In May 2018, Federal Labor MP Julian Hill slammed the “alarming” practice of dowry abuse, said to be rife in immigrant Hindu and Sikh communities in Australia, as “completely inappropriate in modern Australia”.
Calling for an urgent Senate inquiry into how to best stamp out the practice, Mr Hill then told parliament that “dowry perpetuates a culture of ownership of women, which runs against the cause of equality”.
On June 26, 2018, the Senate (Australia) referred the practice of dowry and the incidence of dowry abuse in Australia to the Legal and Constitutional Affairs References Committee for inquiry and report by December 6, 2018. On November 12, 2018 the Senate extended the committee’s reporting date to the second last sitting day in February 2019. The deadline for submissions to this inquiry was August 17, 2018. However, the committee decided to accept submissions beyond this date.
The committee’s focus is on the broad issues raised in the terms of reference of the inquiry with a focus on explore the nature of dowry as a cultural practice, and the adequacy of current Australian policy settings and legal frameworks regarding dowry and dowry abuse. Click Here to read more.
Roopenshu Pratap Singh, Supreme Court lawyer and Men’s Rights Activists from India has sent his recommendations so that a balance can be struck while punishing the perpetrators and fair justice can be provided to the falsely accused.
To The Department of Home Affairs,
Subject: Submission regarding Anti-Dowry Laws of India
DEAR LAW MAKERS OF AUSTRALIA,
The social and economic progress gained by countries is directly the result of their vigilant protection and enforcement of the rule of law. The right to equality before the law, often phrased as “equal protection of the law”, is fundamental to any just and democratic society. In the eyes of rule of law, rich or poor, majority or minority, etc all are entitled to equal protection before the law. In the absence of rule of law, the power-holders become corrupt and tyrannical. In a democracy, those who administer the criminal justice system use their power and the potential in wrong sense.
The State power is exercised to imprison, seize property, torture, exile and execute individuals without legal justification and even without any formal charges being brought. Whenever any law was drafted anywhere in entire world, it was drafted for the betterment of the society at large. In case of anti-dowry laws or laws made for the protection of women in India are one sided laws, without any checks & balances on its misuse.
In India such laws are: 498A of Indian Penal Code along with various other sections of IPC, Section 125 of Criminal Procedure Code, Domestic Violence (DV) Act. In 2005, Hon’ble Justice Arijit Pasayat of Supreme Court of India called anti-dowry law as ‘Legal Terrorism’. Let’s understand first with DV Act along with Sec 125 of CrPC for maintenance provision in such cases.
- The “prima facie” satisfaction of the Magistrate as provided under section 23 of the Act which grants powers to the magistrate to grant interim and ex-parte orders is unchecked and arbitrary, further the Act itself does not provide for any provisions vide which orders under section 23 can be modified or altered by the Trial Court.
- Due to the nature of unchecked and arbitrary powers as given to the magistrates under the DV Act has resulted in more litigation in the country in the nature of Appeals and revisions;
- Maintenance orders all over the country are being passed mechanically and Arbitrary leading in more litigation in Appellate Courts
- Maintenance orders as passed by the Magistrates under the Act need to be time bound and need to attain finality.
- Unlike section 127 of the criminal procedure code which provides for alteration in allowance as given under section 125 CR.P.C, there is no provision under the DV Act which provides for any alteration or modification of order based on proof of any change of circumstances.
- There were no tests for granting maintenance as a spousal support rather than it’s only for the support of the dependent wife, children or elderly parents under section 125 Cr.P.C.
- The power to grant interim measures as it exists under section 23 of the DV Act needs to have some minimum limitation or time period; and cannot be applicable till pendency of the entire dispute without giving any remedy for alteration or modification except in form of Appeal or Review.
- The unchecked and arbitrary powers of magistrates to award maintenance under the Act without modification/alteration has resulted in an unprecedented surge in Family litigation in the country.
- The provisions of the DV Act namely section 20(1)(d) and section 26 of the DV Act not only violate the Article 14, 20 and 21 of the Constitution of India but also allow legal action to be instituted twice for the same cause of action.
- The provisions of the DV Act itself, does not provide for final determination of the disputes between the parties.
Sole purpose of filing 498A IPC case is to pressurize the accused husband and his family members in every possible manner so that they can come up and agree on the terms and conditions of wife, in major cases these conditions were vague and absurd.
Whenever any married women have any grievances she move to police station of her choice (even her parents can lodge such complaint) as the territorial jurisdiction in DV Act and 498a IPC case were wide in nature. Then accused husband has been called to police station where he was pressurised even thrashed in many cases to come on consensus with the term and condition of the complainant wife.
It’s a long time taking process and a long list of litigation were involved when we speak about the matrimonial litigation in India or Antidowry laws litigation in India. Like in the matter of Saritha vs R. Ramachandra 2002 (6) ALD 319, 2002 (4) ALT 592, I (2003) DMC 37 the Hon’ble Andhra High Court observed,
This Court would like to go on record that for nothing the educated women are approaching the Courts for divorce and resorting to proceedings against their in-laws under Section 498-A IPC implicating not only the husbands but also their family members whether they are in India or abroad. This is nothing but abuse of beneficial provisions intended to save the women from unscrupulous husbands.
But it has taken a reverse trend now. In some cases this type of action is coming as a formidable hurdle in reconciliation efforts made by either well meaning people or the Courts and the sanctity attached to the mandate that the Courts shall always try to save the marriage through conciliatory efforts till the last, are being buried deep-neck.
When an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 of the Constitution of India and if it affects any matter relating to public employment, it is also violative of Article 14 and 16 strike at arbitrariness in state action and ensure fairness and equality of treatment. It’s my humble request to draft and enact gender equal laws rather than giving protection to one particular gender.
(Roopenshu Pratap Singh)
For several False 498A cases in India, you can click here.