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MISUSE OF SECTION 498A BY WOMEN – MISUSE, EFFECT, GUIDELINES

BY SC

INTRODUCTION
The Indian Constitution and it’s laws have always stood beside the
women to protect their rights and prevent them from any form of
agony. Voices have always been raised to provide equal rights to
women as that to men. Judiciary and legislature both have always
pronounced judgments and enacted laws so as to suit the needs of the
society. The concept of Feminism is becoming more and more cliché,
and everybody seems to be working towards it. But in all these
pursuits, the plight of men has been greatly ignored.

Section 498-A
Section 498A was introduced in the year 1983 to meet the cases of
cruelty to women and Dowry Death. According to this section, if the
husband or the relatives of the husband subject the woman to cruelty,
they shall be punished with imprisonment of up to three years and will
also be liable to fine. Here the word ‘cruelty’ has also been explained,
which includes any conduct which causes grave injury or drives the
woman to commit suicide. It also includes harassment of the woman
relating to dowry.
Thus this section was enacted to provide a shield in the hand of a
married woman, which was strengthened further by making the
offence cognizable, non–bailable and non-compoundable. It was held in
the case of B.S. Joshi v. State of Haryana1 that the object of section
1 2003 CRI. L.
498A is to prevent torture to a woman by her husband or his relatives
in connection with demand of dowry. Thus providing a full proof
protection to women in cases of harassment in her matrimonial house.

CLAIM - Misuse of the Section 498-A


Keeping aside the benefits provided by this section to woman, in recent
years voices have been raised regarding the misuse of this section. It
has been said that there is a rampant misuse of this section for
extorting money, vengeance, or satisfying ego in certain minor feuds.
Men have become helpless in the hands of women. Once a case under
Section 498-A is filed, husband and his relatives have to go through all
sorts of brutality, be it from police or the courts. Everyone looks toward
husband as guilty until proven innocent. Being a cognizable offense,
police never hesitates to arrest the husband and after that, it’s non –
bailable nature adds fuel to the fire, where the husband is left to the
mercy of court to get a bail. In the end, even if the misunderstanding
between husband and wife is sorted out, the non-compoundable
nature of Section 498-A works as a huge hindrance.
The whole nature of this provision is such that now instead of helping
women , it is now been misused to file false cases so as to satisfy one’s
personal vendetta and wreck havoc on the husband and his relatives.
The claim that Section 498-A is being misused is being supported by
going through certain case laws and reports.

1. NCRB REPORT(2006-2015)
To understand the above claim, the reports of National Crime Records
Bureau(NCRB) of India (2006—2015) should be considered.
Disposal of cases filed under Sec 498-A of IPC by Courts
Year Total Convicte Acquitte Withdraw Total Convictio Average
Cases d d n Cases n Rate of Convictio
where Pendin Cases n Rate of
trial g at the under all IPC
complete end of 498-A in crimes in
d in that the % %
year year
200 31261 6857 24404 5679 206431 21.9 42.9
6
200 32622 6831 25791 6364 228614 20.9 42.3
7
200 34347 7710 26637 7310 251759 22.4 42.6
8
200 37323 7380 29943 7111 278921 19.8 41.7
9
201 40751 7764 32987 6601 309991 19.1 40.7
0
201 40338 8167 32171 7450 339902 20.2 41.1
1
201 46054 6916 39138 8162 372706 15 38.5
2
201 45423 7258 38165 8218 412438 16 40.2
3
201 46853 6425 40428 8922 443885 13.7 45.1
4
201 46217 6559 39658 10318 477986 14.2 46.9
5

The report highlights the convictions and acquittals rates of the total
cases filed under Sec 498-A and also compares it to the average
convictions of all the crimes in IPC.
After studying the report it can be found that, the number of cases filed
under Sec 498-A has increased year by year. While the number of
convictions in all those ten years was between 6000-8000 but the
number of acquittals increased consistently. Thus only one out of every
seven cases resulted in conviction. It can also be seen that the
conviction rate under Section 498-A was less than 1/3rd as compared to
the rate of all the other convictions under IPC. Thus the convictions rate
under Section 498-A is among one of the lowest in IPC.
The above data points only in one direction, that is, the misuse of this
section to file false cases and therefore resulting in acquittals. This is a
very serious issue and the judiciary in recent years has taken a good
look into it. In many judgements the courts have under taken this
matter and have accepted the fact that this section has been rampantly
misused by the women and therefore needs a quick look by the
legislature.

2. CASE LAWS SUPPORTING THE CLAIM


Section 498-A : A new form of Legal Terrorism?
• The misuse of this section was acknowledged in the case of Savitri
Devi versus Ramesh Chand2 where the court referred to it as
‘social catastrophy’ and said “the misuse of the provisions of
Section 498A/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. These provisions were though
made with good intentions but the implementation has left a very
bad taste and the move has been counter productive.”

• In the case of Sushil Kumar Sharma v. UOI3, the court had


acknowledged the blatant misuse of section 498A and had
observed that “It may therefore become necessary for the
Legislature to find out ways how the makers of frivolous

2 ILR 2003 Delhi 484


3 2005 6 SCC 281
complaints or allegations can be appropriately dealt with”. The
court had then, expressly referred to this misuse as ‘legal
terrorism’ and had asked to provide methods to curb it.

• Later on in the case of Preeti Gupta Vs. State of Jharkhand4, the


court said that, “It is a matter of common knowledge that
exaggerated versions of the incidents are reflected in a large
number of complaints” and therefore serious look on this matter
is demanded by the legislature.

3. RAJYA SABHA COMMITTEE REPORT – acknowledging the


misuse

There are certain changes needed in the Section 498A and it can be
understood by going through the arguments in favor of amendment of
this section, mentioned in the 140th Report of the Rajya Sabha
Committee on Petitions (September, 2011) which are as follows :
(i) Section 498A of IPC permits arrest of the husband and his female or
male relatives irrespective of their age, marital status, health condition
merely on the basis of allegation of wife. In that context, the terms
“cruelty”, “harassment” and “relatives of the husband of the women”
had been interpreted to suit the complainant and investigating agency
leading to enhancing the suffering of innocent relatives of husband,
who are merely related by blood or marriage but might even not
residing with the husband or even might not have visited the family in
the near past. These terms need to be defined in the code;

4 AIR 2010 SC 3363


(ii) Section 498A, IPC together with Section 113B of the Evidence Act,
1872 are technically flawed from the time of their insertion in the
statute books because those Sections presume the alleged accused to
be guilty till proven innocent which goes against the cardinal principle
of criminal jurisprudence in accordance of which any individual is
presumed to be innocent until proved guilty beyond reasonable doubt;
(iii) The said provisions make complete disregard of Fundamental Right
to Life and also directly violates Universal Declaration of Human Rights,
1948 to which our country happens to be a signatory;
(iv) Section 498A could be resorted to any time during life period of
husband by wife even to suppress her fault and further her own self
interest. Some sort of time limit similar to the time (within seven years
of marriage) provided under Section 304B of IPC for dowry death might
be provided in Section 498A;
(v) Sometimes petty marital squabbles between spouses in order to
have control over husband and his family often drive the wife to resort
to 498A which strikes at the root of institution of marriage and the
trend of ‘live-in-relationship’ may get a boost which may promote
polygamy and children born out of that relationship would be worst
suffers in the times to come;
(vi) The stigma and insults suffered by the family of the husband due to
misuse of Section 498A cannot be wiped out in any manner in our
society. Provision for penalty and recovery of prosecution cost from the
lady or her family who misuses the Section 498A may be incorporated.
Suitable compensation to the persons who are affected by such process;
(vii) Cruelty or domestic abuse is not gender specific. The assumption
that victims of physical, verbal, emotional, sexual, and financial abuse
are women always is wrong. According the Universal Declaration of
Human Rights, all are equal before the law, and are entitled without
any discrimination to equal protection of the law. Therefore, Section
498A may be made gender neutral;
(viii) Making the offence under Section 498A, bailable and
compoundable would also provide great relief to Indian judicial dockets
and pendency of cases would be reduced substantially;
(ix) There is a large difference in the number of person arrested under
Section 498A IPC and convicted under this Section, which shows how
some people are misusing this for ulterior motive;
(x) Arrest of elderly people, children and pregnant woman in the name
of relative of the husband is the hardest situation a family can face; and
(xi) Application of Section 498A to extort money from bridegroom’s
family specially the NRI bridegrooms would completely destroy the
institution of marriage in future

Thus after going through all the reports and cases it now quite evident
that the Section 498-A is being blatantly misused. Considering all the
misuses of Section 498A, the 243rd Law Commission Report had
mentioned the following triple problems in execution of this provision :
(a) the police straightaway rushing to arrest the husband and even his
other family members (named in the FIR),
(b) tendency to implicate, with little or no justification the in-laws and
other relations residing in the marital home and even outside the home,
overtaken by feelings of emotion and vengeance or on account of
wrong advice, and
(c) lack of professional, sensitive and empathetic approach on the part
of the police to the problems of woman under distress.
DIRECTIONS AND RECOMMENDATIONS
The Courts both the – High Courts and the Supreme Courts from time
to time had issued various directions and recommendations to curb the
misuse of section 498A. Following it various committees formed by the
government had also issued certain directions which are as follows

1. Directions by the High Courts to curb the misuse


Various high courts of the country have also observed the misuse of
section 498A. There were certain directions given to curb the
increasingly false victimization of the husband and his relatives by the
women. Two such cases are - Delhi High Court in Chandrabhan Vs.
State (order dated 4.8.2008 in Bail application No.1627/2008) and of
the Madras High Court in the case of Tr. Ramaiah Vs. State (order
dated 7.7.2008 and 4.8.2008 in MP No.1 of 2008 in Crl. O.P. No.10896
of 2008).
In the former case the court said that “there is no iota of doubt that
most of the complaints are filed in the heat of the moment over
trifling fights and ego clashes. It is also a matter of common
knowledge that in their tussle and ongoing hostility, the hapless
children are the worst victims”. The court gave the following directions
to the police authority –
i) “FIR should not be registered in a routine manner.
ii) Endeavour of the police should be to scrutinize complaints carefully
and then register FIR.
iii) No case under section 498-A/406 IPC should be registered without
the prior approval of DCP/Addl. DCP.
iv) Before the registration of FIR, all possible efforts should be made for
reconciliation and in case it is found that there is no possibility of
settlement, then, necessary steps should, in the first instance, be taken
to ensure return of sthridhan and dowry articles to the complainant.
v) Arrest of main accused be made only after thorough investigation has
been conducted and with the prior approval of the ACP/DCP.
vi) In the case of collateral accused such as in-laws, prior approval of
DCP should be there on the file.”

In the later case of TR Ramaiha, the court directed as follows –


i) Except in cases of dowry death/suicide and offences of serious nature,
the Station House Officers of the All Women Police Stations are to
register F.I.R. only on approval of the Dowry Prohibition Officer
concerned.
ii) Social workers/mediators with experience may be nominated and
housed in the same premises of All Women Police Stations along with
Dowry Prohibition Officers.
iii) Arrest in matrimonial disputes, in particular arrest of aged, infirm,
sick persons and minors, shall not be made by the Station House
Officers of the All Women Police Stations.
iv) If arrest is necessary during investigation, sanction must be obtained
from the Superintendent of Police concerned by forwarding the reasons
recorded in writing.
v) Arrest can be made after filing of the final report before the
Magistrate concerned if there is non-cooperation and abscondance of
accused persons, and after receipt of appropriate order (Non-Bailable
Warrant).
vi) Charge sheet must be filed within a period of 30 days from the date
of registration of the F.I.R. and in case of failure, extension of time shall
be sought for from the jurisdiction Magistrate indicating the reasons for
the failure.
vii) No weapon including lathis/physical force be used while handling
cases at the All Women Police Stations.
viii) Complainants/victims should be provided with adequate
security/accommodation at Government Home and interest of the
children must be taken care of.
ix) Stridana properties/movables and immovable to be restored at the
earliest to the victims/complainants and legal aid may be arranged for
them through Legal Services Authority for immediate redressal of their
grievances.”

2. Malimath Committee’s suggestion to stop the misuse


In the year 2003, the Malimath Committee on reforms of criminal
justice system had observed : “There is a general complaint that
section 498A of the IPC regarding cruelty by the husband or his
relatives is subjected to gross misuse and many times operates
against the interest of the wife herself. This offence is non-bailable
and non-compoundable. Hence husband and other members of the
family are arrested and can be behind the bars which may result in
husband losing his job. Even if the wife is willing to condone and
forgive the lapse of the husband and live in matrimony, this provision
comes in the way of spouses returning to the matrimonial home. This
hardship can be avoided by making the offence bailable and
compoundable.”
Thus it had recommended making Section 498A – Both Bailable and
Compoundable .

3. Rajya Sabha Committee’s suggestion


Later on in the year 2011, the misuse of Section 498A was dealt in the
140th Report of the Rajya Sabha Committee on Petitions (September,
2011). In this report, though the committee was against making the
Section 498-A Non–Cognizable and Bailable but it readily
recommended in making it compoundable. The committee also made
the following recommendations :
(i) Section 498A, IPC, provisions of the Dowry Prohibition Act 1961 are
and the Protection of Women from Domestic Violence Act 2005 have an
element of commonality and need to be harmonized and uniformly
implemented;
(ii) Police should in the interest of the protection of the constitutional
rights of a citizen ensure that no arrest should be made without a
reasonable satisfaction after some investigation as to the genuineness
and bonafide of a complaint and the need to effect arrest;
(iii) Creation of Mahila Desks at police station and Crime Against
Women (CAW) Cell, at least at the district level which would specifically
deal the complaints made by women. When a wife moves to file a
complaint to a women cell, a lot of persuasion and conciliation is
required. The Legal Service Authorities of the States / UTs, National
Commission for Women, NGO and social workers should set up a desk in
CAW Cell to provide conciliation services to the women so that before
the state machinery is set in motion the matter is amicably settled at
that every stage;
(iv) In case of matrimonial disputes, the first recourse should be
effective conciliation and mediation between the warring spouses and
their families and recourse of filing charges under Section 498A, IPC
may be resorted to in cases where such conciliation fails and there
appears a prima facie case of Section 498A of IPC and other related
laws; and
(v) Counseling mechanism envisaged under the PWDVA should be
implemented by State Governments and counseling of parties should be
done only by professionally qualified counselors and not by the police.
The police may consider empanelling professional counselors with CAW
Cells.
After considering the above report, the Ministry of Home Affairs also
issued an Advisory in the year 2012 and directed all the State
Governments and Union Territories to implement and follow the
above mentioned directions and recommendations so as to curb the
rampant misuse of Section 498A.

4. Recommendations by 243rd Law Commission Report


It can be seen that the government many a times had moved forward in
reducing the misuses of Section 498A. The 243rd Law Commission
Report had also given certain guidelines regarding section 498A and
had observed “The attitude to arrest first and then proceed with the
rest is despicable. Mechanical, casual and hasty application of the
power of arrest is counter-productive and negates the fundamental
right enshrined in Art. 21. Such attitude is at the root of misuse of S.
498A.” Following recommendations were also given :
• The offence under S, 498-A shall be made compoundable, with the
permission of Court and subject to cooling off period of 3 months,
as already recommended by this Commission in 237thReport. The
preponderance of view is to make it compoundable.
• The offence should remain non-bailable. However, the safeguard
against arbitrary and unwarranted arrests lies in strictly observing
the letter and spirit of the conditions laid down in Sections 41 and
41-A of Cr. PC relating to power of arrest and sensitizing the Police
on the modalities to be observed in cases of this nature. The need
for custodial interrogation should be carefully assessed. Over-
reaction and inaction are equally wrong. Police should take
necessary steps to ensure safety of the complainant and to
prevent further acts of harassment.
• The Home Ministry’s Advisory dated 20th October 2009 on the
subject of “Misuse of Section 498-A of IPC” should be readily
complied with, which directs –
1. following the guidelines laid down under DK Basu case,
2. formation of Mahila Desk at the police station and,
3. referring to Mediation and Conciliation in cases of matrimonial
disputes.

5. Directions under the case of Arnesh Kumar v. State of


Bihar
The rampant misuse of Section 498-A was also acknowledged in the
case of Arnesh Kumar versus State of Bihar5 and the court in very
strong words observed : “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 IPC was introduced with avowed
object to combat the menace of harassment to a woman at the

5 (2014) 8 SCC 273


hands 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.”
Thus in order to prevent unnecessary arrest and causal and mechanical
detention, the Court has issued certain guidelines which were later on
issued as an advisory by the Home Ministry to the States and UTs in
July 2014 so as to enforce the following guidelines :

• All the State Governments to instruct its police officers not to


automatically arrest when a case under Section 498-Aof the IPC is
registered but to satisfy themselves about the necessity for arrest
under the parameters laid down above flowing from Section 41,
CrPC.
• All police officers be provided with a check list containing specified
sub-clauses under Section 41(1)(b)(ii)
• 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.
• 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
may be extended by the Superintendent of police of the
district for the reasons to be recorded in writing.
• Notice of appearance in terms of Section 41A of Cr.PC
be 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.
• 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.
• Authorising detention without recording reasons as
aforesaid by the judicial Magistrate concerned shall be liable
for departmental action by the appropriate High Court.

6. Rajesh Sharma Guidelines


Finally in 2017 the Supreme Court issued a new sets of directions to
prevent the misuse of Section 498-A. In the case of Rajesh Sharma &
Ors. v. State of U.P.(2017) the court 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.”
Thus after considering all the previous judgments and reports the court
issued the following directions :
i) (a) In every district one or more Family Welfare Committees be
constituted by the District Legal Services Authorities preferably
comprising of three members. 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. 16

(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.
(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;
and

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.
CONCLUSION

It is rightly said, that sometimes the remedies are worse than the perils
or disease. Section 498-A was enacted to deal with the problem of
matrimonial cruelty with an iron hand but it has some how backfired.
Dealing civil disputes under criminal law is a very big risk as the decision
to make arrest is vested upon the lower police officials. He has to
decide whether cruelty has been infested or not and depending on that
arrest has to be made. While sometimes it becomes difficult even for
the courts to decide whether there was a cruelty or not, it is difficult to
imagine , that how will the lower police officials make decisions on
such a complex issue.
But once the police thinks there was some sort of cruelty, arrest is
made, from where harassment of the husband and the relatives begins.
On one hand, section 498-A works as a shield for woman suffering from
cruelty in their matrimonial home but now on the other hand, it has
also emerged as a weapon in the hands of unscrupulous wives to file
false cases and exploit their husbands and relatives. In many cases the
brutality was such that the husbands were forced to commit suicide
from the fear of arrest and public shame.
Misuse of this section begins when money and vengeance comes into
picture. There is growing tendency to come out with inflated and
exaggerated allegations roping in each and every relation of the
husband and 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. All this has become possible due to the
very nature of this section, that is, cognizable, non-bailable and non-
compoundable
Being a cognizable offence, the police registers a case since it is
required by law, but then instead of investigating they go on to arrest
people because of the money to be made in bribes from both sides in a
498A case.
Then since the offence is non-bailable, bail is at the discretion of the
magistrate, all sorts of games are played to have families locked up
while negotiations are done to settle the case. This may happen in
cases where the magistrates are allegedly corrupt or, the public
prosecutor and the cops are in cahoots.
After it, the non-compoundable nature does rest of the work. Though
498A is non compoundable, the courts are allowing the withdrawal of
the case when the parties agree to reconcile or settle case. In real
terms, if you pay up, the case goes away, if you don’t you’ll get stuck
with a criminal case that will go on for years.
Thus, though government and judiciary have given several guidelines
and directions to prevent misuse of Section 498-A, no true change can
be brought until certain amendments are done in the said provision and
all laws are followed in their true sense.
The biggest change which can be brought here is making this section
compoundable, so that the disputes can be solved through conciliation
and mediation. Talking about the section being Cognizable, the police
authorities should be given strict directions to make arrest only after
going through the Section 41(1)(a)(ii) of Cr.PC as the punishment in this
section is below 7 years. The judiciary should also be not so strict in
granting bail as after all it’s a matrimonial dispute which is actually a
civil matter, though it’s dealt with provisions of IPC.
Thus if all the above recommendations are duly followed, then the
misuse of this section will reduce to a great extent and no major
amendments would be required, therefore giving a win-win situation
without reducing the effectiveness of this sacred and important
provision.