Reference Invitation to the public of India seeking consultations on IPC 498A: http://lawcommissionofindia.nic.in/
S.498A by its definition and its procedure fails in the fundamental test of a concept called corpus delicti (Ref:http://en.wikipedia.org/wiki/Corpus_delicti) which is concept that it must be proven that a crime has been committed before any accused is even tried by a court of law or arrested for trial. It is proper to register a complaint and start an investigation, but unfair to initiate proceedings against the accused without any material evidence of occurrence of cruelty. The sole basis of registered complaint is not enough to prosecute the accused until reasonable evidence is presented to initiate prosecution. Therefore all the cases booked till date were/are illegal and are to debited to the criminal negligence and betrayal of the law makers who have been voted to power or employed by the citizens of this nation who happen to be both men and women and not just women. The politicians, executive & judiciary are all equally answerable and have responsibility to all citizens whether male or female.
It is a fact that 57000 married men commit suicide every year(Ref: NCRB statistics, Min. of Home Affairs), due to financial torture by wives which by definition is the same as dowry harassment, in addition to other forms of mental, verbal, physical, social, financial and sexual forms of harassment. Therefore S.498A is fundamentally flawed as it projects women as perpetual victims and men as perpetual oppressors. In fact S.498A is a tool to ensure that women will always be perceived as victims and may be able to reap financial rewards and a gain a twisted sense of superiority.
It is also a fact that in any crime there are two parties, the perpetrator and the victim, and that is the only ‘relationship’ they have with respect to each other. The fact that IPC 498A and PWDVA appends the words ‘husband and wife and relatives’ to the parties is an attempt to criminalize marriage and to keep it alive even after the ‘crime’ has gone to trial and its ending. Once a police complaint is registered, the marriage is over for all purposes, and to keep using the words husband and wife is to sentence both the parties is to a state of war for a lifetime and to unethically milk the cow of marriage even after the cow is dead.
The phrase ‘overimplication’ undermines the fact that, an overwhelming majority of cases are examples of fictitious accusations. The real question is how the law makers are going to punish the perjurers and compensate the ones who have been wrongly implicated.
The conviction rate in cases under s.498A is low only because it is designed to be unnecessarily harsh and draconian in its initial effects and since because the vagueness and the illogic of its gender-bias is essentially illegal in its concept, it is bound to fail altogether. Also, the fact that many women do not take interest in the prosecution is because they have achieved their motive of extortion through its initial effects of extortion and because they know that their complaints are fictional.
The real ‘pragmatic reality’ is that the State has no say in sensitive family problems. Because the very nature of any Police entity is that of authority, superiority and dominance, while the nature of marriage is that of respect, trust and love. If made compoundable as in the state of Andhra Pradesh, the law will tend to become a tool of extortion where the criminal law and judicial apparatus becomes a lever for extortionist gangs wearing the veil of womanhood, perpetual victimhood and women’s empowerment. Even if this law is made bailable, a long drawn out trial is as good as a divorce decree without the judicial stamp of approval, apart from becoming an exercise in bitterness and hatred on the personal front and an exercise in nepotism, corruption and sowing the seeds of fragmentation on the social front which will leads to the increase of father-less bigots, hate-mongers and psychotic despots to say the least.
About the possibility of reconciliation, it should be pointed out that any settlement effort by the State through the Police or Judiciary via IPC 498A or PWDVA route is an exercise in State sponsored terrorism and extortion. How can there be a fair dialogue if the woman and man and the State agency knows that there is a sword hanging on the man’s neck.
The very fact that this law is special must ring the bells of disaster in the ears of the just and fair-minded. Even if the Constitution of India has laid down special benefits to women and children, any law must be without prejudice towards men. It is time we included this phrase in our Constitution. The argument that ‘misuse is not peculiar, therefore it must not be diluted’ is a murderer’s justification that it is OK to kill a hundred people in the hope that two of them probably deserved it.
In response to para 7.1, I wish to state that The Ministry of Women and Child Development has no right to seek the destruction of men.
In response to para 7.2, It may be pointed out that there is such a thing as prisons for women in which there are many married Indian women who have committed enough crimes of all kinds.
In response to para 7.2, it is true that the dilution of the law will lead to further chaos. The only true solution is to remove it and allow the already existing laws for extortion and blackmail to be used in cases of financial extortion which is the underlying principle of the concept of dowry harassment.
Response to Para 9. In case of a complaint by a married woman against husband or a husband against a wife, Police must read the law books for a definition of crime for economic offenses like extortion or physical torture and use such a law with existing procedures. I am sure there exists such a law and I am also sure that the legal provisions in India are mature enough to be applied to such crimes fairly and effectively.
Response to Para 10. Apart from repealing this monstrous law, the law makers must also think of how they want to compensate the existing victims of such rogue laws. A commission must be setup to enquire into the abuse of each registered crime and acquittal, compensations to be estimated and also the commission must device checks and balances to ensure that such crimes against humanity like IPC 498A must not be repeated in the future. This Commission must be made permanent and must be called the National Commission for Men.
Response to Para 11. The Commission must take account of the fact that over 57000 men commit suicide each year(Ref:MHA-NCRB sources). The Commission must understand that it is not enough to ‘discourage’ unjustified complaints, it is duty of the commission to ‘eliminate’ it altogether. The most balanced way of doing this it to eliminate IPC 498A/PWDVA and enforce existing gender-neutral criminal laws.
Response to Para 12. Excellent Idea. Since existing agencies, ministries and commissions are not motivated or ‘do not have the mandate’, a National Commission for Men(NCM) and Men’s Welfare Ministry(MWM) must be formed immediately to carry out this extensive task of spreading awareness to men all over the country, whether urban or rural. The Law Commission may get in touch with Men’s Rights Groups in India to move for its proposal in the Parliament.
Response to Para 13. Law and Police and Judiciary are supposed to go with the letter and spirit of the written law. Therefore, as a beginning, all gender-bias must be removed in all the laws. It should also be made the mandate of the NCM/MWM to enforce the same.
Response to Para 14. Police must be removed from the decision making process in problems related to marital issues.
Response to Para 15. The ‘elaborate machinery’ under PWDVA is nothing short of a Holocaust in the making against the men of this country. Trying to justify PWDVA is like trying to justify the Nazi philosophy of a pure human race and the consequent wholesale murder millions of Jews and other ‘subhumans’.
1) a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC? What should be their approach and plan of action?
Ideally Police should file cases under other gender-neutral laws under IPC for extortion and/or physical assault and go by the investigation procedure under CrPC.
b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR? Would the objective of s.498A be better served thereby?
Justice will be dispensed only if IPC 498A is repealed and its victims of misuse compensated.
2) a) The Supreme Court laid down in D.K. Basu (1996) and other cases that the power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person’s complicity as well as the need to effect arrest. Don’t you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest?
Police should take permission from National Commission for Men if it wants to arrest any man or his relatives
b) What steps should be taken to check indiscriminate and unwarranted arrests?
Police should take permission from National Commission for Men if it wants to arrest any man or his relatives.
3) Do you think that making the offence bailable is the proper solution to the problem? Will it be counter-productive?
The only solution would be to repeal IPC 498A, victims of misuse compensated and to enforce existing gender-neutral IPC laws for extortion and physical assault.
4) There is a view point supported by certain observations in the courts’ judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides. In other words, the possibility of exploring reconciliation at the outset should precede punitive measures. Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be completed with utmost expedition? Should there be a time-limit beyond which the police shall be free to act without waiting for the outcome of conciliation process?
Conciliation process with the sword of IPC498A or PWDVA hanging over the man’s head fits the definition of extortion under IPC.
5) Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage? Do you have a different view?
Conciliation process with the sword of IPC498A or PWDVA hanging over the man’s head fits the definition of extortion under IPC.
6) a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators – the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District?
b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications?
Conciliation/mediation could be possible only if weapons of male destruction are repealed
7) a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counselling/conciliation, apart from according interim protection?
b) Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate?
c) Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed?
Even after IPC 498A and PWDVA are repealed/or made gender neutral, conciliation process can be initiated by the parties themselves. State machinery must not interfere with family related issues. State machinery is better served in protecting citizens irrespective of their gender since their salary is made possible by the citizens(mostly male) themselves.
8) Do you think that the offence should be made compoundable (with the permission of court)? Are there any particular reasons not to make it compoundable?
The only crime is the continuation of IPC 498A and it must not be made compoundable.
9) Do you consider it just and proper to differentiate the husband from the other accused in providing for bail?
The word husband/wife/man/woman must be replaced by ‘spouse’ in the law so that differentiation does not exist while providing bail.
10) a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement? Is there a need for better coordination between LSAs and police stations?
State sponsored/aided agencies must be removed from interfering in family matters.
b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages?
Not just aggrieved women, even aggrieved men may file complaints under gender neutral IPC laws against anyone.
c)Are the Mediation Centres in some States well equipped and better suited to attend to the cases related to S,498-A?
Mediation Centres in all States are thinly veiled extortion centres which pressurize men to settle for money. Apart from corrupting the already corrupt women, the very people who run the centres are bound to get corrupted.
11) What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people?
Establish NCM and MWM.
12) Do you have any information about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them?
Many innocents & parents are being thrown out of their own homes at the twilight of their lives by the use of PWDVA. Instead the government must fund food and shelter programs in exchange for vocational work by the aggrieved persons. Instead of turning them into beggars and destitutes, the government must instill a sense of hope, dignity and confidence in these people by encouraging them to work and earn for their own living.
What according to you is the main reason for low conviction rate in the prosecutions u/s 498A?
The stupidity and anti-male bias of the law combined with the extortion potential to make easy money on the faulty premise that all women are victims and all men are perpetrators.
13) (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A? If so, what should be its composition and the qualifications of women police deployed in such a cell?
Existing CWC cells must be disbanded as they are extremely prejudicial against men and have become centres of extortion.
(b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training. In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station?
I do not know about the training, but my experience with CWC/CAW has shown me that it is extremely anti-male and is efficient at the art of extorting money from men. S.498A lends itself to the corruption of the State Machinery.
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