The Constitution of India provides for special treatment of women, guarantees equality and prohibits discrimination. The government of India has been strengthening various laws focused on women and children. This has been more visible since the Beijing CEDAW Conference. The recent years have been witness to some landmark interpretations and directives related to Violence against Women. Despite the constitutional mandate of equal legal status for men and women, the same is yet to be realized. The dejure laws have not been translated into defacto situation for various reasons such as illiteracy, social practices, prejudices, cultural norms based on patriarchal values, poor representation of women in policy-making, poverty, regional disparity in development, lack of access and opportunity to information and resources, etc. The ground situation more or less remains the same.
Most of the laws come with various institutional machinery, partnership between various stakeholders and active role of NGOs. These institutions need to be in existence in order for the law to be effective. Also the policies and programmes made at the top takes a long time to percolate to the bottom and there is an urgent need of sharing information and resoursces.
The awareness on laws and access to justice remains dismal. At the district and the state level sensitivity on women rights among judicial officers, administration and the police is very low. This leads to a situation where the implementation of the law becomes difficult. Recently India has increased its budgetary support for the implementation of various laws on violence against women and it becomes increasingly more important for the organization like Shakti Vahini to work on governance specially related to women and children issuesThe National Legal Research Desk (NLRD) has been instituted to strengthen the implementation of the laws related to Women and Children in India. NLRD focuses on documenting the recent changes in the law, collect and compile the Recent Landmark Judgments of the Supreme Courts of India & the High Courts and ensure wide scale dissemination of the same through the government and the non government machinery. The NLRD will work with Law Enforcement Agencies, Police Academies, Judicial Agencies, Government Agencies, Statutory Agencies, NGOs, Civil Society and Mass Media on promoting Access to Justice for Women and Children. The NLRD website is a knowledge Hub for compilation of all Laws, Judgements and Resource materials on Violence against Women and Children in India. In the first phase (2012) it will focus on the laws related to Human Trafficking, Domestic Violence, Juvenile Justice, Rape Laws, PCPNDT Act , Honour Crimes and Victim Compensation.
DHANANJAY MAHAPATRA IN THE TIMES OF INDIA
It is too early to say whether Dominique Strauss-Kahn was framed by a woman employee of a hotel. It cost him his job as IMF chief and cast a shadow on his ambition to become French president. After prosecutors developed doubts over veracity of the victim’s charges, Kahn got unconditional bail. Will the relief save his image, reputation and political prospects? It is difficult to say but, generally, allegations of sexual assault or exploitation against the rich, powerful and famous are taken to be true.
But the most equipped investigation, able prosecution and hawk-eyed judicial scrutiny sometimes fail to unravel the facts. Actor Shiney Ahuja, who probably would be finding similarities of his case with that of Strauss-Kahn, will agree. The Supreme Court faced an identical dilemma just last year, relating to dowry harassment cases under Section 498A of Indian Penal Code. “It is common knowledge that unfortunately, matrimonial litigation is rapidly increasing in our country… this clearly demonstrates discontent and unrest in the family life of a large number of people of society,” it said.
On the one hand, the law was the social legislation giving women protection against harassment at the hands of the husband and his relatives, who demand more and more dowry. The court was concerned with the rapid rise in such cases. But on the other hand, it was aware that “a large number of such complaints are not bona fide and are filed with oblique motive”.
It admitted, “To find out the truth is a herculean task in a majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth.”
The SC wanted a way out of the vicious cycle of litigation that mostly ruins innocent husbands and in-laws, who are falsely roped in, but seldom affects the real perpetrators who exploit loopholes in the system to escape the law.
The court was worried by the overkill of Section 498A. It did not want a socially beneficial legal framework to be turned into a mechanism of legal terrorism. It requested the Law Commission to examine the issue and suggest changes that could help create an ambience where the perpetrators could be adequately punished and at the same time, leave some room for negotiations to arrive at an amicable settlement. The commission invited suggestions from all quarters, including NRIs. And the overwhelming response was in favour of thorough investigations into the complaint of the wife under Section 498A before police arrested the husband and in-laws.
The commission is in the process of finalizing its decision which appears to be in favour of providing for a settlement clause between the victim and in-laws, which could be a welcome breather. However, it is against making the offence under Section 498A bailable.
Before any change is made in the law that was enacted to protect women from dowry harassment, it needs to be debated whether a woman’s complaint under Section 498A be thoroughly probed before effecting arrest of the husband and her in-laws.
Right now, once a Section 498A complaint is lodged, the police arrests the person named by the wife. The SC had said, “The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.”
The commission, before sending its recommendation to the government, must examine this aspect — what should be the protection to husbands and in-laws who have been framed in a complaint under Section 498A. But it must also not lose sight of the gruesome treatment meted out to women who fail to satisfy the greed of husbands and their in-laws.
- Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code (indialawyers.wordpress.com)
T.K. RAJALAKSHMI IN THE FRONTLINE
Women’s organisations rise up against a petition that seeks an amendment to Section 498A of the Indian Penal Code.
A PETITION that alleges the misuse of Section 498A of the Indian Penal Code, which has been admitted by the Rajya Sabha Committee on Petitions, has become an object of concern among leading women’s organisations in the country. The petition claims that the law, dealing with dowry-related torture and acute domestic violence, is being misused. The existing law provides for a punishment of up to three years.
The petition, filed by one Dr Anupama Singh, ostensibly on behalf of many people, has demanded that the said section be made non-cognisable, bailable and compoundable. At present, the section reads: “Whoever, being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.” Currently, Section 498 is the only law that victims of dowry-related torture and domestic violence can have recourse to. The fact that dowry-related violence and dowry deaths have shown no abatement in the past two decades only indicates that the existing laws have not been implemented properly and have, therefore, failed to serve as deterrents.
It is ironical that while women’s organisations are demanding new laws to deal with the multifarious types of violence against women – the latest one is a law to deal with honour-related murders – and the government is responding positively, demands are being made to dilute existing ones. Besides, a Bill dealing with the protection of women from sexual harassment at the workplace has been introduced in the Lok Sabha. Also on the anvil is a draft Bill expanding the definition of sexual assault to include child abuse as well.
The fact that the Rajya Sabha committee has entertained a petition that seeks to amend Section 498A is perceived as a regressive step. Women’s groups, including the All India Democratic Women’s Association (AIDWA), have expressed their disappointment and submitted a memorandum to the committee highlighting their concern.
The petitioner has contended that Section 498A is being widely misused, fearlessly abused, and used with ulterior motives by unscrupulous people. The abuse, according to the petitioner, has caused a lot of harassment and torture, including atrocities inflicted on senior citizens, children, women (including pregnant women) and men. The petition claims that “there are several cases of dowry death wherein the supposedly ‘dead victims’ have come back alive, and several cases where the same women has [ sic] repeatedly alleged charges under this law in each of her [ sic] repeat marriages”.
The petition portrays complainant women as veritable Delilahs and Jezebels. It pleads that the law is being misused by women to “enable a get-rich-quick-scheme to extort large sums of money from innocent families”, “as a bargaining tool by those women who indulge in adultery”, to “alienate the husband from his parents and siblings so as to gain control over his finances and social behaviour including his lifestyle”, and to “conceal true facts about the mental health and educational level at the time of marriage, thereby adopting fraudulent means to forge the alliance”.
According to the petition, when their nefarious acts were exposed, the complainant women took recourse to this law, “deflecting the needle of crime on the innocent husband and his family… this law being an exception in Criminal Law presumes the accused as guilty until proven innocent; hence the woman’s word is taken as a gospel of truth. And there from begins the saga of unending trials, tribulations and destruction of an innocent man and his family.”
The law, it says, is being misused “to enable divorce so as to revive any pre-marital relationship that the wife has had [ sic] as she may have unwillingly given her consent for marriage to satisfy her parents”; to deny custody of children to the husband and his family; and to inflict “sufferings on husband and his family to settle scores and to wreak vengeance, thereby posing a grave threat to the very existence of a peaceful family unit in society”. The petition claims that thousands of innocent families have been implicated in false cases as a complaint is enough to arrest the husband, in-laws and anyone else. It contends that this has led to the “arrest of lakhs [ sic] of innocent citizens (thousands of families), with many committing suicide as they are unable to bear the indelible stigma on their honour and reputation”.
Quoting from the National Crime Records Bureau (NCRB), the petition says that some 501,020 people had been arrested under Section 498A of the IPC from 2003-06; 294,147 of them completed trial under the Section; and 58,842 were convicted. The petition also quotes a 2005 Supreme Court order where the misuse of the law was compared to “unleashing legal terrorism”; an undated World Health Organisation (WHO) report that has apparently said that Section 498A is one of the major reasons for growing “elder abuse in India”; a Law Commission Report (154th); the Malimath Committee Report (on Reforms of the Criminal Justice System); and the 111th report of the Parliamentary Standing Committee on Home Affairs, which have apparently acknowledged that there has been widespread misuse of Section 498A.
The Malimath Committee Report made general observations in the section dealing with offences against women. It said: “There is a general complaint that Section 498A of the IPC regarding cruelty by the husband or his relatives is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence husband and other members of the family are arrested and can be behind the bars, which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.”
The Standing Committee report, while referring to the Law Commission’s and Malimath Committee’s reports, also recommended compounding of the offence under Section 498A . It noted: “Section 498A is intended to protect the woman from the cruelty of the husband or his relative. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouses to come together and therefore it is proposed to make the offence under Section 498A IPC a compoundable one by inserting this Section in the Table under Sub Section (2) of Section 320 of CrPC [Criminal Procedure Code], wherein it can be compounded with permission of the court.”
On the basis of the general observations of the reports, the petitioner has demanded that the section be suitably amended so as to make (1) the offence under it bailable, non-cognisable and compoundable; (2) to make it punishable for whosoever misuses it; (3) to make the misuser liable to compensate the financial loss suffered by the falsely accused in the process; (4) to make the law gender-neutral in order to protect the interests of any man or woman and (5) to ensure time-bound trial, with a six-month limit.
As far as the number of cases are concerned, very few people would dispute the figures quoted in the NCRB reports. Roughly around 80,000 cases of torture are filed every year; every minute, a woman is killed for dowry; and very few of the complaints result in convictions. For this, the poor implementation of the law rather than the law itself is to blame.
Women’s groups feel that any dilution of the law will first leave victims of cruelty in the lurch. Making the offence non-cognisable would mean that the police will not respond to any complaint made by a woman and also not investigate the matter. This would also mean that every time a woman faces domestic violence, she will have to go to the court to file a complaint before a magistrate, a process that the majority of Indian women will not find easy. The offence being bailable implies that no person can be arrested at any stage by the police without a magistrate’s order. This would mean that a woman victim could well face more physical or mental abuse without any protection whatsoever from her aggressor.
As far as sloppy investigation is concerned, AIDWA has argued that amendments made to the CrPC in 2009 included one with regard to the powers of the police. The amendment provides that in cases that entail a punishment of up to seven years of imprisonment the police should, before arresting a person, make proper investigation. It also states that no arrest shall be made if the accused cooperates with the police and does not tamper with evidence. The onus to investigate properly before conducting an arrest is, therefore, on the police.
AIDWA, which is the largest women’s organisation in the country and has fairly long experience in dealing with issues relating to women as victims, says that the ground realities are in complete contrast to what has been presented in the petition. First, it says, women approach the police or any organisation only after going through a lot of physical and mental battery. Even when they have dared to file a complaint, it is common to find gender biases, corruption and inefficiency on the part of the police.
Second, the police have been found to take an inordinately long time to register complaints, and complainants have often had to make repeated trips to the police station. Even the specialised Crimes Against Women Cells (in Delhi and Mumbai) have not proved helpful to women complainants. AIDWA’s experience is that women are forced to attend conciliation proceedings, and the cases are normally registered after the breakdown of these. Neither do the police make attempts to recover the streedhan or dowry in time. The nature of the investigation has, by and large, been shoddy in that the statements of the complainant and other members of her family/relatives are not recorded.
AIDWA general secretary Sudha Sundararaman and legal convener Kirti Singh have demanded that complaints under Section 498A be dealt with in the same way as complaints under provisions for other serious crimes. A perusal of various judgments under this section reveals that there was hardly an instance in which the accused were held guilty under Section 498A on its own. It was only in cases where the woman had finally died that the accused were punished under this section. False complaints, the organisation said, needed to be dealt with on a case-to-case basis.
It is presumed that a law can be misused only if there is a fair degree of knowledge about it. The Associated Chambers of Commerce and Industry of India conducted a survey of 10,000 women, including working women, housewives and college girls in Delhi and the National Capital Region, and found that despite over 20 constitutional provisions for women, 70 per cent of those surveyed were not aware of their legal rights. Another questionnaire-based survey, on 2,460 young women, done by AIDWA last year in 13 States revealed that violence at home was an endemic and commonplace phenomenon. The respondents were all in the 16-30 age group.
In some States such as Tamil Nadu, all the married women surveyed admitted to violence by their husbands and in-laws. The survey findings from Uttar Pradesh were equally shocking. Of the 239 women surveyed, 132 reported domestic violence, and the trend was common across educated and uneducated families.
The majority of respondents from Mumbai and Pune revealed that remaining single was not an option; similarly, 33 of the 40 women surveyed in Rajasthan felt that marriage was essential. While most of the married women shared their experiences of domestic violence with their parents, none of them reported sharing such experiences with their in-laws. Of the 100 women surveyed in Haryana, 44 reported violence at the hands of their natal and marital family members.
The findings of various surveys conducted only reaffirm what has been known all along – that women do suffer a lot of violence in this country. The virtual absence of any marital rights makes women even more vulnerable in contemplating action against their husbands or in-laws. The latest NCRB data, which are for 2008, revealed that dowry deaths had gone up from 6,975 cases in 1998 to 8,093 in 2007; cases registered under Section 498A had risen from 41,375 to 75,930 (almost doubled), while reported sexual harassment cases had gone up from 8,053 to 10,950 in the 10-year period. There has been a steady escalation in the violence against women, that too dowry-related violence. If there had been a real decline, it would be reflected in the number of dowry deaths.
In a socio-cultural milieu that encourages a culture of silence as far as women are concerned, where getting married and staying married are extolled values, and where marriage is perceived as providing security and social respect, the possibility of a large number of women faking and falsifying incidents of violence and harassment against them is not only remote but almost improbable.
- Call for amendment of section IPC 498a (oasiskerala.wordpress.com)
- Protecting women from domestic violence (indialawyers.wordpress.com)
- SC reverses acquittal by High Court in the Mumbai Child Sex Abuse Case (indialawyers.wordpress.com)
- Dowry wars: The big issue that has India divided (independent.co.uk)
- Grievance meet to settle women-related cases (hindu.com)
- High Court can suo motu question Sessions judge’s unjustified order (indialawyers.wordpress.com)
- Decreasing Sex Ratio in the Country (equalityindia.wordpress.com)
J. Venkatesan in THE HINDU
The hallmark of a healthy society is the respect it shows to women, says Bench
New Delhi: Expressing serious concern over dowry death cases where young women are being killed, the Supreme Court has said that such offences are to be treated as the ‘rarest of rare’ ones and extreme punishment of death should be awarded to offenders. A Bench consisting of Justices Markandey Katju and T.S. Thakur said: “Although bride-burning or bride-hanging cases have become common in our country, in our opinion, the expression ‘rarest of rare’ does not mean that the act is uncommon, it means that the act is brutal and barbaric. Bride killing is certainly barbaric.”
Writing the judgment, Justice Katju said, “Crimes against women are not ordinary crimes committed in a fit of anger or for property; they are social crimes. They disrupt the entire social fabric. Hence, they call for harsh punishment. Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again and then again they commit the murder of their wife for the same purpose. This is because of total commercialisation of our society, and lust for money which induces people to commit murder of the wife. The time has come when we have to stamp out this evil from our society, with an iron hand.”
The Bench said: “The hallmark of a healthy society is the respect it shows to women. Indian society has become a sick society. This is evident from the large number of cases coming up in this court (and also in almost all courts in the country) in which young women are being killed by their husbands or by their in-laws by pouring kerosene on them and setting them on fire or by hanging/strangulating them. What is the level of civilisation of a society in which a large number of women are treated in this horrendous and barbaric manner? What has our society become — this is illustrated by this case.”
High Court verdict
In the instant case, the deceased Geeta was married to Satya Narayan Tiwari in December 1997. On November 3, 2000 she died. The father of the deceased Surya Kant Dixit filed a complaint that his daughter was killed by the son-in-law and his mother, Bhuvaneswari Devi, as he could not meet the demand for a Maruti car as part of the dowry. The trial court acquitted Tiwari and his mother. On appeal, the Allahabad High Court convicted them under Sections 304B, 498-A of the Indian Penal Code and Section 4 of the Dowry Prohibition Act and awarded life sentence. The appeal by Tiwari and his mother is directed against this judgment.
Dismissing the appeal, the Supreme Court Bench said: “The manner in which the deceased was done to death, i.e., by first strangulating her and then setting her afire, needed at least two persons, because she [deceased] was also a young lady aged about 24 years. We have carefully perused the impugned judgment and order of the High Court and the judgment of the trial court and other evidence on record. We see no reason to disagree with the judgment and order of the High Court convicting the appellants. In fact, it was really a case under Section 302 IPC and death sentence should have been imposed in such a case, but since no charge under Section 302 IPC was levelled, we cannot do so, otherwise, such cases of bride burning, in our opinion, fall in the category of rarest of rare cases, and hence deserve death sentence.”
The Bench cancelled the bail bonds of the appellants and directed that they be taken into custody to serve the remaining period of sentence.
- Court condemns police use of ‘barbaric’ methods (thehindu.com)
- Not all live-in affairs are ‘relationship in the nature of marriage’, says Supreme Court (thehindu.com)
- Death sentence commuted in rape & murder case (thehindu.com)
- Need to re-look existing dowry law : SC (ibnlive.in.com)
J. Venkatesan In The Hindu
New Delhi: The Supreme Court on Friday asked Parliament to revisit the provision relating to cruelty and dowry harassment, pointing out that a large number of frivolous complaints are filed and courts are flooded with such matrimonial cases. A Bench of Justice Dalveer Bhandari and Justice K.S. Radhakrishnan said “a serious relook of the entire provision is warranted by the legislation.”
It said: “The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code (Husband or relative of husband of a woman subjecting her to cruelty). It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.”
Writing the judgment, Justice Bhandari said “The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society.” Maintaining that it was high time the legislature makes suitable changes to the existing law, the Bench said “It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.” On the increasing number of matrimonial litigations in the country, it said “All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.”
The Judges said “It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.” Cautioning the advocates, the Bench said “The members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.”
In the instant case, the appellants Preeti Gupta, the married sister-in-law, a resident of Surat and brother-in-law Gaurav Poddar challenged the Jharkand High Court order refusing to quash the summons issued by a trial court in Ranchi, in a criminal case filed under Section 498-A by one Manisha Poddar against her husband Kamal Poddar and his relatives, in a matrimonial dispute. Contending that the case had been foisted against them they sought quashing of the impugned judgment and the complaint. The Bench accepting the contentions allowed the appeal and quashed the judgment and the complaint against the appellants.
Anand Soondas , TIMES OF INDIA Crest, 16 January 2010, 11:33am IST
The youngest of Meera Yadav’s three daughters , Parul, just 4, was still crying, unhappy with the frugal dinner of some rough rice and boiled potatoes, when she heard a soft knock on the rickety tin fence that served as a door for her shapeless little shack. A burly man stood outside, somewhat unsteady on his legs due to what smelled like freshly consumed alcohol. There were two others behind him, laughing at a crude joke one of them had just cracked. “Is that your husband,” asked the first policeman. Before she could answer, they had dragged him out in the open. By now, all the three kids were screaming with fear. The blows kept raining. It stopped long after the villagers in one of Chandigarh’s slums had collected in numbers and gathered enough courage to demand from the assaulters a reason for the battering. It was only the next day that Meera would know what their crime was – her husband had taken off the Shiromani Akali Dal flag someone had planted on the roof of their hut and replaced it with the one belonging to a party he would vote for in the Assembly elections. “But when I rushed to the cops to complain, they pushed me out of the thana. One of them threatened to file a case against me instead,” Meera would later say, shuddering more at the menace in the policemen’s voice than at the incident. “They said the next time I came with a complaint against the goons, they would beat me and the children.” Meera was lucky she didn’t go back to the cops – a mistake Sarita made. The desperate 22-year-old had gone to the Rohtak police station for the umpteenth time, pleading with the officers to let her husband, who was framed in a cooked-up motorcycle theft case, go. It was then that the constables on duty thought they had tolerated her enough. They gang-raped her. Sarita committed suicide at the Haryana police headquarters on June 9, 2008. When her distraught husband and small child sat on a dharna to ask for justice, the police promptly picked them up and had them locked up.
A 45-year-old mother and her 24-year-old son would kill themselves a year later in Jind, Haryana again, unable to take the harassment and torture of the police. “They were just petitioning for action on the murder of my elder son,” Ramdiya said, recounting the death of his wife Dayawanti and son Sandeep in October last year. “Both were forcibly thrown into Ambala jail on August 11, 2009, like hardened criminals. They couldn’t take it anymore. I had such a happy family. I have no one left now. Everybody’s dead.” In neighbouring Punjab, on a cold January day in 2001, Avtar Singh, the only son of his parents, asked three men blocking a narrow Ludhiana street with their car – they were drinking and eating to let him pass. That was an affront police inspector Gurmit Singh Pinky could not digest. He pumped a fistful of bullets into the young man’s chest. Equally heinous was the case of Swaran Singh Hundal, who killed promising folk singer Dilshad Akhtar with an AK-47 after the artist declined to sing a song the cop wanted him to. Hundal was dismissed from service and was jailed for a while, but the police top brass later reinstated him and the killer retired as DSP in 2002. It’s a different matter that Hundal, who was charged in other cases as well, committed suicide in 2008.
SWAGGER OF THE DEPRAVED
But if what Pinky and Hundal did was dastardly, Ajit Singh Bains, a retired judge of the Punjab and Haryana high court, recounts a horrifying incident which was depraved. “In October 1991, some policemen killed a one-and-a-half-year-old baby and seven other members of the family, including three women,” he said.”Their method of murder was atrocious and they actually peeled off the victims’ skin and poured hot tar and diesel on their wounds. No action was taken against these cops.”
There’s an unmistakable swagger in modern day cops as they increasingly turn into a brutal and brutalising force. Armed with the knowledge that a mostly corrupt lot of MPs, MLAs and ministers, with skeletons in their own cupboards, will not be able to wield the moral lathi to rein them in, the conduct of officers and even lower-ranked men in the police has only become more brazen, more bizarre. It is perhaps this that allows men like SPS Rathore to believe they can first molest a young girl and then browbeat her family into submission. And the way the former Haryana DGP turned the entire system into accomplices – ministers, local netas, school authorities, his minions in the department – as he hounded Ruchika Girhotra into committing suicide is a case study of how top cops have the power to do what they want with the lives of the truly disenfranchised, which in India is anyone who doesn’t have a real “connection” to make his voice heard.
The Rathore shame – his cronies during a torture session went to the extent of offering Ruchika’s brother urine when he asked for water – played out even as a Rajasthani tribal woman, who was allegedly raped by a police officer 13 years ago, cried again for justice. The case involved a former DIG of Rajasthan police, Madhukar Tandon, who took advantage of his influence and managed to evade the law for 13 years. After the ongoing hue and cry over the Ruchika case, and subsequent protests by the Alwar-based victim, the state government appointed teams to nab the culprit. Not surprisingly, Tandon has managed to evade arrest. It is also this cocky belligerence that allows a DGP like B B Mohanty to indefinitely shield his son, Bitti, accused of raping a German tourist in Rajasthan. And though the government of Naveen Patnaik suspended Mohanty, who was heading the home guards then, the punishment was revoked later. Bitti, granted a 14-day parole on November 20, 2006, jumped it and has been on the loose since.
Or take the case of the string of officers who played host to fake stamps kingpin Abdul Karim Telgi, even offering him chicken biryani once while he was in their custody. Something which was never reported, but widely heard by crime reporters doing the rounds of the Crawford Market police headquarters in Mumbai, was that the wife of a police commissioner in the ’90s would book a room in a city hotel once every month for officers under her husband to come with their “collections” of the last 30 days. So confident are cops that they can get away with anything, they don’t seem to care a whit about normal ethics or morality- like the Mumbai policemen who were caught having fun at a Christmas-eve party sponsored by the Chhota Rajan gang. An embarrassed Ashok Chavan government in Maharashtra quickly suspended five errant men, among them DCP V N Salve and ACP Prakash Wani.
In all this, what is most disconcerting is the parallel business policemen, across ranks and departments, run in the name of dispensing justice or tackling crime. A textile businessman’s vehicle was recently stopped in Mumbai by cops who wanted him to pay them hafta (protection money). The police had already gathered information on him from his rivals and demanded Rs 2.5 lakh every month. The deal did not work out and soon the businessman was booked for “carrying arms”.
“I know of several instances where our own personnel pursue business interests with people of questionable background,” a senior officer admitted wryly. IPS officerturned-lawyer Y P Singh said, “They do this because they have no fear of punishment and there is total lack of accountability. Plus, they are sure that seniors will support them.”
The arrest of encounter specialist Pradeep Sharma, with whom the law finally caught up for staging fake encounters, is a case in point. “He had a free run till some years ago,’’ a colleague said. “Senior police officers gave him the go-ahead for encounters without ascertaining the real reason. He was running a parallel force. Sharma, in return, helped his friends get plum postings through his political connections.”
Then there was a builder who got his rival booked through IPS officer Bipin Bihari for attempted murder. “We took action by suspending the team involved. But I agree that they believed they could manage the criminal justice system. It is alarming that officers are being used to settle scores,” a senior police officer said.
But it is the poor across India who are most at risk from a rampaging force. It is they who cower, almost at all times, from the unpredictable, brute violence the men in uniform are capable of unleashing. K Guruviah, a farmer, and his wife Angammal, of M Kallupatti near Usilampatti in Tamil Nadu, were picked up by the police in July 1998 on the suspicion that they had received some stolen goods from a gang of thieves. Both were tortured for seven days, and at Oomachikulam police station they were undressed and made to simulate sex in the presence of police officials. Some of them later physically abused Angammal. Guruviah died moments after he was admitted to hospital.
Far from Chennai, Rajendra Yadav, a resident of Telari in Jharkhand, was taken into custody by the Chhatarpur police on December 30 last year. There was no arrest warrant. Barely 24 hours after he was taken to IPS officer Jatin Narwal’s residence in Palamau — where he complained of severe stomach pain — he was dead. A postmortem revealed severe assault had led to his death.
In the infamous and widely-publicised Rizwanur Rahman case, Justice Dipankar Dutta of Calcutta high court said, “It is an inescapable conclusion that there are two police stations. Lalbazar (police headquarters) is for the influential ones. And local police stations are for the aam aadmi. It is disgraceful that people have to knock on the high court’s door to lodge an FIR.”
Rahman, who was in love with Priyanka, the daughter of industrialist Ashok Todi, was found dead on the railway tracks on the outskirts of Kolkata on September 21, 2007. The CBI named seven accused in its chargesheet — Ashok Todi, his brothers Pradip and Anil Saraogi, IPS officer Ajoy Kumar, police officers Sukanti Chakraborti and Krishnendu Das, and S K Moinuddin alias Pappu, a social worker. In an equally shocking incident, Kaimur district police, in Bihar, procured arrest warrants against six-year-old Chaniya Khatun and her five-year-old sister Soni after they found them “guilty of killing” their 18-year-old sister-in-law for dowry last July.
It’s probably worse in the northeast, where the mainstream media doesn’t really reach, and people remain cut off from “mainland India” due to culture, infrastructure and distance. A startling 150 people were allegedly killed in fake encounters by Manipur Police Commandos last year alone. Police excesses in the state known for its rampant extra-judicial killings grabbed national attention when Chungkham Sanjit Singh, a reformed militant, was shot dead in Imphal on July 23, 2009 in broad daylight. A photographer captured the murder on camera and the photos found their way to magazines and newspapers across the country. Though the police claimed Sanjit had a gun, the images clearly showed an unarmed Sanjit talking politely to police commandos minutes before he was dragged inside a pharmacy. Besides Singh, a pregnant Rabina Devi was also killed.
The national capital Delhi is no better. Recently, a head constable beat up a 17-yearold boy, accused of stealing a mobile phone, so badly that he succumbed to his injuries. American journalist Jose Elliott had a taste of the Indian police’s barbarity when he was allegedly beaten up by men at the Hazrat Nizamuddin police station on October 8 last year. Elliott claimed cops thrashed him for “intervening” when someone was being kicked around.
Amazingly, Delhi Police officers told TOICrest there is “minimum cruelty and highhandedness” that can actually be attributed to their personnel. “We keep sanitizing our force. They are always being trained in manners and courtesy,’’ a senior officer said. “There is hardly any case in which a wrong person has been framed or jailed.” Tell that to Meera Yadav, Chungkham Sanjit’s bereaved family, Ruchika’s distraught brother, Sarita’s orphaned child and the countless others who are kicked and shoved around.
WITH INPUTS FROM RAHUL TRIPATHI, S AHMED ALI, K PRAVEEN KUMAR, RAJ KUMAR, SANJAY SHARMA, OINAM SUNIL, IP SINGH, JAIDEEP DEOGHARIA, ARNAB GANGULY, AKHILESH SINGH, SOUMITTRA S BOSE
RECOMMENDATIONS Third Monitoring & Evaluation Report 2009 on the Protection of Women from Domestic Violence Act, 2005
The M&E of the implementation of the PWDVA has reached another milestone in its third year. With the experience of having undertaken a nationwide evaluation of data with a primary emphasis on adequacy of infrastructure in the previous two years, the focus this year has shifted to a comprehensive assembling and analysis of the KAP of key stakeholders. Hence, in addition to finding continuing evidence of the need for effective and adequate infrastructure, the data analysed this year also points to the need to review certain aspects of the substantive and procedural law. Specific suggestions with regard to effective capacity-building of implementing agencies, towards ensuring adequate infrastructure, and creating a system of accountability for all the stakeholders have also been put forth.
Although a definitive conclusion as to the nature of amendments required in the PWDVA cannot be made at this nascent stage, recommendations highlighting the areas that require in-depth evaluation in the coming years have been provided in this chapter. In the next two years, LCWRI and ICRW seek to track these issues through data collection and analysis in order to suggest specific amendments to the PWDVA. The recommendations in this chapter have been provided with the understanding that the Law in order to be effective, ought to be responsive to the needs of its users and practices of the stakeholders.
Definitions and Coverage
(1) There is a clear gap in the understanding of domestic violence as defined by the Law. While most stakeholders recognise emotional and verbal abuse as forms of violence under the Law, physical violence, which is visible in nature, appears to takes precedence over other forms. Sexual violence within marriage is clearly not recognized as a form of violence. This selective interpretation of domestic violence will and does influence the subsequent implementation of the Law by various stakeholders.
Trainings with stakeholders should be undertaken to clarify that domestic violence can take various forms and is not restricted to physical violence alone. The trainings must focus on sexual, emotional and verbal abuse as key components of the definition of domestic violence and undertake an in depth examination of these aspects so that women facing sexual, emotional or verbal violence receive as much attention from stakeholders as women facing physical domestic violence.
(2) Analysis of orders indicates that a combination of various forms of abuse are experienced and reported by the AP. This is consistent with our experience with Third Monitoring & Evaluation Report 2009 women who say that they face multiple forms of domestic violence, and is reiterated by the POs who say that domestic violence co-occurs1. The most common forms of abuse seem to be economic and physical (either singly or in combination with others). The predominant form of economic abuse reported is dispossession or the threat of dispossession of the AP from the shared household and refusal to provide maintenance.
This trend strengthens the case for equitable distribution of matrimonial property and underscores the continuing relevance of the issue of dowry and the need to strengthen the Dowry Prohibition Act, 1961.
(3) The right to reside remains an area of major concern for women. There is much confusion amongst the implementing agencies as to the scope of the definition of right to reside. Many POs and Police officials were unable to distinguish between the right to reside and the right to share in the property. Many felt that the Act gives the AP a right of ownership over property, which it does not. The right to reside is most affected by the Supreme Court judgment in Batra v Batra. The analysis of orders show that this judgment has been used to deny Residence Orders to married women and widows by providing the reasoning that since the premises belong to the mother-in-law and fatherin- law, and not the husband the home is not a shared household. However, what is encouraging is that in both Delhi and Maharashtra, the courts have distinguished the facts of the cases before them from that of Batra. They have upheld the AP’s right to reside, on the ground that in Batra v Batra, the husband’s claim to have left the house of his parents was false and done with the intention of denying the right of the wife.
There appears to be a clear need to further explain the scope of “shared household”under the Act and the right to reside as providing a right of residence, irrespective of ownership, title, or interest in the premises
Coverage: Aggrieved Person and Respondent
(4) As recorded in the previous M&E Reports, married women continue to remain the primary users of the PWDVA followed by widows. While the information gathered from order analysis shows that applications by daughters were limited, mothers have used the Law in a number of instances. However, by and large there appears to be a perception that the Act is predominantly a matrimonial law. A fair level of misunderstanding exists with regard to key concepts such as the definition of AP2 and of Respondent3. In the case of the AP, it arises mainly in the case of a mother-in-law wanting to fi le a complaint against her daughter-in-law. With regard to the Respondent, there seems to be general clarity that it is ‘any adult male person;’ the husband is shown to be the sole Respondent in a majority of orders examined. However, the confusion arises with regard to female relatives of the ‘adult male’ and is prevalent amongst the Judiciary as well.
Whilst trainings and awareness creation can help reduce the confusion with regard to these definitions, there still remains a need to revisit these definitions in the PWDVA. Perhaps a clarification is needed, that, female relatives of the husband/male partner come within the purview of the Act
Practices and Procedures
(5) Counselling at the pre-litigation and litigation stage of proceedings have completely different objectives and requirements, which are rarely understood by all the relevant stakeholders. At the pre-litigation stage, counselling should be provided to the AP to restore her self-esteem, provide emotional support and assist her in making an informed decision as to whether she wants to initiate legal proceedings. As far as the Respondent is concerned, the focus should be on helping them acknowledge their past acts of violence and counsel them to stop further violence. The objective of court directed counselling at the litigation stage is mainly to prevent violence, and where the woman so desires, attempt settlement. It is difficult to gauge who is providing counselling services at the pre-litigation stage. However, findings have made it clear that women need pre-litigation counselling in addition to pre-litigation advice as provided under Section 5 of the Act. The courts appear to continue to rely heavily on counselling and mediation. However, the concern here remains whether the courts are able to distinguish between counselling, mediation and settlement.
Therefore, there is a need to understand counselling as mandated by the Law and its intent, in order to counter practices that might work against that intent. Findings clearly indicate that the meaning and objective of counselling under the Law, by whom and at what stage, need further elaboration. Hence, counselling needs to be defi ned and its objective at both the pre-litigation and litigation stages needs to be clarifi ed through appropriate amendments to the provisions on counselling under the Act and Rules.
(6) The objective and purpose of the DIR, of serving as a documentary record/evidence of violence and simplifying the procedural requirements in accessing courts, has not translated into practice. Findings have indicated that POs neither fi ll out a DIR each time a woman approach them, nor do they maintain any other record of the woman’s complaint or visit. This could have negative implications in case the woman decides to fi le a case in court at a later stage as no record of the history of violence would be available. Better understanding with regard to the purpose of the DIR is required. Perhaps practice directions from relevant High Courts clarifying this issue would help achieve uniform interpretation and usage.
(7) Findings from order analysis in Delhi lend credence to the fact that in the absence of a DIR to accompany the application fi led before the court, it is the woman whose interest gets compromised. In practice, the courts appear to interpret the proviso to Section 12(1) of the Act to mean that a DIR needs to be recorded by the PO or that they must necessarily consider the information contained in the DIR before passing any order under the Act. This problematic interpretation by the courts may therefore make a difference between availability of speedy reliefs and delays in proceedings. One of the most disturbing observations has been the lack of information/limited reference made to the role played by POs in the process of litigation.This finding needs to be tracked and verified in the coming years to develop a better understanding about the role of POs within the litigation process.
(8) In most states, the practice of POs seeking assistance from Police in the discharge of specific functions under the PWDVA is gradually emerging. However, usually, it is only upon court direction that such assistance is provided. This can be attributed to the common misconception amongst the Police that as the PWDVA is a civil law; they have a limited or no role to play in its implementation. Therefore, clarity on the role of the Police in the implementation of the PWDVA, perhaps by way of trainings or directives is essential to ensure consistency in the nature of assistance provided by them. Both the Police Department and the Judiciary are ideally placed to provide such directions.
(9) As in the previous M&E Reports, reliefs that are most commonly sought and granted are Maintenance Orders, Protection Orders and Residence Orders, with Maintenance Orders being the most commonly granted, followed by Protections Orders and then Residence Orders. The relief of maintenance sought is primarily on refusal to maintain the wife and children as well as desertion or dispossession from the shared household. The number of ex-parte/ad-interim orders being granted is extremely low. This is a negative trend as it defeats the purpose of granting immediate relief to the woman facing domestic violence and extricating her from a violent environment. Hence, it is strongly recommended that the courts do not hesitate to grant ex-parte or ad-interim orders where there is a prima facie case and where the denial can, and often does, lead to imminent harm or danger. Interim orders are being granted in Delhi and Maharashtra and Maintenance Orders are the most frequently provided interim relief. However, more emphasis needs to be placed on the significance of immediately granting interim orders. They should be granted as a matter of routine whenever the AP can prove a prima facie case in her favour, without going into technicalities of procedure.
(10) The PWDVA vests the Judiciary with discretionary powers with regard to procedure to be followed when dealing with domestic violence cases. This was done
with the intention of allowing the Judiciary space for creative interpretation and initiative. However, in certain instances, it appears that this discretionary power is resulting in a lack of uniformity in procedures being followed. Therefore, it may be recommended that there is a need for guidance with regard to procedures. In the absence of amendments to the Act, this could be provided by High Courts in order to address the confusion or delays but at the same time, care must be taken to ensure that the directions provided do not defeat the intention and object of the Law.
(11) By and large, the procedure being adopted by the court is that at the interim stage, decisions are based on affidavits in Form III while at the final stage, Section 125 CrPC procedure is followed. A unique but disturbing trend of a large number of compromises or settlements has emerged9 in Gujarat. Although it was not possible to determine the reasons for this trend, perhaps in many of these cases compromises are imposed on women in the name of maintaining family, which in the process expose her to continued and/or even greater violence. In view of the fact that a similar finding emerged in case of Himachal Pradesh in the Second M&E Report, it is essential to undertake a detailed analysis of this development in states where such high rates of settlement and compromise have been observed over a period of time, to understand the factors that encourage such high rates of settlements.
(12) Order analysis has revealed a trend where a majority of appeals are being preferred at the interim stage of the proceedings as opposed to being made against final orders. This is of concern as the execution of the interim order passed gets stalled during the appeal proceedings. Thus this practice should not be allowed and encouraged as it defeats the purpose of providing immediate reliefs to the woman in order to extricate her from the violent environment. It is recommended that the Act should be amended to the effect that appeals are disallowed at the interim stage in domestic violence cases and are disposed of within a stipulated time frame so as to prevent prolonged proceedings that defeat the very purpose of immediate reliefs mandated under the Act.
(13) Filing complaints for breach under Section 31 the PWDVA remains the predominant method of enforcement of orders. However, one of the problematic aspects that require the immediate attention of the higher Judiciary as well as policy makers is that, in a majority of cases, no direction for enforcement/compliance of orders is included in the orders themselves. This acts as a barrier for the woman who must approach the court separately for such a direction. It is recommended that a direction for enforcement be contained in the order and in addition the courts direct the Police to assist the POs in the enforcement of the order should the need arise. Further, a mechanism, to track orders passed by courts and their subsequent execution, needs to be set up.
(14) Findings10 indicated that the court is failing to provide updates to the Pos regarding the proceedings of the case and copies of orders from the court are also not being forwarded to them. This acts as a barrier in the implementation of the PWDVA, as POs are expected to enforce orders.
(15) There has been a gradual increase in the appointment of independent POs on a full-time basis over the past 3 years. Whilst it is desirable that a cadre of independent, full-time POs with the requisite qualifications and gendered perspective be appointed, they would not be effective without adequate infrastructure and budget such as allowance for transport, mobile phone, private office space, and official letterheads and so on. Thus, what is needed is not merely infrastructural aid but institutional status as well. There is a need to review and perhaps ensure some uniformity in the qualifications of POs, particularly in view of the need to appoint a full-time cadre of POs to effectively implement the Law. However, a defi nitive conclusion as to what the qualification and role of the PO ought to be can only be arrived at following a separate study which includes comprehensive data collection and analysis of practices in this regard across the states. Regular and systematic assessments and reviews should be undertaken by states with regard to the type of support being given to POs. This will facilitate an assessment of whether or not suffi cient support is being given to the POs to enable them to perform the role that is envisioned under the Law. If it is the case that support is lacking, then this can be looked into and rectifi ed. If it is the case that despite the support being given, the PO is still unable to perform his/her duty,then the state can consider what other types of support should and could be made available to the PO .
(16) Ambiguity surrounds the issue of who is to serve notice, the limitations faced by POs when they are required to do so, and the resultant difficulties faced by women litigants. Hence, there is a clear need to address this issue and provide the requisite personnel/assistance to POs or in the alternative, designate the Police/court process servers to undertake this responsibility. The High Courts of Delhi and Andhra Pradesh have set a good example by bringing clarity and consistency through their practice directions.
(17) The collation of national infrastructure data highlighted the fact that three years after the coming into force of the Act, nodal departments of most states were still unable to provide detailed information about the role of SPs, Shelter Homes and Medical Facilities as it is still not clearly visible. Hence, there is a need for coordination between stakeholders and the adoption of a uniform practice of reporting to nodal departments regarding their structure and functioning, as discussed further in the Monitoring and Accountability section below.
(18) To date, it has been reported that 17 states have made budgetary allocations for the implementation of the PWDVA. However, there is no systematic basis for making these allocations, and much is left to the discretion of the individual states. There is a definite need to increase budget for support and for allocation of funds to implement the Act. It is suggested that a scheme should be formulated to ensure a regular annual flow of a specified amount every year with ongoing financial monitoring.
Awareness Creation and Capacity Building
(19) The findings of this Report highlight the fact that knowledge of the Law and attitudes of the stakeholders hold equal importance as an imbalance of either can hinder or frustrate the objective of the Law. Further, it is clear that there are gaps in the understanding of the PWDVA and its coverage amongst Police, POs and Judiciary which need to be addressed. Trainings undertaken by LCWRI have demonstrated that there is a significant level of positive change that can be achieved even through limited (in terms of length and exposure) interventions, if there is comprehensive coverage of the Law and a gendered approach is adopted. This leads to the assumption that for all stakeholders to be covered and for the impact to be sustained, there is a critical need for systematic and more intensive trainings. In order to achieve this, trainings must be institutionalised and the primary responsibility must vest with nodal departments and training academies. As a first step, states should undertake systematic orientation training on the PWDVA, thereby having a trained and sensitised body of implementers of the Law from the outset. This should particularly be ensured every time a cadre of POs, new batches of Police Officers and Judges are inducted into their respective services. This ought to be followed up with special refresher programmes for in-service officers. Professionals and persons with expertise in the area of gender and domestic violence should be invited to conduct these training programmes. In fact, the training interventions conducted with the Judiciary, made it clear that Judges respond well to professional experts such as medical professionals, Lawyers etc. At the same time, a specific component of gender sensitisation with a specialist exploring the attitudes of the Judges is crucial.
(20) The LCWRI model of capacity building or Training Interventions to bridge gaps and ensure effective implementation of the Law works effectively, as indicated by our findings. It is recommended and hoped that the participants trained will take on the responsibility of further training and sharing information and knowledge gained with their colleagues and juniors. However, this is an aspect that would require some time and tracking in the years to come.
(21) There are gaps in awareness and knowledge amongst the POs on specific procedures to be followed in general and with regard to the fi lling of DIRs, serving of notice and reporting of breach in particular. With regard to the Police, findings are clearly indicative of gendered perceptions. As the Police are often the first to be approached by women facing domestic violence, these gendered perceptions, if not addressed through appropriate training and sensitisation workshops can be impending barriers to women accessing the law. Hence, training programmes with the POs, Police and other relevant stakeholders need to be conducted to address this issue in a comprehensive manner.
Monitoring and Accountability
(22) The existence of varied practices and lack of adequate infrastructure, budget and trainings across the states reiterates the need to institutionalise the M&E of the implementation of the PWDVA. The State needs to adopt a comprehensive system for the monitoring and evaluation of the implementation of the Law on an annual basis as recommended in the First and Second M&E Reports.
(23) To date, there is no system of mandatory reporting to the nodal department by all stakeholders. In fact, the information provided by the nodal departments show that it is only the POs who report to them. Therefore, over a period of time, a misconceived assumption has developed; that it is mainly the PO who is responsible for the implementation of the PWDVA and that other stakeholders do not have much of a role to play. Hence, there is an urgent need to ensure accountability through developing a robust system of mandatory reporting on specific indicators15 for all stakeholders, including the Judiciary. As the Judiciary follows a distinct reporting structure, it is recommended that there is regular sharing of information regarding the PWDVA between the higher Judiciary and the nodal departments.
(24) Currently, performance in cases fi led under the PWDVA does not form a part of the criteria against which the Judiciary is evaluated. Provision of information as to the exact nature of the cases is left to the discretion of the individual Judge. The issue of domestic violence should be given the priority and focus it deserves. Therefore, it is recommended that cases fi led under the PWDVA should be included as part of the duty performance system of the Judiciary. A similar approach can also be followed in case of POs, with the development of an incentive-based performance and appraisal system to facilitate accountability and better implementation of the Law.
(25) A major obstacle in the identification of the total number of cases fi led before the courts under the PWDVA, arises due to the existing system of registering and labeling cases. In some courts it is a miscellaneous application, while in some, it is registered as a criminal case or a domestic violence case. Uniformity in the description and registration of the cases under the PWDVA in the Court Registry is a much needed requirement.The First M&E Report identified three models of implementation of the PWDVA. This year’s M&E Report has not been able to track the existence of these models, across all states due to the specifi c focus on a few states. However, these models continue to exist in the 3 states studied this year, Andhra Pradesh (Public Model), Rajasthan (Private Model) and Delhi (Mixed Model). Tracking these models continue to remain relevant in the years to come.
PWDVA – PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT
LCWRI- LAWYERS COLLECTIVE WOMENS RIGHTS INITIATIVE
PO – PROTECTION OFFICERS
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NEW DELHI: The Supreme Court has ruled that demand for money and presents from parents of a married girl at the time of birth of her child or for other ceremonies, as is prevalent in society, may be deprecable but cannot be categorised as dowry to make it a punishable offence.
This means, if a daughter-in-law is being harassed for customary gifts by parents-in-law, then they could be booked under ordinary penal provisions but not under the tough anti-dowry laws providing stringent punishments.
Acquitting the parents-in-law of a woman who had accused them of harassing her for dowry, a Bench comprising Justices Arijit Pasayat and S Sathasivam took help of a 2001 judgment of SC to say that not all demands from the parents-in-law could be categorised as ‘dowry’ under the Dowry Prohibition Act. It said though the Act covers payment of money or articles during, before or after marriage by the girl’s parent to her in-laws, the cash and presents given had to have a link with the marriage to become objectionable in law.
“Other payments which are customary payments, for example given at the time of birth of a child or other ceremonies as are prevalent in different societies, are not covered by the expression ‘dowry’,” said Justice Pasayat, writing the judgment for the Bench.
A Haryana trial court had continued the dowry harassment charges against the woman’s husband while acquitting the parents-in-law, the married sister and brother of the husband. Though the high court allowed quashing of charges against the sister and brother, it said the parents-in-law were liable to be proceeded against.
The apex court said that when the trial court had held that an attempt had been made by the woman to rope in as many relatives of her husband as possible, the HC should have given some reasons while reversing a well-reasoned order.
It said judicial discipline demanded the HCs to give clear reasons when reversing a trial court order backed by facts. “Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the ‘inscrutible face of the sphinx’, it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudicating the validity of the decision,” the Bench said.