Are Indian wives really weaponising domestic violence and maintenance laws?

Are criminal law provisions relating to the payment of maintenance by husbands to their wives and cruelty by a husband against his wife being weaponised against men? The suicide of 34-year-old Atul Subhash on Monday led to this discourse gaining traction on news debates and social media.

In a 24-page suicide note and 81-minute video, Subhash alleged harassment by his wife through the filing of false cases against him for cruelty as well as monthly maintenance.

However, lawyers and academics that Scroll spoke with provided an alternative view to the popular narrative of the laws being weaponised. It is often difficult for women to pursue maintenance in courts and file complaints of cruelty by the husband with the police, they say.

Pointing to the high rate of domestic violence faced by and suicide among married women, they said that rather than misuse, these laws are actually not being used enough by women.

Rationale for such laws

Article 15(3) of the Constitution of India enables the state to make special legal provisions for women and children. This affirms the social reality of discrimination faced by women in Indian society, according to Delhi-based criminal lawyer and writer Abhinav Sekhri. “The provisions relating to maintenance and cruelty discriminate in favour of women because our society discriminates against women,” he said.

Mumbai-based women’s rights lawyer Flavia Agnes agreed. “A woman has to leave her family after marriage and moves in with a new family,” she said. “She is in an especially vulnerable position and needs laws to protect her.”

Bengaluru-based legal academic Sarasu Esther Thomas, who specialises in family law and gender, explained the rationale for Section 85 of the Bharatiya Nyaya Sanhita – the replacement for Section 498A of the Indian Penal Code meant to protect women from cruelty in marriage – and Section 144 of the Bharatiya Nagarik Suraksha Sanhita – which replaced Section 125 of the Criminal Procedure Code meant to provide for maintenance.

Cruelty consists of both physical violence and mental harassment, including the demand for dowry. Maintenance can be demanded by any woman unable to maintain herself.

“Maintenance is needed because of the lack of social security for women,” Thomas said. She pointed out the gender disparity in education, the burden of care and domestic work on women and the social pressure on wives to leave work after marriage. All these result in the wife becoming economically dependent on her husband.

Calling the provision “essential” and “understanding of the reality of India”, she said that maintenance ensures that the breakdown of a family does not leave women destitute and allows her and her children to, as far as possible, maintain the standard of living they are accustomed to.

As for the cruelty law, she said that violence against women in the marital home is so widespread that ordinary criminal law provisions were not adequate to deal with it and a separate legal provision was needed. “The latest National Family Health Survey shows that nearly one-third of all married women face spousal violence,” she said. “Do one-third of all married women file cruelty cases against their husbands?” she asked. “This indicates that the law is under-used,” she said.

A lack of implementation

Experts familiar with these laws told Scroll that, far from weaponisation, in reality it is quite difficult for women to avail of the remedies of maintenance and cruelty from the criminal justice system.

When it comes to maintenance, women must face a long and arduous process in courts.

Sekhri said that even in Delhi, “where the courts are much more gender-sensitised and accessible than most other parts of the country, it is by no means easy to file maintenance cases and get favourable orders.” He pointed out that court take multiple hearings and intensely scrutinise all evidence and documents. “Courts don’t rush to conclusions in such cases,” he said.

Agnes said that “it takes a lot of time and money to file maintenance cases and get favourable orders and then to have them enforced or executed”.

Delhi-based lawyer and women’s rights researcher Mihira Sood told Scroll that the maintenance amount granted is usually “paltry and unrealistic”. She said that “the process of legally securing maintenance is punishing for women.”

In cruelty cases, the police is reluctant to register first information reports and both the police and courts push women to arrive at a “compromise” and withdraw the case, according to the experts Scroll spoke with. “Police doesn’t register a first information report unless the complainant has physical injuries and is accompanied by a lawyer or a social worker,” Agnes said. She added that even though harassment is part of cruelty as per the law, the police don’t consider it sufficient and don’t register cruelty complaints when there is no element of physical violence.

These difficulties have been previously documented by Scroll.

The police usually encourages mediation in such cases, said Sekhri. “FIR registration takes a lot of time,” he added. Unless the woman has suffered grave injuries, there is no threat of imminent arrest from the police too, he said.

The attitude of extra judicial resolution extends to courts too, pointed out Agnes. “Most cruelty cases result in acquittals because courts emphasise reaching at a compromise between the parties,” she said.

As a result, most women don’t report cruelty cases, said Thomas. “They seek non-legal, non-adversarial solutions,” she said.

Why the noise about misuse?

The narrative of misuse stems not from the law itself but from patriarchal biases prevalent in Indian society, according to experts. They pointed out that all laws are prone to misuse. The misuse of a range of laws – from those relating to terrorism and money laundering to defamation – has been well-documented. In contrast, there is no hard data on the misuse of cruelty and maintenance laws.

Sekhri said that these laws are misused, “as all laws are, but the misuse is blown out of proportion.” Sood added that in cases of false accusations, one reason women may press such charges is due to the “raw deal they usually get from husbands when it comes to alimony and maintenance”. According to her, “it is an unfortunate reality, but women are often advised to press criminal charges under 498A in order to be able to bring their husband to the negotiating table for maintenance.”

Even then, the overall trend is not of misuse – but of lack of use. “Do the instances of misuse outnumber the actual number of cases of dowry demand and violence against women in their marital homes?” Sood asked. The alarmism over misuse of these laws in particular when so many others are also misused, she said, “is due to ingrained patriarchal norms and expectations and says a lot about our society and the position of women in it.”

Thomas agreed. “Patriarchy has normalised violence against women,” she said. “Women are seen not as rights-bearing individuals.”

Sekhri said that the reaction to the supposed misuse of these laws is a “misdiagnosis of the problem”. According to him, “the correct solution is to make the police more accountable to the public in all criminal cases.”

Sood agreed. She said that High Courts must focus on making the legal process less arduous for citizens in all cases, not just those related to maintenance and cruelty, to reduce the scope of harassment for those involved in the cases. “High Courts must review hardships that citizens face in participating in the criminal justice system,” she said. “There must be judicial scrutiny of all false complaints, not just those in maintenance and cruelty cases.”