A recent ruling by the Allahabad High Court issuing guidelines on arrest in Sec 498A IPC cases or domestic violence cases as it is commonly known, is a blatant violation of the Supreme Court orders on the issue. In the recent ruling in Mukesh Bansal Vs State of UP and Another, the Allahabad High Court issued guidelines on arrest and constituted Family Welfare Committees (FWC) in Sec 498A IPC cases, going against the Supreme Court order in Social Action Forum for Manav Adhikar & Another Vs Union of India and Others.

The SC had categorically declined to recognise FWCs and their role in delaying arrest of the accused persons as it deemed such intervention by third parties not in consonance with the framework of the Criminal Procedure Code. The SC had also ruled that amounted to complete dilution of Sec 498A IPC which deals with marital cruelty against women. Disregarding the SC order, the Allahabad High Court has now issued fresh guidelines, falling back to the familiar yet hackneyed trope of “disgruntled wife” roping in the husband and his family members in domestic violence (DV) cases.

While the High Court’s intention was to safeguard the sanctity of the institution of marriage and save “innocent” husbands and their relatives, the Court went to great lengths to discredit the cumulative and often insidious effects of DV on women by making rather callous remarks against the survivor. The court described her complaint as “venomous,” “filthy,” “exaggerated” and even shockingly dismissed her medically certified physical injuries as “no injury case,” as the Court did not seem to consider them serious enough. The final order of the Court was not just limited to Sec 498A cases, but also extended to “no injury 307 and other sections of the IPC in which the imprisonment is less than 10 years (sic).” The Court failed to explain what it meant by “no injury” in Sec 307 and other cases, which only showed the Court’s limited understanding of the varied nature of DV. According to the Court, DV seemed to be real only when there were serious physical injuries on the survivor, or perhaps the presence of the dead body of the DV victim.

There are several such judgments by various High Courts and the Supreme Court which routinely paint women, especially DV survivors, as vindictive wives misusing the law. An analysis of these judgments revealed the following observations made by the courts fell into three common categories. One was that most 498A and dowry prohibition cases were false. Secondly, innocent husbands and their relatives were getting arrested and third, that the institution of marriage was collapsing because of spiteful wives.

These arguments are similar to those used by Men’s Rights Activists (MRA) to systematically attack survivors of DV, ever since Section 498A and other DV related provisions were added to the Indian Penal Code and the Indian Evidence Act in 1983. However, all three claims have proved to be objectively unreliable as the MRAs have been successful in manipulating the National Crime Records Bureau (NCRB) data on Sec 498A to their own benefit. The courts too have relied on the same flawed data, to rebuke survivors of domestic violence based on anecdotal evidence of “innocent husbands.”

Countering this narrative of the courts and MRAs, studies undertaken by women’s rights organisations Vimochana in Bangalore, EKTA Resource Centre for Women in Tamil Nadu, and Tata Institute of Social Sciences in Mumbai have shown that most Sec 498A and allied cases are in fact “true” cases, which receive A Report from the police. This means that the police have filed a chargesheet and have sought a trial. However, so many of these cases do not end with a conviction because often women (are coerced to) agree to compromise for different socio-cultural reasons. This does not mean that DV did not take place. Ignoring the systemic issues in the criminal justice system and using low conviction rate alone as a metric to measure the success/failure of Sec 498A is patently wrong. For that matter, most crimes in India have low conviction rates. Does that mean the courts should interfere in all those cases as well and start issuing guidelines to dilute the very existence of the criminal law?

The data on arrest in NCRB is perhaps the most abused section by the MRAs. Over 70% of the accused persons in Sec 498A cases avail anticipatory bail, which means they do not get arrested. However, the NCRB clubs actual arrests with those who avail anticipatory bail and puts them in a single category of “arrest”, which is why the arrest data looks big on paper, but the reality is something else altogether. Instead of recognising this mistake, the courts have time and again issued guidelines to prevent arrest, which in reality does not even take place. Lastly, by characterising DV victims as disgruntled and spiteful liars, the courts have resorted to shaming women and placed the burden of saving the institution of marriage on women alone. These same courts are quick to believe husbands as “innocent,” but it is hard to find even a modicum of sympathy for DV survivors in these judgments.

The courts have also failed to take into consideration the National Family Health Survey (NFHS) data on DV, which most recently (NFHS-5) found over 32% married women aged between 18-49 years, experience spousal violence. The data on DV provided by the NFHS has only increased year after year, and if those numbers are compared to the total number of cases filed under Sec 498A and allied provisions of the IPC for any given year, not even 2% of the DV survivors are coming forward to file complaints against their spouses and in-laws. Despite the availability of both qualitative and quantitative data on the impact of DV on women, courts in India have turned a blind eye to the plight of DV survivors, by frequently transgressing into the legislative territory and diluting the provisions of criminal law by stripping it of its original intent and scope.

Bindu N Doddahatti is an Assistant Professor at the Azim Premji University. She works on criminal justice issues in Bengaluru, Karnataka. Views expressed are the author’s own.