Using Deadly Laws as a Proxy for Social Change

Women still require laws that protect them, but we also need checks and balances to protect innocent men. It doesn’t have to be a binary.

That India is a patriarchal society is so widely believed that the general public refuses to recognize men as possible victims of marital violence too. It took the suicide of a Bengaluru-based techie Atul Subhash to sensitize the nation to the male suffering.

The techie’s suicide caused an outpouring of sympathy that was simmering below the surface. But news of Section 498A being abused is not new.

In the Arnesh Kumar vs. State of Bihar (2014) judgment, 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.”

Unfortunately, efforts to amend the section are painted as antagonistic to women protection.

As the judgment observes, “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.”

The law ostensibly created to protect women has been responsible for the arrest of many women.

Section 498A perhaps holds the dubious distinction of being a law that practices ‘Sippenhaft’, a German term referring to the idea that the family shares the responsibility for a crime committed by one of its members. Far from a zero-sum game, amending section 498A is in the overall interest of society.

‘Martyrs of Marriage’, a documentary film on misuse of IPC 498a by social activist Deepika Bhardwaj, explores the staggering degree to which the law has been abused. Among numerous anecdotes of misuse, it recounts a painful tale of a young man slapped with 498A on the very day he learned he is not the biological father of his daughter.

The film interviews Justice SN Dhingra who recalled a case where the wife’s side claimed to have spent an unusually exorbitant amount of money on the wedding. Justice Dhingra recollects asking them to furnish evidence that the family possessed the amount they allegedly spent in light of their legally-known sources of income; which drew a blank.

The core problem stems from removing the due process of law (“presumption of innocence”) in the name of social justice. This law exposes the Indian middle class to agencies of the government, making them vulnerable to legalized extortion.

As they say, in India, the process is the punishment.

Societal change, not draconian laws

Section 498A is a classic case of the Indian state trying to legislate private behavior through draconian laws.

Madhu Kishwar, an Indian academic who was at the forefront of fighting against dowry deaths in the 1970s and 1980s, analyzes this issue in her paper, “Strategies for Combating the Culture of Dowry and Domestic Violence in India.”

Kishwar traces the root cause of violence against women to lack of property rights for women in their parental home. Refusing to bring dowry only serves to enlarge their male siblings’ share of inheritance.

Married women used to put up with marital abuse 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 insecurity leads to desperate measures to make marriage work and extreme fury when it doesn’t.

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.”

Not Gender Wars, But Reconciliation

Laws as draconian as 498A had to be passed because of the rampant problem of dowry deaths in the 1970s and 1980s. They didn’t spring in vacuum.

But as Kishwar 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.”

As policymakers never tire of saying: incentives matter. Incentives change people’s behavior.

Today, there are no checks and balances to prevent a disgruntled woman from abusing the law. It cannot be our argument that women are innately incapable of fraud and cruelty.

At this stage of development, India can ill-afford a South Korea-like gender war, that’s leading them to a demographic collapse.

We can accept that women still require laws to protect them, while provisioning for processes that protect innocent men. It doesn’t have to be a binary.

What we need is mutual respect, reconciliation and consensus. We need to drive social change instead of using deadly laws as a proxy to combat social ills.