Friday, August 1, 2014

Indira Jaisingh: Concern for the Dead, Condemnation for the Living

While ruling that women were increasingly misusing Section 498A of the Indian Penal Code, the Supreme Court ought to have been more conscious of the prevalence of domestic violence, and the difficulties women face in approaching the police. When faced with evidence of a poor conviction rate, instead of inquiring whether the prosecution was poorly conducted, the Court assumes that the “disgruntled wives” filed false cases. Ironically, while the courts convict husbands and their families in cases of dowry deaths, the woman’s invocation of Section 498A when she fears for her life or demands her share of the matrimonial home, earns her the accusation of being a “disgruntled wife”.
In the mid-1980s, the legal category of “domestic violence”, which we use today to describe violence in the intimate sphere, did not exist. The expression first found its place in Indian law in 2005. This is not to say that domestic violence did not exist before 2005, but rather, that an injury was not an injury until it had a legal name and definition. This was also the case with sexual harassment at the workplace. It was not until the 1970s when Catherine Mackinnon conceptualised the first sexual harassment claim as an action under the Civil Rights Act, 1964 as being a form of discrimination against women based on sex, that it became an actionable wrong. Such is the defining power of the law.
In the mid-1980s, there were cases of women dying in the matrimonial home in what came to be described as “stove bursts” in the kitchen. The polyester king, Reliance, contributed the nylon saree which clung to the body resulting in instant death. These deaths were routinely recorded by the police as “accidental”. It was the foresight and historic campaigns of the mothers of these women who died which led them to demand the reopening of the “closed” police files and call for an investigation of these deaths as murder. Satyarani Chaddha was one of the foremost among those brave mothers who refused to accept that her daughter, Kanchanbala, had died an accidental death within months of her marriage. It is ironic that the judgment of the Supreme Court in Arnesh Kumar vs State of Bihar & Ors1 (henceforth Arnesh Kumar) was delivered on the very day that Satyarani Chaddha died, 2 July 2014. Her son-in-law had just been convicted of abetting the suicide of his wife but he absconded on the very day the judgment was delivered, never having seen the inside of a jail. This fact will have to be borne in mind when discussing the subtext of the judgment in Arnesh Kumar, which is quite plainly in response to the cry “women misuse the law” which is heard from the “save-the-family” lobby. Indeed, there are observations in the judgment which are a giveaway; for instance even before commencing a discussion on legal provisions, the Court states that “(t)he institution of marriage is greatly revered in this country”.
Bold Provision
Alarmed by the daily headlines of women dying of “stove bursts”, in 1983 the then Congress government of the day introduced Section 498A into the Indian Penal Code (IPC). It was a bold and brave provision, introducing the offence of cruelty by a husband and his family against a wife as an offence. It was bold for several reasons. One, that it introduced criminal offences in intimate relationships, which thus far were considered beyond the reach of the law, and two, because cruelty was not confined to the demand for dowry alone nor confined to physical mutilation or injury but extended also to mental cruelty. Cruelty is defined as any wilful conduct which is likely to drive a woman to commit suicide, or cause grave harm or injury to or danger to her life or health, mental or physical. It includes harassment of a woman with a view to coercing her or anyone related to her from meeting an unlawful demand. It is obvious that the threshold of behaviour required to constitute cruelty is high and hence there is an inbuilt safeguard in the Section itself for invoking it.
The offence is not confined to the giving and taking of dowry, but extends to all conduct which causes mental or physical injury of a high order to the woman by a husband or her family members. The word “harassment” itself refers to a continuous coercive conduct, which causes mental anguish to the woman. However, although it made several innovations, it made the threshold of cruelty required to invoke the law too high. While the conduct which qualifies as cruelty is of a grave nature, to place it so high as to expect police intervention only when there is an actual attempt at suicide by the woman would be to defeat the purpose of the law. Hence, the Section is and must be invoked when women are oppressed in the matrimonial home behind closed doors, to the extent that they find it impossible to live a life of dignity. Denial of food, locking up and preventing communication with the outside world, and repeated threats to drive her out of the matrimonial home, will all qualify as mental cruelty, especially so in the case of women who are stay-at-home housewives with no independent income of their own. Another very common reason for harassment is to call a woman a baanjh(infertile) or blame her for not producing a male child, a reflection of the pronounced son-preference in our society. Apart from these circumstances, the proverbial demand for dowry is ever present in Hindu marriages, and has now spread to other communities as well.
Section 498A includes cruelty by a husband’s relative, and although the word “relative” is not defined, it is obvious that the mother-in-law and the father-in-law would be included in this definition. Grandmothers and grandfathers of the husband, be they “bedridden”, are very much contemplated by the Section as being responsible for cruelty towards a married woman. Given that the primary form of living in most homes is a joint family this should not surprise anyone. Moreover, the pervasive domination of the mother over the son in most Indian households is also a phenomenon that the Court should have taken note of while delivering the judgment in Arnesh Kumar.
What is noteworthy, however, is that the cruelty by a husband or his relatives was made an offence punishable with imprisonment for a period of upto three years, and the offence was made cognisable. A cognisable offence is one for which an arrest can be made without a warrant from a magistrate. Ordinarily, offences punishable with imprisonment of less than seven years are non-cognisable, but if the legislature feels that an offence is sufficiently significant to curb a social evil, such offence is made cognisable even though punishable with imprisonment of less than seven years. Offences against women fall into this category. Outraging the modesty of a woman, using obscene words and gestures, and now, after the amendments to the IPC in 2013, voyeurism, stalking, acid attacks and sexual harassment are all cognisable offences, though punishable with less than seven years imprisonment.
In 1986, the IPC was once again amended to introduce Section 304B, which provided that if the death of a married woman occurs in unnatural circumstances within seven years of the marriage, and it is shown that just before her death she was treated with cruelty in relation to a demand for dowry, it shall be presumed that her husband or his relatives caused the death. We must appreciate that the two sections are part of a composite scheme; one is invoked before the woman dies and is preventive in nature (Section 489A), the other a­fter she is dead (Section 304B). Surely, the purpose of law must be to keep the woman alive, and if Section 498A were properly invoked at an appropriate time, we would not see the number of dowry deaths that we continue to see till this day.
Difficulties of Filing an FIR
While rendering the judgment in Arnesh Kumar, the Court ought to have been more conscious of the prevalence of domestic violence, and the difficulties women face in approaching the police. Filing a first information report (FIR) is indeed an ordeal as the police invariably try numerous techniques to avoid registering one, ranging from sermons to reconcile, to threatening the abuser – everything but filing a FIR! Hence, it is hard to imagine that the police are registering frivolous FIRs leading to acquittals. There is no reliable data on prevalence of domestic violence, and whatever data is available varies widely owing to the differences in research methodologies. The estimates from community-based studies vary from 18% to 70% while National Family Health Survey (NFHS)-3 indicates a lifetime prevalence rate of domestic violence to be 35% among women of reproductive age. The NFHS is a large survey conducted across India in a representative sample of households throughout the country and so, arguably, these rates are only the tip of the iceberg. According to NFHS-3 data, 25% of women experienced physical or sexual violence in the 12 months preceding the survey. Among those women who reported physical violence by their husbands, 36% experienced injuries in the form of cuts, bruises or aches, while 18% suffered from severe injuries in the form of sprains, dislocations, broken bones and severe burns.
As per the National Crime Records Bureau (NCRB), which is relied upon by the Court, in 2011 a total of 1,14,372 cases were registered under crimes against women in matrimonial homes. However, the estimate derived from NFHS-3 data indicates that in the same year there were at least 59 million women who experienced some form of physical or sexual violence in the preceding 12 months. As per NFHS, a mere 2% of these women may have sought police support, which translates into 2.8 million women. This number is 2.5 times more than what the NCRB reports.
This is evidence that a large number of women experiencing domestic violence are not reaching the police. Further evidence of reluctance on the part of women to register police complaints emerges from analysis of service records of a public hospital-based crisis intervention centre, Dilaasa.2 Of all the women registered at the centre between 2001 and 2010, a total of 1,675 married women were considered for the purpose of this analysis. The findings are illuminating:
• 47% of the women had sought police support against violence before coming to Dilaasa; of these, almost all had only registered a NC. Merely 2% had filed a FIR.
• 53% of the women had never gone to the police. Among women who did not seek police support, one-third had experienced violence for three to five years; 64% of them reported violence during pregnancy; 32% reported that they had attempted suicide in the past as a consequence of the ongoing abuse; 39% experienced physical violence in the form of pulling of hair and banging of head while 29% were abused by punching in the chest, face and abdomen.
Sexual violence was also experienced by 27% women in the form of forced sexual intercourse. Additionally, 26% of them were abused with instruments which include hitting with blunt and sharp objects, use of belt and inserting objects into vagina.
A Curious Phenomenon
Considering the severity of abuse reported by women, it is evident that these women may have sought treatment for the injuries caused but they had not filed a police complaint. The contact of these women with the hospital helped them to access a crisis intervention department for psychosocial services, thus underscoring the need for health systems to recognise domestic violence as a public health issue and offer services to them to mitigate consequences of violence.
Even in the case of dowry deaths, there is a discrepancy. The NCRB reports a sharp rise of 6.4% in dowry deaths from 2007 to 2012, when the figure stood at 4,946 deaths. But a study reported by The Lancet estimates over 1.63 lakh annual fire deaths in India, 2% of all deaths in the country. Of these, 1.06 lakh occur among young women. The authors conclude that death due to burns is not only behind most deaths among women between 15 and 34 years of age, the number is six times higher than the official national statistics in India, compiled by the NCRB.3
Yet in our courts we see a very curious phenomenon. Courts are quick to convict for dowry death. Our law reports are replete with cases of husbands and their family members convicted for dowry death under Section 304B. No court has ever suggested that the dead woman lied, or misused the law, as indeed the dead body is proof of the cruelty she faced when alive and dead women tell no lies. Judges, when convicting under Section 304B, are quick to condemn the institution of dowry and bemoan the fact that it exists till today. Yet when it comes to the invocation of Section 498A, the first suggestion is that “disgruntled wives” are misusing the law to put “bed-ridden grandfathers and grandmothers” behind bars. Hence the misuse of Section 498A consists of putting people behind bars. But is that not the essence of all crime? Are all cognisable offences not such that arrests are made for custodial interrogation?
How does one explain this concern of the courts for the dead and condemnation for the living? Could it be that dead women exercise no rights nor claim a right to reside in the shared household? And what does one understand by the expression “disgruntled wife”, a wife claiming her right to reside in the shared household?.. read more: