United by Law divide by Law


This article was written by Saisneha Das  a student of National Law University , Odisha.

“I am in favour of hipster androgyny. Any trend that permits men to rebel against strict gender rules of appearance is going to make the world a more expressive and sensitive place for all of us.”

                                                                                               –   Russell Smith

Not because the idea of fight for women has become too mainstream but because most of have ignored the new situation that is budding up I was curious to base my research topic on this.  When everyone is drifting their concern towards protection of women the purpose of gender equality is being put on stake.

Although the law were made in a good motive that is to protect the rights of the smallest possible creature ever but then the laws were made by man and thus certain loopholes are sure to appear. With the revolution of human wisdom and knowledge amendments are made but then a new trend has been set up.

When all laws are drifting towards the protection of rights of women some of the section of law seems to favour women in an unjustifiable manner. In this write up I would like to throw lights on certain laws that put the whole purpose of gender equality in a questionable state.

The Indian Evidence Act plays an important role in ascertaining the question of facts in cases. If we take look on the section 114A of the Indian Evidence Act 1872[1] it reads that in the case of presumption of absence of consent in certain prosecution of rape the mere statement of a women is enough. But there is no such mechanism as to ascertain that the statement given by the woman is true or not. One can falsely claim of such acts for fulfilling any of her motives.

It is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require any other evidence including the evidence of a doctor. In a given case even if the doctor who examined the victim does not find sign of rape then the doctor is not forced to disbelieve the rape accusation. Indian women have tendency to conceal such offence as it involves their prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and file a complaint. [2] Although somewhat this rule stands true but every time the situation is not the same. Besides the things are changing and so are the situations and we have to adapt to these changes for a better world.

Then we can shift our attention towards the domestic penal code. Section 497 of the Indian Penal Code says that if a husband finds his wife having extra marital sexual affair with another man then the husband can file a suit against that man. But there is mention of any penal action against the woman. Whatever the reason may be the both had sexual intercourse with mutual consent and so both of them are equally liable for the offence and thus punishing one and sparing the other is against the justice system in my opinion. To these kind of cases many times the court gives the excuse of grave and sudden provocation. Whereas in the case of K M Nanavati [3] case there was enough time for the accused to cool down  but still the appellant’s application was passed. In the case of Sowmithri Vishnu v. UOI [4]– where Sowmithri, whose lover was prosecuted for adultery, contended that the law was gender biased. Despite being an equal party in the offence, the woman was a ‘victim’- she was exempt from punishment, as a child would be, suggesting that the woman committing adultery is incapable of rational thought and therefore has no agency. The crux of the matter is that only the accused man is made to suffer.

If we take a look at Sec 498 of the Indian penal code[5] then in the complaint of the domestic violence act no proper evidence is required. Just a mere statement, and the complainant’s husband and other relatives shall be behind the bar. It is helpful for the women who are actually facing problem but largely this law is being misutilised also. And the lawmakers are sitting blindfolded. This causes degradation in the family’s reputation also. They are unable to face the society.

And if take a look on the newly Domestic Violence act we can see how mainstreamed and careless the lawmakers were in framing the law. They had their minds biased towards a particular section of the society. A mother-in-law cannot file an application against her daughter-in-law (Section 2 (q)). However in cases where a mother-in-law is facing violence at the hands of her daughter-in-law cannot demand removing of the daughter-in-law from the shared household. This act is essentially anti-male in nature and can be applied against males only. It cannot be applied against any female. Even the Supreme Court believes that this law is a biased one – “shared household’ in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting”. [6]

As a part of another new trend the Supreme Court now tend to prioritise the need of women in a live in relationship. According a recent order of Supreme Court women in a live in relationship can claim the property of the man after separation, provided that their relationship is proved on certain parameters.

Out of 583 cases of rape reported in Delhi only 12 were true as estimated in 2013. 70,000 people were wrongfully detained for wrongful accusation in domestic violence.  [7] This is just a small documentation of the big wrong that has been tending now.

As a woman we should know how to be independent and help those in need to become so. The blame game thing has to stop as soon as possible.

[1] Indian Evidence Act 1872

[2] Om Prakash v. State of UP AIR 2006 SC 2214

[3] K M Nanavati v. State of Mahrashta 1962 AIR  605

[4] Sowmithri v. Union of India 1985 AIR 1618

[5] Indian Penal Code 1860

[6] D. Velusamy v. D. Patchaimmal  (2010) 10 SCC 469

[7] http://www.saveservices.org/camp/faam-2011/false-accusations-of-domestic-violence-by-the-numbers/

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