Monday, August 9, 2010

New divorce law needs watertight safeguards: Delhi HC

New divorce law needs watertight safeguards: Delhi HC

New Delhi, Aug 9 (PTI)

Irretrievable breakdown of marriage should be brought within the folds of law as a ground for divorce with safeguards and message that it (divorce) is not a ''cakewalk'', the Delhi High Court has said.

The High Court said the legislatures in their wisdom can amend the Hindu Marriage Act to bring in its fold the irretrievable breakdown of marriage as a ground for divorce as recommended by the Law Commission.
However, it is expected that watertight safeguards are introduced so as not to send the message that divorce has now became a cakewalk, the court said.
"The ground of irretrievable breakdown of marriage cannot be resorted as a straight jacket formula leading to the institution of marriage becoming so fragile that the wrong- doer abuses it for his selfish ends leaving the other party in the lurch," Justice Kailash Gambhir said in a recent judgement.
Suggesting that there should be a minimum period before such ground can be invoked, the judge said "divorce on the ground of irretrievable breakdown of marriage might be contrary to common perception and the idea of marriage being a holy union for seven births...".
The court said that while invoking the ground of irretrievable breakdown of marriage for divorce by the husband, "the grant of divorce should be subject to the provision of adequate financial provision for wife".
It said there should be adequate provision for maintenance, education and upbringing of children whose custody  should be decided at the very stage of divorce.
The court's order came while dismissing a petition filed by Subhash Chandra Sharma challenging the lower court's March 2003 order dismissing his plea for divorce from his wife on the ground of cruelty and desertion.
The court rejected Sharma's argument that he had tried several times to resolve the differences with his wife but failed and at this stage the court can grant divorce on the ground of irretrievable breakdown of the marriage.
"The High Court in the exercise of its inherent powers cannot grant divorce on the ground of irretrievable breakdown of the marriage as it is not yet a ground of divorce under the Hindu Marriage Act," said the court.

People in live-in can't complain of infidelity: Delhi HC

People in live-in can't complain of infidelity: HC

New Delhi: A partner in a live-in relationship can walk out of it without any legal consequence and people cannot complain of infidelity of partners if one of them ditches the other, the Delhi high Court said today.
"Live-in relationship is a walk-in and walk-out relationship. There are no strings attached to this relationship nor does this relationship creates any legal bond between the parties," Justice S N Dhingra said while quashing criminal proceedings initiated by a woman against her live-in partner after he refused to marry her.

"People who chose to have live-in relationship cannot complain of infidelity or immorality as live-in relationships are also known to have been between a married man and unmarried woman or between married woman and unmarried man," the court said.
The court passed the order on a petition filed by a London-based lawyer, against whom a criminal complaint was filed by a lady with whom he had live-in relationship, seeking to quash proceeding against him.
The petitioner, Alok Kumar, submitted that he refused to marry the woman as his parents were against the relationship.

Granting relief to Kumar, the court said the FIR should be quashed to prevent misuse of criminal justice system for personal vengeance of a partner of live-in relationship.
"It is a contract of living together which is renewed everyday by the parties and can be terminated by either of the parties without consent of the other party and one party can walk out at will at any time," the court said
"Those who do not want to enter into this kind of relationship of walk-in and walk-out, they enter into a relationship of marriage where the bond between the parties has legal implications and obligations and cannot be broken by either party at will," the court said.

A letter for child rights

A letter for child rights

Please find here below the letter issued by MISSION JUSTICE to concerned departments. Please take out print of the same and put a covering letter stating that you support the cause raised by us. I hope that atleast 10000 letters will reach the government and change will happen. I know an individual cannot make a change but atleast you can just send a letter for ensuring that your concerns are registered with concerned persons. HOPE that you will ensure that the voice of the common man like you and me is recognised.
9th August,2010
Hon’ble Smt. Pratibha Patil,
President of India,
Rashtrapati Bhawan, New Delhi – 110 004
Hon’ble Shri Mohammad Hamid Ansari
Vice President of India,
Room No. 208, Parliament House Annexure,
New Delhi – 110 001
Hon’ble Dr. Manmohan Singh,
Prime Minister of India,
Room NO. 152, South Block,
New Delhi – 110 001
Hon’ble Mr. M. Veerappa Moily
Ministry of Law and Justice,
Room No. 402A,
Wing Shastri B,
New Delhi – 110 001
Hon’ble Shri Kapil Sibal
Ministry for Human Resource Development,
Room No. 301, C wing, Shastri Bhavan,
New Delhi – 110 001
Hon’ble Smt. Krishna Tirath
Ministry of Women and Child Right Development
Shastri Bhavan,
New Delhi – 110 001
Hon’ble Mr. Mukul Wasnik,
Ministry of Social Justice & Empowerment
Room No. 250, A wing, Shastri Bhawan,
New Delhi – 110 001
Respected Madam / Sir,

This is to bring to your notice, that in 1992, more particularly on 19.11.1992, we the Nation have ratified articles and resolution passed and convention on the Rights of the Child more particularly adopted by General Assembly of the United Nations bearing Ref. No. A/RES/44/25 of 20-11-1989. Thereafter in 2005 we have passed an Act, The Commission for protection of Child Rights Act 2005, appointing child right commission to look into the matter relating to child rights.

Under the said convention all the signatory Nations have assured international community that they shall be implementing the articles of the said convention and shall play role in improving condition of the children of their Nation. Under the convention members / signatory state parties were bound to implement the rights of the children and for the purpose of convenience we are not reproducing the same but putting the same by way of attachment to this letter. Attached herewith is the copy of the said Resolution of the Child Rights Convention.

However, it has been seen that apart from appointment of commission to look into the said rights, we have done nothing to recognize or implement the said rights as guaranteed by us before international community. The entire articles have been attached herewith but certain facts needs to be highlighted which I am high lighting point by point: -

1. It has been seen that divorce has become very predominant in this Nation. Under threat of penal consequences the child is handed to one party without access to the other and consent terms is filed thereof without considering the rights of the child. The Courts of law without application of mind and without going into details of the custody have been endorsing these Consent Terms making them officio functus. It is only the will, fancies and desire of the parents which are considered and the fundamental rights of the child is never looked into by the Hon’ble Courts of law. The Court rarely looks into the right of the child to be brought up by the best parent and with a right to have access to the other parent and other family members. No parent has a right to renounce his or her duty in favour of the spouse and if done, the same is illegal and against the rights of the child.

2. The child of a very tender age does not know his/her rights and cannot decide is his/her welfare. It is duty of the Courts/ Legislature/ Parent and society to protect rights of the child, as well as to look into the welfare of the child and if need be the same has to be reviewed from time to time. Whenever a right is granted, a corresponding and equal responsibility is caste upon the state and also the judiciary to protect the same. The failure to do so by the state amounts to non fulfillment of requirement of a welfare state and non execution of the same by Courts amount to non adherence of duty cast upon a judge. Thus the state and judge becomes guilty of non performance of duty towards the child.

3. When the custody is transferred upon divorce no merits about the welfare or rights of child is taken into consideration and/or reviewed and/or evaluated by Courts of law and it is only the dictate of the parents which is enforced upon the child. If welfare of the child is with the particular spouse, then it is right of child to have welfare enforced through the said parent and the parent has no right to transfer the said duty cast upon him/her to any other person including the other divorcee spouse. The Court must review whether the custody has been transferred out of negligence, neglect or by threat and/or force. However, the same is never done. This fact can easily be verified by undergoing various divorce decree passed by the Court situated in different parts of this country, as the divorce decree passed therein generally does not provide even a single reason as to why the child should be given in the custody of the particular parent. Thus the Courts have avoided Justice and are only adjudicating upon matters.

4. The child has a right to know about not only parents but also the extended family from both parents and has right to love, affection and care of the extended family, more particularly grand parents. However, the same right is brutally violated even before the Courts of law and also at the hands of the police and law mechanism. This is in violation of Article 5 of the said convention.

5. Article 3 of the said convention cast the responsibility of the state to ensure that the child gets such protection and care as is necessary for his or her well being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. However, Legislature has failed to pass any act or establish any procedure or Courts for such matters. If a letter is recorded, the Child Right Commission will direct the same to be taken up by the parent ( as per convention there is no need of parent only to be concerned about the child and it is the duty of the state) u/s 6 of Hindu Minority and Guardianship Act. Thus the state fails to discharge its function as laid down in the articles.

6. Article 8 ensures that state shall respect the rights of the child to preserve its identity including nationality, name and family relations as recognized by law without lawful interference. However, today when the custody is transferred to the mother under gender biased laws like 498A and Domestic Violence under the threat of dire penal consequences, identity of that child is hijacked and child is deprived of the name and recognition of father. We have got substantial details of such children and it is prima facie evident that identity, names are being changed illegally and even the school and law in force aid such hijacking of the identity, which might lead the child to identity crises at a later stage in the life and same is also against the welfare of the child. Even the family Courts put very less or no weight to this aspect. When such hijacking of identity and identity crises is being created by one parent, the said parent is acting against the welfare of the child and in such cases the custody has to be transferred to the other parent unless it is proved that the same is against the interest of the child. Even if the welfare is equal then also the custody must be transferred from the parent who acts against the welfare of the child by hiding from the child the true identity and also depriving the child of the other parent and extended family as wrongdoer parent is guilty of murder / assault on the original identity of the child and violation of fundamental rights to life of the child and the said parent must be treated accordingly in law. It is today nothing but “legal terrorism” and apart from the spouse it is the child who is the victim of this terrorism and is an act of cruelty upon the child.

7. Article 9 states that parties must respect the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with both the parents on regular basis. However, in practical the same is never maintained and the Courts take their own sweet time and do not understand gravity of situation and at times show least interest as the same is not found in the statutes in operation in the Nation and International Law is beyond the understanding of Law and Judiciary of many occasion. Infact the reality is that if a judge avoids granting access to one of the parents and lingers the issue then he/she is even guilty of violation of rights of the child and/or aiding the same. Thus, the child goes unheard for years together. Unless a precedent is set holding a judge guilty (may not be punished but atleast must be put on remarks), the Judiciary will not expedite these matters. We wish that higher Judiciary suo moto takes up this issue and takes this stand in a very quick manner.

8. Unless precedents with regard to violation of rights of the child against the violating parent and judge (who keeps such matters pending and fail to decide) is set, the child of this nation cannot be secure. Unless the future is secure all developments and growth is meaningless as it shows incapability of this Nation to honour international commitments, to act as a welfare state and also to protect the fundamental rights of the speechless children of the Nation. We expect that atleast some judge shall take suo moto action and shall dispose it as a landmark precedent with regard to rights and also the time frame in which it is decided.

With this we request you to look into this aspect of the voice of voiceless i.e. children, who are the future of this Nation and necessary measures / steps be taken with regard to protecting the interest of these children. We call upon the state to implement the said rights and also other rights by codifying all the children laws in one enactment of “FAMILY, WOMEN AND CHILD PROTECTION ACT” and also transfer all criminal and civil provision in one single piece of legislation with regard to the family and child.

We the NGO have legal resources and sound people, who understand the gravity of situation and are willing to assist Government in formulating right policy with regard to the child rights and extend our full cooperation. We look forward to the esteemed Judicial members to take up such causes suo moto as stated earlier and establish the rights immediately and we assure them to provide data or an example case immediately.

Thanking you in anticipation.
Yours truly,
Copy to:
1. Chief Justice of India
2. Chief Justice Bombay High Court
3. Chief Justice Calcutta High Court
4. Chief Justice Madras High Court
5. Chief Justice Delhi High Court
6. Smt. Sonia Rajiv Gandhi
Media, Other NGO, Public
Encl : A/A


drafted by Siddharth Murarka

CHILD CUSTODY LAWS-Fathers denied child custody-demand SHARED PARENTING - p7 news

PART 1/2 - CHILD CUSTODY LAWS-Fathers denied child custody-demand SHARED PARENTING - p7 news 8aug10





PART 2/2 - CHILD CUSTODY LAWS-Fathers denied child custody-demand SHARED PARENTING - p7 news 8aug10


Sec 498a of the Indian Penal Code – Weapon in the Hands of Vamps

Sec 498a of the Indian Penal Code – Weapon in the Hands of Vamps


Objective: The Indian Penal Code, 1860 was amended in the year 1983 to include the provisions of Section 498 A which deals with the punishment of the husband and his relatives if a married women is subjected to cruelty which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. The offence is cognizable, non-bailable and non-compoundable. Hence once a complaint is lodged on the above mentioned grounds the accused has a lot to bear before he can be given a clean chit. With the rise in modernisation, education, financial security and the new found independence the radical feminist has made 498A a weapon in her hands. Many a hapless husbands and in laws have become victims of their vengeful daughter-in-laws. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage. In most cases 498a complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. My aim is to study the cause and effect relationship that this section brought about in the matrimonial sphere of the Indian society.

Scope : The scope of my article is to cover Section 498a of the IPC relating to  criminal law in which the wife and her family can charge any or all of the husband’s family of physical or mental cruelty. This law is unique to India as it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband. Typically, the charged family members in these cases include:

• Mostly women of all ages (unmarried, married and pregnant sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)

• Other maternal and paternal relatives and even young children in the family.

The Report will deal with the ingredients of the section and what must be essentially proved to convict an accused under this section. I will also deal with the provisions relating to the cognisable and non-bailable provisions of this section. The non-bailability provision is grossly misused by unscrupulous wives who file false complaints against unsuspecting husbands and her in laws. The police in such cases register and FIR and forward the chargesheet without proper investigation in most of the cases. A lot of men have had their lives ruined because of this drastic section.

Methodology :

I have used the doctrinal method of legal research for this report. Thus it required an extensive study of the provision along with the relevant act of the Evidence Act and the Criminal Procedure Code. Reference to case laws have been made by going through case laws in relation to this provision.

Main Text :

The Supreme Court of India says, “But by misuse of the provision (IPC 498a – Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended

to be used a shield and not an assassin’s weapon”. Laws originally meant to protect from the dowry menace are being misused by urban ill-intentioned, unscrupulous women and their families as “an assassin’s weapon” . There is a rapidly escalating social evil in Indian families, namely the misuse of the Dowry and Cruelty laws (Criminal Laws), which were originally meant to act “as a shield” for the protection of harassed women. Nowadays, the educated urban Indian women have turned the

tables. They have discovered several loopholes in the existing Indian judicial system and are using the dowry laws to harass all or most of the husband’s family that includes mothers, sisters, sisters-in-law, elderly grandparents, disabled individuals and even very young children.

We are not talking about the dowry deaths or physical injury cases but about dowry harassment cases that require no evidence and can be filed just based on a single-sentence complaint by the wife. With an approximately 60,000 such accusations per year, about 200,000 people are directly affected by these false accusations. The number of such cases has increased by about 100% in the last 10 years and by more than 15% in just the last two years. This poorly formulated law is inviting unscrupulous people to file false cases, and causing the imprisonment of innocent people without investigation. These innocent people undergo stigmatization and hardship even before a trial in the court of law which leads to immense emotional, physical and financial trauma. Unable to bear the harassment, the loss of reputation and the social consequences of being implicated in a false criminal case, some of these falsely accused husbands and their elderly parents are committing suicide. Despite the recommendations of the Supreme Court of India and Justice Malimath Committee that the legislative arm should modify the laws such that the innocent are protected, the suggested amendments to the law have been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. For every complaint filed by a woman, there are generally twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.

Let us look into the general text of the section it reads 498A. 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 punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.-For the purposes 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 the 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.

IPC-498a is

• Cognizable – The accused can be arrested and jailed without warrant or investigation

• Non-Compoundable – The complaint cannot be withdrawn by the petitioner

• Non-Bailable – The accused must appear in the court to request bail

The accused are presumed guilty, and for all practical purposes, the burden is on the accused to prove innocence in the courts. The FIR is typically an imaginary story, running into many pages, with absolutely no supporting evidence. It typically takes about 7 to 8 years for the accused to prove their innocence in the courts. Due to the overwhelmingly large number of false cases, the conviction rate in these cases is close to zero. The delay in the provision of justice amounts to the denial of justice. There is no penalty for the misuse of IPC 498a, and after acquittal of the accused, the courts are reluctant to entertain defamation and perjury cases against the falsely testifying witnesses.

We must look into why people misuse the provisions of Sec 498A of the IPC.

• Legal Extortion – Get-rich-quick-scheme to extort large amounts of money

• Prior Relationship – Wife has a prior relationship, and cannot get out of it. She marries to satisfy her parents, and then misuses the 498a law in order to obtain a divorce.

• Adultery – Women who indulge in adultery use 498a as a bargaining tool

• Domination – Wife wants the husband to abandon his parents and siblings, and have total control over his finances and social behaviour

• Custody – Deny the father and his family access to their child(ren).

• Fraudulent Marriages – in which the bride (and her family) hides her education level or mental health; and when is justifiably asked to release the person who has gone into marriage without knowing the full facts; she files a false 498a case.

The kind of women who are likely to file false 498A cases have certain typical traits :

• Who is suffering from pre-existing mental problems such as Borderline Personality Disorder, Bipolar Disorder, Schizophrenia, etc.,

• Whose family is nouveau riche and likes ostentatious display of wealth, possessions as well as social and political connections

• Who is used to living beyond her means

• Whose father is hen-pecked and whose mother dominates all family situations

• Who listens to and acts in accordance with her parents’ wishes at all times, exhibiting a lack of individuality and discretion in dealing with her married life

• Who pushes for quick involvement during the establishment of a marriage alliance, pressing the man and his family for an instantaneous commitment

• Who is excessively possessive and suspicious

• Who is self-centred and feels the need to dominate the relationship and every aspect of decision making

• Who tries to alienate her husband from his family and friends

• Who is hypersensitive and therefore easily insulted

• Who indulges in verbal abuse and constant criticism of her husband and in-laws

• Who uses blackmail (emotional or otherwise) and threats to get her unreasonable demands fulfilled by her husband and in-laws

• Who walks out on her husband following an argument and stays away from her husband indefinitely without any effort towards reconciliation

Today every husband is labelled a torturer and the mother-in-law a demon. A fair amount of blame for this rests on the media which, with a view to sensationalize the ‘story’ blows the news of ‘harassment’ or ‘torture’ of married women out of proportions, without properly investigating the veracity of the story. The news of alleged ‘torture, harassment, and misappropriation of stridhan’ of wife by ‘A’ was published prominently by a leading city newspaper, accusing several members of his family torturing her. The concerned reporter never bothered to verify the allegations with the husband of ‘A’. As the news carried his full name and those of his relatives, designation and the organization where he was working, it caused irreparable damage to the entire family’s image and hard-earned reputation in almost every circle they moved. Queries started pouring in following this news. Depressed as he was, ‘A’ immediately registered his protest with the editor. The newspaper did publish his rejoinder, but after a long time gap and without any apology for publishing an unverified report. One wonders where this growing tendency of misusing the useful laws by unscrupulous parties is leading the society. Harassing and victimizing women for dowry is condemnable. We all have sisters, and daughters, and undoubtedly they require legal protection from all forms of harassment and cruelty but what if the legal loopholes of this very law are misused by women to harass their husbands and in-laws?

The Apex Court has also commented on the possible misuse of this provision in a number of cases. Right to life and liberty of every citizen is guaranteed under Article 21 of the Constitution of India. But this life and liberty can be curtailed if they hinder others’ life and liberty. For that due process of law is necessary. While civil law determines what is right and what is wrong, the criminal law imposes penalty to deter.

Section 498A was inserted in the Indian Penal Code in 1984 with a view to protect women against dowry harassment. From the very beginning of this law there has been reaction from the society including legal luminaries that this law could be misused and its effects on the society would be deleterious. In their judicial observations and remarks, the courts have expressed deep anguish over this law. Here are some recent judicial observations.

Way back in 1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana, (1990)2 Rec Cri R 243 case as:

“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”

In Kanaraj vs. State of Punjab, 2000 CriLJ 2993 the apex court observed as:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

Karnataka High Court, in the case of State Vs. Srikanth, 2002 CriLJ 3605 observed as:

“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

Supreme Court, In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case, observed as:

“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

Delhi high Court, in Savitri Devi vs. Ramesh Chand, 2003 CriLJ 2759 case observed as:

“These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”

Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others, 2003 CriLJ 3394 case observed as:

“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

Jharkhand High Court in Arjun Ram Vs. State of Jharkhand and another, 2004 CriLJ 2989 case observed as:

“In the instant case, it appears that that the criminal case has been filed, which is manifestly intended with mala fide and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

In this connection reliance may be placed upon AIR 1992 SC 604: (1992CriLJ 527)”

Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 266 observed as:

“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. 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. Till then the Courts have to take care of the situation within the existing frame work.  

But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”

Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:

“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.

16.4.5 This section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together.

(118) The Code may be suitably amended to make the offence under Section 498 A of the I.P.Code, bailable and compoundable.”

These are only a few observations of their lordships from scores which conclusively prove that:

1. A woman (not necessarily every woman) can be much more cruel than a man (not necessarily every man).

2. While intending to protect the life of a person, s.498A of IPC jeopardizes around a dozen innocent persons whether they are children or old. Hence, the provision is discriminatory and in violation to the Article 14 of the Constitution of India.

3. Instead of restoring equilibrium, the provision aggravates disequilibria. Hence, it is not only imbalanced but also there is a failure of guarantee of right to life under Article 21 of the Constitution of India.

4. For the reasons stated under conclusions 3 and 4 above the provision is not only imbalanced but also ultravires. Because of these maladies the provision needs to be amended at the earliest to protect the life and liberty of millions of innocent people including children and old. Prior to that the learned and honourable courts may consider imposition of heavy penalty as done in case of vexatious PILs. Such PILs are only vexatious but in the matter of the cases may be false, mala fide, malicious and revengeful.

What could be the possible alterations in the present system and the law?

1. Role of Women NGOs: These organizations should investigate complaint properly without any bias towards the woman keeping in mind that the law is being misused largely to harass more women in husband’s family. They should not encourage any woman to file a criminal case against her in-laws for trivial matters. Foreign Women Organizations should also take responsibility of not allowing false complaint to be registered against NRI’s just to harass and extort huge amount of money from them. These organizations should also conduct survey/research on the misuse of the act and should educate people about its consequences. If these organizations are found to be assisting in filing false complaints, then they should be made liable for prosecution in the country where they are functioning.

2. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-laws have come to light from different parts of the country. As of now there is no organization, which can really help these harassed men and his family members, to listen their side of the story and put their point of view in front of the government. Need of the hour is to create family counselling centres across the country to help those aggrieved families.

3. Time bound Investigation and Trial : A speedy trial of 498(a) cases will not only ensure justice for the innocents that have been implicated in false charges, it will also lead to prompt redressal of the grievances of real dowry victims .The reduction in false cases will also reduce the burden on judiciary and expedite the processing of real cases.

4. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law. There should be provision for men also to file a case for mental cruelty by his wife.

5. Investigation by Civil authorities: The investigation into these offences be carried out by civil authorities and only after his/her finding as to the commission of the offence, cognizance should be taken. The government should create awareness among officers about its misuse.

6. Bailable: The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them.

7. Compoundable: Once FIR has been registered it becomes impossible to withdraw the case even if wife realizes that she has done a blunder and wants to come back to her matrimonial home. To save institution of marriage this should be made compoundable. Moreover, in the scenario where the couple decides to end the marriage by mutual divorce, continuation of criminal proceedings hamper their life.

8. Arrest Warrants: Arrest warrant should be issued only against the main accused and only after cognizance has been taken. Husband family members should not be arrested.

9. Penalty for making false accusation: Whenever any court comes to the conclusion that the allegations made regarding commission of offence under section 498a IPC are unfound, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families.

10. Court Proceedings: Physical appearance of the accused on hearing should be waved or kept low to avoid hassles in appearing to the court, especially for NRIs. The court should not ask to surrender passport of the husband and his family which could cost job of the husband and his family members.

11. Registration of Marriage and Gifts Exchanged: The registration of marriages should be made compulsory along with the requirement that the couple make a joint declaration regarding the gifts exchanged during marriage.

12. Punish Dowry Givers: If the complainant admits giving dowry in the complaint, the courts should take cognizance of the same and initiate proceedings against them under the relevant sections of the Dowry Prohibition Act

13. Penalize corrupt Investigation Officers: If it is apparent to the court that a fair investigation has not been conducted by the investigation officer, and that the husband

and his family have been charge-sheeted without proper verification of the complaint, the investigation officer should be penalized for gross negligence of duty.

14. NRI Issues : Unless they are proven to be guilty after the due judicial process, NRIs should be a given a fair chance to justice by assuring them of the following -a) Permission to return to country of employment b) No impoundment/revocation of passport and no Interpol Red Corner Notices. c) No unnecessary arrests d) Expeditious investigation and trial

15. Gender Neutral: Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife.


IPC section 498a was originally designed to protect married women from being harassed or subjected to cruelty by husbands and/or their relatives. This law was mainly aimed at curbing dowry harassment. Unfortunately, this law has been misused to harass men and their families rather than protect genuine female victims of harassment. The Supreme Court of India itself has labelled the misuse of section 498a as “legal terrorism” and stated that “many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive. In such cases, acquittal of the accused does not wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery.“ In agreement with the above statement, the findings of a study conducted by The Centre for Social Research indicated that 98 percent of the cases filed under IPC section 498a are false. Nevertheless, the law has been always justified based on its intention of protecting women. At this point it would be worthwhile to think about how IPC section 498a has really affected women.

It has been argued by Government officials favouring the law that despite the establishment of legal measures to counter harassment of married women, there is an increase in the number of cases of harassment. The first part of the statement suggests that women who are harassed should be utilizing this law as a means of protection. If harassed women indeed used the law then we should see a decrease in the number of cases of harassment over time. Considering the stringent consequences imposed by the law and the inordinate delays inherent in the legal system, no ordinary citizen, male or female, would be impudent enough to risk being implicated under this law for the sake of satisfying their monetary or even sadistic desires for that matter. The fact is that many women who are actually beaten up and harassed by their husbands and in-laws rarely file 498a or resort to other dowry related laws. A lot of them live in rural areas, unaware of the law or lack the necessary economic and moral support from their natal families. Going by the conviction rate the proportion of women who have genuine cases is 2%. Most women who file 498a are from urban backgrounds and are either capable of fending for themselves or have enough family support to fall back on. The proportion of women who belong to this category is 98%. In the 98% of false cases, in every instance that 1 daughter-in-law files a false complaint at least 2 women (an innocent mother-in-law and sister-in-law) are arrested and undergo stress, humiliation and harassment in the hands of the exploitative police, lawyers, staff and officials in Indian courts before being acquitted several years later. So, in every 100 cases 2 women genuinely benefit, 98 women get away with perjury and extortion, and at least 196 women suffer needlessly.

The number of cases that are filed in police stations or courts are the basis for the official statistics of dowry harassment. So, given that the law allows women unlimited scope to fabricate lies (with no penalty of perjury) and given that women are encouraged to keep filing false cases the statistics of “dowry harassment” are bound to rise while the problem of genuine harassment is left unchecked. So, the government has, in the name of protection of women, done grave injustice to two groups of women. The first group constitutes the genuine victims of dowry harassment whose misery remains unresolved but is constantly alluded to in order to justify the law. The second group consists of innocent mothers and sisters of husbands who are criminalized and harassed by the police and the legal system without any regard to their age, health or marital status. Pregnant women, unmarried sisters, ailing mothers and even aged grandmothers have been sent behind the bars under false allegations but their pain and suffering has not even been acknowledged leave alone addressed by the Government. Through IPC section 498a, the Government is actually protecting those women that indulge in perjury, blackmail, extortion and harassment of their husbands and inlaws.

Doctors not hospitals guilty in negligence deaths: Delhi High Court

Doctors not hospitals guilty in negligence deaths: Delhi High Court

2010-08-08 17:20:00

If a patient dies due to medical negligence in a hospital then its management cannot be prosecuted and it is only the doctors who should be penalized, the Delhi High Court has ruled.

However, the court held that the management of the hospital would be liable in case of administrative negligence and failure to provide basic infrastructure to patients.

Justice Shiv Narayan Dhingra passed the order on a petition filed by Indraprastha Medical Corporation Limited challenging a metropolitan magistrate's order for registration of a first information report against it for alleged medical negligence resulting in the death of a patient in 2007.

Setting aside the trial court order, Justice Dhingra said: 'The hospital or company cannot be held liable for the personal negligence of the doctor in giving wrong treatment.'

'If there is an administrative negligence or a negligence of not providing basic infrastructure, which results into some harm to an aggrieved person or such negligence which is impersonal, the hospital can be held liable,' Justice Dhingra said.

The court, in its observation, said that it is the doctor who treats the patients and hospitals should not be punished due to error on part of its medical staff. 'The offence of medical criminal negligence cannot be fastened on the company since the company can neither treat nor operate a patient of its own.'

'It is the doctor working in the hospital who treats and performs operations. It is the doctor who examines the patients and prescribe medicines. If there is a deliberate or negligent act of the doctor working in the hospital, it is the liability of the doctor and not of the hospitals for criminal negligence,' the court said in an order delivered last week.

In the present case, the company contended that the hospital could not be held responsible as the patient was being treated by three doctors from the Department of Cardiology a few years back.

Counsel for the hospital argued that the patient had a natural death at his home several months after the surgery but the patient's family alleged that severe complications due to negligent treatment by the hospital doctors led to the death.

Dis- Honour killings - the perpetrators of the crimes were from the girl’s family says National Commission for Women (NCW), Ministry of Women and Child Development

It is all the more necessary that a new section of IPC 304C be made and girl and her family be arrested for every death of any HUSBAND within 7 years of marriage

section 304C IPC

Where the death of a MAN is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of his marriage and it is shown that soon before his death he was subjected to cruelty or harassment by his wife or any relative of his wife for, or in connection with, any demand for money or property , such death shall be called "honour killing" and such wife or relative shall be deemed to have caused his death.


Dis-Honour killings - the perpetrators of the crimes were from the girl’s family says National Commission for Women (NCW),Ministry of Women and Child Development

The study commissioned by the National Commission for Women (NCW). and carried out by NGO Shakti Vahini was confined to the States of Haryana, Punjab and Western Uttar Pradesh. However, 560 cases profiled by the NGO reflects that it is a north Indian phenomenon.
The study reveals that in 88.93% of the total 560 cases surveyed, the perpetrators of the crimes were from the girl’s family.
The Study Report has inter-alia highlighted the following:-

• Honour Killings have been reported most from those areas where the Khap Panchayats are active.
• Shakti Vahini studied 560 cases where couples have been threatened. Of these 560 cases, 121 persons have been killed.
• Honour Killings are less about gotra issue and more about inter caste marriages.
• Violence and threatening of couples has been reported both from rural and urban areas and from almost all sections of the society.
• The reaction to the inter-caste marriages are much stronger and violent when the girl marries a dalit or to a lower caste than her own.
• The skewed sex ratio in the area has led to the worsening of the status of women in this region.

This information was given by Smt. Krishna Tirath, Minister of State for Women and Child Development in a written reply to a question in the Rajya Sabha today.