SECTION 498AINDIAN PENAL CODE

PRESENTED BY:

ABEL DAVID &

AKHIL VINAYAN

THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

SECTION 498A- HUSBAND OR RELATIVE OF HUSBAND OF A WOMAN SUBJECTING HER TO CRUELTY.

“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 pun ished with imprisonment for a term which may extend to three years and shall also be liable to fine.”

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 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.

MEANING OF CRUELTY U/SECTION 498AIt was held in ‘Kaliyaperumal vs. State of Tamil Nadu’, 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. Sumita Malik(1986 CriLJ 1510), 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

Every accused is treated in more or less the same way by the police. The validity or truth of allegations will be proved later (sometimes decades later), but until then, it is considered that whatever a woman has alleged is the absolute truth. The National Crime Records Bureau (NCRB) data reveals the fate of most cases under Section 498A, where the conviction rate is merely 13%, and pendency remains as high as 89%. Cases are filed and remain pending in the court for years. But, all the accused are to be arrested as soon as the case is filed, because this section of the IPC is non-bailable, and only a court can grant bail to them, after producing sureties of required amount. This arrest is what makes Section 498A the most terrifying among other family laws, and qualifies it to be a criminal case.

It seems like, technically, if someone wants to be assured of the accused's arrest, the allegations are to be framed in such a way that the court easily sees the probability that the crime has occurred prima facia.

Those accused under Section 498A are not serial abusers of law or criminals or terrorists, but still, they are treated as hardcore criminals. Most of the cases under Section 498A arise out of misunderstanding or ego clashes at home, and are filed to settle personal scores. The entire family of the husband is made accused in the case to 'teach them a lesson'.

THE NATURE OF THE OFFENCE UNDER SECTION 498 A IS

Cognizable: Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence.

Non-Bailable: There are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody.

Non-Compoundable: A non-compoundable case, e.g. Rape, 498A etc, cannot be withdrawn by the petitioner. The exception is in the state of Andhra Pradesh, where 498A was made compoundable.

DEVELOPMENT OF SECTION 498A, IPC

The section was enacted with the aim to protect women from dowry harassment and domestic violence. However, more recently, its misuse has become an everyday affair. The Supreme Court, hence, in the landmark case of Sushil Kumar Sharma v. Union of India condemned this section as ‘Legal Terrorism’. Since cruelty is a ground for divorce under section 13 (1) of Hindu marriage Act, 1955. Wives often use this provision in order to threaten husbands.

In another case of Preeti Gupta v. State of Jharkhand(13 August, 2010), the Supreme Court observed that “serious relook of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases”.

Even an innocent person accused under S.498A IPC, does not get the chance of getting quick justice owing to the offence being non-bailable and cognizable. We well know that ‘justice delayed is justice denied’, hence came the 243rdreport of Law commission on section 498A of IPC laying down various changes ought to be made in order to remove the flaws of this section and its misuse.

RECOMMENDATION

• The Code may be suitably amended to make the offence under Section 498 A of the Indian Penal Code, Bailable and compoundable.

SECTION 498A OF IPC MISUSED

How are you at risk and why it is dangerous for the society?

Your wife/daughter-in-law who's demands are not met can make a written false complaint of dowry harassment to a nearby police station. The husband, his old parents and relatives are immediately arrested without sufficient investigation and put behind bars on a non-bailable terms. Even if the complaint is false, you shall be presumed guilty until you prove that you are innocent.

• 498A can only be invoked by wife/daughter-in-law or her relative. 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. This section is non-bailable(you have to appear in court and get bail from the judge), non-compoundable (complaint can't be withdrawn) and cognizable (register and investigate the complaint, although in practice most of the time arrest happens before investigation).

There have been countless instances where, without any investigation, the police has arrested elderly parents, unmarried sisters, pregnant sister-in-laws and even 3 year old children. In these cases unsuspecting family of husband has to go through a lot of mental torture and harassment by the corrupt Indian legal system. A typical case goes on for years (5-7 years is typical) and the conviction rate is about 2% only. Some accused parents, sisters and even husbands have committed suicide after time in jail.

CASE LAWS

Appellants: Sushil Kumar SharmaVs.Respondent: Union of India (UOI) and Ors.

Indian Penal Code, 1860 - Section 498A - Whether Section 498A dealing with offence of husband or relative of husband of woman subjecting her to cruelty and punishment-Whether ultra vires Constitution? - Held, No - Mere possibility of abuse of provision of law-Does not per se invalidate legislation-If provision of law is misused or subjected to abuse of process of law-It is for Legislature to amend, modify or repeal it, if deemed necessary.

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 framework. As noted above, the object is to strike at the roots of dowry menace. 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.

SAVTRI DEVI

versus

RAMESH CHAND AND OTHERS

2003CriLJ2759

Only allegation against the respondents is that they did not like the clothes brought by the petitioner as customary gifts for relatives of the husband. One of the sisters-in-law remarked that had the marriage taken place with her sister, more dowry would have been received. These allegations when tested on the anvil of aforesaid tests, do not make out a case of either 'cruelty' or 'harassment' as contemplated by Section 498A IPC Non-acceptance of gifts might have hurt her feelings and other remarks might have been unkindly and incisive but by no stretch of imagination, such a conduct involves any of the ingredients of either offence under Section 498A IPC or 406 IPC.

Neither such an act or conduct has the effect of driving the woman to commit suicide nor of causing grave injury nor, is likely to cause danger to life or limb nor did it amount to tormenting her either physically or mentally to compel or force her or her relatives to fulfill the demands of any property or valuable security. For the foregoing reasons, the petition is highly misconceived and is being used as a tool to hold the entire household to ransom and jeopardy. Petition is dismissed.

SARITHAVERSUSR. RAMACHANDRA2002(6)ALD319

Wife refuses to live with husband in spite of husband & Hon’ble Court taking every effort to save the marriage. Court even request the couple to stay at a resort for a week, wife returns from the stay, says enjoyed her time, but still wants divorce. Then wife files a false 498A which the court openly condemns.

JUDGEMENT 5. During hearing, we came to know that the appellant filed a criminal case against the

respondent and his entire family under Section 498-A IPC. From the conduct of the appellant we have no hesitation to hold that the appellant being at fault wants to misuse the process of law and harass the respondent and his family members for the sin of marrying her. We never expected that women would be of such a character in this country. Even though the respondent expressed so much magnanimity towards her, without ill-will or rancor and extended his arm to lead a happy marital life, the appellant just threw away the offer with her little finger. The criminal Court shall take up the case for trial on day-to-day basis and dispose of the same within one month from the date of receipt of this order. In the event of dismissal of the criminal case as a foisted one and the allegations are far from truth, it is always open to the respondent to take appropriate criminal action on the appellant as well as her parents for implicating them in a false case and making them to come all the way from New Delhi to Hyderabad to attend the Courts.

6. This Court would like to go on record that for nothing the educated women are approaching the Courts for divorce and resorting to proceedings against their in-laws under Section 498-A IPC implicating not only the husbands but also their family members whether they are in India or abroad. This is nothing but abuse of beneficial provisions intended to save the women from unscrupulous husbands. But it has taken a reverse trend now. In some cases, this type of action is coming as a formidable hurdle in reconciliation efforts made by either well-meaning people or the Courts and the sanctity attached to the mandate that the Courts shall always try to save the marriage through conciliatory efforts till the last, are being buried deep-neck.

RECENT DEVELOPMENTS

Arnesh Kumar

Versus

State of Bihar

(AIR2014SC2756) In this case the Hon’ble court has issued some directions in order to prevent unnecessary arrest and causal

and mechanical detention.

1. All  the  State  Governments  to  instruct  its  police  officers   not   to automatically arrest  when  a  case  under  Section  498-A  of  the  IPC  is registered but to satisfy themselves about the necessity  for  arrest  under the parameters laid down above flowing from Section 41, Cr.PC.

2. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii)

3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.

4. The Magistrate while authorising detention of the accused shall  peruse  the report furnished by the police officer in terms  aforesaid  and  only  after recording its satisfaction, the Magistrate will authorise detention; e)      The decision not to arrest  an  accused,  be  forwarded  to  the  Magistrate within two weeks from the date of the institution of the case  with  a  copy to the Magistrate which may be extended by the Superintendent of  police  of the district for the reasons to be recorded in writing.

5. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing.

6. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

7. Authorising  detention  without  recording  reasons  as  aforesaid  by   the judicial Magistrate concerned shall be liable  for  departmental  action  by the appropriate High Court.

8. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

9. We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.

THANK YOU

| PREPARED BY: ABEL DAVID

AKHIL VINAYAN |