Misuse of Dowry and Domestic Violence Act is a Human Rights Issue
By Deepika Narayan Bhardwaj, on IBNLive Specials Jul 09, 2014 at 03:05pm IST
Media suddenly seems to have woken up from slumber in last four-five days on the misuse of section 498A. Every news channel is debating recent judgment by the Supreme Court (SC) - restricting immediate arrests of husband and family members under 498A. I also happened to be on one such debate, last week. Though the judgment is quite comprehensive detailing reasons for such move, anchor of the show I was on, was keen on punching holes in the judgment and showed absolute apathy to the issue.
As soon as I got out of the studio, I got a call. It was Sonia. I thought she was calling me after watching me on television but I was wrong. Moment I said hello, she started crying uncontrollably. "She has beaten my mother in law, my daughter and me. My daughter's thumb is fractured. She is threatening to kill my daughter. Please help me," she pleaded. I asked her to calm down and tell me what has happened. She explained that there was no male member at home and Nisha (name changed) - younger daughter in law of the family along with her sister had beaten everyone up!
Let me tell you who Sonia is - She is the elder daughter in law of the family, married for 23 years and a "498A accused." She, her husband, old mother in law, husband's brother( Nisha's husband), married sisters in law, their husbands- almost everyone including her teenage daughter have been accused of demanding dowry by Nisha who has herself been married for 19 years! Reason - Nisha wants property in which joint family is staying in her name! After listening to the entire incident, while I asked Sonia to calm down and register an FIR, I myself wished only one thing- make Sonia talk to anchor of the show I was in and let him hear pain of people abused by 498A. Sonia's case is peculiar for two reasons - one, she is herself a daughter of another family, so why would she demand dowry from Nisha and second - after 19 years? But - logic/common sense is least a part of 498A.
Media suddenly seems to have woken up from slumber in last four-five days on the misuse of section 498A.
Sonia and her family aren't alone. There are endless stories of abuse and gross misuse of 498A.
IPC 498A - commonly known as the Anti Dowry law, was passed in 1983 to protect married women from mental and physical cruelty and dowry related demand by husband and his relatives. 30 years on, 498A today is commonly known as the law which is 'Misused.'
For beginners - 498A is not a case between husband and wife. It's a case between husband and state where state fights on wife's behalf. 498A can be filed anytime after marriage - even after 22 years. Since it also considers mental harassment any number of relatives can be named and summoned - even if they have never lived with you, are in different cities or abroad - citing harassment over phone or any incident when they visited India. Married sisters are prime target, dragging even her in laws into the case to exert pressure. There are instances where even friends have been summoned. 498A can be filed from anywhere though it's a criminal offence. So, if you are from Kerala and wife from Punjab, she can file a case from Punjab and your family travels thousand miles on every date. When 498A is filed, every wedding expense is presented as dowry by the girl side. So even if you did not demand anything from the girl, you can become a dowry case accused. There is no time limit to trial of these cases. Some 498A cases have been pending in Delhi courts since 1991. Even if your divorce comes through, your 498A can linger on for years in court.
Now, why do I say Misuse of this law is a Human Rights Issue?
The basis of any criminal Jurisprudence around the world is - "innocent until proven guilty" and in words of English Jurist William Blackstone "It is better that ten guilty persons escape than that one innocent suffer." This law overturns both these principles. As soon as a woman makes a statement that so and so person demanded dowry from her, that person is treated as a criminal and tried as a criminal. In dowry cases, onus of proof that dowry was not demanded is on the accused. Since the law is cognizable and non-bailable, police has a free hand in arresting anyone who it deems fit as per the written complaint by the woman without 'any' investigation. I say without any investigation because the FIR and charge sheet in most of these cases is a replica of each other. Rarely have I seen evidences from husband's side being considered or presented. So statement of a woman is enough to throw a common man or woman behind bars.
I have been researching on this issue for last two years while working on a documentary on the same. As per National Crime Records Bureau, from 1998 to 2012 - after rounding off, a total of 10 Lac cases have been filed and 21 lac people have been arrested of which 5 Lac are women, 1 Lac are senior citizens and shockingly 10,000 are minor boys and girls. In the same period, 4,48,704 cases completed trial and a mere 89,452 resulted into conviction and rest whopping 3,59,252 resulted into acquittal! These numbers are extraordinary. I understand an acquittal doesn't necessarily means a false case but I also understand that an acquittal definitely means the case did not stand scrutiny under the court of law. 498A wasn't made as an alternative for quick divorce or dispute redressal or tool for getting back at husband for revenge - it was a law made to punish the wrongdoers! Courts aren't blind to look at the actual stories behind these cases and thus the enormous acquittals.
Many people tell me, every law is prone to misuse. I have a basic question - under which law does a person gets punished or termed criminal just because of being someone's relative? Under which law does police arrest you just because your name appears in an FIR? Which cruelty exactly can be committed sitting 1000/2000 Kms away? Under which law do you become an accused without any investigation whatsoever and stand in the court for years to prove your innocence? Under which law a 90 year old grandmother who can barely walk is dragged from Delhi to Dehradoon just because a 25 year old woman alleged that the old woman demanded money? Under which law whatever the complainant is saying is taken at its face value without AN IOTA OF EVIDENCE and cases run for years on mere allegations? In my knowledge, none!
Nowhere in the world, are you and your family labelled criminals because of a failed marriage. But in India, the moment a marriage breaks, this label comes automatically in guise of a 'dowry' case. To make things clear, you can get a 498A by your wife if you - refuse to leave your old parents on her demand; incur huge financial losses and can't afford her luxurious lifestyle; object to her extra marital affair; have a bad equation with her parents, ask for separation citing incompatibility. Even if you have filed for Divorce on grounds of cruelty by her, she can still go ahead and file 498A claiming you are the actual abuser! It doesn't matter if you are thrashed, abused, beaten up every day and have plethora of evidences of her cruelty, her statement that you demanded dowry will outweigh everything. I am not throwing clichés. These are cases I have seen with eyes wide open including one where a man was thrown into Jail for conducting DNA test on his son, before even the reports came out. No prize for guessing - he isn't the father of the child!
NCRB statistics related to 498A can never tell the real story of abuse of this law. Behind every FIR there are hundreds of cases that get 'settled' because of fear of arrest, harassment for years and humiliation. There is no data as to how many Mutual Consent Divorces are a result of such threats! Lacs are being demanded in exchange of a 498A or 498A settlement. Pay before or after, you make a choice. Everyone including lawyers, police and the girl makes great money in this racket which is approximately a 2000 crore business every year (approximate figure including bails, kickbacks and settlement amounts). Negotiations can be heard at every level in these 'family dispute' cases - be it at women cells, police stations, mediation cells or courts. If you decide to 'not pay' and fight back, you are in courts for years with not just one case but a package including Domestic Violence Act, Criminal breach of trust and a horde of maintenance cases. Irony is - after fighting for years for honour, all that a man gets is acquittal. Filing a case of defamation or punishing the woman for her wrong is almost impossible as first courts don't entertain these cases and if they do - you are in courts for another couple of years!
Isn't it funny that a woman who is accusing in-laws of demanding dowry herself then demands 10-15-20-50 lacs for settling the cases? Isn't it funny that cruelty or humiliation she has gone through is bartered for money? I know of an old woman who runs a tea shop being asked 25 Lacs to settle dowry case on her son. Her son's mistake- he doesn't earn much. I wonder if anyone can define this practice as anything but legal terrorism/blackmail /extortion.
How have we become a society where rights of a young wife are more important than rights of a 90 year old woman or that of an old father and mother who have slogged for years bringing their son up or that of a teenage sister who could be ostracized for being in Jail for rest of her life or that of a married sister whose marriage might collapse because of her husband and in laws being dragged? How have we become a society where to get one woman justice we are doing injustice to so many people? How are we legally allowing these blackmails to happen where a man is snatched of years of his savings just because marriage of his son did not work? How can we jeopardize existence of a man, just because his marriage 'failed'?
People argue with me over dowry deaths. I wish I had a law which recognized reverse dowry deaths where a person committed suicide because of a false dowry case or threats of a false case! There are thousands who have committed suicide leaving testimony of innocence through suicide notes. Syed Ahmed Makhdoom, Aarti, Lokesh Singh, Manoj Kumar, Prashant Pandey, Ravi Parmar, Anuj Gupta, Anoop Sharma, Niramala Devi, Ravi Parmar, Mahendra Singh, Harkamaljeet and his wife -are few examples. Strangely, a law that was meant to protect women from committing suicide has become a reason for suicide for many.
Tagging someone criminal for no crime, punishing someone for no wrong, claiming someone's job, career and peace for no reason, harassing an entire family for a failed marriage, leaving no option to a man to come out of an abusive marriage, slapping him with a dowry/domestic violence case if he files for divorce - If this is not a human rights issue, I wonder what is!
I welcome SC judgment wholeheartedly but I am doubtful of its impact. CrPC amendments that have been stressed upon in the judgment have been on papers since a long time. However, the rut of 498A is so deep, that these judgments have rarely brought a change. I think it's high time that the government intervenes and amend the law with a misuse clause to punish anyone who misuses it for personal gains. If women organizations opposing this landmark decision really want to get Justice for women, get a time limit on trial of these cases and ask for booking wrong doers whether man or woman. Punish the guilty and spare the innocent. Justice to one cannot come at cost of Injustice to others!
(Deepika Narayan Bhardwaj is a journalist and a documentary filmmaker. She is currently documenting misuse of section 498A of IPC through her documentary film 'Martyrs of Marriage.' She can be reached at martyrsofmarriage@gmail.com)
India shifts dowry law against 'vindictive wives'
As on Date July 4, 2014 By Amrit Dhillon
New Delhi: Munish Dalal became a national hate figure when his pretty and vivacious bride-to-be, Nisha Sharma, accused him of demanding more dowry on the eve of their marriage.
Ms Sharma was feted by the world’s press as an icon of feisty Indian womanhood for reporting her fiance to the police under the country’s anti-dowry laws.
These laws are aimed at tackling the husbands and in-laws who, even though they have received a dowry on marriage, abuse and torture a woman afterwards so that she asks her parents to hand over yet more cash and consumer durables.
Figures from 2012 show that one woman dies every hour in India over demands for more dowry.
The crime is so common that the law allows the police to arrest a man the moment his wife alleges that he demanded more dowry. No evidence has to be produced. Bail depends on the discretion of the judge. The man is considered guilty until he can prove his innocence.
But in a ruling this week, the Supreme Court said the police cannot arrest a man on the basis of an allegation. Condemning the law’s misuse by ''disgruntled'' wives ''as a weapon rather than a shield'', the court said the police must give reasons for the arrest that would then be examined by a magistrate.
''The ruling on arrests is long overdue. False cases had become an epidemic. We used to call it legal terrorism. Now men can sleep more peacefully,'' said Rohit Girdhar, a co-ordinator with the Save the Family Foundation in New Delhi, which has campaigned for the law to be amended.
Mr Girdhar, who was falsely accused by his wife but acquitted by the courts in 2012, said the foundation has thousands of victims whose ''poisonous and vindictive'' wives used the law to blackmail them into giving a fatter alimony, settle scores, ruin their name or to get custody of the children.
One man who went to the foundation recently for counselling was a New Delhi music teacher. Mr Girdhar claims that the teacher’s wife was mentally unstable from the day he married her and kept false accusations of infidelity against him. Five years ago, as their marriage crumbled, she walked into the local police station to accuse him of demanding more dowry.
''That man’s entire family has been devastated. It took just one vicious woman to do it. He and his elderly parents have been running around the courts for eight years. By the time the verdict comes, it will be too late for this man. He has been damaged too much, he has lost his faith in people,'' Mr Girdhar said.
For women’s rights groups, given the high levels of violence against women, the ruling is retrograde. Brinda Karat, general-secretary of the All India Democratic Women’s Association, said she was opposed to the dilution of a law that had come after years of debate and struggle.
''Dowry is rampant, worse than ever before. I oppose any law being misused but our studies show that men do get bail. Why is the Supreme Court not equally concerned about the women who are brutally murdered over dowry?'' Karat said.
For Mr Dalal, the ruling is sweet vindication. After being painted as a national villain a decade ago, in 2012, he was cleared by the courts. It turned out his fiance had been in love with another man.
''She didn’t want to marry me but was scared of her parents. By accusing me falsely, she was trying to get out of the marriage without incurring their anger,'' Mr Dalal said.
Anti-dowry law misused, no automatic arrest in such cases: Supreme Court
As by PTI Wednesday, July 02, 2014, 22:29
New Delhi: Expressing concern over misuse of anti-dowry law by "disgruntled" wives against her husband and in-laws, the Supreme Court on Wednesday ruled that police cannot arrest accused in such cases "automatically" and it must give reasons for taking such steps which would be judicially examined.
The apex court said the attitude to arrest first and then proceed with the rest is "despicable" which must be curbed and directed all state governments to ensure that police do not resort to arresting in all offences punishable up to seven- year jail term including dowry harassment cases.
"We direct all the state governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 CrPC," a bench headed by Justice CK Prasad said.
It said that the police officer shall furnish the reasons and materials which necessitated the arrest before the magistrate.
"Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognisable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.
"The simplest way to harass is to get the husband and his relatives arrested under this provision. In quite a number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested," the bench said.
The bench said the arrest curtails freedom, brings humiliation and casts scars forever and no arrest should be made only because the offence is non-bailable and cognisable.
"The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof.
"No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation," the bench said.
Referring to crime statistics, the apex court said 1,97,762 persons were arrested in 2012 for offence under Section 498-A and nearly a quarter of those arrested under this provision were women depicting that mothers and sisters of the husbands were liberally included in their arrest net.
"Its share is 6 per cent out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5 per cent of total crimes committed under different sections of penal code, more than any other crimes except theft and hurt," it said.
It said the rate of charge-sheeting in cases is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across all heads and as many as 3,72,706 cases are pending at trial stage.
The apex court said that police in the country has not come out of its colonial mindset.
"It has not come out of its colonial image despite six decades of Independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasised time and again by courts but has not yielded desired result.
"Power to arrest greatly contributes to its arrogance so also the failure of the magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive," it said.
Misuse and abuse of 498a ipc exposed again | Delhi court says Dowry law cannot be harassment tool and orders investigation against woman for falsely implicating husband
Submitted by IANS on 23 March 2014
New Delhi: A court here has observed that dowry prohibition law cannot be allowed to become a tool for harassment.
Granting relief to a man, who was booked in a dowry harassment case by his wife, the court ordered investigation against the complainant for filing a false case.
The man's wife in July 2012 filed a first information report (FIR) against him in a South Delhi police station, alleging that he demanded dowry and subjected her to cruelty, which resulted in her miscarriage.
Police investigated the complaint and filed a cancellation report, giving a clean chit to the accused.
Metropolitan Magistrate Shivani Chauhan, accepting the cancellation report of Delhi Police, said Sections 498A (subjecting woman to cruelty) and 406 (criminal breach of trust) and Dowry Prohibition Act are special legislations enacted for the "protection of women" and have serious penal consequence for the offender.
"Under no circumstances can it be permitted to become a tool for harassment of innocent persons," the magistrate said.
"There is a enough material on record to show that the complaint was false and fabricated."
During the investigation it was revealed that it was the woman's second marriage and there was no evidence of dissolution of the first.
The woman alleged cruelty by the man which had resulted in her miscarriage. But the court noted that the investigation report showed she had voluntarily got the medical termination of her pregnancy.
It was observed the woman had mentioned the name of the other man in the medical report. The bills of hospital were cleared by the other man.
Pune City police warned against ‘misuse’ of IPC section 498A
Posted On Sunday, January 26, 2014 at 11:36:23 AM
Officials at city police stations have been directed to be circumspect while registering FIRs under section 498A (husband or relative of husband of a woman subjecting her to cruelty) of the Indian Penal Code (IPC). Preliminary inquiries may be conducted in cases of matrimonial/family disputes before an FIR is registered, police officials have been told.
“We have issued circulars to all police stations in the city. They have been told that a preliminary inquiry must be conducted in cases of matrimonial/family disputes before FIRs and arrests in cases under 498A,” said Joint Commissioner of Police (Law and Order) Sanjeev Kumar Singhal.
As per records available with the police commissioner’s office, there were 299 cases in 2013, 180 in 2012 and 231 in 2011 registered under section 498A. “A woman or her relative(s) can file a case under against her husband, his parents, siblings and other relatives.
In the past, there has been misuse of the law when the police arrested people without verification or investigation. Alleging harassment over dowry demands by their husband’s family, women would lodge false complaints of physical and mental harassment.
The Supreme Court has framed guidelines for preliminary inquiries before registration of FIRs in cases of matrimonial and property disputes,” said criminal lawyer Kainat Shaikh.
However, Asunta Pardhe, president of NGO Chetna Mahila Vikas Kendra, believes that victims never misuse the law. “There are several social and cultural factors responsible for this perception that women misuse this law.
A victim approaches the police when she has undergone tremendous mistreatment at the hands of her husband and in-laws. As she may not know about the law, it is the police who invoke this section of the IPC. It is often seen that, in many cases, family members force the women to compromise and withdraw the case.
Due to this, there is a perception that women misuse this law. Victims also compromise for the sake of their children or other family commitments. Hence, few case go to trial unless the victim is no longer alive,” Pardhe told Mirror.
The women grievances redressal cell at the Police Commissioner’s office has been counselling couples and their family members regarding family disputes and police officials said they have been sensitised about the law and its ramifications due to misuse.
The daughter-in-law of an Andhra Pradesh High Court judge lodged a complaint against her husband and family with the Chennai police commissioner on a charge of dowry harassment. An allegation which was refuted by her husband.
According to the complaint, Kavya Rao (30) married B Ramakrishna, the judge’s son, in 2007. After marriage, the couple lived in Bangalore till Ramakrishna lost his job in 2008. Kavya alleged that her in-laws began harassing her when she and her jobless husband moved to Hyderabad.
She told police that her family had paid more than Rs 40 lakh as dowry, but her husband’s family demanded another Rs 50 lakh.
As her parents could not pay the amount, she was harassed frequently by her in-laws, which forced her to come to live with her father in Chennai. Later, her father-in-law lodged a false police complaint against her father, she said.
“My in-laws, in their complaint, said that my father had stolen valuables from their house,” Kavya said and alleged that her father-in-law was influencing the police personnel even in Chennai.
On January 13, based on information received from Andhra Pradesh Police, Kavya and her father were summoned by the Chennai Police in connection with a case that she had stolen her father-in-law’s ancestral jewellery.
Meanwhile, Ramakrishna, who’s pursuing PhD at IIT New Delhi, refuted his wife’s allegations.
According to family sources, Ramakrishna maintains that the issue of dowry harassment never came up in the communication he had with his wife through emails in the past several months.
“Moreover she (Kavya) has recently sent a draft note of a mutual consent divorce petition. One of the conditions in that draft note was that there will be no mutual giving and taking between the two at the time of divorce”.
Incidentally, Ramakrishna filed a complaint at Jinnaram Police Station in Medak district on November 23 against Kavya’s family members alleging that they were threatening him with dire consequences and abusing him.
According to him, his wife and in-laws were not allowing him to see his child. Besides, a case had been filed at Medak court for restitution of conjugal rights and custody of his three-year old daughter. The decision on that issue is pending.
Daughter-in-law files dowry harassment case against AP High Court judge in Chennai
R.Ramasubramanian Chennai, January 23, 2014 | UPDATED 14:58 IST
The daughter-in-law of a sitting Andhra Pradesh High Court judge has filed a dowry harassment complaint against her husband and his family members. Kavya Rao (30) a resident of Chennai came to the Chennai Police Commissioner's officer on Wednesday afternoon and filed the formal complaint. In her complaint Kavya said her father, a Chennai based businessman arranged her wedding with the High Court judge's son in 2007. She said during their marriage her parents had paid Rs.43.5 lakh as dowry, but the judge and his wife and other relatives demanded Rs.50 lakh more. Kavya also said that her husband lost his job in 2008 and hence they moved from Bangalore to Hyderabad. "Ever since the harassment began and my in - laws pressurised me to bring in atleast 50 lakhs rupees immediately"
Kavya in her complaint also submitted that since her family could not arrange this much money immediately she was made to starve by her inlaws. But after some time her parents gave her inlaws money at frequent intervals. When she could not tolerate the agony she returned to Chennai to live with her parents.
But even after that the troubles did not end for her , her father-in-law lodged a false complaint against her father. On the instigations of the judge, abduction and theft cases were filed against my father she said and added the judge is influencing the police in Chennai. Her husband came to her house in Chennai a week ago and ransacked it . Kavya has a small baby girl. In her complaint she said her husband, mother-in-law and father-in-law are attempting to abduct her child.
The complaint was filed with the Additional Commissioner of Police (headquarers) R.S. Nallasivam. It was later forwarded to the Deputy Commissioner of Police, Adayar range for further investigations. "We have informed the Chief Justice of India. The AP High Court judge is attempting to influence the local police here. We will wait for four or five days. If the Police does not take any action we will move the Madras High Court for direction to the Chennai Police Commissioner to take suitable action in this regard" said K.Balu, advocate of Kavya in an interveiw with India Today Online
Of the 92 registered in Nov last year in B'lore, only 20 cases were found to be true
The instances of misuse of anti-dowry laws have been on the rise in Bangalore of late, according to a study by women’s helpline Vanitha Sahayavani.
More than half of the dowry harassment complaints lodged with the helpline turn out to be mere allegations.
The Sahayavani has been working with the Bangalore Police and has its centre at the commissioner’s office.
“We get hundreds of calls and complaints every day, most of which are pertain to dowry harassment. It is very difficult to ascertain whether the complaint is true or false while registering it. It is only through the counselling we provide in the next few days that we realise the true nature of the case,” said Rani Shetty, the co-ordinator of the helpline. Of the 92 dowry harassment cases registered in November 2013, only 20 were found to be true.
Reasons
Senior police officials say that the reasons for this are varied.
“From what we have understood, a lot of women realise that the laws are stringent with respect to dowry harassment. Many a time, the law gets misused just because the woman wants to get away from her husband or teach him a lesson. This is why, before taking any action or registering a case, we send the couple to the Sahayavani so that the real cause behind the strained relationship is established,” Hemant Nimbalkar, Joint Commissioner of Police, Crime (East), told Deccan Herald.
According to sources in the department, in a majority of the cases, dowry demands are made by educated middle-class families which are well aware of the prevailing laws. “Minor differences” in a relationship trigger such demands and these differences come out in the open during family counselling sessions.
“The idea is to save the marriage to the extent possible. Women bear a lot of harassment and this is, without doubt, the sad state of affairs here,” said Shetty. She added that the police are involved only when the case is ascertained to be that of dowry harassment. The cases of dowry deaths directly go to the police.
In 2013, 49 cases of dowry deaths were registered. This number has been relatively stable in the past few years, with 21 cases each registered in 2010 and 2012 and 53 in 2011.
Misuse of IPC 498a Legal Point Loksabha TV 21 July2013
Panelist included
1. Amit Lakhani, Co-ordinator Save Family Foundation 2. Ms Anu Mehta, Sr Advocate High Court 3. Mr R.N. Vats, Advocate and President Delhi Bar Association
Anchored by - Bhavna Nayyar
Part 1/2 - Misuse of IPC 498a Legal Point Loksabha TV 21 July2013
Part 2/2 - Misuse of IPC 498a Legal Point Loksabha TV 21 July2013
ByDhananjay Mahapatra, TNN | Feb 23, 2013, 02.42 AM IST
In a first, the Supreme Court on Friday permitted settling of cases
under Section 498A of IPC lodged by a woman against her husband and
in-laws for alleged cruelty in her matrimonial home.
NEW DELHI: In a first, the Supreme Court on Friday permitted settling of
cases under Section 498A of IPC lodged by a woman against her husband
and in-laws for alleged cruelty in her matrimonial home.
Though it was enacted to protect women from harassment and cruelty,
there has been judicial recognition of the fact that on several
occasions, false complaints under Section 498A were filed to teach the
husband and his relatives a lesson as these cases were non-compoundable
and bail was difficult to get.
"We feel that though offence punishable under Section 498A of the IPC is
not compoundable, in appropriate cases, if the parties are willing and
if it appears to the criminal court that there exists elements of
settlement, it should direct the parties to explore the possibility of
settlement through mediation," a bench of Justices Aftab Alam and
Ranjana P Desai said.
"If there is settlement, the parties will be saved from the trials and
tribulations of a criminal case and that will reduce the burden on the
courts which will be in the larger public interest," said Justice Desai,
who authored the judgment on behalf of the bench.
"During mediation, the parties can either decide to part company on
mutually agreed terms or they may decide to patch up and stay together.
In either case, for the settlement to come through, the complaint will
have to be quashed. In that event, they can approach the high court and
get the complaint quashed. If, however, they choose not to settle, they
can proceed with the complaint. In this exercise, there is no loss to
anyone," the bench said.
The judgment came in a case where a couple separated just two days after
marriage as a row between the parents of the bride and groom resulted
in a massive ego battle leading to a legal fight that lasted for 10
years.
During the time they were separated, the wife made several false
complaints against her husband and his father, including a derogatory
complaint that she was asked by her mother-in-law to sleep with her
father-in-law. When the court found it to be false, she said it was an
attempt to pressurize her husband to take her back.
The bench said, "This statement cannot be explained away by stating that
it was made because the wife was anxious to go back to the husband.
This is not the way to win the husband back. It is well settled that
such statements cause mental cruelty. By sending this complaint, the
wife has caused mental cruelty to the husband."
It said the high court erred by ruling that mental cruelty could be
caused only if the husband and wife stayed under one roof. "Staying
together under the same roof is not a pre-condition for mental cruelty.
Spouse can cause mental cruelty by his or her conduct even while he or
she is not staying under the same roof," Justice Desai said.
"In a given case, while staying away, a spouse can cause mental cruelty
to the other spouse by sending defamatory letters or notices or filing
complaints containing indecent allegations or by initiating number of
judicial proceedings making the other spouse's life miserable. This is
what has happened in this case," she added.
The bench said years of false and frivolous complaints had irretrievably
broken down the marriage between the parties. It asked the husband to
pay Rs 15 lakh as alimony for grant of divorce.
"Irretrievable breakdown of marriage is not a ground for divorce under
the Hindu Marriage Act, 1955. But where marriage is beyond repair on
account of bitterness created by the acts of the husband or the wife or
both, the courts have always taken irretrievable breakdown of marriage
as a very weighty circumstance amongst others necessitating severance of
marital tie," the court said.
"A marriage which is dead for all purposes cannot be revived by the
court's verdict, if the parties are not willing. This is because
marriage involves human sentiments and emotions and if they are dried
up, there is hardly any chance of their springing back to life on
account of artificial reunion created by the court's decree," it added.
Uttar Pradesh urges Centre to make Section 498A of IPC a bailable offence
Posted on: 11 Nov 2011 on jagran
Make 498A of IPC bailable: UP to Centre
Lucknow: In a bid check the misuse of the Section 498-A
of Indian Penal Code (IPC) that came into force against accused in
dowry cases and to save women from domestic violence, the Uttar Pradesh
government has urged the Centre to amend this Section to make it a
bailable offence.
Citing misuse of 498-A (Husband or Relative of
Husband of a women subjecting her to cruelty) by unscrupulous women to
extort money and to harass husband’s entire family, the state government
has written a letter to the Central government seeking amendment.
Under
498 A, 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.
The matter was brought into light by Allahabad
High Court during the hearing of a petition filed by Sanjeev Kumar. The
High Court directed the state government to put forth its views on the
misuse of 498-A.
Acting on the directives, state administration
took review of dowry deaths and domestic violence in the state. It was
found that from 2007-2010, more than 5500 cases of dowry deaths and
20,000 cases of domestic violence were registered.
In majority
of the cases, kin of the victim filed an FIR against the husband and his
family under 498-A of IPC as of which elderly, pregnant women and even
juveniles were declared guilty. It was also found that in many cases
allegations imposed by the victim and her family was totally wrong as
there was no proof of any kind of physical assault. However, the husband
and his family had to be put behind the bars in compliance with the
rule.
Chiranjeevi's daughter Srija files dowry harassment case. Yet another case of misuse of 498a . Evidently Meenakshi Lekhi, a feminist lawyer promotes its abuse and misuse as she views it as OVERUSE OF 498a
16 march 11
The issues and dispute are different and do not fall in the ambit of 498a but still these allegations are allowed and given color of dowry harassment to get the matter settled at the unlawfull terms of wife by systematic extortion and blackmailing of husband and his relatives who are hapeless remedyless and are victimised on mere false allegations of the wife.
NOW HERE IS A CLASSIC CASE WHERE BLATANT AND FLAGRANT MISUSE OF CRIMINAL JUSTICE SYSTEM IS ALLOWED TO SETTLE PERSONAL PROBELEMS/SCORES AND VENDETTA
This case clearly depicts how after LOVE MARRIAGE that was done against the girl’s parents wishes is ruined with interference of girl’s parents who ultimately convince,tutor and pressurise their daughters to get divorce from the SON-IN-LAW they were always opposed to.
And it also exemplifies how mindlessly such girls MISUSE AND ABUSE DOWRY HARASSMENT LAWS to get out of a marriage at their own terms.
HYDERABAD: Police adopted a cautious approach in handling the dowry harassment complaint filed by Chiranjeevi's daughter Srija against her husband and in-laws.
Police said that they were in the process of gathering evidence to substantiate the complaint lodged by Srija.
In her written complaint, Srija alleged that her husband Sirish Bharadwaj along with her mother-in-law Suryamangala had been physically and mentally harassing her for the last few months for money to set up business.
According to police, Srija, in her complaint, said that as the harassment continued, she feared that Sirish might force her to sell away properties registered in her name. "Due to suspicion, she re-registered the properties on her family members name," a Central Crime Station (CCS) official said.
The 22-year-old housewife also alleged that she had sent several e-mails and SMSes to her family members and friends about the harassment. "Srija put up with the torture for a long time, but left for her parents' house a few days ago when Sirish physically assaulted her in an inebriated state," an investigating officer said.
On Tuesday, CCS police asked Srija to submit supporting evidence like property papers, email and SMS details.
According to sources, Sirish was in police custody and his parents were also in touch with them. But they would show his arrest after getting substantial evidence from Srija.
Earlier in the day, DCP DD J Satyanarayana told media personnel that cases were registred against Sirish and his mother under Sections 498-A (Subjecting a married woman to cruelty) and 3 & 4 of the Dowry (Prohibition) Act of IPC.
A woman and her family members cannot be treated as accused under the Dowry Prohibition Act for giving dowry at the time of marriage, the Supreme Court has said. A bench of Justices HS Bedi and CK Prasad upheld the Delhi High Court verdict that quashed a criminal case against a girl stating a dowry harassment victim was protected under the law and, could not be charged under the Act.
Two separate benches of the Delhi HC had taken divergent views on the issue. While Justice SN Dhingra (since retd) held the woman and her family could be prosecuted for giving dowry, Justice Ajit Bharihoke had said it could not be done.
The latter judgment held that section 7 of the Dowry Prohibition Act provided protection to the person who was a complainant under the law. Section 3 of the Act makes giving, accepting or abetting dowry an offence.
The SC order clarifies the legal position regarding the culpability of an alleged dowry-giver bride. It dismissed the appeal against Justice Bharihoke’s verdict filed by the husband who claimed that the judge could not have delivered it as the law was settled by Justice Dhingra.
The bench, however, dismissed the petition and said, “The girl is a victim and you want her to be prosecuted also. Then 498A (dowry harassment section) would be rendered nugatory.”
Vijary Aggarwal counsel for the woman who faced the case for giving dowry, contended there should be harmonious construction of the Act.
Justice Bharihoke had in October 2010 quashed a metropolitan magistrate’s order that directed registration of a case under the Act against a woman. The case was registered following a complaint made before the court by the husband.
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Full text of SC order
ITEM NO.14 COURT NO.7 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (Crl) No(s).1339-1340/2011 (From the judgement and order dated 20/10/2010 in WP No. 501/2010 & CRLMA No. 3921/2010 of The HIGH COURT OF DELHI AT N. DELHI) SAMEER SAXENA Petitioner(s) VERSUS STATE OF NCT OF DELHI & ANR Respondent(s) (With appln(s) for exemption from filing c/c of the impugned Judgment) Date: 07/03/2011 These Petitions were called on for hearing today. CORAM : HON'BLE MR. JUSTICE HARJIT SINGH BEDI HON'BLE MR. JUSTICE CHANDRAMAULI KR. PRASAD For Petitioner(s) Mr. Gagan Preet Singh, Adv. Mr. Karan Bir singh, Adv. Mr. Rameshwar Prasad Goyal, Adv. For Respondent(s) Mr. Vijay Aggarwal, Adv. Mr. Rajnish Kumar singh, Adv. Mr. Tanmay Mehta, Adv. Ms. Manjusha Wadhwa, Adv. UPON hearing counsel the Court made the following O R D E R
Heard the learned counsel for the parties. We see no reason to interfere in the Special Leave Petitions which are, accordingly, dismissed.
Govt mulls over to make ipc 498a Bailable, Non-cognizable, compoundable. 498a amendments under consideration.
The Debate on News24 channel on 5th March 2011
Part 1/2
Part 2/2
more details at
http://www.legallyindia.com/1839-section-498a-of-ipc-its-use-misuse
Sec-498 A I.P.C. – Its Use And Misuse
Introduction:
To start with first we have to look that what this word marriage means. ‘Marriage is the voluntary union for life of one man and one woman to the exclusion of all others.’ It is a social institution where husband has the responsibility to take care and maintain his wife. He cannot neglect his duties. But on this great institution a stigma called ‘dowry’ still exists. Women are ill-treated, harassed, killed, divorced for the simple reason that they didn’t brought dowry.
For safeguarding the interest of woman against the interest of woman against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860(herein after referred to as I.P.C.) was amended in 1983 and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman.
Matrimonial Cruelty in India is a cognizable, non bailable and non compoundable offence. It is defined in Chapter XXA of I.P.C. under Sec. 498A as:
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 her to cruelty shall be punished with imprisonment for a term, which may extend to three years and shall also be liable to a 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 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 demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.[1]
The section was enacted to combat the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act, 1983 (Act 46 of 1983). By the same Act section 113-A has been added to the Indian Evidence Act to raise presumption regarding abetment of suicide by married woman. The main objective of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of husband.
Section 113-A of Indian Evidence Act[2], reads as follows:
Sec. 113-A, Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).
The object for which section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,1973 (in short ‘the Cr.P.C’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in- law’s and relatives. The avowed object is to combat the menace of dowry death and cruelty[3].
The act of harassment would amount to cruelty for the purpose of this section. Drinking and late coming habits of the husband coupled with beating and demanding dowry have been taken to amount to cruelty within the meaning of this section, but this section has been held not to include a husband who merely drinks as a matter of routine and comes home late[4]. In a case before Supreme Court it was observed that this section has given a new dimension to the concept of cruelty for the purposes of matrimonial remedies and that the type of conduct described here would be relevant for proving cruelty.
Meaning of Cruelty:
It was held in ‘Kaliyaperumal vs. State of Tamil Nadu[5]’, that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. The two sections are not mutually inclusive but both are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC. The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well. Under section 498-A of IPC cruelty by itself amounts to an offence whereas under section 304-B the offence is of dowry death and the death must have occurred during the course of seven years of marriage. But no such period is mentioned in section 498-A.
In the case of ‘Inder Raj Malik vs. Sunita Malik[6]’ , it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.
Kinds of cruelty covered under this section includes following:
(a) Cruelty by vexatious litigation
(b) Cruelty by deprivation and wasteful habits
(c) Cruelty by persistent demand
(d) Cruelty by extra-marital relations
(e) Harassment for non-dowry demand
(f) Cruelty by non-acceptance of baby girl
(g) Cruelty by false attacks on chastity
(h) Taking away children
The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A.
Constitution Validity of Section 498-A
In ‘Inder Raj Malik and others vs. Mrs. Sumita Malik[7]’, it was contended that this section is ultra vires Article 14 and Article 20 (2) of the Constitution. There is the Dowry Prohibition Act which also deals with similar types of cases; therefore, both statutes together create a situation commonly known as double jeopardy. But Delhi High Court negatives this contention and held that this section does not create situation for double jeopardy. Section 498-A is distinguishable from section 4 of the Dowry Prohibition Act because in the latter mere demand of dowry is punishable and existence of element of cruelty is not necessary, whereas section 498-A deals with aggravated form of the offence. It punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty to her. Hence a person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and this section.
This section gives wide discretion to the courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishment. This provision is not ultra vires. It does not confer arbitrary powers on courts.
In the leading case of ‘Wazir Chand vs. State of Haryana[8]’, involving the death by burning of a newly married woman, the circumstances did not establish either murder or an abetted suicide and thus in-laws escaped the jaws of section 300 and 306, but they were caught in the web of this newly enacted section for prevention of harassment for dowry. Not to speak of the things they are persistently demanding from the girl’s side, the fact that a large number of articles were taken by her father after her death from her matrimonial abode showed that there was pressure being exerted on-in laws and continued to be exerted till death for more money and articles.
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.
Sec 498A and the Allegation of Misuse:
In the last 20 years of criminal law reform a common argument made against laws relating to violence against women in India has been that women misuse these laws. The police, civil society, politicians and even judges of the High Courts and Supreme Court have offered these arguments of the "misuse' of laws vehemently. The allegation of misuse is made particularly against Sec 498A of the IPC and against the offence of dowry death in Sec 304B. One such view was expressed by former Justice K T Thomas in his article titled 'Women and the Law', which appeared in The Hindu.21 The 2003 Malimath Committee report on reforms in the criminal justice system also notes, significantly, that there is a "general complaint" that Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an amendment to the provision, but provides no data to indicate how frequently the section is being misused. It is important therefore that such "arguments" are responded to, so as to put forth a clearer picture of the present factual status of the effect of several criminal laws enacted to protect women.
Domestic violence and abuse by spouses and family members are complex behaviours and the social organisation of courts, the police and legal cultures systematically tend to devalue domestic violence cases. Sec 498A was introduced in the IPC in 1983 and the reforms of the past 20 years have not been adequately evaluated at all by the government with respect to their deterrence goals, despite the institutionalization of law and policy to criminalise domestic violence. A program of research and development is urgently required to advance the current state of knowledge on the effects of legal sanctions on domestic violence. The narrow or perhaps almost negligible study done by law enforcement agencies about the deterrent effects of legal sanctions for domestic violence stands in high contrast with the extensive efforts of activists, victim advocates and criminal justice practitioners in mobilising law and shaping policy to stop domestic violence. It is important to do these studies to correct the general misconceptions that women are misusing the law by filing false cases against their husbands and in-laws in order to harass them and get them convicted. The perspective of the state and its agencies needs to change from that of protecting the husbands and in-laws against potential "misuse" of the laws of domestic violence to that of implementing their real purpose – to recognise that such violence is a crime and protect women who have the courage to file complaints against their abusers.
Article 15 of Indian Constitution
Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth. However, it allows special provisions for women and children. Article 21A provides for free and compulsory education to all children from the ages of six to 14 years. Article 24 prohibits employment of children below 14 years in mines, factories or any other hazardous employment. The court also took note of Article 14 guaranteeing equality, and Article 21 providing that a person cannot be deprived of life and liberty except according to procedure established by the law. Similarly, Article 23 prohibiting human trafficking and forced labour was also referred to in the court’s judgment.
Moving away from fundamental rights to the directive principles, the court pressed into service provisions relating to the health of women and children. Article 39(f) directs the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and moral and material abandonment. Article 42 directs the State to make provisions for just and humane conditions of work, and maternity beliefs. Article 45 stipulates that the State shall provide early childhood care and education for all children until the age of six. Article 47 lays down the raising of level of nutrition and standard of living of people, and improvement of public health as a primary duty of the State.
This section tries to maintain that every married woman needs to be given due respect and treated with care. It reinforces the fact that a woman is not a toy to be played with, to be thrown away at one’s whims and fancies and treated as inferior to any other. It inherently asks for husbands to treat their wives well and not misbehave or demand unjustly which in a way sends forth a message that a woman is a commodity for sale.
What section 498A IPC tries to do is prevent and punish the above act and re-assert a woman’s
right to live a peaceful and happy life.
Use of Section 498 A by Indian Courts:
Indian Courts had been using this provision to safeguard the women from facing the cruelty faced by them at their matrimonial home.
9 out of 10 of the cases are always related to dowry, wherein the woman is continuously threatened for want of more money and property which if remains unfulfilled , the married woman is tortured, threatened, abused- both physically and verbally and harassed. Like in the case of Ram Kishan Jain&Ors v State of Madhya Pradesh[9]due to insufficiency of dowry demands the woman was administered calmpose tablets and thereafter she even cut the arteries of both her hands. Sometimes, dowry may not be the cause but the woman for several reasons like her complexion or family status is tortured to death.
In the case of Surajmal Banthia & Anr. v. State of West Bengal[10], the deceased was ill-treated and tortured for several days and even not given food several times. Her father- in-law also misbehaved with her quite often. This is the treatment that several young brides face when they move out of their parents’ home and into the house of her in-laws’. It is the duty of the court to prevent any of these abusers from escaping. The increasing rate of bride burning for want of more dowry and brutal torture of young wives, together with a clear escape of the abuser is a clear indication that the court has not taken any strong measures for the implementation of S. 498A IPC properly.
As stated earlier many a times this victim turns into the abuser and is clearly not wronged but
instead wrongs the husband and his family for no fault of theirs. Several cases show that the married woman takes advantage of the section and sends the respondents to jail under the ambit of this section.
Many women rights’ groups justify the abuse of this section as being a common feature with all
other laws and that also the ratio of false cases to that of true ones as being very low. But this still does not change the truth that there is slowly a rise in the abuse of S.498A IPC.
In many judgments, the court has not considered mental cruelty caused to the woman but has
concentrated only on any sign of physical cruelty. If evidence does not show that the woman was
physically harassed, then the court does not look into the case. What the court does is call the
woman hyper- sensitive[11] or of low tolerance level and having an unstable mind[12].
Also S.498A IPC does not only deal with dowry deaths but also any willful conduct on part of the husband which causes harm to the wife’s ‘ life, limb or health (whether mental or physical).’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[13] would fall into the ambit of mental cruelty.
Showing any mercy to abusers or giving them the ‘benefit of doubt’ when some proof to torture at their hands is present is completely wrong. Like in the case of Ashok Batra & Ors v State[14]even though letters of the deceased stating that harassment had taken place was present, not treating them as strong evidence and giving the appellants a benefit of doubt without ordering for a further investigation into the matter is wrong.
The judges have in several instances made a very narrow interpretation of this section, considering it to be only cruelty in relation to unlawful demands or dowry demands. In a particular case, the court went to the extent of stating that ‘merely because her in-laws or husband were to chastise the woman for improper or immoral conduct, it does not necessarily amount to cruelty.[15]’ This act of chastising the woman clearly amounts to mental cruelty, something that the court apparently failed to notice. Here, considering the woman to be a hyper- sensitive woman not used to usual wear and tear of social life is completely erroneous.
In the case of Bomma Ilaiah v State of AP[16]the husband of the complainant tortured the woman
physically by forcing his wife to have sexual intercourse with him. He inserted his fingers and a stick in her vagina, causing severe pains and bleeding but the court found the husband of this
Woman guilty only under S. 325 IPC and not S, 498A IPC. Why? Her life both physically and
Mentally was at risk. Didn’t the court notice this?
The court has in another case not punished the guilty under S.498A IPC even though medical
Reports clearly showed that the death was homicidal by throttling. This was simply because
According to the court, even though there were dowry demands in the past, the court felt that
Proximity of the death to be caused due to such a demand was unlikely[17]. Who decides this
Proximity? The cause and its effect on the woman’s health or life may be profound and even cause her mental unrest at a later stage.
While on the on hand, women’s emancipation is the need of the hour and prevention of ever
increasing dowry deaths and harassment needs to be stopped, it is also clearly noticed that women today are still tortured and often the court, being the ultimate savior also does not come to the rescue to protect these women.
Misuse of Section 498 A in Modern World:
A violation of this section, its goals and its aims is on the rise with the woman
frivolously making false allegations against their husbands with the purpose of getting rid of them or simply hurting the family.
The abuse of this section is rapidly increasing and the women often well- educated know that this
section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.
Like in the case of Savitri Devi v Ramesh Chand & Ors[18], the court held clearly that there was a
misuse and exploitation of the provisions to such an extent that it was hitting at the foundation of
marriage itself and proved to be not so good for health of society at large. The court believed that
authorities and lawmakers had to review the situation and legal provisions to prevent such from
taking place.
This section was made keeping in mind protection of the married woman from unscrupulous
husbands but is clearly misused by few women and again this is strictly condemned in Saritha v R. Ramachandran[19]where the court did notice that the reverse trend and asked the law Commissionand Parliament to make the offence a non-cognizable and bailable one. It is been a duty of the courtto condemn wrongdoings and protect the victim but what happens when the victim turns into theabuser? What remedy does the husband have here?
On this ground, the woman gets to divorce her husband and re-marry or even gain money in the
form of compensation.
Many women rights’ groups go against the idea of making the offence a non-cognizable and
bailable one thinking that this gives the accused a chance to escape conviction. But what this would do is that it would give a fair chance to the man and above all help meet the ends of justice. Justice must protect the weaker and ensure that the wronged is given a chance to claim back his/her due.
When women accuse their husbands under S.498A IPC by making the offence non-bailable and
cognizable , if the man is innocent he does not get a chance quickly to get justice and ‘justice
delayed is justice denied’. Therefore, the lawmakers must suggest some way of making this section non-biased to any individual such that the guilty is punished and the person wronged is given justice.
The position of the women in India is still bad. They still need rights to alleviate themselves in
society but many a times fail to notice others’ rights as long as their rights are ensured. The
educated woman of today must agree with the mantra of equality and demand the same but the
trend is slowly getting reversed. Women are taking due advantage of the fact that they are referred to as the ‘weaker sex’ and on the foundation of rights ensured to them are violating others’ rights.
Recent Judgements:
Indian Courts in their recent judgements have looked into the matter of misuse of Sec.-498A I.P.C. As this Section provides that when an F.I.R. is lodged all the family members of the husband can be roped in.In their judicial observations and remarks, the courts have expressed deep anguish over this law. Here are some recent judicial observations.
1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana[20], 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[21], 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[22], 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, InMohd. Hoshan vs. State of A.P.[23] 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”
Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others[24], 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.”
Conclusion:
The Court and Legislature have to make changes if the laws of matrimonial cruelty are to be of any deterrence.Looking into the recent observations and the increase in the misuse of this Section, there should be certain amendments which should be brought up in this 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 counseling centers 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 husbandand 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.[25]
This Section only provides for the remedy to woman only and these days it is being used as a ‘brahamastra’ by the woman. It is a highly debatable issue these days, if this problem is not solved by legislation it may become a bane for the society. People’s trust over the judiciary will come to an end. So it’s high time that this Section be amended and some changes like mentioned above should be brought up in this law.
[1]The Indian penal Code, Ratanlal and Dhirajlal, 30th edition reprint 2008,pg. 917
[25]After looking to the report of following suggestions have been made Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 <http://www.mha.nic.in/pdfs/criminal_justice_system.pdf>chapter 16.
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Following widespread complaints of the anti-dowry law being misused to lodge false cases, the government has decided to review the stringent provisions of the legislation. The Law Commission of India, which advises the government on legal issues, is considering grounds to recommend amendments to section 498A of the Indian Penal Code, which deals with physical and mental cruelty by husbands and their relatives against wives over dowry. Currently this section allows the police to arrest the accused named in a complaint without a warrant and even before investigation. Besides, there is no provision for a compromise between the two parties.
"We've referred the matter to the Law Commission for its opinion since a very large number of complaints have been received against this section," law minister M Veerappa Moily told HT.
He said the Supreme Court had last year asked the government twice to take a re-look at the 28-year-old anti-dowry law following a spurt in its misuse, resulting in old people, pregnant women and even children being booked on false complaints.
Independent studies have put the conviction rate in cases registered under this section at less than 5%, indicating that most of the cases are false.
The Law Commission is examining three aspects - whether it is feasible to categorise the offence as bailable, to allow the complainant to withdraw a complaint in case of a compromise with the court's permission, and if the police should retain the power to make arrests on their own.
"We are examining how to give a human touch to this section, which has a very high potential for misuse. Our concentration is to make the offence bailable, non-cognisable and compoundable," said commission member justice (retd) Shiv Kumar Sharma.
A compoundable offence permits withdrawal of a complaint if both sides patch up.
On August 13 last year, the Supreme Court had stated, "Such is the level of exaggeration of cruel behaviour on the part of husbands and their relatives that to find the truth is a Herculean task in a majority of these complaints."
The top court's observation had come in response to a petition filed by a resident of Surat, Preeti Gupta, who had been named in a dowry complaint by her sister-in-law Manisha Poddar in Jharkhand, after Poddar's marriage with Gupta's brother soured.
