Home Ministry on Section 498-A: Justice in the times of 'disgruntled wives'

The Home Ministry has advised state governments that Section 498-A is being misused and therefore, arrests under this section should be undertaken only after due investigation. Such an advisory evokes two immediate responses. First, for people who work in the area of gender violence awareness, 'laws will be abused' is a canard encountered regularly, no matter what the law in question. So you are not surprised. 

Second, shouldn’t proper investigation precede any arrest? Shouldn’t this go without saying? The advisory seems redundant on that score. A third reaction is to the language supposedly used in the order, especially the reference to 'disgruntled wives.' What kind of government writes an advisory order in language like this?
 
In college training programmes, young girls say to us: Women falsely accuse their husbands of cruelty. We ask them to estimate how often they think this happens. The estimates vary from 10 to 60%.
 
We ask: How often are you harassed on the road? 
The answer: Everyday.
How many times have you complained? 
The usual answer: Zero. 
Why? The reasons are ready. They are unsure of themselves, even less sure of a sympathetic and easy police interaction. They are afraid of what their families will say. They fear reprisal by the harasser. 
We ask: If it is so hard to file a street sexual harassment, why do you imagine that filing a domestic violence complaint will be an easier decision? After all, it involves that holiest of Indian holies—the extended family.
 
Are false complaints filed? Yes, of course. And men and families suffer greatly when it happens. There are statistics compiled by men’s rights organisations but like all statistics in this area are merely indicative and not authoritative. The anguish they express suggests there is a problem, but the government advisory suggests, like our students, that the problem is in the existence of a law meant to protect women from cruelty.
 
To put this in perspective, we have to ask two questions.
 
First, how easy is it to file a case against your husband and family? There are three factors at play here. The woman has to be emotionally ready to say, this is more than I can bear and I have had enough. She has to know there are safe places she can go and that she can rebuild her life. And when she goes to the police station, she should be sure that her complaint will be taken seriously.
 
The last round of the National Family Health Survey (2005) found that 40% of women who had ever been married had experienced violence. This violence ranges from being slapped to coerced sex to other physical hurt like being pushed or having your arms twisted. But only one in four women surveyed have sought help to end the violence and hardly any of them, sought it from the police or NGOs.
 
That last is not surprising because gender sensitisation notwithstanding, what one hears from lawyers and activists who do counsel cases of violence is that the instinct in police stations seems to be to counsel adjustment or reconciliation. The law sets out to protect women, but those who enforce the law reflect society’s own preference for protecting existing (power) relationships. When all structures work together to deter a genuine complainant, the assumption that most cases are mischievous and filed by ‘disgruntled’ women seems specious.
 
Second, what is our track record on compliance with any law? Let us be completely honest with ourselves: “jugaad” begins first with our exploration of loopholes in law and regulation and then ends (accidentally? coincidentally?) with innovation. We violate traffic rules and regulations about spitting. We evade taxes of all sorts with a sense of entitlement. We complain about courts dragging out cases but also seek stays and adjournments to suit our convenience. We do not obey housing society regulations and we violate corporation construction rules. Really, what gives any of us the right to occupy the moral high ground on the abuse of law? Moreover, why is use/abuse only ever an issue when it comes to laws meant to protect women or empower women?
 
We worry so much about men and their welfare. Will their egos be hurt if women are successful in careers outside the home? How can women manage their lives so they can have all they want without hurting their husbands and families? Girls these days are so confident, how will their husbands feel? If there is a workplace sexual harassment training, time and again we discuss the possibility of false accusation. Women bend over backwards to reassure men: “Of course, some men are different”; “Present company excluded”; “It’s not personal.”
 
Moreover, this official advisory points to an alarming trend. This government started with making the right noises about women’s safety. The PM’s speech on Independence Day asked the kind of question feminists would want someone to ask: Do you know where your son is? But this advisory points in the opposite direction. It tells us that women are not experiencing daily harassment and violence; they are “disgruntled.” They are resentful of having to pay dowry; it is not wrong, it is just that they are “disgruntled.” Emotional creatures, full of spite and acting on bitter impulse, we should watch out because they are likely to file cases in a fit of anger. They are after all, “disgruntled.” So listen to them, be indulgent, but do not arrest until you can approve of their “disgruntlement.”
 
Further down this road lie other stale notions: woman as scheming seductress or ‘vamp;’ sexual harassment and stalking as seduction; women as embodiments of community and family honour; and the goddess-woman as long-suffering and eternally adjusting. And all these women threaten a very patriarchal social and political order, whose presiding deity is an all-knowing, all-seeing and all-powerful man, who must be appeased and also, quite ironically, protected from the women around him.
 
Here is the main point though: There are problems with every law; there are always those who will abuse a given law, and these will always be exceptions. The counter to this is not to dispense with all laws or to caution law enforcement to the point that you say, don’t enforce this law to the letter or you will be punished. The counter to it is to craft a better law if necessary; to teach end-users about the law and when it is to be used; and to teach law enforcement what the spirit and the letter of the law are so that they can be sensitive and intelligent in their work. The objective of Section 498A is to protect women from cruelty at the hands of their families and to punish offending families. Let us learn when it can be used and when not, rather than make it available but restrict the police from its enforcement.
 
Swarna Rajagopalan is a political scientist by training, founder of The Prajnya Trust (http://www.prajnya.in), Chennai and most definitely, disgruntled.