Challenging the Prevalent Notion of Compounding Section 498-A of the IPC


Author - Navami Krishnamurthy



Introduction

The Law Commission’s objective for making certain offenses compoundable is disquieting. The bracket of compoundable offences in the CrPC ensures that smaller disputes are settled by agreement, thereby evading an unnecessary trial. The 237th Law Commission Report[1] recommends the addition of Section 498-A of the Indian Penal Code, 1860 (IPC)[2] to the list of compoundable offenses in S.320 of the Code of Criminal Procedure, 1973 (CrPC).[3] Despite the targeted victims’ sample space of the offense being married women, the alleged misuse of this provision together with the prejudiced notion that the offense is ‘private’ in nature, has ensured its position in the debate of affirming certain offenses as compoundable under the CrPC; but, this precise ‘private nature’ coupled with the gendered institution implementing this law, invalidates the safeguards provided by the procedural law for the protection of women, and thereby the status quo should be maintained. The aim of this paper, therefore, is structured primarily, to provide arguments against the compoundability of Section 498-A, by analysing judgements and analogies. Secondly, to try and evaluate the broader theme of whether the procedural law, in reality, safeguards the rights of women.


Although recently, the general discussions surround the competence of the procedural law to safeguard the rights of women and children, the scope of this paper is limited to the rights of women. This is because the rights of children are covered under special laws, namely the Juvenile Justice Act 2015,[4] that controls the law relating to children in conflict with the law and the Protection of Children from Sexual Offences (POCSO) Act 2012, that handles child sexual abuse cases in India.[5] Furthermore, some limited alternative laws and codes govern and safeguard women’s rights, with the Code of Criminal Procedure occupying the top position. Therefore, it becomes imperative to analyse and question the CrPC when there are instances of mere chivalry rather than an actual effort to safeguard their rights.


The frequent question asked is whether the CrPC is merely being chivalrous, but that is a problematic question. There are several provisions in the Code to which this question does injustice. For example, S.125 of the CrPC provides that the magistrate may make an order to maintain the wife, children, and parents, who are unable to maintain themselves if there is neglect or refusal to do so by the party.[6] Sub-clause (4) of Section 46 of the CrPC prevents the arrest of women before sunrise and after sunset to ensure their safety.[7] The proviso under Section 54 of the CrPC mandates that a woman medical practitioner must conduct the examination of an arrested woman.[8] But Sections such as S.47 and S.26(a) have been subject to criticism. Section 47 mandates that a notice is to be given to search the houses of women who by custom do not appear in public.[9] Section 26(a) entails that the trial of an offence under Section 376 of the IPC,[10] be presided by a woman because of the belief that women adjudicators would be more sensitive.[11] However, they do not invalidate the good that these sections are capable of achieving.


The point of commonality between most of these special provisions for women is the appointment of women medical practitioners, judges and officers. The commonality could re-affirm the meaningless attempts at chivalry that the procedural law induces. These provisions are largely based on the assumption that the integration of women in these institutions of criminal justice will result in the feminisation of proceedings, and thereby aid the cause of women.[12] In some sense, this is true, because women’s representation in the criminal justice system is, in itself, a worthy cause. However, it is not enough. Lawmakers fail to understand that women too can be largely abusive, due to similar socialisation and the values they grow up with.[13] There have been several reports of victim-blaming and slut-shaming in police custody in India in the presence of female officers.[14] Furthermore, these offences are social issues that need to be sensitised in society rather than being forgotten after appointing some female officers and judges. Procedural law must be made less hostile towards women which can only take place through a change in the provisions and going beyond the benchmark of the appointment of women officers.

The intention behind the Law Commission of India suggesting the compoundability of certain offences appears to be rational, yet inefficient. The Commission with reports from the Supreme Court has sound reason to believe that the Courts are flooded with cases, and the identification and transition of certain cases to be allowed under S.320 of the CrPC would reduce the burden on the judicial system. But the Commission already prioritises that the gravity, magnitude, and consequences of the crime need to be of primary consideration. The inefficiency here arises because cruelty towards women, especially married women, does not make the cut.

Application of Law by a Gendered Institution

One of the primary arguments against the compoundability of Section 498-A is the gendered and paternalistic institution implementing this law. The only rhetoric provided by this institution in support of its ideals is the apparent misuse of Section 498-A by disgruntled wives. According to the National Crime Records Bureau (NCRB), the average number of cases of cruelty registered in one year is 1,13,403 and the conviction rate is only around 34 percent.[15] The apparent low conviction rates under the offense are being considered by the courts. But according to the data available, the conviction rate is relatively higher than most other offences against women in the country. Primarily, reports of misuse of the section through false allegations, etc., has no empirical data to support it.[16] Secondly, the simplest counter-argument is the systemic bias of courts, followed by prejudice, patriarchal notions and vulnerabilities of women possibly leading to the apparently low conviction rates.[17] While the bias is evidently noted through the delivery of judgements in cases of domestic violence, mostly favouring men and questioning the ‘genuineness’ of the case itself, the prejudice is portrayed by few judges who constantly doubt these women’s accounts of the incident.[18] Moreover, vulnerabilities of women is mostly due to the lack of strong socio-economic backgrounds, especially in the cases of poor, financially unstable women.


In Rajesh Sharma vs. State of UP,[19] the Court’s detailed guidelines included measures to be adopted by the Investigating Officer and a preliminary look at the ‘personal appearance’ of the family, among others, which was an order heavily scrutinized by feminists and lawyers, such as Flavia Agnes, who points out, “the Supreme Court, in its remarks about the ‘misuse’ of section 498-A of the IPC by women to harass their husbands and in-laws, ignores the lived realities of a vast majority of married women.”[20] This flaw in the reasoning of the courts provides the fundamental basis for arguing that this system is highly paternalistic and gendered in their judgement leading to a hindrance in the delivery of justice, especially when this judgement is applied by presiding judges in cases that involve women.

Indian case law has presented instances of gender-bias and prejudiced ideas when judging cases that involve offences of rape, sexual assault, marital rape, adultery, etc., where rhetoric and passion take over logic.[21] In the case of S.498-A, the Law Commission Report largely assumes and repeatedly insists that there is always a scope of reconciliation by the woman and that the compoundability of this offence would ensure an ease in case of reconciliation by both the parties and the ‘revival of harmonious relations between the husband and estranged wife.’[22] In such a scenario, there is a removal of substantial agency of the woman to approach the court and further takes away one of the few avenues for married women to report cases of marital rape. Flavia Agnes explains that inclusion of the provisions of the civil law of the Protection of Women from Domestic Violence Act, 2005 (PWDVA) with the criminal provisions of S.376 (Rape) and S. 498-A of the IPC, would be more fruitful in helping all affected women.[23] She reasons that the system usually addresses the issue using one of two methods namely, to provide ‘counselling’, where the woman is advised to adjust, reconcile and ‘save the marriage’ even at the cost of danger to her life, or to introduce penal provisions to deal with ‘dowry related violence’ and implement these provisions as remedies.[24]

If this idea of the Court, discussed above, to make S.498-A compoundable is taken into consideration, it would logically follow that rape ought to be a compoundable offence as well, since S.498-A provides the only avenue to prosecute marital rape.[25] This would be inherently incongruous considering that the non-compoundability of rape has been strictly emphasised by S.320 of the CrPC. Furthermore, the argument of the court is made on the patriarchal premise that a woman trying to break free of an oppressive and abusive marriage and press criminal charges against the husband is aberrant.[26] These arguments also suggest that a case under S.498-A only gets validity if it includes the allegations of dowry demand, as suggested by the framing of the provision itself, thereby blatantly ignoring the possibility of other types of domestic abuse faced by a woman.[27]

The idea of the prejudice of courts has been discussed by Pratiksha Baxi, who analyses how the ‘culture of compromise’ underwrites rape prosecutions. “In ‘compromise’ cases, the structure of the trial is altered, in that it does not constitute itself as a sexualised spectacle. But in doing so, it celebrates the potential of the trial to injure the victim.”[28] She equates the prosecution of a rape trial to the effect of public secrecy, that socio-cultural dynamics affect court decisions and shines light on the patriarchy ensued by the courts which popularly believe that legality disrupts the sociality, and thereby end up delivering a phallocentric judgement.[29]


Several cases exemplify this trend. Many trials of rape and domestic violence in Indian Courts bring out the ‘culture of compromise’. In an open letter to the Chief Justice of India, scholars such as Upendra Baxi, amongst others, criticised the Supreme Court’s verdict on the Mathura rape case (Tukaram vs. State of Maharashtra).[30] The verdict was based on the fact that the ‘alleged intercourse was a peaceful affair’ and that the victim was concocting the story as there was an absence of a cry for help. While the accused’s sexual habits gave him the benefit of doubt, the victim’s habits made the court disbelieve her story.[31] Furthermore, in the case of Vikas Garg & others vs. State of Haryana,[32] the sentences for rape were suspended by the court on the grounds of a likelihood that the victim presented an alternate account of choices that originated from her ‘promiscuous attitude and voyeuristic mind’. The arguments made by the defence counsel highlighted the victim’s behaviour of indulging in drugs and alcohol, and argued that a coerced nude picture sent to the accused under blackmail constituted as ‘consent’.

There is no rationale for considering the compoundability of the offence under S.498-A, because as noted above, the history of the court’s analysis of cases involving women even until today, proves that this bias still exists. This becomes a crucial point of contention when there is an ongoing debate about the transition from non-compoundability to compoundability of this offence that involves women because they are subjected to scrutiny, character questioning, and prejudice that bestows a decided disadvantage to them. The compoundability would further this disadvantage as they lose an avenue of aid.

The Entrenchment of the Public-Private Dichotomy by the Discourse of Courts

Another argument made by the Law Commission Report is that the offence of S.498-A is private in nature. The report makes claims that the aim of the society is to promote marital harmony of the aggrieved woman.[33] It also states that matters relating to family life and marital relationships would only benefit from the discontinuance of legal proceedings and an introduction of compromise and reconciliation, making the S.498-A a ‘family and relationship’ based offence rather than an offence against the married woman as an individual.[34] Again, the paternalistic perceptions are noticed in such arguments by the report, merely to state that in the end, the objective of the court to solve offences of cruelty towards married women by using ‘compromise/reconciliation’ as camouflage to ensure marital harmony. All this, to protect the sanctity of the institution of marriage in society.


It also becomes important to understand the structure of S.498-A. First, the position of this offence in the IPC indicates that the drafters believed that it is closely related to the offences of marriage rather than offences against the human body. The section assumes two things namely (1) that it will only step in once there is an intention to drive the woman to commit suicide, endure injury, or potential death;[35] and (2) it also makes the assumption that the most prominent reason for this cruelty is dowry.[36] This section itself presents a binary of the ‘private-public’ that the drafters initiated and the role of the gendered institution implementing this section. It turns a blind eye towards the possibilities of both physical and mental cruelty that a married woman could face. Judges insisting on extra-judicial settlement still believe that a married woman can protect her marriage by dropping the charges and adjusting to the situation, while the question of abuse, dowry demands, and possible mental cruelty inflicted remains unexplored in most cases. Catharine MacKinnon argues that the concept of privacy is dangerous for women because courts treat privacy as a negative right, meaning that it is free from any governmental intrusion.[37] She draws a connection to this conduct of the courts where offences that are private in nature, within the household, has not been recognised as harmful.[38]


It is shocking to see that the court extends dialogue on the rape of the woman as a ‘family issue’. Once again, in the case of Vikas Garg & others vs. State of Haryana,[39] the families of the victim and the accused alike were ‘dragged’ into the situation. In Joseph Shine vs Union of India,[40] the court recites a simple statement “Throughout history, the State has long retained an area of regulation in the institution of marriage.” It is evident that although there is a claim of offences against marriage as private and between the marital space of the husband and wife, the institutions have interrupted this discourse on the ideology that the state should protect the establishment of marriage in the society.


Conclusion


The understanding that the courts are overburdened with numerous cases and there is a severe backlogging created is a well-known and a recognised issue in the Indian Criminal Justice System. However, seeking to mitigate this problem by initiating systems of compromise and plea-bargaining with offenses that are detrimental to women’s safety, both physically and mentally, reinstates the gender bias of Indian Courts. Flavia Agnes repents that the systems that deliver justice, dominated by benevolent patriarchs, have changed from determination to protect women’s rights to a system of distrust in women.[41] This paper tried to bring out the dangers of taking these decisions through a series of case analysis and an Indian Court behaviour analysis. The introduction of S.498-A of the IPC, under the ambit of S.320 of the CrPC, would only serve to further entrench the disadvantage of the disadvantaged and therefore must remain status quo.



[The author is a Third Year B.A. LL.B. (Hons.) student from Jindal Global Law School, affiliated to O.P. Jindal Global University, India.]


[1] Compounding of (IPC) Offences, Report No. 237, Law Commission of India, (2011), http://lawcommissionofindia.nic.in/reports/report237.pdf. [2] The Indian Penal Code, Section 498(a) (1860). [3] The Code of Criminal Procedure, Section 320 (1973). [4] The Juvenile Justice (Care and Protection of Children) Act (2015). [5] The Protection of Children from Sexual Offences Act (2012). [6] The Code of Criminal Procedure, Section 125 (1973). [7] The Code of Criminal Procedure, Section 46(4) (1973). [8] The Code of Criminal Procedure, Section 54 (1973). [9] The Code of Criminal Procedure, Section 47 (1973). [10] The Indian Penal Code, Section 376 (1860). [11] The Code of Criminal Procedure, Section 26(a) (1973). [12] Amita et al., In Engendering Law: Essays in honor of Lotika Sakar 157 (1999). [13] Id. [14] India: Rape Victims Face Barriers to Justice, Human Rights Watch, (2017), https://www.hrw.org/news/2017/11/08/india-rape-victims-face-barriers-justice. [15]Figure 5.1, Crime against Women, Chapter 5, Crime in India, NCRB, (2015), https://ncrb.gov.in/sites/default/files/crime_in_india_table_additional_table_chapter_reports/Chapter%205-15.11.16_2015.pdf. [16] Section 498A IPC, Report No. 243, Law Commission of India, (2011), http://lawcommissionofindia.nic.in/reports/report243.pdf. [17] Flavia Agnes, Are Women Liars? Supreme Court’s Judgement Ignores Lived Reality of Married Women, EPW Engage, (2017). [18] Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, Vol. 50 No. 23, EPW, (2015). [19] Rajesh Sharma vs. State of UP, (2017) 19 SCC OnLine SC 821. [20] Supra at 17. [21] Supra at 12. [22] Supra at 1. [23] Supra at 18. [24] Id. [25] Supra at 18. [26] Supra at 12. [27] The Indian Penal Code, Section 498-A (2) (1860). [28] Pratiksha Baxi, Justice is a Secret: Compromise by Rape Trials, 44 No.3, Contributions to Indian Sociology 231 (2010). [29] Id. [30] Tukaram vs. State of Maharashtra, (1979) 4 SCC (Jour) 17. [31] Upendra Baxi et al., An Open Letter to the Chief Justice of India, (1979). [32] Vikas Garg & others v. State of Haryana, (2017) SCC OnLine P&H 2806. (“It would be a travesty if these young minds are confined to jail for an inordinate period which would deprive them of their education and opportunity to redeem themselves and be a part of the society.”) [33] Supra at 1. [34] Id. (“The sensitivity of a family dispute and the individual facts and circumstances cannot be ignored.” ) [35] Supra at 2. ((a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman). [36] Id. ((b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.) [37] Kimberly D. Bailey, It’s Complicated: Privacy and Domestic Violence, IIT Chicago-Kent College of Law, 30 (2012). [38] Clare McGlynn, Rape as ‘Torture?’ Catharine Mackinnon and Questions of Feminist Strategy, Durham University, 76 (2008). [39] Supra at 32. [40] Joseph Shine vs Union of India, (2018) SCC OnLine SC 1676. [41] Flavia Agnes, Supreme Court’s Judgement Ignores Lived Reality of Married Women, EPW Commentary, (2017).

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