By John B Monteiro

Mangaluru, Oct 18: Early October 2016 has brought in more reliefs from the Supreme Court (SC) for husbands harassed and oppressed by vengeful wives through two significant judgments on the subject of domestic violence and divorce. But, first the facts.

One of them, delivered by a bench of Justices Kurian Joseph and RF Nariman is ground-breaking and in the nature of amending the law itself. From now on, complaints can be filed against women too under the Protection of Women from Domestic Violence Act.

The Supreme Court has struck down a provision that allowed a complaint only against an adult male under the act. In a ruling having far-reaching consequences, the apex court declared that the words “adult male” in Section 2(q) of the 2005 act will stand deleted since it does not square with Article 14 (equality) of the Constitution.

Women can be netted!

Under Section 2(q), only an adult male can hitherto be prosecuted, thereby saving women from any adverse proceedings. “If ‘respondent’ is to be read as only an adult male person, it is clear that women who evict or exclude the aggrieved person are not within its coverage, and if that is so, the object of the Act can very easily be defeated by an adult male person not standing in the forefront, but putting forward female persons who can therefore evict or exclude the aggrieved person from the shared household,” the court said.

A bench of Justices Kurian Joseph and R F Nariman relied upon the definition of domestic violence as given in the social beneficial legislation, which provided various innovative remedies in favour of women against the perpetrators, to hold that the provision would defeat the object of the law.

“It is clear that such (domestic) violence is gender neutral. It is also clear that physical, verbal, emotional and economic abuse can all be by women against women. Even sexual abuse may, in a given circumstance, be by one woman on another,” the court said.

The court noted that the words “adult male person” are contrary to the object of affording protection to women who have suffered from domestic violence of any kind. “We, therefore, strike down the words “adult male” before the word “person” in Section 2(q) as these words discriminate between persons similarly situated, and far from being in tune with, are contrary to the object sought to be achieved by the 2005 act,” said Justice Nariman, writing the judgement.

Applying the principle of severability, the court said that having struck down “adult male” in Section 2(q), the rest of the act is left intact and can be enforced to achieve the object of the legislation without the offending words.

The apex court passed its ruling while allowing an appeal against a Bombay High Court judgement that has read down the provision of the law. The high court held that complaints can be filed against women as well. The apex court went on to delete the provision, setting aside the judgement.

Don’t banish parents for wife

In the second judgment, delivered on October 6, 2016, by a bench comprising Justices Anil R Dave and L Nageshwara Rao observed that "A wife is expected to be with the family of the husband after the marriage." A Hindu son can divorce his wife for the cruelty of trying to pry him away from his “pious obligation” to live with his aged parents and provide shelter to them, the bench held.

A woman becomes a part of the husband’s family and cannot seek to separate him from his parents for the sole reason that she wants to entirely enjoy his income. Insisting her husband to live separately from his parents is a western thought alien to our culture and ethos, Justice Dave, who wrote the judgment, said.

“It is not a common practice or desirable culture for a Hindu son in India to get separated from his parents on getting married at the instance of the wife, especially when the son is the only earning member in the family. A son, brought up and given education by his parents, has a moral and legal obligation to take care and maintain the parents, when they become old and when they have either no income or have a meagre income,” Justice Dave wrote.

In India, generally people do not subscribe to the western thought, where, upon getting married or attaining majority, the son gets separated from the family, the court said. In normal circumstances, a wife is expected to be with the family of the husband after the marriage.

Before we go to earlier SC judgments favouring oppressed husbands, discerning and alert readers would have noted that the above judgment talks about “Hindu” families, leaving other religious groups, and even atheists, beyond the purview of the judgment.

Coming back to earlier judgments on the subject, harassed, hounded and oppressed husbands can now breathe easy, rejoice and celebrate their rescue from their vengeful wives – their rights reiterated by the Supreme Court (SC) of India.

No automatic arrest

A Curative Bench, led by Chief Justice of India, T.S. Thakur, has upheld a 2014 Supreme Court verdict that men cannot be “automatically” arrested on dowry harassment complaints filed by their wives. Some corrupt police, with lower magistracy winking, made it a money- spinning business as hinted in the judgment cited below.

As reported in The Hindu (22/8/16) by Krisnadas Rajgopal, the four-judge Bench found no fault with the verdict that the dowry harassment law had become a “menace”, more often used as “weapons rather than shields by disgruntled wives”. Justices Anil R. Dave, J.S. Khehar and P.C. Ghose were the other members of the Bench.

Days before his retirement in 2014, Justice Chandramauli Kumar Prasad led a Bench that lamented that courts were filled with mothers-in-law, sisters-in-law and fathers-in-law and husbands facing prosecution under Section 498 A (dowry harassment) of the Indian Penal Code.

Dowry harassment is a cognisable and non-bailable offence. If guilty, a person faces up to three years' imprisonment and fine. Women’s rights groups were irked by the 2014 verdict, and the National Commission for Women sought a rare curative relief in the Supreme Court.

In his 2014 verdict, Justice Prasad had pointed to a “phenomenal increase in matrimonial disputes in recent years” even as the “institution of marriage is greatly revered in this country”. “The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,” the verdict observed.

Presenting government crime statistics to show that 1.97 lakh people were arrested in 2012 for dowry harassment, nearly a quarter of those being women, the verdict said: “This depicts that mothers and sisters of the husbands were liberally included in their arrest net.”

More statistics were shared to show Section 498A made up 4.5 per cent of the total crimes charged under different sections of the IPC — “more than any other crimes excepting theft and hurt”.

“The rate of charge-sheeting in cases under Section 498A of the IPC is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal,” the verdict observed.

Humiliation and scars forever

Noting that “arrest brings humiliation, curtails freedom and cast scars forever”, the Supreme Court had directed the police not to arrest unnecessarily and Magistrates not to authorise detention casually and mechanically.

Highlighting that the “power of arrest is one of the lucrative sources of police corruption”, the court had warned police officers of contempt action unless they prepare and hand over a duly-filled checklist giving reasons for the arrest to the Magistrate, who would authorise detention only after recording his satisfaction in a reasoned order. Noting that “arrest brings humiliation, curtails freedom and cast scars forever’, SC had directed police not to arrest unnecessarily and Magistrates not to authorise detention casually and mechanically.

No open licence to husbands

While this is good news for innocent husbands and their families, it is no open licence for men to desert their lawful wives in favour of fresh love conquests as reflected by the SC judgment delivered on the same day (22/8/16) in another marital case. It shows that it is not an open invitation for men to desert their lawfully wedded wives in favour of fresh and juicy new conquests.

As reported by Express News Service from Delhi, a woman’s 13-year-long efforts have finally yielded results for her, making her husband face trial all over again. The Supreme Court has remanded the case back to Karnataka High Court for not conducting proper trial of the husband under the relevant sections of bigamy.

In this case, the husband married another woman even when the first wife was alive and was charged with bigamy. But the court did not consider this charge and did not adopt proper procedure while conducting trial. In 2014, the Karnataka High Court absolved the husband of all charges. Feeling aggrieved, the wife then moved SC seeking relief.

The Bench of Justices JS Khehar and Arun Mishra said: “A crime cannot be overlooked as easily as has been done by the High Court.” The apex court asked the man to face trial again for the offence of marrying another woman while his wife was alive.

Beware of bigamy

During the hearing in the Karnataka High Court in 2014, the court observed that there were procedural lapses by the magistrate and set aside the conviction order and refused to order de-novo trial and observed that it would not be in the interest of justice to remand the matter to the magistrate to go for fresh trial after 13 years.

The wife then approached SC against the order of the High Court.

The couple married in 1998, but soon, the first wife found that her husband was having an affair with another woman. Fearing that her husband would marry another woman, she moved court and sought injunction against this, but the husband went ahead and married the other woman in 2001. Following this, she lodged a complaint against the husband for bigamy.

Tail-piece

Men with legal dice loaded against them under498A of IPC are not taking things lying down but are fighting back like cornered dogs with their backs to the legal wall. But, that is another story for another time.

Meanwhile, for now, let us conclude with the criteria for judges set by Socrates, Greek philosopher (Circa 490- 399 BC): “Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially”.

It seems that our higher judiciary is doing just that – at least in family and matrimonial matters!