- Before coming to the conclusion that women misuse the law, the court ought to have called for expert evidence and requisitioned the services of women’s studies centres which exist in all universities. Instead, the Supreme Court relied on (National Crime Records Bureau) NCRB data.
- The National Crime Records Bureau (NCRB) data, which is relied upon by the Court, indicates that in 2011, a total of 1, 14,372 cases were registered under crimes against women in matrimonial homes.
- The Court does not correlate the data from NFHS-3 which indicates that in the same year there were at least 59 million women who experienced some form of physical or sexual violence in the preceding 12 months.
- Relying on the findings of the NCRB, the Court concludes that several complaints are “false”.
- It is one thing to say there is no evidence to prove the allegations beyond reasonable doubt, but another to say that a complaint is false makes a lot of difference.
- Uncritical acceptance of these statistics has led to an incomprehensible judgment based on police data alone.
- The power of the police is limited to finding evidence; insufficient evidence does not render the complaint false.
- Lastly, the Court appointed two lawyers with no expertise on violence against women as advisors.
- No effort was made to get a contrary point of view before giving a judgment which virtually rewrote the law and goes consciously contrary to criminal jurisprudence. The sooner the judgment is overturned, the better for the rule of law.
Protection of Women from Domestic Violence Act 2005:
- The Protection of Women from Domestic Violence Act 2005is an Act of the Parliament of India enacted to protect women from domestic violence.
- It was brought into force by the Indian government from 26 October 2006.
- The Act provides for the first time in Indian law a definition of “domestic violence”, with this definition being broad and including not only physical violence, but also other forms of violence such as emotional/verbal, sexual, and economic abuse.
- It is a civil law meant primarily for protection orders and not meant to penalize criminally.
There are two fundamental problems with this law which paves way for its misuse:
- It is overwhelmingly gender biased in favor of women.
- The definition of domestic violence is too expensive.
Misuse of Anti-dowry law:
World Health Organization report on Elder Abuse finds misuse of dowry laws by daughter-in-law as the main reason for the elder abuse in India.
- As per the Union home ministry, there were 361 cases across India in the year 2015 under the Dowry Prohibition Act that was declared as false cases by the police after investigation.
- India’s Supreme Court has ordered the authorities to stop misuse of the anti-dowry law after concerns that a large number of false cases were being filed.
- On 27th July, 2017, the Supreme Court asked states to set up a family welfare committee in each district to address these concerns.
- District Legal Services Authorities will set up the panels.
- There should be a designated officer to investigate such complaints and more caution should be exercised while dealing with matters of bail.
Objectives of the panels:
- The committee will sift the genuine cases from the trivial ones.
- The complaints police or magistrates receive under 498A must be referred to the panels, which will look into them and submit reports.
- Till report of the committee is received, no arrest should normally be executed.
- Bail must be granted in one day, regardless of whether the dowry is recovered or not.
- The committee must speak to all parties involved in a harassment case because “uncalled for arrest may ruin the chances of settlement”.
- Personal appearance of all family members and particularly outstation ones may not be required for trial.
- To be noted: These directions will not apply in offenses in where there is tangible physical injury or death.
Demerit of having a welfare committee:
- By far the most devastating impact of appointing welfare committees drawn from the civil society is their potential to become non-state vigilante groups.
- It has happened with the “gau rakshaks”, who have received recognition by law to perform the functions of cow protection.
Ill effects for misuse of Protection of Women from Domestic Violence:
- It has resulted into large number of divorce cases. Once the members of the husband’s family are arrested, chances of surviving the marriage became remote and marriage comes to an end.
- It increases corruption in police and society as police threaten persons involved that if they would not pay money, their bail will be delayed.
- Many lawyers, in lieu of getting commission on the money received by women by misusing this provision, encourages to complaints. It causes disgrace to profession of advocates.
- Many suicide cases have been registered due to the harassment by women in such false cases.
- The academicians need to expose and reveal unnatural and unreasonable growth of law.
- With view to granting equal status to women, laws consciously or unconsciously are drafted having effect of gender-bias.
- Now-a-days, filing cases under the Domestic Violence Act by women has become a common one.
- Therefore, a neutral and an unprejudiced law is needed to protect the genuine victims of domestic violence irrespective of their gender.
- Time-bound trial should be made a statutory requirement in all these domestic violence laws in order to avoid unnecessary litigation.
- The trial under the Protection of Women from Domestic Violence Act, 2005 should be made in pursuant to the Evidence Act instead of the Criminal Procedure Code so that the sole testimony of women is not considered true but is backed by proper evidence.
- This is a very sensitive issue. Even though it is true that sometimes a few provisions of any law can be misused but the law rightly serves women security.