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Vade Mecum to Section 498A of Indian Penal Code

Crime against women is not a new-age problem. Women have been subjected to torture, humiliation, and exploitation ever since we have written records of the society becoming organized and familial associations.
  1. What Does It Deal With?
    With the importance of women being gradually recognized, Section 498A has been engrafted in the IPC specifically to deal firmly and effectively with all cases of cruelty towards and harassment of a woman. This provision was added to IPC in 1983.

    The object of the introduction of Section 498A is to punish the husband and relatives of the husband who tortures and harasses a woman to coerce her or any person related to her to meet any unlawful demands or drive the woman to commit suicide.

Section 498A reads:
"Husband or relative of husband of a woman subjecting her to cruelty:
Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine."

Explanation: For this Section, "cruelty" means:
  1. any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb, or health (whether mental or physical) of the woman; or
  2. harassment of the woman where such harassment is with a view to coercing her or to any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demands.
Cruelty is the essence of Section 498A. This provision has given a new dimension to the concept of cruelty for matrimonial relief. The expression 'cruelty' has been defined for Section 498A. The concept of cruelty is multi-dimensional. It can either be mental or physical; either intentional or unintentional. Each case has to be decided on its facts to decide what type of cruelty is applicable.

In any marital life, it cannot be said that there was total harmony and it is not uncommon between the wife and husband to have some petty quarrels. Such petty quarrels cannot be termed as 'cruelty' to attract this provision. The concept of cruelty is subjective. It varies from place to place and from individual to individual also depending upon the social and economic status to which such person belongs. It would not be wise to categories specific acts or conducts which are capable of amounting to cruelty as such categorization cannot be put in straightjacket mold.

Ingredients Of The Section
To apply Section 498A to the bothered offence, the prosecution (accuser) must prove that:
  1. the concerned victim was a married lady (she may also be a widow)
  2. that she has been subjected to cruelty by her husband or the relative of her husband
  3. that such cruelty consists of either:
    1. harassment of a woman with a view to coerce her meeting a demand of dowry, or
    2. a willful conduct by the husband or the relative of her husband of such a nature as is likely to lead the lady to commit suicide or to cause grave injury to her life, limb or health.
  4. the inflicted injury may either be physical or mental
It is to be noted that, not every type of cruelty would attract Section 498A. The expression 'cruelty' has been defined for the purpose of Section 498A.
  1. The prosecution has to establish firstly, the willful conduct of the offender, secondly, that the nature of such conduct was likely to:
    1. drive the woman to commit suicide; or
    2. cause grave injury to the woman; or
    3. cause danger to life, limb or health, whether physical or mental.
  2. The definition of 'cruelty' pertains to harassment of a married woman with a view to coercing her or any person related to her to meet the unlawful demand of dowry or for any property or valuable security or on account of her failure or failure of any person related to her to meet such a demand.
Certainly, to attract Section 498A, the harassment has to be with a defined object, namely to coerce the woman or any other person related to her to meet any unlawful demand. Thus, mere harassment by itself is not cruelty.

The 'mens rea' is an essential ingredient of the offence. The constituent of the offence under Section 498A is cruelty must be 'willful conduct'. The word 'wilful' contemplates obstinate and deliberate behavior on the part of the offender for it to amount to cruelty. Though intention to cause injury is not an essential ingredient, regard may be had as to the actual intention or knowledge on the part of the offending spouse as to probate effect whether it would cause injury to physical or mental health. Again, acts or conducts should be judged from the angle of a person possessing ordinary intellectual capabilities.

Who Can File The Complaint?

Section 498A of IPC which deals with cruelty against a married woman does not require the complaint to be filed necessarily by the victim woman only. Any relative of the woman can file a complaint of cruelty on her behalf. Thus, a complaint filed by a woman or her relatives is maintainable in the eyes of law.
The validity of a complaint filed by relatives of the suffering woman is beneficial to those who are unable to register a complaint themselves.

Against Whom It Can Be Filed?

The charge of 498A can be filed against the woman's husband and/or his relatives. However, the vice versa cannot happen and the wife/daughter-in-law cannot be charged under 498A of IPC.

In case of apprehensive or fallacious circumstances, other provisions of the penal code can be referred to.

Status Of The Offence Under This Section

  • The charge under Section 498A is regarded as a serious offence and is a Non-Bailable Offence in the eyes of law. Bail is a temporary release of a suspect/prisoner in exchange for security given for appearance at a later hearing.
  • Given the heinous nature of the offence, the charge under Section 498A is a Cognizable Offence. Cognizable offences are those in which the police officer can arrest the suspect without a warrant.
  • The offence of 498A is Non-Compoundable. Non-compoundable offences are offences in which the complainant (one who files the complaint), entering into a compromise and agreeing to have the charges dropped against the accused, is not recorded by the court.

What Are The Legal Requirements?

  1. When can a woman file the complaint?
    A woman can file a cruelty complaint under section 498A any time, there is no time limit mentioned. However, nowadays the court may pose question on the woman as to why there is a delay.
  2. What procedure the woman needs to follow?
    Firstly, the woman needs to register her complaint to the nearest police station under Section 498A of IPC.
    Secondly, the woman needs to find a suitable lawyer to take up her case. Discuss the case details with the lawyer.
    Finally, with the help of the advocate file application under Protection of Woman from Domestic Violence Act.
  3. What are the documents required?
    • Passport size photograph
    • Marriage photo
    • Address proof
    • Other documents and proofs required depend from case to case.


What Will Be The Punishment Under Section 498a Of IPC?

Under the Section, the cruelty by husband or husband's relatives is punishable. The punishment may extend up to three years of imprisonment and fine.

Cruelty as such is punishable. And there is an explanation clause of Section 498A, which gives the meaning of 'cruelty'.

What To Do In Case Of False Accusations?

This Section of the IPC is a momentous provision in our legal system. However, the essence of the provision fails with loopholes like "a false accusation" by the woman. Although women in general use the provision against cruelty by the husband or his relatives, cases have been noted about fake allegations by women in order to pursue distinctive motives.

One can protect himself from the charge, when the allegation is false and a woman misuses her right under 498A.
  1. Collect All The Documents And Proofs In Your Defense. This could be any record of conversation between you and your family members-emails, calls, letters, call recordings etc. Any evidence that shows the woman willingly was living elsewhere. Evidence to show there were no dowry demands.
  2. If there is a possibility that a woman might register a complaint against you under 498A IPC, then getting an Anticipatory Bail can be resort to protect oneself. Section 438 of CrPC contains the provision of anticipatory bail.
  3. If you have a strong case and your claims of false charges are true, then you can file an FIR For False Complaint Under 498a By The Woman.
  4. File a counter complaint of Defamation against the woman for harming the image by registering a false case under Section 499 of IPC
  5. Get the FIR quashed by the High Court according to the provisions of Section 482 of CrPC. Although this not an easy thing to do as High Court doesn't entertain trivial cases and there is real scrutiny to invoke this provision.

What Is Dowry?

Dowry, commonly known as 'dahej' includes any gift that is not offered by the bride's side on its own and anything that the groom's side asks for, directly or indirectly.

Dowry is a social evil in society that has caused unimaginable tortures and crimes towards women and polluted the Indian marital system. Dowry is payment made in cash or kind to a bride's in-laws at the time of her marriage.

Definition of `dowry' according to Section 2(1) of Dowry Prohibition Act, 1961:
In this act, `dowry' means any property or valuable security given or agreed to be given either directly or indirectly:
  1. by one party to a marriage to the other party to the marriage; or
  2. by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

Anti-Dowry Laws

Dowry is illegal in India under the Dowry Prohibition Act, 1961. Any such act to take or give dowry is punishable in India.
The Indian Penal Code lays down the anti-dowry law with regards to dowry deaths, under Section 304B and cruelty or domestic violence for dowry demands, under Section 498A.

Misuse Of Anti-Dowry Laws

Misuse of anti-dowry law to blackmail husband has become a common practice. The number of false 498A cases or cases of misuse of anti-dowry laws has even made the Supreme Court of India to term it as legal terrorism.

The biased nature of this law has enabled women to file a false case against their husbands for reasons such as:
  • To get out of the marriage due to her inability to adjust to the new family.
  • Blackmailing the husband to extort money.
  • To implicate the husband in a false case and rekindle with a man she was previously associated with or got into an extra-marital affair with.

Dowry Death

Dowry death and bride burning are symptoms of distinct social malady and are an infelicitous advancement of our social set-up. The law makers, taking the note of the serious and grave issue enacted new provisions to make the law pragmatic and effective.

Section 304(B) IPC- Dowry death
  1. 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.

    Explanation: For the purpose of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.
     
  2. 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.

In 1986, a special provision Section 304B was inserted in the IPC to deal with dowry deaths. A simultaneous amendment was made in the Indian Evidence Act, 1872 in the form of Section 113B. The rule of evidence to prove the offence of dowry death is contained in Section 113B, Evidence Act providing for presumption as to dowry death.

The Expression- "Cruelty Or Harassment"

The meaning of cruelty is given in Section 498A. In section 304B, there is no such explanation about the meaning of  cruelty. However, having regard to the common background of these offences, it has to be taken that the meaning of "cruelty or harassment" is the same as laid down in Section 498A.

The expression cruelty postulates such treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her health.

Status Of Offence With Regards To Dowry Death

The punishment for an offence of dowry death (304B) is imprisonment of not less than seven years but which may extend to imprisonment for life.
It is recognized as a Cognizable and Non-Compoundable offence given the gravity of its nature. Further it is Non-Bailable and is triable by the Court of Sessions.

How To Proceed To Register A Complaint?

  1. When can one file the complaint?
    A complaint under section 304B can be filed anytime during the marriage. However, ideally a complaint within seven years of marriage is likely to win the court.
     
  2. What procedure one needs to follow?
    Firstly, the person needs to register her complaint to the nearest police station under Section 304B of IPC.
    Secondly, the person needs to find a suitable lawyer to take up her case. Discuss the case details with the lawyer.
    Finally, with the help of the advocate file application under the suitable provisions of Prohibition of dowry Act and the Indian Penal Code.

Judgements
In Gurmeet Singh v. State of Punjab, 2021 The Supreme Court in the case relating to dowry death, where it was argued by the accused that without any charges under Section 498A, IPC a conviction under Section 304-B, IPC cannot be sustained, the 3-judge bench of NV Ramana, Surya Kant and Aniruddha Bose has rejected the contention and has explained,

"Although cruelty is a common thread existing in both the offences, however the ingredients of each offence are distinct and must be proved separately by the prosecution. If a case is made out, there can be a conviction under both the sections."

In Kamesh Panjiyar v. State of Bihar, 2005 it was held, "… Sections 304- B and 498-A IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to Section 498-A gives the meaning of "cruelty".

In Section 304-B there is no such explanation about the meaning of "cruelty". But having regard to the common background to these offences it has to be taken that the meaning of "cruelty" or "harassment" is the same as prescribed in the Explanation to Section 498-A under which "cruelty" by itself amounts to an offence. Under Section 304-B it is "dowry death" that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in Section 498-A. If the case is established, there can be a conviction under both the sections."

In Arnesh Kumar v. State of Bihar, the Court observed that the fact that Section 498A, IPC is a cognizable and non-bailable offence, it is more often than not is used as a weapon rather than shield by disgruntled wives. It results in harassing the husband and his relatives by getting them arrested under this Section and it is more disturbing to see bedridden grandfathers and grandmothers being arrested without a prima facie case.

Thus, the Court laid down certain guidelines which the police officer must follow while arresting under Section 498A, IPC or Section 4 of the Dowry Prohibition Act, 1961 and that such arrest must be based on a reasonable satisfaction with respect to genuineness of the allegation. Moreover, even the Magistrates must be careful enough not to authorize detention casually and mechanically.

In Rajesh Kumar & Ors v. Sate of UP, 2017:
The Supreme Court laid down comprehensive directions to prevent the misuse of the provision of Section 498A, IPC.

Family Welfare Committee:
  • The District Legal Services Authorities must constitute at least one committee in every district comprising of three para legal/volunteers/social workers/other citizen who are willing to work.
  • Such constitution and working will be reviewed at least once in a year by the District and Sessions Judge of the district who is also the Chairman of District Legal Services Authority.
  • No committee member can be called as witness.
  • Any complaint received from the police/the Magistrate under Section 498A of IPC must be referred to and looked into by the committee.
  • The committee's report will be given to the Authority by whom the complaint is referred within one month from the date of receiving the complaint. No arrest can be made before that.

Investigating Officer:
The Investigating Officer for complaints under Section 498A should undergo a training of four months for such duration (not less than one week) as may be considered appropriate.

Bail:
When a bail application is filed to the Public Prosecutor/complainant with a day's notice then it must be decided on the same day. Recovery of disputed dowry items cannot be regarded as a ground of bail if maintenance or other rights of wife/minor children can be protected.

NRIs:
Impounding of passports or issuing Red Corner Notice must not be a routine for NRIs.

Video Conferencing:
Personal appearance of all family members and particularly outstation members may not be required and the trial court can grant exemption and permit video conferencing.

The Court observed that large number of cases under Section 498A on trivial and false issues is a matter of serious concern. Apart from directing the investigating officers and trial courts, involving the civil society in administration of justice can be one of the steps to remedy this situation.

In Manju Ram Kalita V. State Of Assam, 2009:
The court relying on several precedents observed that the meaning of "Cruelty" differs in each statutory provision and hence must be established in the context of Section 498A of IPC. The conduct of the man, the seriousness of his acts must be compared with the likeliness of the woman to commit suicide, etc. It must be established that the woman has been subjected to cruelty continuously or at least in close proximity of time of lodging the complaint. Petty quarrels would not come under the purview of "cruelty". Accordingly, the Court set aside the conviction order under Section 498A of IPC.

In State of Punjab vs. Daljit Singh, 1999, it was held that demand for money after four years of marriage for a specific purpose, no where related to marriage demand but causing of harassment to wife so much that she was bound to end her life is sufficient for conviction.

In K. Prema Rao vs. Srinivas Rao, 2003, it was held that one of the main ingredients of the offence of Section 304B "demand for dowry" being absent the accused cannot be said to have committed offence of dowry death. However, the accused was convicted under Section 306 of IPC.

In State of Rajasthan vs. Jaggu Ram, 2009, death of deceased occurred within one and half years of her marriage due to head injuries. Cruel treatment and harassment meted out to her immediately after her marriage till her death for bringing insufficient dowry. Held that in such circumstances, Section 304B clearly attracted.

In State of HP vs. Yog Raj, 1997, it was held that even if the accused had demanded Rs. 15000/- from his wife to be brought from her parents, it will not bring the case either within the ambit of Section 304B or 498A of IPC, in the absence of evidence that she was being treated with cruelty on account of such demand.

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