Woman was the first human being that tasted bondage. Woman was a slave before slavery existed
Historically, women have been treated in ways that are atrocious. Naturally, it was the need of the society at that point of time to pass laws to protect women in the public sphere as well as between the four walls of her bedroom. These laws were definitely not gender-neutral and gave the benefit of doubt to women, as they were the ones who needed upliftment from the clutches of patriarchy.
In the present era, there are two ends to the spectrum of the status of women in the 21st Century. One end of the spectrum is where she is still considered inferior to men and is subjected to cruelty, harassment and even violence in different spheres of life, including workplace and her own house. And on the other end of the spectrum, we see strong independent women capable of living a normal life, where all the opportunities are open to her. However, it needs to be kept in mind that reaching the other end of the spectrum was not easy; it was not a process that happened overnight. It involved struggles of hundreds of women, lawyers, activists and protestors to pass laws that provided protection to women in these places.
A growing concern of many men’s rights activists and other such organizations is that the laws that were passed are becoming increasingly gender-biased. While they give a wide scope of rights to women, they create a barrier and hamper the rights exercised by men. They understand the need of the society to pass such female-centric laws in the ‘olden times’ but they claim that in the modern era, they are used more as a weapon against men than as a tool for women and that these rights exercised by women hamper the rights exercised by men.
Laws Under Scrutiny
The Dowry Prohibition Act It is contended that the Dowry Prohibition Act which was passed with the intention of eroding the social evil of dowry has become a tool for ‘Legal Extortion’ of males. A lot of males face threats of false dowry charges against them which can restrain their right to child custody as in most cases of dowry the husband is not allowed to retain the custody of their child. At times, even a restraining order is placed in order to prevent the fathers from seeing their kids. In order to avoid such a situation, the males comply with the demands of the females and give them huge amounts of money in exchange for not filing such a false claim. Where such false complaints are filed, the husband and his relatives are subjected to arrest. There is no provision of granting a bail in such a scenario or even to enter into an understanding with the wife to withdraw such cases, as such cases can be filed under 498A (Cruelty) of the Indian Penal Code (IPC), which is cognizable, non-bailable and non-compoundable.
Section 498A Of IPC Another major law that has come under scrutiny in the present times is Section 498A of the IPC that talks about cruelty and more importantly Section 113(b) of the Indian Evidence Act that draws its power from 498A. Section 498A states that if the husband or any relative of the husband subjects his wife to cruelty, mental or physical, they shall be liable for the offence of cruelty. Even though this is a cognizable, non-compoundable and a non-bailable offence, this might look like a very reasonable law that is very much required in our country, especially looking at the number of domestic violence cases in India. Naturally, it would be shocking to look at the comment of the Supreme Court that termed this law as a tool for Legal Terrorism, in the year 2005, in the case of Shushil Kumar Sharma v. Union of India. It needs to be kept in mind that with the intention to protect and uplift women, this law gave all the benefit of the doubt to women. So, it gives the police all the right to arrest a man without a warrant, and without any proof apart from the statement given by the victim. What makes matters worse is that this is a non-bailable offence which becomes a matter of concern in cases of false complaints. This could also lead to the loss of livelihood for men in cases where the trial is long drawn. This affects not just the accused man but also his entire family. Section 498A is also a non-compoundable offence, which means that once the charges are filed, it either leads to conviction or acquittal. However, the Law Commission in its 273rd Report listed out the offences that should be made compoundable, emphasizing on article 498A. The reason was that a lot of complaints under Section 498A were made in a ‘spur of the moment’, or a ‘spite of anger’ because of which a man’s right to livelihood is taken away which causes a lot of hardships for the family. In addition to that, the career of the husband is also put in jeopardy.
Section113 (b) Of The Indian Evidence Act Section 113 (b) of the Indian Evidence Act states that in cases of dowry deaths, once it is proved that the female was subjected to physical or mental cruelty, the Court will assume that this was the cause of death without any other evidence. However, as noted in the case of Balbir Singh v. State of Punjab, it is not always the subjection to the cruelty that is the cause of death. It is possible that reasons other than these are what cause the death or suicides. This is in no way to justify the jibes, taunts and harassment given by the family members to the females; they are crimes in themselves. It was even observed in the case of Mangal Ram v. State of U.P. that unless there is sufficient evidence to prove that the deceased actually died due to cruelty, it cannot be assumed by the Court that it was the cause of death. In fact, in the case of Sushil Kumar, the counsels also went a little far by challenging the Constitutional validity of Section 498A, saying that it defeated the Principles of Natural Justice. However, it needs to be emphasized that this Section cannot be entirely scraped off. According to the Crime Records Bureau, there was an increase of about 44% in the cases of violence against women in 2015. With the COVID crisis, the risk of Domestic Violence has only increased. It is not prudent in such a situation to challenge the validity of this Section. However, what can be done is to make this a compoundable and bailable offence in order to prevent its misuse.
Domestic Violence Act, 2005 Another contention is that there need to be serious amendments under the Domestic Violence Act, 2005 in order to make it more gender-neutral. In addition to the obvious claim of including males as the victims of Domestic Violence, there are claims to change Section 31, especially clause 2 of Section 31. It states that notwithstanding anything mentioned in the Code of Criminal Procedure (CrPC), upon the ‘sole testimony’ of the aggrieved person, the Court may assume that the offence has been committed. This not only violates the Principle of Natural Justice but also gives a lot of scope for its misuse. This also leads to a lot of men losing their jobs, due to the days of employment spent in jail instead of the workplace, (as this offence is also non-bailable and non-compoundable) and reputation over false complaints. At times restraining order is also put on the accused male that prohibits him from seeing not only the wife but also his kids. This leads to the loss of his rights of child custody as well.
Adoption And Maintenance Act Another contention is with respect to the Adoption and Maintenance Act, Section 18 that states that the wife (which includes a woman who has been divorced by or has obtained a divorce from, her husband and has not remarried 2), will be entitled to maintenance during her lifetime, especially in cases of cruelty. Section 125 of the Code of Criminal Procedure also states that if the husband fails to do so, he can also be jailed for a term of one month. The dissent comes from those men who are not able to earn enough for his family itself. In times where the economy is down and jobs are scarce, to prevent a future jail tenure that might make things worse, men give a part of their income to the wives to avoid visits to the Court. This is not to suggest that there is no need for alimony; in cases where the husband is in a financial position to give alimony to wives who are unable to maintain themselves, no dispute arises. However, in cases where a husband doesn’t have enough for himself or his household, it would be unfair to ask him for the maintenance of his divorced wife. According to Section 10 of the Hindu Succession Act, the distribution of the property of the deceased, according to the Class 1 Schedule, shall take place between the deceased’s heirs, mother, widow, wife and other blood-related kin. However, this section does not allow for a share in the property for the father. This is definitely not in consonance with the principles of Equality and defies his right to possession of the land that should belong to him. Prima facie it might sound like a trivial demand. But in cases where the father is living separately and is solely dependent on the deceased, or in other such situations where the father is of an old age and has no one else to maintain him, this law becomes a hindrance to his Right to Life and Right to Property.
Although there are different claims and demands to make laws gender-neutral by a lot of interest groups because they hamper men’s rights, not all laws can be made gender-neutral. This conclusion can be arrived at by simply comparing the statistics of victims on both ends. If we look at the two pictures and compare them, it will be evident that the need for these laws outweighs the problems that they cause. In the case of Orilal Jaiswal v. State of Bengal, it can be noted that despite all these provisions that give women the benefit of doubt, it is still difficult for the Court to deliver justice. Obviously, it’s the women who suffer more and hence a framework of legal mechanism needs to exist which can help them.
What can be allowed is to make these laws bailable so that the men do not lose their jobs. The section on cruelty can also be made compoundable. In certain cases, the offence should not be confirmed without following the principle of Audi Alterem Partem. Hence the solution is not to make every law gender-neutral, but to work on the lacunae that exist in such laws, prevent their scope of misuse and make sure that the rights it gives to some, doesn’t infringe the rights that are exercised by others.
Editor’s Note Women have been subject to the demons of patriarchy and slavery since time immemorial. In such a scenario, the need for formulating women biased laws necessarily arises but at the same time it needs to be ensured that these laws are not misused. The objective and purpose of those legislations were to provide a shield to the women and not a weapon. This article explains the various contentions raised against various women biased legislations which can prove to be harmful to men in certain cases and the need to amend those legislations so as to ensure that their misuse is prevented. The contentions and viewpoints are substantiated with relevant case laws and Law Commission Reports. The author concludes that the need of the hour is not to make each and every law gender-neutral but to amend the laws in such a way that their misuse is prevented to a large extent.