PRO-WOMEN DOMESTIC LAWS: A SHIELD TURNED SWORD?
[Authored by Charvi Devprakash, 2nd year B.B.A LL.B (Hons.) student at PES University, Bengaluru]
India is a diverse country with different cultures, religions, and propagators of religions. It is a pluralist, multicultural society heavily influenced by faith and religion. Respecting this, Sec 25 of the Constitution gives every person in India, irrespective of their nationality or citizenship, the freedom to practice, profess and propagate any religion of their choice. Along with this the country also grants to all its citizens special religious personal laws, thereby respecting the varied faiths of the population.
However, it wouldn’t be wrong to say that many at times, many have misconstrued religion and religious scriptures to perceive it in the way they have wanted to, giving rise to deep rooted issues like patriarchy and son-preference and treating women as the weaker sex. This prejudice against women is also reflected in the older versions and in some cases even in the newer versions of the personal laws formulated by the legislature, as the source of these personal laws are the religious scriptures like the Dharma Shastras, Holy Quran, etc...
For instance, under the Hindu Marriage Act, 1955, the codification of these laws only heightened the already existing disparity between the two genders. Even today, laws pertaining to adoption, widow property rights and in property succession rights of male and female intestates in cases of coparcenary properties, reflect male preference thereby indicating women to be the minority.
To talk of Muslim Law, while polygamy is practiced even today in countries like India, polyandry has never been a subject to even think about. A concept as basic as divorce, literally treated women like objects, with them having absolutely no say in their marriage, under the Muslim Law. Despite, being aware of the existence of such an irrational and demeaning practice, it took 70 years for a country as progressive as India to get rid of this practice and protect the interests of Muslim women.
While the very laws of the country that are formulated for the purpose of equality, reflect such inequalities and inequities, it shouldn’t come as a surprise if the other unwritten traditions and laws reek of patriarchy and irresponsibility towards constructs like social and gender equity and equality.
This is the very reason why women have to be protected not just out of their homes, but even in their homes, from their families. And this is why the legislature has formulated pro-women domestic laws. However, are these laws really fulfilling their true purpose?
The misuse of pro-women domestic laws
If cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual “wolf” appears.
Under the Hindu belief and the Hindu Marriage Act, 1955, the concept of marriage as an institution is considered sacred; a sacrament that unifies a man and a woman and binds them in an everlasting bond; a bond that is forever and immortal. Under the Muslim Law or Shariat, marriage is considered to be a contract between a man and a woman; a contract that outlines the rights and obligations of both the parties, and the one that legitimizes the relationship between the couple and their future generations.
Regardless of it being a contract or a sacrament, a marriage is considered for and carried out in bona fide, across religions. However, the same religious scriptures and faith upon which marriage and the personal laws that validate them are based are misconstrued, social evils like male predominance, objectification of women and dowry system find their place. Therefore, in order to protect women, the laws of the land have recognised these social evils, and have formulated laws to put an end to the same such as The Dowry Prohibition Act, 1961.
However, are these pro-women domestic laws really operationally effective? Is the aggrieved party receiving justice? Are only the guilty being punished? These are some of the questions that are thought provoking.
Dowry: As a pro-women domestic law
To understand the concept of dowry, it is a concept in India and under the personal laws typically meaning the transfer of parental belongings, items or cash given at the time of marriage of the daughter. Dowry is an inevitable social evil and a mandatory demand posed by the groom and his family, the non-compliance of which can have serious repercussions on the marriage. Dowry as prescribed in the Vedic education is not the same as what has turned out to be today’s vicious and cruel practice. As mentioned earlier, the same has however been misinterpreted into an evil tradition as what is seen today.
From centuries, it can be seen that non-conformity to such absurd demands of the groom’s family has led to troubled marriages and the wives becoming the victims of domestic abuse from the groom and his family, eventually destroying the marriage, and shattering a woman’s life permanently. Having recognised this pattern, the legislature has formulated laws that safeguard the interests of women from the greed of the groom and his family, namely the Dowry Prohibition Act, 1961.
These laws have undoubtedly protected many women from this social scourge. But some women have also misused these laws putting the innocent at stake, and there has been no method to verify the credibility of such complaints, making these laws operationally ineffective and easily exploitable.
The misuse of dowry laws isn’t a new concept in India. It was recognised way back, in the case of Balbir Singh & Anr v. The State Of Punjab. The Hon’ble court of law observed that “Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging.
While these laws had already begun to be misused way back the 1990s, it was recognised by the judiciary only in 2006. However, 14 years have passed, and there are thousands of false complaints being filed on a daily basis, but there are no amendments to regulate and validate the same.
The Dowry Prohibition Act, 1961 is a 59 year old law and yet has been amended only once in 1984. This Act is outdated, obsolete, and irrelevant in today’s times and needs to be amended in order to apply to today’s women and their interests. In a 2000 case, the Supreme Court recommended a few amends to the Dowry Prohibition Act, 1961.
Two decades have passed since, and yet no amendments are made to the Dowry Prohibition Act, 1961. However, the offence of ‘dowry death’ has been added to the Indian Penal Code under Sec 304B. This once again shows that despite these laws are redundant, no effort has been made to revamp these laws and make it suit the needs of today’s rapidly changing world, indicating its operational inefficiency. This also makes it very easily exploitable.
Sushil Kumar Sharma v. Union of India
In one of the recent cases, Sushil Kumar Sharma v. Union of India and Others, the Hon’ble Supreme Court said “The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bona fide and have been filed with oblique motive.” It went on to say, “The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon.
There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
This judgement has set a new definition of what is expected of the Dowry Prohibition Act, 1961, or any law that is leaning toward the interests of one particular community, here women.
Justice Malimath Committee on Reforms of Criminal Justice System
Lastly, to talk of the Justice Malimath Committee on Reforms of Criminal Justice System, constituted in 2003 by the Ministry of Home Affairs, Union of India. The committee made a lot of recommendations in various of fields of the legal system. But in this context, the committee recommended making Sec 498A, a (section which is majorly used in dowry harassment cases) a bailable and a compoundable offence. However, that amendment has also not been implemented. Sec 498 A continues to be a non-bailable offence. Though it being non-bailable, it may protect the interests of genuine complainants, but it might also imprison the innocent due to the false complaints.
“It is better that ten guilty persons escape, than that one innocent suffer”
As theoretically sound the pro-women domestic laws may be, it is of paramount importance to ensure the efficiency in the enforcement of those laws, when put to practical use. The operational inefficiency of these domestic laws defeats the very purpose of law, that is to serve justice to the deserved. In these changed times, where women in India are growing to become more self-sufficient individuals, certain laws that are formulated to protect the interests of the women are being misused, making the innocent, sufferers. It is very important for the laws of the land to be dynamic and consistent with the rapidly changing world. Perhaps, due to the deep rooted pre conceived notion of women being the weaker sex, instead of protecting the interests of genuine complaints raised by women, these laws put the well-being of men and their families at stake.
Many a time, women have used these laws and their gender as a tool to get rid of the offences committed by them. The deep-rooted patriarchy and the incessant need to safeguard the interests of women from the greed of men and their families have often put justice at stake. One does not seem to assess the credibility of these complaints.
Though it goes without saying that these laws have and will continue to safeguard women from the clutches of their own families, there are many false complaints that are only filed to either threaten the husband and his family or for claiming damages. To conclude, Justice for the deserved, is the sole purpose of any law of this country. But justice for some should not come at the cost of injustice to many. Therefore, these laws need to be made more stringent and efficient, in order to be operationally sound in today’s world ensuring that there is no exploitation of these laws.
 Sec 25, Constitution of India, 1950.
 The Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India).
 Shariat Act, 1937, No. 26, Acts of Parliament, 1937 (India).
 Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281.
LQ 2006 HC 2891.
 Bharat, Misuse of Anti-dowry laws, Legal Services India, http://www.legalservicesindia.com/article/147/Misuse-of-Anti-Dowry-Laws.html.
 AIR 2000 SC 2324
 (2005) 6 SCC 281.