In 2013, when 25-year-old Divya found a match in Cheran, little did her parents know that the marriage would end in her death. There had been clues all along: Divya was constantly sent home abused and beaten because her in-laws wanted dowry. Her own parents merely asked her to “adjust” and return to her husband. Then on July 17 this year, she was allegedly tortured and suffocated with a pillow by her father-in-law, who wanted his son to marry someone else for a fresh dowry.

 This is not an uncommon incident in India. According to the National Crime Report Bureau (NCRB), there have been 24,771 dowry deaths from 2012 to 2015 — nearly 22 deaths every day of those three years.

 Eleven days after Divya’s death, in what is being hailed as a “landmark judgment”, the Supreme Court passed a directive on July 28 to stop immediate arrests under Section 498A. It also decreed that a Family Welfare Committee (FWC) should be set up in every district in the country to review such cases before the police files an FIR. I unfolded the newspaper with resignation and slow dread:

Section 498A of the Indian Penal Code protects women from physical and emotional cruelty at the hands of a husband or a relative. Anyone convicted under it is liable to a prison term of up to three years, and relatives and family members involved in domestic violence can be arrested. Under 498A, if a complaint has been registered against a husband for domestic abuse due to dowry, he can be immediately arrested. Being a non-bailable (only court-granted bail applicable) and cognisable (police investigations made without court order) offence, it gives the authorities an impetus to remove the accused from the complainant’s immediate environment.

 Section 498A remains important because the Prohibition of Dowry Act (1961) only punishes the accused if the victim is dead — but does nothing to prevent the death itself. So a woman has to die for the accused to be punished. Literally.

The Supreme Court introduced Section 498A in the IPC in 1983 making domestic abuse due to dowry a criminal offence. This has been and still is the only preventive measure in the Constitution for domestic abuse complainants, and was a landmark victory for women’s rights in India.

One Step Forward, Many Steps Back

Under the new SC directive, Section 498A now seems to provide more relief to the accused rather than the survivor, such as bail applications on the same day, personal appearances not necessary in court, and the setting up of the FWC. Now, in the new process, when a person registers a complaint with the police, the FWC will first investigate and speak to the complainant and the accused’s family. After assessing the situation, the FWC will submit a report to the police, which will then take action accordingly.

Only if the FWC report states it to be a genuine case of dowry/domestic abuse will the police arrest the accused and file a chargesheet.

Now, filing an arrest under new directive be like:

The Slow Route to Justice

To understand how this new directive affects women, we need to look at the two amendments already made to Section 498A.
·  In 2008, Chanderbhan vs. State led to an amendment which stated that arrests under 498A be made only after investigation by an Assistant Commissioner of Police or a Deputy Commissioner of Police.

·  In 2014, Arnesh Kumar vs. State of Bihar led to the SC introducing a nine-point guideline, which stated that an arrest can be made only after a Magistrate’s approval.

So there already exist plenty of checks and balances on the fear of abuse of arrest under 498A. In practice, this new court directive will not help reduce malpractice of the law as much as simply slow down justice in urgently needed cases. Kanoon is not only andha but also ridiculously slow.

Women’s rights’ activists believe the directive is a blow to those brave enough to stand up to their abusers. Sudha Tiwari, chairperson of Shakti Shalini, an NGO that helps women fight gender violence, says, “In a lot of cases, the police threaten the woman not to register a complaint. Half the battle is just to [get a woman] register a complaint. This directive is going to further impede efforts.”

Donna Fernandes, a founding member at the women’s rights’ organisation, Vimochana, says, “There is a lot that could happen between the time of the complaint and the FWC’s investigation. Family pressure and no monetary support in most cases can lead to the complainant’s suicide before the FIR is finally registered.”

Women Crying Wolf?

The SC has cited false cases filed under 498A as the reason for its new directive, stating in the judgment that, in 2009, “for a total 89,546 cases reported… 8,352 cases were declared false…”

Fernandes questions this yardstick. “Sure, there are false cases out there. But for every false case, there are already 20 women who are genuinely subjected to domestic violence,” she argues.

Here’s the interesting thing about those allegedly false cases. All cases filed under Section 498A are automatically non-compoundable, i.e., once an FIR is filed it has to be treated as a criminal procedure and cannot be settled in civil court.

You can’t go all ‘judge sahab, cancel my order’ like a Zomato delivery. This is never likely to happen.

And with cases that see simultaneous criminal and civil court hearings, even settling in the latter doesn’t nullify criminal proceedings. The sheer number of these surmounting cases in criminal court can be easily and wrongly categorised as false, according to Geeta Ramaseshan, an advocate at Madras High Court and professor at the Asian College of Journalism, Chennai.

Thus the Supreme Court’s reasoning rests on shaky ground, even if backed by numbers.

A Watered-Down Law

The more you look at it, the more the new directive seems like it will punish victims for registering a complaint in the first place. Take the family welfare committee. Who will be on the bench of these committees? The court states that these will comprise of “paralegal volunteers/social workers/retired persons/wives of working officers/other citizens”.

“Other citizens?” Who wants to volunteer as a tribute?

The directive has mentioned nothing about these committee members’ background or training. Section 498A specifically mentions ‘mental abuse’ as an ample offence to charge the abuser with imprisonment. So potential committee members will also need to have the right training background in psychological assessment, which the new directive provides for only a week. They will also be reviewed on their performance by the district sessions judge. But is a week really enough for amateurs to get trained to decide such matters of human behaviour and violence?

There’s also the question whether the government will have the resources and motivation to set up FWCs in every district in the country.

Moreover, there is no sign that these committees won’t operate from the mindset that women rush to the file false dowry complaints at the first sign of trouble. Ramaseshan says, “These committees, especially in rural areas where women have lesser access to guided legal help, can reflect prejudice against women.”

The directive does say that it won’t be applicable in case of a victim’s death or if the complainant has tangible signs of physical injury. Here, too, it disturbingly reinforces the idea that violence is violence only if it’s physical, even though ‘cruelty’ under 498A includes mental injury.

The new court directive’s non-arrest limits a woman’s ability to find sanctuary, while asserting the abuser’s position in the system. Ramaseshan believes that an alternative corrective would be to make Section 498A compoundable, which would make it easier to drop criminal charges and settle the case in family court if the complainant so wished.

Providing regular training to FWC members, diversity in representation within these committees and thorough monthly reviews of their performance are some measures that can now be taken to safeguard 498A’s continued efficacy.

For decades, Section 498A has been like the sun in the fight for women’s rights: a burning, constant guiding light. But now, we might have to deal with a long eclipse.

Shruti Sunderraman writes for The Ladies Finger (TLF), a leading online women’s magazine. Visit the website here.
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