Feminism And Equality: Make A Balance
Women have always occupied a vital place in Indian society. Though the position of women was not good in ancient time since they were subjected to discriminatory laws, Brahmanical austerities, rigid cast system etc. so makers of the constitution have taken every possible step to uplift the position of women.
The Constitution of India ensures the equality of status and opportunity and prohibits unreasonable discrimination.
There are other specific legislations also for protection of the women but laws that were once made for their protection now being misused as weapon to satisfy their personal vendetta or harassing others. My article is centered on the misuse of laws and gender specific laws in India causing violation of fundamental and human rights both.
Abuse of Section 498 A IPC
The object of section 498 A of IPC is to protect women from the cruelty caused by husband or his relatives and harassment by latter in relation to meet unlawful demands. It has been a controversial section due to its gross misuse by women as they are using it for settling scores with their husband and relatives.
According to the 63rdreport of NCRB there is a huge difference in the ratio of number of cases put on trial and the number of convictions. The startling statics regarding the conviction under sec 498 A has been shown in the table:
Disposal of cases filed under Sec 498-A of IPC by Courts
||Total Cases where trial completed in that year
||Total Cases Pending at the end of the year
||Conviction Rate of Cases under 498-A in %
||Average Conviction Rate of all IPC crimes in %
If we see the data of 10 years, there is a gradual increase in the filing of cases and acquittal too while decrease in the rate of conviction compared to the other crimes under IPC.
Law Commission on 498 A
Law commission on its 237threportrecommended that offence under sec 498 A of IPC should be made compoundable with the permission of the court as there is gross rise in its misuse by women. It says if wife wants to forgive her husband for ill-treatment and injury caused by him or his relatives then it should be allowed to have out of court settlement by both the parties. There are many instances where women take recourse of sec 498A in haste without keeping in mind its repercussions so they should be allowed to withdraw the case and reach to the settlement amicably.
Law commission in its 243rdreportsuggested that the offence under sec 498 should not be made bailable as it will reduce the deterrence effect and frustrate the objective of the provision however the police should take recourse of arrest only if its necessary,shall not be used at the whims and fancies of the I.O. or be treated as a panacea for checking such offences. Casual and hasty application of the power of arrest is counter-productive and negates the fundamental right enshrined in Art. 21.
Malimath Committee’s Report on Reforms of Criminal Justice System
“Malimath committee recommended that the offence should be made bailable and compoundable both because if women want to reconciliate later, they may be allowed without any legal obstacle. Sometimes they lodge an FIR in a fit of anger which results in the arrest of husband and his relatives. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable so there remains no possibility to retract, they have to wait till the judgment of the case. The husband also cannot make compromise after realization of his guilt and start a loving and cordial life. The offence being non-bailable and non-compoundable causes extreme hardships to innocent person. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together."
“Parliamentary Standing Committee on Home Affairs in its 111thReport on the Criminal Law (Amendment) Bill 2003 (August 2005). The Standing Committee observed thus:"
“It is desirable to provide a chance to the estranged spouses to come together and therefore it is proposed to make the offence u/s 498A IPC, a compoundable one by inserting this Section in the Table under sub-section(2) of Section 320 of CrPC".
“The 128threport of the said Standing Committee (2008) on the Code of Criminal Procedure (Amendment) Bill, 2006 reiterated the recommendation made in the 111threport."
“The provisions in Section 9 of the Family Courts Act, 1984 Section23 (2) of the Hindu Marriage Act, 1955 and Section 34(2) of the Special Marriage Act, 1954 impose an obligation on the court to take necessary steps to facilitate re-conciliation or amicable settlement."
Judiciary Stand on 498A
In Preeti Gupta Vs. State of Jharkhand SC observed “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints". Court admitted the filing of false cases to implicate their husbands and their relatives. The Supreme Court directed the Registry to send a copy of judgment to the Law Commission and Union Law Secretary so that appropriate steps may be taken in the larger interests of society.
In Sushil Kumar Sharma Vs. UOI SC accepted that in many cases complaints under sec 498 are filed to satisfy their personal vendetta “It may therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with". It was also observed that “by misuse of the provision, a new legal terrorism can be unleashed"
In Chandrabhan Vs. State Delhi (order dated 4.8.2008 in Bail application No.1627/2008)HC observed that “there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims" The following directions were given to the police authorities:
“i) FIR should not be registered in a routine manner."
“ii) Endeavour of the police should be to scrutinize complaints carefully and then register FIR."
“iii) No case under section 498-A/406 IPC should be registered without the prior approval of DCP/Addl. DCP."
“iv) Before the registration of FIR, all possible efforts should be made for reconciliation and in case it is found that there is no possibility of settlement, then, necessary steps should, in the first instance, be taken to ensure return of sthridhan and dowry articles to the complainant."
“v) Arrest of main accused be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP."
“vi) In the case of collateral accused such as in-laws, prior approval of DCP should be there on the file."
In Arnesh Kumar versus State of Bihar SC provided certain directions mentioned below:
i) “All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of theIPCis registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41,Cr.PC;"
ii) "All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);"
iii) "The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;"
iv) "The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;"
v) "The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;"
vi) "Notice of appearance in terms of Section 41A ofCr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;"
vii) "Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction."
viii) "Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."
Sec 498 A was inserted with the object to protect the women, but now there is necessity to protect husband and his relatives too. In a recent case also SC issued guidelines to be adhered to while making arrest on the complaint filed by a women. InRajesh sharma & ors Vs state of UP & AnrSC directed that:
(i) (a) "In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority."
(b) "The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing."
(c) "The Committee members will not be called as witnesses."
(d) "Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication."
(e) "Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint."
(f) "The committee may give its brief report about the factual aspects and its opinion in the matter."
(g) "Till report of the committee is received, no arrest should normally be effected."
(h) "The report may be then considered by the Investigating Officer or the Magistrate on its own merit."
(i) "Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time."
(j) "The Members of the committee may be given such honorarium as may be considered viable."
(k) "It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper."
(ii) "Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;"
(iii) "In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;"
(iv) "If a bail application is filed with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;"
(v) "In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;"
(vi) "It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and"
(vii) "Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial."
(viii) "These directions will not apply to the offences involving tangible physical injuries or death."
“The effect of the above mentioned directions will be observed for six months after that National Legal Services Authority may give its report about needed changes, if any. If any changes are needed, court will take the matter in cognizance again in april 2018."
By going through the above cases it is certain that the misuse of sec 498 A is judicially acknowledged. Reports of law commission, 140threport of Rajysabha committee, report of NCRB and various guidelines of the courts show how impertinent it has become to amend the section so that innocent persons may be protected from harassment. its high time that legislature should take this issue in cognizance and amend the section to prevent undue harassment.
REAL MEN “DO" CRY
Today we live in a country whose constitution provides justice, equality and liberty to its citizens but unfortunately these adjectives only embellish the preamble of its constitution and reality tells a different story. There is a saying in our society that “real men do not cry" and Indian statues also adhere to it. In Indian Penal Code there are gender specific laws, assuming certain offences cannot be committed against men. Section 375 of the IPC says “A man is said to commit “rape" if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,...."
Its starting with “A man is said to commit rape…."makes its clear that only a man can commit rape and it can only be committed on a woman.Why?Can man not be subjected to rape? Don’t they have modesty? If it has been so in mind of Indian legislature then let’s take some real complaints made by men on online portal:
1. They said since it was a girl doing it to a guy, it was just ‘experimentation.
“I’m a man. I was raped as a child. She was my cousin. About 15 or so, while I was four. I don’t remember a lot, either because I was so small or because I mentally blocked it, but I remember that she performed oral sex on me. Made me do the same to her. Stuck various things up my butt.
My mom called the police when I told her a few weeks later. They didn’t even investigate. They said since it was a girl doing it to a guy, it was just “experimentation." Said it was okay."
2. I repeatedly told her ‘no,’ but that didn’t matter.
“We had a huge fight and I told her I was done. If I even tried to restrain her alittleI would have bruised her wrists and been in jail. I repeatedly told her “no," but that didn’t matter. She wanted to “fix things." I called the cops but they just asked her if she was OK and then left without doing anything."
“Physically, yes, I could have gotten away but she was being very aggressive and after a close call I decided it wasn’t worth fighting over. I was not going to jail for this woman. I just laid there and let her do her thing."
3. I strongly, emphatically and repeatedly said ‘NO! STOP! NO MEANS NO!
“I was raped by my ex girlfriend. We were both about 19-20. She tied me to the bed for a ‘teasing’ blowjob. Ok cool! But then she got on top of me even though I strongly, emphatically and repeatedly said ‘NO! STOP! NO MEANS NO!’ (this is what school/public safety infomercials taught me to do) But she didn’t care and she did a good job with the restraints. She got on top of me and rode me until I orgasmed against my will. I felt powerless and ashamed. I told some people but they kind of laughed it off. I think if gender roles were reversed it would’ve been taken more seriously."
4. Really messed me up for a long time.
“When I was 19, I met a girl off of the Internet. She made me dinner and offered me wine. One glass of wine isn’t enough to get me buzzed and I’ve never really blacked out, but all I remember from that night is bits and pieces. Flashes, really. I know we had sex but I didn’t (and wouldn’t have) consented to it. I wasn’t into one-night stands at that time.That really messed me up for a long time."
The list doesn’t get end here. There are many more incidents out of that I quoted a few. Unfortunately they can’t get any legal recourse because of lack of any legal provisions for their protection. Justice verma committee constituted for reforming criminal law also recommended to make sexual offences gender neutral. However, this suggestion was not eventually incorporated in the Criminal Law (Amendment) Act, 2013.
In 2007 ministry of Ministry of Women and Child Development released a report on child abuse. In order to examine the incidence of sexual abuse among child respondents, the questionnaire was administered to 12,447 children belonging to the five different categories including children in family environment, children in schools, children in institutions, children at work and street children. The study looked into four severe forms and five other forms of sexual abuse. Out of the total child respondents, 53.22% reported having faced one or more forms of sexual abuse that included severe and other forms. Among them 52.94% were boys and 47.06% girls. The results were quite shocking and refute the general perception that girls are subjected mostly to sexual harassment. In 9 out of 13 States reported higher percentage of sexual abuse among boys as compared to girls, with states like Delhi reporting a figure of 65.64%.
Out of the total child respondents, 20.90% were subjected to severe forms of sexual abuse that included sexual assault, making the child fondle private parts, making the child exhibit private body parts and being photographed in the nude. Out of these 57.30% were boys and 42.70% were girls.
In our preamble we talk about “Equality of status and opportunity" and “Social, Economic and Political Justice" but in reality we are still far away from it. Statics were released in 2007 by the ministry but still no law for the sexual harassment of a man. There is only section 377 of IPC which talks about ‘sodomy’ but there is nothing to protect men if rape is committed upon them by a woman. If we go by the text of sec 377 it seems that the objective behind enacting this law was to secure moral values than protecting any entity. It is entrenched in the minds of law makers that a man can’t fall prey for sexual harassment; women are more prone to it. Besides Sec 375, Sec 354A (sexual harassment and punishment for sexual harassment),354B (sexual assault to disrobe a woman), 354C (voyeurism), 354D (stalking), and section 509 (word, gesture or act intended to insult the modesty of a woman) shows that men don’t have ‘privilege’ of having modesty.
A woman can’t commit rape- judicial stand
“In Priya Patel v state of MPSC held that awoman guilty of committing rape. The facts of the case goes like prosecutrix met the accused at the railway station. He told her that her father set him to receive her. Believing so prosecutrix accompanied him to his house where he committed rape on her. While the commission of rape his wife reached there. On the request of prosecutrix to save her, she slapped her and bolted the door from outside to facilitate the crime."
The court has two issues before it First; can a woman be prosecuted for rape? Second, can women be guilty of abetment to rape?
“Judicial stand is as shocking as the facts of this case. SC held that a woman can’t be guilty of rape. This is conceptually inconceivable. SC adhered to the text of sec 375, and said that according to the section only a man can be guilty of rape on a woman (i.e. neither woman of a woman nor a woman of a man). When it comes to the question whether a woman can be prosecuted for rape, the SC refused to express any opinion on that. How judiciary resolved this case is a regressive step in the history of Indian judiciary. Though a woman can’t commit rape on a woman but she can be prosecuted for abetment to rape obviously because “They also serve who only stand and wait".
What we need to deduce out of the case is unless the language of the section is modified a woman can’t be prosecuted for rape. If a case comes of a man, a rape victim, then it’s not difficult to deduce the result going by the above case so its high time legislature have to take step to make the law gender neutral.
As has been discussed above the misuse of Dowry Law is rampant in India that causes to mental harassment to husband and his family. SC also admits that 498 A has become easy tool for woman to trap husband and his relatives to satisfy their personal grudges. Now the time has come legislature to amend the law and make it bailable and non-cognizable. It should also be made compoundable so that parties can resolve the dispute outside the court because sometime women file case in a fit of anger and later if they want to retract they can’t even if they want that neither leaves no room for reconciliation nor any possibility to save their marriage.
On the other side we also need to accept that man can be harassed also like a woman. Most of them suffer in silence and hardly share their ordeal but it doesn’t mean a law shouldn’t be made until a flood of cases are registered. There should be equal justice to both man and woman. It’s a high time when legislature should make an amendment in IPC for the protection of men too. Apart from the legislature, society should first acknowledge that men can be subjected to sexual harassment because as long as society takes it as a blot on one’s reputation or so called ‘manhood’, men hardly can muster up the courage to fight for themselves. We need to accept man DO cry.
Judiciary is an important organ of the state. It modifies the laws according to the need of time and its holding becomes the precedent and followed in future cases. What if, it sets the wrong precedent? Of course it’s still be followed in future. The same in happened in Priya Patel v state of U.P. It took a regressive step going by the literal interpretation of the statute. If judiciary doesn’t accept that a woman can commit rape on a woman, then accepting the fact that a man can be subjected to rape by a woman is a far cry. Judges also need to change their perspective because judicial precedents are important part of Indian Legal System.
# 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 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. 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 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.]
# http://220.127.116.11/newcommittee/reports/EnglishCommittees/Committee on Home Affairs/111threport.htm
# 2010 Indlaw SC 616
# 2005 Indlaw SC 425
# 2014 Indlaw SC 425
# 2017 Indlaw SC 538
# 2006 Indlaw SC 321