The Indian constitution has been hailed as an instrument of social change. But only authoritarian regimes have been able to forcibly push for drastic social changes. Even here, most were only successful for a while. Iran’s brief embrace of modernization (under the Shah) was followed by Ayatollah’s fundamentalist regime.
This makes the case for India, a democratic nation, rife with complexities. In this article, I analyze whether India’s women-centric laws have shaped social change in the manner desired. To narrow our focus, let’s discuss Domestic Violence and Dowry Laws.
While the Dowry Prohibition Act, 1961 already outlawed dowry, many new laws were added to further strengthen the same, including Section 498a.
IPC 498a is a criminal law (not civil) which says: “Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offence is Cognizable, non-compoundable and non-bailable.”
Put simply, it means all a wife has to do to put her in-laws (or anyone she names) behind bars is to go to a police station alleging harassment. Since the crime is non-bailable, the police have the right to make arrests. Cases abound where the entire family languished in jail for days before obtaining bail by courts.
Misreading the Custom
This is a classic case of the Indian state trying to legislate private behavior through draconian laws.
Madhu Kishwar analyzes the problem, the law and its implementation in her paper, “Strategies for Combating the Culture of Dowry and Domestic Violence in India.”
She explains that in the 1970s and 80s, there were many cases where despite some evidence that a married woman was murdered, the police refused to register an FIR. It took street activism to get even the FIR registered, and then, the case languished in courts for years.
Since many accused men were let go for want of evidence, the women’s organizations lobbied to shift the burden of proof on the accused. Their focus was on protecting women suffering abuse while they were still alive. This was the background in which Section 498a was introduced in 1983.
It was commonly believed that most violence against women stemmed from dowry demand. The stereotype was of a greedy family (husband’s) that can stoop to violence and murder to extort financial rewards from their in-laws.
Disclaimer: The observations below have to be seen in the 1980s context. They may not necessarily make sense today.
Kishwar makes a startling yet factual observations on dowry:
- Once married, women ceased to have any rights in the parental home. Refusing to bring dowry only served to enlarge their brothers’ share of inheritance. Therefore, women themselves did not see it in their interest to abstain from dowry-giving.
- Things presented as voluntary gifts at the time of wedding were re-framed as an extortionist demand for dowry when the marriage turned sour.
- Dowry was an investment for upward mobility. For instance, even within the same family, a man with a good job commanded a higher dowry than his brother who wasn’t doing as great.
- In the age of nuclear families, the wife became the sole claimant of the husband’s future earnings. To compensate for the past investment and forfeiting of future earnings of their son, the husband’s parents were forced to seek dowry as a one-time financial settlement.
Consequences of Deadly Laws
In the 2014 Arnesh Kumar case, the Supreme Court observed that 498a, “has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.”
The judgment notes that: “1,97,762 of total arrests made in 2012…. the conviction rate was only 15 per cent and out of the 3,72,706 cases pending trial 3,17,000 are likely to result in acquittal.”
Further: “Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net.”
So much for a law made with the ostensible intent to protect women!
Martyrs of Marriage, a documentary film on misuse of IPC 498a, explores the heinous degree to which the law has been abused. Among numerous anecdotes of misuse, it recounts an agonizing tale of a young man slapped with 498a on the very day he learned he is not the biological father of his daughter.
The Solution Is Not Legal
As Kishwar astutely observes: “Laws make sense only when used like small doses of antibiotics to help the body kill disease germs. Making them the sole instrument of social reform is like giving a patient only medicines and no other diet. Such a person would either end up dead or reject medicines altogether.”
The dowry problem has hijacked women’s issues to an extent that we only think of wives or daughter-in-laws as victims. Effectively, we have lost sight of women as sisters, daughters, mothers and even grand-mothers.
One big reason married women put up with marital abuse is because they are no longer welcome at their parental home. They are led to believe that their only claim, henceforth, is on their matrimonial home. The resulting resentment and insecurity lead to desperate measures to make marriage work and extreme fury when it doesn’t. This insecurity fuels fierce quarrels between women and their in-laws.
Therefore, it’s by strengthening women’s rights in their parental family that the problem can be addressed. Women who enter their marital homes with this confidence know “they don’t have to keep the marriage going ‘at all costs’ and don’t have to carve out a niche for themselves by curbing the rights of their in-laws”.
Kishwar mentions a special social program that yielded results far superior to lethal laws: ‘Lakshmi Mukti Karyakram’. In Hindu tradition, the birth of a daughter or entry of a daughter-in-law is celebrated as the coming of Lakshmi, the Hindu goddess of wealth, in the family. The message of ‘Lakshmi Mukti Karyakram’ was that “by enslaving their household Lakshmis, the farmers had invoked the curse of poverty. Therefore, in order to free themselves from economic bondage, they had to liberate their own Lakshmis and earn her blessings.”
This approach of appealing to men’s sense of justice created an environment conducive for men to transfer lands to their womenfolk. Kishwar asserts that, “domestic violence went down dramatically in all such households where the beginnings of a new equation between men and women were being established”.
Conclusion
Does the Indian state have the credibility to drive social change, particularly when it is at odds with the prevailing customs and traditions? The answer lies in the reluctance and resignation with which common people face the prospect of visiting government offices for their work.
In the Indian context, driving social change requires public engagement and sustained use of rhetoric. It requires mobilizing public opinion towards the change. Not enactment of deadly laws that upturn the “presumption of innocence”, considered sacrosanct in modern law.
Musings by Madhav 
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