Various nations of the world are caught in distinct socio-economic debates. USA is caught in a disturbing racial debate whereas Europe is immersed in the value-conflict between religious obligation and humanitarian responsibility towards the hapless immigrants.
As society is a dynamic system like a sea, it continuously keeps churning. Sometimes yester ay’s reform look irreverent or inadequate today .Nothing is in a state of perfection in the society. In fact, looking for perfection in the human society is an unscientific and unrealistic attitude. We should never make the assumption that we have achieved complete transformation in a society.
The recent happenings in the USA perhaps give us a better understanding regarding the vibrant processes in a society and diffuse our illusion regarding a society that can reach the top of an eternally progressive social order. Years of feminism movement in the US could not ensure the victory of Hillary Clinton during the last US Presidential poll to make her the first woman President. Similarly, huge social engineering in the domain of racial-harmony and immigrant-inclusion in US and Europe could not inculcate fully the inclusive values of colour and religious equality.
Indian society is in a state of agitation and churning which is really good in breaking inertia. Talks about religious tolerance, gender justice, anti-corruption and nationalism are occupying the minds of the citizens and institutions. In the social themes, the gender justice domain is catching more space in legal spheres. A few progressive ice-breaking laws have emerged as forward-moving transforming waves. These laws include rights of the women to religious entities, judgment against instant-Triple-Talaq. A few years ago, laws were formulated to protect women from domestic violence, sexual harassment at workplace and exploitation from live-in-relationship. Court has also asked the Government to take steps to protect the homeless widows. The Indian judiciary and legislature are seen moving forward to transform the Indian society to a gender-egalitarian regime.
On the other hand, women are complaining of experiencing some receding waves from the State and the judiciary. There is a PIl in Delhi High Court that seeks bringing marital sexual harassment under rape clause of IPC. The Central Government has told the Delhi High Court that making marital rape a criminal offence will make men vulnerable to harassment by their wives and destabilize the institution of marriage.
The Central Government’s concern in the context of misuse of law and protection of marriage is noteworthy but aggressive sexual behavior of husbands is also a matter of worry. In fact, the section 375 of IPC should be amended to change the age of wife to 18 years of age to give protection under rape. The petitioners said that they have given to the court a list of 51 countries that have done away with exceptions to the rule of leaving husbands out of the purview of rape. The challenge here is how to give justice to a wife as well as a family and the offspring. It is needless to say the lives of the dependent children need to be considered too while considering the law.
Another receding legal-wave as complained by the women rights groups, is the relaxation of anti-dowry law. The Supreme Court of India had struck down the use of Section 498A of the Indian Penal Code (IPC), putting an end to the immediate arrest of the husband and his family members in dowry cases. Raising concern over the misuse of the legal provision, the court had ordered that “Family Welfare Committees should be set up in each district to take up every complaint under Section 498A and no arrest shall normally be effected without report of the Committee. These committees would consist of paralegals, volunteers, social workers, retired persons, wives of working officers and other citizens. The Prohibition of Dowry Act, which was enacted in 1961 to curb the menace of dowry system in the Indian society and Section 498A that was created during the early eighties to protect the married women, lost their teeth due to this recent judgment.
In fact, the demand for the withdrawal of 498A was growing gradually. There have been allegations that husbands and their relatives are often charged with false dowry harassment cases by their wives or her family members when some marital problems arise. The previous law Commission had recommended that the offence under Section 498A should be made a compoundable offence with the permission of court and Justice Malimath- Committee on Criminal Justice Reform had also recommended for making the offence both compoundable as well as bailable. Now, the offence is non-compoundable and non-bailable which provides for immediate arrest of the accused. Currently there is no scope for conciliatory efforts between the warring sides. A husband or his family members are presumed to be guilty till they prove their innocence in the court.
On July 2, 2014, the SC had directed the Government to instruct police not to automatically arrest when a case under 498-A of IPC got registered but to satisfy themselves first about the necessity of arrest under the parameters (checklist) provided under section 41 of CrPC. In 2015, a draft note was moved by the Union law Ministry, seeking to amend Section 498A of the IPC, making it compoundable. Finally, the draconian legal provision has become soft.
Should we say that the social reform law on dowry failed to achieve its objective and was miscarried and got defeated due to its misuseIJ The answer is fluid as society is dynamic. In the context of the SC judgment on an urgent need for the formation of the welfare- committees by the State Governments is important. The welfare committees should be trained like the Child Welfare Committees to seriously discharge their duty as quasi-judicial committees without diluting the law.
Similarly, a court judgment has allowed the divorce of wife by the husband if she is in conflict with old in-laws. There is need for guidelines here. Both old parents and the wife belong to vulnerable group and they cannot be put one against another.
There has to be a balance between the forward laws and the backward laws to maintain the women-rights, the family system and children.