The difficulties of filing dowry harassment cases under Section 498A

Source:- scroll.in

From the day she arrived at her new marital home in Bengaluru, Seeta (name changed to protect her identity) realised that she had walked into a nightmare. Before her wedding in June 2015, her in-laws had promised her family that there would be no dowry involved. But the harassment began barely a few hours after the ceremony, as her mother-in-law taunted her for coming to them “empty-handed”. In the months that followed, Seeta was repeatedly starved, verbally and physically abused, forced to quit her job with a construction company, and made to part with more and more of her parents’ money.

“They accused me of having affairs with labourers in the building,” the 30-year-old said. “They spread rumours that I had tried to kill myself with kerosene. And my husband always supported his parents.”

In March, when Seeta went to visit her parents, her husband told her he didn’t want her back at all, and blocked her phone number.

After three months of feeling helpless, Seeta approached Vimochana, a women’s rights organisation in the Karnataka capital, whose members accompanied her to the police station. Their plan was to book her husband and his family under Section 498A of the Indian Penal Code, which deals with dowry harassment. “But when we got there, the police officers said that I would first need to do three days of counselling with my husband,” said Seeta. “They said it was compulsory under Supreme Court rules.”

In reality, there are no Supreme Court rules about counselling before filing a 498A case. And the counselling in Seeta’s case, it turned out, was not going to take place in the office of a qualified marriage counsellor or therapist. Instead, Seeta, her husband and their families were counselled by the inspector at the police station itself. During the session, it was her father-in-law and the policeman who did most of the talking.

“The inspector admonished my in-laws for creating trouble in my marriage,” said Seeta. “He told my husband that our problems would be solved if the two of us lived away from his parents in a separate house, and gave us 10 days to look for a place.”

During those 10 days, Seeta’s husband refused to communicate with her. When she tried to meet him, her brother-in-law assaulted her. She returned to the police, who finally agreed to file a first information report. “But the police said they could not arrest my in-laws because they had already secured anticipatory bail during those 10 days,” she said.

Now, seven months later, while her in-laws have successfully renewed their anticipatory bail, Seeta is still waiting for her case to be heard in court.

Anticipatory bail, not arrest

Although India has had a Dowry Prohibition Act since 1961, the majority of dowry harassment cases in the country are registered as offences under Section 498A of the Indian Penal Code. This section deals with husbands and their relatives who subject women to physical or mental cruelty, which includes harassment over dowry. Offences under Section 498A are cognisable (where the police can make an arrest without a warrant), non-bailable and punishable with imprisonment of up to three years.

The section was introduced in the Indian Penal Code in 1983 with the aim of protecting married women from cruelty in a country where dowry, domestic violence and patriarchy remain widespread. The statistics attest to the need for Section 498A: there were 24,771 dowry deaths in India between 2012 and 2014, more than 760 deaths in 2015, and these figures do not even include all the cases of dowry harassment that did not result in death.

But in the 33 years since its introduction, Section 498A has increasingly been vilified and associated with the perception that it is misused – that women frequently use it as a weapon against their in-laws. This counter-narrative is particularly ubiquitous on the internet, in the many online communities of husbands who feel wronged by vengeful wives.

In July 2014, the Supreme Court took note of this growing perception and ruled against the automatic or immediate arrest of a husband and his family in cases filed under Section 498A. The Union Ministry of Home Affairs affirmed the Supreme Court ruling in an advisory to all states and Union territories that stated, “The fact that Section 498A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shields by disgruntled wives.”

Instead of mechanically arresting the accused when a complaint is lodged under Section 498A, police officials were instructed not to make arrests without a magistrate’s nod, and to examine the necessity for arrest in accordance with Section 41 of the Indian Penal Code. Section 41 lists the specific conditions under which the police can arrest a person without a warrant, such as when a person commits a cognisable offence in the presence of a police officer, or commits an offence that merits at least seven years of imprisonment.

On the ground, the implementation of this ruling has led to two major problems. Women who attempt to file cases under Section 498A are often forced to undergo counselling sessions with their husbands before their complaints are given serious consideration. And, like in the case of Seeta, these counselling periods often buy time for the accused to secure anticipatory bail.

Police turn counsellors

“Even though the law does not mandate it, women filing dowry harassment cases are being subjected to forced counselling by the police,” said Donna Fernandes, one of the founders of Vimochana, which helps women in Karnataka file cases of dowry harassment, domestic violence and other forms of abuse.

When women approach the police bearing obvious signs of physical violence, most police stations claim they agree to file complaints immediately. In cases of “milder” dowry harassment complaints, the police typically refer couples to their social service cells, where they are made to undergo some form of pre-litigation counselling or mediation. However, Fernandes claimed, these mediations have been made almost mandatory after the Supreme Court ruling in 2014.

“The police in Karnataka often claim that couples have to undergo at least three rounds of counselling as per Supreme Court guidelines,” said Fernandes. “Every policeman seems to know of these guidelines as they keep mouthing them.”

While no such guidelines exist in reality, a 2015 Bombay High Court judgement triggered a controversy when it sanctioned pre-litigation counselling or mediation services in some cases of violence against women. According to the judgement, women can approach courts for legal protection if they have faced severe physical violence, but for all other kinds of violence – emotional, sexual or economic – the police or non-governmental organisations can conduct pre-litigation counselling.

The Bombay High Court’s ruling has not been taken up as a reference by courts in other states, but it has led to an intense debate between different non-profit organisations. Some believe women must have the right to choose their course of action, which may not always involve fighting a court battle. Others believe that counselling, particularly by unqualified police personnel, denies women the protection they seek and deserve after they take the courageous step of reporting abuse.

Anticipatory bail

In the process of putting couples through counselling, Fernandes has witnessed numerous cases in which the accused husbands or in-laws get time to secure anticipatory bail. So has Manisha Tulpule, a lawyer in Mumbai. “Sometimes, the police intentionally spend time on counselling, to give the accused a chance to get anticipatory bail,” Tulpule said.

According to Fernandes, since complaints are not converted into official FIRs till the counselling period is over, most attempts to file a case under Section 498A do not work.

Jagori, a Delhi-based organisation that offers support services to women, claimed it now rarely bothered to use Section 498A in cases of dowry harassment, opting for provisions under the Domestic Violence Act instead. “It is very difficult to file an FIR under 498A,” said a Jagori spokesperson who did not wish to be identified. “And in the mediation sessions, the police’s main focus is only on trying to preserve the family.”

Forcing settlements

Such moralising, according to activists, is one of the problematic aspects of police counselling sessions. To begin with, instead of referring couples to qualified state-appointed counsellors, police officials often take on the task of counselling themselves without any specialised training. “The counselling is done by police officials in our social service cell, but we don’t need any training or qualifications to counsel couples,” said a senior police official at Mumbai’s DB Marg police station. “We rely on our experience.”

Often, couples caught in Section 498A complaints are not even aware that being counselled in this manner is an anomaly. On this online forum, for instance, a husband accused of dowry harassment described, matter-of-factly, the counselling process at his neighbourhood police station: the first session took place between his parents and his in-laws; in the second session, the station house officer included the couple in question as well, and tried to force the husband to take his wife back; the third session was to take place in front of the deputy superintendent of police.

According to Tulpule, not only are police officials untrained for the job, they also tend to moralise and be biased towards the accused. “During these counselling sessions, they often place the blame on the woman filing the harassment complaint, telling her she will be in trouble for trying to break up the family,” said Tulpule.

At the Bandra police station in Mumbai, a woman police officer who did not want to be identified affirmed that counselling sessions are focused heavily on forging settlements between couples. “We try to tell couples to compromise and stay in the marriage, and if a settlement is not reached even after a few days, then we file an FIR,” said the officer, who sees at least three or four cases of dowry harassment at her police station every month. “But of course, because of the new Supreme Court rules, we mostly cannot make arrests even after an FIR is filed – we usually wait for further complaints of abuse or harassment,” she added.