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The Supreme Court of India on July 28 struck down the use of Section 498A of the Indian Penal Code (IPC) in dowry cases, putting an end to 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 498A--a median 81% over the decade to 2015, a FactChecker analysis of National Crime Records Bureau (NCRB) data from 2005 to 2015 shows. In 2015 alone, 39,568 persons were found "not guilty" in such cases, a 64% rise from 2005 when 24,127 persons were acquitted. In cases lodged under the Prohibition of Dowry Act, the acquittal rate averaged 44%.

Yet, a high acquittal rate does not mean the law was misused to file false cases. Any number of factors can be responsible for acquittal--poor investigation by the investigating officer; settlement of differences through mediation; intimidation of witnesses and/or the complainant, and so on, as senior advocate and former additional solicitor-general of India Indira Jaisingh wrote in The Indian Express on August 2, 2017.

So, was the court's reasoning flawed? And did it over-react by suggesting too extreme a measure?

The judgement

The Prohibition of Dowry Act, 1961, bans the giving or taking of dowry by either party in a marriage, and punishes demands or advertisements for it. Section 498A of the IPC, used in conjunction with this law, is meant to protect women against cruelty from the husband or relatives of her husband which a) may drive her to commit suicide or b) harass her into giving property or valuable security, by allowing the police to arrest them on receiving a complaint.

"We are conscious of the object for which the provision [498A of the IPC] was brought into the [dowry] statute," the court said, "At the same time, violation of human rights of innocent cannot be brushed aside." The court said the clause made it possible to carry out uncalled-for arrests and insensitive investigation, and ordered that Family Welfare Committees be set up in each district to take up every complaint under Section 498A.

These committees would consist of paralegals, volunteers, social workers, retired persons, wives of working officers and other citizens. "Till report of the committee is received, no arrest should normally be effected," the court ruled.

Women's rights activists argue that actual cases of male victimization are far fewer than incidence of dowry-related harassment and murder, and the court's reasoning is a big setback for India's fight against dowry and women's rights.

"The government should file a review petition for this judgement. There is no doubt there are false cases but the difference in victimization of men compared to that of women is literally an earth-to-sky distance," Pam Rajput, founding director of Panjab University's Centre for Women's Studies and Development, told FactChecker. "Such judgements can seriously set back the women's rights movement."

In previous judgements, the Supreme Court has ruled that the scope for misuse cannot be reason enough to dilute or do away with a law, lawyer Malvika Rajkotia, author of Intimacy Undone: Marriage, Divorce and Family Law in India, told FactChecker. With regard to Section 498A, she said: "Here is a law that has proved beneficial for scores of women. Ignoring its benefits on the skewed perception that it is being increasingly misused is not a reason to do away with it."

For a decade from 2005 to 2015, 88,467 women, or an average of 22, died each day in dowry-related cases, indicating how little has changed despite the existence of an anti-dowry law for nearly six decades. In 2015 alone, 7,634 women were killed over dowry.

"Dowry death," logged under Section 304B of the IPC, refers to the death of a woman under abnormal circumstances within seven years of marriage. Those punished under this section may be imprisoned for upto seven years or a life term.

Source: National Crime Records Bureau 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015

Misuse of anti-dowry law a "myth"

"There is a myth that this Section [498A] is misused. In many family court cases related to child custody or maintenance, lawyers use Section 482 of Criminal Procedure Code to quash criminal cases filed under Section 498A to push the opposing party into mediation," Mrinal Sathish, an associate professor at National Law University, New Delhi, told FactChecker. "The data indicate this is what happens to many of the cases reaching the Supreme Court/High Courts, creating the misconception that the law is misused."

Section 482 of the Criminal Procedure Code authorizes a High Court to quash an FIR or charge-sheet, when necessary, to prevent abuse of the processes for justice.

Sathish said the actual question is how many dowry harassment cases have been reported at police stations, and not "the fraction" that reaches the High Courts and the Supreme Court.

"There is a basic class issue when it comes to dowry cases," Flavia Agnes, legal scholar and women's rights activist told Factchecker. "Implementation of the law is weak as we have often found police refusing to take the complaints of an underprivileged married woman who goes to file a case of cruelty against her husband and his family. In fact the whole section on cruelty is taken lightly."

Agnes said the police are more likely to file a complaint if the woman is accompanied by a lawyer, which only well-off women can afford. For the predominant majority from impoverished or modest economic backgrounds, even getting a complaint registered is a battle. All this time, they face life-threatening circumstances in their marital home.

From 2005-15, dowry death conviction rate fell 12 percentage points, trial pendency rose 57.7%

Three years ago, the Supreme Court had restrained the police from "automatically" arresting the accused in dowry harassment cases. The court made "adequate proof" mandatory, reasoning that arrests in cases that invite a maximum punishment of up to seven years in jail cannot be made on a "reasonable belief" that the accused may have committed the offence. Reasonable belief is the legal principle behind cognisable offences.

This seems reasonable, until juxtaposed against the scale of the dowry problem: over the decade to 2015, the number of cases reporting cruelty by husband and relatives under Section 498A nearly doubled (94.4%)--from 58,319 cases in 2005 to 113,403 in 2015.

At the same time, more women died on account of dowry harassment in 2015 (7,634) than in 2005 (6,787). The yearly number spiked at 8,455 in 2014--23 deaths on average each day, or nearly one every hour.

Despite the swelling numbers of deaths reported, the disposal of dowry harassment cases by both the police and the courts has been slow, as IndiaSpend reported in January 2014.

As of 2015, of the cases reporting cruelty by husband and relatives, those pending trial at the end of the year had risen 147% from 193,490 cases in 2005 to 477,986 cases in 2015, NCRB data show. During the same period, the number of trials completed each year increased at a slower pace--by 54.4%.

At the level of the police station, dowry harassment cases pending investigation more than doubled (115.5%) from 24,038 cases in 2005 to 51,805 cases in 2015, NCRB data show.

Disposal Of Cases Under Section 498-A by Police And Courts

Source: National Crime Records Bureau 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015

Even in cases reporting demand for dowry under the Prohibition of Dowry Act, nearly twice as many were pending investigation at police stations--2,387 cases in 2005 and 5,153 cases in 2015.

Disposal Of Dowry Prohibition Cases By Police And Courts

Source: National Crime Records Bureau 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015

During this period, NCRB data show, the police found 9% of dowry-harassment cases and 3.4% of dowry-demand cases to be false on average each year.

Activists and some legal experts believe this number is overblown.

"It is one thing to say there is no evidence to prove the allegations beyond reasonable doubt, but another to say that a complaint is false," Jaisingh wrote in her column in The Indian Express. The power of the police is limited to finding evidence, and insufficient evidence does not render the complaint false, she wrote.

In cases of death due to dowry, the conviction rate has dropped 12 percentage points over 10 years from 30.5% in 2005 to 18.5% in 2015, our analysis found. Further, the number of persons released at the police station before appearing for trial for murder for dowry rose four-fold (416%) over a decade--from 667 persons in 2005 to 3,442 in 2015.

Trial pendency in courts too rose 57.7% to 37,062 cases in 2015, up from 23,494 cases in 2005, while the number of completed trials dropped 7%.

The number of such deaths pending police investigation rose 23% from 3,411 cases in 2005 to 4,220 cases in 2015.

Source: National Crime Records Bureau 2005, 2006, 2007, 2008, 2009, 2010, 2011, 2012, 2013, 2014, 2015

"In passing this judgement, the Supreme Court is doing the job of the lower judiciary and the police, which should be held more accountable for misuse of the law," Rajkotia told FactChecker. "The apex court should instead focus its energy on ensuring more effective investigations and nuanced judgements that stem from a balanced approach to such complex issues."

Rajput said misuse of legal provisions is no doubt a serious issue, and the government should set up a task force to review the law and plug the loopholes. "But this cannot be done at the cost of much-needed justice for women," she said.

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Alison Saldanha