Misuse of Section-498A of Indian Penal Code, 1860

INTRODUCTION

With the increasing cases of dowry deaths in the 1980s, the need to combat this menace was felt and Section-498A was inserted in the Indian Penal code in 1983. This section was added to the existing penal code with a view to protecting women from being harassed by their husbands or their relatives. This section provides a remedy to the women who have been subjected to cruelty by their husbands or relatives. The term ‘cruelty’ has been construed in a wider sense and includes both mental and physical acts of harassment. The offense under this section is a cognizable, non-bailable offense and the punishment provided is for a term of 3 years and fine. There are certain ingredients of this section which have to be fulfilled such as any act which causes grave injury to the women or drives her to commit suicide, cruelty with a view to coerce the women or her relatives to meet unlawful demands, the acts of cruelty against the women should be committed within the first 7 years of her marriage, etc.

The National Crime Records Bureau (NCRB) states that in 2015, as many as 7,634 women died in the country due to dowry harassment. Either they were burnt alive or forced to commit suicide over dowry demand.[1]

Section 498A

Section 498A provides legislative protection to women being subjected to cruelty by her husband or his relatives with a view of fulfilling their dowry demands. In the absence of this section, such instances were dealt with by provisions relating to hurt, Grievous hurt, etc.

Dowry deaths were prevalent in the 1980s, section 498A was added in order to tackle this menace in the society. Many organizations came together and pressurized the legislature to create a law the specifically addresses this issue and provides protection to women who are being subjected to such harassment. Dowry death basically is when a woman is murdered by her in-laws on the non-fulfillment of their dowry demands or when the woman commits suicide on the instigation by her in-laws. These cases where a woman commits suicide or is murder in pursuance of dowry demands are a very small fraction of cruelty. Cruelty under section 498A has a very wide ambit and includes both physical and mental harassment by the husband or relatives of the husband. This section not only recognizes cases of dowry deaths but also cases of cruelty against women by their husbands or relatives. This section is the only section in the Indian penal code that recognizes domestic violence against women.

Section 498A of the Indian penal code,1860 reads as follows-

Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation-For the purpose of this section, “cruelty” means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

On a bare reading of the section, the following ingredients can be drawn out-

1) The woman must be married,

2) The woman must be subjected to cruelty by the husband or his relatives,

3) The harassment of the woman should be with a view to coerce her or any of her relatives to meet the unlawful demand (Dowry demand).

A complaint can be filed regarding the offense under this section within a period of 3 years which is known as the limitation period.

The ambit of the word ‘cruelty’ in this section has been widened by various judicial decisions.

In Arun Vyas v. Anita Vyas (1999), the supreme court held that the offense of cruelty is a continuing offense and on each occasion where the woman is subjected to the cruelty she would have a new starting period of limitation to file the complaint.

In the case of Ramesh Dalaji Godad v. State of Gujrat (2003), the Supreme Court held that to prove that cruelty was caused under Explanation a) of S.498A IPC it is not important to show or put forth that the woman was beaten up- abusing her verbally, denying her conjugal rights or even not speaking to her properly would fall into the ambit of mental cruelty.

It has been ruled by the Supreme court in a recent judgment that it is not mandatory that the complaint under this section has to be filed by the woman herself, but any relative of the woman can file a complaint.

In the case of Rashmi Chopra v. The state of Uttar Pradesh and Anr. (2019) , the court overruled the High court judgment in which the High court contended that a complaint filed by the father of the woman subjected to cruelty is not maintainable and said that there is nothing in this section that indicates that when a woman is subjected to cruelty, the complaint has to be necessarily filed by her.

In the case of Manju Ram Kalita v. The State of Assam (2009), the court held that ‘cruelty’ for the purpose of section 498A is to be established in the context of section 498A as it may be different from other statutory provisions. It should be determined by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide. It is to be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint.

Section 113-B of the Indian Evidence Act,1872: Presumption as to Dowry death

Section 113-B was inserted in the Indian Evidence Act,1872 at the same time when section 498A was inserted in the Indian Penal code, 1860. This section establishes the period of operation in cases of dowry death which is 7 years. Hence, a presumption arises when a woman commits suicide within 7 years of her marriage.

MISUSE OF SECTION 498A, IPC

A common argument by the police, civil society, politicians and the judges of High Courts and Supreme Courts have been that Section 498A has been vehemently misused by some woman. The allegation of misuse is much towards section 498A because of many frivolous cases that are filed by women to settle their personal vendetta against the husband and his relatives.

The Malimath committee’s report on reforms of the Criminal Justice System states the harsh reality is that this Section is misused.

The harsh law, far from helping the genuine victimized women, has become a source of blackmail and harassment of husbands and others. Once a complaint (FIR) is lodged with the Police under s.498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation. When the members of a family are arrested and sent to jail, with no immediate prospect of bail, the chances of amicable reconciliation or salvaging the marriage, will be lost once and for all. The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest by the Police will thus be counterproductive. The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family. Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by overzealous/callous actions on the part of the Police by taking advantage of the harsh provisions of s.498A of IPC together with its related provisions in CrPC. It is pointed out that the string is not in s.498A as such but in the provisions of CrPC making the offense non-compoundable and nonbailable. [2]

This argument can be supported by the various judgments

In the case of Preeti Gupta v. State of Jharkhand (2010), the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. The Court said: “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints”.

In the case of Sushil Kumar Sharma v. UOI (2005), the Supreme Court said that in many instances, the complaint filed under section 498A was made with an oblique motive to wreck the personal vendetta. “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”. It was also observed that “by misuse of the provision, a new Legal Terrorism can be unleashed”.

In the case of Arnesh Kumar v. The State of Bihar (2014), the Supreme Court observed that the fact that section 498A, IPC is a cognizable and non-bailable offense, it is more often than not is used as a weapon rather than shield by disgruntled wives. It results in harassing the husband and his relatives by getting them arrested under this Section and it is more disturbing to see bedridden grandfathers and grandmothers being arrested without a prima facie case.

In some cases, guidelines were given by the High courts for the regulation of power to arrest and taking necessary steps to initiate conciliatory effort at the earliest point of time.

In the case of Chander Bhan v. State, the court observed that “there is an iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims”. The following directions were given to the police authorities:

1) “FIR should not be registered in a routine manner.

2) The endeavor of the police should be to scrutinize complaints carefully and then register FIR.

3) No case under section 498A/ 406 IPC should be registered without the prior approval of DCP/Addl. DCP.

4) Before the registration of FIR, all the possible efforts should be made for reconciliation and in case it is found that there is no possibility of settlement, then, necessary steps should, in the first instance, be taken to ensure the return of stridhan and dowry articles to the complainant.

5) The arrest of the main accused is made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.

6) In the case of collateral accused such as in-laws, prior approval of DCP should be there on the file”.

In the case of Rajesh Kumar & Ors v. State of Uttar Pradesh (2017), the Supreme Court laid down comprehensive directions to prevent the misuse of the provision of section 498A, IPC after carefully referring cases such as Sushil Kumar Sharma v. Union of India, Preeti Gupta v. the State of Jharkhand, Ramgopal v. State of Madhya Pradesh and Savitri Devi v. Ramesh Chand and reports such as 243rd Law Commission Report and 140th report of the Rajya Sabha Committee.

The directions laid down by the Supreme Court are as follows:

Family Welfare Committee

• The constitution of one or more Family Welfare Committees in every district which shall preferably consist of three members. Such a constitution is to be made by the District Legal Services Authorities.
• The members may be volunteers/social workers/retired persons/wives of working officers/other citizens or anyone who may be found suitable and willing.
• Frequent review of the constitution and working of such committees in addition to the yearly review which is a minimum requirement. Such a review shall be done by the District and Session Judge of the district who is also ex-officio chairman of the District Legal Services Authority.
• The Committee members will not be called as witnesses.
• Every complaint has to be referred to the Committee and the committee has to submit the report to the authority who referred to such complaint. The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
• The work of the committee includes looking into every complaint under Section 498A received by the police or the Magistrate.
• No arrest should normally be effected until the report of the committee is received.

Investigating Officer

• Investigating Officers to be designated within a month from the delivery of judgment to investigate the complaints under Section 498A and other connected offenses.
• Such designated officers may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from the date of delivery of the judgment.

Settlement

• In cases where a settlement is reached, the District and the Sessions Judge to dispose of the proceedings. Such disposal also includes the closing of the criminal case if the dispute primarily relates to matrimonial discord. The District and Sessions Judge may also nominate any other senior Judicial Officer to do the same.

Bail Matters

• Cases where a bail application is filed with at least one clear day’s notice to the Public Prosecutor or the complainant, the same may be decided on the same day.
• Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife or minor children can otherwise be protected.
• Further, in dealing with bail matters, certain things such as individual roles, the prima facie truth of the allegations, the requirement of further arrest or custody and interest of justice must be carefully weighed.

Issuance of Red Corner Notice

• In respect of persons ordinarily residing out of India, the impounding of passports or issuance of Red Corner Notice should not be a routine.

Clubbing of cases

• It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted.

Personal appearance

• Personal appearance of all family members and particularly outstation members may not be required.
• Further, the trial court ought to grant exemption from the personal appearance or permit appearance by video conferencing without adversely affecting the progress of the trial.

However, the Court further said that these directions will not apply to the offenses involving tangible physical injuries or death. The Court also said that the National Legal Services Authority may submit a report after a trial of 6 months of such arrangement and latest by March 31, 2018, for any change in the directions issued or for any further directions.

CONCLUSION

Section 498A of the Indian penal code was added with a view to providing legal protection to women from domestic violence. But since the last 2 decades, it has been noted that many cases filed under this section are frivolous. Many cases have come before the courts where the husband and relative were innocent but due to the harsh provision, they were caught up. Looking at the various arguments it can be seen that today this section is immensely used as a weapon by the wives to threaten their husbands and relatives. To make this section more effective it is important to curb its misuse by women against their innocent husbands and relatives. This can be done by making this provision non-cognizable. Following the guidelines issued by the High Courts and the Supreme Court regarding the arrest, the police should first make a preliminary investigation before arresting the accused on the complaint. Fine should be imposed on women who misuse this section. This will create a deterrent effect on the misuse of this section. [3]

[The author Abhishek Sunny is a 4th year Ba.LLB students from Vivekananda Institute of Professional Studies, GGSIPU, New Delhi, India]

1. https://www.indiatoday.in/mail-today/story/dowry-deaths-national-crime-records-bureau-conviction-rate-972874-2017-04-22
2. http://lawcommissionofindia.nic.in/reports/report243.pdf (page-13)
3. https://blog.ipleaders.in/understand-section-498a-domestic-violence/

Books referred-

K.D.Gaur, Textbook on Indian Penal Code

Ratanlal Dhiraj Lal, The Indian penal code

Bare act Indian penal code