CRUELTY AND HARASSMENT TO MARRIED WOMEN U/S 498A, IPC
Cruelty against women has been age-old phenomenon, where women faced brutality and inexplicable exploitation for one reason or the other. In present time, it is expanded to include mental, physical, direct or indirect, intended or unintended harm. Married women suffer from crimes like Bride burning, dowry deaths, domestic violence, marital rape etc. in their matrimonial home. Central government created a law to shield the ladies from ill effect of dowry. Dowry Prohibition Act 1961 was launched to protect ladies. “To punish the husband and his relatives who tortures and harass women with a view to coerce her or any person related to her to meet any unlawful demands”[1],section 498A of Indian penal code 1860 came in force to shield the bride from her husband or his relatives by blood, marriage or adoption and her in-laws. This Section 498A is necessary for the protection of ladies. The act of harassment would amount to cruelty under this section. It punishes particularly when cruelty had the potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983.
DEFINITION IN SECTION 498A, IPC
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 the purpose of this section, “cruelty” means:
(a) any wilful 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
(b) harassment of the woman where such harassment is with a view to coercing her or 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 demand.
Ingredients necessary to constitute an offence under section 498A–[2]
- The woman must be married.[3]
- She must be subject to cruelty or harassment; and
- Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.
The immediate effect of Section 498A was quite fruitful and effective in combating the heinous act of cruelty in the latter half of the 20th century. The section was enacted to combat the menace of dowry deaths. It was inserted within the code of Criminal Law (Second Amendment Act, 1983), Act 46 of 1983as a new Chapter XXA, entitled: “Of cruelty by Husband or Relatives of Husband” in Penal Code in order to make cruelty against women punishable. By identical Act Section 113A was added to the Indian Evidence Act to lift presumption concerning instigation of suicide by woman.[4] It is to note that an offence under section 498A is committed by husband or his relatives. Relatives principally includes person related by blood, marriage or adoption[5]. A girlfriend or a concubine in an etymological sense would be a ‘relative’. The word “husband” would apply to a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any purposes enumerated in sections 304B and 498A, whatever is the legitimacy of the marriage.
NEED & OBJECTIVES BEHIND SECTION 498A
It reduced social evil of dowry and matrimonial atrocities against women. It was intended to help make a better family system for greater society. This law help women profess their individual basic rights and provided them with safeguard to raise their voice for resolution of atrocities, mental and physical cruelty, torture, threats or abuses for illegal demands by her Husband and ‘his relatives by birth, marriage and adoption’. 9 out of 10 cases are always related to dowry, so, there was high demand of a law to prevent women from cruelty at the matrimonial home. Apart from this, there is no law which can help women to ease their latent mental pain.
NATURE OF OFFENCE
The offence under Section 498-A IPC is cognizable offence i.e., a police officer may arrest the accused without an arrest warrant if the information relating to the commission of the offence is given to an officer-in-charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf within 3 years of the alleged incident[6] Section 198A of Code of Criminal Procedure, 1973 permits a court to take cognizance of the offence punishable under section 498A upon a police report of facts which constitute offence. No fetters could be placed upon the police to prevent them from investigating the aforesaid complaint.[7] It is a non-bailable offence. By law, Magistrate is bestowed with the power to refuse bail and send the individual to judicial or police custody. It is a continuing offence and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation.[8] Offence under section 498A is non compoundable except in the State of Andhra Pradesh where by a state amendment, it has been made compoundable. The Supreme Court requested the Law Commission and the Govt. of India to examine whether the offences under section 498A could be made compoundable.[9] However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed by the High Court under Section 482 CrPC (inherent powers), as such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape, etc.
DEVELOPMENTS WITH JUDICIAL PRONOUNCEMENTS
Supreme Court through its various judgments explains cruelty as such conduct which can cause in the mind of victim a reasonable apprehension that it is harmful to live with the accused. Such acts must be more serious than ordinary wear and tear of marriage.[10] What constitutes mental cruelty will not depend upon the numerical count of such incidents or only on the continuous course of such conduct, but really go by the intensity, gravity and stigmatic impact of it when meted out even once and deleterious effect of it in the mental attitude, necessary for maintaining a conducive matrimonial home.[11] Slow starvation[12], subjection to physical assault, persistent demands of dowry and mental or physical harassment, levelling of false, hurtful or offensive allegations in malicious or vexatious litigation against wife[13], torture and humiliation, unlawful (non-dowry) demands for properly and valuable articles, repeated taunts calling wife ugly and maltreatment, false attacks on chastity[14],neglect by husband by disregarding his duty towards his wife and child to provide basic means of sustenance while he himself was squandering his earnings on gambling and other vices and letting his wife and infant child to starve to death, will amount to cruelty[15]. Conduct of non return of Stridhan as well as non acceptance of baby girl[16] will also amount to cruelty.
Harassment as per Section 498A: There should be sufficient nexus between incidents to constitute harassment. The court said that the fewer the number of incidents and wider the time lapse, the less likely finding of harassment would be justified. Not every harassment or type of cruelty could attract section 498A, the complainant would have to establish that the impugned act of cruelty or harassment has forced victim to commit suicide or to fulfill the illegal demand like dowry.
Presumption as to abetment: When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Under this provision (section 113A), cruelty and harassment are considered same as within IPC section 498A.
CONSTITUTIONAL VALIDITY AND DOUBLE JEOPARDY
In the case of Inder Raj Malik v Sunita Malik,[17] it was contended that Sec 498A gives arbitrary powers in the hands of the Court and is violative of Article 14 of the Constitution. It questioned the distinction drawn between ‘cruelty’ and ‘harassment’ being ambiguous and vague. Also, it contradicts with Art 20(2) of the Constitution as Section 4 of the Dowry Prohibition Act, 1961 has already made demand of dowry a punishable act and unintentionally creates a situation of double jeopardy. However Delhi High Court rejecting the contentions held that Section 4 of the Dowry Prohibition Act is different from that of the 498A IPC, 1860 since in the former mere demand of dowry is punishable and it does not necessarily need to establish the factor of ‘cruelty’ however the latter case essentially deals with much graver heinous crime.
Co-relation between Section 304 b and Section 498A: The two provisions are not mutually inclusive. They deal with different and distinct offences. Persons charged under section 304B but acquitted can be convicted under section 498A IPC, 1860 even in absence of any charge.[18]
Co-relation between Section 306[19] and section 498A: Under section 498A, cruelty committed by the husband of his relations force the woman concerned to commit suicide, while under section 306, suicide is abetted and intended.[20]The difference lying is that of intention.[21]
MISUSE OF THE LAW
Matrimonial discords unconnected with dowry demands or dowry related harassment are often given the facade of dowry by the wives to get even with their husbands.” The Supreme Court in one of its rulings said that -“But by misuse of the section 498A, a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not an assassin’s weapon”.[22] Women are using it as a weapon to get their husbands arrested if they are not satisfied with them. The bedridden grandfathers and grandmothers and even relatives living abroad were arrested. The real victims of the dowry harassment are now being criticized to make false claims and accusations. Relatives of husband are either harassed by the police or send to the police custody without even considering their age, health and marital status. Women, having motive of legal extortion or have prior relationship or are indulged in Adultery or want to dominate husband misuse this provision.[23] A large number of these complaints have flooded courts, most of the complaints which are not even bona fide and are filed with oblique motive. In such cases acquittal of the accused does not in all cases erase the humiliation suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. Many are even trivial matters. At the time of filing of the complaint, implications and consequences are not visualised. The Apex court instructed all the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters provided.[24] There are many cases where NRIs, who get married to Indian women is forced to do all the acts due to fear of extortion and false use of section 498A. In certain cases, police visit at the office premises of men harms the reputation. Since, no investigation or proof is required before arrest of husband or his relatives, women can misuse it for extracting revenge. Gifts are sometimes misunderstood as dowry, thus, that too pose problem.
CONCLUSION
The section of 498A is a penal provision allied with the provision in CrPC are so made as to act as deterrence. However, the large number of false accusations upon husband and his relatives are so coming as to express the status of these beneficiary laws as a weapon to exact revenge by disgruntled wives. It needs to be supplemented with certain amendments. The provision itself is full of loopholes and possibly can threaten the institution of marriage.[25] Post effects of section 498A are good as well as bad. Cruelty is a necessary social evil which needs to be evicted. The pro women laws should not become anti-man laws. Men can protect themselves from false allegations by collecting substantial evidences and documents, getting an anticipatory bail, filing of an FIR against wife for false 498A complaint, filing defamation suit under Sec. 500 of IPC or damage recovery case under Sec. 9 of CPC, and by proving that wife has moved out of the marriage on her own without any valid reason.[26]
[1] LV Jadhav v. SA Pawar 1983 Cr LJ 150
[2] U. Suvetha v. State, (2009) 6 SCC 757
[3] Section 498A of IPC refers to word ‘woman’ and not to ‘wife’ and under this section protection is given to married woman and not to the legally wedded wife only. A person contracting second marriage during the subsistence of the earlier marriage can be charged under sections 304B and 498A in case of commission of offence under the section.
[4] Ratanlal and Dhirajlal, Indian Penal Code 1710 (Lexis Nexis, Haryana, 36th edn.)
[5] Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618
[6] The Code of Criminal procedure, 1973, s. 468.
[7] However section 473 CrPC enables the Court to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary so to do in the interest of justice.
[8] Arun Vyas v. Anita Vyas, (1999) 4 SCC 690
[9] Ramgopal v State of MP 2010 (13) SCC 540
[10] Neelu Kohli v. Naveen Kohli AIR 2006 SC 1675
[11] Vinitha Saxena v. Pankaj Pandit (2006)3 SCC 778
[12] Hira Choudhary v. State of West Bengal 1997 (1) WLC 543
[13] Smt. M.M.Chitnis v. Mr. M.M. Chitnis 1991 (2) Maharastra L.R. 753
[14] State of Karnataka v. K. S. Manjunathchary 1999 Cr LJ 3949(Kant).
[15] State of Karnataka v. Moorthy 2002 Cr. L.J. 1683.
[16] State of Karnataka v. Balappa 1999 Cr. LJ 3064 (Kant)
[17] 1986 (92) CRLJ 1510
[18] A Doctrinal Research on section 498A- IPC, 1860: a critical analysis by Joy Sarker, available on: http://www.academia.edu/9531210 (last visited on April 25, 2021)
[19] 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.
[20] Satish Kumar Batra v. State of Haryana AIR 2009 SC 2180
[21] Cruelty to women[S. 498A IPC and allied sections], available at: http://www.scconline.com/blog/ post (last visited on April 25, 2021)
[22] Sushil Kumar Sharma v. UOI JT 2005 (6) SCC 26
[23] An investigative report by a NGO called Rakshak, The Silent Tears of Shattered Families: The Ugly Reality of Dowry Law.
[24] Arnesh kumar v state of Bihar (2014) 8 SCC 273
[25] Supra note 18
[26] All you need to know about Section 498A of the IPC, available at: http://blog-ipleaders-in.cdn.ampproject.org (last visited on April 25, 2021)
