Author: Vidhik Kumar, IV Year of B.A.,LL.B(Criminal Law Hons), From National University of Study and Research in Law Ranchi.
Introduction
India witnesses the highest number of dowry-related deaths globally, and with the current prevailing situations due to the pandemic, women have become more vulnerable. Pandemic has witnessed a surge in domestic violence incidences, which have prompted the authorities to take domestic violence more seriously than ever. Previously, India adopted several measures to eradicate dowry related violence and to protect women from cruelty in households, and one such attempt was the insertion of section 498A in the Indian Penal Code (hereinafter IPC).
Section 498A of the IPC, along with other legislations, has done a remarkable job in providing protection to women in domestic settings, however various stakeholders have alleged that the section is being misused severely by women. Consequently, on the basis of statistical data published by the National Crime Records Bureau (hereinafter NCRB), the Supreme Court in Rajesh Sharma and Ors v. State of U.P. (hereinafter Rajesh Sharma) in 2017 laid down several guidelines to prevent misuse of the section, which howsoever the author believes to be based on erroneous finings and to have diluted the section to a great extent. This note henceforth attempts to analyze that how the statistics relied upon by the court were erroneous, and feeds into the false narrative of the section being misused. Furthermore, the note will analyze that how the guidelines laid down by the court are ineffective and defeats the object and the purpose of the section.
Feeding into the false narrative of the section being misused
The court in Rajesh Sharma relied upon the NCRB report of 2013 to come to a conclusion that indeed the section was being misused and required to be constrained, however, it becomes utmost necessary that the veracity of the data on which the court relied upon is determined.
The court in Rajesh Sharma observed that the NCRB statistics were worrying as out of a total number of 4,66,079 cases pending at the starting of the year 2013, only 7,258 resulted in a conviction, while 38,165 and 8,218 number of cases were acquitted and withdrawn respectively. Furthermore, the conviction rate in section 498A cases also appeared to be significantly low, that is at a meagre figure of 15.6%. Howsoever it becomes pertinent to observe that the statistics relied upon by the court does not bring out the complete or true picture of the disposal or conviction of section 498A cases.
The NCRB in its report calculates the conviction rate on the basis of the ratio of the total cases in the ‘convicted’ head with respect to the total cases of the ‘acquitted or discharged’ head. This though may appear prima facie to be harmless, becomes severely problematic if analyzed precisely especially in light of the kind of cases that are put under each of the categories. Under the Code of Criminal Procedure (hereinafter CRPC), the regular procedure of law is that the trial against an accused begins only after the police have completed its investigation and have filed the final charge sheet under section 173 of the CRPC. However, under section 239 and section 227 of the CRPC, an accused can be discharged by a magistrate before charges against him are framed. The section mandates that a magistrate upon due consideration of the reports and documents bring forth by the police or the examination of the accused, and after hearing both the sides believes that the charges against the accused have been devoid of any grounds, he may discharge the accused after recording reasons to reach such a conclusion.
In order to ascertain that the grounds are adequate to prosecute an accused, the court determines that whether the material placed on record, if un-rebutted, will be adequate to result in the conviction of the accused. However, it also becomes pertinent to note that the discharge of an accused does not imply that he might not have committed the act, or the complaint filed against him was frivolous. The discharge of an accused under section 227 of the CRPC happens solely due to the insufficiency of materials collected by police during the investigation, or inadequate investigation. Also, an accused, is not devolved of all the charges immediately, acquittal happens only after the innocence of the accused is established beyond a reasonable doubt on the completion of a full inquiry.
This difference between the terms though may appear to be insignificant and bleak in other crimes, holds significant importance in cases of domestic violence and cruelty committed against women in households due to the extreme private setting of the crime. The majority of domestic violence and cruelty incidences occur within the private walls of a house, which makes the collection of evidence an extremely difficult task. Therefore, it cannot be presumed on the basis of discharge of an accused that the complaint filed against him was frivolous.
Furthermore, what needs to be considered is the total number of cases that were withdrawn or settled by the parties in the NCRB statistics, which is a total of 8,218 cases. It becomes pertinent to observe that although section 498A is a non-compoundable offence, the Indian courts in a plethora of judgments have stated to allow parties to reach an ‘amicable’ settlement, irrespective of the non-compoundable nature of the section.
The settlement between the parties must be an ‘amicable’ one, without any discord or disagreement, and where such a settlement is reached the Court may quash the proceedings if it believes that such a settlement would substantially reduce the probability of accused’s conviction, and the continuation of proceedings would expose him to extreme injustice or oppression, which ultimately would defeat the ends of justice.
Also, some cases are settled even before a trial could begin in a court, take for instance in police stations, women cells, mediation cells, etc. Since family and marriage holds a significant value in the Indian Society, women in these cases are often pressurized and manipulated to withdraw cases and often are also shamed for pursuing a legal action, by the police and other authorities, argues Donna Fernandez. Henceforth the conviction rate or other statistics relied upon by the court cannot be considered to present a true picture of the section being misused.
The Guidelines: Defeating the object of the Section
The Supreme Court in Rajesh Sharma, with an aim to prevent misuse of the section laid down a guideline, for the formulation of a family welfare committee in every district of India, whose task would be to investigate the complaint made to the police under section 498-A, and submit a report on the same to the police within one month. The court further declared for the police to make no arrest before the report by the committee is submitted to them, which becomes severely problematic due to the extremely interpersonal nature of the crime.
Such a guideline not only provides the accused a chance to flee, but also to manipulate the evidence (which already remains extremely difficult to be gathered due to the private and personal setting of the crime) as well the victim to withdraw the case (which becomes extremely easy especially in the Indian Society). It was only due to the severe nature of the cruelty and the abovementioned possibilities, that section 498A was made a cognizable offence, however, such a guideline has indirectly transformed it into a non-cognizable offence. Furthermore, what remains imprecise is the composition of such a committee. The court state that the members of the committee may include para legal volunteers, social workers, retired officers, and other suitable citizens, who may from time to time be provided, required minimum training. It becomes pertinent to note that the functions that the committee will undertake include counselling of couples, determining the veracity of the complaints, and submitting a report regarding the same within one month. However, what has been overlooked is that such functions require an exhaustive amount of knowledge and training, and a direction of minimum sufficient training from time to time seems ways too casual. Also since it is not mandatory for the committee to have a person of legal knowledge or retired from police services, it remains doubtful that whether the committee will be able to effectively determine the veracity of the complaints within a short period of one month.
The guideline formulated by the court in Rajesh Sharma has apparently made changes to section 498A and such changes can be said to be justified only if the object for which it was enacted, which was for improving the conditions of women, has been fulfilled. It becomes pertinent to note that the situation concerning women has not changed much in India, take for instances: 52% of woman and 42% of men in India agreed with one or more reasons for wife-beating such as leaving the house without permission, neglecting the kids, neglecting the house, arguing with husband, etc.; India has been categorized as the world’s most dangerous place for women; India was ranked at 133rd position out of 167 countries Women, Peace and Security Index; the labor force participation of women in India remain at a staggering figure of only 28.5%; in comparison to men women receive 30% less remuneration for an equal amount of work; 22 women are killed every day due to dowry in India; the gender gap is at 67% and 80% of working women has been a victim of domestic violence at the hands of their husbands.
These trends depict that women continue to suffer at the hands of the patriarchal Indian society, and laying down such guidelines strips them off from the protection of section 498A, and thus diluting section 498A is as good as abrogating it. Furthermore, the possibility of section 498A being misused by few women cannot be completely ruled out, which however could have been tackled by the court or the legislature by increasing the punishment for filing frivolous complaints instead of diluting the section.