1. That is one explanation. The other explanation is that the suits were false/frivolous. I would argue that conviction rates of 13 - 20 percent cannot be explained by prosecutorial (in)competence alone. Your point regarding admissibility is dubious in the context of 498A cases as there is very little physical evidence in these cases and it is mostly a he said/she said situation. 2. Yes, these comments are anecdotal. But it is near impossible to empirically verify whether a case is false/frivolous. (short of reading every judgement and determining the reason for acquittal but even there you would argue that the judge got it wrong or it was due to prosecutorial incompetence). In the absence of a method to empirically verify such claims, we must depend on anecdotal evidence and other indirect indicators (number of compromises/acquittal rates). Otherwise you will have created a virtually unfalsifiable premise (that these laws are not being misused). I think, in the absence of a viable method to empirically verify these claims, the anecdotal observations of judges who deal with a large number of such cases cannot be dismissed outright. 3. I am a little unclear on how a lawyer can know that a law is not been misused. I am assuming that means that they have personally never come across cases of misuse. However, that does not mean that misuse is not taking place nor does it take away from the comments of those lawyers who say they have witnessed misuse. 4. Anybody with even a passing experience with the Indian civil justice system would know that resorting to the Indian civil justice system is like tilting at windmills. In all likelihood, you will end up paying more than any damages you might (eventually) receive.
Yes, all laws can be misused. But all laws cannot be misused to the same degree. The degree of misuse is the metric we should adopt, not the binary fact whether a law can be misused or not. To take an example, it is difficult to misuse s 302 IPC. You cannot accuse somebody of murder without answering questions such as who has been murdered? How do you know the accused committed the murder? Where is the body? What were you doing at the murder spot? etc. For s 498A, since the actions take place in the privacy of the home (mostly), you can accuse someone only on the strength of your word without requiring any physical or external evidence. Furthermore, the judiciary has allowed women to file 498A cases a long time after the alleged incidents took place without having to explain the delay. All these factors make s 498A (and other similar sections) particularly prone to misuse in comparison to other sections.
1. Pre-nups are not legally enforceable in many cases (I am not sure about the legal position in India but I would guess that they are unenforceable on public policy grounds). 2. The wife's contribution here should be equal to the market rate for a full time live in nanny. Economically, both the wife and such a nanny perform the same functions. The Courts today harp on how the wife's contribution cannot be quantified and use that to give large awards in favor of the wife during divorce. However, there is a real world comparator to a wife (full time live in nanny) and economically there is no justification to assess the wife's contribution as any greater than the prevailing market rate for such a nanny.
Yeah, and safeguards are procedural. Under current law, the most obvious case with the most objective evidence will not result in legal action. A woman can video record her husband forcing himself on her in the most ‘objective’ sense of the term and nobody will hold the husband legally accountable. When you create legal impunity for marital rape per se, you create impunity for this case, not instances of uncertain evidence (which can be addressed through procedure and evidence). You’re saying raping your wife should not be a crime AT ALL.
Wow! And people wonder why these laws are necessary. It's because of people with mindset like yours. 1. If you don't want to give your wife any share of your property, then get a pre-nup signed. 2. Even if the wife doesn't quit any job to raise kids, she is still contributing to the family equally to her husband. Try asking the husband to do his job and raise the kids on his own, why don't you?
1. Acquittal rates in criminal cases are based on lack of admissible evidence as well as prosecutorial competence, not the actual event or veracity of the complaint. Anyone who actually practises law should be aware of that. 2. Judges' comments can only be about the case that they are dealing with. No judge would comment about misuse in a case where they actually find the person guilty. In addition, since when are those comments anything more than anecdotal? Which judge has backed up his comment with verifiable stats, even if limited to the cases that he himself has dealt with? 3. There is an equally large if not larger number of lawyers arguing exactly the opposite thing. There is a reason statistics and anecdotes merit different treatment. 4. If everyone is filing false cases, how come the accused are not countering with suits for malicious prosecution after getting acquitted? Remember that for every 498A matter filed, there are hundreds that do not see the light of the day. There is no criminal legal provision that is not susceptible to abuse.
And Justice Shankar has disagreed with that. In fact, I find Justice Shankar's arguments qua the creation of a new offence much more convincing than Justice Shakdher.
Genuine question: If extremely high acquittal rates, comments by judges in judgements about misuse, anecdotal evidence by a large number of practising lawyers etc. are not evidence of misuse, how is it possible to establish whether the law is being misused or not? What kind of evidence would satisfy you?
So the property of a husband obtained before marriage becomes 'their property'? What about property obtained during marriage by the husband through his own efforts? You seem to believe that all property should become common property after marriage regardless of which party actually contributed to obtaining the property. As for quitting your job to raise kids, quite a few women who walk off with half the property after marriage never had a job in the first place and could not have secured one either.
Once again, lack of conviction does not imply a false case. You should have learnt this much law by now. In case you haven't, then please leave this place now and spend the time studying instead.
My goodness! You are not fit to be a litigator at all if you believe that all the cases where conviction hasn't been achieved are 'false cases'. Where do people like you even come from? This would be like claiming if X has filed a false case against Y, and then after Y is acquitted he doesn't sue X successfully for malicious prosecution, then X's case couldn't have been false.
That's the thing... If she cheats, she doesn't get half "His" property. She gets half THEIR property. Because it's hers by status - not because of her conduct.
The concept is that marriage is an economic partnership, if she stayed home and he had a career, the marital income and property is half.
This is so intuitive to me as a woman. If i quit my job to raise kids, i want the law to recognise my contribution to the marriage. Why don't you get this?
Ye lijiye ek aur before you go on a "sanghi" catatonia.
Interestingly alleged serial harasser Prof Liangs ALF has a position paper of the MYTH of misuse of 498-A. I'm confident it was written post a gratifying non consensual groping overture on the virtue signalling intellectual's part. "Sips tea with irony drops"
The conviction rate is actually ~ 14% not even 20% as per 2018 NCRB data. And it's not just men who are incarcerated in the 86% remainder. Age old parents, mothers, siblings are part of it too. Which isn't to say DV or dowry doesn't exist just that there ought to be safeguards. In Delhi there's a CAW cell which is informally a reverse dowry negotiation forum for a lot of jilted Delhi brides to prevent it from going to trial.
Truth has been said though marital rape should be criminalised, you can't forget the fact these laws are misused and men should be protected by not disclosing their name. It's all over for a man even a women makes a fake sexual harrasment allegations (this doesn't mean all allegations are fake) . The grim reality is these laws are misused and you need to understand bringing equality does mean doing the right thing for both men and women.
Why is the onus on the woman to seek divorce if she's getting raped, and not on the man to seek the same if he is not getting the 'physical satisfaction'? In fact, the latter is a valid ground for divorce.
What do you mean by centuries of oppression? Women are not some gullible, saintly beings that allowed themselves to get oppressed. Patriarchy came into being only because men were the physical superior gender. Additionally, due to lack of technological advancement women had to stay at home and do the less physical work. Now atleast in the western world the playing field is equal and it is men who are the victims. The laws are extremely sexiest that only favours the women, the law can't even fathom that a woman can lie or be vindictive. For example, there are enough cases were it was found that the woman only intitated the case because she was angry or vindictive and the crime was not necessarily committed and even in these kind of scenarios they are not punished. Laws need to be more gender equal specially in India. We must understand that women are not godly beings, infact, most of the time they are more manipulative, exploitative. Example: Amber Heard, Jasleen Kaur.
My comment was not even published. Moderation seems to only permit comments agreeable to the owners. Try and encourage a reasoned debate. Censorship can stifle logic, if this is the kind of model if you chose to follow.
wow ! the judge was spot on and needs all the backing one can get ! its important that we balance the right of a husband to seek cooperation in satiating his physical needs with the right of a woman to say 'no'. So sad that people forget that the most fundamental human need i.e. mating. if you cannot get on with your husband, the ideal recourse would be to apply for a divorce before an appropriate court.
n fact, if the woman does not intend to cooperate, she should have no problem if the husband seeks asylum elsewhere. basis the consent of his wife, he may chose to do whatever pleases him.
if at all, the exception is struck down, the law would go down in annals of the history as another most abused piece of legislation like the sc/st atrocities act and domestic violence act.
Bro first, you shd read the evidence act again, just the victims' statement which by the way must satisfy the "sterling witness" does not suffice, it may only create a presumption in her favor, and where "intercourse is proven"- which means medical evidence, this is the law in most developed nations.
Secondly as rightly pointed by lawyers, the abuse and misuse of law merely is nowhere connected to and shouldn't result in deleting or non existence of that offence in the statute. These are procedural issues in the trial court.
Oh yes, it must be so hard to be a man after centuries of oppressing, degrading and exploiting women. It must be so hard to be a man in a male dominated, patriarchal society that literally puts men on a pedestal. It takes a special kind of ignorance to be so blind to the woes of one half of the population. Cannot believe these kinds of statements are coming from law students/ lawyers. Smh.
Justice Sakdher's judgment pointed out that removal of marital rape exception wouldn't create a new offence. The offence of rape is already there. It will merely remove immunity to a class of offenders (husbands) for an offence that already exists and is defined in the IPC.
It's funny how the progressive and sarcastic hot takes of the woke tribe would knock on SC doors to give a rehearing to genocide and parliamentary bomb convicts and yet the liberalism can't fathom the mere logic of safeguards within conjugal rape. Seeking a preliminary inquiry in SC/ST cases as a safeguard doesn't make one a castiest which was also abolished by this so called "evil" establishment. Justice harishankar isn't a conservative or a political stooge he's an astute person who doesn't want the travesty of domestic violence laws and 498a repeated in conjunction with yet another floodgate opened upon men in a country like India where being an undertrial and sucked of vitality IS the punishment. Nundy aur Judith butler ke "male feminist" chelon jaake conviction rate check Karo DV cases main. Less than 20% as per decade old estimates. Given the flood of "seeking sapiosexual progressive mate" + "my therapist from Amity diagnosed me as bipolar" in the world no one knows whether the jails would be enough to accomodate all the jilted ex's or spouses in them.
Ha bhai, only you understand the legal meaning of rape. Rest of us certainly can't read the judgement at all, let alone decipher the jurisprudence on how it's okay to have intercourse with a spouse without consent and against will.
Sorry for being enamoured with the trendy idea that married women deserve the same bodily autonomy as unmarried women
That’s literally his argument. An intelligible differentia exists because being raped by someone you know differs from being raped by a stranger. Lol. Hope he gets stabbed by someone he knows and then we can all agree that that wasn’t a crime.
Lol, it's a curse to be a man in 21st century. Everything favours the women and the laws are already too biased. Dowry and rape laws are basically there to harass men and as soon as we add laws for Marital rape, it will be the final nail in the coffin. In US and UK things are worse. Even if she cheats on you, she still gets half of your property. Be strong men, we must rise above this.
In most countries - Marital Law Exception was changed by the Parliament/Legislature.
In India - Judiciary sits above all.
When parliament makes a criminal law exception - that law is ultimate. If an exception is not an exception. Then laws don't have meaning.
People have said about - Courts decriminalizing gay sex - Look decriminalising an act can be done by courts. But making a new criminal offense is to be done by Parliament.
In countries where Marital Rape Law exists, Gender Neutral Laws and Due Process exists.
In India - a women's words (with no corroborative evidence/medical evidence) is enough for a rape conviction.
Abroad? Good luck with that. You need real life evidence.
Basically, with no evidence - a fighting/angry words are enough to send husband to jail for decades.
The question is whether this new offense will become another 498A (highly abused law) must be decided by the Parliament. Not courts.
If you have the values of a tenth century cave troll, then you will rightfully be criticised, and vehemently. It's not an issue which requires a lot of deep contemplation honestly - consent is paramount, and anyone who thinks otherwise is an idiot and deserves to be criticised in civilised society.
Sometimes I shudder at the thought that all these upper caste stale men control so many aspects of our lives !
Except it wasn't a dissenting judgement. It was a split verdict that is reflective of how regressive our thought process still is. Some of the reasoning in the judgement was not well founded and people rightfully criticized it.
This split decision was expected. One of the judges actually mentioned verbally in the course of proceedings that many high courts were openly commenting that this is all a facade; that things will end up in the SC after a split verdict; judges are merely engaging in a drama.
At the SC, depending on the CJI and then the Bench (and of course the political "mahoul") the SC is likely going to lob this off to the Executive/Legislature. If there is softening or weakening of the ruling establishment, SC may give voice to its "preferences" through oral observations or even a powerful dissent (because the SC will do a split and bump it to a higher bench and docket politics will continue).
There are enough examples. Not too hard to guess. And this has played out before as well.
After the recent judgment on Marital Rape by Delhi HC, the wannabe cool gang has started to trash the image of Justice Hari Shankar by putting out small excerpts on social media. Without actually understanding the legal meaning of "rape" and it's consequences, simply advocating for marital rape is insane. Dissenting judgment is necessary in order to develop the legal jurisprudence around the issue.
2. Yes, these comments are anecdotal. But it is near impossible to empirically verify whether a case is false/frivolous. (short of reading every judgement and determining the reason for acquittal but even there you would argue that the judge got it wrong or it was due to prosecutorial incompetence). In the absence of a method to empirically verify such claims, we must depend on anecdotal evidence and other indirect indicators (number of compromises/acquittal rates). Otherwise you will have created a virtually unfalsifiable premise (that these laws are not being misused). I think, in the absence of a viable method to empirically verify these claims, the anecdotal observations of judges who deal with a large number of such cases cannot be dismissed outright.
3. I am a little unclear on how a lawyer can know that a law is not been misused. I am assuming that means that they have personally never come across cases of misuse. However, that does not mean that misuse is not taking place nor does it take away from the comments of those lawyers who say they have witnessed misuse.
4. Anybody with even a passing experience with the Indian civil justice system would know that resorting to the Indian civil justice system is like tilting at windmills. In all likelihood, you will end up paying more than any damages you might (eventually) receive.
Yes, all laws can be misused. But all laws cannot be misused to the same degree. The degree of misuse is the metric we should adopt, not the binary fact whether a law can be misused or not. To take an example, it is difficult to misuse s 302 IPC. You cannot accuse somebody of murder without answering questions such as who has been murdered? How do you know the accused committed the murder? Where is the body? What were you doing at the murder spot? etc. For s 498A, since the actions take place in the privacy of the home (mostly), you can accuse someone only on the strength of your word without requiring any physical or external evidence. Furthermore, the judiciary has allowed women to file 498A cases a long time after the alleged incidents took place without having to explain the delay. All these factors make s 498A (and other similar sections) particularly prone to misuse in comparison to other sections.
2. The wife's contribution here should be equal to the market rate for a full time live in nanny. Economically, both the wife and such a nanny perform the same functions. The Courts today harp on how the wife's contribution cannot be quantified and use that to give large awards in favor of the wife during divorce. However, there is a real world comparator to a wife (full time live in nanny) and economically there is no justification to assess the wife's contribution as any greater than the prevailing market rate for such a nanny.
1. If you don't want to give your wife any share of your property, then get a pre-nup signed.
2. Even if the wife doesn't quit any job to raise kids, she is still contributing to the family equally to her husband. Try asking the husband to do his job and raise the kids on his own, why don't you?
2. Judges' comments can only be about the case that they are dealing with. No judge would comment about misuse in a case where they actually find the person guilty. In addition, since when are those comments anything more than anecdotal? Which judge has backed up his comment with verifiable stats, even if limited to the cases that he himself has dealt with?
3. There is an equally large if not larger number of lawyers arguing exactly the opposite thing. There is a reason statistics and anecdotes merit different treatment.
4. If everyone is filing false cases, how come the accused are not countering with suits for malicious prosecution after getting acquitted?
Remember that for every 498A matter filed, there are hundreds that do not see the light of the day. There is no criminal legal provision that is not susceptible to abuse.
The concept is that marriage is an economic partnership, if she stayed home and he had a career, the marital income and property is half.
This is so intuitive to me as a woman. If i quit my job to raise kids, i want the law to recognise my contribution to the marriage. Why don't you get this?
Ye lijiye ek aur before you go on a "sanghi" catatonia.
Interestingly alleged serial harasser Prof Liangs ALF has a position paper of the MYTH of misuse of 498-A. I'm confident it was written post a gratifying non consensual groping overture on the virtue signalling intellectual's part. "Sips tea with irony drops"
-Impecunious 1st gen Delhi litigator
https://www.google.com/amp/s/factly.in/the-conviction-rate-of-sec-498a-cases-falls-as-conviction-rate-of-ipc-crimes-increases/amp/
n fact, if the woman does not intend to cooperate, she should have no problem if the husband seeks asylum elsewhere. basis the consent of his wife, he may chose to do whatever pleases him.
if at all, the exception is struck down, the law would go down in annals of the history as another most abused piece of legislation like the sc/st atrocities act and domestic violence act.
good luck, indian men !
https://en.wikipedia.org/wiki/Common_law_offence
Secondly as rightly pointed by lawyers, the abuse and misuse of law merely is nowhere connected to and shouldn't result in deleting or non existence of that offence in the statute. These are procedural issues in the trial court.
many people havent even read the judgment
That’s literally his argument. An intelligible differentia exists because being raped by someone you know differs from being raped by a stranger. Lol. Hope he gets stabbed by someone he knows and then we can all agree that that wasn’t a crime.
In US and UK things are worse. Even if she cheats on you, she still gets half of your property. Be strong men, we must rise above this.
In most countries - Marital Law Exception was changed by the Parliament/Legislature.
In India - Judiciary sits above all.
When parliament makes a criminal law exception - that law is ultimate. If an exception is not an exception. Then laws don't have meaning.
People have said about - Courts decriminalizing gay sex -
Look decriminalising an act can be done by courts. But making a new criminal offense is to be done by Parliament.
In countries where Marital Rape Law exists, Gender Neutral Laws and Due Process exists.
In India - a women's words (with no corroborative evidence/medical evidence) is enough for a rape conviction.
Abroad? Good luck with that. You need real life evidence.
Basically, with no evidence - a fighting/angry words are enough to send husband to jail for decades.
The question is whether this new offense will become another 498A (highly abused law) must be decided by the Parliament. Not courts.
Sometimes I shudder at the thought that all these upper caste stale men control so many aspects of our lives !
At the SC, depending on the CJI and then the Bench (and of course the political "mahoul") the SC is likely going to lob this off to the Executive/Legislature. If there is softening or weakening of the ruling establishment, SC may give voice to its "preferences" through oral observations or even a powerful dissent (because the SC will do a split and bump it to a higher bench and docket politics will continue).
There are enough examples. Not too hard to guess. And this has played out before as well.