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SECTION 498A: A BACKFIRING LEGISLATION
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SECTION 498A: A BACKFIRING
LEGISLATION
SUBMITTED BY - ANSHUMAN BISARYA
I.
INTRODUCTION
Family is the nucleus of the society.
It is essential in the society for a variety of reasons chief among them is
that it is an institution which eulogizes the hallmark of love, bonding,
harmony and understanding. The institution of marriage suffers from a major
social evil i.e. Dowry and there have been many instances where for the dowry
the husband subjects the wife to physical as well as mental cruelty on wife.
Women are ill-treated, harassed, and in some unfortunate cases, killed, and
divorced simply because they didn’t bring dowry or could not satisfy the greed
of husband and her in-laws. There was a growing cause of concern for the social
cancer ‘dowry’ spreading itself and claiming innocent lives. There were
instances of bride burning. For a country like India where women are often
elevated to status of Goddess, this is abysmal and shows the double-faced
nature of the Indian society. To protect and safeguard the interests of woman
against the cruelty which they face within the four walls of her matrimonial
home, an amendment was brought in the Indian Penal Code, 1860 in the year 1983,
to check cruelty on women by husbands and parents-in-law, rampant on an
unprecedented scale in the country a new chapter XXA, titled: Of Cruelty by
Husband or Relatives of Husband was introduced and insertion of Section 498A
which would deal with matrimonial cruelty subjected to a woman.[1] To
make the offence deterrent, section 498A prescribes a sentence of three years
and also a fine for the husband of a woman, who subjects her to cruelty.[2]
There are many instances where in addition to section 498A, sections 3 and 4 of
Dowry Prohibition Act are also coupled for the case[3]
In the present context, cruelty that
was subjected to married women nowadays has taken a new color and to put it
gently, the tables have turned. Section 498A originally introduced to instill
confidence of married women and their families to fight against ill-treatment
and cruel behavior but the same now has been termed as a weapon. There have
been cases where cases under section 498A coupled with false allegations of
dowry demand, mental or physical cruelty has come to the notice of the Courts.[4]
When this section was introduced with the objective to shield the women from
any cruelty that maybe subjected to them it instilled some hope and optimism
into the hearts of the women and their families that now they the means to
combat against the cruelty of the Indian husbands and their family. However,
with the passage of time it has become clearer and clearer that section 498A of
the Indian Penal Code, 1860 has a lot of gaping holes and has the potential to
fatally cause pain, misery, unwarranted humiliation and mental agony and social
stigma if it falls into wrong hands.
REASON BEHIND INSERTION OF CRUELTY PROVISION IN THE
INDIAN PENAL CODE, 1860
Here
is the opening paragraph from the 91st Law Commission Report
published in 1983 titled Dowry Deaths and Law reform: Amending Hindu Marriage
Act, Indian Penal Code and Indian Evidence Act.
“The
last few months have witnessed an alarming increase in the number in which married
women die in circumstances which, to say the least, are highly suspicious. In
the popular mind, these deaths have come to be associated with dowry, which is why,
in popular parlance, they have come to be called dowry-deaths'. As the victim
is often a young (and a recently married) woman, the phrase
"bride-burning" has also come in vogue”.[5]
There
was lot of growing concern regarding the despicable situation of women and
subjected to cruelty and harassment and other forms of ill-treatment. The
situation and condition of the women inside her martial home was getting
despotic and wives were tormented and pressurized by their husbands and in-laws
who were badly treating the wives and daughter in-laws for dowry.
Subsequently,
section 304B was inducted in the Indian Penal Code, 1860. Section 304B states
“Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage
and it is shown that soon before her death she was subjected to cruelty or harassment
by her husband or any relative of her husband for, or in connection with, any
demand for dowry, such death shall be called ‘dowry death’, and such husband or
relative shall be deemed to have caused her death. Whoever commits dowry death
shall be punished with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life.” [6]
To address the growing issue of mental cruelty and the women being victims of
harassment for dowry, the Parliament inserted section 498A to IPC in 1983[7].
In the case of Prasanna Kumar v
Dhanlaxmi, it was observed by the Hon’ble Court that “Section
498A is not retrospective in nature and no cognizance can be undertaken under
this section in case the offence was committed before the coming of this
section into effect”.[8]
By the same Amendment, section 113-A was introduced to the Indian Evidence Act
with the objective to raise presumption regarding abetment of suicide by
married woman. Section 113A deals with “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.”[9]
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.
PROBLEMS WITH SECTION 498-A AND ITS MISUSE
The 243rd Law Commission
Report commented upon the longstanding issue of police attitude in the cases of
section 498A. The Report observed “The harsh law, far from helping the genuine
victimized women, has become a source of blackmail and harassment of husbands
and others. Once a complaint (FIR) is lodged with the Police
under s.498A/406 IPC, it becomes an easy
tool in the hands of the Police to arrest or
threaten to arrest the husband and other relatives named in the FIR without
even considering the intrinsic worth of the allegations and making a
preliminary investigation.”[10]
The Commission Report observed a rather disturbing problem that has arisen out
during the implementation of this section. Upon filing of an FIR, the names
that are given in the FIR, the police automatically resort to making an arrest
of husband and all the other people whose name was in the FIR.[11]
The Report also remarked about the ‘over-zealous/callous’ action of the police
that it further compounds the problem as it leads to a point of no return for
the couple who marriage is already on the path of breakdown. The immediate
response of the police to arrest husband and others implicated in the FIR will
lead to bitterness and firmly shuts the door for reconciliation.
There have been discussions about
making the offence compoundable. Justice Malimath Committee Report was in
strong favor of making the offence compoundable. The Malimath Committee gave
reason for why the offence should be made compoundable. The Report added “The
offence being non-bailable and non-compoundable
makes an innocent person undergo stigmatization and hardship; Heartless
provisions that make the offence non-bailable and non-compoundable
operate against reconciliations. It is therefore necessary to make this offence
(a) bailable and (b) compoundable to give a chance
to the spouses to come together”[12]
The
Committees were hoping that with the increase in compensation limit, women who
file false complaints would be deterred from doing so. The Report recommended
that the compensation limit changed from not exceeding 1000/- rupees to not
exceeding 15,000/- rupees.[13]
They recommended
strictly following section 41 and 41A of CrPC and adopting a balanced approach
toward the power of arrest. In addition to that, The Commission was also of the
view that this section coupled with the CrPC provisions should ‘not act as an
instrument of oppression’ and ‘counter-harassment’
and become a tool of arbitrary arrests by the Police.[14]
Furthermore,
there was research done by World Health Organization and they ranked India and
Lebanon 1st for legal abuse of elders. In context of India, elders
are being subjected to legal abuse by their daughter-in law by the anti-dowry
laws. The report observed that “In India, there is a law that is intended to protect
daughters-in-law from abusive in-laws. A daughter-in-law can go to the police
station and lay a complaint that she is being abused by her in-laws, and the
in-laws are arrested on her word alone”[15]
The Supreme Court, in the case of
Ramgopal v State of M.P[16]
observed that “the offence under Section 498-A should be made compoundable".
The problem with the section 498A being non-compoundable is that it firmly
shuts the door for any efforts towards reconciliation. There is no ounce of
opportunity left for the husband and wife reach a compromise after realizing
their wrongdoings and start afresh.
These are some of the major issues
and effects of misuse of Section 498-A.
There have been cases as well where
the Judiciary had been forced to admit the misuse of Section 498-A by wives
against their husbands and in-laws.
In Indresh
Gopal Kohli v Anita[17], the
appellant was the husband and respondent, his wife. They married in 2009 but
soon after the marriage, relations turned sour and he was subjected to cruelty
by his wife. The husband further said that she would create a scene in his
workplace and there were quarrels and that she misbehaved and his parents were
subjected to mental harassment from her side. She also threatened to falsely
implicate the husband and her in-laws for a case of torture and cruelty for
dowry. The appellant husband filed for divorce on grounds of cruelty under
section 13 of the Hindu Marriage Act, 1955 but the Family Court dismissed the
case citing that this does not constitute cruelty. Upon appealing, the High
Court did find the evidence as cruelty and divorce was granted.
In the case of Preeti Gupta v
State of Jharkhand[18],
The Supreme Court remarked that “It is a matter of common experience that most
of these complaints under Section 498-A IPC are filed in the heat of the moment
over trivial issues without proper deliberations. We come across a large number
of such complaints which are not even bona fide and are filed with oblique
motive.” The Court observed that the facts and circumstances of the case when considered
in the background of legal principles “would be unfair to compel the appellants
to undergo the rigmarole of a criminal trial”. Subsequently the complaint
against the appellants was quashed.
In the case
of Sushil Kumar v Union of India[19],
the Supreme Court observed that “because of the fact that this legislation is
constitutional, it should not be misused”. It remarked that “the object of IPC
is to strike at the roots of dowry menace. But by misuse of the said provision
a new legal provision a new legal terrorism can be unleashed.” The Supreme
Court also acknowledged that there have been instances which have come to light
where the complaints were filed with mala fide intentions and ulterior
motives.
In the case of Arnesh Kumar v State[20],
The Supreme Court dealt with the question of constitutionality of section 498-A
being brought into question, although ultimately the petition was dismissed but
the Apex Court remarked that “There is a phenomenal increase in matrimonial
disputes in recent years. The institution of marriage is greatly revered in
this country. Section 498-A 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 498A IPC is a cognizable 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.”
CONCLUSION AND SUGGESTION(s)
The 243rd Law Commission
Report despite coming on the conclusion that this section is indeed misused and
the offence should be made compoundable to reduce its misuse said that misuse
of the section does not make ground that this section should be diluted and was
rather hesitant to suggest dilution whilst acknowledging the misuse at the same
time. The Committee had recommended changes so as to discourage it from being
misused but nothing of such sort which would create a deterrence effect in the
mind of women to think properly before filing a false case. If there is no
effect of deterrence or fear that any wrong doing will be checked and tough
action will be taken against the wrongdoer, because of absence of anything such
as this, guidelines won’t be that effective as it would depend on the police
officer how he/she wants to conduct the investigation and make arrests or not.
However, one tries to defend section 498A and dictates its social objective and
how it is necessary for vulnerable women; one cannot simply ignore the fact
that this section is being grossly misused. The law is made with the intention
to empower the women however what the women don't realize is that if
legislation is being brought under the spotlight and being associated as a
weapon, it would lose its value and would be characterized as a misused Law
completely defeating the purpose it was enacted for.
Providing protection to women being
subjected to mental cruelty and abuse at the hands of their husbands and
in-laws does not mean that this ongoing misuse of Law should be tolerated. This
view has been echoed by the Hon’ble Courts of India from time to time and have
admitted that there is misuse of this section and they have also admitted in
the Arnesh Kumar case that their hands are tied and it is for the legislator to
step in and come with up with a legislation that sends a clear message to those
women who do not visualize the extent of their actions that they take out of
revenge and at the heat of the moment. This is high time that the legislators
realize and come up with some counter measures. Time has exposed the gaping holes
that exist in this section and the problems that have sprouted as a result of
those holes (Police attitude of arrest first; section being non-compoundable
which acts as an obstacle in the path of reconciliation and in cases, husbands
do not want their wives back at all because of false cases filed against them
and their parents).
The paper would like to conclude that
this section has indeed backfired because its objective was to stop harassment
of innocent but the irony is that it is now become a preferred medium of
harassing the innocent and wreaking havoc in innocent husband’s lives. The
section being tilted towards one gender and the action that ensues in event of
complaint is often used to threaten, instill fear, extort and force the
husbands and their family to give in and do whatever the wives have asked to do
otherwise false case will be filed against them. The blatant misuse actually
affects the real victims of the crime as barrage of false cases have been filed
and pendency rate is high. It is a mockery of the Law that somebody is in a
position to openly threaten somebody that they will initiate a false proceeding
against them. This section as has been suggested by the Courts and the
Commission Reports needs to be amended urgently with tough actions being taken
against those who file false cases and misuse this section.
It is time that the recommendations
of the Law Commission reports be reflected in reality to serve as a deterrent
effect to those wishing to misuse this provision.
[1] This chapter has been inserted by
the Criminal Law (Second Amendment Act,1983) (46 of 1983)
[3]243rd Law Commission
Report, 2012 https://lawcommissionofindia.nic.in/reports/report243.pdf
[4]PTI, Supreme Court modifies its order on Dowry cases,
Times of India, (15th November 2020, 7:49 PM)
https://timesofindia.indiatimes.com/india/supreme-court-takes-note-of-misuse-of-section-498a-makes-it-bailable/articleshow/65805285.cms
[5] 91st
Law Commission Report, LAW COMMISSION OF INDIA https://lawcommissionofindia.nic.in/51-100/report91.pdf
[6] Indian Penal Code, 1860 § 304B
[7] Supra note 5
[8] Prasanna Kumar v Dhanlaxmi 1988
SCC OnLine Mad 57
[9] Indian Evidence Act, 1872 § 113A
[10] Supra note 5 at Pg.10
[11] Supra Note 5 at Pg.12
[13] Supra Note 3 44
[15]Editor, Missing Voices, World Health Organization (24th
November 2020, 4:55 PM) https://apps.who.int/iris/bitstream/handle/10665/67371/WHO_NMH_VIP_02.1.pdf;jsessionid=67A9AEDE446050E536F80AF5B17F451A?sequence=1
[17] Indresh Gopal Kohli v Anita 2019
SCC OnLine Utt 953
Article Information
SECTION 498A: A BACKFIRING LEGISLATION
Authors: ANSHUMAN BISARYA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/09/14
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International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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