Tuesday, October 18, 2005

Dowry law being misused by women

The Times of India Says:
NEW DELHI: The Supreme Court has agreed with a petitioner that Section 498A of Indian Penal Code, which seeks to protect women from being harassed for dowry, was being misused through frivolous cases filed by women to trouble their in-laws.

The court, however, upheld the constitutional validity of the Section, with a Bench comprising Justices Arijit Pasayat and H K Sema dismissing a petition challenging the validity of Section 498A. The judges though added a word of caution, saying, "Merely because the provision is constitutional, it does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment."

The judges called upon the legislature to refine the Section and "find out ways how frivolous complaints or allegations can be appropriately dealt with".

Petitioner Sushil Kumar Sharma had sought quashing of Section 498A challenging its constitutional validity. In the event that the court found the Section valid under the Constitution, Sharma had sought guidelines so that innocent persons are not victimised through false accusations.

Section 498A of IPC, which defines the offence of matrimonial cruelty, was brought in through an amendment in 1983. An offence under the Section is non-bailable, non-compoundable and cognisable on a complaint made to the police officer by the victim or by designated relatives.

Cruelty is defined in the Section as any conduct that is likely to drive a woman to commit suicide or to cause grave injury. Though the object of the provision was to prevent the menace of dowry, the Bench agreed with the petitioner that in many instances, the complaints are not bonafide and have been filed with oblique motive.

"In such cases, acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes, adverse media coverage adds to the misery,"Justice Pasayat, writing for the Bench, observed in the 11-page judgment pronounced recently.

False dowry case ample ground for divorce: HC (Delhi)

Times of India dated 2nd Feb 2005.(page 4)
By Bhadra Sinha/TNN

New Delhi: In a landmark judgment, the Delhi High Court has ruled that lodging false dowry complaints against men amounts to cruelty and can be a ground for dissolution of marriage. The court granted divorce to a man who alleged mental cruelty by his wife.

With this order, Justice O P Dwivedi disposed of a four-year-old petition in which a woman had challenged a lower court’s order permitting divorce to the husband. Mita Jain (name changed) admitted during the proceedings that she had filed a false case of dowry against her husband, in-laws and their relatives in Meerut. As a result of the false complaint, the husband and relatives were in jail for 10 days. The court construed this to be an instance of cruelty. It also concluded against that Mita’s acceptance of Rs 5.25 lakh as a final settlement for divorce was an unfair act. After receiving the payment, Mita gave a statement before Meerut’s chief judicial magistrate in which she admitted that the dowry case against her husband was false. Yet she refused to give divorce.

‘‘The act of the woman in filing a false case was not based on true facts. It clearly amounts to cruelty. Not only did she receive Rs 35,000 and Kisan Vikas Patras, she resiled from her agreement and did not sign papers of divorce,’’ said Justice Dwivedi.

In 1999, the lower court had passed an order in favour of Mita’s husband who claimed his wife had been mentally harassing her since 1993, the year when they left the family home to live separately. According to him, she once attempted to get a false case registered against him. The lower court observed in its order that things went wrong between the two after they started staying in a rented accommodation. ‘‘As per the averments of the husband, the wife refused to cook meals for some of his friends whom he had invited for a party on his birthday,’’ the judge had said.

CLICK HERE for Full text of the Delhi HC judgment

Friday, October 14, 2005

44% of dowry death cases are false

The Following judgement in 2000(1) Karnataka Law Online starting on Page no 560 is illustrative of the severity of the abuse of the process of law happening in the dowry harassment and section 498a cases:

In the High Court of Karnataka
M.F.Saldhana & M.S. rajendra Prasad
JJCrl.A. no. 589 of 2003
Decided on 4-9-2003

Important excerpts starting from page 562:

We need to sound a note of caution that the police and investigating authorities should not improperly and technically jump to the conclusion that merely because death has occurred that ipso facto a criminal offense has been committed. In as many as 44% of these cases prosecution is thoroughly unjustified. Unless there is cogent and convincing evidence and unless there is material to sustain these charges, it would be totally impermissible and completely unjustified to embark upon legal action. The consequences of these charges are extremely grave because the accussed husband and invariably family members are placed under arrest. There are serious social and economic repurcussions.

End of excerpt

A little later following excerpt from same judgement:

The fact that we do come accross considerable number of instances where prosecution was unjustified seems to indicate that in every case of death of young woman or recently married women that prosecution and filing of charge sheet has become automatic. There does not appear to be a proper application of mind at the stage of scrutiny and having regard to this position we direct the concerned authorities to ensure that requirements of the law are correctly and responsibly followed. Copy to be followed to D.G. ( Police ).

I appeal to the judiciary also to take up the slack pointed out in this judgement and dismiss proceedings where prosecution has no case. Important point of law is that complaint and case are not synonmous and that case is made only by providing material substantiating the complaint. Mere complaint should not be treated as sufficient to proceed with trial any of the cases. Unfortunately in the Dowry harassment and section 498a without any material only on the say so of relative and friends of the girl the proceedings are started which is wrong. During the Charge/Discharge stage carefull evaluation of the material placed by both accussed and prosecution has to be done if there is sufficent material which could lead to conviction and it has to be done on broad sweep without going into minor contradiction. That is ASSERTION MATERIAL ANALYSIS has to be done to decide whether there is a prima facie case or innocence is already established.
Anybody who has read Perry Mason novels knows that in order to substantiate case you also have to get some witnesses to depose before a case is committed to trial. Unfortunately we are demanding too little from the prosecution and investigative authorities to substantiate if they have a case. I suspect that if we rigourously follow this practice that upto 40-50% of the cases will not be commited to trial and that instead of the current 3-5 years for decision it would take 11/2 to 3 years to come to a decision. This would reduce a lot of burden on the courts.

Thursday, October 13, 2005

Warning Signs of an Abusive Personality and Future 498A

If your wife/her family is displaying a combination of these behaviors, then you may have a potential 498A mis user on your hands.

1. Family: Is newly-rich; Likes to show-off (their house/cars/paintings/relatives/ connections, etc.); Related to politicians/bureaucrats/lawyers/judges/police officers; Has a history of filing cases against anybody and everybody (search the website of the courts in their State of residence); Beats up its employees; Lives beyond its means; Mother's face cannot be seen beneath the layers of cosmetics; Father acts like a 'Brown Sahib'; Girl/her sister has been in more than one previous relationship, etc.
2. A push for a quick involvement: Comes on very strong, claiming, "I've/We've never felt loved like this by anyone/or so close to anybody." An Abusive woman/her family pressures the man/his family for an exclusive commitment almost immediately.
3. Jealousy: Excessively possessive; calls constantly or visits unexpectedly: prevents you from going to work because 'you might meet someone;" smells your jacket for perfume residue, checks your shirt collar for lipstick marks and goes through your pant pockets.
4. Controlling: Interrogates you intensely (especially if you're late) about whom you talked to, and where you were; wants her name on all your assets/control all the money.
5. Unrealistic expectations: Expects you to be the perfect man and meet her and her family's every need.
6. Isolation: Tries to cut you off from family and friends; accuses people who are your well wishers of "causing trouble."
7. Blames others for problems and mistakes: The boss/the employee, her ex-boyfriend/ ex-husband, it's always someone else's fault if anything goes wrong.
8. Makes everyone else responsible for her feelings: The abuser says, "You make me angry instead of, "I am angry' or, "You're hurting me by not doing what I tell you." Less obvious is the claim "You make me happy."
9. Hypersensitivity: Is easily insulted, claiming that her feelings are hurt when she is really mad. She'll rant about the injustice of things that are just part of life.
10. Cruelty to animals and to children: Kills, maims (e.g., tears the wings off a butterfly) or punishes animals brutally (e.g., by kicking them till they bleed). Also may expect children to do things that are far beyond their ability (makes an 18 month old stand in a corner or whips a 2-year-old for wetting a diaper) or may tease them until they cry.
11. "Playful" use of coercion during sex: Enjoys initiating and controlling sex, stimulating herself and teasing; asks about your sexual fantasies.
12. Verbal abuse: Constantly criticizes you/your family, or says blatantly cruel, hurtful things; disgraces, curses, calls you/your family ugly names. This may also involve sleep deprivation, waking you up with relentless verbal abuse.
13. Rigid sex roles: Expects you to serve and obey her/her family.
14. Sudden mood swings: Switches from sweetly loving to explosively violent in a trotter of minutes or even more confusing, within seconds. You feel as you are walking on "eggshells" around her.
15. Past behavior: May not actually admit to hitting men in the past (but may write it in her journal/diary and says they made her do it or the situation brought in on).
16. Threats: Makes statements like, "My parents will support me even if I murder someone," or "A woman is always right/the system should always believe the woman" or "I will cut you up the way a fisherman slices fish" and then dismisses them with, "Everybody talks that way," or "I didn't really mean it." If she has come this far, it is time to get help and get out!