Smt. K.K. Shylaja, Hon'ble Minister for Health & Social Justice
Smt. M.C. Josephine, Chairperson, Kerala Women's Commission,
Shri Loknath Behera IPS, State Police Chief,
Smt. R. Sreelekha, Additional Director General of Police,
Smt. Shahida Kamal, Member, Kerala Women's Commission,
Adv. M.S. Thara, Member, Kerala Women's Commission,
Friends in Media
Sahodaree Sahodaranmaare,
Ellaavarkkum Ente Namaskaaram,
I am very happy to address this august audience at the State Level Seminar organized by the Kerala Women's Commission to discuss hereunder the new guidelines issued by the Supreme Court on a legal provision which is important in matters relating to the safety of women.
Let me at the outset, compliment the Kerala Women's Commission for taking initiative in conducting this Seminar for the benefit of women and people who work towards enhancing the status of women.
The Constitution of India holds out a promise of equality for all the citizens, irrespective of class, caste or sex. Articles 14, 15(3), 16, 39 and 51A have been specially incorporated in the Constitution of India empowering women with equal status and opportunity. The Preamble refers to the promise of social justice and State can undertake affirmative action in favour of women. Above all, the Constitution imposes a fundamental duty on every citizen through Article 51A (e) to renounce the practices derogatory to the dignity of women. Despite these provisions and special laws enacted to promote gender justice, status of women continues to be a cause of concern not only in our country but also in most countries of the world. There is a long path to walk in order to achieve the goals enshrined in the Constitution.
Enactment of special laws like Domestic Violence Act 2005, Sexual Harassment Act 2012, various welfare legislations like Maternity Benefit Act, Equal Remuneration Act, Right to Information Act and recent amendments to Criminal laws including IPC, CrPC and Indian Evidence Act highlights the role of law as an instrument of social control as well as change. But the sad state of affairs is very few women are aware of existence of such laws and most are under a veil of ignorance about their legal rights. Thus, Legal empowerment through four L’s namely; Legal Aid, Legal Literacy, Legal Awareness and Lok Adalats must become one of the stepping stones of women empowerment. The Legal Services Authorities Act, 1987 as amended in 2002 by incorporating these four tools has given a boost to legal empowerment of women. The aim is to provide free and competent legal service to women to ensure that opportunities for securing justice are not denied to them by reason of economic or other disabilities.
Apart from State Legal Services Authorities, the judiciary being the institution providing legal services has a critical role in women empowerment. It is my firm belief that courts and judges throughout India must continues to play a progressive, dynamic, creative and proactive role for social, economic and cultural transformation.
Criminal law Amendment Act, 1983 with effect from 25-12-1983, inserted the Section 498A (Chapter XX-A) relating to the cruelty by the Husband or the relatives of the Husbands to combat the social evil of dowry and matrimonial atrocities against the married women. This measure was to make better family system for greater society. One side to protect society from crime against the women and other side to put matrimonial cruelty in penal code for making it more stringent to curb wife battering, dowry system, which made society more polluted.
However, with the passage of time, the 498A section which was intended to be used as shield by the women folks was turned into a sword; thereby, the misuse of the section was recorded in large numbers. In this light, the Malimath Committee Report indicated that once a complaint or FIR is lodged under section 498A of Indian Penal Code, it becomes easy tool in the hands of the police to arrest or threaten to arrest the husband and other relatives named in FIR without even considering the intrinsic worth of allegations and making a preliminary investigation.
Further the Law Commission of India in its 237th report on ‘Compounding of IPC offences’ highly recommended that Section 498A, Indian Penal Code, 1860 should be made compoundable with permission of Court. This is not the first time; the same recommendation was by Law Commission on its 154th report on 1996 and 177th report on 2001 respectively.
Apart from the Law Commission, Justice Malimath Committee’s report on ‘Reform of Criminal justice System’ had also suggested to bring Section 498A under purview of compoundable offence. There was a constant demand for the flexibility of this provision from Apex Court’s in numerous cases.
In light of numerous recommendations over a large span of time the Supreme Court in Rajesh Sharma v. State of UP, on 27th July 2017 has issued a set of directives related to application of Section 498A, Indian Penal Code (IPC), with a view to prevent misuse of this provision in cases filed under it. The Court passed a directive to police and magistrates that there would be no automatic arrests or coercive actions arising out of complaints lodged under section 498A without ascertaining the veracity of the complaints.
A bench consisting of Justices A.K Goel and U.U. Lalit stated that there was a growing pattern of cases wherein the women were abusing the legal provision to implicate their husbands and his relatives — parents, minor children, grandparents and siblings — in criminal cases on the basis of malicious or frivolous complaints. The bench stated that there was "violation of human rights of innocents". Therefore, the court directed for verification of the complaints by a special police officer and a district-level Family Welfare Committee (FWC), which will preferably comprise of three members, who can be "paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing". The court, however, assured that grave physical injury or death of the aggrieved would be exceptions to this directive.
After issuing various directions including formation of “Family Welfare Committees”, directed listing for further hearing in April 2018. Copies of their order sent to DGPs of all States, Registrars of all High Courts and legal services authorities.
Here the area of concernis that, the Constitution of Family Welfare Committees will introduce another step towards realization of the justice in bonafide cases, which may act as deterrence towards the victim of cruelty for dowry, forcing her to live in the torturous conditions due to long drawn process. The capability and expertise of the Committee in deciding whether the Complaint filed is bonafide or malafide will play a vital role in deciding the Complaint. Since there are no guidelines or rules laid down for this purpose, the Committee may err in treating a bonafide complaint as malafide and vice-versa. The fact that Apex Court failed to take into consideration while laying down the structure of Family Welfare Committees is that the women who are filing the Bonafide cases during the existence of such Committee they will be pushed to their limits while pursuing the matter because by the time the matter reaches to the Court after all the Committees and Mediations, the aggrieved women would be exhaust enough to not to pursue the matter further.
It is relevant to point out in Writ Petition 156/2017 by order dated 13-10-2017, Bench comprising Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud expressed that it is not in agreement with the decision rendered in Rajesh Sharma vs State of UP, because the order curtails the rights of the women who are harassed under Section 498A of the Indian Penal Code and besides, any change required lies in the legislative sphere and not within the realm of judiciary and saying so issued notice to Respondents and listed on 29-11-2017 for further hearing. The matter issub judice.
The human rights of women and of the girl-child are an inalienable, integral and indivisible part of universal human rights. The full and equal participation of women in political, civil, economic, social and cultural life at the national, regional and international levels, and the eradication of all forms of discrimination on grounds of sex are priority objective of our community.
Awakening of the collective consciousness is the need of the day. Change of heart and attitude is what is needed. If women were to receive education and become economically independent, the possibility of many pernicious social evils dying a natural death may not remain a distant dream.
The role of women lawyers becomes more vital in matters such as those involving domestic violence, gender discrimination, child abuses and other violence related to women and children. Since the women have greater empathy, understanding and acceptance among the victims. Enhancing the role of women in the legal profession is vital for improving the delivery of justice and women empowerment in the long run.
I hope this Seminar would discuss all these matters in detail and help the Women’s Commission come out with a model method of handling allegations of domestic violence. I also hope that the people attending this programme would contribute to social mechanisms that may be formed to curb domestic violence and other violations in society.
I greet all the participants and compliment the Commission for conducting this programme in a befitting manner.
Ellavarkkum Ente Aashamsakal
Nanni
Jai Hind
