AHMED (not his real name) worked in Saudi Arabia for over four years and got married early last year. After spending time with his wife in his hometown in India, he returned to work in the Kingdom and started the process for requesting a family visa in order for her to come and live with him in Saudi Arabia.
A few weeks ago, when he rushed home to India to comfort his wife and assure her that he was doing all that he could to have her join him in the Kingdom, he got the shock of his life. The day he reached home, he was arrested by the police on the basis of a complaint filed by his wife claiming that Ahmed and his family members had been harassing her. It cost Ahmed the flat he had purchased with his hard earned money and other assets to give to his demanding wife in order to be released from police custody and the bad marriage.
This incident is not an isolated case as thousands of men and their families have fallen victim to such accusations by wives after what is commonly referred to as “Section 498(a)” came into effect in India. There are hundreds of instances in which Non-Resident Indians visiting home for vacation or to attend other business have been arrested immediately upon arrival.
Given the spate of dowry-related deaths in India and to stop husbands and their families from committing cruelty against wives in order to extract money from the parents of wives, the government of India in 1983 legislated a new provision in the Indian Penal Code (IPC) under Section 498(a). Plainly speaking, Section 498(a) considers any act of cruelty that a husband or his family commits against a wife as a crime punishable by three years of imprisonment and a fine. It considers as cruelty all of those acts that force a woman to personally harm herself or any physical or mental torture or harassment by the husband or his relatives.
On the face of it, the section is quite laudable as it serves to protect a woman against the cruelty of a man and his family members. It further strengthens the anti-dowry provisions in the Indian Penal Code and gives them enough teeth to act as a detriment for people who beat and harass women in the name of dowry.
However, sadly, this most dreaded Section is being misused by wives to harass husbands and their families. The draconian part of the Section lies in the provisions that enable the accused to be arrested on receipt of a mere complaint by the wife. Moreover, the Section specifically provides that persons arrested under the Section cannot be bailed out easily and the complaints cannot be withdrawn. As there is a large degree of vagueness insofar as the definition of “cruelty” is concerned and as it covers mental torture, in practice, the police assume the power to arrest the accused immediately when a woman files a complaint and the Section has thus become a source of corruption as well.
In a large number of cases, women who have decided to separate from their husbands for different reasons have used the provision to extract money and obtain property from their husbands as part of a settlement. After being arrested and in the custody of police or having the sword of imprisonment hanging over their heads, husbands and in many cases, the elderly parents of husbands have given in to the demands of women. As a matter of fact, the Section has turned out to be a sharp weapon in the hands of disgruntled wives rather than a defensive shield to protect them against cruelty or physical violence.
In October 2015, a 30-year-old banker jumped from a high rise building in Gurgaon district in New Delhi, as he had been implicated by his wife and her family under Section 498(a). Even his death did not stop the wife from filing a dowry-related complaint against the family of the deceased husband. The same month, Deepika Bhardwaj, a social activist and a journalist produced a well received and acclaimed documentary “Martyrs of Marriage” wherein she presented six real cases to show how wives had sabotaged families by misusing the Section.
In July, 2014, seeing the rampant misuse of the Section, the Supreme Court of India remarked that women were increasingly using the Section to harass their husbands and in-laws. The apex court restrained police from arresting the husband or his relatives on the mere lodging of a complaint under the Section. It required them to satisfy themselves about the necessity of arrest under the parameters set forth in section (41) of the IPC, which provides a checklist or conditions to be satisfied before arresting any person involved in a crime punishable with less than seven years of imprisonment.
When the government of India enacted the provision in the Penal Code, probably, no one imagined that the Section would be misused by women to such a great extent, nor did they anticipate that it would send thousands of innocent people to prison and result in people committing suicide to avoid physical and mental torture. Ironically, more than a quarter of the people arrested under the Section in the past decade happen to be women. Since hearings on cases involving the Section can run for three to four years, those booked under the Section languish in the jail until completion of the trial. A mere 15 percent of those arrested on the basis of complaints by wives have actually been convicted by the courts. This demonstrates a clear misuse of the Section that needs to be curbed with an equivalent force.
When one views it from the universal right to equity, justice and due process, the gross misuse of the Section infringes and tramples on several rights of citizens, especially the right to equality, a fundamental right under Article 14 of the Indian Constitution. Although India fell short of expressively providing for due process in its Constitution, Article 21 of the Constitution, which is part of the fundamental rights, specifically commands that no citizen can be deprived of life or personal liberty except according to procedure established by law. In 1978, in a landmark judgment involving the high profile Gandhi family, the Supreme Court found the order by the Passport Department restraining the movement of Maneka Gandhi, the daughter-in-law of Indira Gandhi, to be a violation of Article 21 of the Constitution. The notable point of the judgment was that the court ruled that “the mere existence of an enabling law was not enough to restrain personal liberty - such a law must also be ‘just, fair and reasonable’”. When section 498a or rather its application is properly seen in the light of this ruling, it will be clear that it is restraining personal liberty without due process.
While those who abuse and harass women must be punished in accordance with the provisions of the Indian Penal Code, the Section must not be allowed to become a tool or a weapon for women who wish to extract vengeance against their husbands or in-laws or wish to separate from them after extracting money or property in settlement. In fact, different court rulings and opinions by judges call for amendments to the Section to prevent its misuse.
Although it has affected all communities across the nation, it has particularly destroyed the lives of thousands of Non-Resident Indians since they have not been able to return to their work on time and pursue their careers. Moreover, in many cases, these men have had to give up or surrender everything they had in order to be released from custody and avoid years of incarceration waiting for the completion of hearings and the court ruling.
Safi H. Jannaty,
Dammam
