To give relief to the battered women in cases of domestic violence, particularly married women in cases of dowry torture, mental and physical cruelty and to guard against this growing menace, Section 498 (A) was added to the Indian Penal Code (IPC) much later the British who designed the penal law left India nearly 67 years ago. Such a law was not felt necessary in the contemporary India as cruelty to women although existing in some form or other in the society the incidence was negligible. It was only confined to the precincts of the matrimonial home and never touched the perimeter wall of the law.
After India achieved Independence, there was freedom and opportunity to both men and women in all affairs, at home and outside like workplace and gradually the violence on women increased which drew social attention. Therefore, it was hoped that by this penal provision, “cruelty” to married women which includes both “mental” and “physical” cruelty can be lessened to certain extent where it is meted out to a married woman by her husband and in-laws. It is important to note that the punishment for such offence may extend to imprisonment for three years and fine. Jail sentence was made mandatory so that it would have a deterrent effect. The offence is made cognizable and police are empowered to enter into the private premises of a married woman and may arrest the offending husband or in-laws without warrant on the basis of the FIR lodged at the police station.
In this context, question arises: Isn’t it a serious onslaught on men folk that without testing the veracity of the version of a woman about the truth or otherwise of the allegations of torture and harassment, action is taken instantly by police in an overzealous manner to satisfy the woman and her kith and kin. law is like a sharp-edged weapon which can cut both the ends. The standard of proof required to establish the charge and the levels of its trustworthiness and acceptance by the court in most of the cases are in a fluid state. It is almost like a wild goose chase by the court to accept the evidence regarding mental torture and physical cruelty and violence inflicted on a woman by her husband and his relatives because in many cases only make-believe stories are placed before the court by an aggrieved woman in her attempt to prove the charge of cruelty. It will not be out of place to mention that in a quite good number of cases of alleged torture and harassment of women, there is exaggeration, embellishment and embroideries of the stories. Ultimately, the result is that conviction for such offence is not secured.
It is, therefore, necessary that it is only after the background story leading to the alleged family feud, domestic violence and torture of married women is closely studied to arrive at the bottom of the truth of the complaint, action has to be taken. Very often these types of cases are framed beyond the public gaze with an ulterior motive of the complainant to harass the husband and in-laws for various reasons which are closely confined to the interpersonal relationship between the parties. In many instances, the surrounding circumstances of the allegation of cruelty lie in obscurity beyond law. The ambit of Section-498 (A) of the Penal law is, therefore, on a narrower compass when judged from the point of view of the delicate relationship between husband and wife. More particularly, the cases of newly-married are very often framed by misusing and vandalising this provision for personal gains and to satisfy vengeance by incorrigible, obstinate, warring wives, their parents and close relatives.
Hence, before soliciting the assistance of the law, an inquiry by the family counsellor under provisions of the Family Courts Act and assistance of protection officer under the Domestic Violence Act 2005 are absolutely necessary to have an in-depth study of the case so that conciliation can be arrived at the threshold. Truth lies in the fact that in many cases the complaint before magistrate or FIR before police and the consequent arrest, remand and custody of the husband and his parents and relatives mar the husband-wife relationship beyond the reach of settlement. Very recently, on the allegation of dowry torture by the daughter-in-law of a Minister of Odisha, the Minister and his wife, son and other close relatives were all arrested which bears the testimony as to how Section-498 (A) of IPC has been applied in an unrestrained manner by the law enforcing machinery. The truth of the case is yet to be established as the matter is pending before court.
It must be kept in mind by the investigating officers that in many cases of strained relationship between husband and wife, family feud and domestic violence, in the background or behind the screen, some villain who needs to be identified had played a role like Manthara in Ramayana or Sakuni in Mahabharata and, finally, lago in the Shakespearean tragic drama Othello. These persons always aggravate the situation to satisfy their self end. Therefore, in such cases, before any action is taken, all possible steps have to be taken by investigating police officer in a spirit of rapprochement to solve the husband-wife rift through counselling or assistance of protection officer and welfare expert as envisaged under Sections 14 and 15 of the Domestic Violence Act.
This is because of the fact that law has elements of social engineering and is meant for social progress and solidarity. This provision may be pressed into service only in extreme cases against the husband and his relatives when they are not amenable to reasons and not prepared for conciliation. So far domestic violence is concerned, the Act has provided a very peculiar provision that the husband or somebody on his behalf or relative cannot lodge any complaint nor can they put forth their version regarding the violence as alleged by the woman including wife, mother, sister, etc., and also the woman having live-in relationship with her male partner. For this, the Domestic Violence Act seems to be a one-sided law.
Section-32 (2) of the Act is too harsh that upon the sole testimony of the aggrieved woman, the court may conclude that an offence has been committed by the accused and pass orders. Concluding, since no opportunity is given to the male partner to have his version regarding the alleged torture of the woman by him, the law requires amendment so as to give him a chance of hearing which would help misuse of the law by unscrupulous women. Otherwise, it would be a gross violation of natural justice and human rights.
(The writer is a former Special Judge, CBI, Bhubaneswar and Prof of law, lal Bahadur Shastri National Academy of Administration, Mussoorie)
