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Malimath Report: Delusions
Of Gender-sensitivity

By Human Rights Features
17 November, 2003

The Committee on the Reforms of the Criminal Justice System headed by a former Chief Justice of the Karnataka and Kerala High Courts and former member of the National Human Rights Commission of India (NHRC), Justice V.S. Malimath, submitted its report to the Government of India, Ministry of Home Affairs in March 2003.

While media attention has focused on the Committee's recommendations on mainstreaming of the Prevention of Terrorism Act (POTA), doing away with the right to silence and on making conviction of the accused easier, the Committee's proposals concerning offences against women and their implications have not received adequate consideration.

An Amnesty International report, expressed concern about the Committee's recommendations relating to the treatment of women in criminal law. The nature of the recommendations, it was felt, indicated that women's groups in India were not adequately consulted in the matter. They also reflect insensitivity to current national and international debates on the protection of the human rights of women through law.

To be fair, certain recommendations by the Committee are commendable. For example, the panel suggests that the definition of 'wife' under section 125 of the Code of Criminal Procedure (CrPC) be amended to include a woman who was living with a man as his wife during the subsistence of the first marriage. This would prevent the husband from absolving himself of responsibility to maintain the second wife on the ground that since the first marriage was not dissolved, the second marriage would not be valid. Another proposal is to bring forcible non-penile penetration within the ambit of the offence of rape. The Committee's opposition to capital punishment for rapists is also welcome, as is the recommendation on increasing gender sensitivity among judges.

However, the Committee itself hits a new low on the gender-sensitivity scale when it recommends that the offence of cruelty under section 498A of the Indian Penal Code (IPC) be made compoundable and bailable. This provision is intended to protect the woman from willful conduct by her husband and/or by his family that may drive her to commit suicide or cause grave injury or damage to her life, limb or mental or physical health.

The Committee states that it is "bothered" by the offence being non-bailable and non-compoundable, since it results in the immediate arrest of the husband and/or other perpetrators, makes "innocent" persons "undergo stigmatization and hardship", and makes "reconciliation and returning to [the] marital home almost impossible". "For the Indian woman," the Committee observes piously, "marriage is a sacred bond and she tries her best not to break it."

Why the Committee places a premium on "return" and "reconciliation" and on the "hardship" suffered by the accused in cases of domestic violence is unclear, especially since in a previous paragraph, it admits that women are likely to commit suicide "when their suffering crosses the limit of tolerance." The intention behind the amendment is presumably to enable a woman who filed a police complaint against her husband and/or his family for cruelty and harassment to return to the marital home. Realistically, however, the amendment is more likely to create a situation in which the husband and/or his family could pressure the woman to drop charges and then subject her to further harassment.

The Committee's reasoning ignores the torture and cruelty that a large number of women undergo at the hands of their husbands and his relatives. The Committee goes so far as to suggest that if the husband loses his job or is suspended due to the arrest, the woman will find it more difficult to claim maintenance.

Too many assumptions are made here, most of them based on the traditional, patriarchal notion that the Indian woman would rather suffer harassment at home - and forgive it - than opt out of the marriage.

Ignoring the years of work and attempts by the women's movement in India to bring the issue of domestic violence into the public sphere, the Committee notes: "Even when there is a divorce, or reconciliation, the criminal case continues as the offence is non-compoundable". Clearly, the Committee believes that once a woman who has been a victim of such cruelty is awarded a divorce, there is no need for the criminal case to continue. This amounts to suggesting that matrimonial cruelty and violence is a family matter and does not involve the interests of the society - thereby not requiring the intervention of the state machinery.

The Committee also notes that there is a "general complaint" that section 498A is subject to gross misuse, and uses this as justification to amend the provision. It is pertinent to note that the Committee provides no data to indicate how frequently the section is being misused. This suggests that the Committee was acting on conjecture rather than research or independent study. While it is true that many of the cases under this provision are withdrawn, it is not because the women were misusing it in the first place, but more likely because they were coerced into withdrawing the cases.

Offences under section 498A must remain non-bailable - it is necessary to convey to perpetrators of domestic violence that the woman will not take the violence lying down. If the offence is declared bailable, the accused will be entitled to be free on bail, and the victim is likely to avoid filing a complaint for fear of harassment by the accused. It will make women vulnerable to more violence and to threats with regard to the criminal process.

Further, the link between section 498A and 304B (which deals with dowry deaths) has to be understood in the light of the origin and development of the law against cruelty/domestic violence. The objective of the law is to give women a legal tool to deal with cruelty while they are alive, not for "reconciliation". Making section 498A compoundable may also expose women to more serious domestic crimes such as dowry deaths. Section 498A must therefore also remain non-compoundable to demonstrate the seriousness of the threat to the woman's right to life.

The Committee, in its sorry attempt at portraying a gender-sensitive image, should have been more concerned with protecting women from being subjected to violence within their homes rather than protecting men from a vague notion of misuse of the law. It has, in its wisdom, also ignored the debates and deliberations concerning the Domestic Violence Bill (Bill No. 133 of 2001).

The Committee has completely overlooked several constraints that already discourage women from seeking recourse under section 498A. As a study by the International Centre for Research on Women points out, a complainant cannot realistically gain easy access to her matrimonial home once she files a case. Thus, women without access to financial and other resources find it difficult to exercise this option. The husband's family also often demands the withdrawal of the case as a precondition for an easy divorce. Conviction rates under this law are therefore already very low. The study cites an analysis of court decisions in Yavatmal district in the state of Maharashtra carried out by the Women's Studies Unit of the Tata Institute of Social Sciences which showed that only 2.2 per cent of cases brought under section 498A during 1990-96 resulted in conviction.

It must be recognised that the law on domestic violence, as it now stands, does have a strong deterrent value. It is extremely important that the issue of domestic violence be brought into the public domain from the private sphere by stressing its criminal content, instead of projecting it as exclusively an internal family matter. Keeping it 'in the family' not only makes legal intervention more difficult; it also prevents women from seeking relief.

It is a matter of grave concern that a draft Criminal Law (Amendment) Bill, 2003 (Bill No. LX of 2003) seeking to implement the Committee's recommendation has already been introduced in Parliament. Also of concern is a bill (Bill No. 8/2000) introduced in the State of Andhra Pradesh (AP) that seeks to amend section 498A on similar lines. The Andhra Pradesh bill specifies that the offence must be made compoundable. Such amendments, if passed, would only make women more vulnerable: all that has been achieved in the area of protection of women from domestic violence law would be lost.

The former UN Special Rapporteur on Violence Against Women, Ms. Radhika Coomaraswamy, stated in her 1996 report to the 53rd session of the Commission on Human Rights that national legislation on domestic violence must clearly state that violence against women in the family and violence against women within interpersonal relationships constitutes domestic violence. The language of the law must be clear and unambiguous in protecting women victims from gender-specific violence within the family and intimate relationships. Domestic violence, Ms. Coomaraswamy stated, must be distinguished from intra-family violence and legislated for accordingly.

The Committee has not taken such expert observations into account. Its recommendations also undermine India's treaty obligations under the UN Convention on the Elimination of All Kinds of Discrimination Against Women (CEDAW). The Government of India being party to CEDAW is under an obligation to respond with genuine and meaningful legal strategies to combat domestic violence.

Protection of the dignity of women is a fundamental duty under Article 51A(e) of the Constitution of India and this should have been given meaning beyond the letter of the Constitution. The Committee has failed miserably in this regard.


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