India’s anti-dowry laws are being misused, often resulting in the acquittal of accused once the courts have perused the matter, says a law officer at Punjab and Haryana High Court.
Understanding India’s anti-dowry laws:
-Under the Dowry Prohibition Act of 1961, both giving and accepting dowry in India is an offence. The punishment for violating the law is 5 years imprisonment + Rs 15,000 ($ 300 AUD) fine or the value of the dowry given, whichever is more.
- In 1983, Sections 304B and 498A of the Indian Penal Code (IPC) were enacted to make it easier for an Indian wife to seek redressal for harassment by the husband’s family.
-Section 304B of the IPC relates to dowry deaths, or the death of a woman in the initial seven years of marriage as a result of a dowry demand by her husband or his family/relatives.
-Section 498A of the IPC, popularly known as the anti-dowry law, prohibits cruelty by husband or his relatives towards a woman of the kind that might harm her or force her to commit suicide or relates to a demand for money or property. This amendment allows immediate arrest and jailing of a woman’s spouse and her in-laws in the case of harassment or cruelty.
- The offence of cruelty under this Section is non–compoundable. In other words, it cannot be withdrawn by the petitioner and is also non-bailable. This means a mere complaint results in a mandatory arrest, and it is then a matter of discretion of the court to grant or refuse bail.
How the law is being "misused":
While many women have taken recourse to the law to get justice and freedom from violent marriages, India's Supreme Court noted in July 2017 that the law is being increasingly "misused by some disgruntled wives" to frame their husbands and his relatives.
Quoting the National Crime Records Bureau’s (NCRB) data, the bench said that nearly 200,000 people were arrested over dowry offences in 2012, but only 14.4% of the accused were convicted.
"We are conscious of the object for which the provision was brought into the statute.... At the same time, violation of human rights of (the) innocent cannot be brushed aside," the bench had said.
To this effect, the Supreme Court of India had ordered the formation of family welfare committee in every district, to probe the veracity of complaints filed under Section 498A.
The judges ordered the police "not to automatically arrest" an accused, but to go through a "nine-point checklist" to "satisfy themselves about the necessity for arrest".
And in cases where arrests are made, a magistrate must approve further detention of the accused, the court had ruled.
In line with the ruling, the latest figures released by the NCRB indicate that while the number of cases registered under Section 498A is increasing each year, the conviction rate is falling.
In the last 11 years between 2006-2016, for every case that resulted in a conviction, five other cases resulted in an acquittal and one case was withdrawn with the net result being that only one out of every seven cases resulted in a conviction-National Crime Records Bureau.
The stats also show the number of pending cases at the end of 2016 is more than twice the number of pending cases at the end of 2006.
At the end of 2006, 206000 cases were pending and this number increased to 515000 cases by the end of 2016, an increase of more than 150% in 11 years.
However, some of these directives were partially rolled back by the Supreme Court in September earlier this year, advocating for balancing interests of both the sides in dowry harassment cases.
Modifying its own judgement given out in 2017, the apex court did away with the requirement of a family welfare committee and restored the powers of the police to act on complaints of dowry harassment under Section 498A.
"There should be gender justice for women as dowry has a chilling effect on marriage on one hand, and on the other hand, there is right to life and personal liberty of the man," the bench said while reserving the verdict in September 2018.
Though the bench acknowledged that the misuse of the provision is leading to "social unrest", it however said, that the Court cannot fill in legislative gaps.
What the legal experts say about India's anti-dowry laws:
“In India almost, I can say that after the case is put to trial in 498A, 80 per cent is the acquittal rate. That means, it is found that the case is not proved. In such a situation, the investigating officer who registered the case and who investigated the case should be held responsible for false cases.”
"In many cases, not only the groom but his brothers, married sisters and elderly parents are also arrested, based on a mere complaint."
Mr Goyal further said that legal provisions must be made to implicate the complainant if after the investigation it is discovered that she was misusing the law, to deter other women from filing false cases.
“If after investigation it is found that it is a false case, then the complainant should also be burdened with a heavy cost, and a case should also be registered against her for giving false information.
“Secondly, the case must be registered against both parties, whether they are giving or receiving the dowry.
“Once this is implemented, then it will be easier to prevent the implication of innocent persons, who are harassed and humiliated by some women to settle personal scores.”
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