The Telegraph
Wednesday , November 9 , 2011
Since 1st March, 1999
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Lyrics from Hindi films don’t usually figure in courts. But recently, a Delhi sessions court judge quoted lines from Sahir Ludhianvi’s timeless song Chalo ek baar phir se ajnabi ban jaaye hum dono (let’s become strangers once again) while dismissing the plea of a woman who wanted her husband and in-laws to be punished for allegedly harassing her. She had sought punishment under section 498A of the Indian Penal Code (IPC), a controversial piece of law that many believe favours women.

Additional sessions judge Kamini Lau dismissed the appeal against an order acquitting a Delhi resident and three members of his family on a dowry harassment complaint filed by his wife in 1999 on the ground that her allegations did not find any independent corroboration. While dismissing the case, the judge noted that section 498A should not be used by women to settle personal scores, and recalled Ludhianvi’s words that called for letting bygones be bygones.

“I may further observe that Section 498A IPC (husband or relative subjecting a woman to cruelty) in the recent years has become a consummate embodiment of gross human rights violation, extortion and corruption and even the apex court of our country had acknowledged this abuse and termed it legal terrorism,” she said. “The provisions of Section 498A IPC are not a law to take revenge, seek recovery of dowry or to force a divorce, but a penal provision to punish the wrongdoers,” Lau said.

The section, in the eye of a storm for several years now, states: “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.” The offence is cognisable, non-compoundable and non-bailable.

When it was introduced 28 years ago, it was hailed as a strong move. Now, more and more people have been complaining about the misuse of the law, alleging that women often book their husbands or in-laws under the section merely to harass them.

The complaints are loud — but the facts tell a different story. Filing a case under Section 498A is not an easy task, for the police are often reluctant to use the stringent law. In a recent study done by Majlis, the Mumbai-based women’s group found that hardly four or five cases of Section 498A were filed in some police stations within the city limits in an entire year.

But it is still a provision that women invoke when they try to seek justice. In fact, activists stress that in recent times, Muslim women have been using Section 498A along with other civil and personal laws for domestic issues. Within the purview of the personal code, Muslim women can seek justice under the Muslim Personal Law (Shariat) Application Act, 1937, the 1939 Dissolution of Muslim Marriage Act and the Muslim Women (Protection of Rights on Divorce) Act, 1986. But many believe that they can seek recourse to civil laws as well.

“Section 498A brings the husband to the negotiating table,” says Mumbai law- yer Niloufer Ahmed, who has handled several high profile cases, including actor Sanjay Dutt’s wife, Manyaata’s khula (a Muslim woman’s right to dissolve a marriage without the aid of her husband) from her first husband.

The experience of two sisters of Mumbai is a case in point. They were married to two brothers, but were severely harassed by the family. The younger sister was dumped at her parents’ house, while the older was forced to abort her foetus and banned from visiting her parents. When the girls’ mother went to the police, the elder girl was also sent back. The mother did all she could to persuade the boys’ family to come to a settlement — or even a divorce — but failed to get a response. Finally, one of the sisters filed a complaint under Section 498A. The act prompted the boys’ family to finally come to the negotiating table and agree to a divorce.

Arshiya, 26, is another example of Muslim women seeking justice under section 498A. Arshiya, who has a masters degree and comes from an affluent family from Mumbai, tried to save her marriage when relations with her husband soured. Finally, she filed a complaint and was granted khula, though her husband contested it. He has gone to the court for restoration of conjugal rights while she has filed another complaint under the Domestic Violence Act of 2005.

Even a few years ago, there were hardly any cases of Muslim women using Section 498A. Today, lawyers use the clause along with other laws such as the Muslim Women (Protection of Rights on Divorce) Act, 1986, that came in the wake of the Shah Bano case, in which the Supreme Court had invoked Section 125 of the Code of Criminal Procedure, which applies to every citizen regardless of religion, and said Shah Bano deserved maintenance money or alimony. But a section of hardliner Muslims opposed it, saying the state could not intrude into Muslim Personal Law. In 1986, the then Congress government passed The Muslim Women (Protection of Rights on Divorce) Act, which nullified the Supreme Court’s judgment.

Criminal lawyer Nausheen Yousuf of Majlis states that women often invoke the Muslim Women (Protection of Rights on Divorce) Act, 1986, as well as the Domestic Violence Act or Section 498A to get justice. “There is no guarantee that husbands will pay maintenance if we win a case under civil laws,” she says.

Niloufer Ahmed, however, concedes that in some cases, Muslim women too — like Hindus — misuse Section 498A to get back at their husbands. In one case, a woman living in the UK who had problems with her husband filed a case against him and her mother-in-law who lived in India and knew nothing of the couple’s marital problems. “Now the poor mother-in-law is being harassed,” she says. In another case, a woman lodged a complaint against her husband under the section because he refused to give in to her demand to live in a separate house.

Another downside is that once a woman goes for Section 498A, there is very little chance of reconciliation between husband and wife. On the other hand, the section does force men to reach a settlement. And for many Muslim women, that’s a step forward.

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