What the New Judgment on Dowry Says

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Interestingly, one of the 'Amicus Curiae' or Friend of the Court in the recent Dowry case was Additional Solicitor General Atmaram alias Sushant Nadkarni, formerly Advocate General of Goa, says ASHWIN TOMBAT.

The Supreme Court on Thursday directed that no arrest should “normally be effected” in dowry harassment cases.  The apex court has passed a laundry list of directions to deal with complaints under section 498 A (subjecting a married woman to cruelty) of the Indian Penal Code (IPC).  

Observing that many of such complaints are "not bonafide" and that “uncalled for arrest” may ruin the chances of settlement, a bench of Justices Adarsh Kumar Goel and U U Lalit  ruled that every dowry complaint received by police or magistrates be referred to family welfare committees (comprising para-legal volunteers, social workers, retired persons, wives of working officers, etc) constituted by the District Legal Services Authority (DLSA), and "till the report of such committee is received, no arrest should normally be effected".

It's a huge setback to women all over the country.

Interestingly, one of the 'Amicus Curiae' or Friend of the Court in this case was Additional Solicitor General Atmaram alias Sushant Nadkarni, formerly Advocate General of Goa. Adv Nadkarni submitted before the court that there was a growing trend of getting relatives, including senior citizens, minor children and siblings involved in cases of 498A without any evidence of physical or mental harm or injury.

Adv Nadkarni also referred to the National Crime Records Bureau (NCRB), which states that in 2009, a total of 1,74,395 people were arrested under 498A, and 8,352 cases were declared false. For the year 2012, the rate of chargesheet filing under the provision was 93.6 per cent, while the conviction rate was a mere 14.4 per cent.

It's not the best example. In 2003, less than a quarter of alleged rapists were convicted, while less than a third of murder trials ended in conviction. Does this mean that most rape and murder cases were false? Kidnapping convictions fell from 48 per cent in 1953 to 27 per cent in 2011, while Robbery convictions dropped from 47 per cent to 29 per cent. Fake cases...?

But it is true that a number of dowry harassment complaints are fabricated. Most often, the cause is lawyers who advise their clients in cases of matrimonial discord to include false allegations of dowry harassment, to "strengthen" the case. The charge is non-bailable and results in arrest of the siblings and in-laws. It puts pressure on the opposite party.

Now, this misuse of the law has rebounded badly. But, is the verdict leaning too far in the other direction?

Under the new guidelines, until the committee constituted by the District Legal Services Authority examines a dowry case and comes up with a recommendation (it has up to one month to do this), no arrest can ordinarily be effected.

It is not even clear how many districts India has. The 2011 Census says India has 640 districts. The Reserve Bank of India (RBI) says 644 districts. And the state-level Planning Commission bodies count 556 districts. How many have functioning Legal Services Authorities?

Under the SC directives, any bail plea filed in a dowry matter must be decided as far as possible on the same day, with just one day’s notice to the public prosecutor and/or the complainant. Recovery of disputed dowry items cannot by itself be a ground for denial of bail, if maintenance or other rights of the wife and minor children can otherwise be protected. For NRIs, impounding of passports or issuance of Red Corner Notice should not be routine. Personal appearance of all family members, particularly outstation members, is not required.

Here, the court draws a line: "These directions will not apply to offences involving tangible physical injuries or death.” But there does not appear to be any jurisprudence to clearly define "tangible physical injuries".

Some insurance companies define tangible physical injury as blood, bruises, broken bones, etc. However, the IPC only classifies injuries into "Simple Hurt" and "Grievous Hurt". Simple Hurt are injuries that do not endanger life. Even knife stabbing injuries that did not injure any important organ or structure have been held to be "Simple Hurt". Where does "tangible physical injuries" fit in?

And what happens, then, to a woman facing marital harassment and 'simple' violence on a daily basis; what justice can she expect?