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Misuse of dowry laws and the failure of the system

A take on the rights and wrongs of the Supreme Court’s latest order

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The Supreme Court directed in the last week of July that no direct and immediate arrest shall be made under dowry harassment laws. Some three years ago it had observed that anti-dowry harassment laws were being used by disgruntled wives as weapons rather than as shields. What is of concern is that the Supreme Court has virtually endorsed and legitimised the stereotype that women exaggerate and fabricate stories of violence in order to seek vengeance against their husbands and matrimonial families, thereby giving a handle to some people to bank on the Supreme Court to prove the point of view that women misuse the laws.

The verdict of the Supreme Court in Rajesh Sharma & Ors. vs. State of Uttar Pradesh needs to be analysed because it holds victims of violence guilty of misusing the law. Did the Supreme Court have the jurisdiction to brand women in distress as wives who misuse the law? To my knowledge, while exercising appellate jurisdiction, the court is required to examine whether the court below committed an error that resulted in misuse of the process of law. In Rajesh Sharma, the court has not indicated any specific error committed by a court below. Instead of identifying the errors, the court mentions that “there is a tendency to rope in all the family members”. The court mentions the statement of the Additional Solicitor General (ASG) that there is a growing tendency to abuse the provisions of the law, and mentions data from the National Crime Records Bureau (NCRB) to create a foundation that there is widespread misuse of the law.

In Som Mittal vs. Government of Karnataka (2008 (3) SCC 753), it was held that an appellate court shall sit in judgment over the correctness of a decision of the lower court, and not travel beyond that. “The subject matter of an appeal, whether civil or criminal, is the correctness of the decision of the court below. There is no question of [an] appellate court travelling beyond and making observations alien to the case.” I doubt whether the court was justified in framing the guidelines intended to check the misuse of the law without even mentioning which misuse (in the case before it) impelled it to frame the guidelines.

The Supreme Court generalised the facts as it observed that a large number of cases continue to be filed under Section 498A of the Indian Penal Code alleging harassment of married women, and many such complaints are not bona fideones. The observation is not based on any empirical data. The Law Commission’s 243rd report (August 2012) on Section 498A (that came after the directions from the Supreme Court in Preeti Gupta to review the law), observed that the misuse (the extent of which is not established by empirical data) by itself shall not be a ground to denude the provision of its efficacy, keeping in view the larger societal interest.

By relying on NCEB data, the Supreme Court formed an opinion that the low conviction rate and the acquittals in the cases means they are false or fake. The Supreme Court overlooked the fact that the conviction rate in 498A cases could be low because of a number of out-of-court settlements, the complainant-women often not taking interest in the matter, ineffective investigation, and so on. If low conviction rates indicate the truthfulness and genuineness of a genre of cases, then 63.5% of cases of murder are false and fake (NCRB 2013: the conviction rate in murder is 36.5%). This rate of conviction is despite the fact that in no murder case there can be a compromise. Even otherwise, the highest rate of conviction in any genre of cases in India is 37.8%, and that is in counterfeiting. The fact that in 2012 only 14.4% of the cases led to conviction cannot be taken as a fact of life, suggesting a trend of untruthfulness among women. The matter before the court concerned dowry-related harassment. While considering the misuse of dowry-related laws, the court should also have considered the menace of dowry and dowry deaths. As per NCRB data, in 2003 there were 6,208 deaths; in 2008 the number rose to 8,172 and by 2014 to 8,455.

The Supreme court relied on Sushil Kumar Sharma vs. Union of India, Preeti Gupta vs. State of Jharkhand, Ramgopal vs. State of Madhya Pradesh, and Savitri Devi vs. Ramesh Chand, to strengthen the point that there is a need to adopt measures to prevent such misuse. Whereas the Supreme Court overlooked the judgment that addressed the victim’s pains and condemned the menace of dowry. In Satya Narayan Tiwari @ Jolly & Anr vs State of U.P. (2010 11 Scale 481), it had held: “Unfortunately, what is happening in our society is that out of lust for money people are often demanding dowry and after extracting as much money as they can they kill the wife and marry again….” In Vikas vs. State of Rajasthan (2002 (6) SCC 728), the Supreme Court held that “society has to find out ways and means of controlling and combating this menace of receipt and payment of dowry. It appears that instead of controlling payment and receipt of dowry in one or other form, it is increasing even in educated class.”

The Supreme Court has now felt the need to introduce family welfare committees consisting of members of civil society in every district to give reports about the facts and its opinion. But in the case that was before the court it was not an ordinary police officer at whose instance the case was registered. It was a Judicial Magistrate, who upon finding a prima facie case, summoned the accused. The sessions court and the high court upheld the summoning order passed by the Magistrate. The premise is that the hierarchy of courts failed to identify the misuse of law. When the courts themselves could not identify the misuse of the law, would members of civil society be in a position to do so? In the prevailing system there exists a prosecution agency (with a system of counselling) and the judicial system (with family courts with attached counsellors). To check the misuse of law, the prosecution agency and the judicial officers should have been professionally trained, rather than adding another forum of committee consisting of members of civil society. The appointment of such a committee will complicate the process and open an additional window for corruption. It is not clear what would be evidentiary value of the reports of the committee will have.

The Law Commission has given its opinion that the offence should remain non-bailable. After considering this report, the ASG’s suggestion of making the offence compoundable and bailable doesn’t carry much value. Even now, First Information Reports are not registered quickly enough. All the cases are first dealt by Crime Against Women cells attached to police stations. After getting its nod (which may even take a year), FIRs are registered. The direction to add a committee in the process doesn’t mention whether a case would be referred to the committee at the stage of receiving a complaint or after the lodging of an FIR or after the investigation, for the purpose of seeking a nod from the committee to arrest the accused.

The directions on bail, combining of cases, exemption from personal appearance and so on could have been avoided. The court could have given the reason why the discretion to be exercised by the courts below it is being curtailed. The court could have given reasons why it is apprehensive about the wisdom, competence and integrity of its subordinate judiciary. This point becomes more relevant because in the verdict there is no reference to the accused having been arrested, applying for bail and any bail plea being denied.

I believe that the recurring reiteration that women misuse the law are made because the victims of violence don’t belong to a group that is politically, socially or culturally powerful. This makes it easy to put the blame on this scattered mass. Course correction can come only by improving the efficacy of the prosecution agency and the judicial system.

Even on this day, can we ignore the rampant practice of dowry? Can we ignore the fact that the status of the groom decides the quantum of dowry and the make of the car demanded? Considering the evil of dowry, it would have been wiser had the court issued certain guidelines to stop the evil. The time has come to stamp out the evil of dowry from society with an iron hand and ensure that no more dowry-related harassment takes place.

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