Balancing equities

As a civil libertarian and a lawyer attached to the Delhi High Court Legal Services Authority, representing undertrials in Tihar jail, I cannot but welcome the recent judgment of the Supreme Court. The judgment directs the police not to arrest the accused in cases where the alleged offence carries a sentence of 7 years, unless they meet the criteria laid out in Section 41 of the Criminal Procedure Code, such as posing a threat to society or the victim, likely to tamper with evidence and so forth. It has become far too common a practice in our country to acquit people charged with offences for which they have already served long sentences. There is no recompense or compensation for this deprivation of liberty. 

However, the part of this recent landmark judgment that I, with utmost respect find highly objectionable as a woman and a lawyer practicing at the family court, is the Court's following observation: “The fact that Section 498A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision". 

The sweeping generalisation that most women that register complaints under Section 498A of the Indian Penal Code, are disgruntled wives bent on vengeance, denies the reality of our archaic personal laws and frustratingly slow and apathetic family courts. With no realistic way of getting maintenance from the civil court, women are forced to take recourse to criminal law. This option is preferred for several reasons.

First, to make a complaint in the Crimes Against Women’s cell you do not need a lawyer. Most women in domestic violence situations can't pay a lawyer's exorbitant fees.  Regardless of the Hon’ble Supreme Court supervision of the National Legal Services Authority, most legal aid lawyers lack the facilities and training to meet the challenge of expensive lawyers that most working men can afford. 

Further, the construction of the family court lacks the facility of anyone  approaching it for a settlement without a lawyer. Given that in India a lot of people have cash income or black money, it is close to impossible for a woman to discharge the burden of evidence that would entitle her to a fair maintenance for herself and her children in a civil court. However, the fear of imprisonment, somehow makes men come clean on their income.  Under the Hindu Marriage Act, getting a divorce is close to impossible on the mere grounds of mental cruelty. But making a police complaint makes even a husband holding onto his wife as a punching bag more ready to grant her a divorce. 

Most Muslim women have no recourse to courts except under the domestic violence act because Muslim Personal Law is not adequately codified. Most Family Court judges have very little training or idea about Muslim Personal Law. 

 Even after surmounting these hurdles, the speed and apathy with which the family courts function embroil women in five years of litigation that ends in a compromise. The court would have done better by acknowledging this ground reality that compels women to resort to criminal law. 

 In my respectful opinion the Hon’ble Supreme Court, in its judgment, has also jumped to the conclusion based on the statistics that charge-sheeting in cases under Section 498A of IPC is as high as 93.6%.

While the conviction rate is only 15%. And that most cases lead to acquittal for lack of evidence. A closer look at the cases will reveal that most cases get settled because most women are not “ disgruntled wives” looking for vengeance but just ordinary women and mothers looking for financial security. 

I do not deny the existence of some cases of abuse by well-educated, well-to-do women, driven by vengeance. But here again the existence of a comprehensive matrimonial law facilitating divorce on the grounds of irretrievable breakdown of marriage and based on a quick financial settlement of 50% of the marital assets, could have prevented such abuse.   

From a different perspective, surely 498A is not the only misused IPC provision? Section 420 of the IPC criminalising cheating too, is rampantly misused to settle scores, not only by individuals but by large corporates. I have never seen any Supreme Court judgment declaring that Section 420 as a cognisable and non-bailable offence has been used as a weapon rather than shield by disgruntled corporates seeking vengeance against their competitors.The fact that the courts can cast aspersions and use harsh language in legal  provisions  pertaining to women unfortunately seems to reflect a misogynist or at least patriarchal mindset. This is not the first time that Judges of the Supreme Court have used such harsh language to describe women, I still recall the outrage expressed by Indira Jaisingh (Former Additional Solicitor General) when Justice Katju (Retired) had used the word “keep” to describe a woman in a relationship with a married man.

One cannot lose sight of the historical context, that led to the criminalisation of cruelty to a wife under 498A and dowry death under 304B of the Indian Penal Code in the 1980’s. That was when the front page of every paper was routinely reporting the horrific killing of young women, commonly known as bride burning. 

The latest judgment of the Supreme Court reflects that the unwarranted harassment of a husband and in-laws and denial of their liberty has irked the Hon’ble Supreme Court. But somewhere the value of a woman’s life, her liberty and dignity has not been held in equal balance. Probably this is because in our country, the life and liberty of all citizens is not equally valued not only by the police but also by the courts. While the poor who are accused of crimes are more easily arrested and less likely to get bail, the rich are dealt with respect and compassion. One hopes that at least the direction of this landmark judgment will benefit that section of the accused who have hitherto spent seven years in jail for petty offences. And who are still waiting for their trials to conclude.  

The author is a practicing lawyer at the Delhi High Court