Posted in Criminal Law

A dismal setback to sec. 498A IPC

From time immemorial, married women in India have been defencelessly enduring cruelty and domestic violence at the hands of men. Cruelty against women was difficult to prove and to make it worse, there was no specific law aiming to safeguard women against such cruelty. It is not unfamiliar that crimes against women have been a barrier to the holistic development of the society.

Responding to the dire need of gender equality and curbing the menace of marital cruelty upon women due to the evil of dowry prevalent in our country, the Criminal Law (Second Amendment) Act, 1983 was enacted by the Indian Legislature which amended the Indian Penal Code, 1860 by inserting Section 498A, the Code of Criminal Procedure, 1973, the Hindu Marriage Act, 1955, the Indian evidence Act, 1872 (by inserting section 113-A into it) which has shifted the burden of proof to the accused and the Dowry Prohibition Act, 1961.

The section 498A of the Indian Penal Code, 1860 was introduced into the Indian criminal law system with an objective to prevent the menace of dowry death and cruelty inflicted upon women. This was a momentous change introduced in the Indian criminal law system intending to provide protection to the women as the offence of marital cruelty in India became cognizable, non-bailable and non-compoundable offence.

Section 498A is given under the heading, “Husband or relative of husband of a woman subjecting her to Cruelty.” Under this section, “cruelty” has been explained as (a) Any willful 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 demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Aiming towards the complete wellbeing of the married women, apart from physical cruelty, section 498A of the Indian Penal Code, 1860 has recognised ‘mental cruelty’ by husband or relatives of the husband as a psychological harm and made it a punishable offence.

Recently, in the name of preventing misuse of Sec. 498A, the guidelines laid down by the Honorable Supreme Court in Rajesh Sharma & Others vs. State of U.P. & Another, blatantly defeated the objective of sec. 498A IPC. It requires that every complaint under sec. 498A received by the Police or Magistrate shall be referred to a particular committee which shall have to submit its report within one month from the date of receipt of the complaint. Moreover, until the report is submitted, no arrest should be made. However, his judgement has undermined “mental cruelty” and it has been made clear that these directions will not apply to the offences involving tangible physical injuries or death of a woman.

The incidences of mental cruelty are no less harmful to any woman. Instead of taking action to prevent cruelty and save the life and dignity of a woman, the judgement instructs to take action only when the woman has been hit, thrashed, beaten up or killed. The Indian women are made to suffer to such an extent to get eligible for access to justice. During the one month period of enquiry to confirm the veracity of the facts of the complaint, the psychological cruelty may continue and even aggravate to harm of a serious nature including psychological depression or even suicidal tendencies in the victim women.

The ground reality regarding the implementation and effectiveness of the law provided under sec. 498A is quite dismal. According to the reports of National Crime Report Bureau, crimes against the female population in India have increased manifold in the recent time. The guideline of the Supreme Court in the above-mentioned case is regressive in nature and it has sabotaged the ongoing effort to bring about gender equality.

According to a report of the CHRI, the Police in India refuses to register complaints of sexual harassment and other crimes against women. It said that “the survey points to a significant proportion of unaddressed and unreported crime, signalling worrying levels of insecurity among the public, particularly women”.

Stringent implementation of the existing laws is required to curb crime against women because there is massive under-reporting of crime against women in India. The real concern for us should be the lower conviction rate for crime against women according to various official data. Guidelines should also be framed to encourage abused women to report crimes and fight her case till the end. The instruction to refrain from filing FIR until a thorough enquiry has been a big demotivating factor.


ABOUT THE AUTHOR

Shampa Chowdhury

Me 20170130_235941

She is a legal professional working in a Law Firm in Kolkata. She has a brief experience of content writing for a few Law portals. Currently, Shampa is pursuing a course on Cyber Law Practice, Information Technology and Social Media Law from NUJS.

 

Posted in Criminal Law

POCSO v. IPC: Menace of Child Marriage in India

There are plethora of laws in India like Protection of Children from Sexual Offences Act (POCSO), Prohibition of Child Marriage Act (PCM), Protection of Women from Domestic Violence Act (PWDV), Commissions for Protection of Child Rights Act (CPCR) and Indian Penal Code (IPC) which protects children from the menace of the Child marriage and their sexual exploitation at the hands of their husbands.

Recently, Bachpan Bachao Andolan (BBA), an organisation which works for the welfare of the children in India, filed a Writ Petition before Supreme Court of India in February 2016. This Writ Petition was filed to protect the children from the curse of child marriage granted by the society in earlier days, and still canvassed by the people due to lack of awareness and education. It also sought to protect the children from the evil of child marriages and marital rape in their marriages, through the POCSO Act.

The major issue which is raised by this petition is regarding the immunity from the offence of Rape which is granted by the Section 375 of the Indian Penal Code (IPC), which renders the children deprived from any recourse to remedy when they are married before the age of 18 years. The IPC grants immunity to the husband of the wife above the age of 15 years. This lacunae, is said to be covered by the offence being committed under the POCSO Act, which is called as penetrative sexual assault, and aggravated penetrative sexual assault. Contrary, Courts in India do not also apply the POCSO Act, due to the immunity, and does not consider the overriding section of 42A of the POCSO Act. They fail to distinguish between two offences.

Supreme Court gave an appropriate Order on 05.01.2017, after hearing the above mentioned writ petition, in which it clearly stated that this matter must be taken to the Ministry of Women and Child Development[1], as section 46 of the POCSO Act provides the power to Central Government to remove any difficulty which arises in giving effect to provisions mentioned under the Act.

Indian Penal Code, 1860 also does provide protection to the wifeunder section 498A which defines cruelty and that may cover to an extent theoffences which is illustrated by the POCSO Act. Further, PWDVAct also provides for the civil remedies for such type of offence.

Lately, Gujarat High Court encountered a case regarding child marriage under the Sharia Law, which was in violation of the PCM Act. This case was filed for the quashing of FIR against a Muslim major person who solemnized his marriage with a minor Muslim girl, who had attained the age of puberty.[2] When the provisions of the POCSO Act and PCM Act along with the IPC are applied to, then the offence is made out for the kidnapping of child under section 361 read with section 363 of IPC, along with the offence of aggravated penetrative sexual assault under section 5 and 6, attempt and abetment of such offence under the section 18 of the POCSO Act, and section 9, 10 and 11 of the PCM Act, for conducting a child marriage.

Unfortunately no case was registered under the POCSO Act and PCM Act in the abovementioned case, and case was filed only under IPC.  Further, Justice J.B. Pardiwala held that there should no coercive measure be taken against the accused while investigating the case by the police, for kidnapping of the minor. He also ordered that the investigation must be pursued as per the principles which were laid down by him in the case of Yunusbhai Usmanbhai Shaikh v. State of Gujarat. [3]

In the Yubusbhai Usmanbhai Shaikh v. State of Gujarat[4] case, the same Judge i.e. Justice Pardiwala quashed the FIR against the applicant stating the reason that he relied upon the Delhi Court Judgment of Lajja Devi v. State[5], in which the Delhi Court laid down that if the girl is above the age of 16 years and gives a statement regarding the consent concerning the marriage, then that statement could be considered for quashing of FIR charging the accused with offence of kidnapping and rape. Though he left the FIR open as far as the PCM Act was concerned.

While, quashing the FIR regarding the offence of kidnapping and rape under IPC, Justice Pardiwala, also absolved the accused from the charge under section 18 of the POCSO Act, regarding which there was no observation in the above mentioned Delhi High Court Judgment. Further, it is pertinent that POCSO Act does not mention anything about the consent of child regarding any offences which makes consent of such immaterial[6], then also Gujarat High Court in the Yunusbhai Usmanbhai Shaikh v. State of Gujarat case imported such matter of consent to the POCSO Act.

Justice Pardiwala also declared in Yubusbhai Usmanbhai Shaikh v. State of Gujarat, that the law laid down in Mujamil Abdul Sattar Mansuri v. State of Gujarat[7] was not good law as it did not discussed the effect of PCM Act in that case and quashed the FIR, stating that, the consent of the minor girl was in favor of the applicant. The Mujamil case was also decided by Justice Pardiwala.

Therefore cases, like Jainulaabedin Yusuf Ganji v. State OF Gujarat & Anr., Yunusbhai Usmanbhai Shaikh v. State of Gujarat, and Mujamil Abdul Sattar Mansuri v. State of Gujarat and many more like them does not take the violation of POCSO Act and PCM Act seriously.

POCSO Act does not mentions anything about the child marriage, though it does covers the persons who are related to the child through marriage, blood or adoption, under the definition of aggravated penetrative sexual assault, if they commit a penetrative sexual assault. Clearly, a husband is covered under the POCSO Act.

If Section 42A of the POCSO Act is followed then husband would also be liable, irrespective of his immunity under IPC, and hence the offence of the rape and aggravated penetrative sexual assault, are separate offences under the ambit of the different Acts. For instance, in the case of Yunusbhai case, Gujarat High Court considered consent of the child and absolved the accused, which resulted in deciding the case of penetrative sexual assault on the lines of the offence of rape, and if that case is followed the immunity which is given to the husband should also be given under the POCSO Act.

Application of the POCSO Act in the marriage would prevent the marital rape in the marriage. This would mean that person below 18 years who are still married would be given protection against the marital rape while above 18 years would have no recourse to any such protection. Wouldn’t that be an inequality?

[1] Bachpan Bachao Andolan v. Union of India and Ors., Writ Petition (Civil) No. 1032/2015, Order dated 05.01.2017

[2] Jainulaabedin Yusuf Ganji v. State OF Gujarat & Anr., Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 30537 of 2016

[3] Jainulaabedin Yusuf Ganji v. State OF Gujarat & Anr., Criminal Misc. Application (For Quashing & Set Aside FIR/Order) No. 30537 of 2016

[4] Yunusbhai Usmanbhai Shaikh v. State of Gujarat, 2015 (3) G.L.R. 2512

[5] Lajja Devi v. State, 2013 Criminal Law Journal 3458

[6] Marimuthu v. Inspector of Police, 2016 SCC Online Mad 10175

[7] Mujamil Abdulsattar Mansuri v. State of Gujarat, Criminal Miscellaneous Application No. 19811 of 2013 decided 01.12.2014



ABOUT THE AUTHOR

dhruv-chandora

DHRUV CHANDORA

Dhruv Chandora is currently pursuing 4th year of BA LLB (Hons) course at Rajiv Gandhi National University of Law, Punjab. A voracious reader and a keen learner, Dhruv is also a moot court enthusiast.

Posted in Criminal Law, Critical Analysis

PINK OR BLUE ? –The gender bias within the Indian Penal Code

This article is written by Simran Bhinder. Simran is a fourth-year law student at O P JINDAL GLOBAL UNIVERSITY.

 

 

A very prominent feature of Criminal law in India is the fact that there is a very clear gender bias. I say gender bias and not “male bias” because there are certain provisions within the Indian penal code which are against both males and females.

Nearly all the laws that deal with crimes against women are aimed at codifying Old and Out-Dated patriarchal notions of how an “ideal” woman should behave. The various case laws further end up legitimising the socially prevalent masculine ideas of how a woman should behave and conduct herself. The words of the law in themselves convey a biased message. For example, Section 135 of the IPC talk about offences that outrage a woman’s modesty. Modesty.

The question here is that how is it that a woman’s “modesty”(a word used to define the behaviour of an individual) is outraged by the uncivilised and improper conduct of a man? Shouldn’t the moral character and the modesty of the man who commits such an anti-social act be questioned and not the other way round?

The fact that the victim was wronged gets overshadowed by the implied consequence that she has lost her social standing. Thus even though the act is aimed at providing a remedy to the woman, the unintentional consequence of the very language that is used in this section ends up further stigmatising the female victims.

Section 375 (sixthly), states that even a consensual sexual act with a woman below the age of 18 years will be deemed to be statutory rape. This section is, according to me, is the most unapologetic refusal of the criminal justice system to recognise a woman’s authority and her rights regarding her own body. It denies a woman the right to decide on an issue that is immensely intimate and very personal. It transforms a voluntary act of love into the beastly act of rape, which is one of the highest forms of physical violation and disrespect of the human body.

The adultery laws in India are another example of how unjustly and unequally the law views women in comparison to men. These laws fail to recognise not only the fact that a wife is an equal member of a marital union but also end up lending legal legitimization to the idea that in a marriage a woman is nothing but her husband’s property, and that he deserves to be compensated for the stealing of and encroachment upon his property by some other man. Thus since a woman is viewed as an inanimate object (the property of her husband) it is assumed that she wouldn’t undergo any psychological and emotional distress if her husband commits adultery. This assumption is clearly reflected in the law since only a married man has the right to file a complaint against his wife’s paramour and no one else. A married woman cannot start proceedings against her husband or her husband’s partner in cases of adultery. The judgement in cases like KALYANI vs STATE (2011), further illustrate it.

Even the Rape laws in India are just a reflection of how the criminal law has actually institutionalised and made stronger the unjust social norms instead of providing remedy for them. A lot has been said about the loopholes within these laws ( which exist even after the much publicised and celebrated 2013 amendments). The fact that even today in almost all the rape law judgements  reference is made to the past sexual history of the victim (as was the case in Mathura rape case) and whether or not her general behaviour was “respectable or not” shows how the forces of socially accepted morality for women function within the legal system also.

There is also a trend of forcefully victimising women in Indian criminal law. The way most of the judgements especially those dealing with rape cases, are worded usually make it seem as if the Rape is the only “event” that would define how victims life would take shape. The punishment is not seen as a correction for a wrong committed but as a compensation for “ruining” a woman’s life.

Another interesting fact is that in India women are never seen as being capable of actually being perpetuators of crimes. The fact that rape laws in India are gender neutral and that in cases of adultery only a man can be booked and not the female companion not only shows how criminal law re-enforces the traditionally accepted notions of feminity and masculinity but also poses a grave danger to the well-being of the society, where in today’s day and age same-sex molestations, including female rapes are a reality.

The main objective of criminal law is to provide equal protection to all the members of the society and this objective can only be realised if the criminal law in India starts viewing women as equal members of the society , who not only have equal rights to the remedies but who can also be equally punished.