Women and Law

Newsletter March 1985

We give below the essence of the new law which recognizes violence and cruelty of husbands towards wives.

The Criminal Law (Second Amendment) Bill 1983,

(As passed by the Houses of Parliament).

498A. Whoever, being the husband or the relative of the husband of a woman, subjects such women to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purpose of this section

"cruelty" means- `

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman, or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand for any property or valuable security.

Amendment of (Sec 174)

In the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of Criminal Procedure) in Section 174, in sub section (3), for the words "when there is any doubt regarding the cause of death or when for any other reason the police officer considers it expedient to, he shall", the following shall be substituted, namely-

"When-

(i) the case involves suicide by a woman within seven years of her marriage ; or

(ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed an offence in relation to such woman ; or

(iii) the case relates to the death of a woman within seven years of her marriage and any relative of the woman has made a request in this behalf ; or

(iv) there is any doubt regarding the cause of the death ; or ‘

(v) the police officer for any reason considers it expedient to do so he shall".

Prosecution of offences under Section 498A of the Indian Penel Code :

"198A. No court shall take cognizance of an offence punishable under Section 498A of the Indian Penal Code except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or with leave

of the court, by any other person related to her by blood, marriage or adoption."

In the Indian Evidence Act, 1872, after Section

113 the following section shall be inserted, namely :

113A When the question is whether, the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation: For the purposes of this section, "cruelty" shall have the same meaning as in Section 498A of the Indian Penal Code. (as given above). An offence booked under 498A is cognizable, non-bailable and has to be tried by a 1st class magistrate.

The law, which received the assent of the President in December 1983 and was published in the Gazette of India on December 26,1983, has finally been communicated to the Delhi Police through the Home Department on May 21, 1984 "for necessary action".

According to an Indian Express report—"It has led to the arrest of 70 persons in 55 cases all over Delhi...In two of these cases the police have completed investigations and prepared challans to be filed in the court, according to Mr Nikhil Kumar, Additional Commissioner of Police. The rest of the cases are being investigated. But in all cases those arrested have been allowed bail by the courts."

According to Mrs Deol, Anti-Dowry Cell. the most effective use of 498A has been, booking the husband and in-laws in abettment to suicide cases, where circumstantial evidence is usually the only evidence available.

In a major departure from the position of the prosecution, now it will be for the accused to prove his innocence in the court, and not for prosecution to prove him guilty. Apart from cases of suicide many of the cases registered are in response to general cruelty. Sometimes dowry demands are encompassed with this section in taking action against the culprit.

The procedure for booking husbands/in-laws under this section are : If a woman has been physically abused, then an immediate F.I.R has to be lodged at the local police station. She is then taken for a medical examination and investigation carried out. The culprits should be arrested straight after the medical examination.

Although the definition of cruelty is wide, the police have to find evidence of cruelty by the husband or his relatives. In this respect the evidence of witnesses for the prosecution would play a very important role. Especially in cases, where physical injuries are not ‘grave' enough in terms of broken bones.

The Anti-Dowry. Cell has directed all the local Police Stations to register cases under this Act. Earlier all such caseswere being directed to the Anti-Dowry Cell. ’ According to the Police the problem faced in cases of this nature very often is that the wives want to withdraw the case after a lapse of 40-50 days, if not earlier. Therefore the police become reluctant to take the complaint as seriously as they should.

As more women are getting aware of the scope of 498A the number of cases registered under this act have been increasing. Unfortunately no case under this section has yet been tried in court. Given the wide scope of this law, it is equally open to wide interpretation by the judiciary. How effective it proves to be will eventually depend on how thorough the police investigations are and how the judges interpret the law. Women’s organizations can play an important role by impressing upon the police, the gravity of the problem and following up the cases.

The Carnage and After ·

It is estimated that more than 1200 Women were Widowed.

Balwinder Kaur : Her family insists she remarries her fourteen year old brother—in—law who is ten years her junior. She has decided to live alone.

Ram Kaur : A widow aged twenty years had to buy her freedom by paying Rs. 6,000 to her father-i in-law.

Laksmi Kaur : Heavy with child is about to deliver her fifth child.

Amarjeet Kaur : is fifteen years old and has lost her entire family. She has not smiled since.

Nanaksar Camp: 107 widows here to feed on an average ten mouths.

Statesman Report, February 27, 1985: Shanti Devi who saw her husband and three sons murdered in the November riots committed suicide by hanging. She could not recover from her grief.