Combatting the misuse of dowry and DV laws

Dowry has been a result of the inheritance laws which were biased and unfair. It is said that the earlier mention of dowry dates to the code of Manu which sanctioned dowry and bridewealth in ancient India. The practice has, unfortunately, lived on to be considered as one of the menaces that is plaguing progressive India. Dowry can be goods, cash and movable/immovable properties given from the bride’s family to the groom’s family, at the time of marriage.

A concept that is so closely attached with dowry, that it is almost always said together is domestic violence. It is treating women with cruelty by the husband and/or his family members for reasons including dowry demands. Domestic violence can be physical, emotional, sexual and/or economical.

However, the government felt the need for a separate and stringent law which makes the practice of giving and taking of dowry punishable and thus, enacted the Dowry Prohibition Act, 1961. The said Act excludes presents in the form of clothes, ornaments etc. which are customary at the marriages, provided the value of the same is within Rs. 2000. According to the Statements of Objects and Reasons of this Act, the draftsmen thought that inclusion of such provision would make the law workable, and without such provision, the law would become redundant.

In 1983, Section 498-A was inserted in the Indian Penal Code to deal with the offence of subjecting women to cruelty by her husband and his relatives. Offences under this Section were cognizable and non-bailable which meant that the police could arrest a person without a warrant issued by the court. Further, a presumption was inserted by way of Dowry Prohibition (Amendment) Act, 1986 in the form of Section 304-B, wherein if a woman dies an unnatural death within 7 years of her marriage, it is presumed to be dowry death, and the husband and his relatives will be deemed to have caused such death.

Further incidents of domestic violence against the wife set the legal machinery in motion and the government had to enact the Protection of Women from Domestic Violence Act, 2005. The purpose of the said enactment is the effective protection of the rights of the women guaranteed under the Indian Constitution who are victims of violence within the family. The said Act is a special law with an objective of providing relief from domestic violence. The acts of harassment of unlawful dowry demands are also covered under this Act.

Although, the Law Commission and the courts emphasized on ensuring the balance between protecting individual liberty and maintaining societal order, the same is not practiced. Over passage of time, dowry and domestic violence provisions have proved to be costly to husbands and their relatives as a number of frivolous cases were on the rise. The Apex Court had to take notice of the same and lay down strict guidelines to ensure that these provisions of law are not misused.

Supreme Court combats misuse of the laws

The Judiciary has more than once acknowledged the misuse of the dowry and domestic violence provision. However, sweeping changes were introduced by the Apex Court in Arnesh Kumar v. State of Bihar, Criminal Appeal No. 1277/2014  where it set guidelines and directed the authorities that there won’t be an automatic arrest in the case of offences under Section 498-A.  In Arnesh Kumar’s case, the Supreme Court relied on the ‘Crime in India 2012’ statistics compiled by the National Crime Records Bureau, which reflected the dangerous trend of increase in the number of arrests under these sections and that nearly quarter of those were based on complaints filed by women. In number of cases, bedridden family members of the husband were arrested. It also opined that out of the cases pending trial, most of it were likely to end up in acquittal.

Being alarmed by such trend, the Supreme Court made endeavours to ensure that the police officers do not arrest the accused unnecessarily and the magistrates do not authorise detention casually and mechanically, without application of mind and looking into the circumstances of each case. The Supreme Court even went to the extent of warning such police officers who do not comply with such guidelines/directions of having to face disciplinary enquiry and contempt of court proceedings against them. Not stopping there, the Supreme Court also warned the magistrates authorising detention without following these guidelines will be liable for disciplinary action that may be instituted by the jurisdictional High Courts.

The Supreme Court directed the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of Indian Penal Code and Section 4 of the Dowry Prohibition Act is registered, but to satisfy themselves about the necessity for arrest under the parameters laid down in Section 41 of the Code of Criminal Procedure. Further, the police officers to be provided with a checklist containing specified sub-clauses of Section 41 (1) (b) (ii) of Code of Criminal Procedure.

This judgment came to the rescue of those husbands and their relatives who were humiliated and harassed on the pretext of proceedings under these provisions. The guidelines were the need of the hour.

The above guidelines of the Supreme Court have been reiterated in the cases of Sushil Kumar Sharma v. Union of India, Civil Appeal No. 4399/2005 before the Supreme Court; Savitri Devi v. Ramesh Chand, Criminal Revision No. 462/2002 before the  High Court of Delhi; and more recently Rajesh Sharma v. State of U.P., Criminal Appeal No. 1265/2017 before the Supreme Court.

How to defend a false case

1. First and most important action to take when apprehending facing charges under dowry and domestic violence provisions is to obtain anticipatory bail. Anticipatory bail becomes operative on arrest where the husband and/or his family members can be let off as soon as they are arrested.
2. Alternatively, the police can issue notice under Section 91 of the Code of Criminal Procedure. Based on such notice, person/s against whom the complaint has been lodged can reasonably apprehend that the police would arrest them, so such person/s can approach the sessions court to obtain anticipatory bail. Once the aggrieved obtains anticipatory bail, it is important that the conditions imposed by the Session Court for the grant of such bail are complied with, failing which the Court can cancel the bail at any point in time and such person/s is/are exposed to the risk of being arrested.
3. Usually, once the complaint is received, the police summon such person/s named in the complaint for recording their statement and an FIR is registered based on such complaint. The person/s against whom such complaint is lodged must ensure that the police issue notice under Section 41A of the Code of Criminal Procedure.
4. It is important that people against whom the case for demand of dowry and/or domestic violence is instituted, they have to appear before the Court and file their objection/reply. It is often seen that the reservations of the aggrieved about the judicial system discourages them from approaching advocates and seeking their help in defending the case instituted against them. Seldom do they realise that the Court can proceed even in their absence and the decision of the Court could prove detrimental, instead, it is advised that they take professional help in defending the case.

Way forward

Although the law was enacted and subsequent amendments were carried out for safeguarding rights of married women and ensuring their safety in the matrimonial homes, it did not take much time for the same provisions to be fatal to many families where ego outweighed human relationships. 

It was at this moment that the Judiciary of our country stepped in and issued stricter guidelines to ensure that the provisions of law are not misused. Looking back, the abuse of these provisions of law has comparatively reduced as the law enforcement agencies have kept a strict vigil against the false and frivolous complaints filed under these provisions. Further, the Judiciary, especially the subordinate courts, have become sensitive towards such cases and ensuring that the innocents are not punished wrongfully.

However, the Bar is yet to be sensitised towards such issues. More often, advocates are seen advising the clients to institute multiple proceedings under various laws against the husband and his relatives in order to humiliate and harass them. If the Bar is sensitive just like the Bench, the number of frivolous cases filed under the provisions of law under discussion would reduce and the precious time of the Judiciary will be saved.

Similarly, provisos should be included in the law to ensure that it is not used for the purpose of malicious prosecution. The lawmakers should focus on including stringent punishment against those misusing these provisions of law to discourage people from filing frivolous complaints/proceedings.

If this dangerous trend is not checked, it would end up similar to the story of ‘the boy who cried wolf’ and the genuine complaints/proceedings will be ignored and actual victims made to suffer.

DISCLAIMER: The information provided in this article is for educational purposes only. The same cannot be construed as legal advice