Women’s Rights Groups urge CJI to reconsider Section 498A Judgement

A group of 16 women’s rights organisations has sent a memorandum to the Chief Justice of India asking him to review the decision in Rajesh Sharma v. State of UP, delivered by a Bench of Justices Adarsh Kumar Goel and Uday U.  Lalit on July 27, 2017.

The group, which includes organisations like Lawyers Collective, Jagori, and All India Women’s Democratic Association, expresses its dismay that the judgement arrives at its findings on the alleged fact that women are mainly mendacious and file false cases of domestic violence not only against their husbands but also all against their husbands’ family members.

The Memorandum states,

“The judgment is part of a backward trend that we have noticed in earlier judgments also. It completely overlooks the fact that women are daily recipients of harassment for dowry and of domestic violence, which are perpetrated by the husband and by his family, particularly in cases of dowry harassment.”

In its decision, the Supreme Court Bench had proceeded to make a number of directions, the most significant of which is the constitution of Family Welfare Committees, to vet cases of domestic violence by family members. The main function of these Committees would be to review complaints filed under Section 498A and interact with the parties involved in these cases. They are also required to prepare a report of the case and submit it to the relevant authority.

Quite significantly, the apex court had also directed that no arrest will be made pending the submission of this report.

The memorandum quotes the National Family Health Survey – 3 data, which showed that around one out of every 3 women are victims of mental, physical and verbal domestic violence. Domestic violence is perhaps the most pervasive kind of violence against women and deeply affects their health and well-being.  The National Crime Records Bureau (NCRB) data of 2015 itself showed that 1,13,403 cases of violence under Section 498A of the  Indian Penal Code were filed in that year, of which charge sheets were filed in 89.4% of cases.

The Memorandum states that this goes against the Supreme Court’s assumption that “most of such cases are filed in the heat of the moment over trivial issues.”  In fact, the numbers from 2005 and 2009 show that the police found a small percentage of the cases to be false on account of “mistake of law or on facts”. In 2005, the percentage was allegedly 8.78% and in 2009 it was 7.08%.

“These percentages in fact show that in an overwhelming majority of cases, a prima facie case of gross domestic violence has been found and charge sheets have been filed. It is pertinent to mention that there is no comparison made with false reporting of IPC offences in general.”

Challenging the court’s quotation of low conviction rates of 14.4% in 2012 and 15.6% in 2013, the statement from the activists states that in their lived experience, “the low conviction rate is not at all indicative of whether cases are false. In many cases, investigation is not properly conducted, statements of material witnesses are omitted, and evidence is improperly collected. Furthermore, as much domestic violence occurs in the confines of home and family, convictions under Section 498A IPC are notoriously difficult to achieve.”

The memorandum echoes a common refrain among complainants that the police personnel are callous and harbour a deep gender-bias, thereby doing a total disservice to the honest recording of the instances of assaults by husbands and their family members. It points out that while arriving at its judgement, the Court was not assisted by any person or organization working on women’s issues or acquainted with the lived reality of women’s lives..

While directing the police to swing into action only when tangible physical injuries and death take place, the Court has ignored the fact that there could well be instances of  mental torture and abuse and infliction of physical violence, which may not be evident and that Section 498A expressly covers both mental and physical violence.

Criticising the establishment of Family Welfare Committees, Memorandum states,

We submit that the setting up of these committees to enquire into all cases filed under Section 498A IPC will cause grave injustice to victims of domestic violence and increase the barriers to accessing justice exponentially. These committees are extra-judicial bodies of questionable competence and cannot take over the functioning of the Police.

Allowing their functioning is akin to allowing decisions to be taken by Kangaroo courts, Khap Panchayat, or other forms of vigilante justice. The proposed Family Welfare Committees are not even required to have particular qualifications. They are not required to be sensitized to women’s issues or to the widespread issues of dowry and domestic violence suffered by large sections of society.

These committees, if formed and granted sanction by the law, will only form a wall between victims/complainants and their access to justice, thereby impeding or derailing justice instead of assisting it. When scores of cases go unreported and victims are hesitant to approach the police or hospitals on time, these committees will discourage the reporting of true cases and minimize the injustice suffered on account of domestic violence by women, the memorandum contends.

Studies by reputed organisations such as the Tata Institute of Social Sciences and the National Commission for Women show that women bring cases of domestic violence not on the spur of the moment but after suffering years of abuse, the memorandum states, while urging the Supreme Court to review its judgement in the instant case.