IPC 498A: A Critical Analysis

"Some women are indeed better (than men). Bring her up, O Lord of men. There are women who are wise, virtuous, who have high regard for mother-in-law, and who are chaste. To such noble wife may be born a valiant son, a Lord of Realms, who will rule a kingdom."

Status of Women In Ancient And Medieval India

Rise up woman,"
In ancient India, women occupied a very important position, In fact, a superior position, to men. "Sakthi" a feminine term means "power" and "strength". All male power comes from the feminine. Literary evidence suggests that kings and towns were destroyed because the rulers troubled a single woman.
In Vedic times women and men were equal in many aspects. Women participated in the public sacrifices alongside men. One script mentions a female rishi Visvara. Some Vedic hymns, are attributed to women such as Apala, the daughter of Atri, Ghosa, the daughter of Kaksivant or Indrani, the wife of Indra. Hindu religion has been occasionally criticized as encouraging inequality between men and women, towards the detriment of Hindu women. This presumption is inaccurate. Hindu women enjoyed rights of property from the Vedic Age, took a share in social and religious rites, and were sometimes distinguished by their learning. There was no seclusion of women in India in ancient times.

Women were made eligible for admission to what was known as the Bhikshuni-Sangha, the Order of Nuns, which opened to them avenues of culture and social service and ample opportunities for public life.

Women must be honored and adorned by their father, brothers, husbands, and brother-in-law who desire great good fortune. Where women, verily are honored, there the gods rejoice; where, however, they are not honored, there all sacred rites prove fruitless. Where the female relations live in grief, that family soon perishes completely; where, however, they do not suffer from any grievance that family always prospers.

The status of women in any civilization shows the stage of evolution at which, the civilization has arrived. The term 'status' includes not only personal and proprietary rights but also duties, liabilities and disabilities. In the case of a Indian woman, it means her personal rights, proprietary rights, her duties, liabilities and disabilities vis-a-vis the society and her family members.

With regard to the status of women in Indian society at large, no nation has held their women in higher esteem than the Hindus. Perhaps, no other literature has presented a more admirable type of woman character than Sita, Maitriya, Gargi. The Indian civilization has produced great women ranging from Braham vadinis (lady Rishl) to states woman, from ideal wife to warrior queen. It dates back to thousands of years. Hindu mythology witnesses that the status of Hindu woman during the vedic period was honourable & respectable.

Now that we are no more under aggression or invasion, we should allow the women community to regain their power, fame and name. It is we, who made Indira Gandhi, a woman as the prime Minister. It is we who placed the Mother before the Father in priority for reverence? Matr devo bhava was the first Upanishad exhortation to the young. Hinduism is the only religion whose symbolism places the Feminine on a par with the Masculine in the profound concept of Siva-Sakthi culminating in the image of Ardharnari-Isvara. We have honored our country as our Motherland "Bharat Mata" and our nationalism has grown up from the seed Mantra "Vande Mataram".

To analyze the impact of Islam on the status of women we have to look at the immediate pre-Islam Meccan society. It was tribal but had an active mercantile class The prophet's first wife was a businesswoman; the prophet had actually been her employee. The first Umayyad ruler's (Muaviya) mother Hinda actually controlled her clan and incited them to fight against Muslims. Women used to openly propose to men. Infact when the prophet accompanied by his uncle, was going to visit his future wife Bibi Khatija to propose to her, a woman stopped him on the way and offered him a hundred camels if he would marry her. "From affection springs grief, From affection springs fear, For one who is wholly free from affection, There is no grief, much less fear."

One would expect that in medieval times women were almost like domesticated pets caged in the house, considering all the equality and libertarian movements the mankind has gone though. Lawmaker Manu's oft-quoted statement that women are not worthy of freedom strengthens this expectation. However, the inscriptions, literary sources and sculptures of the period give an astonishingly different picture of status of women in South India in medieval times. It is evident from an inscripture of 1187 A.D. that the Jain nuns enjoyed the same amount of freedom as their male counterparts. There were female trustees, priestesses, philanthropists, musicians and scholars.

Bondmaids And Working Women

All menial tasks like cleaning in temples and private households were undertaken by bondmaids whose position was not high in the society. The saint-poet Basaveshwara tried to better their lot and that of their children by declaring that after initiation into Veerashaivism, the latter were to be considered holy and duly honored. In addition to their household duties, women gave a helping hand to their men in their vocations. The occupation of a nurse (dhatri) was quite common. Women also worked in fields.

Institution Of Marriage

Marriage was compulsory for all the girls except for those opted for asceticism. Brahman girls were married between ages 8 and 10 from sixth or century onwards up to the modern times. Polygamy was permitted to all who could afford and it was especially popular among Kshatriaysa for political reasons. According to Mansasollsa, the king should marry a Kshatria girl of noble birth for a chief queen though he is permitted to have Vaisya or Sudra wives for pleasure.

Sati or Sahagamana

Sati was prevalent among certain classes of women, who either took the vow or deemed it a great honor to die on the funeral pyres of their husbands. Ibn Batuta observed that Sati was considered praiseworthy by the Hindus, without however being obligatory. The Agni Purana declares that the woman who commits sahagamana goes to heaven and Medhatiti pronounced that Sati was like suicide and was against the Shastras. In an age of such divergent views, women of the Deccan followed a middle path. They were not coerced, although several wives committed Sati. The majority of the widows did not undergo Sati. (see: Love Duty or Sacrifice)

Widows

Alberuni writes that Indian women preferred self immolation by Sati to the suffering of life of a widow. Ibn Batuta also felt that the plight of widows was miserable. A widow was considered an inauspicious person and was prohibited from wearing colorful clothes, ornaments, decorate hair, as is seen from descriptions in literature.

A few women of the time who despised their husbands, attracted other men by wanton behaviors. A sculpture in Bhatkal depicts a case of a woman's infidelity. A husband catches the paramour of his wife red-handed and is about to punish him.

Position of women before independence

The Conflict of Women in 20th Century India Throughout recorded history, women the world over have been held to different standards than men. They have been consistently oppressed in nearly all aspects of life, from political to personal, pulic to private. In the 20th century, great strides have been taken to end this oppression and level the playing field.

To understand the position women found themselves in at the dawn of the 20th century, one must have a general understanding of the numerous historical women's conflicts unique to the Subcontinent. It took the overwhelming success of Gandhi's nonviolent revolution to unite women politically and create the an atmosphere whereby women, empowered by the times, could take a stand for their equality. The 1970's saw the beginning of a highly organized modern women's movement in India. Violence against women was one of the main focuses of the movement. Harassment, wife-beating, rape, and dowry deaths were all too common, and police enforcement was ineffective as were most attempts at prosecution. Commonly called atrocities against women, these acts occurred frequently.

A converted Christian upon her return to India, Ramabia opened schools for high caste women. This effort, in conjunction with various projects Ramabia worked on for women, was far ahead of its time and it would take nearly a century before women would tightly bind together to formally resist oppression. Early in the 20th century women were forbidden to protest their condition or even to congregate to discuss the matter. This was a right even the lowest cast males, the untouchables, was bestowed. It was a common belief at the time, that free women would inevitably come to neglect their marital responsibilities. The Indian National Congress, led by Gandhi, was one of the first political organizations to actively include woman, even women formally in Purdah.

The population base of this movement was the rural and the toiling. This was important because the women of this group were already organized, although not all of these organizations with this base turned their focus toward feminist causes. 1974 was a pivotal year for the movement. Not only did it see the founding of POW (the Progressive Organization of Women), but it was the year that the official Status of Women Commission published their report, Towards Equality, on women's low and ever decreasing status in Indian society. This paper would add much fuel to the impending fire and validate it to the mainstream population. There were large conferences in Pune and Trivandrum in 1975 on women's issues further bringing the movement into the mainstream. Many autonomous groups popped up with different agendas and issues.

498 A and Status of Women

Section 498A of the Indian Penal Code (IPC), which defines the offence of matrimonial cruelty, was inserted into the IPC by an amendment in 1983. Offenders are liable for imprisonment as well as a fine under the section and the offence is non bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim or by designated relatives. Article 498 A passed by Indian Parliament in 1983, Indian Penal Code 498A, is a criminal law (not a civil law) which is defined as follows, "Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offence is Cognizable, non-compoundable and non-bailable.

The section provides an explanation that elaborates the meaning of cruelty as follows:
a) Any wilful conduct which is of a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb, or health (whether physical or mental) of the woman; or

b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand."

498a can only be invoked by wife/daughter-in-law or her relative. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage. In most cases 498a complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. This section is non-bailable(you have to appear in court and get bail from the judge), non-compoundable (complaint can't be withdrawn) and cognizable (arrests without investigation or warrants)

Section 498A: Some Significant Problems

Any critical analysis of Sec 498A would be incomplete without understanding the history of criminal law reform in India. The demand for criminal law reform came about because of the large number of women that were dying in their matrimonial homes due to dowry-related harassment. Therefore, the initial demand was for a law to prevent only dowry related violence. Sec 498A was thus introduced in the IPC in 1983 closely followed by Sec 304B which defined the special offence of dowry-related death of a woman in 1986 and the related amendments in the Indian Evidence Act 1872. It is believed that Sec 498A and Sec 304B were introduced to complement each other and be part of a scheme, since Sec 304B addresses the particular offence of dowry death and Sec 498A sought to address the wide-scale violence against married women for dowry. 3

Protection Only for Married Women

Since the important campaign issue for feminist groups was dowry-related harassment, all violence faced by women within homes was attributed to dowry both by activists and by the state [Agnes 1998]. This resulted in their articulating a demand for a law on domestic violence only for married women.

The IPC was thus amended in 1983 and Sec 498A was added. It reads as follows:
Sec 498A: Husband or relative of husband of a woman subjecting her to cruelty.
Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a fine.

Explanation – for the purpose of this section, "cruelty" means:
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

Sec 498A and the Allegation of Misuse

In the last 20 years of criminal law reform a common argument made against laws relating to violence against women in India has been that women misuse these laws. The police, civil society, politicians and even judges of the High Courts and Supreme Court have offered these arguments of the "misuse' of laws vehemently. The allegation of misuse is made particularly against Sec 498A of the IPC, and against the offence of dowry death in Sec 304B. One such view was expressed by former Justice K T Thomas in his article titled 'Women and the Law', which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a "general complaint" that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused. It is important therefore that such "arguments" are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women.

Domestic violence and abuse by spouses and family members are complex behaviours and the social organisation of courts, the police and legal cultures systematically tend to devalue domestic violence cases. Sec 498A was introduced in the IPC in 1983 and the reforms of the past 20 years have not been adequately evaluated at all by the government with respect to their deterrence goals, despite the institutionalization of law and policy to criminalise domestic violence. A programme of research and development is urgently required to advance the current state of knowledge on the effects of legal sanctions on domestic violence. The narrow or perhaps almost negligible study done by law enforcement agencies about the deterrent effects of legal sanctions for domestic violence stands in high contrast with the extensive efforts of activists, victim advocates and criminal justice practitioners in mobilising law and shaping policy to stop domestic violence. It is important to do these studies to correct the general misconceptions that women are misusing the law by filing false cases against their husbands and in-laws in order to harass them and get them convicted. The perspective of the state and its agencies needs to change from that of protecting the husbands and in-laws against potential "misuse" of the laws of domestic violence to that of implementing their real purpose – to recognise that such violence is a crime and protect women who have the courage to file complaints against their abusers.

Criminal law on domestic violence

On June 23, 2005 the cabinet approved the Protection of Women from Domestic Violence Bill, 2005, after which it received assent from Parliament. This approval brings to fore a new civil law on domestic violence, which provides immediate emergency remedies for women facing violence such as protection orders, non-molestation orders, the right to reside in the shared household, etc. At this crucial juncture it is important that we re-examine the historical background of these law reforms, and the existing criminal law provisions against domestic violence mainly Section 498A of the Indian Penal Code (IPC) to understand why a coordinated approach including civil and criminal law remedies is needed to address violence against women within the home.

Domestic violence has since 1983 been recognised as a crime and also constitutes a considerable part of the workload of police, prosecutors and the courts. Few would claim however that the criminal law alone can solve the problem of domestic violence,1 which laid the foundation for the demand of a civil law to protect women and children. It is nonetheless legitimate to ask what the task of the criminal law should be in this sphere and to examine how far it is currently successful in carrying out that task.

Article 15 of Indian constitution

Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. However, it allows special provisions for women and children. Article 21A provides for free and compulsory education to all children from the ages of six to 14 years. Article 24 prohibits employment of children below 14 years in mines, factories or any other hazardous employment. The court also took note of Article 14 guaranteeing equality, and Article 21 providing that a person cannot be deprived of life and liberty except according to procedure established by the law. Similarly, Article 23 prohibiting human trafficking and forced labour was also referred to in the court's judgment.

Moving away from fundamental rights to the directive principles, the court pressed into service provisions relating to the health of women and children. Article 39(f) directs the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and moral and material abandonment. Article 42 directs the State to make provisions for just and humane conditions of work, and maternity beliefs. Article 45 stipulates that the State shall provide early childhood care and education for all children until the age of six. Article 47 lays down the raising of level of nutrition and standard of living of people, and improvement of public health as a primary duty of the State.

Dowry act

Definition of 'dowry'. - In this Act, "dowry" means any property or valuable security given or agreed to be given either directly or indirectly.
(a) By one party to a marriage to the other party to the marriage, or
(b) By the parent of either party to a marriage or by any other person, , to either party to the marriage or to any other person,

At or before [(Note: Subs. by Act 43 of 1986, sec.2) or any time after the marriage] [(Note: Subs. by Act 63 of 1984, sec.2) in connection with the marriage of the said parties, but does not include] dower or mahr in the case or persons to whom the Muslim Personal Law (Shariat) applied.

(Note: Explanation I omitted by act 63 of 1984, sec.2).

Explanation II- The expression "valuable security" has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

Comments
(i) "Dowry" in the sense of the expression contemplated by Dowry Prohibition Act in a demand for property of valuable security having an inextricable nexus with the marriage i.e. it is a consideration from the side of the bride's parents or relatives to the groom or his parents and/or guardian for the agreement to wed the bride-to-be. But where the demand for property or valuable security has no connection with the consideration for the marriage; it will not amount to a demand for dowry. The demand for valuable presents made by the appellants on the occasions of festivals like Deepavali is not connected with the wedding or marriage and these demands will not constitute dowry as defined in section 2 of Dowry Prohibition Act, 1961; Arjun Dhondiba Kamble v. State of Maharashtra, 1995 AIHC 273.

(ii) Any property given by parents of the bride need to be in consideration of the marriage, it can even be in connection with the marriage and would constitute dowry; Rajeev v. Ram Kishan Jaiswal, 1994 Cri L.J. NOC 255 (All).

(iii) The definition of dowry is wide to include all sorts of properties, valuable securities etc. given or agreed to be given directly or indirectly. Therefore the amount of Rs.20,000/- and 1.5 acres of land agreed to be given at the time of marriage is dowry, even though the said land was agreed to be transferred in the name of the deceased as 'pasupukumkuma' by executing a deed; Vemuri Venkateswara Rao v. State of Andhra Pradesh, 1992 Cri L.J. 563 AP HC.
(iv) There had been no agreement between either parties to give any property or valuable security to the other party at or before or after the marriage. The demand of T.V., refrigerator, gas connection, cash of Rs. 50,000/- and 15 tolas of gold are not demand of dowry but demand of valuable security in view of section 2; Shankar Prasad Shaw v. State, I (1992) DMC 30 Cal.

Conclusion
Domestic violence needs a coordinated and systemic response from the justice system. While Sec 498A has been one of the most significant criminal law reforms protecting women's rights, this reform is not enough. Ultimately we need to remember that criminal law is indeed a blunt tool, as it is very difficult to change police culture; though the law may consider domestic violence against women an offence, the police may still not comply with the law and not implement it effectively. Therefore, in order to move towards an effective working of Sec 498A and other criminal law remedies, it is crucial that we put in place a new model of policing – the victim empowerment model as described above. A model that will put in place pro-arrest procedures and social service networks at the police station in order to give the victim alternative support services is needed. Most importantly, we need to work on standard and regular policing, which will ensure that domestic violence is taken seriously.

Simply passing an Act and jotting it down on legal paper does not ensure that its main purpose will be served. In order to tackle this problem, the Ministry of Women and Child Development has issued another notification laying down rules framed for accurate implementation of the Act which also includes appointment of protection officers, service providers and counselors.

Another very important feature of the new Act is women's right to secure housing, the statement said, adding it provides a right to reside in the matrimonial and shared household, whether or not she has any legal title in the household.

Women's welfare associations from all around the country have accepted this decision with open arms. However, there are some who are worried about its ill-effects and rightfully so. Pandurangi Reddy Bharati, who runs the Save Indian Family Foundation, said, "It will lead to the economic blackmail of men." Mr. Bharati's concerns cannot be taken lightly especially since over the years the numbers of false cases against husbands and in-laws have also been on the rise.
In addition to stepping up measures for better policing it is imperative to have a civil law which addresses domestic violence. The recently approved domestic violence bill, 2005 contains remedies such as ex parte injunctions without the need for filing for divorce or maintenance, protection orders, non-molestation orders and non-contact orders, which would help the woman while criminal action is being taken against the abuser to prevent him from making contact with her and inflicting more violence. Therefore we need to look towards a co-coordinated legal approach to protect women facing domestic violence. Only such a coordinated and holistic approach would help persons facing domestic violence to get true relief from the legal system.

End Notes
1. A Cretney and G Davis, 'Prosecuting Domestic Assault' (1996) Crim LR 162.
2. Sec 323, IPC.
3. Sec 325, IPC.
4. Sec 326, IPC
5. Sec 509, IPC.
6. A Framework for Model Legislation on Domestic Violence, report of the Special Rapporteur on Violence against Women, Its Causes and Consequences, Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights Resolution 1995/85 E/CN 4/1996/53/Add 2.
7. Convention for the Elimination of All Forms of Discrimination against Women (CEDAW).
8. (2001) 6 SCC 407.
9. (2002) 7 SCC 414.
10. Ibid, p 417.
11. Ibid, p 418.
12. (2001) 6 SCC 407.
13. Violence against Women: Review of Recent Enactments (n 5).

Bibliography
Agnes, F (1998): 'Violence against Women: Review of Recent Enactments' in S Mukhopadhyay (ed), In the Name of Justice: Women and Law in Society, Manohar Publishers and Distributors, New Delhi.
Bard, M and J Zacker (1971): 'The Prevention of Family Violence: Dilemmas of Community Intervention', Journal of Marriage and the Family, Vol. 33, pp 677-82.
Hoyle, C and A Sanders (2000): 'Police Response to Domestic Violence: From Victim Choice to Victim Empowerment?', Brit J Criminol, 40, pp 14-36.
IACP (1967): International Association of Chiefs of Police, IACP, p 3.

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