The code against cruelty

Earlier this month, the Supreme Court passed a directive to the police and magistrates to refrain from carrying out instant arrests in cases filed under Section 498A of the Indian Penal Code (IPC), which criminalises cruelty against women in marriages. Coercive action, the bench stated, could only be carried out after verifying the claim, which is to be done by three-member family welfare committees. Women's groups have condemned this judgment and assert the need for action in such cases, instead of making it imperative for women to return to abusive environments while the veracity of their complaints are ascertained. Women's rights lawyer Flavia Agnes breaks down the law as it stands and shares her insight on this directive.

What was the scope of section Section 498A before the guidelines were issued? And what were the issues which needed to be addressed?

Section 498A of IPC was enacted in 1983 as a special provision to address issues of cruelty against married women by husbands and their relatives. This law came into effect after a sustained campaign by women's groups against dowry related violence and dowry deaths in the early eighties. It has two parts-one addresses dowry related violence or threat of violence and the other deals with cruelty, which may be physical or mental. But somehow the cruelty part has not been sufficiently addressed by our courts, police, prosecutors and also the media.

Everyone believes that it is a dowry related law and not a law against cruelty to wives. The result of this kind of projection is that when a poor woman who has been brutally beaten, approaches a police station, the police do not file a case under Section 498A and arrest the husband. Only when a middle or upper middle class woman approaches the police, is the case immediately filed and arrests carried out. There is a class bias here which has never been addressed. So, while women are blamed for this, the fault lies with the police. The fear of immediate arrest not only of husband but also his relative is the major reason for the backlash of this law. It is not that in every case there is immediate arrest. Nowadays, prior to the arrest, the couple is sent for counselling and efforts are made to reconcile differences and save the marriage.

Where does the law stand today?

It is yet to be seen. The government has to put in place machinery at the district level comprising civil society members, and train them as barefoot counsellors and advisors to the parties. So until then the old provision of the law about arrest will continue.

There is a large discourse regarding the misuse of Section 498A. Do you think this step by the Supreme Court (particularly the necessary scrutiny by a committee) deters or slows down the process for justice for women?

When we talk about misuse of Section 498A, we undermine the underuse of this section that occurs all the time. If you see the number of women who are killed in their marital homes, either for dowry or due to sheer violence, and compare that with the actual number of cases that are registered under the Section, it is shocking. The violence that occurs in homes is very real and life- threatening. In such situations, to slow down the process of filing cases and postponing arrest till the case is scrutinised by a committee is detrimental to providing a safe environment for women in their homes. Also, the very basis for constituting the committees is dangerous. It is to prevent misuse of Section 498A and not with a view to providing security to them.

What are some of the guidelines in the judgment that are necessary and, if any, do you think some judgements are superfluous?

There is no problem in constituting a non-judicial or quasi-judicial committee if only the underlying basis for setting them up was for providing security and protection to women. What I oppose the most are the underlying presumptions and assumptions of this ruling which blames women for the breakdown of marriages. Regarding arrest as well as filing of complaints in intimate partner violence, guidelines are already in place and hence we did not need any new guidelines.

Do you think this is an anti-women's rights judgment?

I totally agree. The judgement views the entire situation from the view point of the husband and his family and tries to address an imaginary situation. The voice of aggrieved women was not heard during these proceedings, even while casting aspersions on them. No voices from the women's movement were heard during the hearings. So, the judgement is perceived by many women's rights activists as an exercise in male bonding.