Section 498A, Marital Rape and Adverse Propaganda

Author(s): FLAVIA AGNES

Source: Economic and Political Weekly, Vol. 50, No. 23 (JUNE 6, 2015), pp. 12-15
Published by: Economic and Political Weekly
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 COMMENTARY
Section 498A, Marital Rape
and Adverse Propaganda
FLAVIA AGNES
The need of the hour is to salvage
Section 498A of the Indian Penal
Code from the shackles of adverse
propaganda and "misuse" by
the media, goaded on by men's
rights groups from the urban and
privileged classes, and restore it
as a viable law to protect victims
of all types of domestic violence.
The provisions of the civil law of
Domestic Violence Act should be
linked to the criminal provision
which will help all affected
women much more than the
introduction of the charge of
marital rape.
Flavia Agnes (flaviaagnes@gmail.com) is a
women's rights lawyer and director of Majlis,
which runs a rape victim support programme
in Mumbai.
12
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State for Home Affairs Haribhai
Two comments bywhen
Chaudhary Union Minister
read of
together
sound ominous for the safety and survival
of married women in India. On 29 April
2015 the minister commented that since
marriage in India is perceived as a sacred
union, marital rape cannot be brought
within the purview of the law on rape.
This seems to convey that men in India
have a licence to rape their wives with
impunity. The fact that Hindu marriages
ceased to be sacramental more than half
a century ago, and Muslim marriages
have always been contractual is negated
by this comment. It also disregards the
legal provision under the Indian Penal
Code (ipc) which renders cruelty to
wives a criminal offence under Section
498A (enacted 30 years ago) and a civil
law which provides protection to victims
from domestic violence, enacted almost
a decade ago.
Surely, sexual violence would not be
outside the pale of these legal provisions.
Yet, while making these sexist comments
about male privileges within marriage
on the floor of Parliament, the minister
did not deem it fit to point to any of these
remedies available to wives against their
husbands for sexually violating their
dignity and safety.
On 3 March 2015, the minister said
that the government is proposing to di
lute the provisions of this important sec
tion because of its alleged misuse and as
per the recommendations by the Law
Commission of India (lci).
While his comments on marital rape
have been widely criticised, those on the
dilution of Section 498A of the ipc have
been welcomed by the media. Some edi
torials have gone further and comment
ed that there should also be a provision
to prosecute women who file false cases
under it, as though the general provision
June 6, 2015 vol l no 23 Q3B3 Economic & Political weekly
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regarding filing of false cases under the
ipc would not suffice where women are
concerned (Marapakwar 2015)!
Surprisingly, the only opposition to this
move has come not from civil society but
from another union minister. The Minis
ter for Women and Child Development,
Maneka Gandhi, has clearly stated that this
will be detrimental to women since it is the
only criminal provision to ensure their
safety within marriage, in a country where
a large number of women are subjected to
brutal domestic violence (Dhawan 2015).
Those who have criticised Chaudhary
for his comments on marital rape and
urged the government to delete the ex
emption granted to husbands under Sec
tion 376 of the ipc, on the ground that "a
rape is a rape whether within or outside
the marriage" have failed to connect the
dots and examine the implications of the
earlier comment to a large number of
battered wives in our country The experts'
opinions seem to suggest that women are
trapped within sexually abusive marriages
only because of this offending clause and
if it is deleted, women will be able to
walk out of their marriages at the very
first instance of sexual abuse and press
criminal charges against their husbands.
Continuum of Brutality
When I hear the heart-rending stories of
women raped every night, even during
pregnancy and childbirth, the question
that leaps to my mind is: what else did this
woman endure along with forcible violent
sex? And also, if it is not rape but brutal
physical violence which fractured her
skull, broke her limbs, damaged her
kidneys, scalded her face, paralysed her
or drove her to the brink of suicide, would
the violence be less damaging? These
concerns are relegated to the sidelines
while discussing marital rape. However,
for the victim they form a continuum of
a life of degradation and despair, where
one act of violence cannot be segregated
from the other.
How does making non-consensual
penetrative sex more heinous redeem
her from this continuum of brutality?
The demand for deletion of this clause
seems to subscribe to the patriarchal
 : COMMENTARY

presumption that vaginal violation of danger to her life, because nothing who are killed for dowry is high, the
forms a category apart, even within else exists for her outside. In a society number of cases filed under Section 498A
marriage, than other types of brutality. where marriage is perceived to be the is minuscule. For Bihar and up, it is around
In support of the demand to render "be all and end all of a woman's life" a four times the figures for dowry murders
marital rape culpable under the rape woman who wishes to break the shack- and for mp the rate improves slightly at
law, experts have relied upon various les of an oppressive marriage and press seven times,
studies, both national and international, criminal charges against her abuser is States S304B S498A

which have highlighted the fact that a viewed as a deviant, Bihar 1,182 4,533

large number of women are subjected to The other state response has been to Uttar Pradesh 2,335 8,781

776
sexual violence in India. However, the introduce penal provisions to deal with Madhya Pradesh 4,988

fact that these studies point to an even "dowry related violence" (Section 304B— Source: NCRB reP°rt—2013
higher number of women being subjected dowry death and Section 498A—cruelty Surely for every woman who is
to domestic violence is not highlighted to wives) and enact the Protection of murdered for dowry, there would be
during these discussions. Women from Domestic Violence Act to thousands of others who are subjected
While a 2011 study by the International provide civil remedies. to domestic violence, as indicated by
Center for Research on Women (icrw) national and international surveys. This
stated that one in every five Indian men Dowry or Nothing proves that the number of cases filed
surveyed admitted to forcing their wives So where do these large numbers of under Section 498A is low as compared
into sex, the same study also mentioned abused women go? For an answer, we to the extent of violence that married
that 65% of Indian men surveyed said need to turn to the statistics provided by women are subjected to. The data is a
they believe there are times when worn- the National Crime Records Bureau pointer that the 31% women who were
en deserve to be beaten (Gaynair 2011). (ncrb). They bring out the startling fact physically abused, the 10% who were
The National Family Health Survey-m that since 2008, every year more than subjected to severe domestic violence, and
(nfhs-iii) conducted in 2005-06 has 8,000 women are killed by their husbands the 14% who were subjected to emotional
stated that more than 54% of men and for dowry. These figures do not include abuse as per the nfhs-iii study either
51% of women responded that it was women who were murdered by their did not approach the police or the police
okay for a man to beat his wife if she husbands for reasons other than dowry did not record their complaints. This,
disrespected her in-laws, neglected her (Section 302 murder) or women who despite the fact that Explanation (a) of
home or children, or even over some- were driven to suicide (Section 306 Section 498A is as follows:

thing as trivial as putting less (or more) abetment to suicide). These numbers Explanation_For the purp0se of this
salt in the food. are not even mentioned in the section section, 'cruelty' means-(a) any wilful con
This important study revealed that "Crimes against Women" in the annual duct which is of such a nature as is likely
31% of married women were physically ncrb reports, because the government t0 drive the woman to commit suicide or to
abused and 10% were subjected to "severe does not consider wife murders for rea- i^U,!Lu w?.,ί!ΪΪ!Ζ.
or health (whether mental or physical) of
domestic violence" such as burning m sons other than dowry serious enough to woman...
attack with a weapon. Another 12% of record as a special category and monitor
those who reported severe violence the trends. Apart from lack of options, another
suffered at least one of the following When we go through the reported reason why women who are subjected to
injuries: bruises, wounds, sprains, dislo- judgments under Section 304B, it is evi- domestic violence are unable to register
cation, broken bones or broken teeth, and dent that hardly any woman who was their cases under Section 498A is due to
severe burns while 14% of the women killed for dowry had filed a complaint the fact that even after 30 years of its
experienced emotional abuse (Ministry under Section 498A which deals with enactment, an erroneous view prevails
of Health and Family Welfare 2005-06). cruelty to wives, prior to her death. At that it is a law exclusively to curb dowry
Despite the clinching evidence of wide another level, despite the propaganda by related cruelty. Hence, the police refuse
prevalence of domestic violence in the men's rights groups that most cases filed to record a complaint, if an allegation
country, support systems for battered under this section are false, the convic- regarding dowry harassment is not added
women, such as emergency shelters, tion rate for cases under Section 304B is to the complaint of domestic violence,
medical aid, halfway homes, skill train- relatively high, around 35% (Law Com- The media, which constantly brings out
ing, financial support, a specially trained mission of India 2012). stories about women misusing this section
and sensitive police machinery, and The ncrb reports also reveal another seldom report cases where the police
reliable and effective legal aid, etc, have startling fact. Judging by the number of have refused to record complaints of
not evolved. Our only answer to the cases recorded as dowry deaths (304Β), brutally violated women, thus perpetu
problem over the decades has been to Bihar, Uttar Pradesh (up) and Madhya ating the myth that this provision is mis
provide "counselling," where the worn- Pradesh (mp) appear to be the most used and needs to be diluted,
an is advised to adjust, reconcile and violent towards women. Ironically, in The blame also lies with the women's
"save the marriage" even at the cost these states, while the number of women movement which, in the 1980s, gave

Economic & Political weekly Q2S3 june 6, 2015 vol l no 23 13

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COMMENTARY :

dowry-related violence greater impor- The 243rd report of the lci on this of life and liberty of women could not
tance and demanded separate legal section has accurately identified the have been dealt with effectively through

. , , of equality and non-discrimination may

provisions to address this issue. This problem and commented as follows: s°ft sanctlons alone· Even though values
only served to undermine routine The correct advice of legal professionals and have to gain deeper roots through other
domestic violence. This is similar to the the sensitivity of police officials are very im- social measures, the need to give valuable
present demand that marital rape portant, and if these are in place, undoubt- protection to vulnerable sections of women
should be treated as a separate category edlJ'the la™ wdl not take a devious course. cannot be negated (Law Commission of
... . Unfortunately, there is a strong feeling that India 9019!
from the routine domestic violence in- some lawyers and police personnel have failed
flicted upon thousands of women in In- to act and approach the problem in a manner The question that we need to address
dia. Frequently, when a battered worn- ethically and legally expected of them. is: what will be the implications of fur
an approaches the police, the police Hardly any case filed under Section ther diluting the provision by making it
pressurise her to add the allegation of 498A reaches the stage of trial where the compoundable? As mentioned earlier,
dowry demand by insisting that without woman is alive. On the other hand, courts the rate of conviction under Section
it, it is not possible to register her com- are flooded with applications for antici- 498A when a woman is alive is less than
plaint under Section 498A. Women patory bail, quashing or compounding the 1%. Cases languish in the magistrate
from the lower strata who approach the case. Our judges from the higher courts, courts for years on end, without reach
police station with bleeding wounds sitting in their ivory towers, while making ing any finality. In such a situation, it is
and broken bones are ridiculed with scathing remarks that women misuse the but natural that parties reach a compro
comments such as, "If a husband does law, have never pondered over the fact of mise and compound the case with con
not beat his wife, who else will? There why "genuine" cases of domestic violence sent of the court,
is nothing special about a husband beat- never reach their courts, even while These cases cannot be categorised as
ing his wife. If you are harassed for their courts are flooded with appeals by "false cases" as our minister has chosen
dowry, then it is serious, and we shall husbands who have murdered their wives, to do. However, by bringing in a per
arresthim." and are convicted by lower courts! ceived dilution, the presumption that
Regarding this issue, the lci has com- women are misusing this legal provision
Police-Lawyer Nexus mented in para 7.1: will gain further validity through its
There is also an economic motive for (The) object and purpose (of Section 498a) sensationalisation in the media, and it
the police not to register cases of cannot be stultified by overemphasising its will be impossible to file any case under
domestic violence of women from the potentiality for abuse or misuse. Misuse by this section in future, even in cases of
lower class, as there is nothing to be itself cannot be a ground to repeal it or to extreme domestic violence. This will
gained from registering such complaints. take a™ayits teeth ^holesale- The re-evalu- ren(jer tbe [jves 0f thousands of women
ation of Section 498A merely on the ground
On the other hand if a woman from the 0f abuse is not warranted, while courts are from P00r and margianlised sections
middle or affluent class approaches confronted with abusive dimensions, some- even more perilous. Faced with this dis
them, registering the complaints be- times very visibly in Section 498a prosecu- mal situation, the need of the hour is to
comès a lucrative business, as the police tlons· we cannot close our eyes to a lar8e salvage Section 498A from the shackles

., .... for a variety of reasons.... The allegations r r ο J

can immediately alert the husband and number of cases which go unprosecuted Qf ac[verse propaganda of "misuse" by
provide contacts of a criminal lawyer of misuse do not however mean that the the media, goaded on by men's rights'
for filing for anticipatory bail, all" for Police should not appreciate the grievance of groups from urban and privileged classes,
a hefty fee. The police-lawyer nexus the complainant woman with empathy and and restore it as a viable law to protect
within the criminal law is well esta- understanding or that the Police should play victims of all types of domestic vio
blished and the blame for it cannot be a passive role- lence—physical abuse, mental harass
attributed to Section 498A. When a The constitutional bench ruling in ment, sexual violence and dowry-related
victim of domestic violence approaches Lalita Kumari vs State of Uttar Pradesh violence, and not view any of these as
lawyers for a protection order, mainte- (2014), is relevant here. This judgment violence of a higher category warranting
nance and child support, or even di- has laid down that if a woman's com- special intervention. This does not need
vorce, they rush to the police station plaint discloses commission of a cogni- a legislative intervention, but a change
with a written complaint, which in- sable offence, it is mandatory for the po- in attitude at all levels—the police, the
eludes dowry demands and assure her lice to register an fir (first information media, the judiciary, and the govern
that it is a shortcut to solve all her other report). Only when the information does ment functionaries.
problems as her husband will soon fall not disclose a cognisable offence can the The need is also to link the provisions
in line once a complaint is registered, police conduct a preliminary inquiry. of the civil law of Domestic Violence Act
But ironically, the problems only get The lci has commented further: to the criminal provision if the situation
compounded. ,It. ,is, not as though
. Section 4o8-athe
hasso
towarrants,
be seen insothe
that the woman
context , , , is simul
woman was not subjected to domestic Qf vioknce and impairment of women>s taneously awarded protection, mainte
violence, but this aspect gets relegated iiberty and dignity witbin tbe matrimonial nance, shelter and support. Such a cam
to the background. fold. Mindless and senseless deprivation paign will yield greater results and will
14 june 6, 2015 vol L no 23 13353 Economic & Political weekly

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become a viable option for sexually vio
lated women than introducing marital
rape by deleting the exemption provided
for husband under Section 376, ipc, just
because it has become a fashion to make
such a demand.
Changing Equations of
Jharkhand Adivasi Politics
SUJIT KUMAR
An analysis of the Jharkhand
assembly elections held in 2014
helps us understand the discourse
of Adivasi politics in the state and
throws light on the assertions
about the receding space for
Adivasi politics and the declining
significance of regional parties.
Examining the verdict in 28
assembly constituencies reserved
for Scheduled Tribes, this article
argues that rather than losing
their ground, Jharkhand-based
parties have succeeded in
consolidating their position in
tribal-dominated areas.
Sujit Kumar (sujit.ski@gmail.com) is a
Research Fellow at the Institute for Social
and Economic Change, Bengaluru.
Economie & Political weekly DBSI June 6, 2015 vol l no 23 *5
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REFERENCES
Dhawan, Himanshi (2015): "Maneka against
Dilution of Anti-dowry Law," Times of India,
23 March.
Gaynait; Gillian (2011): "ICRW Survey Reveals Contra
dictions in Indian Men's Views on Gender
Equality," http://www.icrw.org/media/news/
gender-equality-indian-mens-attitudes-complex
Party (bjp) and its ally, the All
The triumph of Students
Jharkhand the Bharatiya Janata
Union Party
(ajsup), in the December 2014 elections in
Jharkhand validates the point made by a
few that the brand of "development" pur
sued by the Hindu right wing has taken the
Adivasi constituencies in its stride. Never
theless, the resilience of regional parties
like the Jharkhand Mukti Morcha (jmm)
suggests that tribals remain important in
state politics. There is much more to read
for both the sceptics as well as the prota
gonists of tribal politics in the Jharkhand
assembly elections held in December 2014.
Public intellectuals remain divided in
their opinion with a few attributing this
verdict to the rift between the tribals
and non-tribals, while others consider
Jharkhand's political instability and under
development the reason for the clear
mandate in favour of the bjp and its ally.
However, there is something beyond the
verdict itself which has significant sym
bolic connotations. For the first time in
its 14-year history as a state, Jharkhand
has a non-Adivasi chief minister.
Emboldened by its recent electoral
success and undeterred by wide protests
by over 25 Adivasi social and political
organisations, the bjp has appointed
Raghuvar Das as Jharkhand's first non
tribal chief minister in a move that can be
read as the first step towards detribalis
ing the Jharkhand government. Although
this step will have wider implications,
the immediate casualty would be the
Chhotanagpur Tenancy Act (cnta), 1908
whose amendment is overdue mainly due
to protest from Adivasi organisations.
All use subject to https://about.jstor.org/terms
: mMMUMTADV
Law Commission of India (2012) : Report No 243 on
Section 49 8A IPC, August.
Marapakwar, Prafulla (2015): "Anti-dowry Law
Likely to Be Amended Soon," Times of India,
19 April (Mumbai edition).
Ministry of Health and Family Welfare (2005-06):
Government of India; Fact Sheet: National
Family Health Survey-NFHS-III.
The present turn of events makes it
imperative to raise a few questions, given
the changing dynamics of Jharkhand's
politics. For example, has Jharkhand wit
nessed a transition from Adivasi-centric
politics to a politics of development as
articulated by the Hindu right wing forces?
Are the Jharkhand-based political parties
a spent force? Does identity politics now
find its proponents exclusively within a
group of activists? To find answers we
need to understand the faction-marred
politics of Jharkhand which is reflected
in the fact that till date all governments
were unstable coalitions. The political
discourse imbued with Adivasi identity
in the heyday of the Jharkhand move
ment was hijacked by the bjp little
before the creation of the state.
Interpreting the Mandate
What connotation does the verdict hold
for tribals in Jharkhand who, it is
claimed, participate in electoral politics
to "keep away the state" and preserve
the space for sacral politics? This ques
tion strikes a chord with the opinion that
Adivasis still nurture apathy towards
centralised authority and finds solace in
"idyllic blissfulness" of primitive society.
However, such beliefs are considered by
some to be "vestiges of the past" and a
close examination of the role of tribals
in Jharkhand elections vindicates their
stand. The verdict in favour of the bjp and
its ally can be read as a direct outcome of
non-Adivasi politics. But the good show
by jmm does quell any misconceptions
about the voting behaviour of tribals.
Out of 81 assembly constituencies in
Jharkhand 28 are reserved for Scheduled
Tribe candidates. Arithmetically, this is
close to 35% of the total number of seats
and gives proportionally positive represen
tation to the Adivasis. However, this ano
maly can be explained if we glance through
the changing demographic profile of
Jharkhand, where Adivasi population has