Author: Aditya Garg, II year of B.A.,LL.B.(Hons.) from National Law University, Jodhpur
Introduction
According to the Oxford Dictionary, "Gender Neutrality" "is common to both male and female genders and refers to the principle that laws, language, and other social structures should not differentiate roles based on people's sex or gender, and that men and women should be treated equally without any discrimination." [i]On that basis, Indian Constitution Article 14 was drafted, which stated:
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.”[ii]And in line with principle of equality,Indian Penal Code, 1860 {“IPC”} was drafted of which Section 2 says: “Every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.” [iii]This clause makes it obvious that the IPC does not establish gender distinctions between criminals and that anyone who commits a crime will be held accountable for it. However, numerous provisions specified in the IPC have turned this law into a gender-biased legislation, contradicting the intended equality. One such clause is the "Dowry Death" clause in regard to cruelty, which will be discussed further below.
When someone says "Dowry Death," pictures of a woman being tortured and harassed for money before being hanged within her home instantly spring to mind. According to feminists, every unnatural or untimely death of a married Indian woman is the result of dowry payment. Furthermore, feminist exaggeration of bride murder and dowry harassment creates the idea that Indian males have a disturbing proclivity to abuse their wives in order to get money and property. [iv]But that is not only the true picture and as we will see we would get to know that this is a very gender biased legislation and men may not be always liable for dowry death as presumed in this section, let’s try to find this out.
Specific Legislations
Section 304B of IPCdefines Dowry Death which states that:“When a woman dies as a result of burns or bodily injury, or otherwise than under normal circumstances, within seven years of her marriage, and it is proven that she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death is referred to as "dowry death," and such husband or relative is deemed to have caused her death”.[v]
Section 498A of IPCspecifies that “if cruelty and harassment are proven to have been inflicted on a married woman by her husband or any related of her husband, such husband or relatives of the husband shall be punished with imprisonment for a time that may amount to three yearsand shall also be liable to fine. For the purpose of this section, “cruelty” means—
(a) any purposeful action of such a kind as to push the woman to commit suicide or to cause significant injury or risk to the woman's life, limb, or health (whether mental or physical); or
(b)harassment of a woman in order to coerce her[vi]or any person related to her to satisfy any unlawful demand for any property or valued security, or in response to her or any person related to her failure to meet such demand”.[vii]
Both these section should be read along with Section113A of the Indian Evidence Act, 1872{“IEA”} which states that when above two sections are fulfilled, Court may presume that husband or relatives of husband are liable for suicide of wife.[viii]
Comments:The provision was specifically designed to protect the nation's "women section," as stated in section 304B, by stating "where the death of a woman" and thus this section is blatantly biased against men because it exclusively defends women against abuse from their husbands and his family members while saying nothing about the abuse that men experience at the hands of their wives and does not uphold their legal rights.[ix]
Secondly,the arrangement under the above mentioned provisions is disproportionate due to:(a)First off, the phrase "normal circumstances" has no definition in the code itself and is open to interpretation by the court. (b) Secondly, the husband and/or his relatives are considered to have caused the woman's "dowry death" even if it cannot be shown that she was the victim of cruelty or dowry demands. (c) Thirdly, the legal basis that the criminal justice system is based on is utterly at odds with the use of the word "shall."
And thus from above three clauses,The burden of proof shifts from the prosecution to the defendant because the prosecution only needs to present evidence linking the woman's death to any cruelty related to it; beyond this, the onus is on the husband and/or his relatives to prove that the woman was not subject to any cruelty or dowry demands. This violates the accused's legal right to the presumption of innocence in a criminal trial. [x]These provisions show a marked departure from the ordinary principles of Criminal law wherein it’s entirely upon the prosecution to prove the guilt of the accused beyond reasonable doubt. This is completely wrong and goes against principles of Natural Justice as well as rule of law. And there is data on this which shows how this provision has been thoroughly misused which says, “In as many as 44% of these cases, prosecution is thoroughly unjustified and According to the National Crime Records Bureau statistics, in 2012,only 15% of the accused in all the cases were convicted.”[xi]
Though, there is no denying the fact that women do need protection but this provision is being widely misused by women across the country for their personal agenda where the innocent families are prosecuted whether or not they have demanded dowry and hence change is required in it.And now let’s look upon some Supreme Court decisions which have highlighted their view on the said issue.
Case Law
In the case of Sushil Kumar Sharma v. Union of India, Petitioner Sushil Kumar Sharma stated that Sections 304B and 498A of the Indian Penal Code, which attempt to protect women from dowry harassment, were being abused through false charges brought by her wife to cause trouble for her in-laws, and hence are liable to be stuck down.
In this case, the Supreme Court declined to declare said sections unconstitutional, instead declared them to be acts of legal terrorism committed against innocent people. According to the court, it is used as an assassin's weapon to carry out personal vendettas, which is contrary to the purpose of the regulations, which is to protect the victims.
The court warned the false accusers that if overuse continues, 304B and 498A may eventually be rendered ineffective and the court may not be able to discern between legitimate cases and spurious accusations and court said “If the cry of wolf is made too often as a prank, assistance and protection may not be available when the actual wolf appears”.
The Apex Court also warned investigative bodies and lower courts to be watchdogs rather than bloodhounds and spoke harshly of them. They were told not to subject innocent people to suffering because of unjustified and baseless accusations and thus the court warranted the legislature to re-evaluate these clauses.
Additionally, In the case of Preeti Gupta v. the State of Jharkhand, The Court took note of the common tendency to implicate husbands by filing exaggerated false versions of incidents and warranted the Legislature to find out ways, how frivolous complaints and allegations can be appropriately dealt with.[xii]
Current Status
Presently, the provisions are still retainedunder the IPC as well as IEA in their entirety and have not been repealed, though certain recommendations have been made by various provisions to make it more neutral like:
ü “Justice Malimath Committee on Criminal Justice Reform” recommended that offence of dowry death should be made compoundable as well as bailable. [xiii]
ü “The 243rd Law Commission”report highlighted the necessity for bringing an amendment inSection 498A to make it more gender neutral as the section only aims to protect the rights of the women.
But these provisions continue to exist as it is without any amendment in them.
Reforms Needed
Looking into the increased misuse of these Sections, following suggestions are proposed to make it more transparent and gender neutral so that it doesn’t favour only one class of society:
1. One of the most important open-ended concern is whether the threat of dowry and violence against women truly being reduced by these laws? Do these rules actually affect the attitudes of those who still mistreat women?
People who oppress women, continue to do it, whether with, or without the existence of such 'women empowering' legislations. What we first really require is a social change so that stereotypes attached to role of men are changed.For instance:
ü Stereotype: - “Men are stronger than women and thus cannot be victims of domestic violence”
ü Potential consequence: Men may not bring cases of domestic violence to the police and judiciary.
Such type of mindset of people is needed to be changed at the very outset.
2. Since Section 304B is gender biased legislation, it should be made amended to be made more gender-neutral and specifically, the word spouse should be used in section instead of husband or wife.
3. The broad definition of mental cruelty provides room for women to abuse Section 498A. The legislator must therefore define the parameters of cruelty in order to comply with this clause.
4. The above mentioned sections should be amended so that burden of proof must lie on the prosecution, and not on the accused, in alignment with the Universal Declaration of Human Rightsunder which one is presumed to be innocent until proved guilty.
5. In order to provide further relief, the offences should be made bailable and compoundable as it can protect the parties in cases where false complaint is filed.
6. Women and their families, who file such false complaints, must be penalized heavily, either by way of fine, or imprisonment, or both.
7. Except in situations where there is clear evidence of violence against the wife, immediate arrest should be postponed until all efforts at rapprochement have been made and family counseling centres should be established to cater to the needs of aggrieved family members.[xiv]
These reforms will provide a path to avoid the gross misuse of the provision and contribute in significant way to make it more gender neutral, in aligning with the spirit of Constitution so that rights of both men and women can be protected.[xv]
ENDNOTES [i]https://www.oxfordlearnersdictionaries.com/definition/english/gender-neutral#:~:text=gender%2Dneutral-,adjective,difference%20between%20men%20and%20women [ii]https://indiankanoon.org/doc/367586/ [iii]https://indiankanoon.org/doc/915147/ [iv]https://blog.finology.in/Legal-news/gender-biased-laws#:~:text=In%201983%2C%20Section%20498A%20was,the%20nature%20of%20the%20crime [v]https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=342#:~:text=For%20the%20purposes%20of%20this,extend%20to%20imprisonment%20for%20life.%5D [vi]https://desikaanoon.in/gender-biases-in-the-india-penal-code/ [vii]https://www.indiacode.nic.in/show-data?actid=AC_CEN_5_23_00037_186045_1523266765688&orderno=562#:~:text=India%20Code%3A%20Section%20Details&text=%5BWhoever%2C%20being%20the%20husband%20or,also%20be%20liable%20to%20fine. [viii]https://www.advocatekhoj.com/library/lawreports/evidenceact1872/137.php?Title=Review%20of%20the%20Indian%20Evidence%20Act,%201872&STitle=Section%20113A#:~:text=The%20section%20requires%20proof%20that,the%20court%20'may'%20presume. [ix]https://www.legalserviceindia.com/legal/article-3358-gender-biased-laws-in-india.html [x]https://lawx.in/news/view/presumptions-as-to-dowry-death-burden-of-proof [xi]https://www.mylawman.co.in/2021/06/legal-article-gender-biased-laws-in.html [xii]https://desikaanoon.in/gender-biases-in-the-india-penal-code/ [xiii]https://www.refworld.org/docid/3f914cba4.html [xiv]https://www.legalserviceindia.com/legal/article-3358-gender-biased-laws-in-india.html [xv]Civil Services - UPSC- IAS - Study Material - Exams - Free Online Test (jeywin.com)