In its urgency to push through the Triple Talaq Bill, the government appears to have overlooked five criminal laws relating to women and marriage identified in 2015 by a government committee as needing immediate political attention.
These are: Criminalising marital rape, clarifying the definition of ‘cruelty by husband and his relatives’, plugging a loophole in the anti-dowry law, ensuring the same age of marriage for women and men, and outlawing khap panchayats that impinge on the right to choose whom one wants to marry.
Over the last two weeks, the Triple Talaq Bill or the Muslim Women (Protection of Rights on Marriage) Bill has been extensively debated in Parliament, with the proposed legislation now stalled in the Rajya Sabha (upper house of Parliament) till the budget session begins later this month.
The bill seeks to turn the practice of talaq-e-biddat, or instant triple talaq, which allows a Muslim man to divorce his wife by uttering the word talaq three times in quick succession, into a “cognizable and non-bailable offence”. It proposes a prison term that “may extend to three years” and a fine for Muslim men who are guilty of instant triple talaq. This law also provides for subsistence allowance to affected women and custody of minor children as “determined by the magistrate”.
The government has been criticised for pushing the proposed legislation without holding discussions with Muslim women while outwardly seeming to protect their rights. “[It] pushes Muslim women into incarcerating their husbands. What is frightening is that it gives power to a third person to file a criminal charge. How will this sword of criminalisation be used in the current atmosphere where anti-minority feelings are heightened?” said this opinion-editorial in the Asian Age from January 8, 2017.
Union minister of law and justice Ravi Shankar Prasad, who introduced the bill in the Lok Sabha (lower house of parliament), said the government views the bill not through the lens of “siyasat” (politics) but “insaniyat” (humanity), according to this Indian Express report from December 29, 2017.
A ban on triple talaq had been recommended by the high-level committee in its four-volume report on the status of women in India. “There should be a complete ban on the oral, unilateral and triple divorce (talaq) as it renders wives extremely vulnerable and insecure regarding their marital status,” the report said. The committee did not specify if the practice should be criminalised.
The expert committee, formed in 2013--25 years after the last such panel--submitted the report to the ministry of women and child development department after “two years of poring over data and reports, widespread consultations, intense and insightful meetings, independent research and more importantly many hours of listening to women in the field”.
In volume two of the study, the panel recommended several measures to ameliorate the status of women across communities, in fields relating to the economy, environment and law.
In its assessment of women and criminal law, the committee lists several recommendations, not restricted to Muslim personal laws alone, to help women through legislation and the justice system. These range from proposing new laws and amendments to improving the infrastructure to protect female victims of violence and women’s representation in the judiciary.
Less than a handful of these recommendations have been initiated.
“Improving the legal status of women involves a multi-pronged approach that looks first and foremost at the legislative inadequacies and state policies and schemes closely, followed by addressing the inadequate implementation of laws by the State, police and courts,” the report said. “Though there have been a number of legislative enactments, gender-based violence and discrimination continue. There are clearly lacunae in the laws and also gaps in their implementation.”
Criminalise marital rape: Relationship irrelevant in evaluating consent
Currently, there is no legal recourse for victims of marital rape as section 375 of the Indian Penal Code (IPC), 1860, provides an exception to marital rape.
“The exemption of marital rape stems from a long outdated notion of marriage which regarded wives as no more than the property of their husbands,” the high-level committee report observed. Recalling several previous recommendations to the government, the committee once again recommended the exception now be removed to make marital rape an offence irrespective of the wife’s age.
“The relationship between the perpetrator and the victim should be irrelevant in evaluating consent,” the report said.
Supreme Court advocate Karuna Nundy, an expert on constitutional law who has argued for criminalising marital rape, pointed out that cases of marital rape may be filed under section 498-A of the IPC relating to ‘cruelty by husband and his relatives’.
“However, these laws treat victims of marital rape differently from other victims and also limit their access to compulsory free healthcare and legal aid otherwise provided to victims of rape,” Nundy told IndiaSpend. “The justice served in these cases is also limited as the perpetrators of this kind of rape are subjected to non-rape penalties that are much lighter in comparison.”
Expand the definition of marital cruelty: Abuse is not always physical
Under section 498-A of the IPC, which refers to 'cruelty by husband or relatives of husband', the law seeks to punish the husband or his family for harassing a woman to the point of driving her to suicide or for coercing her or any person related to her to meet unlawful demands. If found guilty, the accused can be jailed for a term extending to three years or be fined.
Over a third, or 34% (110,378 cases) of 325,652 serious crimes against women reported in 2016, were filed under section 498-A, showed National Crime Records Bureau (NCRB) data for 2016, the latest available. This was the most among all categories of crimes against women reported that year.
“These numbers are still low compared to the number of cases where police turn away victims of various kinds of abuse that are not merely physical,” said Flavia Agnes, women's rights lawyer and co-founder of Majlis, a non-profit that provides legal services to women and children. “Since it is not clearly defined under the current law, these cases are often not registered.”
The committee report has recommended that the definition of cruelty be reviewed to include “the varied forms of violence against women in the home and to ensure that it is in line with the definition of "domestic violence" given under the Protection of Women from Domestic Violence Act (PWDVA), 2005”.
The Act seeks to protect and shelter women who report to be facing any kind of abusive behavior by her husband/ male partner or their relatives (male and female). It clearly defines and expands the concept of abuse to include not only the physical but also verbal, emotional, sexual and economic.
As many as 31% of ever-married Indian women have experienced physical, sexual, or emotional spousal violence, according to the National Family Health Survey, 2015-16, report. The most common type of spousal violence is physical violence (27%), followed by emotional violence (13%), while 6% of ever-married women have experienced spousal sexual violence.
Amend the anti-dowry law: Include other kinds of assets as well
Currently, the Dowry Prohibition Act, 1961, prohibits the giving or taking of dowry. An offender is subject to a minimum of five years’ imprisonment. The law requires those getting married to make a list of gifts and presents.
The committee report reiterated the amendments to the anti-dowry law proposed by the National Commission for Women (NCW)--widen the definition of dowry and lower the penalty levied on the giver of dowry. It recommended that stridhan (all the movable, immovable property, gifts and so on a woman receives in her lifetime) be included in the definition of dowry; and also that the legal provisions that allow a husband to inherit this stridhan be deleted.
“There is a ubiquitous pressure on the family of the girl child to provide dowry and often, creative ways that fall outside the definition of the law are used to avoid penalisation,” Agnes told IndiaSpend.
However, in July 2017, the Supreme Court of India struck down the use of section 498-A in dowry cases, putting an end to the immediate arrest of the husband and his family in dowry cases. The court’s decision was based on the high acquittal rate in dowry cases reported under section 498-A--a median 81% over the decade to 2015, according to this FactChecker report from August 3, 2017.
However, for a decade from 2005 to 2015, 88,467 women, or an average of 22 each day, died in dowry-related cases, indicating how little has changed despite the existence of an anti-dowry law for nearly six decades, the report said. In 2016 alone, 1,354 dowry deaths were reported, NCRB data showed.
“While the launch of campaigns such as Beti Bachao Beti Padhao and debates around dowry reflect concern on the issue of sex selective abortion, the declining sex ratio and dowry death, there seems to be more concern about the unborn and the dead and a lack of thrust in securing the rights of the women who are alive and facing violence,” said the committee, with reference to the changing institutional stance on section 498-A.
Same minimum age of marriage for both sexes: Don’t deny girls their childhood
The Prohibition of Child Marriage Act of 2006 outlaws the solemnisation of child marriages--where the a boy is under 21 years of age or the girl, under 18.
The committee recommended that the minimum age be made the same. “Child marriage is not just a social norm but denial of childhood with irreversible consequences, especially for girls,” the report said.
Underage marriages, especially of girls, are rising in urban India and declining in rural India, according to this IndiaSpend report from June 9, 2017.
Girls & Boys Married Below Legal Age
Criminalise khaps ordering honour killings: Defend right to choose in marriage
“Unequal economic, social and political status and position of women is an outcome of patriarchy and the deeply entrenched socio-cultural stereotypes about women. This is sometimes perpetuated by laws, regulations and policies which do not sufficiently address the subordinate status of women,” the report said. “Honour killing [a crime wherein a member of a family is murdered, due to the perpetrators' belief that the victim has brought shame or dishonor upon the family] is not just a way of punishing the one who has brought dishonour to the family, it is indeed a barbaric murder usually of girls.”
Since 2014--when the NCRB started recording data on honour crimes--to 2016 honour crimes more than doubled, from 28 cases to 71 cases. In 2015 alone, 192 honour killings were recorded, NCRB data showed.
To address the high rate of such killings and their gender skew, the committee recommended a separate legislation, previously recommended by the NCW and other women's organisations. This would involve the shifting of criminal consequences of the extra-judicial honour killings on the khap panchayats that order them.
“Honour crimes and khap diktats have received widespread media coverage and incited social and judicial outrage,” the panel noted. “However they form a major lacuna in the law and poses a complexity that the IPC is unable to address.”
The committee also recommended mandatory police and legal protection for couples/women/children/families who approach any institution fearing harm at the hands of family members or community.
“Violence against women has been acknowledged as one of the crucial social mechanisms by which women are forced into a subordinate position compared with men and therefore a violation of women's equality rights,” the report said. “Passing legislation however does not indicate judicial or executive sensitivity to women's rights. Faithful implementation of the laws is thus the essence for good governance.”
(Saldanha is an assistant editor with IndiaSpend.)
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