Friday, March 13, 2009
India's Notorious Section 498A: Divorce Law as Criminal Law
India’s amendments to its Criminal Procedure Code are now effective. They may ameliorate some of the harshest aspects of India’s infamous Section 498A. The newly- enacted provisions take away the powers of the police to arrest in cases of alleged offenses which carry a maximum sentence up to seven years of imprisonment. Such offenses include Section 498A of the Indian Penal Code in 1983.
That section makes it criminal for a husband and his relatives to subject a married woman to cruelty is which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property.
The problems with the law were the result of a “perfect storm” that was entirely unanticipated when the law was introduced to protect woman in 1983. The elements of the storm included:
-Extremely vague statutory language.
-A separate law that prohibited the provision or acceptance of a dowry.
-A custom that has been difficult to eradicate of a bride giving a dowry upon marriage.
-A law that may only used by women against men.
-A provision that extends criminality to any of the husband’s allegedly-participating relatives.
-A police force that is notoriously corrupt.
-A law that in the past allowed for the immediate arrest of the husband and members of his family by the police on the basis of a woman's complaint.
-A provision that the offense was non-bailable.
-A domestic relations procedure that is extremely cumbersome and in many ways unworkable.
The result has been that when a marriage breaks up the woman is often able to get her husband and many of his family members arrested by simply filing a claim of cruelty and persuading the local police to arrest the so-called wrongdoers. This is much more effective than initiating an ordinary case for divorce.
In the case of non-resident Indians the process has often proved calamitous for the husband. The spouses have an argument. She runs off to India, often with the children and as many of the assets as she can grab. She immediately starts a Section 498A case in India and then sues for divorce and custody in India. The husband cannot step foot in India because he will be arrested. Meanwhile his relatives in India are clamoring for him to settle up with his wife because they have been in jail or are fearful that that will happen.
The Supreme Court of India has described such conduct as “legal terrorism.” The chairperson of one of India’s State Commissions for Women has asserted that, "Many women are using 498A of the IPC (anti-dowry law) to terrorize their husbands and his families.” She called it a “cruel and wicked design to blackmail husbands and in-laws."
As recently as January 31, 2009, Justice K. G. Balakrishnan, the Chief Justice of India, addressing India’s National Commission for Women, asserted that Section 498A is being “grossly misused” and that relatives not involved with a matrimonial dispute were often unfairly implicated.
The U.S State Department has warned Americans that:
“Furthermore, since the police may arrest anyone who is accused of committing a crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often used to escalate personal disagreements into criminal charges. This practice has been increasingly exploited by dissatisfied business partners, contractors, estranged spouses, or other persons with whom the U.S. citizen has a disagreement, occasionally resulting in the jailing of U.S. citizens pending resolution of their disputes.”
Let us hope that some of the worst excesses of the draconian law have now been reduced by the recent procedural changes.