Inevitable repeal?

Last week, the tragic incident of suicide by a Bengaluru-based young professional, Subhash, due to harassment and extortion by his wife and in-laws, has outraged society at large over the blatant misuse of Sec 498 A (IPC), now Sec. 85 of BNS. Apparently, as the suicide note reveals, “the terrible state of legal system”, inter alia, had pushed him to the edge. The incident not only points to a serious malaise in the system of criminal justice but also indicates a malady in our institution of marriage. The heart-rending story of Subhash conclusively proves that married male partners, too, suffer cruelty perpetrated by married female partners, and are forced to take their own lives in despair.

The parliament had amended IPC in 1983, inserting Section 498A for genuine reasons, as there were a huge number of cases of cruelty against married women, including ‘bride burnings’ in the 70s and the early 80s. To reinforce the law, the Indian Evidence Act was also amended, casting the burden of proof of innocence on the accused husband in cases of abetment to suicide by married women and death of a wife within seven years of marriage. Though the law worked as a deterrent initially, resulting in a remarkable decline in cases of bride burning, over time, it seems to have become increasingly a weapon against male married partners and their parents. As the criminal justice system is biased in favour of married women, the same is misused, leading to alleged legal extortion of money, adulterous relationships, control over husbands, custody of children etc. Data from NCRB,2022, shows that out of a total of 7,86,675 cases pending, 65,923 were disposed of, but only 8,307 with convictions. Interestingly, while 29 per cent of cases were disposed of without a trial, 82 per cent of these were as a result of out-of-court settlements involving the transfer of money. Only 8 per cent of total cases were dismissed by the courts. Evidently, the law is more misused than used. Anyhow, the blame cannot entirely go to a married woman, for it will be self-destructive for her as well to conspire against her own husband with whom she would be spending the rest of her life. Parents, siblings, and relatives play a pivotal role in the married lives of people, since marriage in India is not just a union between two free adults but more an alliance between two families of same caste and cultural values.

The Supreme Court, in its various judgments, has laid down legal principles cautioning against the misuse of law and machinery in the prosecution of offences under Section 498A of the IPC. In its latest judgment (Dara Lakshmi Narayana, 2024), the apex court observed: "Sometimes, recourse is taken to invoke Section 498A of the IPC against the husband and his family in order to seek compliance with the unreasonable demands of a wife... Courts must exercise caution in such cases to prevent misuse of legal provisions and the legal process and avoid unnecessary harassment of innocent family members." However, in the same breath, the bench also maintained that this does not mean that “any woman who has suffered cruelty... should remain silent and forbear herself from making a complaint or initiating any criminal proceeding.”

The Protection of Women from Domestic Violence Act (PWDVA), 2006, a complementary legislation to the IPC with a mixture of both civil and criminal law, is an equitable and just framework enacted to prevent various forms of violence (encompassing those covered under Section 498A) against married women. The PWDVA provides protection for the complainant under the supervision of a Judicial Magistrate of the First Class (JMFC). Notified Protection Officers assist victims and provide shelter, medical care, legal aid, and other support. The magistrate may also arrange counselling for both the victim and the respondent perpetrator with a qualified service provider. After hearing the matter, the JMFC may pass an order prohibiting the respondent from committing or abetting any act of domestic violence. Noncompliance with such orders is a cognisable and non-bailable offence, punishable by a one-year jail term under Section 31 of the Act, which also empowers the JMFC to frame charges under Section 498A.

Unfortunately, no national-level data is available regarding the effectiveness of the PWDVA. A lack of coordination among institutions is visible in almost all states, indicating that much remains to be done at the ground level.

Eliminating all forms of violence against women and girls in both public and private spheres is an uncompromisable principle, as recognised by the UN’s MDGs and SDGs, prompting most countries to legislate appropriate laws. However, unlike India, none of the laws in the US, European countries, or most Asian and African nations exclusively target the male marital partner with a presumption of guilt.

The Violence Against Women Act (VAWA) of 1994 in the United States treats domestic violence as a national crime, and accordingly, necessary changes were made in the Gun Control Act to prevent the offences.. This law applies to relationships, including former spouses and children. Interestingly, the law is now gender-neutral, with males also entitled to protection after a non-exclusivity provision was added during the reauthorisation of VAWA in 2005. Similarly, the Domestic Abuse Act in the UK targets domestic violence broadly and not marital cruelty exclusively. Domestic abuse is defined as "physical or sexual abuse; violent or threatening behaviour; controlling or coercive behaviour; economic abuse; or psychological, emotional, or other abuse" between individuals who are "personally connected," such as married partners, engaged couples, intimate partners, parents, or relatives—not exclusively the wife.

The European Commission enforced new legislation on May 7, 2024 (Directive (EU) 2024/1385), aimed at effectively combating violence against women and domestic violence, both online and offline. All Member States of the European Union are required to implement robust measures for prevention, protection, victim support, access to justice, and coordination between relevant authorities.

Laws need to be reformative in character rather than punitive. Sec 498 A, IPC is a draconian provision that can potentially endanger the institution of marriage and the future of the separated partners and their children. Use or misuse of law, multiple prosecutions and procrastinated trials consume both parties while bitterness and mistrust overshadow the love and care necessary for sustaining a family. Arguably, even making the offence bailable or shifting the burden of proof back on prosecution as voiced by many legal luminaries, cannot make much difference because once the matter goes to the court, the chances of rebuilding a broken home are remote.

In the larger interest, section 498A needs to be repealed since it has done more harm than good to society all along. Secondly, the provision of exclusivity makes a law partisan. Instead, efforts should be made towards proper implementation of PWDVA 2006 to ensure better results. Moreover, remedial measures are urgently needed to address the dubious functioning of the criminal justice system and to revamp the law-enforcing machinery that suffers from a lack of professionalism. Finally, attitudinal changes are long overdue in society with regard to respect for individual freedom and choice in the institution of marriage. Unfortunately, the tribe of social reformers has become extinct now and is replaced by the fifth estate – the Godmen.

The writer is a former Addl. Chief Secretary of Chhattisgarh. Views expressed are personal