To begin with, firstly we should look at the meaning of marriage, particularly in Indian society. Marriage is a voluntary union of a man and a woman to the exclusion of others.1 It’s a social institution in which the husband has the duty which he cannot neglect to look after and to maintain his wife. But with this institution of marriage, a social problem of dowry continues to exist to an extent that women are tortured, harassed, divorced and even killed for a mere reason of not bringing dowry after marriage.
It is to safeguard the interest of Indian women against the cruelty and torture faced by them behind the walls of their matrimonial home, the Indian Penal Code, 1860(hereinafter referred as I.P.C.) was amended in the year 1983 and S.498A dealing with cruelty in marriage was added to I.P.C. in Chapter XXA which made cruelty in a matrimonial relationship a cognizable, non-bailable and a non-compoundable offence.
Under S498A it is defined that 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 purpose of this section is to combat the social problem of dowry deaths, hence it was introduced in the code through the Criminal law Amendment Act, 1983(Act46 of 1983).
By the same Act Section, 113-A was added to the Indian Evidence Act to define a presumption in the cases of regarding abetment of suicide by a married woman. Section 113-A of Indian Evidence Act reads “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” However, this law is subject to certain misuse by women just for the sake of lodging a fake complaint about revenge.
The objective of introducing S498A of IPC, Criminal Procedure code in 1973 and the Evidence Act suitably to deal effectively not only with the cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.2 It was held in Kaliyaperumal v. State of Tamil Nadu3 that cruelty is a common essential in offences under both sections 304B and 498A of IPC. These two sections are not mutually inclusive but a person acquitted under S 304B for the offence of dowry death can be convicted under S 498A of IPC. It was defined in the above case that cruelty is explained in the explanation part which inter alia says that cruelty is harassment of a woman with a view to coercing her or any related persons to meet any unlawful demand for any property or any unlawful security. However, with the rise in education, modernisation and financial security along with newfound independence from patriarchal structure to some women, radical feminists have made S 498A a weapon in their hands which has made many helpless husbands and innocent family members of the husband to become victims of their vengeful daughters-in-law.
Many cases where Sec 498A is invoked later turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as these cases are mere blackmail attempts by the wife or her close relatives when faced in an unhappy or strained marriage. In most cases, 498A complaint is followed by the demand of huge amount of extortion money to settle the dispute out of court to which husband agrees to avoid a false suit against him and forthcoming disrespect. In a country where violence against women is a common social issue, the misuse of laws trying to protect women by women is quite evident which has become a common argument against the laws relating to violence against women.
The police, politicians and even the judges of High Courts and Supreme Court have offered the arguments of this ‘misuse’ of law. This allegation of misuse is made particularly against Sec 498A and 304B of IPC and one such view is taken by KT Thomas in his article Women and the Law4 published in The Hindu. Similarly, Malimath committee report in 2003 notes that there is a general complaint that Sec498A is subject to gross misuse and it uses it as a justification to suggest amendment without any data to indicate misuse.
A violation of this section based on its goals and its aims is very much on the rise with the women making false allegations against their husbands frivolously with the purpose of hurting them or simply getting rid of them. This abuse of law is rapidly increasing and with the knowledge of this section being cognizable and non-bailable works for the women placing man behind the bars. Like in the case of Savitri Devi v. Ramesh Chand and Ors.5 the court clearly held that there were misuse and exploitation of law provisions to such a level that it was hitting the foundational structure of marriage itself and proving itself to be not so good for the health of society at large.
In the case of Saritha v. R. Ramachandran6 the court held that this law is to protect married women from cruel and evil husbands but it is clearly misused by a few women. Court did notice the reverse trend and even asked law commission and Parliament to make this a non-cognizable and bailable offence. It is the duty of the court to condemn wrongdoings and protect victims but this is the case where the victim has turned into an abuser and the main question is what remedy does a husband have in such situation? On this ground, women get to divorce her husband, remarry or even gain money in form of compensation even when the husband hasn’t done any wrong.
Women organisations are against the idea of making it a non-cognizable offence and bailable thinking that it will give a man a chance of escaping conviction however what this would rather do is that it would give a fair chance to man and above all meet the ends of justice. When women accuse their husbands of cruelty under 498A, the non-bailable and cognizable nature of offence doesn’t give a quick chance to any individual to get justice and as it is said ‘justice delayed is justice denied’. It is right that women need more rights to elevate themselves in society but such rights and the law should not be subject to misuse in the disadvantage of other sex.
Indian courts in multiple cases have looked into the matter of misuse of Sec498A IPC. It is suggested by this section that all the family members can be roped in when a complaint is lodged, to which courts have expressed deep anguish in their judicial observations and remarks.
In Kansraj v. the State of Punjab,7 the apex court observed “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”.
In Mohd. Hoshan v. the State of A.P.,8 Supreme Court observed “Whether one spouse has been guilty 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.”
In Sushil Kumar Sharma v. Union of India9 the apex court held “The object of the provision is the prevention of the dowry menace. But as has been rightly contended 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, the 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”.
The intention of this provision is to act as a shield for women rather than a weapon used by them for their vengeful purpose. There is no question about the investigating agencies and courts acting casually dealing with such allegations. There should be no preconceived notion or view in any case as provided by this law working against husband even when innocent. It is generally seen in such cases that case starts with a presumption of accused being guilty and the complainant is speaking the truth which is too wide and a generalized view taken by courts. It should be the effort of investigating agencies and the courts to see that an innocent person is not made to suffer on the basis of baseless and malicious allegations. It is equally unarguable that in cases where no direct evidence is available and courts have to act which they generally end up on convicting innocent husband. Thus the courts and legislature need to make changes in the laws of matrimonial cruelty, looking into the recent observations and increasing misuse of this Section. Hence some amendments need to be brought up in this law to which makes this offence non-cognizable and bailable is most important to give a fair chance to get justice to those wrongly accused under Sec498A.
Fear of arbitrary and automatic arrest will disappear because accused can apply for bail since it’s a bailable offence. Some men believe that wife is filing cases under pressure from parents and that is an undeniable fact in most of the cases or there is pressure on her to file a case to get a huge sum of money in extortion. In the decision of Delhi High Court in
In Rajesh Sharma and Ors. V. State of UP and Anr10 Supreme Court passed a directive to police and magistrates that there would be no automatic arrests or coercive actions arising out of complaints lodged under section 498A without ascertaining the veracity of the complaints. A bench consisting of justices AK Goel and UU Lalit stated that there was “violation of human rights of innocents”.The verification of the complaints shall be carried out by a special police officer and a district-level Family Welfare Committee which will preferably comprise of three members, who can be “paralegal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing”. The court, however, assured that grave physical injury or death of the aggrieved would be exceptions to this directive.
Law Commission report of 2012 shared similar solutions to combat this abuse of law which were adopted in the judgement above. 2013 report said “Power of arrest vested with the Police Officer in a cognizable offence is no doubt a potent weapon to enforce the penal provision. However, this weapon should be sparingly drawn out of its sheath and wielded only if necessary”, also report laid out guidelines for arrest like “the police officer should be satisfied that such arrest is necessary to prevent such person from committing any further offence, or for proper investigation of the offence, or to prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner.
These conditions are in the nature of mandatory prescriptions to be followed by the police officer before resorting to the drastic power of arrest.11 Also Supreme court held that Family welfare committees should be established in each district to look into such matters and provided guidelines however the apex court in petition by NGO Nyayadhar, while modifying the verdict given by its two-judge bench in Rajesh Kumar v. UOI, said that there is no scope for the courts to constitutionally fill up the gaps in penal law. However such guidelines issued by a two-judge bench in Rajesh Kumar v.UOIwere important to curb this abuse of law.
Also, there is a need for setting up the speedy trial in the cases of 498A, this will not only ensure justice for innocents who have been implicated in false charges. Also, it will lead to redressal of problems of real dowry victims and reduction in false cases will also reduce the burden on the judiciary and expedite the procedures of real cases. If this problem is not solved by legislation, it may become a bane for the society.
|1||Duhaime, Family Law Dictionary(10th ed. 2014).|
|2||Sushil Kumar Sharma v Union of India, (2005) 6 SC 266 (India).|
|3||Kaliyaperumal v. State of Tamil Nadu, (2004) 9 SCC 157 (India)|
|4||KT Thomas, Women and the law, The Hindu (Feb. 19, 2004), https://www.thehindu.com/2004/02/19/stories/2004021902311000.htm|
|5||Savitri Devi v. Ramesh Chand and Ors, (2003) DMC 328 (India)|
|6||Saritha v. R. Ramachandran, (2003) DMC 37(DB)|
|7||Kansraj v. State of Punjab, (2000), CriLJ 2993|
|8||Mohd. Hoshan v. State of A.P., (2002), CriLJ 4124|
|9||Sushil Kumar Sharma v Union of India, (2005) 6 SC 266 (India).|
|10||Rajesh Sharma and Ors. V. State of UP and Anr, (2017) CriLJ 2013|
|11||LAW COMMISSION OF INDIA. Section 498A IPC. Report No.243. AUGUST 2012|