Fight Against Abuse of Indian Laws for Protection of Rights of Women Against Men

Fight against abuse of Indian Laws for Protection of Rights of Women against Men -RAHUL KHEMKA

ABSTRACT The women community in India has remained to be a supressed and downtrodden community from time immemorial. Their basic rights have always been outcast by the prevailing customs and a maledominant society. But, times changed and various laws came into play which granted extraordinary rights to women and also instituted strict punishments to anyone to try to supress any such rights granted. However, as seen in the recent past, such rights have been misused to a great extent by women for malicious gain against their male counterpart. This has really put to question whether such rights should be granted anymore, and under which law shall a man victim of such abuse find heed. This paper tries to critically analyse this situation and questions the need for such laws in the form they are today.

INTRODUCTION India or Mother India as it is patriotically called, has been said to be a land where women since time immemorial have faced utmost suppression. The customs, traditions that have long been in existence in all aspects framed a male dominant society where will of the man was the law for the lady. Even many of the religious texts in India how the same. However time changes and consecutively an ample number of laws and legislations were passed to protect the rights of women1 and these laws not just carried criminal sanctions but also gave so many special rights to all women. Some of these include the Dowry Prohibition Act2, The Commission of Sati (Prevention) Act3 and the latest being The Criminal Law (Amendment) Act4. After these legislations were passed, the situations became to a great extent under control, and gradually we moved towards a society, where there men and women were considered equals. The very concept of woman’s kitchen and man’s field5 vanished. Times kept changing and in an attempt to equate this dual sided position, we finally ended up giving such rights to women, which in many cases ended up becoming weapons to be used for malicious gains and abuse of rights of men by women. In a recent Mumbai case, a man was acquitted from false rape charge after 21 months in jail6. In 2004, the National Family Health Survey (NFHS) has found that about 1.8% or an estimated 60 lakh women have perpetrated physical violence against husbands without any provocation.7 The Hon’ble Supreme Court of India in one of its judgements said, 1

Laws related to women, National Commission for Women, http://ncw.nic.in/frmllawsrelatedtowomen.aspx 1961, 28 of 1961 3 1987, 3 of 1988 4 2013, 13 of 2013 5 V.K. DEWAN, OFFENCES AGAINST WOMEN 7 (Preface to the fourth edition, Asia Law House 4th ed. 2013). 6 After 21 months jail, man accused of raping minor acquitted, Mumbai Mirror, http://goo.gl/CZKa7o 7 Domestic violence against men: High time government addressed the problem, IBN Live, http://goo.gl/ag51Qi 2

1 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

“…there is no rule of law that common sense should be put in cold storage’. Our Constitution is designed on the theory of checks and balances. A theory which is the product of the belief that all power corrupts – such belief is based on experience.”8

DOMESTIC VIOLENCE AGAINST MEN The problem of domestic violence directed against women is unquestionably a very serious and a big problem. But, the recent past has witnessed a gradual increase in the number of cases where the issue of domestic violence is directed against the man. The supremacy of man which has been in existence from the past may make one believe that men are not vulnerable to domestic violence. However sad though very rarely noticed, the battering of men by their spouse and family members has become a concerned issue and is another form of domestic violence under purview of judiciary. There have been many incidences reported by men of assault against them pushing, shoving, slapping, grabbing, hitting, etc. which are intended to harm them and also take their lives on many occasions. The raising number of such not legally recognized criminal incidences truly reflects a need for a special law for curbing domestic violence against men in present times. It’s indeed funny to note when we contemplate behind the reasons for this form of domestic violence. Some of the possible causes which have notably come forward are such as not abiding by the instructions of the wives’, inadequate earning of men, infidelity towards wives, not helping the partner in household activities, not taking a proper care of children, abusing the spouse’s family, infertility of men, spying the activities of partner, doubting the partner all the time and not trusting her, revolt by the wife when asked to look after in-laws etc. On many occasions the spat between men and women becomes public thereby influencing the society around especially in the villages. In urban areas such forms of violence may go unreported because of greater privacy and reputation.9 In 2004, the National Family Health Survey (NFHS) has found that about 1.8% or an estimated 60 lakh women have perpetrated physical violence against husbands without any provocation. However, men are more likely to be threatened and attacked by male relatives of the wife than the wife herself. The strange aspect however is, men are not asked if they are victims of domestic violence in these surveys. When physical violence and threats against men by wife’s

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Perumal v. Janaki, Special Leave Petition (Criminal) No.1221 of 2012), January 20, 2014 Domestic Violence Against Men, Youth Ki Awaaz, http://www.youthkiawaaz.com/2010/02/domestic-violencein-india-causes-consequences-and-remedies-2/

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2 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

relatives are taken into account, an estimated 3 crore men are facing domestic violence in India.11

CONSEQUENCES OF CRIMES AGAINST MEN The consequences of violence against men is mostly emotional and psychological. The physical harassment which results from domestic violence, also affects their lives and productivity. The main reason behind this is that most of these cases go unreported as compared to cases of physical assault of women. Even the media rarely reports such issues. Such men who are victims of harassment and abuse in many cases have been seen to have lost interest in their work. In many cases where the victim is the only bread-earning member of the family, the lives of the entire family is disturbed. According to statistics of Save India Family Foundation (an NGO), around 1.2 lac harassed husbands have committed suicide in the country in the last four years.10 Most abused men do not run away from their abusers and apply for divorce, because they are either afraid of losing access to their children or they are afraid of getting implicated in false cases of dowry harassment. They also dread huge financial losses and long drawn litigations in the process, given the insensitive and lackadaisical attitude of the Indian Judiciary, especially towards men.11

HISTORY OF FIGHT AGAINST ABUSE OF LAWS AGAINST MEN The movement for men’s right was started (1988) by a Supreme Court advocate Ram Prakash Chugh in Delhi as “Society for Prevention of Cruelty to Husbands” to help husbands victim of psychological abuse by wives and false claims of dowry harassment by wives12. This was followed by setting up of other societies like, Purush Hakka Sanrakshan Samiti13 (Men's Rights Preservation Society), 1996; Sangyabalya, 2003; Save Indian Family, 2005 and Child's Right and Family Welfare, 2009. In September, 2008, a complaint was sent against a Kitply plywood commercial to the Advertising Standards Council of India by Save Family Foundation. The ad showed a wife slapping her husband on her wedding day because of a creaking bed. The complaint alleged that the ad promoted violence against men by portraying it as funny. Similar complaints were also lodged against Pond’s and ICICI Prudential Insurance commercials by the Chennai-based organisation Indiya Kudumba Pathukappu Iyaakam. 14

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“Consequences of Violence Against Men”, Youth Ki Awaaz, http://www.youthkiawaaz.com/2010/02/domesticviolence-in-india-causes-consequences-and-remedies-2/ 11 Domestic violence against men: High time government addressed the problem, IBN Live, http://goo.gl/ag51Qi 12 "Help! My wife beats me". The Telegraph. 13 December 2005. 13 "This Pune samiti fights for the rights of men". DNA India. 20 November 2012 14 "Men's groups want 'offensive' ad off air". DNA India. 16 September 2008

3 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

The activists for men’s rights were called upon by the Ministry of Women and Child Development in 2009 to listen to their allegations based on biased legislations and to discuss any possible changes in these laws. However later the ministry officials announced they were unwilling to accept any flaws in current laws. This resulted in large number of complaints to the Indian Government, a week later, the government officials indicated they would indeed review the current laws.15 On August 25, 2013, Hridaya, a Kolkata based NGO raised its concerns about the proposed Marriage Laws (Amendment) Bill, 2010, which had been approved by the cabinet and the then GoM. This bill introduced the concept of No-fault divorce and marital property which was not fair to men and as per Amartya Talukdar put the institution of marriage in jeopardy.16 The West Bengal Human Rights Commission (WBHRC) in Kolkata faced a demonstration by the National Coalition for Men members on December 21, 2013 stating that the former Supreme Court judge Asok Kumar Ganguly, and the then chairman of WBHRC, who had been accused of sexual harassment by a law intern, was innocent until proven guilty.17 On 16 February 2014, the members of Hridaya organised another protest against the Marriage Laws Amendment Bill (India) that would introduce no fault divorce in the Hindu Marriage Act by wearing saris. Amartya Talukdar voiced concern and said that, the if the government really intends to empower women, then the law should be made applicable to all communities by bringing uniform civil code instead of being applicable only to Hindus.18 In May 2014, Save Indian Family Foundation (SIFF) launched a mobile app and telephone helpline to reach out to men in distress.19 During the pre-election campaign period for the Indian general election, 2014, on 11 January 2014, National Coalition for Men in Kolkata present their demand of the formation of a men's ministry and a men's rights panel to all political parties in India. Other demands included gender neutral laws, rehabilitation of men who were acquitted, speedy trials of the accused languishing in custody, and equal rights in child custody.20 On 28 March 2014, voters across the country were urged to exercise the "None of the above" (NOTA) in the 2014 general elections21. In early April 2014, Save Indian Family Foundation (SIFF) sent out four queries regarding men's issues to various political leaders. The four questions that were posed are whether the party would introduce a bill to protect men against domestic violence, whether biological fathers should be given partial custody in a shared parenting arrangement in divorces, whether consensual sex with the false promise of marriage should be considered rape and if a man should be considered a rapist for breaking up with his

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"Men force review of 'biased' dowry law". The Telegraph. 6 July 2008. "Protest against Marriage Bill". The Statesman. 26 August 2013 17 "Men's rights group holds pro-Ganguly rally". The Hindu. 22 December 2013 18 "Men wear sarees in Kolkata to protest against Marital Amendment Bill". India Today. 16 February 2014 19 "Helpline for men launched". The Hindu. 4 May 2014. 20 “Men's rights organisation set to float a political party". DNA India. 2 February 2014 21 "Men's rights group urges citizens to use NOTA". The Hindu. 29 March 2014. 16

4 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

girlfriend, and whether the party would introduce men studies courses in universities similar to other gender studies courses22.

ISSUES AND LAWS Anti-dowry laws – it is very frequently claimed that the anti-dowry laws are being frequently misused to harass and extort husbands23. Transacting of dowry was first criminalised under the Dowry Prohibition Act, 1961 and later the Section 498A of the Indian Penal Code was introduced in 1983. The Section 498A of the Indian Penal Code which deals with cruelty to a wife states that: Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. For the purposes of this section, "cruelty" means: (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.24 The Section 113b of the Indian Evidence Act, 1879 says that if a married woman committed suicide within seven years of marriage, it must be assumed by the court that her husband and his family abetted the suicide, especially if there was evidence of prior dowry demands.25 Until July 2014, the Section 498a of the Indian Penal Code allowed the police to arrest the persons mentioned in the complaint without a warrant or without any investigation. The crime was non-bailable, so chances of getting a bail are low and husbands usually lost their jobs while in custody26. On 2 July 2014, the Supreme Court of India in an order stopped automatic arrests under the Section 498a27. The Court directed the police to use the Section 41 of the Code of

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"Men's rights activists put condition for their vote". The Times of India. 4 April 2014. "Dowry wars: The big issue that has India divided". The Independent. 2 March 2011 24 Section 497, Indian Penal Code, 1860 25 KRISHNA DEO GAUR (2002). Criminal Law and Criminology. Deep & Deep Publications. p. 617. 26 "Dowry cases: panel for amending IPC section". The Hindu. 17 November 2003 27 Arnesh Kumar v. State of Bihar and Anr. CRIMINAL APPEAL NO. 1277 OF 2014 23

5 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

Criminal Procedure, 1973, which contains a checklist, to decide whether an arrest is necessary28. Of all arrests made the Indian Penal Code, 6% are made under the Section 498a. Of all crimes reported under the Indian Penal Code, 4.5% are filed under Section 498a, which is the highest barring theft and hurt29. The police finds 9% to be false or under the wrong law. Of the cases that go to trial, only 15% result in conviction. In July 2014, 372,706 cases under Section 498a were pending in Indian courts.27 Swarup Sarkar, a spokesperson of SIFF, has said that men with low incomes are rarely targeted and most victims of misuse are well-off30. He has claimed that these laws assume that women are always truthful, and don't place much importance on evidence. He has termed misuse of these laws, legal terrorism31. Divorce and child custody laws – The second issue claims that the divorce and child custody laws are biased against men. These laws allows divorced wives from stop men seeing their children from long periods of times.32 In India, child custody is granted to the father only if the mother is mentally unstable or has left home leaving behind the child33. At present, the matter custody in case of divorce is governed by two laws: Guardians and Wards Act, 1890 and Hindu Minority and Guardianship Act, 1956. But, neither law has any provisions for shared parenting or joint custody. Under the Evidence Act, 1872, if a child is born within a marriage or within 280 days of dissolution of a marriage, then the child is considered legitimate and is entitled to child support and inheritance34. At present, DNA paternity tests do not take precedence over this law. The courts may still choose to ignore the genetic evidence and ask a non-biological parent to pay for child support.35 Domestic Violence - the incidence of domestic violence against men in recent years has increased. Many cases go unreported as men feel too ashamed to report abuse, or fear false accusations against them in reprisal36.

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"Anti-dowry law to be amended, will allow room for compromise". The Times of India. "No arrests under anti-dowry law without magistrate's nod: SC". The Times of India. 3 July 2013 30 "Now, Is That Malevolence?" Outlook India. 3 December 2007 31 "Malevolence for women's law: Men go to PM against female ‘terrorist activity’". The Telegraph. 27 October 2006. 32 "Push for shared parenting – Activists for law to make joint custody must in broken homes". The Telegraph. 17 August 2014 33 "India may opt for shared child custody". The Times of India. 11 November 2014. 34 PRAMILA PANDIT BAROOAH 1999 Handbook on Child, with Historical Background. Concept Publishing Company.64 35 "India's Doubting Fathers and Sons Embrace DNA Paternity Tests". The New York Times. 16 August 2013. 36 "When husbands are victims of domestic violence". The Times of India. 2 February 2014. 29

6 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

Indian Social Awareness and Activism Forum (INSAAF), and Confidare Research have drafted a bill which aims to protect men and boys from domestic violence from their spouse, girlfriends and parents. The draft is called Saving Men from Intimate Terror Act (SMITA) and the groups aim to introduce in for debate in the parliament.37 The Protection of Women from Domestic Violence Act, 2005 identifies domestic violence as abuse or threat of abuse, whether physical, sexual, verbal, emotional or economic. It provides protection to wives and female live-in partners from domestic violence carried out by husbands, male live-in partners or their relatives.38 According to family counselling centres in Jabalpur, the share of harassed husbands was 70 percent among complainants as per data recorded between 2013 and 2014. About 4,500 husbands are missing from family court records in the region. A local stops the police from going after men who have left marriage and become sadhus.39 Rape reporting laws - Between 2001 and 2012, the number of reported rape cases rose from 16,075 to 24,923, however the conviction rate fell from 40.8 percent to 24.2 percent40. It is pointed that low conviction rates and claim that the lack of a penalty for falsely reporting rape has encouraged false cases41. Suicide - SIFF has claimed that the suicide rate of married men is almost twice that of women, due to them being "unable to withstand verbal, emotional, economic and physical abuse" from their wives42. Mithun Kumar, a researcher at SIFF, has said that police don't take any action even if the suicide note of a man states that he was tortured by his wife and in-laws, but in case of a woman's suicide her husband's family is taken into custody without investigation43. Sexual harassment laws - The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is not gender neutral but applies to the protection of women only44. It is indeed an outdated concept to consider that only women suffer from sexual harassment.

NOTABLE VERDICTS AND LEGAL PANEL REPORTS In November 2003, the Committee on Reforms in the Criminal Justice System (CRCJS), headed by V. S. Malimath, recommended that Section 498a be made bailable and compoundable45. 37

"Now, a bill to safeguard men to be discussed in RS". Rediff. 12 October 2012. "Domestic Violence Act can be used against women too: HC". DNA India. 2 May 2013 39 "Number of battered husbands in Jabalpur on the rise". The Times of India. 15 February 2012. 40 "Conviction rate fell from 41% to 24% in 12 years". The Times of India. 11 September 2013. 41 "Cry Rape". OPEN. 24 August 2013 42 Ramesh, Randeep (13 December 2007). "Dowry law making us the victims, says India's men's movement". The Guardian. 43 "Helpline for men launched". The Hindu. 4 May 2014 44 "Yawning gaps in yet to be notified Sexual Harassment at Workplace Act". Zee News. 30 November 2013. 45 "Dowry cases: panel for amending IPC section". The Hindu. 38

7 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

In July 2005, the Supreme Court admitted that in many instances complaints under the Section 498a of the Indian Penal Code are not bona fide and have oblique motives. The court added that acquittal in such cases doesn't erase the suffering the defendant has to go through, which is compounded by adverse media coverage. The court also directed the legislature to find ways to check such false cases.46 In August 2010, the Supreme Court directed the government to amend Section 498a of the Indian Penal Code in view of the rising numbers of false or exaggerated complaints against husbands and their relatives by women. It further added that such complaints result in the husband and his relatives remaining in custody until trial or bail, which kills all chances of an amicable settlement.47 In January 2012, the Law Commission of India recommended that Section 498a should be made a compoundable offense. But, the court will decide if the particular case is compoundable or not.48 On 2 July 2014, the Supreme Court said that this law is being used by some women to harass their husband and in-laws. The court prohibited the police from making arrests on the mere basis of a complaint. The court asked the police to follow Section 41 of the Code of Criminal Procedure, 1973, which provides a 9-point checklist on which must to use to decide the need for an arrest. The court also said that a magistrate must decide whether an arrested accused is needed to be kept under further detention. The decision was in response to a Special Leave Petition (SPL) filed by one Arnesh Kumar challenging his arrest and of his family under this law. The decision was welcomed by men's right activists but was criticised by women rights activists. However, due to lack of communication to police stations, the guidelines of Supreme Court of India are still not getting followed.49 In September 2008, the Delhi High Court in a verdict said that a woman earning sufficient income is not entitled to maintenance from her divorced husband. The verdict came after a man challenged a family court's decision to grant ₹7,500 monthly alimony to his wife. The man had pointed out that his wife was earning ₹80,000 for month and had no other responsibilities.50 In September 2010, the Delhi High Court released a verdict that a man cannot be forced to pay alimony if he is unemployed. The man had challenged a lower court's order that he should pay ₹5,000 as alimony. The man pointed out that he was an expatriate working as a sales manager in Angola and had come to India to marry. He got married in May 2007 but the marriage lasted only three weeks. Due to his wife's complaint, the police seized his passport and he was unable to return to job, which resulted in his termination. The court stated that wife was equally

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"Dowry law is a shield, not an assassin's weapon: court". The Hindu. "Amend dowry law to stop its misuse, SC tells govt". 17 August 2010. 48 "Law Commission wants dowry law toned down". The Times of India. 21 January 2012. 49 Arnesh Kumar v. State of Bihar (Supreme Court of India 2014). 50 "'No alimony for wife earning well'". DNA India. 22 September 2008. 47

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qualified to her husband, and was working in a multi-national company, thus she cannot claim alimony.51 In June 2012, Delhi High Court said that a woman who is educated and capable of maintaining herself, but has quit her job voluntarily is not entitle to alimony. The verdict was given in case where a woman challenged a lower court's decision to not grant her any alimony. The High Court pointed out that the woman was capable of earning ₹50,000 per month but was choosing to remain unemployed, and denied any alimony to her. However, the court ordered the husband to pay ₹10,000 towards child support.52 On 12 September 2013, the Karnataka High Court granted equal custody of a 12-year-old boy to both parents. The court ordered that the boy to remain with his mother from 1 July to 31 December of every year and to remain with his father from 1 January to 30 June, until the child reaches the age of majority. Both the parents were also given visitations rights on Saturday and Sunday, when the child would be with the other parent. The child was also allowed to call or video chat with the other parent when in custody of one. The court also ordered both parents to bear the child's education and other expenses equally.53

CONCLUSION The laws in India especially those meant for the protection of women’s rights, dignity and whatsoever are good, provided they are executed not in a manner that it violates the rights of others. The state should try to move towards a state of gender equality rather than giving extra-ordinary rights to a particular gender with no limitations which if not exercised judicially can certainly lead to a situation of violation of rights of the other sector. The laws must not be over-sympathetic and must certainly cease to look at women as a down-trodden, ill-treated class which can never do any wrong, men as a class born to rape, abuse and harass. This system of inequality is long traced historically. There is no one person who can be put to blame. Perhaps it is nobody’s fault. Perhaps it is everybody’s fault54. If such laws are kept in existence for long, certainly two things are bound to happen. Firstly, this will turn both genders against each-other and secondly, there will come a time, when these extraordinary rights which are granted to women now will have to be given to men, and then then the same problems will arise and certainly there will never be an end to this. Not all men rape, not all women accuse54. As Karen Decrow said, “If a woman makes a unilateral decision to bring pregnancy to term, and the biological father does not, and cannot, share in this decision, he should not be liable for 21 years of support... autonomous women making independent decisions about their lives should not expect men to finance their choice.”

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"Unemployed man can't be forced to pay alimony: HC". The Indian Express. 27 August 2010. "Woman Quitting Job Wilfully Not Entitled to Alimony: HC". Outlook India. 1 June 2012 53 "In a first, HC orders joint custody of child". Bangalore Mirror. 16 September 2013. 54 “How Accusations & False Cases Are Turning Both The Genders Against Each Other”, The Logical Indian, http://thelogicalindian.com/videos/watch-how-accusations-false-cases-are-turning-both-the-genders-againsteach-other/ 52

9 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka