Is Domestic Violence a Lesser Crime? Countering the Backlash against Section 498A, IPC
Nigam S (2017) Is Domestic Violence A Lesser Crime? Countering Backlash Against Section 498A IPC, Occasional Paper No. 61 Centre for Women Development Studies, New Delhi
63 Pages Posted: 29 Nov 2016 Last revised: 17 Jan 2019
Date Written: November 18, 2016
Section 498A was introduced in 1983 by the Criminal Law (Second) Amendment Act in the Indian Penal Code. It recognizes cruelty against a married woman by her husband and in-laws as a crime for which it lays down punishment of imprisonment which may extend up to three years and/or fine. Seen as a significant legal provision introduced after extensive pressure from women activists and lawyers besides being discussed in the Parliament during the 1980s, it criminalized violence within homes for the first time and empowered married women who faced violence in the marital house to raise their voice against such abuse. Section 498A puts the onus on the State to remedy the situation of women facing torture in the ‘sacred’ private familial domain. However, over the years it has been seen that domestic violence is being treated as a lesser crime by the police as well as the judiciary who constitute the primary agencies for enforcement and implementation of this law. The state, in fact, is reluctant to take action against the perpetrators of violence. Instead of addressing the existing social realities or expanding the definition of domestic violence to include other forms of crimes against women within homes, less attention is paid to abuse inflicted within the families. Rather, an unreasonable and baseless myth of abuse and misuse of Section 498A has been propagated to underplay the seriousness of the crime committed within the four walls of the house. The state promotes the normative ideals of conjugality and in the process ends up reiterating and reinforcing gender injustice. This results in a scenario where those working with the victims of domestic violence use Section 498A as a strategic and pragmatic tool to bring the husband to the negotiating table to arrive at the samjhauta (compromise). Therefore, instead of punishing the guilty, the legal system is being manipulated to arrive at ‘settlement’ with the accused. One of the fallouts of such an action is lower conviction rate. Instead of making a dent on the patriarchal social order, this legal provision has been used to reiterate existing biases and stereotypes against women. The situation today is that domestic violence is treated as a ‘social crime’ when compared with violence by strangers, even though it is much more severe in nature. Why is wife beating considered as a lesser crime by the state, society and the law? Why is the perpetrator of this crime not held accountable for his actions? Why are different parameters and standards of justice utilized when a woman is abused? Why has the criminal justice system failed to deliver justice to the victims of domestic violence? How effective is the strategy adopted by the women’s movement in India where by a heavy emphasis is placed on the legal reforms to achieve the goal of gender justice? Why has the state failed to see women as independent individual citizens outside the construct of family or kinship? Why could the remedies beyond the law, such as provision of shelter homes or material and economic support for women not be implemented? This study examines these questions while using the secondary data and refers to the multidisciplinary research studies and reports on the issue from the perspectives of the survivors to focus on a ‘bubble up’ approach rather than the ‘top down’ style of understanding the issue of domestic violence.
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