Representation: Legal & Constitutional Reference Committee, Australia

Updated: Dec 5, 2020


Will 498A IPC Cross International Borders?

Dear Committee Members


We introduce ourselves as Daaman Welfare Society, a registered NGO in India, working against the prevailing gender bias in society and laws almost everywhere. We are in India but we have several members living in Australia, through them only we got to know about this government initiative in Australia.


We are writing to you with reference to discussions in regards to dowry abuse in Victoria to the Legal and Constitutional Reference Committee.


We are not only representing the Indians of masculine gender of all ages in Australia, but also their families for the reason that our experience about such gender biased laws in India states that at best what such biased laws can do is, just spoil the social fabric and slowly demolish the institution of marriage.


  • We strongly oppose the proposed idea of dowry abuse legislation.

  • From our experience with the people of Australia, especially with those who are from Indian sub-continent, we believe that dowry is not an issue among the Indians living in Australia.

  • Also since we’ve learned that The Australian Family Violence Act 1975 covers the issue of economic abuse/coercion.


Issue that actually need to be understood:


By virtue of this dowry harassment argument being gender biased and always with an implied presumption that the woman is harassed to the maximum extent with inhuman behavior; it takes precedence over any other argument/conflict/issue prevailing between the couple and with our experience we can say that anything and everything culminates in an allegation of dowry harassment by husband and in-laws. It has hardly any use except being a tool for vengeance, extortion and blackmailing because it’s whole philosophy is in absolute contrast to the normal jurisprudence, ‘innocent until proven guilty’.


We suggest that before moving further, a committee be setup to study the negative impacts of notorious IPC (Indian Penal Code) Section 498a and dowry laws in India


In 1961, Government on India too criminalized the demand and acceptance of dowry by passing ‘Dowry Prohibition Act’ and in 1989, Government of India added 498a in Indian Penal Code, supposedly for prosecuting the husband and his relatives who harasses the wife


But the only use of these gender biased laws which were meant to safeguard and empower women, have just been ‘misuse’!


Without going in any other arguments, we wish to bring to kind notice that even Hon’ble Supreme Court of India in a catena of cases have pointed the government repeatedly to amend the 498a IPC and check it’s misuse. In this very regards we wish to draw your kind attention to the observations made by Hon’ble Supreme of India in following two cases:


Sushil Kumar Sharma vs Union of India and Ors


A case where the Hon’ble Supreme Court gone to the extent of calling the misuse of 498a IPC as ‘Legal Terrorism’


“…… Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with…… by misuse of the provision a new legal terrorism can be unleashed……


Rajesh Sharma vs State of UP


Extract from para 8 the judgment is as below:


“…… misuse of the provision is judicially acknowledged and there is need to adopt measures to prevent such misuse…… Our experience shows that, apart from the husband, all family members are implicated and dragged to the police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant……”


Also pertinent to mention here is that as per the National Crime Record Bureau of India, the rate of convictions in such cases negligible in comparison to the number of cases registered.


It is now pretty well known and admitted fact that the Indian laws related to dowry and harassment are among the most misused laws and this fact have surfaced in hundreds of court trials in India. This has led to emotional, psychological and financial strain of the innocent people undergoing stigmatization and hardship with a large number of falsely accused men committing suicide, just because of the harassment showered by such gender biased laws. Rate of suicide of husbands in India is twice in comparison to that of wives.


Also as per our understanding, Australian Family Violence Act already covers economic abuse by a person that is coercive, deceptive or unreasonably controls another person without the second person’s consent. In a scenario when the family violence act precisely covers economic abuse, there is no need to redefine, amend or duplicate the legislation with more confusing clauses for a foreign issues specially for which legislation already exists in Australia.


We strongly recommend:

  1. Orientation programs be organized specially for the newly arrived community regarding relevant Australian Laws particularly in regard to Family Violence and Healthy Relationships

  2. Primary preventative measure for Family violence.

  3. Ongoing education of the community regarding Family Violence.


Sd/-

Submitted

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