This article has been written by Rudrakshi Sharma.
Can you imagine a stringent law that was formed in order to deterrent crime but instead caused great injustice? Well, no matter how hard it is for you to imagine, it is true. The relationship between strictness of law and crime is a broader concept as it appears but loopholes can be found within these broad concepts. Sometimes the parliament and the authorities are under the immense pressure of changing existing laws or bringing new laws that proper analysis of the situation is ignored.
There has been a lot of struggle in order to establish safety for women. Still, the problem is there. Why? There are loopholes in every order of laws formed. The implementation process of the laws is hindered by many forces. The process is harsh in reality, ironically for women. There have been many instances of public outrage in this matter but it seems nothing has changed. The most difficult and complicated part of bringing change is the beginning. You cannot afford to mess that up. However, the approach towards the issue of women’s safety has always been defensive rather than being preventive. To put it in simple words, we needed to find a way in which we could stop the rape culture and what we did is victimize our women. We had to make sure that crime against women didn’t happen and we found out what to do if that happens.
In order to bring equality, we made the gender division even worse. As we mentioned before, only making strict laws will not ensure minimal crime. The laws formed in order to “protect” women are now a threat to men. Increasing misuse of laws put the men in a helpless situation and other women in terrible misunderstandings. The worst part is there are no laws or situations which can help us right now.
Further, we discuss two closely linked issues but before that, we would like to make you understand that no issue is a particular gender issue. An issue affects each and every person who lives regardless of their age or gender. Topics like domestic violence and dowry are associated with each other. These issues have been in the public’s concern for a very long time and we here are throwing light to its legal vision.
According to the United Nations, domestic abuse or violence means a relationship in which a pattern of behaviour is used to gain power or dominance over an intimate partner. Abuse can be physical, economical, sexual, emotional or psychological. Also, a dominative behaviour includes any act which frightens, hurts, humiliates, terrorizes, injures, blames or wounds someone. It can happen to anyone irrespective of race, gender, age or sexual orientation. It is clearly stated by the UN that any person can be the victim of domestic violence.
In India, we do not consider men to be the victims of domestic violence. Though in different cases, respected courts have ruled that cruelty against men is a valid ground for divorce, but they do not consider it to be domestic abuse. In cases such as Sanjay Yadav v. Anita Yadav, Bombay High Court ruled in favour of the husband and granted divorce on the grounds of cruelty but the wife’s act did not amount to domestic abuse which it would have if the scenario was opposite.
According to the report of the National Crime Records Bureau, in 2019, women faced domestic violence more than any other form of crime against women. The report lays down that out of 4.05 lakhs reported crimes against women, 1.26 lakh i.e., almost 30%, were that of domestic violence. The highest number of cases were reported from Rajasthan followed by Uttar Pradesh. It is unfortunate that the situation was no better in 2018. With only slight change in numbers, the situation of women was the same with respect to domestic violence. The situation seemed to change in 2020 but only towards the worst positions.
Amid COVID-19 related lockdown the cases reported of domestic violence, within a period, were the highest of all times. In the span of March 25 and May 31, 1477 cases were reported by the women against their husbands or family members. The acutest part is that 86% of women do not seek help and 77% of women do not even mention the incident to someone.
As we do not have a proper legal framework for protecting men against domestic violence, we do not even have adequate and reliable data which can be presented. In fact, there is no data of cases being reported. There are many stereotypical, emotional and psychological reasons due to which men do not report such cases.
Indian laws on the matter
The first-ever law to define “domestic violence” in India was the Protection of Women from Domestic Violence Act, 2005. It is a parliamentary act which came into force by October 26. This act made the purview of “violence” bigger. It included verbal, sexual, social and economic violence with physical violence. Section 3 of the Act defines the term “domestic violence” as “any act of commission or omission or conduct of the respondent shall constitute domestic violence in case it:
- Harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or
- Harasses harms injures or endangers the aggrieved person to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or
- Has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or
- otherwise injures or causes harm, whether physical or mental, to the aggrieved person.
The act defines the terms “physical abuse”, “Sexual abuse”, “emotional and verbal abuse” and “economical abuse” for further clarification.
In most of the cultures which are more patrilineal, they expect the wife to live with or near her husband’s family. Dowries have a long history in Africa, Europe and South Asia. Dowry is defined, in simple words, as any form of money, goods or estate that a woman brings at the time of marriage to her husband’s house.
In India, the issue of dowry has prevailed for a very long time now. There are constant changes that are brought up in the laws. Many people work day and night to spread awareness among society. Though the situation has enhanced but has not yet been entirely resolved. According to law, it is illegal to ask or give dowry but does that mean anything given in the form of gifts would amount to dowry? No, absolutely not.
There is a thin line difference between gifts given under pressure and gifts given out of good faith, and luckily, we don’t have to use the same word for both of them. Gifts given under pressure, abuse or in a form of agreement for wedding amounts to dowry but gifts given in good faith, without any undue-influence are treated as streedhan.
It includes any form of gift or valuables that are only given to the bride. Streedhan is also in accordance with the Hindu Succession Act, 1956. The husband or his relatives can be held liable in case they deny to return this when the time comes under Section 405 and 406 of Indian Penal Code.
Even the courts have ensured that no woman should be denied her right over Streedhan. In Pratibha Rani vs. Suraj Kumar case, the honourable Supreme court held that a woman has every right over her Streedhan. A similar case came into the chambers of Punjab and Haryana High Court. In the case of Bhai Sher Jang Singh vs Smt. Virinder Kaur the court ruled in favour of the wife and held the husband liable under Section 406 i.e., criminal breach of trust.
Indian laws on the matter
Section 2 of the Dowry Prohibition Act, 1961 defines the term dowry as “any property or valuable security given or agreed to give, directly or indirectly.” This can be given by a party to the other party of the marriage or by the parent of one party to other party or family of the other party of marriage, at or before or after marriage at any point. Dower or mahr is not included as dowry in case the person’s marriage falls under Muslim Personal Law (Shariat) Application Act, 1937.
Section 3 of the Act makes accepting as well as giving dowry an offence. This means if the bride’s family demands dowry and the bridegroom’s family agrees to it, then both parties will be held liable under this Act.
The person may get imprisonment up to five years and a fine of not less than fifteen thousand or the amount of dowry whichever is more.
Section 4 of the Act deals with the punishment for demanding dowry. Any person who directly or indirectly demands dowry from parents, relatives or guardians of the bride or bridegroom shall be held liable and punished with imprisonment of a minimum of six months to a maximum of two years and the fine may extend to ten thousand rupees.
In Pandurang Shivram Kawathkar v. the State of Maharashtra, the Supreme Court held that merely demand without any exchange of dowry amounts to an offence under Section 4 of the Dowry Prohibition Act.
In another case of Bhoora Singh v. State of Uttar Pradesh, a wife was being ill-treated and even set on fire. She wrote letters to her father explaining her condition and mentioning her in-laws’ demands for dowry. The court held that the husband and his family members were liable under Section 4 of the Act.
Indian Penal Code, 1860 (IPC)
Section 304(B) of IPC deals with matters of dowry deaths. If a wife dies within seven years of the marriage with any burns or bodily injury or occurs otherwise under normal circumstances and it is shown that she was subjected to cruelty or harassment by her husband or any relative of her husband or in connection with, for any demand of dowry, such death will be considered as ‘dowry death’ and such husband or relative or connection of her husband shall be deemed liable. They can be punished for imprisonment for seven years which may extend to imprisonment for life.
The definition of “dowry” for this subsection shall be the same as given by Section 2 of the Dowry Prohibition Act, 1961.
Section 113(B) of the Indian Evidence Act, 1872 covers presumption with regards to dowry death. When it is questioned whether a person has committed the dowry death of a woman but it is shown that she was subjected to cruelty or harassment for, or in connection with, any demand for dowry, soon before her death, the court shall presume that such person is the reason for her death. The definition of ‘dowry death’ is as mentioned in section 304 (B) of the IPC.
Section 498 (A) of IPC deals with the following:
- Any willful conduct which forces the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman; or
- Harassment of women with a view of coercing them to any person related to her to meet any unlawful demand for any property or any valuable security or is on account of her failure by her or any person related to her to meet any demands.
Under this Section, a married woman can file a complaint against her husband or in-laws or any person connected to them when she suffers cruelty at their hands. For this, it is necessary to understand what kinds of cruelty are covered:
- Cruelty by vexatious litigation.
- Cruelty by deprivation and wasteful habits.
- Cruelty by persistent demand.
- Cruelty by extra-marital relations.
- Harassment for non- dowry demand.
- Cruelty by non-acceptance of girl child.
- Cruelty by false attacks on chastity.
- Taking away children.
Misuse of laws by women
In such cases, a mere complaint of a woman is enough to arrest the husband or his relatives. It is a non-bailable cognizable offence and many women take advantage of the situation. The National Crime Records Bureau statistics show that 200,000 people were arrested in regard to dowry offences in 2012 but only 15% of the accused were convicted.
No matter how hard it is for you to believe but even the men of our country are harassed and mentally tortured. In cases such as Dr. N.G. Dastane v. Mrs. S. Dastane, 1975 , we can see the evident misuse of laws by women in order to torture their husbands. Women should understand that they cannot use such laws for their own selfish benefit. After all, many women have suffered and lost their life’s in order to have such provisions.
There are always two sides to a coin. We agree that women have come a long way and still have a long way to cover but that doesn’t mean necessarily we have to deepen the gender divide. Domestic violence and abuse are a curse to the society and people who do that are nothing but parasites but if you misuse these against an innocent man, you are no better than them.
We know how to raise our voices but what we don’t know is what to say when we raise our voices. For a start, stop accusing others for your miseries and start taking a stand. Shouting and protesting to change laws is going to do no good to anybody. We already have enough laws and now what we have to ensure is fair implication and usage of such laws. Stop victimizing one gender or community.
The roots of such offences dig deep down in the grounds but are not stronger than your will. We have ensured full legal support to the victims of such offences but now we have to ensure there may not be more victims anymore. There are trivial but revolutionary changes that are needed to be brought about not through laws, but in the society at large. Remember laws are for the society and of the society.
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