The birth of
MANUSHI in 1978 coincided with the unfortunate rise
in reported cases of domestic violence and murder. Some
of these appeared to be linked to dowry demands. When
we organised one of our first demonstrations, in early
1979, to protest against the police gang up with the
murderer’s family by registering the death of
the newly-married Tarvinder Kaur as a case of suicide,
nearly 1500 people of the neighbourhood joined us in
calling for a social boycott of the family. This protest
received widespread publicity in the media. As a result,
MANUSHI and other organisations who joined in that protest
were flooded with cases of married women, seeking redress
against abusive and violent husbands, as also parents,
whose daughters had been murdered by their in-laws,
seeking our help in getting justice from the police
and courts. However, the experience of approaching the
police and law courts turned out to be a very disappointing
one for most women’s organisations.
To begin with, the police would put all manners of
hurdles in even registering cases of domestic violence,
even when the victims feared for their very lives. In
cases where wives had been murdered, the police were
found to play an active role in destroying evidence
and passing off these cases as suicides or accidental
deaths – simply because they had been suitably
bribed. The story in the law courts was not very different.
Husbands and in-laws got away with torture and even
murder, because the women and their families found it
difficult to “prove beyond doubt” that they
were victims of violence and extortion.
From that experience many concluded that what we needed
were stringent laws. By comparison, far less importance
was given to figuring out ways of making our law enforcement
machinery behave lawfully. But most important of all,
domestic violence and abuse came to be seen as a one-way
affair, largely because most of those whose cases reached
women’s organisations, police stations and law
courts, happened to be wives who had complained against
their husbands. Our laws do not recognise the possibility
of daughters-in-law maltreating old in-laws or other
vulnerable members of their husband's family.
the dual objective of helping the woman gain control over
her stridhan and punishing abusive husbands and inlaws,
in reality most victims fail to receive necessary relief.
This is due to the unsympathetic attitude of the police,
magnified by their propensity to protect the wrong doers,
once they are adequately bribed.
Demand for Stringent Laws
As a result of determined campaiging and lobbying
by women’s organisations,significant amendments
were made to the Indian Penal Code, the Indian
Evidence Act and the Dowry Prohibition Act, with
the intention of protecting wives from marital
violence, abuse and extortionist dowry demands.
The most notable ones are sections 304B, 406 and
498A of the Indian Penal Code, and Section 113
A of the Indian Evidence Act.
However, the actual implementation of these
laws has left a bitter trail of disappointment,
anger and resentment in its wake, among the affected
On the one hand, many victims of domestic violence,
as well as many women’s organisations feel
that despite the existence of supposedly stringent
laws, that enshrine
A survey of cases, in which wives had been murdered
or had committed suicide, carried out by Vimochana,
a Bangalore-based women’s organisation, also indicates
that the police and other law enforcing agencies are
wilfully avoiding use of the stringent laws against
domestic violence. In most cases, even where the circumstantial
evidence clearly indicates that the wife was killed,
the police seemed to go out of their way to convert
her death into a case of suicide. In many instances,
familiesof victims found it difficult to register an
accurate F.I.R., or have the case properly investigated.
There are widespread allegations that the police usually
collaborate with the murderers in producing false post-mortem
and forensic reports, even destroying circumstantial
evidence so that the accused can easily secure acquittal
(see report by Vimochana in MANUSHI 117).
Similarly, a study, based on police records, to evaluate
the functioning of section 498A of the Indian Penal
Code, conducted by a group of women activists associated
with the Tata Institute of Social Sciences in Mumbai,
indicated that 40 per cent of women were dead by the
time their families came to lodge complaints against
their violent husbands.
who alleged abuse in their marital home. In the last few
years, a good proportion of the cases coming to us involve
complaints by in-laws and husbands about the misuse and
abuse of laws, especially sections 498A and 406. Wherever
I travel, in India or abroad, such cases are invariably
brought to my notice, not only by aggrieved familes and
their friends, but more often by members of women’s
organisations feel that
despite the existence of supposedly stringent
laws ...most victims fail to receive necessary
||Thus, numerous women
continue to suffer humiliation and battering, many
even to the point of death, despite the existence
of stringent laws in their favour. On the other
hand, there is a growing and widespread feeling
that these laws are being used by most police officers
and lawyers to help unscrupulous daughters-inlaw
hold their in-laws to ransom.
In the first decade of MANUSHI’s existence,
most of those who came to us for legal aid were
Things have come to this pass, not just due to police
and judicial corruption but also because the laws, as
they are currently framed, lend themselves to easy abuse.
During the 1980’s, far reaching changes were
introduced in our criminal laws to deal with domestic
violence. Prior to 1983, there were no specific provisions
to deal with marital abuse and violence. But husbands
could be prosecuted and punished under the general provisions
of the Indian Penal Code dealing with murder, abetment
to suicide, causing hurt and wrongful confinement.
woman or causes her injury. But the police would in most
cases not register a complaint against a husband under
these sections, even where there was clear evidence that
the wife’s life was in grave danger. This was partly
because, as habitual users of violence, policemen, more
than any other section of our population, find it easy
to condone beatings and even murder of wives by husbands.
Given their track record in routinely brutalising people
who fall into their clutches, it is reasonable to assume
that the propensity of our policemen to beat up their
wives would be much higher than that of the average citizen.
Add to this their entrenched habit of patronising criminals
as a way of garnering extra income and it would be, indeed,
naive to presume that they would turn into compassionate
rescuers of women in distress, simply because more stringent
laws had been put at their disposal.
Since marital violence mostly took
place in the privacy of the home, behind closed
doors, a woman could not call upon any independent
witnesses to testify in her favour and prove her
case “beyond reasonable doubt” as
was required under criminal law. Therefore, women’s
organisations lobbied to have the law tilted in
women’s favour by bringing in amendments
which shifted the burden of proof on the accused
and instituted fairly stringent, pre-emptive measures
and punishments against the accused.
All these amendments placed draconian powers
in the hands of the police without adequate safeguards
against the irresponsibility of the enforcement
machinery. The truth isthat there were adequate
provisions in the IPC Sections 323, 324, 325 and
326 for use against anyone who
In the last few years, a
good proportion of the
cases coming to us involve
complaints by in-laws and husbands about the
and abuse of laws, especially
sections 498A and 406.
No new principles of accountability were added to the
Police Act. The only new innovation we witnessed was
that special Crimes Against Women Cells were created
in select police stations to handle women’s complaints.
And, in some places, Family Courts were put into operation.
However, since the new police cells for women are
run by the same police personnel, barring a few exceptional
officers, the rest have had no compunction in making
a mockery of the new laws by systematic under use or
abuse — depending upon which offers better money-making
The New Amendments
Let us examine the new provisions to see how they facilitate
this process: The Indian Penal Code was amended twice
during the 1980s — first in 1983 and again in
1986 — to define special categories of crimes
dealing with marital violence and abuse.
In 1983, Section 498A of the IPC defined a new cognizable
offence, namely, “cruelty by husband or relatives
of husband”. This means that under this law the
police have no option but to take action, once such
a complaint is registered by the victim or any of her
relatives. It prescribes imprisonment for a term which
extend to three years and also includes a fine. The
definition of cruelty is not just confined to causing
grave injury, bodily harm, or danger to life, limb or
physical health, but also includes mental health, harassment
and emotional torture through verbal abuse. This law
takes particular cognisance of harassment, where it
occurs with a view to coercing the wife, or any person
related to her, to meet any unlawful demand regarding
any property or valuable security, or occurs on account
of failure by her, or any person related to her, to
meet such a demand.
During the same period, two amendments to the Dowry
Prohibition Act of 1961, enacted in 1984 and 1986, made
dowry giving and receiving a cognizable offence. Even
in this case, where a person is prosecuted for taking
or abetting dowry, or for demanding dowry, the burden
of proof that he had not committed an offence was placed
on the accused.
However, no punitive provisions were added for those
making false allegations or exaggerated claims. There
is, of course, the law against perjury (lying on oath).
But in India, the courts expect people to prevaricate
and lawyers routinely encourage people to make false
claims because such stratagems are assumed to be part
of the legal game in India. Therefore, the law against
perjury has hardly ever been invoked in India.
Partners in 'Crime' Let Off
A person guilty of giving or taking dowry is punishable
with imprisonment for a term ranging from six months
to two years, plus a fine, or the amount of such dowry.
Needless to say, no case is ever registered against
dowry “givers.” It is only dowry “receivers”
who are put in the dock. Not surprisingly, the law is
invoked very selectively. The very same family which
would declare at the time of marriage that they only
gave “voluntary gifts” to the groom’s
family, does not hesitate to attribute all their "gift-giving"
to extortionist demands, once the marriage turns sour
and is headed for a breakdown.
Section 406 prescribes imprisonment of upto three years
for criminal breach of trust. This provision of IPC
is supposed to be invoked by women to file cases against
their husbands and in-laws for retrieval of their dowry.
Furthermore, another Section 304B was added to the
IPC to deal with yet another new category of crime called
“dowry death”. This section states that
if the death of a woman is caused by burns or bodily
injury, or occurs under abnormal circumstances, within
seven years of her marriage and it is shown that just
prior to her death she was subjected to cruelty by her
husband or any relative of her husband, in connection
with any demand for dowry, such a death would be called
a “dowry death”, and the husband or relative
would be deemed to have caused her death.
The person held guilty of a "dowry death"
shall be punished with imprisonment for a term which
shall not be less than seven years but which may extend
to imprisonment for life. By inserting a new section
113B in the Indian Evidence Act, the lawmakers stipulated
that in cases that get registered by the police asthose
of “dowry death”, the court shall presume
that the accused is guilty unless he can prove otherwise.
Under section 304B, in the case of a “dowry death”,
where allegations of demand of dowry or non-return of
dowry are made, the accused are freqently denied anticipatory,
or even regular bail.
The burden of proof is shifted to the accused party.
The basic spirit of Indian jurisprudence is that a person
is presumed innocent till proven guilty. However, in
all such cases a person is assumed guilty till proven
This is understandable in cases of death because the
unnatural demise of a woman through suicide or murder
is in itself proof that something was seriously wrong
in the marriage. But problems arise when the same presumption
applies to cases of domestic discord where the underlying
cause of conflict is not due to a husband's violence
or abuse but due to the couple's inability to get along
with each other.
Misuse of Section 498A
Way back in 1988, I had pointed out, in what came to
be a very controversial article, that there was already
a distinct trend to include dowry demands in every complaint
of domestic discord or cruelty, even when dowry was
not an issue at all (see MANUSHI 48). The police as
well as lawyers were found to be encouraging female
complainants to use this as a necessary ploy to implicate
their marital families, making them believe that their
complaint would not be taken seriously otherwise. With
the enactment of 498 A, this tendency has received a
further fillip. Mentioning dowry demands seems to have
become a common ritual in virtually all cases registered
with the police or filed in court.
For years after the new law hadcome into existence,
the police would refuse to register cases under 498A
unless specific allegations of dowry harassment were
made. However, determined action by some women’s
organisations ensured that this section came to be used
in all situations of cruelty and violence — not
just confined to dowry related violence. But, in places
where there are no vigilant organisations taking up
such cases, policemen and lawyers are often found encouraging
complainants to add dowry demands as the main cause
for cruelty. This has created an erroneous impression
that all of the violence in Indian homes is due to a
growing greed for more dowry. This makes the crime look
peculiarly Indian, but the truth is that violence against
wives is common to most societies, including those which
have no tradition of dowry.
Often, highly exaggerated or bogus
claims are made by unscrupulous families who demand
the return of more than was given as stridhan,
using the draconian sections 498A and section
406 of the IPC as a bargaining tool. Sometimesthe
goal is reasonable — the woman wants the
return of all items that legitimately belong to
her, but she is encouraged to overstate her case
and to demand an enhanced settlement as a pre-condition
for divorce by mutual consent.
A large number of cases registered under 498A
are subsequently withdrawn, though not necessarily
because they were false. Bombay based lawyer,
Flavia Agnes, points out that the "complexities
of women’s lives, particularly within a
violent marriage, have to be comprehended beyond
the context of popular ethics. The conviction
and imprisonment of the husband may not be the
best solution to the problems of a victimised
wife." Her limited choices and constrained
circumstances often "make it impossible for
her to follow up the criminal case." As Agnes
point out: "Since the section does not protect
a woman’s right to the matriomonial home,
or offer her shelter during the proceedings, she
may have no other choice but to work out a reconciliation.
At this point she wouldbe forced to withdraw the complaint
as the husband would make it a precondition for any
negotiations. If she has decided to opt for a divorce
and the husband is willing for a settlement and a mutual
consent divorce, again withdrawing the complaint would
be a precondition for such settlement."
Agnes adds: "if she wants to separate or divorce
on the ground of cruelty, she would have to follow two
cases — one in a civil court and the other in
a criminal court. Anyone who has followed up a case
in court would well understand the tremendous pressure
this would exert, speciallywhen she is at a stage of
her life, finding shelter, a job and child care facility.
Under the civil law she would at least be entitled for
maintenance which would be her greater priority. So
if she was to choose between the two proceedings, in
most cases, a woman would opt for the civil case where
she would be entitled to maintenance, child custody,
injunction against harassment and finally a divorce
which would set her free from her violent husband."
Thus, many women end up dropping the criminal proceedings.
In most cases, criminal proceedings are “quashed”
as a result a settlement or compromiseby presenting,
with mutual consent, a joint petition/ in the High Court
u/s 482 Cr. P.C.
Instrument of Blackmail?
Sadly, there are also any number of cases coming
to light where Section 498A has been used mainly
as an instrument of blackmail. It lends itself
to easy misuse as a tool for wreaking vengeance
on entire families, because, under this section,
it is available to the police to arrest anyone
a married woman names as a tormentor in her complaint,
as “cruelty" in marriage has been made
a non-bailable offence. Thereafter, bail in such
cases has been denied as a basic right.
Many allege that such a drastic paradigm shift
has lent itself to gross abuse, because arresting
and putting a person in jail, even before the
trial has begun, amounts to pre-judging and punishing
the accused without due process. Although a preliminary
investigation is required after the registration
of the F.I.R, in practice such complaints are
registered, whether the charges are proved valid
or not, and arrest warrants issued, without determining
whether the concerned family is actually abusive,
or they have been falsely implicated. For example,
there are any number of cases where the problem
is mutual maladjustment of the couple rather than
abuse by the entire joint family. However, a host
of relatives, including elderly parents, who are
not necessarily the cause of maladjustment, have
all been arrested and put in jail for varying
lengths of time before the trial begins. Lawyers
have cited several cases where judges have refused
bail unless the accused family deposits a certain
sum of money in the complainant’s name as
a precondition to the grant of bail.
Women Cell in Delhi
Held Guilty Without Trial
Scared by these developments,many apply for anticipatory
bail at the slightest likelihood of a wife lodging
a complaint with the police. I also know of several
cases where the lawyer advised his client to pre-empt
his wife from registering a case of cruelty against
him, by filing a divorce petition before the wife
could reach the police. Husbands could then reasonably
argue that the charges of cruelty were a malafide
retaliation against the husband’s petition
for divorce. Thus, instead of finding redressal
for her grievances, a woman ends up fighting a
The law was recast, heavily weighted in the woman’s
favour, on the assumption that only genuinely
aggrieved women would come forward to lodge complaints
and that they would invariably tell the truth.
In the process, however, the whole concept of
due process of law had been overturned in these
legal provisions dealing with domestic violence.
Police and Lawyers Mislead
During the preliminary investigations carried out by
MANUSHI, several lawyers provided us with instances
of the police using the threat of arrest to extort a
lot of money from the husband’s family.
Likewise, people allege that the police threatened
to oppose or delay granting of bail unless the accused
family coughed up fairly hefty amounts as bribes.Others
allege that many lawyers encourage complainants to exaggerate
the amounts due to them as stridhan, assuring them that
they would get them a hefty settlement from the husband,
provided they got a certain percentage as commission
for their services in coercing the husband’s family.
Many cases have come to our notice whereby the woman
uses thestrict provisions of 498A in the hope of enhancing
her bargaining position vis a vis her husband and in-laws.
Her lawyers often encourage her in the misguided belief
that her husband would be so intimidated that he will
be ready to concede all her demands. However, once a
family has been sent to jail even for a day, they are
so paranoid that they refuse to consider a reconciliation
under any circumstances, pushing instead for divorce.
Thus, many a woman ends up with a divorce she didn’t
want and with weaker, rather than strengthened, terms
Several women’s organisations, with long years
of experience in intervening in such cases, find to
their dismay that their help was being sought in patently
bogus cases. Several police officers also admit that
a good number of cases are of dubious standing.
The cases in which these provisions have been exploited
cover a large spectrum. In an instance brought to our
notice by the Delhi based organisation, Shaktishalini,
a young woman who happened to have married into a much
wealthier family than her own, used the threat of 498A
to pressure her husband into giving money to her brothers
for investing in their business. In yet another case,
a woman wanted a divorce because she was having an affair
with a doctor from whom she was also pregnant. Yet,
she sought a divorce alleging cruelty at the hands of
her husband and charged him with being impotent - all
so that she could coerce him into giving her a sum of
money. Shaktishalini also mentioned a case they had
to deal with in which a wife refused to consummate her
marriage because she was involved in an incestuous relationship
with her own father. Yet this father-daughter duo filed
a case under 498A and demanded ten lakhs from the groom’s
family as a pre-condition to uncontested divorce.
I personally know of instances where the main point
of discord between the couple was that the wife wanted
the husband to leave his parent's home or an old widowedmother
and set up a nuclear family. Since the man resisted
this move, the wife used 498A as a bargaining device,
without success though. In one instance, the young wife
being the only daughter of a wealthy businessman, wanted
her husband to move in with her parents because his
income allowed middle class comforts, not the luxuries
she was used to. Since he did not succumb to the pressure
of leaving his parents, she got both her father and
mother in-law arrested and put in jail for several days
under 498A, at a time when her husband had gone visiting
his sister in the US. The man himself dared not return
even to come and bail out his parents, before he got
an anticipatory bail from the court. Needless to say,
all these cases ended in divorce rather than in the
wife getting her way.
Are These Stray Cases?
The question to ask is: are these stray examples or
do they represent a growing trend? Opinions differ.
Some lawyers will tell you that more than 90 per cent
of cases under 498A are false or are based on questionable
grounds. A lawyer, who handles the cases of Sabla Sangh,
told me that in Punjab, on any random day, 75 per cent
of the cases listed for hearing in criminal courts are
registered under section 498A, and of these more than
90 per cent are malafide Sumitra Kant of Punjab Istri
Sabha confirms that the proportion of such blackmail
cases is growing fast in Punjab and cited several cases
personally known to her.
Nobody has established as yet whether the abuse of
these laws is as rampant as it is made out to be. Some
think that the scare caused by isolated cases of misuse
has caused a reaction in our society, making people
exaggerate the damaging consequences of these laws.
They dismiss the charges of abuse by pointing to the
very low rate of convictions under 498A.
While it is true that very few people have actually
been given sentences under 498A there is no doubt that
a large number of families have been locked up in jail
for a few days or weeks, some even for months, following
the registration of a police F.I.R. That is punishment
enough for most. In many instances, out-of-court settlements
are made using 498A as a bargaining point by the woman’s
family. Many cases do not go far because the charges
are so exaggerated that the cases fall through. All
these and other factorsmay be contributing to an abysmally
low conviction rate.
However, many feminists
think that Section 498A has indeed served women
well and proved extremely useful as a deterrent.
They argue that women man not be in a position
to see their complaint through to its logical
end. But this is not to deny its usefulness in
bringing the husband to the negotiating table.
Since the offence is non-bailable, the initial
imprisionment for a day or two helps to convey
to the husbands the message that their wives are
not going to take the violence lying down.
No doubt, some women feel compelled to use this
method, to arrive at a speedy divorce and settlement
of alimony because they feel that they won’t
get justice through the civil courts, given their
tardy and unpredictable functioning.
Many feminists think that Section 498A has
indeed served women well and
proved extremely useful
as a deterrent.
distinguish between reasonable and unreasonable laws,
between implementable and unimplementable laws, just as
we have failed to create a law- enforcement machinery
capable of providing genuine recourse to all those whose
rights have been violated.
But this in itself amounts to using
the law as a weapon of intimidation rather than
a tool of justice. I would condone its use thus,
if it were true that lawyers used it judiciously
to effect dignified settlements for women with
legitimate complaints. But in a good number of
cases, least in metropolitian cities lawyers are
actively distorting the spirit and purpose of
The basic problem with the present laws dealing
with domestic discord and marital abuse is that
instead of providing effective remedies through
civil laws, the whole matter has been put under
the jurisdiction of criminal laws, with very draconian
provisions to make their implementation stringent.
This is what scares many women from approaching
the police or the courts for protection, because
once they put their husbands behind bars, they
know then that they are in a fight to the finish.
Most women are not prepared for that. Instead,
they prefer to approach organisations that can
mediate on their behalf and work out a better
solution for them. In some cases, where the Crimes
against Women Cell personnel are sensitive and
honest to their job, they do perform the role
of mediators well. But in most cases, thepolice
make such cases an occasion to make money by squeezing
the husband’s family, in return for the
woman withdrawing her opposition to grant of bail.
Need For Workable Laws
One of the tragedies of
independent India is that
we have not yet
By a great deal of struggle and hard work, women’s
organisations have won a measure of social legitimacy
in persuading our society,especially lawmakers, to recognise
the serious threat to women’s lives due to domestic
However, if instances
of manipulation of such laws become common, we
will get less and less sympathy for the plight
of women in our society, even for those women
who are facing threats to their lives. We need
to sift the grain from the chaff and check out
whether the allegations of abuse are indeed genuine,
or they are exaggerated and altogether malafide.
Those of us who are concerned about expanding
the horizons of women’s freedom and strengthening
their rights, both within the family and in the
public domain, ought to be taking note of these
developments as they arise.
We invite our readers, those who may have personal
knowledge of such cases as well as those who are
handling cases of matrimonial disputes through
women's organisations, to send us their feedback
on how these laws are being put to use in their
respective areas, so that we can initiate systematic
investigations in order to arrive at a realistic
assessment of the situation and work out timely
The basic problem with the present laws dealing
with domestic discord and marital abuse is that
instead of providing effective remedies through
civil laws, the whole matter has been put under
the jurisdiction of criminal laws
With a sense of profound loss we inform of the
untimely demise of Prof. Giri Deshingkar, a member
of MANUSHI’s Editorial Advisory Group, on
November 3, 2000, in New Delhi. Years before his
formal association with us, Prof. Deshingkar provided
MANUSHI with advice on editorial content, with
editing and even proofreading. His was an exceptionally
versatile and open mind, which could take vast
expanses of knowledge in its stride. One could
count on him to provide a fresh insight into a
whole range of diverse subjects. We will miss
him as a friend and colleague.
Prof. Deshingkar taught at the Department of
Chinese and Japanese Studies, University of Delhi,
from 1966 till 1975, when he joined the Centre
for the Study of Developing Societies as a Senior
Fellow and was its Director from 1987 till 1992.
He was Senior Fellow at the Institute of Peace
and Conflict Studies, in Delhi, when he died.
His two books, Disarmament, Development and Just
World Order, 1978, and Towards a Liberating Peace,
1985, as well as his writings on the People’s
Liberation Army of China, science and technology
in China, and on the nuclear weapons programmes
of India and China established him as one of the
most astute political commentators of our country.