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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 womans kitchen and mans 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 Honble 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.
Its 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
spouses 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 wifes

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/

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 mens 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 Ponds and ICICI Prudential Insurance commercials by the Chennai-based
organisation Indiya Kudumba Pathukappu Iyaakam. 14

10

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 mens 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

15

"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.
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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

22

"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
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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.

28

"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.
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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

46

"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.
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8 | Fight against abuse of Indian Laws for Protection of Rights of Women against Men- Rahul Khemka

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 womens 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 nobodys fault. Perhaps it is everybodys 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.

51

"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