How Malimath Committee Denied Women their Rights?

Section 498A IPC is inserted in the Indian Penal Code in 1983 and provides to protect women from cruelty in their matrimonial homes. The Malimath Committee Report (2003), twenty years after the enactment of Section 498A noted,

“In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to the fire if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she cannot do so as the offence is non-compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family…This section, therefore, helps neither the wife nor the husband. The offence is non-bailable and non-compoundable making an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is, therefore, necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together” (p. 191).

 

The Committee while making such observations expressed its apprehensions in the ability of the criminal justice system to provide justice. However, the committee has failed to recognize that

First, cruelty under 498A is listed as a cognizable, non-bailable and non-compoundable crime and has to be dealt with accordingly. The criminal justice system while dealing with each case, is expected to take abundant precautions in ascertaining the guilt of the accused person, therefore to suggest that this offence be diluted implies distrusting the judiciary and labelling the trial courts as inefficient to effectively adjudicate the culpability of the parties.

Second, the context of the relationship between the perpetrator and the victim does not make domestic violence a lesser crime. Rather the severity of the crime is adverse in situations where the batterer is in the capacity to exert financial, emotional and social control over the victim because of the relationship and the victim is financially dependent on the perpetrator.

Third, salvaging a violent marriage is not a viable option when a man is abusive as he destroys the family through his violent actions. Families cannot be built on the edifice of bruised and battered bodies or scarred minds.

Fourth, the bitterness in a relationship already starts once a wife is being abused, therefore suggestions should have focused on altering the men’s violent behaviour.

Fifth, the policemen are not overzealous to arrest the accused. Rather studies have shown that women undergo hassles in filing the FIR. Also, at every step of the trial, mediation is enforced vehemently to compel women to reconcile.

Sixth, making the offence compoundable will not serve the purpose as neither this will deter the perpetrator nor it will help to salvage the relationship. Experiences show that violence escalates in situations when women are pushed back in abusive situations without the guarantee of safety.

Last, the committee has failed to raise concerns relating to provisions of shelter homes, medical, or legal aid or other facilities for the battered women as its only apprehension was to save the family. This indicates its biased approach.

Despite its pitfalls, this erroneous approach sets precedents, is being repeated multiple times, and has major implications for diluting the procedures and provisions relating to criminal law. Over the years, the state has followed the recommendations blindly without testing the validity of claims or referring to the existing research to suggest changes. 

For more details please see my book

Domestic Violence Law in India: Myth and Misogyny (2021) Routledge