Section 498 IPC – whether shield or weapon
“I am the woman who holds up the sky
The rainbow runs through my eyes
The sun makes a path to my womb
My thoughts are in the shape of clouds
But my words are yet to come.”
The issue of women’s rights and family law reform has been increasingly entangled within the polemics of politics and minority rights. It is true that the hardships and sufferings experienced by woman of all communities, minority as well as majority, cannot be overlooked with the help of persuasive or effective freedom of religion. The life of an average Hindu woman has always been difficult and pitiable due to existing social customs and practices of time.
The beginning of 19th century plays an important role in degrading Indian women till its depth. The fear of insecurity not only envisaged in unmarried young women but also married women. In India, “family” has always been prime importance. Marriage being an important social institution since Vedic period was biased against women. It was regarded as the social alliance between two families instead of two persons. The bride was expected to serve her husband and his family and ensure their happiness and well being. There was no question of her happiness, expectation or content. There were three main objectives of Hindu marriage: dharma or religious duties to be performed by the couple, proja or procreation, and rati or conjugal love.1
The exploitation of woman began with the child marriage. A girl too young to take life seriously, a girl too young to understand the meaning of ‘life’ and ‘marriage’, had to step into the world of thorns. She was subjudicated by her mother-in-law and other members of her husband’s family, most of the time including even her husband. She was expected to observe ‘purdah’, not to speak to elders, speak in low voice to younger members of family, not to speak or meet her husband except midnight and bear all harsh words and sufferings for even minor fault and above all never to express her sorrows or utter a word of distress to anyone.
A woman had no freedom, neither personal nor economic. Traditionally, the Hindu woman had distinct economic right called ‘stridhan’.2 In order to partially set off the disability suffered under the notion of joint ownership by male members, the smritikars assigned a special category of property to women termed as ‘stridhana’.3 The first mention of this term is found in Gautama Dharma sutra. He provided not only for the women’s separate property but also distinct and separate rules for its succession. But the definition of ‘stridhana’ changed over from time to time, granting all the rights and power to husbands. Consent of the girl was not considered to be relevant and hence, she was left with no choice, except to accept all pains and marry.
The traditional concept of marriage has greatly changed and Hindu marriage is considered to be of dual nature i.e. of both religious sacrament and contract, where mutual consent and benefit of both the parties are duly aided by different legal provisions and reforms. Attempts to bring about changes in the status of women either through legislation or judicial activism can achieve little success without a simultaneous movement to transform the social and economic structures and the culture (values, ideologies and attitudes) of society.4
One of those attempts to bring changes in status of women and relieve her from her sufferings, pains and gloomy environment is given under chapter XX-A of Indian Penal Code, 1860.
Chapter XX-A of Indian Penal Code, 1860, refers to ‘cruelty by husband or relatives of husband’ and includes section 498-A.
Section 498-A states, that whoever being the husband or relative of the husband of woman, subjects such woman to cruelty shall be punished with the imprisonment for a term which may extend to three years and also be liable to fine.
Explanation- For the purpose of this section, “cruelty” means-
(a) Any wilful conduct which is of such 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 view to coercing her or any person related to her meet any unlawful demand for any person related to her to meet such demand.
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, 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.5
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. 6 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’, 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’ , 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’, 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 ’, 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.
The other face of the coin:
Though section 498-A aims at protection and safety of woman from her husband’s and his relatives cruelty and harassment, this shield is used as a weapon by many females for their own purposes. Many women’s are using this section against their husband’s and his relatives without any attempt or cruelty practiced. Indian law has always laid emphasis on protection of the innocent. It has always been emphasised that ten guilty person’s can be acquainted rather punishing a single innocent person. But this section is being misused and innocents are punished.
Abuse of section 498-A has always been a matter of discussion in Rajya Sabha. It was observed there that, Section 498-A has become an instrument of oppression in the hands of certain people who are seeking to get minor children , aged in-laws are being arrested on absolutely whimsical allegations. The issue is not only of compounding it, the question is how you ensure a just investigation of such complaints. Low police officers are investigating it in a manner that is ruining the sanctity of families; minor children and girls are hauled up. This is a scathing indictment of how this law which was intended to sub serve a noble purpose has in fact, been prostituted.
It was also stated that, in many cases, there are complaints where the provisions of section 498-A are misused or abused or excessively used. And for that, the investigating agency is the only agency which can remedy this. From time to time, these instructions are issued even from the Government of India, and the State Governments are already cognisant of this fact. But, for the investigating officer, the problem arises when a case is registered and the persons have been mentioned in the FIR; it becomes difficult for him. Till such time, he really satisfies himself. During that period, some harassment is certainly made; it is expected from the investigating officers, it is expected from the police officers. They are sensitised on this matter by the State Government, and also by the Central Government, that they should see to it that they are not harassed.
Observing that anti-dowry laws were being increasingly misused by wives to harass their husbands and in-laws, the Delhi High Court has urged the Government to review their provisions. Judge J.D.Kapoor urged the review while rejecting a plea by a woman petitioner, Savitri Devi, seeking the arrest of her brothers in-law and sister in-law for allegedly harassing her by demanding more dowries. Kapoor said in his order passed: “I feel constrained to comment upon the misuse of the provisions (of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large”.The judge observed: “There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband. If one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
He added:” The ground realities have persuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provisions.” Judge Kapoor, in his order said the provisions of the anti-dowry laws “were made with good intentions but the implementation has left a very bad taste and has been counter-productive.”
According to the anti-dowry laws, a non-bailable warrant is issued against the accused if a woman alleges she is being harassed by her husband and/or his relatives for dowry. People found guilty can be sent to jail for up to three years and/or fined. Savitri Devi had filed a case urging her brothers-in-law and sister-in-law be arrested for demanding dowry. City Court rejected the plea, but ordered the framing of charges against Savitri Devi’s husband and father-in-law. She then challenged the lower court’s order in the High Court.
Judge Kapoor agreed with the lower court’s decision and found no evidence of harassment against Savitri Devi’s brothers-in-law and sister-in-law. “The only allegation against the respondents is that they did not like the customary gifts the petitioner had brought”, said Kapoor. This, according to him, did not amount to cruelty or harassment. “The petition is highly misconceived and is being used as a tool to hold the entire household to ransom and jeopardy,” he said. He also pulled up the investigating agencies not doing their work properly.
Misuse of section 498-A has also been called as legal terrorism by the Supreme Court of India. 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 ignomy suffered during and prior to trial. A new legal terrorism can be unleashed by the misuse of the provision. The provision is intended to be used as a shield and not as 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 strait jacket 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. 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 unfolded, baseless and malicious allegations.
Supreme Court also contended that ‘false case by wife amounts to mental cruelty’. It was also found that the allegations made in the police complaint by the respondent were “void” and that such void allegations without proving the same amounted to cruelty. It was found that given the falsity of the allegations against the appellant he was entitled to a decree of divorce on the ground of cruelty under section 13(1)(i)(a) of the Act.
In a landmark judgment, the Delhi High Court has ruled that lodging false dowry complaints against men amounts to cruelty and can be a ground for dissolution of marriage. The court granted divorce to a man who alleged mental cruelty by his wife.
The act of appellant in filing a false complaint case and getting her husband and other in-laws arrested clearly amounts to cruelty. The statement of the appellant and her brother before CJM points towards falsity of the complaint.
In the present case the situation is still worse. Not only the wife made a false complain and got the husband and other in-laws arrested, she also took money and then resiled from the agreement.
Delhi High Court also added that Section 498-A and 406 of IPC should be made bailable. The Chief Justice said that, “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. I feel constrained to comment upon the misuse of the provisions of Section 498-A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”
“There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative- including minors and even school going kids nearer or distant relatives and in some case against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Section 498-A/406 IPC whether they are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out.”
“To start with, marital offences under Sections 498-A/406 IPC be made bailable, if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise.”
Several other cases have raised a debate on whether the stringent and well meaning provisions of the laws governing dowry and cruelty against women were actually being increasingly misused to settle scores. “Husbands and their families are harassed by the stringent and outdated Dowry Act as majority of the cases these days are either exaggerated claims or are simply fabricated. This results in endless mental torture to the boy’s family who have no way out,” says Neena Tiwari, president of an NGO, Nari Jagriti Manch, which has started “crime against men” cell five months ago to provide counselling to the ‘suffering husbands’.
Anyone who has been awake the last two decades knows how section 498-A of IPC has been heavily misused, dragging innocent men and women into police stations, lock-ups and courts, thus depriving may young children of a happy childhood, many youth of productive careers and many senior citizens of mental peace in the last leg of their lives.
As if this 498-A fiasco is not enough jingoistic feminists have come up with another Act, along the same lines of 498-A only with larger loopholes waiting to be used against many more Indian citizens. Many women who really need protection from Domestic Violence will probably never know about it and even if they do, never use it. This law will be yet another weapon in the hands of unscrupulous women who will misuse it at the slightest opportunity. In a society where men and women live together what affects one affects the other. When a man is thrown out of his own house under true or false allegations of domestic violence or cruelty everyone who is dependent on him is bound to suffer. That will include dependent parents and siblings who can be male or female. It is unfair enough to penalize an entire family even if an accused man is truly abusive. Unfair is a subtle word to describe a situation in which an innocent man, along with his family, is tortured by misuse of law. Injustice is a subtle word to describe how women, who commit perjury and harass families for years on end go unpunished.
After the entire study we can conclude that though Section 498-A of IPC was brought in forth for the protection of women from the cruelty of her husband and his relatives it is being abused by some thoughtless women’s. These women’s are turning the law other way round by being cruel to their husband’s and his relatives and getting them tried under Section 498 A of IPC which deals with “Cruelty by husband or relatives of husband”. Henceforth certain legal actions should be taken as soon as possible to curtail growth of “legal terrorism”, by misuse of provisions of law.
1. Women and Law
2. ‘Hindu Women and Marriage Law’ by Monmayee Basu
3. ‘Law and Gender Inequality’ by Flavia Agnes
4. ‘Hindu Women and Marriage Law’ by Monmayee Basu
5. Sushil Kumar Sharma vs. Union of India;JT 2005(6) SC266
6. Jagdish Chander vs. State of Haryana,1988 Cr. LJ 1048 (P&H)
7. Shobha Rani vs. Madhukar Reddi;(1988) 1 SCC 105:AIR 1988 SC 121
8. 2003 Cri. LJ. 432(S.C)
9. 1986 Cri. L.J. 1510 (Del.)
11. IANS, 21st May,2003
12. Http# misuse of 498a.tripod.com
13. Times of India, 17 Feb, 2003
The author can be reached at: email@example.com