the Indian Constitution nevertheless empowers the Supreme Court under Article 152 to enforce the directives of such treaties and conventions, if certain conditions are fullled.

The Indian Scenario of Domestic Violence

Though it took a while for Indian scholarship to address this issue, domestic violence is now recognized as a violation of the fundamental human rights of women (Lawyers Collective, 2000). Earlier studies were either condemning India for the cruel treatment of women (Mayo, 1927) or were painting a rather rosy picture based on ancient textual sources (Altekar, 1978). Later writing became centrally concerned with equality for women,4 rather than explicitly with protection of women from various forms of violence.5 More recently, important new studies on gender and law have begun to appear (Agnes, 2000; Chandra, 1998; Rajan, 1999), and this is a growth area in academic coverage. The term domestic violence is not yet properly dened under any law in India, but sexual harassment in the workplace has become the subject of an

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important court case.6 Ms Radhika Coomaraswamy, who submitted her special report on violence against women to the Commission on Human Rights in 1996, has dened domestic violence as violence that occurs within the private sphere, generally between individuals who are related through intimacy, blood or law, and which is perpetrated by both private and state actors. She stated further that domestic violence is often problematically labeled as family violence, so that the actual structure of the family, whether dened as nuclear, joint or single-sex, becomes an important subject of investigation. Ahuja (2000: 216) has written that [v]iolence is force, whether overt or covert, used to wrest from the individual (the woman) something which she does not want to give of her own free will and which causes her either physical injury or emotional trauma or both. Among all its forms, domestic violence within the family context is the most prevalent and serious, yet to a large extent it remains unacknowledged and unaddressed. The term domestic violence includes a variety of forms of violence, either within the four corners of the home or within domestic relations, like wife-battering, rape, incest, dowry deaths, emotional abuse, child sexual abuse, forced prostitution, female infanticide, intentional sexual trafcking and sexual harassment. It is all too evident that women and children become easy victims of such forms of violence because of structural inequalities, economic dependency, low social status and systematic subordination in the family. Within the patriarchal structure of society, the exploitation, humiliation and ill-treatment of women is a manifestation of conicting power equations in the family as well as society. On the other hand, it is known that violence against women not only infringes physical and mental autonomy, but also affects their health, self-esteem and ability to participate in the development process. Thus, it becomes a fundamental human rights issue which cannot be ignored. Although gender equality is guaranteed by Articles 14 and 15 of the Indian Constitution, structural inequality continues in the spheres of personal and social life. Believers in non-egalitarian power structures continue to ill-treat and humiliate women within and outside the family. Efforts to secure changes in the laws affecting Indian women began in the 19th century but did not bear much fruit.7In the post-Independence era, as part of the comprehensive reform of Hindu family law in 19556, Hindu daughters are said to have gained an equal share in the inheritance of their fathers property under the Hindu Succession Act 1956, yet the power equation in the family has not changed (Agarwal, 1994) and these property rights do not work out as equal in practice, so that women continue to end up with minor shares of moveable property, or with no share at all. It was only during the period 197080 that the feminist movement in India gathered momentum. A number of studies researched the problems of women during this period.8 As the spirituality of Indian culture was gradually replaced by modern consumerism and worldliness, new problems arose and, to take but one example, the custom of dowry brought about increasing incidents of bridal deaths, which became a source of anxiety among women and social reformers. It is still the case that a woman who tries to claim her property rights is viewed as an

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enemy of the family (Basu, 2001). As a daughter, she inherits only from the selfacquired property of her father, and this right can be defeated by the father making a will of the property in favour of any person. In respect of joint family property, the daughter is not regarded as a coparcener (a co-sharer of ancestral property) like a son, and hence her share of entitlements to joint family property remains uncertain, except now in certain southern Indian states and in Maharashtra. For example, section 4 of the Maharashtra Hindu Succession (Amendment) Act, 1994 declares daughters as well as sons to be coparceners, thus giving them equal rights of inheritance with men. Similar laws now exist in Andhra Pradesh, Tamil Nadu and Karnataka. The Hindu woman as wife acquires property rights in the matrimonial property only after the death of her husband. Thus, she inherits only as a widow, which means that in the matrimonial home, during the marriage, a woman remains dependent on the husband and becomes still more vulnerable to inequality and subordinate status. Womens groups became gradually more vigilant and undertook vigorous antidowry campaigns,9 as well as demanding more efcient legislative provisions to deal with this particular issue, while much effort has been spent on demanding increased property rights for Hindu wives (for critical details see Agnes, 2000) and better protection for women against domestic violence (Jaising, 2001; Lawyers Collective, 2000). However, the case of Sharad Birdichand Sarda v. State of Maharashtra, 1984 CrLJ [Criminal Law Journal] 1738, highlights the futility of existing criminal law in addressing the issue of domestic violence. This matter, and the case of Mathura,10 a tribal girl who was allegedly raped within the premises of a police station by two police constables who were later acquitted by the Supreme Court, sensitized Indian society towards the need to look at womens issues afresh. Womens organizations sprang into action all over the country and became active on behalf of female victims in hundreds of cases of violence against women. This struggle and agitation by womens non-governmental organisations compelled the government to intervene through legislation. Organizations such as the Forum Against Oppression of Women in Bombay, Saheli, in Delhi and many others were successful in motivating public opinion in favour of reforms to beat the menace of violence against women. In its 91st Report published in 1983, the Law Commission of India observed that the roots of the problem of domestic violence, particularly of bridal deaths, lay in the socio-economic position of the victims and their psychological set-up. The legal actions taken to counter such violence are discussed further below.

Link to the Dowry Problem

The Law Commission Report of 1983 argued that the two major impediments for establishing the existence of incidents of bridal deaths were that (i) the acts of violence did not t within the denitions of any of the existing offences, and (ii) the peculiarities of situations rendered proof of direct incriminating facts difcult. It took notice of the absence of substantive as well as procedural criminal

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law and of law of evidence in this regard. The focus of the report was to advise the enactment of new laws for countering the menace of dowry death and formulation of a better denition for the concept of cruelty in the context of combating domestic violence. There can be no doubt that, in the context of Indian society, dowry has been misused as a weapon of oppression against married women. Historically, dowry played an important role in supporting a married woman in times of difculty. The traditional Hindu law of inheritance excluded women from inheriting ancestral property. Hence, dowry was justied as a necessary custom in the form of a pre-mortem inheritance. The daughters could then get their share in the fathers property before his death. Dowry is therefore different from the traditional concept of stridhan, which was considered to be a womans own inalienable property over which she had full and absolute right. Stridhan was supposed to pass from a mother to her daughter. But dowry has assumed today a wide and different meaning, and a bride may have uncertain rights over it. Dowry is not merely conned to presents of jewellery, clothing and valuable property made to a woman at the time of her marriage, but also includes other offerings made to the bridegroom or members of his family as a token of gratitude for accepting their daughter as a daughter-in-law and for giving kind treatment to their daughter. The newly wed daughter is welcome in the family as Lakshmi, the goddess of wealth. Dowry has no doubt an economic aspect, but its social and cultural dimensions are equally important. Dowry is regarded as a social status symbol for the grooms family, and may also be strategically used by the womans natal family (Sen, 1999). A poor or shabby dowry may be looked upon as an insult to the husband and his family. Non-fullment of expectations of dowry and more explicit demands for dowry cause discontent towards the bride, which often results in her harassment. Thus, the tradition of dowry has to a large extent become a social evil. The Dowry Prohibition Act, 1961, outlaws the system of payment of dowry in any form, and mere demand of dowry is also made punishable. Recent research (such as Oldenburg, 2002 for Panjab) conrms that the traditional custom of dowry assumed its ruinous and cruel form in the 19th century during the British regime, which witnessed the large scale of erosion of womens economic importance and inheritance rights due to the manner in which the colonial rulers carried out land settlement operations in India (Kishwar, 1999: 22). As daughters were disinherited, they were looked upon as liabilities, a perception which continues today. Before various legal provisions were enacted during the 1980s, matrimonial relationships had remained largely within the domain of privacy and the joint family. With the emergence of nuclear families, the bond of the joint family broke; husbands enjoyed considerably more individual freedom, but lost sight of the rights and well-being of their wives. The call for human rights for women and for gender equality pushed innovative reforms into social processes and the legal system.11

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Statutory Provisions to Combat Violence against Women

The recommendations of the Law Commission of India were accepted in principle and led to legal reforms. Amendments were made by adding section 498-A to the Indian Penal Code (IPC) through the Criminal Law (Second Amendment) Act, 1983.12 Section 198-A was inserted into the Code of Criminal Procedure 1973, providing the categories of persons who could make a complaint about this offence. Section 113-A was inserted into the Indian Evidence Act of 1872, shifting the burden of proof on the husband or his relatives accused of the offence in specic cases of dowry-death. Later, in 1986, section 304-A was added to the IPC, making dowry-death a distinct offence:
498-A: Cruelty by husband or relatives of husband. Whoever, being the husband or relative of husband of a woman subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to ne. For the purpose of this section cruelty means, (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or death (whether mental or physical) of women; or (b) harassment of the woman where such harassment is with the view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any other person related to her to meet such demands.

The provision is unique because it is the rst statutory provision recognizing domestic violence as a distinct offence. Earlier, a victim of domestic violence could le a complaint only under the existing provisions of the IPC for the offence of assault (under sections 323324) or, if she were conned within the house and not allowed to meet anybody, she could complain of wrongful connement (section 340), both being essentially offences relating to physical cruelty. The provision has also dened cruelty for the rst time in criminal law, and deals with both aspects of cruelty, physical and mental. This wider denition makes it possible for a victim of wife-beating or other forms of harassment by her in-laws to get out of her matrimonial home and seek the support of the law. This offence is cognizable and non-bailable, which means that when the complainant reports such an offence, the husband and the other accused parties are immediately arrested. At rst sight, this may look like giving women a lot of power. The accused may, however, be released by a magistrate on personal bond or bailed on some other security provided by him. This is in respect of the general principle that the accused is to be treated as innocent until the alleged offence has been proved. The offence is also non-compoundable, which means in practice that the magistrate has to conduct the entire trial even where the parties may later have compromised their disputes outside the court. As described later, this prompts the wife to remain absent, or to falsely depose at the trial favouring the accused, and to get him acquitted. The law contained in section 498-A assures a woman some platform to complain about cruelty practised by her husband or in-laws. In a family structure where wife-abuse or wife-beating was considered the right of the husband, or

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something a wife had to bear ungrudgingly, the provision has given a vital blow to this patriarchal power within the home by husbands who regard wife-beating as their matrimonial right. This section, thus, empowers a female victim of harassment to begin to challenge the power relations within matrimony. This is a direct blow to patriarchal power relations. The creation of the law on harassment of a married woman in itself, and the provision for punishment of the harassing husband or his relatives, has created a lot of expectations about better treatment of women in society. Other allied provisions of law are, rst of all, section 198-A of the Code of Criminal Procedure, 1973, which reads as follows:
198-A: Prosecution of offences under section 498-A of the Indian Penal Code. No court shall take cognizance of an offence, punishable under S. 498-A of the Indian Penal Code (45 of 1860) except upon a police report of facts which constitute such offence or upon complaint made by the person aggrieved by the offence or her father, mother, brother, sister or by her fathers or mothers brother or sister or with the leave of the court by any other person related to her by blood, marriage or adoption.

Further, section 113-A of the Indian Evidence Act, 1872, provides:

113-A: Presumption as to abetment of suicide by a married woman. When the question is whether the commission of suicide by a woman had been abetted by her husband or by any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation: For the purpose of this section, cruelty shall have the same meaning as in S. 498-A of the Indian Penal Code (45 of 1860).

The amendments of the anti-dowry law of 1986 are also reected in Section 304-B of the IPC of 1860:
304-B: Dowry Death. Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any of the relatives of her husband for or in connection with any demand for dowry, such death shall be called dowry death. And such husband or relative shall be deemed to have caused her death. Explanation: For the purposes of this sub-section, dowry shall have the same meaning as in S. 2 of the Dowry Prohibition Act, 1961. Whoever commits dowry death shall be punished with imprisonment for a term, which shall not be less than seven years but which may extend to imprisonment for life.

Finally, section 113-B of the Indian Evidence Act, 1872, further deals with evidence and presumptions:

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113-B: Presumption as to dowry death.

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When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death, such woman had been subjected by such person to cruelty or harassment for or in connection with any demand for dowry, the court shall presume that such person has caused the dowry death. Explanation: For the purposes of this Section, dowry death shall have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860).

Considering the impact of these legal changes, we note that these few provisions in the criminal law mark the beginning of state intervention for curbing the problem of domestic violence. The traditional provisions of criminal law were clearly insufcient to offer remedies to a wife harassed within the matrimonial home. These provisions now give special protection to a battered wife, providing her with an assured mechanism within the criminal justice system. However, whether this works in practice is another matter, as discussed further below. As for procedures for ling a complaint under section 498-A, the matter is to be reported to the police by ling an FIR, which is the popular acronym for First Information Report. When an informant makes an FIR, she moves the criminal justice system. It is written by the police in a specied format on the basis of the rst information received at the police station that a cognizable offence has been committed. Section 154 of the Code of Criminal Procedure, 1973, provides for the manner of writing an FIR. The police also maintain a crime register and the police diary. Usually, the FIR is led in the name of the victim, sometimes her parents and occasionally in the name of the police.

The Pune Study on Dowry-related Violence

For the purpose of the study, conducted by the ILS Law College in Pune, a total of 933 FIRs from eight police stations of Pune District (four rural and four urban) were collected. Data was gathered from such FIRs, crime registers and police diaries. Out of the total of 933 cases under study, 382 cases were from rural and 551 from urban areas. Out of 933 FIRs under study, 147 disclosed cases of deaths of the victims in both rural and urban areas. Out of 147 dead victims, 35% of women from the rural areas and 31% from the urban areas were mothers with children aged between 20 days to 14 years. The above data falsify two assumptions: that matrimonial disputes, if any, get resolved by the birth of a child in the family, and that a woman would not hasten to commit suicide after she becomes a mother. The study reveals that the causes of death are mostly burning, hanging, drowning in water, consuming poison, suicide and occasionally snake bite or physical torture. The main study reports that in a maximum number of cases the husband is the prime accused. Then comes the mother-in-law, who often controls the whole house. Then follow the others, such as father-in-law, brother-in-law and sister-in-law. Cruelty takes various types. In each case it is perceived and manifested differently. However, it is broadly classied as physical and mental. Incidents of

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physical cruelty appear to occur more frequently in rural areas. The common form of physical cruelty is beating; others include kicking, slapping, pushing, pinching and spitting on the face. The reasons for abuse may vary, for example that the wife is pregnant, or that she cannot conceive, does not cover her head, or cannot cook to the liking of the husband. Another type of cruelty is deprivation of basic needs, which takes the form of depriving her of proper or sufcient food or clothes, or even oil for her hair. Such cases are common in rural cases and where the wife is totally dependent on her husband. Deprivation of married life includes denying sexual relations to the wife, driving her out of the house or deserting her. In one case, the husband and wife were travelling together, and while the wife slept, the husband left her alone in the bus and walked away. Deprivation of social life implies disallowing her from visiting her friends, neighbours, relatives, and even parents. Deprivation of property consists in taking away money or jewellery forcefully by the husband or in-laws. Mental cruelty may be caused either by verbal abuse or ill-treatment. The persistent demand for money, and the refusal or inability to satisfy it by the woman or her parents, is the most common form; other instances include threat of divorce or of marrying another woman. Such forms of mental cruelty are serious and destroy the womans peace of mind as well as the marital relationship. Dowry is a major motive behind cruelty, usually demanded in the form of money, or in the form of gold or other household items. Demands included a ticket to the USA, or a share in the property of the womans parents. Deliberate illtreatment of the wife often occurs. In rural areas a newly wedded wife is supposed to adjust to the family and, if she fails the expectations of the family members, she is liable to be harassed. Some cases reveal that the womans chastity is doubted. It is commonly alleged that cases under section 498-A result from instigation by womens organizations. But data collected from the police department do not support this view, and complainants have sought the help of womens organizations in very few cases. It is also believed that a case under section 498-A leads to the ling of matrimonial cases in a civil or family court. But the data suggest that although there may be a high correlation between cases under section 498-A and matrimonial cases in civil courts, generally a complaint is rst registered under section 498-A, followed later by the civil case for divorce.

Judicial Views and Analysis of the Cases under Study

As indicated above, the introduction of special laws on domestic violence raised the expectations of society, particularly women, that this new law would give better protection to married women and save them from further harassment in the family. In order to examine how far the aspirations of society in respect of this new provision are fullled and to know the functioning of this provision, the judgements of the various courts under Section 498-A were studied analytically. This study revealed varied facts underlying the cases and the interpretation of laws in the given situation. Moreover, it has focused on certain aws in the law and its implementation. About 183 judgements delivered by the Judicial Magistrate First

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Class and the Sessions Courts of Pune, High Courts of some States and the Supreme Court of India have been considered. The analysis of these cases presents a number of important observations. Regarding witnesses, the study noted that in most cases the deposition of the complainant formed the decisive evidence. The corroborative statements of witnesses also supported the testimony of the complainant. Other evidence included medical certicates for proving injuries, and receipts of payments of money made by the father of the complainant. The Courts have largely relied on two factors, consistent oral evidence without contradiction, and existence of other material evidence corroborating the oral evidence. As regards compromise or withdrawal of proceedings, section 498-A has been made a non-compoundable offence, as explained above, but often parties end up settling their disputes out of court. The complainant then becomes forced to either turn hostile, or to change her statement in court, or to remain absent at the hearing, thereby enabling acquittal of the accused husband. Such compromises may be of two types: (i) the matter being settled amicably, with the wife returning to the husband, or (ii) the parties opting for divorce or deciding to stay separated. Regarding standard of proof of guilt, it was found in about 40% of the cases that the accused was acquitted because the complainant failed to prove guilt beyond reasonable doubt, or because the statement of the complainant was too vague, inconsistent or unclear. Inconsistency between the statement of the complainant in the court, and that made to the police in the FIR or later during investigation, is another factor that is often exploited. One important reason for failure to succeed in prosecutions is that often a large time gap exists between the incident of cruelty and the ling of the FIR. The complainant is generally tense and scared while ling the FIR in the police station and also in the court at the time of trial. Due to anxiety and fear she cannot logically present herself. As she fails to produce the exact minute details of facts in the court at the time of trial, alleged inconsistencies or vagueness creep into her depositions. The public prosecutor assigned to the case cannot invest the necessary time and attention in brieng the complainant and, when she is exposed to the court, inconsistencies often occur in her statement and are used against her. Non-availability of independent witnesses is another factor resulting in the frequent acquittal of the accused. The witnesses examined tend to be womens parents or other close relatives. These would generally live away from the complainant, hence they are not eyewitnesses. Their evidence is seen as that of interested witnesses, and is therefore likely to be discarded as hearsay. If at all independent witnesses are available, they might turn hostile or remain absent. In a rare case, where the judge was aware about the limitations of section 498-A, he required the accused husband and the mother-in-law to give a written undertaking that they would not ill-treat the wife when she was ready to return to her matrimonial home. In another case, the judge warned the complainant about ling a false case and wasting the time of the court on trivial issues. Such observations reect the attitude of judges, who still consider the issue of domestic violence strictly within the framework of criminal law, by rigidly applying the traditional rule of proving guilt beyond reasonable doubt.

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Cases Decided by Sessions Courts: Charges of Cruelty and Other Grave Offences
In cases decided by the Sessions Courts, the criminal courts at the lowest level, the charge under section 498-A would normally be coupled with a charge for another grave offence, like murder under section 302 of the IPC or abetment of murder under section 309, or dowry death under section 304-B. The study of cases in the Sessions Courts revealed that acquittal resulted in most cases because sufcient proof of cruelty was not given, and hence the specic charge was not proved. In some cases the gravity of cruelty was not established. In others, the circumstantial evidence favoured the accused rather than the complainant, e.g. much before the suicide, the wife was suffering from TB and was frustrated, and her mental condition was not sound. In another case, there was an inordinate delay of about 810 days in ling the FIR. In such cases the prosecution failed as the accused was given the benet of doubt. Sometimes there was a clear reason for conviction. Conviction followed where the last words of the woman were regarded as a dying declaration, which described the cruelty meted out to her by her husband and mother-in-law. Then the charge of murder was proved, and the husband was punished with imprisonment for up to ve years with a ne. In a similar case, the husband was punished with life imprisonment and ned for the offence of murder with two years imprisonment and a ne for cruelty. Delay in ling a complaint without any satisfactory explanation tended to result in acquittal. Delays often occur because, when a married daughter dies a sudden and unexpected death, the parents are in a state of shock and generally take some time to recover and to activate the law. Moreover, cruelty in isolation cannot be proved, unless the acts are of an extreme nature. Therefore, a woman suffering harassment cannot prove cruelty, as in most of the cases it is practised within the four walls of her matrimonial home. But when such suffering becomes unbearable, and if the woman commits suicide or is murdered, cruelty is now presumed under section 113-A of the Indian Evidence Act. Relatives come forth to give evidence only in extreme cases. Otherwise, where cruelty is practised but is not of a grave nature, in the absence of evidence the perpetrator goes unpunished. Thus, it seems to be the intention of the legislature to punish grave cruelty and not simple cruelty. The law still seems to expect a married woman to suffer or tolerate simple cruelty in the hope of a happy future married life.

Cases Decided by High Courts and the Supreme Court

About 100 relevant judgements from 1984 to 1998 were available for study. It is noteworthy that out of these 100 cases, not a single simple case under section 498-A of the IPC has reached the Supreme Court. Only where a case under section 498-A is coupled with any other grave offence like murder, abetment of suicide or dowry death, has it reached the highest court. Out of 100 cases, a mere 13 cases of simple offence under section 498-A only (i.e. not coupled with a grave offence) have reached the High Courts. In most of the cases, acquittal resulted because the guilt was not proved beyond reasonable doubt. In some cases, the

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allegations were too vague. In one case, the dying declaration could not be recorded and there was no other evidence. In cases where a dying declaration was available, it was put to serious doubts due to different reasons and the benet of doubt was then given to the accused. Where the statements of the witnesses were contradictory and inconsistent, benet was also given to the accused. Where material or oral evidence was available, the accused was proved guilty and conviction resulted. Letters written by the complainant and depositions by the villagers were treated as strong evidence against the accused. Statements recorded in the diary of the accused were treated as independent evidence and the accused was convicted. The offence under section 498-A is punishable with a term of imprisonment that may extend to three years and a ne. Where there was such conviction, the sentence of rigorous imprisonment varied from two to three years and nes varied from Rs. 10002000. In default of payment, the accused had to undergo rigorous imprisonment for one month. The punishment is higher where the charge is under section 498-A coupled with other graver offences.

Judicial Views on Important Issues

Though the term cruelty has been dened under explanations (a) and (b) of section 498-A of the IPC, as reproduced above, the scope of this denition has been left elastic by the legislature. The denition does not cover any specic acts of cruelty. In Alamuri Lalitha Devi v. State of Uttar Pradesh, AIR [All India Reporter] 1988 SC 2127, the Supreme Court observed that [i]t is difcult rather impossible to enumerate acts amounting to cruelty or to put cruel conduct into a straight jacket or to make cruel conduct conformable to any inexible standard. The concept of cruelty has to be viewed in the context of the environment and the background of the spouses. Therefore, the conduct complained of must be viewed with reference to the parties capacity or incapacity to endure. Some cases raise questions of constitutional law. In Inder Raj Malik v. Sunita Malik, 1986 CrLJ [Criminal Law Journal] 1510, the complainant had alleged maltreatment by her husband and relatives, namely beating and abuse, starving her and demanding money at various times. The complainant was pregnant and had gone to her parents house for delivery, where she gave birth to a girl. The husband then forcibly took away the child and threatened to kill her. Earlier, a large amount of money and jewellery had been given to the husband, yet he persisted with demands of money. The Judicial Magistrate issued process, which was challenged in the High Court on the ground that the Judicial Magistrate had no jurisdiction. On appeal to the Supreme Court, it was held that the Magistrate had jurisdiction, that the offence was continuing and the cause of action arose after the section was brought into force. The Court further observed that section 498-A was not ultra vires the Constitution, and was explicitly justied under Article 15 of the Constitution. The Court afrmed that the section does not give any arbitrary powers to the police or the court and the words cruelty and harassment are well-dened and their import is known. The courts in interpreting the words and awarding punishments in fact exercise wide discretion, therefore, such interpretation is not violative of Article 14.13 The Court also held

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that the rule against double jeopardy was not violated, as section 4 of the Dowry Prohibition Act 1961 punished only a demand for dowry, whereas section 498-A of the IPC punishes cruelty caused for not fullling the demand of dowry. Hence, the purposes of these two sections are different. Naturally, many decisions concern acts amounting to cruelty, but this remains difcult to dene. In State of Karnataka v. Balappa,14 the father of a bride had agreed to give Rs. 2000, a wristwatch and ten grams (one tola) of gold to the bridegroom on the occasion of the marriage. In exchange, the husband agreed to make some gifts to the bride and the gifts were exchanged. Later, after the wife had delivered a child, at the time of the naming ceremony, some demand of money was made by the husband, which was not satised. Therefore, ill treatment started and ultimately the wife committed suicide. On prosecuting the husband for dowry death, the charge under section 304-B was found not proved. However, the Court held that the husbands conduct, not accepting the wife and the newborn baby for a period of nine months, indicated ill-treatment and amounted to cruelty. The treatment meted out to the deceased would clearly make out a case under section 498-A IPC. The Court further observed that the trial court gravely erred by holding that once a case under section 304-B was not made out, an offence under section 498-A automatically failed. In this decision, the Court clearly viewed the husbands non-acceptance of the newborn baby for nine months as cruelty. In Madhuri Chitnis v. Mukund Chitnis, 1992 CrLJ 111(Bombay), the wife was driven out of the matrimonial home on 6 August 1983 and was granted divorce on 17 October 1985. During this period, the husband had committed offences under section 498-A on several occasions. Therefore, the wife led a complaint in the Judicial Magistrates Court at Pune. The verication of the complaint was obtained on 15 October and she was allowed divorce on 17 October 1985. The husband tried to appeal, but this was rejected. Eventually, revision to the Sessions Court was allowed by the Court and the order of the judicial magistrate was set aside, so that the marriage was re-instated. The wife then led a writ petition in the High Court of Bombay. The acts of cruelty complained of were that the husband had falsely alleged indelity of the wife, led false criminal cases against her, demanded dowry of about Rs. 10,000, and demanded back the stridhan of the wife. Further, the parents of the wife had been compelled to sell their immovable property to meet the demands of the husband. This cruelty continued even after the new law had come into force in December 1983. The Court held that the offence of cruelty was a continuing one. The writ petition was allowed, the order of the Sessions Court set aside and the order of the judicial magistrate restored. The decision is regarded as a landmark for different reasons since it afrms that cruelty is a continuing offence, and making false allegations against the wife and ling false, vexatious prosecutions against her to extract dowry also amounts to cruelty. Thus, the scope of cruelty is exible and depends on the circumstances. In Pawan Kumar v. State of Haryana, AIR 1998 SC 958, the court held that taunting a woman for not bringing dowry and calling her ugly amounts to mental cruelty. When there was a quarrel a day before her death, it was regarded as

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constituting a wilful act of cruelty both within the meaning of section 498-A and section 304-B of the IPC. In V.C. Govindappa v. State of Karnataka, (1998) 2 SCC [Supreme Court Cases] 763, the conduct of the husband in not trying to put out the ames and not taking the wife to the hospital was regarded as circumstantial evidence against him. In Wazirchand v. State of Haryana, AIR 1989 SC 378, taking away a child of nine months from its mother was held to be cruel, attracting punishment under section 498-A. However, there are many situations that will not constitute cruelty. Explanation (b) to section 498-A does not declare each and every harassment as cruelty. The harassment has to have a denite objective, such as to coerce the woman or any person related to her to meet certain demands. The case of Sarala Prabhakar Waghmare v. State of Maharashtra, 1990 CrLJ 407 (Bombay) has often been referred to in the judgements of lower courts. The facts of the case were that soon after the marriage, there was a demand for a motorcycle by the husband and his parents. This was not satised, leading to harassment of the wife by her husband and his relatives. The husband was prosecuted under section 498-A for harassment of the wife. The complainant was the only witness, and the lower court acquitted the husband on the basis of allegations that the brother of the husband had poured kerosene on the wife, but he was not prosecuted. The State did not le an appeal, but the wife made a Revision Application in the High Court. It was found that the incident was reported before the commencement of the section, which had no retrospective effect. Thereupon the wife led a maintenance application under section 125 of Criminal Procedure Code, which was compromised on the assurance of the husband to take back the wife. Again, however, she alleged harassment and led a complaint under section 498-A against the husband, who was acquitted by the trial court. On appeal, the High Court also did not appreciate the evidence and the application was dismissed, holding that every act of harassment cannot be cruelty punishable under section 498-A. The husband was acquitted by the High Court also. This case is, for obvious reasons, widely relied upon by the trial courts for acquitting the husband and not holding him guilty under section 498-A of the IPC. Unexplained delay in ling the FIR is often used as an argument by husbands. On the other hand, in Vungarala Yedukonda v. State of AP, 1988 CrLJ 1538 (Andhra Pradesh), the court extended the ambit of section 498-A. Where the respondent was not the legally wedded husband, but both the petitioner and the respondent were living together as husband and wife, she was allowed to le a complaint under section 498-A.

Evidence Issues
Sections 113-B and 304-B read together shift the burden of proof on the accused husband when the offence has taken place within seven years of marriage. If the wife dies an unnatural death, the presumption under section 113-B becomes applicable. Where there is direct evidence, the courts are ready to rely on the circumstantial evidence and infer culpability from the material available. In State of U.P. v. P.V. Ramesh, (1996) 10 SCC 360, the statement of the deceased

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regarding circumstances of the transaction, which resulted in her death, was treated as relevant under section 32(1) of the Evidence Act. It was observed that it is the duty of the court to scan through the evidence on the anvil of human conduct, probabilities extending all doubts in favour of the accused. The Supreme Court conrmed in State of West Bengal v. Jaiswal, (1994) 1 SCC 73, that a reasonable nexus has to be established between cruelty and suicide. The cruelty established has to be of such gravity as to drive an ordinary woman to commit suicide. In this case, the Supreme Court explained that the standard of proof applied in such cases is that of a reasonable person and the liability of the accused is to be proved beyond reasonable doubt. Whether the burden is discharged or not depends upon the circumstances of each case. While explaining the situations in which cruelty exists, but cannot be tted in the existing law, Justice S. S. M. Quadri (2000: 98) observed in a conference that [s]ometimes unsuccessful attempts have been made to co-relate it with demand of dowry to secure conviction but they failed for want of proof of demand of dowry or cruelty. Such cases more often ended in acquittal. In Om Prakash v. State of Punjab, (1992) 4 SCC 212, the court relied on the dying declaration and found the accused guilty. In Mahendra Singh v. State of M.P., (1995) Supplement 3 SCC 731, the dying declaration of the deceased per se could not involve the accused in an offence under section 306 IPC, because it is for abetment of suicide.

Perceptions of the Parties and the Impact of Law

The varied responses from all the groups of litigants involved throw light on different facets of the problem. There are different reasons for different persons for ling a complaint with the police. The perception of harassment varies from person to person, as does his or her role in the circumstances. Beating and harassment did exist in many cases under study, but the parties involved perceived its gravity differently. A complaint may be genuine according to the wife, but the husband may regard it as false, particularly when the case results in acquittal of the accused husband. The complainants expressed different expectations from the police. The most optimistic expectation is that the police will nd a way out of the harassment, and the beating will stop. It is also hoped that the police will guide the husband and he will behave properly. A common allegation about the impact of section 498-A is that the complaint is led to arrest or harass the husband and his relatives. In rural areas, the complainant is often unaware about the consequences of the complaint and has led the complaint on the advice of her parents or a brother. But it is the woman herself who suffers the consequences of taking legal action. Use of litigation also involves a lot of direct and indirect cost, which includes expenses in the court, fees for the advocates, travelling expenses and loss of business or daily wages. Moreover the family relations of both parties are strained. A major damage is that the spouses lose faith in each other and peace of mind, and are worried about the future. The personal experience in the court is humiliating and the parties feel stigmatized, as their personal matters are discussed

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in court. A very striking impact is observed about the married life of the parties, namely that in 40% of cases from rural and 50% from urban areas, the couples are staying together even after the ling of the criminal case. In a few cases in urban areas, the condence of the complainant wives is boosted, as they have come out of the nightmare and are happier for getting timely help. The law has denitely left some deterrent effect on the relatives of the husband. Where the accused are remarried and stay separately from the parents, the parents have stopped interfering in the new marriage. The common allegation that about 50% of the cases are false is illusory. If such cases fail to lead to conviction, this is mainly because independent witnesses are not available. In many cases, the facts are true, but the cruelty alleged is not satisfying the gravity of cruelty contemplated by the denition in section 498-A. Because of the traditional principle of criminal law that guilt must be proven beyond reasonable doubt, in the absence of strong proof, the court is convinced only where the woman dies. Where the woman is still alive, ghting back, in the absence of proof beyond reasonable doubt, the accused gets the benet of doubt and is acquitted. Where the wife does not have the support of her parents or otherwise is pressurized to reconcile, often due to the presence of children, she compromises with the husband and, the case being non-compoundable, the accused is acquitted. Often the wife gives up, as she is economically dependent on the offending male. In all such cases, the complaints fail, but are not false. Thus, these are stories of failing justice. Such evidence does not mean that section 498-A has no utility. Denitely, the section has achieved some success. Mainly it has proved its worth in strengthening the existing law. The judgements of the various courts indicate that the section has helped to prove the guilt of the accused when prosecuted under sections 304 or 306 of the IPC, and in cases of maintenance under section 125 of the Criminal Procedure Code. In cases of dowry death, the evidence may be insufcient to prove a nexus between cruelty and the death of the wife, but if the fact of cruelty per se is proved, the accused may be punished under section 498-A.

Recommendations for Reform

Fifteen years after the enforcement of Indias rst separate law on domestic violence, by way of sections 304-B and 498-A of the IPC, analysing its implementation and impact, the limitations of the existing law are realized. Many cases fail since the criminal law takes a too narrow view while dening cruelty. This calls for judicial engineering and resorting to innovative measures to redress womens grievances about domestic violence. A few suggestions can be made to reform the law so as to eradicate the impediments in achieving the objectives of this law: 1. First of all, it should be made easier to complain against persons other than the husband or relatives. This could easily be achieved by inserting the word whosoever in the beginning of the section as cited above and rewording it slightly to read Whosoever, being the husband or relative of the husband or any other person, subjects a woman to cruelty . . ..

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2. More attention needs to be given to the gravity of acts amounting to cruelty. Insertion of a sub-section dening cruelty of lesser gravity may be useful. Currently, the section comprehends cruelty only to be of graver nature. The judicial view is explicitly clear that it is not every harassment or every type of cruelty that would attract section 498-A. In Sarala Prabhakar Waghmare v. State of Maharashtra,15 the Court found that the wife had not conclusively established that the beating and harassment was with a view to forcing her to commit suicide or to full illegal demands. Thus, it appears that if the cruelty caused to the woman is of lesser gravity, she remains unprotected. Hence, in the present situation of failing justice under section 498-A, a sub-clause punishing or protecting a woman from cruelty of lesser gravity would be useful for further expanding the ambit of gender justice. It is highly necessary to provide this specic protection to battered women, who are compelled to leave their matrimonial home and to seek parental support to avoid cruelty by their husbands or other relatives. 3. Further, it is suggested to make the offence compoundable with the permission of the court, i.e. not in every case. If the parties desire to compromise, on their moving such joint application to the court, the case should be kept pending for a period of six months, after which the court can conrm for itself whether the parties genuinely desire to compromise. If the judge is condent about their intention, the court may permit a compromise. 4. A number of changes are desirable in the criminal administration system as such, at different levels. Sensitization of the judiciary, police administration, improvement of infrastructure facilities, accountability on the part of public prosecutors, in-camera proceedings, and increasing overall coordination among different pillars of administration of justice will help to bring justice to victims of crime. 5. Lastly, introducing a comprehensive law on domestic violence is the need of the day. A separate chapter may be introduced into the IPC so as to encompass a wider perspective of domestic violence, or a separate special law may be passed with the following considerations: (a) The comprehensive law should cover the offences caused to a wife or other relation in the family like a sister, mother, or dependant, as well as sexual offences caused within domestic relations. A separate tribunal should be constituted to try such offences. (b) Such tribunal should be empowered to provide wide remedies like maintenance, divorce, judicial separation, nullity of marriage and granting of compensation in deserving cases. (c) In case of a complaint about cruelty, a restraining order or an injunction against the offending party may be passed. While granting bail to the accused, such conditions can be placed about not ill-treating the wife, or staying away from her for some time. (d) An order to execute a bond for good behaviour with or without surety may be passed. The magistrate may be empowered to exercise powers

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under sections 107 to 114 of the Criminal Procedure Code for the prevention of domestic violence. (e) Issuing of a protection order in favour of the battered woman would immensely help the woman in distress, who may be directed to go to a shelter home instead of suffering abuse in her own home. (f ) A counseling cell should be attached to the tribunal, where the expert services of psychologists or psychiatrists are available. If we take a wider view of the problem of domestic violence, it may be looked at not merely as a legal wrong, but as a social evil. The role of counsellors in the present mechanisms of Family Courts may be extended to the cases of domestic violence, too. In view of the evident failure of gender justice, Indian law today ought to evolve such innovative measures which will aim at more effectively protecting the woman from cruelty and harassment, as well as preserve her matrimonial home too. Looking at the problem of domestic violence as a part of the social milieu, if we want to achieve the well-being of the family, sincere efforts have to be made. Indian law needs to adopt a more holistic approach to the problem.

Notes
1. General Assembly Resolution No. 38/180 of 18 December 1979. 2. In 1992, the 11th Session on CEDAW formally included gender-based violence under the heading of gender-based discrimination and recommended that State parties take appropriate and effective measures to overcome all forms of gender-based violence, whether public or private. In 1993, CEDAW was successful in anchoring the issue of violence against women further through a Declaration on the Elimination of Violence Against Women (United Nations General Assembly Resolution No. 48/104). 3. During the 50th session of the UN in March 1994, through the Commission on Human Rights, it was resolved to integrate the rights of women into the human rights mechanisms and to eliminate all forms of violence against women. 4. See Dhagamwar, 1987; Dhanda and Parashar, 1999; Jethmalani, 1995; Kapur and Cossman, 1996; Kusum, 1993; Nair, 1996; Parashar, 1992; Rajan, 1999; Sarkar and Sivaramayya, 1994; Saxena, 1993. 5. Important studies in this eld are Dhagamwar, 1974 and 1992; John and Nair, 2000 and especially Jaising, 2001. 6. On sexual harassment of working women, see Vishaka v State of Rajasthan, AIR [All India Reporter]1997 SC 3011. 7. Relevant examples would be the colonial law allowing Hindu widows to remarry (the Hindu Widows Remarriage Act, 1865), the extended debates over the age of marriage and of consent (see Anagol-McGinn, 1992; Chandra, 1998; Engels, 1983) and the Child Marriage Restraint Act of 1929 (Chekki, 1968; Sagade, 1981). 8. A government-sponsored report, entitled Towards Equality (1974), has manifestly inuenced much of the writing on family law during the 1980s and 1990s. 9. These are reected in studies produced by prominent activists (Jethmalani, 1995; Kishwar, 1999; Kishwar and Vanita, 1991). 10. See Tukaram v. State of Maharashtra, 1987 Criminal Law Journal 1964 (Supreme Court).

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11. Indias anti-dowry law and the various amendments of the Dowry Prohibition Act 1961 during the 1980s are not covered here. For details of these legal changes see Menski (1999: 97149). 12. Act No. 45 of 1980, which came into force on 25 December 1983. 13. Article 14 provides for the fundamental right of equality of sexes without discrimination of race, caste, creed, place of birth and religion. It assures equal treatment before the law, but reasonable classication based on intelligible differentials is permissible. 14. 1999 CrLJ B (Karnataka) 3064-70, at p. 3068, para 21. 15. Reported at 1990 CrLJ 407 (Bombay), at p. 408, para 3 and referred to earlier.

References
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Kusum (ed.) (1993) Women March towards Dignity: Social and Legal Perspectives. New Delhi: Regency. Lawyers Collective (ed.) (2000) Womens Rights Initiative: Domestic Violence and Law. Report of Colloquium on Justice for Women. Empowerment through Law. New Delhi: Butterworths India. Mayo, Katherine (1927) Mother India. London: Jonathan Cape. Menski, Werner (ed.) (1999) South Asians and the Dowry Problem. New Delhi: Vistaar. Ministry of Education and Social Welfare (1974) Towards Equality. Report of the Committee on the Status of Women in India. New Delhi: Government of India. Nair, Janaki (1996) Women and Law in Colonial India. A Social History. New Delhi: Kali for Women. Oldenburg, Veena Talwar (2002) Dowry Murder. The Imperial Origins of a Cultural Crime. New Delhi: Oxford University Press. Parashar, Archana (1992) Women and Family Law Reform in India. Uniform Civil Code and Gender Equality. New Delhi: Sage. Quadri, S. S. M. (2000) Domestic Violence on Women, in Lawyers Collective (ed.) Womens Rights Initiative: Domestic Violence and Law, pp. 93101. New Delhi: Butterworth. Rajan, Rajeswari Sunder (ed.) (1999) Signposts. Gender Issues in Post-independence India. New Delhi: Kali for Women. Sagade, Jaya (1981) Law and Social Reforms in Rural India with Special Reference to Child Marriages, Supreme Court Journal, s. 2735. Sarkar, Lotika and B. Sivaramayya (eds) (1994) Women and Law. Contemporary Problems. New Delhi: Vikas. Saxena, Sarojini (1993) Femi Juris. Law Relating to Woman in India. Indore: India Publishing House. Sen, Bisakha (1999) Why Does Dowry Still Persist in India? An Economic Analysis Using Human Capital, in W. Menski (ed.) South Asians and the Dowry Problem, pp. 7595. New Delhi: Vistaar.

Vineeta Palkar is a lecturer in law at ILS Law College in Pune. She has been very active in promoting legal education at grassroots level and has introduced special courses and Diploma Programmes for Rural Social Workers and Advisers as well as running a Legal Aid Centre at the campus. Address: ILS Law College, Law College Road, Pune 4110004, India. [email: ilslaw@giaspn01.vsnl.net.in]

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