By Alison Saldanha
In its urgency to push through the Triple Talaq Bill, the government appears to have overlooked five criminal laws relating to women and marriage identified in 2015 by a government committee as needing immediate political attention.
These are: Criminalising marital rape; clarifying the definition of “cruelty by husband and his relatives”,;plugging a loophole in the anti-dowry law; ensuring the same age of marriage for women and men; and outlawing khap panchayats that impinge on the right to choose whom one wants to marry.
In its assessment of women and criminal law, the committee, formed in 2013 — 25 years after the last such panel — lists several recommendations, not restricted to Muslim personal laws alone, to help women through legislation and the justice system.
Less than a handful of these recommendations have been initiated.
“Improving the legal status of women involves a multi-pronged approach that looks first and foremost at the legislative inadequacies and state policies and schemes closely, followed by addressing the inadequate implementation of laws by the State, police and courts,” the report said.
Criminalise marital rape: Currently, there is no legal recourse for victims of marital rape as section 375 of the Indian Penal Code (IPC), 1860, provides an exception to marital rape.
“The exemption of marital rape stems from a long outdated notion of marriage which regarded wives as no more than the property of their husbands,” the report observed, adding that “the relationship between the perpetrator and the victim should be irrelevant in evaluating consent”.
Supreme Court advocate Karuna Nundy, who has argued for criminalising marital rape, pointed out that cases of marital rape may be filed under section 498-A of the IPC relating to “cruelty by husband and his relatives”.
“However, these laws treat victims of marital rape differently from other victims and also limit their access to compulsory free healthcare and legal aid otherwise provided to victims of rape,” Nundy told IndiaSpend. “The justice served in these cases is also limited as the perpetrators of this kind of rape are subjected to non-rape penalties that are much lighter in comparison.”
Expand definition of marital cruelty: Under section 498-A of the IPC, which refers to “cruelty by husband or relatives of husband”, the law seeks to punish the husband or his family for harassing a woman to the point of driving her to suicide or for coercing her to meet unlawful demands. If found guilty, the accused can be jailed for a term extending to three years or be fined.
Over a third, or 34 per cent (110,378 cases) of 325,652 serious crimes against women reported in 2016, were filed under section 498-A, showed National Crime Records Bureau (NCRB) data for 2016. This was the most among all categories of crimes against women reported that year.
“These numbers are still low compared to the number of cases where police turn away victims of various kinds of abuse that are not merely physical,” said Flavia Agnes, women’s rights lawyer. “Since it is not clearly defined under the current law, these cases are often not registered.”
The committee has recommended that the definition of cruelty be reviewed to include “the varied forms of violence against women in the home and to ensure that it is in line with the definition of ‘domestic violence’ given under the Protection of Women from Domestic Violence Act (PWDVA), 2005”.
The Act seeks to protect and shelter women who report to be facing any kind of abusive behaviour by her husband/male partner or their relatives (male and female). It clearly defines and expands the concept of abuse to include not only the physical but also verbal, emotional, sexual and economic.
As many as 31 per cent of ever-married Indian women have experienced physical, sexual, or emotional spousal violence, according to the National Family Health Survey, 2015-16. The most common type of spousal violence is physical violence (27 per cent), followed by emotional violence (13 per cent), while six per cent of ever-married women have experienced spousal sexual violence.
Amend anti-dowry law: Currently, the Dowry Prohibition Act, 1961, prohibits the giving or taking of dowry. An offender is subject to a minimum of five years’ imprisonment. The committee reiterated the amendments to the anti-dowry law proposed by the National Commission for Women (NCW) — widen the definition of dowry and lower the penalty levied on the giver of dowry. It recommended that stridhan (all the movable, immovable property, gifts and so on a woman receives in her lifetime) be included in the definition of dowry; and also that the legal provisions that allow a husband to inherit this stridhan be deleted.
However, in July 2017, the Supreme Court of India struck down the use of section 498-A in dowry cases, putting an end to the immediate arrest of the husband and his family in dowry cases. The court’s decision was based on the high acquittal rate in dowry cases reported under section 498-A — a median 81 per cent over the decade to 2015.
However, for a decade from 2005 to 2015, 88,467 women, or an average of 22 each day, died in dowry-related cases, indicating how little has changed despite the existence of an anti-dowry law for nearly six decades. In 2016 alone, 1,354 dowry deaths were reported, NCRB data showed.
Same minimum age of marriage: The Prohibition of Child Marriage Act of 2006 outlaws child marriages — where the a boy is under 21 years of age or the girl, under 18.
The committee recommended that the minimum age be made the same. “Child marriage is not just a social norm but denial of childhood with irreversible consequences, especially for girls,” the report said.
Underage marriages, especially of girls, are rising in urban India and declining in rural India.
Criminalise khaps ordering honour killings: “Unequal economic, social and political status and position of women is an outcome of patriarchy and the deeply entrenched socio-cultural stereotypes about women. This is sometimes perpetuated by laws, regulations and policies which do not sufficiently address the subordinate status of women,” the report said.
“Honour killing is not just a way of punishing the one who has brought dishonour to the family, it is indeed a barbaric murder usually of girls.”
Since 2014 — when the NCRB started recording data on honour crimes — to 2016 honour crimes more than doubled, from 28 cases to 71 cases. In 2015 alone, 192 honour killings were recorded, NCRB data showed.
To address the high rate of such killings and their gender skew, the committee recommended a separate legislation. This would involve the shifting of criminal consequences of the extra-judicial honour killings on the khap panchayats that order them.
The committee also recommended mandatory police and legal protection for couples/women/children/families who approach any institution fearing harm at the hands of family members or community.
“Violence against women has been acknowledged as one of the crucial social mechanisms by which women are forced into a subordinate position compared with men and therefore a violation of women’s equality rights,” the report said.
“Passing legislation however does not indicate judicial or executive sensitivity to women’s rights. Faithful implementation of the laws is thus the essence for good governance.”
(In arrangement with IndiaSpend.org, a data-driven, non-profit, public interest journalism platform, with whom Alison Saldanha is an assistant editor.)