“By misuse of the provision (498A IPC), a new legal terrorism can be unleashed”. – Sushil Kumar Sharma v. UOI1
Marriage is a union of two noble souls, it is a commitment for life between two partners. But the worse thing happens when this bond breaks, relationship breaks apart. Is man solely responsible for that? Are his family members solely responsible or are at fault? Is dowry or Domestic violence the only reason for that? Certainly ‘No’.
A state of dowry deaths hit India’s conscience in the year 1980.Women activists pushed the government to enact a stringent law on dowry and domestic violence. Amendment was brought in 1983 criminalizing physical or mental cruelty caused to a married woman by her husband or relatives. The basic purpose with which it was enacted was that there were lot of dowry deaths, demands for dowry by husband and in-laws and as a result women were tortured, thrown out of house. A provision like that was the need of the hour in order to safeguard the women in order to protect the women from cruelty on account of dowry.
Section 498A2of IPC defines, cruelty by husband cruelty by husband and his relatives against women as:-
a) As wilful conduct which drives a women to commit suicide or to cause danger to her life, limb and or health whether mental or physical
b) It also criminalizes harassment of women on account of unlawful demand or dowry.
S. 498A is one of the most stringent provision under criminal jurisprudence. The offence of cruelty is:
a) Cognizable, where police officer is bound to register an FIR, can investigate a case and arrest without warrant
b) Non- bailable, bail can be granted only by order of court
c) Non–compoundable, case once registered cannot be compromised or withdrawn
In simple terms what this section allows is allows immediate arrest and jailing of a woman’s spouse and her in-laws in the case of harassment or cruelty. All it does is it gives
1(2005) 6 SCC 281
2 The Indian Penal Code,1860
power of arrest to the police only on the demand of wife, without any investigating taking place without any evidence produced.
Under the Act the word ‘Relative’ is not clearly defined. Even small children have not been spared. 7,594 children were arrested under S.498A as per National crime Research Bureau 1998-2014. Any number of relatives can be named in the FIR. During investigation it has been found that many names have been unnecessarily added which later are taken down.
In 498A cases most of the witness named in the charge sheet are girls own family members. Has police ever made an effort to collect evidence from in- laws place? This shows investigation is one sided only which is against the foremost principles of law where one party is unheard.
As per the data of National Crime Research Bureau 3one can observe that “Conviction Rate” has drastically fallen down from 21.9% in 2006 to 13% in 2018. Conviction rate is drastically falling over the years. Conviction under 498A constituted about quarter of convictions of all IPC crimes.
Even Justice SN Dhingra, Former High Court Judge said in an interview, “The provisions have not only been misused by grossly misused on the advice of counsels/ advocates. Advocates think that they are helping their client to get justice but actually results into injustice to the society and to the system as well.”
In S.498A cases there is no time bound procedure to dispose of the matter. The case can even go long for 10-20 years. More the time, more you lose years of your life. So in order to reduce time for litigations settlements is reached.
3 National Crime Research Bureau, 66th Edition on Crimes in India 2018 (Ministry of Home Affairs)
It is regularly seen that in 498A cases there is demand for money by the girl at every stage to settle the matter. Firstly at before filing of FIR, then after filing of FIR, then at each level of judiciary. It is repeatedly seen that most of the cases end up in compromise. At the time of settlement lump sum money is taken. Lump sum money includes all rituals expenses, expenses on marriage etc. and both the parties each a settlement, all these cases are then compromised and withdrawn and cruelty goes once money is given.
It is seen that S.498A being a non- compoundable offence and a crime against state, a case is usually quashed by the court if the couple reaches a settlement. This is how law is in India. This is how process of law works in India?
Even if let’s presume one is able to prove his innocence what will a man get? Any compensation or costs? The answer is ‘No’. What about all the harassments, agony, pain, torture process of court which he faced and his years of life which passed? The only option he is left is to file a false prosecution case in the court after his acquittal but he resists to file it, because one don’t know how much time it will take.
The Judicial trends highlighting the rampant misuse of S.498A:-
Judicial comments have been made on S.498A in the last two decades. In Savitri Devi v Ramesh Chand & Ors4, Justice J.D. Kapoor said the misuse of provision of S.498A was hitting to an extent that it was absolutely touching at the inspiration of marriage and asked if it wasn’t a social catastrophy. In Saritha v R. Ramachandra5, the Supreme Court asked Law Commission and the Parliament to make S.498A non-cognizable and bailable.
In the case of Preeti Gupta vs State of Jharkhand6, Justice Dalveer Bhandari said that large numbers of frivolous cases were being filed in the court with oblique motive. It was causing social unrest among the people thereby affecting peace, harmony and happiness in the society. A proper relook of the provision was needed. In the case of Sushil Kumar vs UOI7, it was said that, “The provision is to be used and a shield and not an assassin’s weapon”.
Dr. Justice V.S Malimath in 243rd report on “Reform of Criminal Justice System, 2003” recommended to make S. 498A bailable and compoundable offence to give a chance to
4ILR (2003) I Delhi 484
5(2003) DMC 37 (DB)
6(2010) 7 SCC 667
7(2005) 6 SCC 281
spouses to come together. The Law Commission commented that the police must use its power to arrest in ‘cognizable cases’ cautiously and acting within the provisions of Sections 41 and 41-A CRPC rather than making unnecessary arbitrary arrests.
The legislature has the utmost responsibility to enact laws which are rational, which must protect the weaker section of the society and provide upliftment ensuring that it does not negatively cause harm or neglect the other section who are equally susceptible to the same harms and offences. As per my opinion S.498A should be modified rather than repelled. Repelling is not a solution. Given below are some recommendations which can be made in the section:-
1. Gender neutral: It should be made gender neutral. Cruelty by husband should be replaced by “either of spouse” should be made punishable and a strong special misuse clause for punishment. Also a provision of punishment in frivolous cases being filed must be added in the section itself so that women deter before filing false cases.
2. Bailable and Compoundable: In section 498A the word ‘non-bailable’ should be replaced by ‘bailable’ and non-compoundable with compoundable
3. Time bound investigation and disposal of cases: A speedy trial of 498A cases won’t not only provide innocent husbands justice for their innocence who are implicated in false charges but also time bound redressal of the cases.
4. Pre-investigation before arrest: Pre investigation is essential before making arrests. It has been observed that arbitrary arrests have been made without investigating the case and solely on the complaint by wife where the husband as well as his entire family lands up in jail.
Thus the following are the needs of today’s society which must be addressed by the legislature, judiciary and executive. Amendments in S.498A is the need of the hour which must be brought as soon as possible to protect the innocent husbands who suffer pain, agony due to frivolous cases files by their wives.