Women and the law

Whenever a law is made very stringent under the pressure of emotionally surcharged social reactions, there is the danger of its misuse.

WHEN WE survey the laws concerning women in modern India, two distinct stages are discernible; one, before the Constitution of India came into existence and the other, thereafter. It was unfortunate that in the first stage, the personal laws of almost all major religions were unfair to women in that they were essentially male-oriented. The situation changed once the Constitution came into force. Parliament introduced a number of legislative measures to correct gender imbalance inherent in the personal laws.

One of the significant advancements of the Indian legal system towards liberating women from the scourge of the dowry system was the invigoration of the Dowry Prohibition law. Though enacted in 1961, at that point of time it was not meant to be punitive. I remember how the then Prime Minister, Jawaharlal Nehru, described it as an enactment intended to give a social push to the eradication of dowry. The law contemplated "dowry" as an act of giving of cash or property in consideration for the marriage. It was quite easy during those days to plead in court that the amount received was not really "dowry", because it was not given as consideration for the marriage.

Parliament subsequently effected a three-tier improvement to that legislation. Through the first, the definition of "dowry" was widened to include any sort of dowry payment within the dragnet of law. "Dowry" is now anything paid or given, or agreed to be given, in connection with the marriage, on or before or at any time after the marriage, by or on behalf of a bride to the husband or his relatives. In the second tier, punishment was made more stringent by prescribing two categories of offences. One was the offence of taking dowry for which the punishment prescribed is imprisonment that shall not be less than five years. The other was for demanding dowry, and the punishment is imprisonment for a period that shall not be less than six months. Through the third tier, a very significant innovation was made. The burden of proving that he did not commit the offence was transposed to the accused, which meant that if there was any accusation of having received or even demanded dowry, it was for the accused to prove that he did not do so. It is normally an uphill task for the husband and his parents to prove this, but that is now the law.

How many persons are aware that "dowry" now is a very dangerous commodity? Even if the court is desirous of showing some leniency to a receiver of dowry, it is rendered helpless. I do not suggest that Parliament should further amend the law against dowry. It is for society to take advantage of the rigours of the law now in force.

The new offence created with the introduction of Section 304-B in the Indian Penal Code, called "dowry death", is no doubt very stringent. I understand that the conviction rate of that offence is comparatively high. Its punishment is by no means light. The minimum sentence prescribed is imprisonment for seven years. Here also, the burden of proof is the reverse of the normal. Whoever is prosecuted has to prove that he made no demand for dowry. This is not an easy task in a case where the accusation is that the husband or his parents or close relatives subjected the victim to harassment with a demand for dowry. Almost similar is the position of the other offence called "abetment to commit suicide." In fact, it is not a new offence because Section 306 has been there in the IPC since its inception. But the Section remained in the code without any practical use for over a century. The situation changed in 1986 when Parliament introduced a new provision in the Indian Evidence Act as Section 113 A. It transformed an indolent penal provision into animation and made it a very agile Section. By Section 113 A, Parliament required the court to presume, in any case where a wife committed suicide within seven years of marriage, that such suicide was abetted by her husband (or relative of the husband) who had subjected her to cruelty. The word "cruelty" was defined in the IPC as any sort of harassment with the demand for dowry. The punishment for the offence of abetting suicide is quite high.

A number of prosecutions have been launched against the husbands and in-laws of brides who have committed suicide within seven years of marriage. And there has been a good percentage of conviction in such cases. But there have also been numerous instances when the above provisions were misused. Old women, young sisters-in-law and even married sisters-in-law, besides teenaged brothers and sisters-in-law, were made accused in such cases at the instance of the members of the bereaved families. While hearing a good number of such cases, I gained the impression that it was not rare that brides committed suicide on account of depression or related causes on account of other mental illness. The parents of the deceased chose to prosecute not merely the husband; those accused included the aged father-in-law and mother-in-law and also young sisters-in-law who were either of marriageable age or in their adolescence.

Punishment of such persons, if the accusation against them was made merely on a subjective assumption, would lead to real miscarriage of justice. Some courts refused to grant bail to those aged women and teenaged girls. Sometimes bail was granted to them after keeping them in prison for a few weeks, perhaps even months. Even if they were finally acquitted, the social stigma they had suffered following the arraignment in a criminal court and the trauma that haunted them on account of the incarceration with criminals in jail would have seriously affected them. In case of young girls, it would have had an adverse impact on their personality development during the critical stage of their growth.

The lesson to be learnt from such instances is: whenever you make a law very stringent on account of pressures from emotionally surcharged social reactions, there is a real danger of its misuse.

There is another recent development of great concern, namely, female infanticide. There exists a practice in some parts of the country where if a newborn child is a female it is administered a kind of herbal formulation that ensures its death even before it starts crying. When news of this practice in a particular village came to be published for the first time, a lot of noise was made by some social activists and women organisations. Later they claimed that they had succeeded in stopping the practice. Perhaps they could stop it outwardly.

In my view, what happened in this village was only a reflection of the social psyche in India. There is a perceptible lack of enthusiasm at the birth of a female child when compared with the joy that greets the arrival of a male child. In some cases the unhappiness is demonstrated blatantly, and in others it is only muted. I think we are the only country where the female is sometimes not even allowed to be born! No doubt, our Parliament has stepped in to tackle the malady by passing the Pre-natal Diagnostic Techniques (Prevention) Act. But some greedy practitioners have discovered loopholes in this legislation. They are misusing modern diagnostic processes such as ultrasonography and amniotic fluid analysis. Those mal-practitioners make a huge income taking advantage of the average Indian parents' aversion for a girl child.

Should we not go into the real causes of this psyche in our society? In most other countries there is hardly a difference in the attitude to the gender of the newborn. Why is the situation in India otherwise? This must be closely analysed and enquired into. I have observed that the antipathy is more in the middle class families. Most probably, the birth of a female child strikes a note of warning to the parents that an economic burden is being cast on them. Here, when the law already forbids dowry payment most stringently, we cannot expect Parliament to make the law more draconian. The removal of this antipathy to the girl child must be through social changes and not by enhancing existing penalties. Let women's organisations deliberate upon the real causes and see that every girl child is emancipated from the parental concern that she is a financial burden.

(Excerpted from the talk delivered by the writer, a former Judge of the Supreme Court of India, at a seminar organised jointly by the National Commission for Women and the Bar Council of India in New Delhi on February 1, 2004.)

Original NEWS Source:- http://www.hindu.com/2004/02/19/stories/2004021902311000.htm