Marriage laws abused by women'

Marriage laws abused by women'

Former minister B T Lalitha Naik on Saturday said, “Marriage laws are being abused by women to victimise their husbands  and the police arrest them without even investigating the allegations. Hence, it is necessary to review laws.”
Naik told reporters that public discussions should be held before amending the law to elicit opinions of both men and women as lopsided legislations are bound to be abused.
Karnataka Rajya Purushara Rakshana Samithi secretary N Nagesh said, “Estranged wives get an equal share in the properties of their husbands at the time of divorce as compensation under the present law. But, under the proposed amendment, the estranged wife will also have a equal share in the ancestral property of her husband. The women can marry as many times as they want and, yet, claim compensation as provided by the law. Whereas, there is no such provision for husbands even if they have done no wrong. This law is dangerous as it is one-sided.”

 

 

http://newindianexpress.com/cities/bangalore/Marriage-laws-abused-by-women/2013/06/09/article1626884.ece 

Marriage and divorce: mental cruelty by the wife

Marriage and divorce: mental cruelty by the wife

By Rakesh Shukla

In this case of granting a divorce on grounds of mental cruelty by the wife, the Supreme Court seems to have gone out of its way to change the parameters of what constitutes mental cruelty on the part of the woman. It could have far-reaching consequences for future cases

[IMG]/images/july12/mental_cruelty.jpg[/IMG]

The courts are chock-a-bloc full of divorce petitions by women on grounds of mental cruelty by their husbands. Reflecting gender realities in society, it is rare to come across a case involving mental cruelty by the wife. The Supreme Court, in a recent judgment Vishwanath versus Sarla Vishwanath Agrawal (2012(6) SCALE 190) had occasion to deal with the allegation of mental cruelty by the wife.

[B][I]The husband’s version [/I][/B]

Vishwanath and Sarla were married in April 1979 and had two sons. According to the husband, Sarla was arrogant and uncultured. There was a total lack of care and respect on her part for the mother-in-law who was a diabetes patient. Her behaviour was irrational and led to frequent quarrels. Sarla would hide her husband’s motorcycle keys, crumple his ironed clothes, and close the gate to prevent him from going to the factory. It was alleged that she forced her husband and father-in-law to do their own personal work. That she made frequent calls to the factory “for the purpose of abusing and causing mental agony” to her husband. That the husband, on May 1, 1995, finding this “cruelty” intolerable, took his wife to her parents’ house and left her there. He continued to stay in the matrimonial home with their sons.

On July 24, 1995, his wife’s advocate issued an advertisement in a local daily stating that the husband was a womaniser and addicted to alcohol. On October 11, 1995, the wife went to the husband’s house, abused him, her father-in-law and the children, created a violent atmosphere and damaged property. The husband lodged a police complaint with regard to the matter. He included the two incidents in the petition for a divorce on grounds of cruelty.

[B][I]The wife’s version[/I][/B]

The wife denied the allegations and asserted that she had always been respectful of her in-laws. That she and her husband had lived a happily married life for 16 years. And that she had attended to her mother-in-law all the time, with a sense of committed service. That her behaviour did not even remotely suggest cruelty. She denied the allegations of hiding motorcycle keys, closing the gate, or ringing the office to abuse her husband. She alleged that her husband joined some computer classes run by a Neeta Gujarati and began spending a lot of his time at the computer centre instead of attending to his own business. The wife was disturbed on learning that her husband was involved with another woman despite having an established family life and adolescent sons. She took serious objection to the intimacy and was compelled to make calls to ascertain his whereabouts. Their relationship became bitter. The husband did not like this interference, and on May 1, 1995, took Sarla to her parents’ house and left her there. His wife wanted to return to the matrimonial home and stay with her husband and children.

Sarla then came to know that Neeta was living with her husband as his mistress. She went to the matrimonial home to find out and, when she realised that Neeta was in the house, she tried to enter the house but was assaulted. People gathered and the husband lodged a complaint with the local police station. The police arrived and found Neeta in the house. She was escorted to her own house. The wife alleged that her husband had concocted the story about cruelty and filed for a divorce because of his involvement with Neeta.   

[B][I]The courts[/I][/B]

The trial court examined the witnesses and the evidence. It held that there was no material to establish that the wife had troubled the husband and her in-laws. The judgment notes that the husband chose not to examine the servants as witnesses even though they could have provided the best evidence. The allegations of not looking after the mother-in-law were held to be unproven. The court observed that hiding motorcycle keys and crumpling ironed clothes were childish acts enjoyed by the husband and did not constitute mental cruelty. There was no reliable evidence to show that the wife had abused the husband on the phone. It held that the husband and wife slept in the bedroom on the third floor and it could not be said that the husband had been deprived of sexual satisfaction since 1991. The couple enjoyed conjugal relations until May 1, 1995, when the husband took his wife to her parents’ house and left her there. The court held that even if some of these allegations were accepted, they did not constitute mental cruelty but were instead the “normal wear-and-tear of marital life”. The court declared that the plea of mental cruelty made by the husband could not be established.

The trial court observed that the witnesses produced by the wife clearly established that Neeta was inside her husband’s house and that the police came and escorted her to her own home. It found that it was clear from the evidence that Neeta was indeed living with the husband. The allegation that there was violence and the breaking of windows could not be established. The court held that the notice in the daily was mainly about protecting the interests of the sons as the husband was alienating property. Further, the public notice was not unfounded and the question of causing mental cruelty did not arise. The trial court held that the evidence did not establish mental cruelty by the wife and dismissed the application for a divorce.

The husband went in appeal against the dismissal. The first appellate court analysed the evidence and held that mental cruelty had not been made out. It too dismissed the appeal. The husband made a second appeal to the high court. The high court held that there were concurrent findings of fact by the courts below and dismissed the appeal. The court observed that the marriage had irretrievably broken down and perhaps the Supreme Court could exercise its power to do complete justice and grant a divorce.

The Supreme Court ruled out granting a divorce on grounds of irretrievable breakdown of marriage. Generally, courts in appeal do not interfere if two courts below them have reached the same findings with regard to the facts. In an extraordinary departure, the apex court chose to re-open the issue of grant of divorce on grounds of mental cruelty by the wife.

The Supreme Court held that crumpling ironed clothes, hiding motorcycle keys and locking the gate was harassment. In the context of the relationship between the husband and Neeta, the court noted that the husband had been discharged in the case filed by his wife for marrying again during the lifetime of the spouse. Observing that the allegation seemed more suspicion than fact, the court examined the October 11, 1995, incident.

According to the wife’s testimony, she arrived at the house and wanted to see her father-in-law who was not well. After she entered, her father-in-law got up and went upstairs. She was not permitted to go upstairs. The father-in-law came down later and slapped her. The court said the father-in-law’s behaviour and the testimonies of her sons did not support the wife’s allegation about relations between her husband and Neeta. Common sense indicated that it was unlikely that both the father-in-law and son “acceded to the illicit intimacy with Neeta”. According to the wife, the newspapers reported that the father-in-law slapped his daughter-in-law, and that Neeta was in the house. The judgment concluded that the incident of October 11, 1995, and the evidence did not establish that the husband was having extramarital relations with Neeta Gujarathi.

At the instance of the wife, a case of cruelty against the husband, father-in-law and other relatives was lodged. The court noted that they had been acquitted in the said case and that there had been no appeal. The judgment concluded that the wife’s allegations were false. It declared that such an act created mental trauma in the mind of the husband as no one would like to face criminal proceedings based on untruthful allegations.

The court held that the plea in the application for interim maintenance, that Vishwanath was a womaniser and drunkard, was bound to create mental agony for the husband. The judgment holds that publication in a daily that the husband was a womaniser and alcoholic would cause trauma, agony and anguish in the mind of any reasonable man. The apex court held that the facts clearly “establish a sustained attitude of causing humiliation and torture on the part of the wife to make the life of the husband miserable”. The judgment observed that given the mental pain, agony and suffering, the husband could not be asked to live with the wife and granted a divorce on grounds of mental cruelty.

The Supreme Court does not just decide individual cases but declares the law, which is binding on all courts. In the present case, the apex court seems to have gone out of its way to change the parameters of what constitutes mental cruelty on the part of the woman. The husband being acquitted in a case of cruelty has been held to mean that the allegations were untruthful. Proving a fact in court is a difficult task. It is fairly common not to be able to establish things in court even though the events may actually have occurred. An allegation not proved in court does not necessarily mean that the allegations are false. This flawed logic has been extended to imply that this caused mental trauma to the husband as no one likes to face criminal proceedings based on untruthful allegations. In a similar vein, the discharge of the husband in the case for marrying during the spouse’s lifetime has been used against the wife.

The trial court has the benefit of having an opportunity to observe the demeanour of witnesses in reaching findings of fact. The trial court arrived at the conclusion that hiding motorcycle keys and crumpling ironed clothes were playful childish acts enjoyed by the husband. The Supreme Court, without enjoying this benefit, held that these acts constituted harassment. The proposition laid down in the judgment that acquittal in a case means mental trauma to the husband are unsustainable in law and is bound to work against women subjected to cruelty but unable to establish it in court. Putting aside the flawed proposition in the present case, hiding motorcycle keys and crumpling ironed clothes cannot be said to amount to mental cruelty, thereby constituting grounds for divorce.

[I](Rakesh Shukla is a Supreme Court lawyer)[/I]

[B]Infochange News & Features, July 2012[/B]

http://infochangeindia.org/women/judicial-interventions-and-women/marriage-and-divorce-mental-cruelty-by-the-wife.html

Shield or Weapon? The Abuse of India’s Dowry Laws

Shield or Weapon? The Abuse of India’s Dowry Laws

By Isra Syed, From Volume 2, Issue 2
n recent years, India has been on the minds of many people—common associations are burgeoning economic growth, budding political hegemony, and rapid technological innovations. However, while the most populous coun- try of South Asia gains momentum in the global workplace, a legal conundrum has taken hold of the Indian home. For decades, India has been battling the issue of dowry-related domestic violence. According to United Nations Population Fund Report, as many as seventy percent of married women in India between the age of 15 and 49 are victims of beat- ing, rape, or forced sex.1 One of the leading causes for such violence is dowry harassment, a widespread and culturally entrenched phenomenon in which the family of the groom demands a high dowry from the family of the bride. While the causes behind dowry harassment are difficult to pinpoint, the socially dependent status of women makes them means for their husbands’ families to easily increasing their stand- ard of living, while reaffirming their position of power over the woman.
Dowry harassment can take many forms, from continuously escalat- ing demands during the arrangement of the marriage, to the verbal and physical abuse of the bride after her wedding, to pressurizing her to bring a bigger dowry from her family. Even as society grants more economic freedom to women, dowry-giving continues to be a part of the Indian way of life, and its social externalities continue to affect women of lower economic and social standing. Every year, more than 9,500 women are killed over dowry conflicts in India.2 For years, the Indian government has attempted to craft a productive legal policy to punish and prevent dowry abuse cases, but to little avail.
Indian Dowry Law: A Historical Perspective
In many segments of Indian society, the practice of dowry is an age-old tradition still practiced to this day, despite its repeal in 1961.3 Generally speaking, it is a payment from the bride’s family to the groom’s family at the time of the ar- ranged marriage. Depending on the salary and status of the groom, the parents of the bride give her a number of items, such as furniture, crockery, appliances, clothing, jewelry, or cash.4 Historically, the family of the groom demands the dowry to be of a certain value, placing tense financial and social strain on the family of the bride. In many cases, these demands continue long after the wedding, and failure to comply with them degenerate into female domestic harass- ment and abuse. Moreover, the dowry phenomenon is largely responsible for economically incentivizing a preference for male over female children in the family unit, creating impli- cations such as sex-selective abortions and unbalanced sex ratios.5
In order to mitigate these results, the Indian government is- sued the Dowry Prohibition Act of 1961, which made the act of giving or receiving dowry a crime punishable by imprison- ment or fine.6 However, the practice of dowry, and its nega- tive social implications, did not cease with the enactment of this new law, for a number of reasons.7 For instance, under the law, dowry is defined as “any property or valuable se-curity given or agreed to be given either directly or indirectly by one party to a marriage to the other par- ty to the marriage or by the parents of either party to a marriage or by any other person, to either party to the marriage.”8 At the same time, however, the law does allow “gifts” given to the couple outside of a dowry arrangement.9 This has rendered the law essentially toothless and made the enforcement of the prohibition nearly impossible. Dowry harassment continued to be widespread.
Following a spate of dowry-related murders in 1983 in the northern part of the country, the Indian government realized that the ineffective prohibition on dowry was in need of fine- tuning and strengthening. It thus introduced a new section to the Indian Penal Code in 1983, which made the preceding dowry harassment laws more stringent, in hopes of clamp- ing down on the dowry problem once and for all. This law, referred to as Section 498a, made cruelty by husband or his relatives a criminal offense by stating that “whoever being the husband or relative of the husband of woman, subjects such woman to cruelty shall be punished with the imprisonment for a term which may extend to three years and also be liable to fine.”10
Section 498a: Shifting the Power Balance
While Section 498a appears to have made revolutionary pro- gress, the well-intentioned law has recently become the sub- ject of countless legal complaints, scholarly criticisms, and a nation-wide public outcry against the commonplace abuse of the law. A large number of recent dowry harassment cases have involved inflated, aggravated, or nonexistent al- legations, roping in the entire family of the accused husband on baseless criminal charges, out of vengeance or greed on the part of the wife.11 For instance, in the year 2005, out of 58,319 cases filed under Section 498a, 10,491 of them were charge-sheeted on grounds of frivolity, meaning that 24,256 innocent people were arrested on illegitimate grounds, due to the non-bailable and cognizable nature of the law.12 Ad- ditionally, only five per cent of all 498a cases resulted in con- victions, further suggesting a widespread trend of legal abuse and inefficacy.13
According to Justice D.K. Jain of the Supreme Court of In- dia, “Section 498a IPC was introduced with the avowed ob- ject to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives.”14 The conundrum lies in Section 498a’s loose definition of cruelty as any willful conduct likely to cause grave injury or danger to the woman, or harassment of the woman in order to coerce her to meet any unlawful demand.15
Several unique qualities of Section 498a make it a particu- larly stringent law. While in almost every crime, Indian juris- prudence puts the burden of proof on the accuser, in matters of dowry law, the husband is seen as guilty until proven in- nocent in the eyes of the law. Additionally, as a cognizable of- fense, once such a complaint is registered by the victim or any of her relatives, the police are legally obligated to take action against the accused and take them into custody as soon as possible. The law prescribes imprisonment for a term which may extend to three years and includes a fine.
Moreover, Section 498a’s defi- nition of cruelty is not just con- fined to causing grave injury, bodily harm, or danger to life, limb or physical health, but also includes harming men- tal health through harassment and verbal abuse. This law takes particular cognizance of harassment, where it occurs to coerce the wife, or her relatives, to meet any unlawful demand regarding any property or val- uable security.16 Thus, through placing the burden of proof on the accused, criminalizing har- assment, and making the pun- ishment cognizable, the lan- guage of the section favors the woman greatly, in the hope of making dowry complaints ac- cessible to women who would otherwise remain silent about their plight.
Impact and Abuse of the Law
However, in 2008, out of the 31,950 dowry death cases brought to trial, only 1,948 resulted in convictions.17 This number is up from past years, indicating that perhaps the new stringency is empowering more women to bring their abusers to trial, and finally bringing familial equality to In- dia.18 However, there is another side to the coin of the law’s success, surrounding the law in a bout of controversy.
In recent years, Section 498a has facilitated the creation of a new type of marriage fraud, referred to as “498a entrap- ment.” In these instances, a woman files or threatens to file a 498a case against her husband’s entire family when the mar- riage turns sour, thereby blackmailing them for large sums of money and ensuring that the divorce proceedings pass quickly through India’s generally lethargic courts. Other times, the family of the woman plans the case long before the marriage turns bad, accusing the husband of abuse with- in weeks after the wedding.19 A number of men and their families have filed complaints and counter suits in this vein, and a burgeoning “men’s rights movement” has been at the forefront of a vocal effort to denounce the law, creating a polarizing dialogue about the state of the Indian family. While efforts to bring men’s rights to the center of the dowry law debate seem disingenuous and slightly misogynistic, the large and growing number of genuine complaints regarding 498a entrapment is impossible to ignore. Although the num- ber of false dowry claims against men is still overshadowed by the intensity of dowry related crimes committed against women in India, a number of men’s rights organizations have made it their mission to lobby for the law’s removal, on the grounds that its ambiguous language and near-dra- conian strictness allow for easy abuse. These concerns are valid, especially in regards to non-resident Indians, who are disproportionately likely to fall victim to such fraud and bear the heavy consequences.20
Conclusions
The Indian justice system is still in search of an effective way to legally mitigate the dowry death and domestic violence is- sue that has troubled the nation for so long. While the Dowry Prohibition Act of 1961 proved completely ineffectual due to its unenforceability, the stringency of Section 498a went too far, creating a problem of legal abuse and uncovering a much deeper problem of gendered social tensions and resentment within Indian society. These facts raise the fundamental question of whether the Indian judiciary should continue to regulate the dowry practice, or whether a new approach needs to be taken in order to counter it.
However, in many regards, the last word on the efficacy of 498a and the current set of dowry laws has not yet been spoken. A number of women have been able to free them- selves from abusive relationships due to the law’s favorable language, even though the problem of dowry deaths un- doubtedly continues. The catalyst of the dowry death phe- nomenon is social in nature, and under current conditions of limited law enforcement in India, can only be eliminated through large-scale social change. While the place of the law is surely to regulate social customs from causing harm, in the context of Section 498a, the value of harshly criminalizing this aspect of family law may not outweigh the great personal damage that has come about from its abuse.
For the time being, the Supreme Court of India has prom- ised to force the government to reassess the law.21 Until then, it can only be hoped that the law enforcement of India miti- gates the adverse effects of 498a, while realizing its potential to keep the Indian family from further crises.
1. Ankur Kumar, “Domestic Violence in India: Causes, Conse- quences and Remedies,” Youth Ki Awaaz, http://www.youthkiawaaz. com/2010/02/domestic-violence-in-india-causes-consequences- and-remedies-2/.
2. Anudita Chaurasia, “Dowry Death”: Crime Against Humanity, Mighty Laws, Apr 11 2011, http://www.mightylaws.in/417/dowry- death-crime-humanity. 3. “The Dowry Prohibition Act”, Ministry of Woman and Child De- velopment, 20 May 1961.
4. ShinghKamayani, “The Dowry System and Women in India”, Internation Christian University Center for Gender Studies, April 2005. 5. Amelia Gentleman, “Indian Brides Pay a High Price”, The New York Times, Oct 22 2006.
6. “Dowry Prohibition Act of 1961, Maahilayog, Maharashtra Gov- ernment, May 20th 1961. <http://mahilaayog.maharashtra.gov.in/ new/pdf/dowery-%20act.pdf> 7. Ibid, Madhu Purnima Kishwar.
8. “The Dowry Prohibition Act, 1961”, Ministry of Women and Child Development, http://wcd.nic.in/dowryprohibitionact.htm. 9. Ibid, Madhu Purnima Kishwar. 10. “Section 498A in the Indian Penal Code”, Central Government Act, Indian Kanoon.org, http://indiankanoon.org/doc/538436/. 11. Richa Mishra, “Section 498 IPC”, Legal Service in India, 23 April 2009.
12. “The Silent Tears of Shattered Families”, 498a.org, http:// www.498a.org/contents/Publicity/498aReport.pdf. 13. “The Silent Tears of Shattered Families”, Ibid. 14. “IPC-498a- Harrassment or Cruelty to Women”, The Indians Abroad, http://www.theindiansabroad.com/tag/ipc-498a/.
15. “Section 498A: Husband or Relative of Husband of a Woman Subjecting her to Cruelty,” VakilNo1.com, http://www.vakilno1. com/bareacts/indianpenalcode/s498a.htm. 16. Ibid, MadhuPurnimaKishwar.
17. “Disposal of IPC Cases by Courts in 2008,” National Crime Re- cords Bureau, Ministry of Home Affairs. 18. “Disposal of IPC Cases by Courts in 2008,” Ibid. 19. “What’s Working: 498 or MHA?”,Save Indian Family Founda- tion. http://www.saveindianfamily.org/articles/views/984-whats- working-498a-or-mha.html
20. “Victim of Dowry Immigration Fraud”, India West, http:// www.498a.org/contents/general/Advice%20to%20NRIs%20marry- ing%20in%20India.pdf. 21. “Amend Dowry Law to Stop its Misuse, says SC to Government”, August 2010, The Times of India.
22. By Yann Forget (Own work) [GFDL (www.gnu.org_copyleft_fdl. html) or CC-BY-SA-3.0-2.5-2.0-1.0, via Wikimedia Commons.


http://yulr.org/shield-or-weapon-the-abuse-of-india%E2%80%99s-dowry-laws/