Open Access Research Article
THE VEXATIOUS CRUELTY BY – JUHI MISHRA
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Article Details
THE VEXATIOUS CRUELTY
AUTHORED
BY – JUHI MISHRA[1],
Abstract:
The word ‘cruelty’ is not gender
specific but has gathered the catatonic notion of being gender specific, being
inflicted by one over another, notwithstanding the fact that from
anthropological dimension and natural selection the dominant has inflicted
cruelty on weaker ones. Originally, word cruelty was gender neutral and had the
construct as enunciated before. However, after enactment of Act no. 45 of 1860,
the legislature re-defined the construct of cruelty and encapsulated it in a
narrower construct qua abuse in matrimonial bond by male over female in socio
legal space. The ex-parte construct by Indian Penal Code caters victimization
of female by men and never vice-versa, which is also a social truth. Notwithstanding
the above, the offence also ropes the female members of ‘accused husband’, but
never the male or female members of wife. The accusation on male got justified
because of the excuse based upon the fact that the society is male dominated or
the patriarchal one. This is basically the fact that so far the coin had been
seen only from single side and not from the both. The other face of the coin
remains neglected. The other face of the coin is the fact that the cruelty can
be exercised on males too. The records and surveys also speak about the same
injustice and biasness. This paper deals with the injustice and the indifferent
treatment which has been imparted upon the husband and his relatives. The
matrimonial bond had been considered as sacramental bond since ages. But
amongst the women who are aware of such provisions, there are few who use these
provisions for their evil motive, ultimately tarnishing this sacramental bond
and hence, degrading the societal norms and creating mistrust in society as a whole.
The aim which had been thought off by the legislature to achieve by adding
Section 498-A of Indian Penal Code got dissipated and the objective related to
it became the secondary aspect. The destruction made by the respective section
had been given it a disrepute. The section was meant to be a tool to protect
her and to enable her to profess the equality and the justice as enshrined in
the Constitution of India, but now is it is more used by the evil minded women
as a tool for unjust enrichment, rather than a medium for which such section
was formulated. This is now a tool for vindictive propaganda. This false
accusation of cruelty is nothing but an actual cruelty upon the husband and his
relatives. Such false accusation leads to the deterioration of their
reputation, wealth, time, trust etc..This harassment and torture which they
have to suffer can be eased out by acquitting them but whether it is an
appropriate and satisfactory remedy? Is this a proper and efficient justice?
Just acquitting the so called accused can never pay back. Anyone filing for the
false accusation should be punished accordingly and the time and justice also
demands to revisit the cruelty provision.
Keyword: Cruelty, Gender-sensitization, Amendment, False-accusation,
Relatives
1. Introduction
“The family is the simplest and smallest unit of society and the real
fountain of culture. If this fountain remains pure, man's culture has promise.
But if it becomes polluted, all the rest will turn to dust and ashes, since the
home is the foundation of the entire social structure.”[2]
For a family to be the smallest unit
and for the proper and systematic functioning of this unit the person needs to
enter into the institution of marriage regardless of the religion to which he
belongs. Various authors and authorities define marriages of some religious as
sacrament and of others as contract. But observing keenly, in practical sense
each and every religion in India regard marriage as an eternal bond and hence,
a sacrament. Sacrament is obviously seen as a pure concept, but various
instances take place which tarnish this pure sacrament, hence adversely
affecting the whole society, as the family being the smallest unit of the
society. This sacrament could only be practiced by both the man and woman being
party to the marriage. Such a pure
institution many a times get covered by the cloud of ego, misunderstandings,
back-biting, the avariciousness for dowry etc. and hence, creating mistrust,
bitterness in relation, and hence, many times leading to the cruelty and
torture of other partner. This cruelty ultimately destroys the institution of
marriage.
Every person is invested with the
right to live with the dignified life.[3] A
dignified life is an essential to the free-mind living and the over-all
development of the person. Honorable Justice J D.Y.Chandrachud also stated
that, “Human Dignity is the integral part of the Constitution. Reflections of
dignity are found in the Guarantee against arbitrariness (Article 14), the
lamps of freedom (Article 19) and in the right to life and personal liberty
(Article 21).”[4] The
Constitution of India also envisages the “Protection of life and personal
liberty”[5] to
be the fundamental right. The Secretary-General
in his message on United Nations Day said, “When we achieve human rights
and human dignity for all people - they will build a peaceful, sustainable, and
just world.”[6] But when
the cruelty is practiced on any person then it is the fundamental as well as the
natural right violation of the victim. “Natural Rights are inalienable because
they are inseparable from the human personality.”[7]
Even in jurisprudential studies the distinguished jurist John Locke supported
the right to preserve life and property and perfect equality and freedom to be
the concoction of the natural right.
One of the instances where the
personal liberty and life suffer a threat is cruelty in the institution of
marriage. This superiority could be of various categories. For instance, physical
superiority, mental superiority, financial superiority or it could be just the
social superiority based on the patriarchal nature of society. Just because of
the feeling of the superiority of the particular gender the husband tends to
show the dominance over the wife. The most appropriate instance amongst all is
the dowry demand. The demand of dowry by husband and the relative of husband
create the pressure upon the bride and the family of the bride to fulfill the
demand and there begins the realm of cruelty. The cases of dowry death and the
burning of the bride were becoming more and more common. Also, the torture
which was imparted to the victim to meet the demands were on the surge which
lead to mental pressure and ultimately the decision of suicide was taken by the
victim. The lawmakers and the constitution framers were aware of the pathetic
condition of the women in the Indian Society and hence, they contemplated to
insert Article 15(3) of the Constitution which lays down that, “Nothing in this
article shall prevent the State from making any special provision for women and
children”. This is an enabling provision which empowers the state to frame
various laws that could be beneficial for the development of the women and to
render them a dignified life.
Therefore, to protect resulting evil
consequences of the prevailing gender inequality and threat to the lives of
women, the legislature in the year 1983, inserted Chapter XX-A, entitling “Of
cruelty by Husband or the Relatives of Husband”. This chapter was inserted to
act as a preventive measure towards the women who suffer cruelty by their
husband or the relatives of the husband. “In a civilized society male
chauvinism has no room. The Constitution of India confers the affirmative
rights on woman and the said rights are perceptible from Article 15 of
Constitution. When the right is conferred under Constitution, it has to be
understood that there is no condescendation. A man should not put his ego or,
for that matter, masculinity on a pedestal and abandon the concept of civility.
Egoism must succumb to law Equality has to be regarded as the summum bonum of
the constitutional principle in such context.”[8]
The recent report of National Crime
Record Bureau, 2021 shows that there is rise in crime against women. Crime
against women rose by 15.3 per cent in 2021 from the previous year, according
to latest data released by the National Crime Records Bureau (NCRB), with
4,28,278 cases registered last year following 3,71,503 cases in 2020.[9] Out of these, ‘Cruelty by Husband or His
Relatives’’ saw the most number of cases, i.e., 31.8%.[10]
But unfortunately, every coin has two
sides. When this new inserted provision successfully acted as a preventive
measure to protect the woman, the woman on the other hand started to use it as
a tool to coerce their in-laws so as to satisfy their wants. It is an alarming
situation that the misuse of such provisions can ruin the life various people
and it’s the time for legislature to take an action to prevent such vexatious
allegations.
2. Essential ingredients of Section 498-A: The essential ingredients of Section
498-A of Indian Penal Code are as follows:
2.1: The woman must be married: Section 498-A is applicable in the status of
marital relationship only. The woman must be married and there must be the
color of the existing married relationship. The term ‘woman’ used in the
concerned section is the general terminology and includes the wife of all types
of marriages. The honorable Supreme Court in the case of Shivcharan Lal Verma and others vs. State of Madhya Pradesh[11]
in its 3 judges’ bench decision ruled that for valid applicability of section
498-A there must be valid marital relationship between man and woman. Further
in various other cases the Honorable Supreme Court was still of view that there
should be some sort of ceremonies with the object of getting married. The
status of the validity of marriage does not affect the applicability of the
said section. Even the bigamous marriage between the wife and husband cannot
shelter the husband behind the smoke screen on pretext of marriage being not
valid, and hence, still the husband can be made liable under Section 498-A of
Indian Penal Code.[12] But the
man and woman living in live-in relationship cannot attract the provisions of
section 498-A.[13]
2.2: She must be subjected to cruelty or harassment: With a view to attract the applicability of the Section 498-A
of Indian Penal Code, it must be the established fact that the woman was
subjected to cruelty with a view to coerce her to practice bodily injury to
herself which is grave in nature or to commit suicide. Cruelty not being the
subjective concept differs from facts and circumstances of each case. It
depends upon person to person on whom the cruelty is performed. The cruelty
must be such as to drive the normal frame of mind of the victim. To understand
this ingredient the word ‘cruelty’ must be understood. Cruelty is a
multi-faceted concept. Cruelty cannot be defined in isolation; rather to define
cruelty there is needed to understand the various dimensions of it.
Black’s Law Dictionary defines
cruelty as, “The intentional and malicious infliction of mental or physical
suffering on a living creature especially a human; abusive treatment; outrage.”
In the sequence of defining cruelty
the Black’s Law Dictionary further defined the term extreme cruelty “As a
ground of divorce, one spouse’s physical violence towards the other spouse, or
conduct that destroys or severely impairs the other spouse’s mental health.”
D. Tolstoy's "Cruelty which is a
ground for dissolution of marriage may be defined as willful and unjustifiable
conduct of such a character as to cause danger to life, limb or health, bodily
or mental, or as to give rise to a reasonable apprehension of such a
danger."[14]
Thus, to constitute cruelty, element
present can be both mental as well as physical as well as any one of them. But
it should also be taken into consideration that what is cruelty in one case may
not amount to cruelty in another case. It is a matter to be determined in each
case having regard to the facts and circumstances of that case.[15]
There is no straight jacket formula
to establish the fixed criteria to constitute cruelty as each case varies from
each other and depends upon the facts and circumstances of each case and
according to the social or economic strata of the person concerned. Few
instances of cruelty can be that even the absence of mutual respect and
understanding between spouses[16], abnormal
conduct of one spouse or the conduct o he souse below accepted norm of one
partner[17], etc. can
also constitute cruelty. Generalization cannot be done of the concerned issue.
The cruelty as given under Section 498-A of Indian Penal Code has been aptly
explained in the clauses (a) and (b) of the explanation. The explanation points
out that the cruelty and harassment of wife would be constituted:
1. when the wife tends to cause grave
bodily injury to herself, or;
2. to commit suicide, or;
3. To fulfill the illegal demand for the
dowry.
But this explanation of cruelty could be a
ground of divorce but to constitute an offence under Section 498-A of Indian
Penal Code there should be something grave in nature.
2.3: Cruelty must be by husband or the relatives of the husband: The term ‘Relative’ means the relationship
arising out of blood, marriage or the adoption. Thus all the relation that
arises out of the blood relation to a man is within the scope of the relation.
Moreover, considering the point that whether the relationship arising out of
marriage or another wife of the man could also be admitted to the ambit of
relative of husband? Then, the answer to such can be in the affirmative. The
cruelty towards the first wife by the second wife comes within the ambit of
Section 498-A. Also, the affiliation of the second wife is inclusive in the
term relative of Husband. But, the scope of the interpretation of the term
‘relative of husband’ nowhere includes the concubine of the husband; as such
relationship does not arise out of blood, marriage or adoption.
3. Causes of Cruelty:
Nothing occurs in the
vacuum. For cruelty there are various factors which contribute in constituting
the offence. For understanding the concept of cruelty there is need to
understand the cause. There could be various causes which can lead husband and
the relatives of husband to practice cruelty upon the wife. Few reasons can be
as follows:
3.1: Greedy demand of dowry: The persistent demand for the dowry puts the
victim in the state of tension and frustration. Because if we consider the social
factor as well as personal factor and the way the Indian daughters are brought
up, the daughters after their marriage do not want to be burden on her parents
and hence she hesitate in putting forward the demands to her parents. On the
other hand the in laws of the victim
pressurizes her to ask for the same and they want to make their fortune by the
money and property out of the hard earned money of the parents of their
daughter in law. Seeing the pitiful condition of the victim the husband and the
relatives of husband ask the victim to fulfill their demand for dowry thereby
harassing the victim.
3.2: Dominance:
In the Indian society it is a pattern to show that the groom’s side of family
is more superior than that of the bride’s family and in following the age old
same pattern the husband and the in- laws of victim exceeds the required amount
of the ostentatious behavious and that ultimately results in the cruelty. Many
a times they also use inhumane means to treat her as a subject and tends to
dominate her.
3.3: Extra- marital affairs: Talking practically, the wish of husband to marry another
woman and to coerce the earlier wife to give divorce or to allow the husband to
enter into another marriage also tends the in-laws to treat the victim in
inhumane manner.
3.4: Pre-marriage relation of wife: In case the bride had a relationship with any person
other than the groom before her marriage and the husband and in-laws of the
victim gets to the same then it also results in the cruelty towards the bride.
3.5: Expecting only her to adjust: The rigid
behavior of the husband and the in-laws of the wife majority of times expect
only the victim to adjust with the new house and new people and they do not try
to be flexible enough so as to assist her in adjusting. They do not even try to
make the condition of the house so amicable enough so as to make the new member
of the family comfortable amongst them.
3.6: Vexatious social stigma: The age old fake reputation in which the old member of the
family have to show their relatives and the friends that their daughter in law
listen to them and dare not to do anything without their permission also tends
to make the lives of the daughter in law miserable.
4. Analysis of Section 498-A with other relevant provisions:
Any of the legal
provisions of the existing laws
could not operate in vacuum and they have other provisions also which act as
complementary to each other and they function properly with the support of each
other. The study of Section 498-A tends to be incomplete without the study of
some other provisions of the Indian Penal Code as well of the Indian Evidence
Act. The deep analysis and the constituting force of Section 498-A leads to the
contributing factors and for instance few of them are cruelty, suicide, dowry
death. The object behind the in-depth
analysis is that, the torture or the harassment must be of such a nature so to
drive the women out of her stable mental frame. Due to her disturbed metal frame
she must be having self- killing instinct. Thus, the ingredients constituting
cruelty consists of both mental as well as physical cruelty. The instinct to
commit suicide is the reflection of mental cruelty and the tendency to cause
grave injury to her body itself reflects the physical injury. But, on a word of
caution, the act driving the mental frame of woman to cause the injury or to
commit suicide is not the innocent act of the accused. Such act is done
deliberately and with ‘intention’. The component of mens rea is well founded in
such acts. If any act is done by the husband of the victim or the relative of
the husband which in itself is a normal act and the intention part is missing
in it then it will not constitute cruelty upon the wife.
To analyze further and
also to promote further the objects of the protection of women from the menace
of the dowry extortion and cruelty concept for such purpose Section 113-A and
113-B of Indian Evidence Act comes into play.
4.1: Section 113-A: Section 113-A was added by the Act 46 of 1983 so as to eradicate
the social evil of the suicide by the married women due to cruelty practiced
upon her by her in-laws or by her husband. The connection between Section 498-A
of the Indian Penal Code and Section 113-A of Indian Evidence Act is that the
explanation attached to Section 113-A of said Act defines cruelty to be the
same that of Section 498-A. Due to the nature of the offence which takes place
within the four walls of the house, the matter of privacy prohibits the
evidence to be collected. The physical injuries and tortures can be recognized
by due medical examination but the mental torture could not be measured. Thus,
keeping in mind the fact that the evidence cannot be collected the legislature
made a provision to make a prima facie case for the person in whose favor the
presumption is raised. Thus, there is
the presumption concept, i.e., the presumption could be raised on the point
when the criteria lay down by the Section 113-A and 113-B are fulfilled. The
presumption for Section 113-A is that the married woman must have committed
suicide within seven years of marriage.
Along with the suicide the ingredients of the Section 498-A Indian Peal
Code must have been fulfilled to raise the presumption. On the other hand Section
306 of Indian Penal Code lays down, “Abetment of suicide.—If any person commits
suicide, whoever abets the commission of such suicide, shall be punished with
imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine”. This section before the inclusion of Section
113-A was of no use in regard to suicide committed by the married women as no
presumption could have been raised in this regard and the case could not be
attached in whole with the section 498-A of Indian Penal Code. Thus the inclusion
of Section 113-A resulted in the proper functioning of Section 306 Indian Penal
Code for the protection of married women from the menace of the society. For
the clarification of doubt Section 113-A does not lays down for the creation of
any substantial right but it is matter of procedure only.[18]
4.2: Section 113-B: Section 113-B raises a presumption that if a woman died and
before her death she was subjected to cruelty by her husband or by her in laws
then the cause of her death is demand of dowry. For the purpose of Section
113-B also the term cruelty will derive its meaning from section 498-A of
Indian Penal Code. The presumption of section 113-B will come into play when
few conditions are fulfilled. The conditions are that the women should have died
because of burns or the bodily injury or if she had died under normal
circumstances then the death should have occurred within seven years of
marriage. But it is necessary element that it should be evident from the
existing facts that soon before her death she was subjected to cruelty by her
husband or by her in- laws. Therefore,
if these conditions are fulfilled then the presumption is raised against the
accused and hence the onus of proof shits upon the accused to prove against the
same.
Thus, the legislature
with the aim and objective of providing a secure life to the married women and
to eradicate the menace of the dowry demands and the torture which the brides
were surviving, famed the relevant provisions which could serve the purpose.
Also by framing such provisions, legislature aimed to fill the lacuna regarding
the enforcement of such provisions which remained eclipsed but to non
availability of the enabling and supportive provisions.
4.3: The Protection of women from Domestic Violence Act,
2005: This Act was
enforced by the Parliament in 2006. The purpose of the Act was to curb down the
offences of domestic violence but due to improper implementation the women are
still at the receiving end.[19]
As per the Act the objective stated is “to provide for more effective
protection of the rights of the women guaranteed under the Constitution who are
victims of the violence of any kind occurring within the family and for matters
connected therewith or incidental thereto.”[20]
Thus, laying down such objective the Act, the legislature provided for various
facilities through orders and the officers as enumerated in the Act, such as,
appointment of protection officers, establishment of shelter homes and
provisions relating to the service providers. It also provides for various
reliefs such as providing counseling, providing of assistance of welfare
expert, protection orders, residence orders, monetary reliefs, custody orders,
etc.
4.4: Dowry Prohibition Act, 1961: Act 28 of 1961 was enacted with the
objective of prohibiting the giving and taking of dowry. This Act was enacted
with the motive to tackle with the menace of the dowry system which was
prevalent in the Indian social system. Practically, the dowry system is still
prevalent in India not in it’s original form but in a disguise. The
implementation of the law is being carried out by the government but not in
such a way as to properly curb it down. A way better implementation of the same
law can still be carried out.
5. Dark side of 498-A:
The purpose and object of
section 498-A of Indian Penal Code is in compliance with the constitutional
essence so as to provide a protection as aspired by the Constitution under
Chapter III and also under Chapter IV. Section 498-A also provide sense of
security to the woman who were remediless in the hands of their in-laws just
because of the purpose of dowry extortion and other contributing factors. The
legislative intent was just to create a sense of equality and justice towards
the women in the midst of the rising cases of the cruelty. Holding the
constitutional validity of Section 498-A held that, “Provision of S. 498A
of Penal Code is not unconstitutional and ultra vires. Mere possibility of
abuse of a provision of law does not per se invalidate legislation. Hence plea that S.
498A has no legal or constitutional foundation is not tenable. The object
of the provisions is prevention of the dowry menace. But many instances have
come to light where the complaints are not bona fide and have been filed with
oblique motive.”[21]
But, the thing turned
towards the unexpected side. Section 498-A of Indian Penal Code has
subsequently and ultimately became the devil’s weapon with the passage of time.
The section was formulated and inserted for the protection of women but it is
the same women who are using it as a tool to fulfill their needs and
self-centered attitude.
“There is phenomenal
increase in matrimonial disputes in recent years. The institution of marriage
is greatly revered in this country. 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 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. In a quite number of cases, bed-ridden
grand-fathers and grand-mothers of the husbands, their sisters living abroad
for decades are arrested.” [22]
With the passage of time
various changes took place in the society which caused women to adopt such a
way which ultimately caused the misuse of the law. Few of the causes can be
enumerated as under:
4.1: Non-fulfillment of fantasies:
Most of the
times the bar which is set by the girl who is going to be married is set at
such a high level that is not possible in real world to be fulfilled but could
only be possible in the reel world. The fantasies driven by the television
serials and the movies prove to be harmful in the real life and amicable
married life. The dreams aspired by the girls due to effect of the social media
and traditional television serials proves to be harmful for the real life.
4.2: Un-willingness to live in the joint family: Due to continuous guidance and interference by the elderly
persons of the family to different aspects of life the wife feels frustrated to
life together and becomes keen to live separately with no interference by any
other relatives. But when these expectations are not met then she feels
frustrated and this unrest ultimately leading to the misuse of the law.
4.3: Extra-marital Affairs: Many a times due to
the relationship or the interest of the woman outside the wedlock is the
dangerous step in which she tries to make fortune out of the income and
property of husband on the advice of the paramour. To do so, she coerce the
husband and the in-laws to fulfill her demand, otherwise they have to suffer
the false accusations.
4.4: Pre-marriage affair: The forceful marriage
of the girl with the accused paves the way towards the false accusations as the
marriage was forceful and she is not willing to live with the accused and her
in-laws.
4.5: Concealment by husband regarding his worth and profession: It is also the fact in several cases that
before marriage the boy’s side just to make their ostentatious reputation in
front of society tells a lie that their son in having a hefty amount of income
and is having a highly reputable job. But after marriage the wife founds the
truth and then to retaliate from this, she files the false complaint accusing
the husband and the in-laws.
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.[23] This ultimately ruins the institution of
marriage. It not only affects the relationship of husband and wife but it
obviously and without any doubt ruins two different families. Ultimately the
society gets affected. As soon as the complains are genuine the law and justice
comes to rescue but when the allegations are false it result in adverse effect
upon the law, justice, matrimonial bond, amicable family life, reputation, etc.
The worst part being the fact that the malcontent does not only accuse husband
but without the second thought they accuse their in-laws without acknowledging
their age, situation, etc. As quoted in the Arnesh Kumar judgment, court felt
pity for the situation when the bed-ridden elderly members are also filed under
complaint.
In the case of Bibi Parwana Khatoon & Anr Vs State of Bihar[24],
sister in law and the brother in
law of the deceased were not present at the place of the incident still they
were convicted and sentenced under Section 304B read with Section 34 of
Indian Penal Code (IPC). Honorable Supreme Court recognized of the fact that
they were not present at the place of the incident and hence they were
acquitted of the concerned charges.
Same
unfortunate event happened in the recent case Jyoti Ganesh Patil vs. State of Maharashtra[25], in which the Aurangabad Bench of
the Bombay High Court raised its concern that relatives of the husband are
being vaguely roped in the cases. Observing the issue, High Court quoted “Time
and again, this court as well as the Supreme Court has observed that it is a
fashion to array all the relatives of the husband as respondents or to make
them as a accused in a complaint under Section 498-A of the Indian Penal Code
and it shows the misuse of the proceeding of the law, still the instances have
not reduced. Such poor relatives, who were never staying with the husband,
cannot be asked to face the proceedings on some stray statements about the
domestic violence.”[26]
Thus, the defense
mechanism which was formulated by the legislature for the women became the
weapon in the hands of devil so as to harass the members of matrimonial house
and to make them suffer. The nearer as well as the remote relatives are all
being included by the unsatisfied or unfortunate wife for purpose of her
personal contentment. A step is needed to be taken so as to stop this menace
otherwise the misuse of law will never stop ruining the innocent lives.
5. Protecting the basic essence of
Section 498-A:
Crime has always been
considered as wrong against society since time immemorial. Moreover, there is
no doubt that the women had always been subjected to cruelty. Thus, for the
protection of the women they had been granted the qualification to be the privileged
section of the society. The law makers always prioritized the framing of laws
and policies in such a way so that the interest of the women can be
safeguarded. The framers of the Constitution made the special mention of the
women for granting of the fundamental rights and also they have been given
place in the fundamental duties for the sake of protecting their interest. But
the disturbance in the balancing of interest of society comes into play when
the said prioritized section of the society starts to exploit the provisions
made for their protection. In such a scenario the chaotic situation erupts as
to who has to be termed as victim and who will be termed as accused. This is
question of dismay and inquietude.
Recognizing the same
injustice which is made by Section 498-A and its accompanying laws the
Honorable Supreme Court through its various verdicts, tried to control the
devastation caused so far.
The biggest stain in
relation to a crime is arrest. The biggest humiliation which the so called dominant
ones can face is that of arrest. Irrespective of the fact that the person had
committed crime of not, but prima facie he gets arrested. From this moment the
mental as well as physical harassment of the arrestee begins. Dealing with same
grave issue, Honorable Supreme Court in Arnesh Kumar vs. State of Bihar & Anr[27], laid down various advisories regarding
arrest. Supreme Court showed its concern over the attitude of the police
of prima facie arresting the accused and then proceeding with the investigation.
Court explicitly observed that, “no arrest should be made only because the
offence is non-bailable and cognizable.” Observing further, “no arrest can be
made in a routine manner on a mere allegation of commission of offence made
against a person.” Supreme Court advised the police officials to not to give priority to the conducting of
arrest procedures but to use their own conscience as to whether the arrest is
needed in the case or not. Court was of the view that the arrest should not be
misused. Observing further the Honorable judges advised the police officers to
use the test of reasonable satisfaction with respect to the allegations
imposed.
The apex court expected
the police officers to not to blindly arrest the person but to genuinely use
the grounds which are given under Section 41(1) (b), i.e., reasonable complaint
or credible information or the reasonable suspicion because the offence under
Section 498-A of Indian Penal Code is punishable up to three years of
imprisonment and also with fine. Thus,
the police officers should first examine the genuineness of the complaint and
then on being satisfied about the same proceed to arrest the persons.
The prevention from
arrest is to be made on the reasonable grounds, so that on the one hand the
real accused cannot roam free and on the other the person who is suffering the
false accusations could not be arrested wrongfully. A balance has to be maintained
between the protection of life, liberty and dignity of the victim as well as of
the accused. But this was just the protection from arrest. The Honorable Court
tried to pave the way for the protection of the matrimonial bond and hence, the
Honorable court in another decision[28]
laid down for the constitution of Family Welfare Committee in every district
for receiving the complaints lodged by the women, even before the police take
the cognizance on it. The working of the committee sanctioned for the reviewing
of the complaint first and after that on the approval by the committee police
can take cognizance. But this committee proved to be the hurdle in the proper
investigation of the case and also proved to be the demon in disguise for the
real suffering of the victims. This
inappropriate measure was ratified by the Honorable Supreme Court in another
case of Social Action Forum for Manav
Adhikar vs. Union of India[29]. In this case court admitted the fact
that ordering the constitution of Family Welfare Committee will cause an
obstacle in the investigation and also it will cause the judicial over reach as
it is work of legislature to make laws.
6. Re-evaluating Section 498-A of
Indian Penal Code:
The turmoil caused by
Section 498-A of Indian Penal Code, could not only be handled by the judicial
decisions, rather it needs some effective legislation so that the havoc which
is caused to the basic essence of the justice and equity can further be brought
to an end. Therefore, Honorable Supreme Court in the case of Ramgopal vs. State of Madhya Pradesh[30]
referred a request to the Law Commission and also to the Government of India to
deal with the question about the compoundability of the offence under Section 498-A Of Indian Penal
Code. As a result the Law Commission made its 237th Report which
covered the issue related to “Compounding of IPC Offences.” This report of the
Law Commission suggested that the punishment under Section 498-A of Indian
Penal Code could be made compoundable with the permission of court.
But the suggestion could not be transformed to
the legislation. Time and again the Supreme Court in the case f Preeti Gupta vs. State of Jharkhand[31],
suggested the Law Commission to take a re-look at the provision. Again as a
result the Law Commission in its 243rd Report Suggested of making
the Section 498-A of Indian Penal Code as a compoundable offence.
In the 243rd
Report, Commission gave various other suggestions so as to ease the provision
of the said section and to prevent the misuse. Commission also suggested
attaching the compounding of said offence with the three months of cooling off
period. The commission along with the suggestion of following Section 41 and
41A of Code of Criminal Procedure in letter and spirit also suggested
monitoring the mechanism of the police departments so as to keep a track of
Section 498- A cases.
7.
Conclusion:
After the decision of Social Action Forum for Manav Adhikar vs.
Union of India[32],
the situation which was prevalent at the time of the decision of Arnesh Kumar vs. State of Bihar[33],
maintained status quo. The catastrophic situation which was prevalent before
Arnesh Kumar decision throttling the reputation and freedom of each and every relative
of the husband without prima facie evidence against them continue to be
prevalent even after Arnesh Kumar. The arbitrary arrest without following the
legal provision of arrest in its letter and spirit still continued. The arrest
should be made only after the full satisfaction about the credibility of the
complaint. Moreover, to maintain the justice, harmony, peace etc. the
suggestions of the Law Commission should be transformed into reality as soon as
possible. Moreover, strive should be made to lessen the data regarding the
cruelty practiced upon the bride by her husband and her in-laws. Also,
considering the less number of convictions as compared to number of cases
filed, some sort of provisions should also be framed so as to cut short the
amount of fake cases which are filed by misusing the provisions made for the
protection. The society needs reformation so that a better world could be
achieved.
[1] Research Scholar, School of Law,
Justice and Governance, Gautam Buddha University, Greater Noida
[3] Maneka Gandhi vs. Union Of India, A.I.R 1978 S.C. 597
[4] K.S.Puttaswamy v. Union of India,
(2017) 10 S.C.C. 1, Para 108
[6] UNITED NATIONS, https://www.un.org/sg/en/content/sg/statement/2017-10-24/secretary-generals-message-united-nations-day
(last visited on Sept. 19,
2022)
[7] K.S.Puttaswamy v. Union of India,
(2017) 10 S.C.C. 1, para 42
[8]
Pawan Kumar vs. State of H.P.,(2017) 7 S.C.C. 780, para 48
[9] THEINDIAN EXPRESS,
https://indianexpress.com/article/india/crime-against-women-rose-by-15-3-in-2021-ncrb-8119739/
(last visited on Nov.19 2022)
[11]Shivcharan Lal Verma and others vs.
State of Madhya Pradesh, (2007) 15 S.C.C. 369
[12] Reema Aggarwal vs.. Anupam Appeal
(crl.) 25 of 2004
[13] Unikrishnan vs. State of Kerala
(2018) CrLJ 265 (Ker)
[14] D. Tolstoy', The Law and Practice of Divorce and Matrimonial Causes 61 (6th ed. 1967).
[15] Samar Ghosh vs Jaya Ghosh Appeal, (2007) 4 S.C.C. 511
[16] Ravi Kumar vs. Zulmi Devi (2010),
4 S.C.C. 476
[18]
Gurbachan Singh vs. Satpal Singh, A.I.R. 1980 S.C. 209
[20] THE
PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005, No. 43, Acts of
Parliament,2005 (India)
[21] Sushil Kumar Sharma v. Union
of India and others, (2005) 6 S.C.C. 281
[22] Arnesh Kumar vs. State Of Bihar & Anr., (2014) 8 S.C.C. 273
[23] Preeti Gupta & Anr vs. State of Jharkhand & Anr., A.I.R 2010 S.C.
3363
[24] (2017) 6 S.C.C. 792
[25] 919 CRIMINAL APPLICATION NO.440 OF
2022
[26] ibid
[27] (2014) 8 S.C.C 273
[28] Rajesh Sharma vs. State of Uttar
Pradesh [Criminal Appeal No.1265 of 2017]
[29] A.I.R. 2008 S.C. 4273
[30]
2010 (13) S.C.C. 540
[31] 2010 7 S.C.C. 667
[32] A.I.R. 2008 S.C. 4273
[33] (2014) 8 S.C.C. 273
Article Information
THE VEXATIOUS CRUELTY BY – JUHI MISHRA
Authors: JUHI MISHRA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
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International Journal for Legal Research and Analysis
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