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Contents

1. Introduction...................................................................................1
2. Objective and Research Methodology............................................2
A. Statement of Problems.........................................................2
B. Aims and Objective.............................................................2
C. Scope and Limitation...........................................................2
D. Objectives............................................................................2
E. Hypothesis...........................................................................3
F. Research Methodology.........................................................3
3. Chapter 1: Meaning of Cruelty under Section 498 A of IPC...........4
4. Chapter 2: Uses and Misuses of Section 498 A of the IPC.............8
5. Conclusion....................................................................................19
6. Reference......................................................................................20
Introduction

Marriage can be considered as the union for life of man and woman. It is being considered
that husband has the responsibility to take care of his wife. But contradictory to this ‘dowry’
still exists. Most of the women are ill-treated, harassed, killed, divorced for the simple reason
that they didn’t brought dowry. Even in this modern world women are harassed for dowry
issues.

For safeguarding the interest of woman the Indian Penal Code, 1860 was amended in 1983
and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman. 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.

This section is enacted to fight against the dread of dowry deaths and this provision of law
has been using in the courts to safeguard the married women from facing cruelty in their
matrimonial homes. Most of the cases are always related to dowry wherein women are
continuously threatened for want of more money and valuable property from their parents.
But, in many cases the victim turns into the abuser of this provision of law and the husband
and his relatives have to face serious harassment for no fault of their own. Several cases show
that the married woman takes advantage of this section and send the husband and his relatives
to jail under the ambit of this section because section 498A I.P.C. requires the bridegroom
and his family members to be arrested on the basis of a complaint of dowry harassment that
too in casual and cavalier manner. This provision of law has been widely abused or misused
which can be observed in the mechanical arrest by the police. The fact that section 498-A is a
cognizable, non-bailable and non-compoundable has taken it an ambiguous place of pride
amongst the provisions that are used as weapons rather than shield by discontented wives.
The simplest way to harass is to get the husband and his relatives arrested under this
provision. In number of cases bed-ridden fathers & mothers of the husband, his married &
unmarried sisters are arrested. In many cases, even the relatives of the husband who are
residing abroad having no concern are also being harassed.

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Objective and Research Methodology

A. Statement of Problem

Section 498 A of the Indian Penal Code defines Cruelty on married women by Husband or
Relatives of Husband and provides provisions punishment for guilty of such offence as
provided by this Section. The Section has been a subject matter of debate and discussion
about its applicability and misuse by woman by filing a false case. This project will look
upon its applicability and how far it has reduced the incidence of cruelty and what are the
consequence for making this section one sided towards the woman.

B. Aims and Objectives

The primary aim of this research project is to study the evolution of Section 498 A of the
Indian Penal Code and the reason for its insertion in the Code. This study begins by tracing
the situation before its insertion and amendment. It also studies the relationship of this section
with various legislations. The most important part of this study is to analyse its benefits and
misuses. Focus is also given towards the various judicial pronouncements giving shape to the
legal principles related to cruelty regarding its uses and misuses.

C. Scope and Limitations

The present project has been confined to the application of Section 498 A and its benefits and
misuses. Relevant cases have been cited and also included recommendation made by Hon’ble
Supreme Court of India. Paucity of time and books in library have compelled the said
limitation.
D. Objectives

1. To understand the Cruelty, Cruelty by Husband or by his relative, insertion of Section 498
A in IPC
2. To find out the benefits and misuse of this section

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3. To study and analyse various judgement given by Supreme Court and various High Courts
regarding this section on its benefits and misuse and guidelines to curb misuses.

E. Hypothesis

Section 498 A of the Indian Penal Code, 1860 deals with the Cruelty on married women by
husband or by his relatives. This was inserted in 1983 with the aim to protect the woman
from domestic violence, dowry death and to provide legal means to raise her voice. The
Section has been misused by women more than it provided benefits.

G. Methodology

This project is doctrinal and analytical in nature. The study was done with the help of primary
as well as secondary sources of data. The primary sources include various legislations of
India and Judgements of the Supreme Court and certain High Courts, and the secondary
sources include published sources such as books, and journals.

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1. Meaning of Cruelty under Section 498 A of IPC

Cruelty is generally defined as the behaviour which causes physical and mental harm to
another, or act of hurting other.

According to Merriam Webster dictionary1, it is an inhumane conduct which causes


endanger life or health or to cause mental suffering or fear.

According to Oxford Dictionary 2, Cruelty is the deliberate and malicious infliction


of mental or physical pain upon persons and animals. Cruelty encompasse s abusive,
outrageous, and inhumane treatment that results in the wanton and unnecessary
infliction of suffering upon the body or mind.

Cruelty under Section 498 A of the Indian Penal Code has a very specific and
restricted meaning. It is restricted to the marriage or matrimonial cruelty.
Explanation to Section 498 A defines cruelty 3 as:

i. 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 h ealth
(whether mental or physical) of the women.
ii. It also includes 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 is on account of failure by her
or any person related to her to meet such demand.

It is clear from the above that the offence under this section is a matrimonial offence
and the offenders here are husband and relatives of husband and the victims are wife
and her relatives. It is also restricted to the Act which cause woman to commit
suicide or grave injury or danger to life, limb and health. But the Court have taken
liberal view and held that cruelty and abatement to suicide depends from facts and
circumstances of cases such as individuals, society, economic and social status of a
person. The section also includes mental cruelty. However, the section does not
cover every kind of harassment. The complainant has conclusively to establish that
1
https://www.merriam-webster.com/dictionary/cruelty, last visited 02-10-2017, 5:37 pm
2
Oxford English Dictionary, 2016, oxford university press
3
Explanation to Section 498 A of the Indian Penal Code, 1860

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the beating and harassment in question was with a view to force her to committed
suicide or to fulfil the illegal demand of dowry. In this case, though there might have
been a previous history of harassment for those purposes, at the moment of the
complaint those urges were not proved to be figuring in the harassment 4

In the case of Inder Raj Malik vs. Sunita Malik5 , 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

Prior to the insertion of this section under the Code, there were laws under Indian
penal Code (Section 304 B, 306 & 494), Dowry Prohibition Act, 1961 (Section 4)
and the provisions under Domestic Violence Act to deal with such kind of offences.
However, it was observed that these provisions failed to control the incidence of
cruelty on woman effectively as all these provisions do not define the offence
expressly and punishment is not enough to deter the crime. The number of incidents
went up in a very short span of time.

When this well intentioned social legislation like Dowry Prohibition Act failed
miserably due to its inherent effects, new penal provision was brought by Criminal
Law (Second Amendment) Act, 1983 which amended Indian Penal Code, The Code
of Criminal Procedure and the Indian Evidence Act, 1872. By this amendment,
Section 498 A was introduced to the Indian Penal Code to satisfy the felt - need of
time. The Section provides punishment of 3 years along with this it made the offence

4
State of Haryana v Rajinder Singh, 1996 Cr LJ 1875 (SC)
5
1986 Cr LJ 1510 (Del)

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cognizable, non-bailable and non compoundable. This section tries to maintain that
every married woman needs to be given due respect and treated with care. It reinforces the
fact that a woman is not a toy to be played with, to be thrown away at one’s whims and
fancies and treated as inferior to any other. It inherently asks for husbands to treat their wives
well and not misbehave or demand unjustly which in a way sends forth a message that a
woman is a commodity for sale.

What section 498A IPC tries to do is prevent and punish the above act and re-assert a
woman’s right to live a peaceful and happy life.

Due to the nature of this section, this has been misused due to the private motive,
revenge or malafide intention to harass husband and his family. With the rise in
modernisation, education, financial security and the new found independence the radical
feminist has made 498A a weapon in her hands. Many a hapless husbands and in laws have
become victims of their vengeful daughter-in-laws. Most cases where Sec 498A is invoked
turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as
they are mere blackmail attempts by the wife (or her close relatives) when faced with a
strained marriage. In most cases 498A complaint is followed by the demand of huge amount
of money (extortion) to settle the case out of the court.

In the last 20 years of criminal law reform a common argument made against laws relating to
violence against women in India has been that women misuse these laws. The police, civil
society, politicians and even judges of the High Courts and Supreme Court have offered these
arguments of the "misuse' of laws vehemently. The allegation of misuse is made particularly
against Sec 498A of the IPC and against the offence of dowry death in Sec 304B. One such
view was expressed by former Justice K T Thomas in his article titled 'Women and the Law',
which appeared in The Hindu6, there he quoted “Whenever a law is made very stringent
under the pressure of emotionally surcharged social reactions, there is the danger of its
misuse.” The 2003 Malimath Committee report on reforms in the criminal justice system also
notes, significantly, that there is a "general complaint" that Sec 498A of the IPC is subject to
gross misuse; it uses this as justification to suggest an amendment to the provision, but
provides no data to indicate how frequently the section is being misused. It is important

6
Thomas K.T., Women and the Law, Published in The Hindu on 19-02-2004, available at
http://www.thehindu.com/2004/02/19/stories/2004021902311000.htm, last visited 03-10-2017, 6:32 pm

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therefore that such "arguments" are responded to, so as to put forth a clearer picture of the
present factual status of the effect of several criminal laws enacted to protect women7.

The same amendment also introduced Section 113 A of the Indian Evidence Act which
contains Presumption as to dowry death which stated as “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
death8.”

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.

Constitutional Validity of Section 498 A

In Inder Raj Malik and others vs. Mrs. Sumita Malik9, 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.

7
¶ 16 of the Malimath Committee Report, 2003 on “Reforms in the Criminal Justice System”
8
Section 113 A of the Indian Evidence Act, 1872
9
1986 Cr LJ 1510 (Del)

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2. Uses and Misuses of Section 498 A of IPC

Section 498-A was added to the Indian Penal Code in 1983, and by definition, seeks to
address and hold accountable, those who inflict cruelty or other forms of unjust treatment
towards a woman in her marital home. The punishment for inflicting cruelty is inclusive of a
fine and a prison term which may extend to 3 years or more depending on the extent and
duration of violence endured by the woman. Not only the husband, but also the parents and
relatives of his family are held accountable and liable to be punished. However, despite its
many successes at facilitating justice for women in genuine cases, Section 498-A has come
under criticism due to the number of times it has been misused as part of false cases filed by
women seeking alimony or divorce from their husbands. Given that it is a cognizable, non-
compoundable and non-bailable offense, which involves a mandatory jail term of up to 7
days, false complaints can cause considerable distress to those families who are innocent of
all charges, and can seriously damage their reputations.

It is therefore important to explore both, the positive as well as the negative impact of the act
against domestic cruelty.

 Benefits of Section 498 A of IPC

The section 498A was introduced to fight the against the gradual increase of dowry deaths. It
was introduced in the Criminal Law Amendment Act, 1983. The major objective of this
section of I.P.C is to protect a woman who is being harassed by her husband as well as
relatives of husband.

The easy way to get rid of harassment is to get the husband and his relatives arrested under
this provision. In quite a number of cases in-laws of husbands are arrested for demanding
dowry.

Indian Courts had been using this provision to safeguard the women from facing the cruelty
faced by them at their matrimonial home.

9 out of 10 of the cases are always related to dowry, wherein the woman is continuously
threatened for want of more money and property which if remains unfulfilled, the married
woman is tortured, threatened, abused- both physically and verbally and harassed. Like in the

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case of Ram Kishan Jain &Ors v State of Madhya Pradesh10 due to insufficiency of dowry
demands the woman was administered calmpose tablets and thereafter she even cut the
arteries of both her hands. Sometimes, dowry may not be the cause but the woman for several
reasons like her complexion or family status is tortured to death.

Also S.498A IPC does not only deal with dowry deaths but also any wilful conduct on part of
the husband which causes harm to the wife’s ‘ life, limb or health (whether mental or
physical).’To prove that cruelty was caused under Explanation a) of S.498A IPC it is not
important to show or put forth that the woman was beaten up- abusing her verbally, denying
her conjugal rights or even not speaking to her properly11 would fall into the ambit of mental
cruelty.

Increasing dowry deaths and harassment needs to be stopped, it is also clearly noticed that
women today are still tortured and often the court, being the ultimate savior also does not
come to the rescue to protect these women.

 Misuses of Section 498 A of IPC

This section is enacted to fight against the dread of dowry deaths and this provision of law
has been using in the courts to safeguard the married women from facing cruelty in their
matrimonial homes. Most of the cases are always related to dowry wherein women are
continuously threatened for want of more money and valuable property from their parents.
But, in many cases the victim turns into the abuser of this provision of law and the husband
and his relatives have to face serious harassment for no fault of their own. Several cases show
that the married woman takes advantage of this section and send the husband and his relatives
to jail under the ambit of this section because section 498A I.P.C. requires the bridegroom
and his family members to be arrested on the basis of a complaint of dowry harassment that
too in casual and cavalier manner. This provision of law has been widely abused or misused
which can be observed in the mechanical arrest by the police. The fact that section 498-A is a
cognizable, non-bailable and non-compoundable has taken it an ambiguous place of pride
amongst the provisions that are used as weapons rather than shield by discontented wives.
The simplest way to harass is to get the husband and his relatives arrested under this
provision. In number of cases bed-ridden fathers & mothers of the husband, his married &

10
II (2000) DMC 628
11
Ramesh Dalaji Godad v State of Gujarat II (2004) DMC 124

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unmarried sisters are arrested. In many cases, even the relatives of the husband who are
residing abroad having no concern are also being harassed.

The main reasons for increasing misuse of this provision of law are that nowadays women are
highly ambitious, highly qualified and are not economically dependent upon their husbands.
Though educated & working ladies can be good home-makers but in most of the cases
earning huge sum of money by the wives make them egoistic and they become impatience,
they cannot tolerate the dominion of husband over them. The dishonest women are mis-using
section 498-A as a weapon to harass the in-laws in order to fulfil their illegal (arbitrary)
desires/demands.

Such misuse and abuse of Section 498A of the IPC was time and again voiced by the Police,
civil Society, Politicians and even Judges of the High Courts and the Supreme Court. The
former Judge of the Supreme Court, Justice K. T. Thomas in his Article titled ‘Women and
the Law’ appeared in the ‘Hindu’ expressed the concern over increasing misuse of the
provisions of Section 498A of the IPC. The 2003 Malimath Committee report on reforms in
the criminal justice system also notes, significantly, that there is a “general complaint” that
Sec 498A of the IPC is subject to gross misuse; it uses this as justification to suggest an
amendment to the provision.

In case of Savitridevi v/s. Ramesh Chand & Ors12, it was held that there was a misuse of the
provisions of Section 498A of the IPC to such an extent that it was hitting at the foundation
of marriage itself and prove to be not so good for health of Society at large.

The Punjab & Haryana High Court in the case of Jasbir Kaur vs. State of Haryana13, held
that It is known that an estranged wife will go to any extent to rope in as many relatives of the
husband as possible in a desperate effort to salvage whatever remains of an estranged
marriage.

The Karnataka High Court, in the case of State Vs. Srikanth14 observed that Roping in of the
whole of the family including brothers and sisters-in-law has to be depreciated unless there is
a specific material against these persons, it is down right on the part of the police to include
the whole of the family as accused.

12
2003 Cr. LJ 2759 (Delhi)
13
(1990)2 Rec Cri R 243
14
2002 Cr. LJ 3605 (Kant.)

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In the case of Sushil Kumar Sharma vs. Union of India and others15, the Apex Court observed
that The object of the provision is prevention of the dowry menace. But as has been rightly
contented by the petitioner that 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 ignominy suffered during and prior to trial. Sometimes
adverse media coverage adds to the misery. The question, therefore, is what remedial
measures can be taken to prevent abuse of the well-intentioned provision. Merely because the
provision is constitutional and intra vires, does not give a licence to unscrupulous persons to
wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the
legislature to find out ways how the makers of frivolous complaints or allegations can be
appropriately dealt with. Till then the Courts have to take care of the situation within the
existing frame work.

It is pertinent to note that the Law Commission in their 243rd Report dated 29th August,
201216 expressed their serious concern regarding the misuse of Section 498A of the IPC after
considering various representations including the concern expressed by the Hon’ble Supreme
Court and the High Court in various judicial pronouncements regarding misuse of Section
498A of the IPC. The Law Commission suggested various measures including to make the
offence under Section 498A of the IPC compoundable with the permission of the Court.
However, no steps have been taken by the Government/Parliament to amend Section 498A of
the IPC.

In spite of the concern expressed by the Supreme Court and the High Courts and also Law
Commissions regarding misuse of Section 498A of the IPC with suggestions to amend the
provisions, no steps have been taken by the Parliament or the Government.

In the recent judgment of the Apex Court in the case of Arnesh Kumar v/s. State of Bihar
reported in AIR 2014 SC 2756 issued certain guidelines/directions (having force of law) to
protect the innocent accused persons from unnecessary harassment and arrest. The Apex
Court observed in Paras 6 to 8 of the said Judgment as under :-
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 Indian Penal Code was
introduced with avowed object to combat the menace of harassment to a woman at the hands

15
(2005) 6 SCC 281
16
243rd Law Commission Report, available at http://lawcommissionofindia.nic.in/reports/report243.pdf, last
visited 03-10-2017, 7:34 pm

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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. “Crime in India 2012 Statistics” published by National Crime Records Bureau,
Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year
2012 for offence Under Section 498-A of the Indian Penal Code, 9.4% more than the year
2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951
which depicts that mothers and sisters of the husbands were liberally included in their arrest
net. Its share is 6% out of the total persons arrested under the crimes committed under Indian
Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal
code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in
cases Under Section 498A, Indian Penal Code is as high as 93.6%, while the conviction rate
is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of
which on current estimate, nearly 3,17,000 are likely to result in acquittal.
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so
also the police. There is a battle between the law makers and the police and it seems that
police has not learnt its lesson; the lesson implicit and embodied in the Code of Criminal
Procedure. It has not come out of its colonial image despite six decades of independence, it is
largely considered as a tool of harassment, oppression and surely not considered a friend of
public. The need for caution in exercising the drastic power of arrest has been emphasized
time and again by Courts but has not yielded desired result. Power to arrest greatly
contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the
power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first
and then proceed with the rest is despicable. It has become a handy tool to the police officers
who lack sensitivity or act with oblique motive.
Law Commissions, Police Commissions and this Court in a large number of judgments
emphasized the need to maintain a balance between individual liberty and societal order
while exercising the power of arrest……” Police officers make arrest as they believe that
they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts
scars forever, we feel differently. We believe that no arrest should be made only because the
offence is non-bailable and cognizable and therefore, lawful for the police officers to do so.
The existence of the power to arrest is one thing, the justification for the exercise of it is quite

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another. Apart from power to arrest, the police officers must be able to justify the reasons
thereof. No arrest can be made in a routine manner on a mere allegation of commission of an
offence made against a person. It would be prudent and wise for a police officer that no arrest
is made without a reasonable satisfaction reached after some investigation as to the
genuineness of the allegation. Despite this legal position, the Legislature did not find any
improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to
intervene and on the recommendation of the 177th Report of the Law Commission submitted
in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Code of Criminal
Procedure), in the present form came to be enacted. It is interesting to note that such a
recommendation was made by the Law Commission in its 152nd and 154th Report submitted
as back in the year 1994. The value of the proportionality permeates the amendment relating
to arrest.
After considering the misuse of the provisions in the said Judgment of Mr. Arnesh Kumar,
the Apex Court issued following guidelines/directions to protect against the illegal cavalier
arrest in implementation of Section 498A of the IPC:-
“Our endeavor in this judgment is to ensure that police officers do not arrest accused
unnecessarily and Magistrate do not authorize detention casually and mechanically. In order
to ensure what we have observed above, we give the following direction:

1. All the State Governments to instruct its police officers not to automatically arrest
when a case Under Section 498-A of the Indian Penal Code is registered but to satisfy
themselves about the necessity for arrest under the parameters laid down above
flowing from Section 41, Code of Criminal Procedure
2. All police officers be provided with a check list containing specified sub-clauses
Under Section 41(1)(b)(ii)
3. The police officer shall forward the check list duly filed and furnish the reasons and
materials which necessitated the arrest, while forwarding/producing the accused
before the Magistrate for further detention;
4. The Magistrate while authorizing detention of the accused shall peruse the report
furnished by the police officer in terms aforesaid and only after recording its
satisfaction, the Magistrate will authorize detention;
5. The decision not to arrest an accused, be forwarded to the Magistrate within two
weeks from the date of the institution of the case with a copy to the Magistrate which

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may be extended by the Superintendent of police of the district for the reasons to be
recorded in writing;
6. Notice of appearance in terms of Section 41A of Code of Criminal Procedure is
served on the accused within two weeks from the date of institution of the case, which
may be extended by the Superintendent of Police of the District for the reasons to be
recorded in writing;
7. Failure to comply with the directions aforesaid shall apart from rendering the police
officers concerned liable for departmental action, they shall also be liable to be
punished for contempt of court to be instituted before High Court having territorial
jurisdiction.
8. Authorizing detention without recording reasons as aforesaid by the judicial
Magistrate concerned shall be liable for departmental action by the appropriate High
Court.

After the said judgment of the Apex Court in the case of Arnesh Kumar, the present
Government has decided to amend the Law relating to Anti-dowry including Section 498A of
the IPC by making the said Section 498A of the IPC compoundable as recommended by the
Law Commission in its 243rd Report. However, the said provision is not amended till date.
Thus, it is clear that the problem of misuse is a social phenomenon due to financial
independency and high education amongst the women coupled with weakening of affinity
towards the matrimonial and family institution.

Moreover, many women rights’ groups go against the idea of making the offence a non-
cognizable and bailable one thinking that this gives the accused a chance to escape
conviction. But what this would do is that it would give a fair chance to the man and above
all help meet the ends of justice. Justice must protect the weaker and ensure that the wronged
is given a chance to claim back his/her due.

When women accuse their husbands under S.498A IPC by making the offence non-bailable
and cognizable, if the man is innocent he does not get a chance quickly to get justice and
‘justice delayed is justice denied’. Therefore, the lawmakers must suggest some way of
making this section non-biased to any individual such that the guilty is punished and the
person wronged is given justice.

Recently, the Supreme Court issued new set of directions to prevent the misuse of Section
498 A of the Indian Penal Code. The two judge bench of Supreme Court in the case of Rajesh

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Sharma & Ors. v State of Uttar Pradesh & Anr.17 , observed Section 498A was inserted in the
statute with the laudable object of punishing cruelty at the hands of husband or his relatives
against a wife particularly when such cruelty had 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. The
Court stated “It is a matter of serious concern that large number of cases continues to be filed
under Section 498A alleging harassment of married women. To remedy the situation, we are
of the view that involvement of civil society in the aid of administration of justice can be one
of the steps, apart from the investigating officers and the concerned trial courts being
sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement
has been reached instead of parties being required to move High Court only for that purpose.
The Court after hearing both the parties the Court have issued following directions:

i. In every district one or more Family Welfare Committees be constituted by the


District Legal Services Authorities preferably comprising of three members.
a. The constitution and working of such committees may be reviewed from time to time
and at least once in a year by the District and Sessions Judge of the district who is also
the Chairman of the District Legal Services Authority.
b. The Committees may be constituted out of para legal volunteers/social workers/retired
persons/wives of working officers/other citizens who may be found suitable and
willing.
c. The Committee members will not be called as witnesses.
d. Every complaint under Section 498A received by the police or the Magistrate be
referred to and looked into by such committee. Such committee may have interaction
with the parties personally or by means of telephone or any other mode of
communication including electronic communication.
e. Report of such committee be given to the Authority by whom the complaint is
referred to it latest within one month from the date of receipt of complaint.
f. The committee may give its brief report about the factual aspects and its opinion in
the matter.
g. Till report of the committee is received, no arrest should normally be effected.
h. The report may be then considered by the Investigating Officer or the Magistrate on
its own merit.

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Criminal Appeal No. 1265 of 2017

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i. Members of the committee may be given such basic minimum training as may be
considered necessary by the Legal Services Authority from time to time.
j. The Members of the committee may be given such honorarium as may be considered
viable.
k. It will be open to the District and Sessions Judge to utilize the cost fund wherever
considered necessary and proper.
ii. Complaints under Section 498A and other connected offences may be investigated
only by a designated Investigating Officer of the area. Such designations may be
made within one month from today. Such designated officer may be required to
undergo training for such duration (not less than one week) as may be considered
appropriate. The training may be completed within four months from today
iii. In cases where a settlement is reached, it will be open to the District and Sessions
Judge or any other senior Judicial Officer nominated by him in the district to dispose
of the proceedings including closing of the criminal case if dispute primarily relates to
matrimonial discord
iv. If a bail application is filed with at least one clear day’s notice to the Public
Prosecutor/complainant, the same may be decided as far as possible on the same day.
Recovery of disputed dowry items may not by itself be a ground for denial of bail if
maintenance or other rights of wife/minor children can otherwise be protected.
Needless to say that in dealing with bail matters, individual roles, prima facie truth of
the allegations, requirement of further arrest/ custody and interest of justice must be
carefully weighed
v. In respect of persons ordinarily residing out of India impounding of passports or
issuance of Red Corner Notice should not be a routine
vi. It will be open to the District Judge or a designated senior judicial officer nominated
by the District Judge to club all connected cases between the parties arising out of
matrimonial disputes so that a holistic view is taken by the Court to whom all such
cases are entrusted.
vii. Personal appearance of all family members and particularly outstation members may
not be required and the trial court ought to grant exemption from personal appearance
or permit appearance by video conferencing without adversely affecting progress of
the trial.
viii. These directions will not apply to the offences involving tangible physical injuries or
death.

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According to recommendation given by Justice Malimath Committee Report, some of the
step to be taken to control the incidence of misuse of Section 498 A of the Indian Penal
Code18:

i. Role of Women NGO: These organizations should investigate complaint properly


without any bias towards the woman keeping in mind that the law is being misused
largely to harass more women in husband’s family. They should not encourage any
woman to file a criminal case against her in-laws for trivial matters. Foreign Women
Organizations should also take responsibility of not allowing false complaint to be
registered against NRI’s just to harass and extort huge amount of money from them.
These organizations should also conduct survey/research on the misuse of the act and
should educate people about its consequences. If these organizations are found to be
assisting in filing false complaints, then they should be made liable for prosecution in
the country where they are functioning.
ii. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-
laws have come to light from different parts of the country. As of now there is no
organization, which can really help these harassed men and his family members, to listen their
side of the story and put their point of view in front of the government. Need of the hour is to
create family counselling centres across the country to help those aggrieved families.
iii. Time bound Investigation and Trial: A speedy trial of 498(a) cases will not only ensure
justice for the innocents that have been implicated in false charges, it will also lead to prompt
redressal of the grievances of real dowry victims .The reduction in false cases will also reduce
the burden on judiciary and expedite the processing of real cases.
iv. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which
leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law.
There should be provision for men also to file a case for mental cruelty by his wife
v. Investigation by Civil Authorities: The investigation into these offences be carried out
by civil authorities and only after his/her finding as to the commission of the offence,
cognizance should be taken. The government should create awareness among officers about
its misuse.
vi. The main reason of 498a being misused to harass innocent is its non-bailable nature. This
section should be made bailable to prevent innocent old parents, pregnant sisters, and school
going children from languishing in custody for weeks without any fault of them.

18
After looking to the report of following suggestions have been made Justice Malimath Committee on Reforms
of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003

Page | 17
vii. It should be made Compoundable: Once FIR has been registered it becomes impossible
to withdraw the case even if wife realizes that she has done a blunder and wants to come back
to her matrimonial home. To save institution of marriage this should be made compoundable.
Moreover, in the scenario where the couple decides to end the marriage by mutual divorce,
continuation of criminal proceedings hamper their life.
viii. Arrest warrant should be issued only against the main accused and only after cognizance has
been taken. Husband family members should not be arrested.
ix. Penalty for making false accusation: Whenever any court comes to the conclusion that
the allegations made regarding commission of offence under section 498a IPC are unfound,
stringent action should be taken against persons making the allegations. This would
discourage persons from coming to courts with unclean hands and ulterior motives. Criminal
charges should be brought against all authorities that are collaborating with falsely accusing
women and their parental families.
x. Physical appearance of the accused on hearing should be waved or kept low to avoid hassles
in appearing to the court, especially for NRIs. The court should not ask to surrender passport
of the husband and his family which could cost job of the husband and his family members.
xi. The registration of marriages should be made compulsory along with the requirement that the
couple make a joint declaration regarding the gifts exchanged during marriage.
xii. Punish Dowry givers: If the complainant admits giving dowry in the complaint, the courts
should take cognizance of the same and initiate proceedings against them under the relevant
sections of the Dowry Prohibition Act
xiii. Penalize Corrupt Investigating Officer: If it is apparent to the court that a fair
investigation has not been conducted by the investigation officer, and that the husbandand his
family have been charge-sheeted without proper verification of the complaint, the
investigation officer should be penalized for gross negligence of duty.
xiv. NRI issues: Unless they are proven to be guilty after the due judicial process, NRIs should
be a given a fair chance to justice by assuring them such as Permission to return to country of
employment, no impoundment/revocation of passport and no Interpol Red Corner Notices, no
unnecessary arrests, expeditious investigation and trial

xv. Law should be made Gender Neutral: Everyone should have equal rights and
responsibilities, irrespective of gender. In the current social context, there should be similar
laws to protect harassed husband and his family members from an unscrupulous wife.

All these steps are required to be taken by both legislation and judiciary to check any misuse
of this section which is a social legislation with the aim to protect women from cruelty.

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Conclusion

Upon examining Section 498-A of the Indian Penal Code therefore, it is clear that it is taking
a firm stand against dowry and cruelty against women, which comes as an advantage to
women; however given the ratio of false cases to genuine cases, it is recommended that
amendments be made in order to support innocent victims as well.

The law must suggest some methods of making this section non-biased so that a wrong
person is not punished. The position of the women in India is still in a bad condition. They
still need rights to improve themselves in the society.

The educated woman of today must agree with equality of men and women and demand the
same but it is seen that the trend is slowly getting reversed. Sometimes women are taking
benefit of the fact that they are considering as the ‘weaker sex’ and sometimes violating
rights of men.

The following areas of interventions can be seen to strengthen Sec. 498A, namely family
counselling centres, time bound investigation and trials, definition of mental cruelty and
penalty for making false accusations.

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References

Book:

 Ratanlal & Dhirajlal, The Indian Penal Code, 34 th Edition, Lexis Nexis,
2016

Reports:

 Justice Malimath Committee Report, 2003


 Report of 243rd Law Commission of India, 2012

Websites:

 http://www.legallyindia.com/views/entry/section-498a-of-ipc-its-use-
misuse-html, last visited 04-10-2017, 05:36 pm
 http://www.pathlegal.in/IPC-Sec-498A:-Uses-and-Misuses-blog-1039277
 http://www.glad2bawoman.com/articles/category/rights/section-498-use-
and-misuse, last visited 04-10-2017, 06:22 pm
 https://www.oneindia.com/feature/what-is-section-498-a-how-it-is-
misused-explained-1981686.html, last visited 03-10-2017, 11:37 pm
 http://pallavipratap.com/author/pallavipratap/ last visited 02-10-2017,
10:39 pm
 https://www.youthkiawaaz.com/2017/06/dowry-harassment-use-misuse-
of-section-498a-ipc/ last visited 05-10-2017, 06:44 am
 https://www.elixiruniverse.com/misuse-of-section-498-a-of-indian-penal-
code/ last visited 04-10-2017, 03:47 pm
 http://www.livelaw.in/breaking-misuse-of-s-498a-sc-directs-to-form-
family-welfare-committees-to-examine-each-cases-no-arrests-before-
committees-report-read-new-guidelines/ last visited 04-10-2017, 7:26 pm

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