Rethink on Legal terrorism

A rethink has been initiated for
Section 498 A of IPC by the Law Commission of India’s ‘Consultation
paper-cum-Questionnaire.’ The law meant to protect married women from the abuse
of dowry and cruelty has been misused by some women.

Rethink on ‘Legal
terrorism’
Virendra Kumar

What is 498 A— Section 498A was introduced into IPC by the Criminal Law (Second Amendment) Act, 1983 to prevent cruelty to a woman by her husband or his relatives that was reportedly rampant. In order to make the impact of this section deterrent in nature, the crime was made punishable with imprisonment which may extend to three years and also liable to fine.

A rethink on 498 A— After witnessing an unprecedented hue and cry over the use and misuse of Section 498 A, The Law Commission of India has come out with a document, “Consultation Paper-cum-Questionnaire regarding Section 498A of Indian Penal Code (IPC),” at the initiative of the Supreme Court through the Ministry of Law and Justice, Government of India to elicit ‘informed public opinion.’

In scores of cases across India, the courts have witnessed misuse of section 498 A, while deciding disputes of domestic nature. The law, designed to help women regain social and economic empowerment in a highly patriarchal society, has been misused in several cases, as is observed even by the apex court. As was in the case of Preeti Gupta v. State of Jharkhand ( 2010) and Sushil Kumar Sharma v. UOI (2005), where not only the husband but all his immediate relations were implicated under false charges.
Such acts of ‘over-implication,’ are often resorted with the sole motive to wreck personal vendetta, unleashing a sort of ‘new legal terrorism.’

What should be done to rein this tendency of ‘abuse’, ‘over-reach’ or ‘over-implication’, which of course cannot be the justifiable purpose of criminal law? To find a solution, The Law Commission in its consultation-paper has crystallised at least two different views. One view, which finds support from the observations of the apex court and also the recommendations of Malimath Committee’s report on Reforms of Criminal Justice System, is in favour of ‘relieving the rigour’ of section 498A of IPC by making the offence under the provisions of the Code of Criminal Procedure (CrPC) as compoundable and bailable instead of non-compoundable and non-bailable.

The other opposite view echoed, inter alia, by the Ministry of Women and Child Development is in favour of maintaining the status quo. In their view, the provisions of section 498A of IPC have been specifically enacted to protect vulnerable married women, who are the victims of cruelty and harassment at the hands of their husbands and their close relatives.

The consultation paper also brings to the fore a third view with some variants, which seem to cut across the two extreme positions as mentioned above. One variation is that the offence under section 498A of IPC should be made ‘compoundable’ with the permission of the court, as has been done by the State of Andhra Pradesh. However, there is sharp difference of opinions on the second variant, namely, whether the offence under this section should also be made ‘bailable’, at least with regard to husband’s relations.

Moreover, while the Commission is appreciative of the need to discourage unjustified and frivolous complaints, ‘it is not inclined to take a view that dilutes the efficacy of s. 498A to the extent of defeating its purpose- to protect women against atrocities.

However, having adopted this clear stance, the Commission has hastened to add : ‘A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a
rational solution – legislative or otherwise.’

The Commission is in search of a ‘rational solution – legislative or otherwise’ through its questionnaire. It has suggested that there is a dire need to create awareness about the penal provisions of the section amongst the poor and hapless rural women ‘who face quite often the problems of drunken misbehaviour,’ by having ‘easy access’ to the Taluka and District level Legal Services Authorities and/or credible NGOs. The Commission has also reminded the lawyers and the police, what is expected of them ‘morally and legally.’

Perhaps the more pragmatic point that the Law Commission has made relates to the linkage of section 498A of IPC with the provisions of Protection of Women from Domestic Violence Act, 2005. Such a linkage is evident at least in two respects. Firstly, in the exposition of ‘domestic violence’ under section 3 of the Act that encompasses the situation set out in the definition of cruelty under section 498A of the Code. This implies that there exists commonality of objective between the Code and the Act in terms of providing protection to married women from ‘domestic violence’ or ‘cruelty’.

Secondly, there is also a ‘functional-linkage’ as is found in the provisions of the Act itself that makes the Magistrate play pivotal role in protecting the married women.

The critical question still remains to be answered is, how to prevent the abuse of section 498A without diluting its deterrent effect? To answer this central issue, we need to remind ourselves that women seek defence outside home only under duress, and the protective umbrella of section 498A offers it.

The problem is essentially civil in nature and, therefore, is required to be handled by the civil court under the cognate provisions of the Protection of Women from Domestic Violence Act, 2005, and not by the criminal court under penal provisions of section 498A. This would enable the civil court to sort out matters of over-reach and over-implications with the added advantage of exploring the possibility of matrimonial reconciliation.

In the event, the Magistrate decides that a particular case falls in the realm of criminal law without the possibility of resuscitating the matrimonial relationship, he may pass an appropriate order for its trial by the criminal court.

The writer is Director (Academics), Chandigarh Judicial Academy, Chandigarh.

Link Here :

http://www.tribuneindia.com/2011/20110823/edit.htm#6

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