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UNTYING THE KNOT

As divorces became commom, a need was once felt to put a legal lock on the exit door. But not any more, writes India Today's Sumit Mitra.

Though marriages are made in heaven, the laws to safeguard it are made by humans who, as it is accepted, are liable to err. Or so it seems from the working of Section 498-A of the Indian Penal Code (IPC). The section, dealing with cruelty by husband or his relatives, was introduced in 1983 in the background of growing public debate on gender issues. The wind of public opinion in those days was in favour of a radical law. And radical the law certainly is.

It defines cruelty as any "willful conduct" that can drive the woman to commit suicide or to cause grave injury to life, limb, and health, including "mental health". While it is difficult to pinpoint what exactly causes injury to mental health, some minds being more vulnerable than others, the punishment part of the law has an unmistakable draconian ring.

The law is not open to bail, resulting in a proliferation of the share of 498-A bail-seekers in the courts (about 40 per cent at Delhi's Tis Hazari courts). The section applies not only to husband but also his relatives. It is often an excuse for the aggrieved wife, or her lawyer, to put in the dock the elderly parents-in-law, the husband's sisters, brothers, and even the children in the household. The law is cognizable, meaning that it is the state, rather than the victim, which prosecutes the accused. Nor is the law compoundable, that is, the state cannot withdraw the prosecution after a settlement is reached between the parties.

When the law was inserted into the statute book, these features were regarded as its useful assets, its "teeth". But, with the years, it became, in many instances, a collusive instrument of blackmail in the hands of corrupt policemen, rapacious lawyers and overzealous women activists. Worse still, it has now become a common practice for women litigants to append with a divorce petition, a civil dispute, a criminal complaint under Section 498-A, to add a strong bargaining chip for the financial settlement at a later stage. Last week, Justice J.D.Kapoor of Delhi High Court delivered a powerful judgment in one such case in which the wife had sought to implicate every member of her husband's family in a 498-A case. In the process, the judge made a string of observation that will no doubt find echoes in the corridors of power.

He said that the law should be made bailable and compoundable. In the Code of Criminal Procedure, adultery (Sec 497 of IPC) is compoundable. Even the act (Sec 498) of enticing with criminal intent a married woman-just as Ravana did to Sita, as in the mythology-can be compounded by the husband of the woman. But the prosecution under Sec 498-A cannot be withdrawn even if alleged victim so wishes. Justice Kapoor made a further observation that investigation into matrimonial offences be brought under the civil authorities, like land disputes, and cognizance be taken only after they announce their findings. "Thousands of marriages have been sacrificed at the altar of these (cognizability, non-compoundability, non-bailability) provisions". Earlier, in a Supreme Court judgment (B.S.Josji Vs State of Haryana, 2003) allowing High Court to quash proceedings under Sec 498-A, Justice Y.K.Sabharwal had remarked: "Little matrimonial skirmishes suddenly erupt which often assume serious proportions...in which elders of the family are also involved with the result that those who could have counseled and brought about rapprochement are rendered helpless on their being arraigned as accused in the criminal case".

The law governing matrimonial cruelty, like every other law, is a product of how the society perceives it. As the perception changes, so should the law. Two decades ago, when legislators framed the tough provisions in Section 498-A, these were justified by the concept of marriage as a permanent social contract. As dissolution of marriages become commonplace, and life tends to go on regardless, there is a felt need to make the legal locks on the exit door more open to compromise.

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