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DR. RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY

PROJECT TOPIC

Section 304-B and section 498-A

SUBJECT

Indian Penal Code- II

SUBMITTED TO

Dr. Vipul Vinod

PROJECT SUBMITTED WITH ROLL NO., SEMESTER AND SECTION

Abhishek kumar

180101006

Fifth semester

Section A
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ACKNOWLEDGEMENT

I want to express my gratitude to Dr. Vipul Vinod sir who gave me this very good opportunity
to research on , which helped me in studying various provisions of criminal law and its important
amendments. Secondly, I would like to thank RMLNLU’s Library, that provided me assistance
through various online resources to accomplish this project.
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TABLE OF CONTENTS

 LIST OF ABBREVIATIONS...........................................................................................04
 ABSTRACT......................................................................................................................06
 SYNOPSIS........................................................................................................................07
 HISTORY OF DOWRY SYSTEM IN INDIA.................................................................12
 SECTION 304B. DOWRY DEATH.................................................................................13
 UNDERSTANDING S.498(A) IPC, 1860.......................................................................16
 CONCEPT OF CRUELTY...............................................................................................18
 MISUSE OF S. 498(A) IPC, 1860....................................................................................20
 A VIEWPOINT FROM JUDICIARY...............................................................................23
 SOLUTIONS RECOMMENDED BY 243rd LAW COMMISSION REPORT................24
 BASIC FLAWS AND AMBIGUITIES IN THE LAW...................................................25
 SUGGESTIONS AND CONCLUSION...........................................................................27
 BIBLIOGRAPHY..............................................................................................................29
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LIST OF ABBREVIATIONS

& And
¶ Paragraph
§ Section

AIR All India Reporter

All Allahabad
Anr. Another
AP Andhra Pradesh
APLJ Andhra Pradesh Law Journal
Art. Article
Ass. Assam
Bom Bombay

Cal Calcutta
CCR Current Criminal Report
Cr. Criminal
Cr LJ Criminal Law Journal
Cri Criminal
Del Delhi
DLT Delhi Law Times
DMC Divorce and Matrimonial Cases
DP Act The Dowry Prohibition Act, 1961

Guj. Gujarat
GLH Gujarat Law Herald

GLR Gujarat Law Reporter

HP Himachal Pradesh
ILR Indian Law Reports
J.T Judgment Today
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Kar Karnataka
Ker Kerala
Ltd. Limited
L.W.(Cr.) Law Weekly (Criminal)
Mad Madras
MP Madhya Pradesh
NTN Native Title News
Ors. Others
P. Private
Pat Patna
Punj&Har Punjab and Haryana
Raj Rajasthan
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reporter
STA State Transport Authority
Supl. Supplementary
UOI Union of India
v. Versus
Vol. Volume
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ABSTRACT

Hindu marriage can be defined as a religious sacrament in which a man and woman are bound in
a spiritual purposes of dharma, procreation and sexual pleasure. An important custom involved
among the marriages is dowry. Any property or valuable security given or agreed to be given
either directly or indirectly by one party to the marriage to the other party to the marriage by the
parents of either party to the marriage or by any other person, at or before any time after the
marriage is dowry. The present paper discusses about death because of dowry and the supreme
court cases related to dowry death.

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 Paper shall deal with a proper
explanation to section 498(A) of the Indian Penal Code, 1860. It shall start with the concept of
cruelty, both theoretically and about judicial opinions. The paper shall also focus on the misuse
of the section 498(A) of the Indian Penal Code, 1860 involving various case laws and statistics.
It shall also present a probable solution to the existing solution.

Key Words: The Hindu Marriage, Sacrament, , Kanyadan, Stridhana and Dowry, Dowry Death
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SYNOPSIS

Introduction

Dowry is derived from the ancient Hindu custom of "Kanyadan", where the father presents his
daughter jewellery and clothes at the time of her marriage, and "varadakshina", where the father
of the bride presents the groom cash or kind. Both of these were done voluntarily and out of
affection and love. These days, these customs have rendered coercive and brutally dangerous.
What was originally intended to be a taken dakshina for the bridegroom has now gone out of
proportion and has assumed the nomenclature 'dowry the practice of dowry has existed in
different forms since the beginning of time.1

In Muslim law, a mahr or consideration was paid to the bride. Stridhana was property and gifts
given to a bride by her parents at the time of marriage. Under all religions and situations, it was
meant to provide a good and stable life to the woman or the newlywed couple as they began their
life together. With time, it turned into a weapon of the greedy and leads to the present practice of
dowry, wherein a bride or her family must pay consideration to the groom or his family for
marrying her. The lack of acceptable amount of dowry or goods can lead to the marriage being
broken off or worse, after marriage torment and abuse to the bride and her family. When the
dowry amount is not considered sufficient or is not forthcoming, the bride is often harassed,
abused and made miserable. This abuse can escalate to the point where the well being and at
times, even the life of the bride threatened.

Dowry dispute is used as a garb to undermine the value of the woman herself, of taunting her for
the sake of troubling her and showing her inferior place. Rulers in ancient times made this
system rampant. Dowry was seen as a status symbol and a prestige issue in those times. The
trend continues even today. On 24th April, 1959 the dowry Prohibition Bill, 1959 was introduced
in the Lok Sabha. After some discussion, the Bill was referred to a Joint Committee of both the
Houses of Parliament. The Dowry Prohibition Bill was finally passed in the Joint Sittings of both

1
ArchitBhardawajanTaranDeepArora,“DowryProhibitionAct1961”http://www.saveindianfamily.org/images/stories/I
IMB_law_project.pdf ( september1,2017)
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the Houses of Parliament and it became an Act - The Dowry Prohibition Act, 1961 and it
received the assent of the President on 20th May 1961.2

In ancient India, women occupied a very important position, In fact, a superior position, to men.
"Sakthi" a feminine term means "power" and "strength". All male power comes from the
feminine. Literary evidence suggests that kings and towns were destroyed because the rulers
troubled a single woman.3

In Vedic times women and men were equal in many aspects. Women participated in the public
sacrifices alongside men. One script mentions a female rishi Visvara. Some Vedic hymns, are
attributed to women such as Apala, the daughter of Atri, Ghosa, the daughter of Kaksivant or
Indrani, the wife of Indra. Hindu religion has been occasionally criticized as encouraging
inequality between men and women, towards the detriment of Hindu women. This presumption
is inaccurate.4 Hindu women enjoyed rights of property from the Vedic Age, took a share in
social and religious rites, and were sometimes distinguished by their learning. There was no
seclusion of women in India in ancient times.

Women were made eligible for admission to what was known as the Bhikshuni-Sangha, the
Order of Nuns, which opened to them avenues of culture and social service and ample
opportunities for public life.5

Women must be honoured and adorned by their father, brothers, husbands, and brother-in-law
who desire great good fortune. Where women, verily are honoured, there the gods rejoice; where,
however, they are not honoured, there all sacred rites prove fruitless. Where the female relations
live in grief, that family soon perishes completely; where, however, they do not suffer from any
grievance that family always prospers.

The status of women in any civilization shows the stage of evolution at which, the civilization
has arrived. The term 'status' includes not only personal and proprietary rights but also duties,

2
Ibid
3
Shashank Manish, 498A: A CRITICAL LEGAL ANALYSIS, http://www.legalserviceindia.com/article/l79-498-
(A)-A-Critical-Analysis.html (April 30, 2016)
4
Ibid
5
Ibid
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liabilities and disabilities. In the case of a Indian woman, it means her personal rights,
proprietary rights, her duties, liabilities and disabilities vis-a-vis the society and her family
members.

With regard to the status of women in Indian society at large, no nation has held their women in
higher esteem than the Hindus. Perhaps, no other literature has presented a more admirable type
of woman character than Sita, Maitriya, Gargi. The Indian civilization has produced great
women ranging from Braham vadinis (lady Rishl) to states woman, from ideal wife to warrior
queen.6 It dates back to thousands of years. Hindu mythology witnesses that the status of Hindu
woman during the vedic period was honourable & respectable.

However, Medieval India‟s glorious past is dampened by its maltreatment towards women. In
the modern times of equal rights, the archaic practices of dowry and subordination of women
continue to be glorified. With the object to combat the menace of dowry and cruelty towards
women, section 498A was inserted within the scheme of the IPC.

While introducing s.498A, no matter how good the intention of the legislature may have been,
today it has been reduced to a medium of harassment and frivolous applications to some extent.7

Aim

To find out the basic provision of Dowry Death Section “304 B” of the IPC and cruelty against
women section “498-A” of the IPC.

6
Ibid
7
Karan Godara, Misuse of section 498A IPC-Judicial trend, 4(9) IJR (September, 2015), p. 213.
 P a g e | 10

Objective

 To study the provisions and judgments of the supreme court on Dowry Death.
 To get a brief overview of the section 498(A) of the Indian Penal Code, 1860.
 To critically analyze the concept of „Cruelty‟ under section 498(A) of Indian Penal
Code, 1860.

Scope and Limitation

The Scope of this project limited to the provisions of S.304-B and S.498-A of IPC and Supreme
Court cases on Dowry Death Section “304 B” of the IPC and cruelty against women section
“498A” of the IPC.

Review of Literature

P S A Pillai, “CRIMINAL LAW”, 12th ed. 2014, LexisNexis,

P.S.A. Pillai's Criminal Law has deservedly been described as a classic text on the Indian Penal
Code, 1860, ever since the publication of its first edition in 1956. The current edition will be a
welcome entrant to the libraries of senior members of the profession, many of whom have relied,
at one time or another, on Pillai's Criminal Law, as a handy reference.

Ratanlal & Dhirajlal, „The Indian Penal Code, LexisNexis 33rd Edition 2012

The constitution of India bestows upon its citizens certain rights and freedoms which are
ascertained through a formal set or of rules and regulations that determines the conduct of all the
citizens of the land. This book is a popular and classic work. The work deals with the intricacies
of the Indian Penal Code in a straightforward and lucid style. The book covers many new
developing areas in this law which are of practical and academic importance. The author has
thoroughly revised this work. The book covers recent Supreme Court and High Court decisions
on issues arising out of modern day activities, which have thereby contributed to the
development of the law on the subject. The book gives a comprehensive and broad
understanding of the topic along with various landmark and recent judgments.
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K.D. Gaur, “TEXTBOOK ON INDIAN PENAL CODE”, 5th ed.2015, Universal Law
Publishing

The Indian Penal Code by Professor K.D. Gaur is a marvellous classic work in the fields of
criminal law of outstanding merit. The question of desirability of death sentence for a rapist has
been critically examined and evaluated in the Indian context. Capital punishment, methods of
executions, the movement towards worldwide abolition of death sentence, etc., that has finally
resulted in the abolition of capital punishment from the statue book of 120 countries has been
elaborately discussed.

Research Questions

1. What are the provisions of Dowry Death” 304 B” in the Indian Penal Code?

2. What is „Cruelty‟ under section 498(A) of Indian Penal Code, 1860?

3. What are basic flaws and ambiguities in the law?

Research Methodology

The research methodology used is purely doctrinal method. A number of books written by
several authors, articles, acts and internet sources are used to conduct the research since the topic
demands an in depth study of the concept of Dowry Death and cruelty against women. Tools
taken in the project preparation have been secondary. The only primary source which has been
referred is the bare Act.
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HISTORY OF DOWRY SYSTEM IN INDIA

The ancient marriage rites in the vedic period with kanyadan and it is laid down in dharmashastra
that the meritorious act of kanyadan is not complete till the bridegroom was given a dakshina. So
when a bride is given over to bridegroom he has to be given something in cash or other kinds,
which constitute varadakshina. Thus Kanyadan became connected with varadakshina i.e. the
gifts or cash in kind by the guardian or parents of the bride to the bridegroom. The varadakshina
was offered out of love and did not represent any kind of consideration for the marriage.8 It was a
voluntary practice without any coercive overtones. It all started with a British rule which
prohibited the women from owning any property at all. And the moment, the wealth of wife
owned by his husband was created, the traditional dowry system got converted into a menace
creating an institution of greed that oppressed, victimized and suppressed woman. Male child
became an additional source of income, and female child became a financial burden on the
family. It has taken deep roots not only in the marriage ceremony but also post-marital
relationship. The social reformers of the nineteenth and early twentieth century‟s have striven
hard for the abolition of various social evils including the evil of dowry system .The immorality
of dowry system was assuming huge proportions and the minds of right thinking person‟s both
inside and outside the State Legislatures and the Parliament were shattered. 9The matter was
raised in the Parliament in very first session of the Lok Sabha and many proposals for restraining
dowry were placed in the Parliament in the form of Private Members Bills. the then Minister of
Law gave an assurance to the House during the course of discussions on a non-official Bill in the
Lok Sabha in 1953, that a bill on the subject would be prepared in consultation with the State
Governments. In pursuance of the assurance, a Bill was subsequently submitted for consideration
of the Cabinet. The Cabinet then decided that the proposal might be held in abeyance till the
enactment of the Hindu Succession Act. As the problem continued to increase the issue was
against and again agitated in the Parliament as well as in State Legislatures.

8
Vivek Sharma, “Dowry System amongst Hindu and Muslim In India”, https://www.quora.com/How-did-the-
dowry-system-start-in-India (September 1 , 2017)
9
Ibid
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SECTION 304B. DOWRY DEATH

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage and it is shown that soon before
her death she was subjected to cruelty or harassment by her husband or any relative of her
husband for, or in connection with, any demand for dowry, such death shall be called” dowry
death”, and such husband or relative shall be deemed to have caused her death.

To invoke Section 304B of the Indian Penal Code the following ingredients are essential10:

1. The death of a woman should be caused by burns or bodily injury or otherwise than
under normal circumstances.

2. Such a death should have occurred within seven years of her marriage.

3. She must have been subjected to cruelty or harassment by her husband or any relative
of her husband.

4. Such cruelty or harassment should be for or in connection with the demand of dowry.

5. Such cruelty or harassment is shown to have been meted out to the woman soon before
her death.

One of the important ingredients to attract the provision of dowry death is that the death of the
bride must relate to the cruelty or harassment on account of demand for dowry. It is true that
Section 304-B does not define cruelty. However, under explanation of Section 113-B of the
Evidence Act, by which presumption of dowry can be drawn, it has been provided that „cruelty‟
shall have the same meaning as in section 498-A of the Indian Penal Code. As per requirement of
clause (b) appended to section 498-A I.P.C. there should be a nexus between harassment and any
unlawful demand for dowry.

10
Keshab Chandra Pande v State (1995) Cr Lj 174 (ori); Pawan Kumar v State of Haryana (1998) 3 SCC 309;Kans
Raj v State of Punjab AIR 2004 SC 1993; Satvir Singh v State of Punjab Air 2001SC 2828; State of Andhra
Pradesh V Raj Gopal Asawa AIR 2004 SC 1993; Baljeet Singh v State of Haryana AIR 2004 SC 1714;Arun Garg
v State of Punjab $ Anor (2004) 8 SCC 251; Kamlesh panjiyar v State of Bihar (2005) 2 SCC 388, AIR 2005 SC
785; Kishan Singh v State of Punjab (2007) 14 SCC 204, AIR 2008 SC 233; Tarsem Singh v State of Punjab (2008)
16 SCC 155,AIR 2009 SC 1454; Rajesh Bhatnagar v State of Uttarakhand (2012) 5 SCALE 311, 2012 Cri LJ 3442
 P a g e | 14

If these conditions are fulfilled then a presumption acts under the Indian Evidence Act and the
burden of proof shifts on the accused to prove that he is innocent. The section states:

113B. Presumption as to dowry death

When the question is whether a person has committed the dowry death of a women and it is
shown that soon before her death such woman had 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 death.

In the case of State of Punjab v. Iqbal Singh 11, the Supreme Court clarified the position as to why
the necessity to introduce Section 113-B in the Indian Evidence Act was felt –

The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must
be remembered that since crimes are generally committed in privacy of residential houses and in
secrecy, independent and direct evidence is not easy to get. That is why the legislature has by
introducing Section 113-B in the Evidence Act tried to strengthen the prosecution hands by
permitting a presumption to be raised if certain foundation facts are established and the
unfortunate event has taken place within seven years of marriage. This period of seven years is
considered to be the turbulent one after which the legislature assumes that the couple would have
settled down in life. When the question at issue is whether a person is guilty of dowry death of a
woman and the evidence discloses that immediately before her death she was subjected by such
person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section
113-B, Evidence Act provides that the court shall presume that such person had caused the
dowry death.

A conjoint reading of Section 113-B of the Act and 304-B I.P.C. shows that there must be
material to show that soon before her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within
the purview of the „death occurring otherwise than in normal circumstances‟. „Soon before‟ is a
relative term and it would depend upon circumstances of each case and no straitjacket formula
can be laid down as to what would constitute a period soon before the occurrence. There must be

11
AIR 1991 SC 1532
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existence of a proximate and live link between the effect of cruelty based on dowry demand and
the concerned death.

In Nunna Venkateshwar v. State of Andhra pradesh12 the deceased had consumed pesticides and
died an unnatural death after five years of marriage. There was evidence that she was tortured
continuously and was harassed to sell the five acres of land gifted to her by her father at the time
of marriage and to give the sale proceeds to her husband .Unable to bear the harassment, she
committed suicide. Though there was ample evidence that the demands for dowry were made,
the High Court of Andhra Pradesh observed that the prosecution has to prove that there was a
prior agreement by the parents of the girl to the husband or the in- laws to pay a valuable security
, money, etc. Unless the existence of the prior agreement between the parties was proved, the
court held that the accused would not be liable to be punished for an offence under s 304B, IPC.
The high court held that since the demands made by the accused were not demands which were
agreed to be paid by the father of the deceased at the time of marriage, they would not amount to
demands of dowry. So it convicted the the accused only under s 498A and 306, IPC, and not
under s 340 B.The high court, it seems, was influenced by the words „agreed to be given‟ in the
definition of dowry in the Dowry Prohibition Act 1961.

However, the above-mentioned judgement of the Andhra Pradesh may not be good law in view
of the judgement of the Supreme Court in State of Himachal pradesh v. nikku ram.13The Supreme
Court interestingly starred off the judgment with the words „Dowry, dowry and dowry‟. It went
on to explain why it has mentioned the words „Dowry, dowry and dowry‟. It went on to explain
why it has mentioned the word „dowry‟ thrice. This is because demand for dowry is made on
three occasions (i) before marriage; (ii) at the time of marriage; (iii) after the marriage. Greed
being limitless, the demands become insatiable in many cases, followed by torture of the girl
leading to either suicide in some cases or murder in some. The Supreme has explained in this
case that though the definition of dowry is stated as property or valuable security given or agreed
to be given ...demand made after marriage could also be part of the consideration because an
implied agreement has to be read to give property or valuable securities, even if asked after the
marriage as a part of consideration for the marriage.In Appa saheb & Anr. V. state of

12
(1996) Cr LJ 108 (AP)
13
(1995) Cr LJ 1144(SC)
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maharashtra,14 the apex court ruled that a demand for money on account of some financial
stringency or for meeting some urgent domestic expenses or for purchasing manure cannot be
termed as a demand for dowry. The court set aside conviction of the appellant under s 304
B.However , in Bachni devi & Anr. V. State of Haryana,15 the supreme court clarified that
Appasaheb dictum cannot be termed as demand for dowry and stressed that dictum should be
understood in its factual setting .It ruled that a demand for property or valuable security
constitutes „demand for dowry‟ if it has direct or indirect nexus with marriage. The cause or
reason for such demand is immaterial.

UNDERSTANDING SECTION 498(A), INDIAN PENAL CODE, 1860

Section 498A was introduced in the year 1983 to protect married women from being subjected to
cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been
prescribed. The expression „cruelty‟ has been defined in wide terms so as to include inflicting
physical or mental harm to the body or health of the woman and indulging in acts of harassment
with a view to coerce her or her relations to meet any unlawful demand for any property or
valuable security. Harassment for dowry falls within the sweep of latter limb of the section.
Creating a situation driving the woman to commit suicide is also one of the ingredients of
„cruelty‟. The offence under section498A is cognizable, non-compoundable and non-bailable.
The section is extracted below16:

498A. 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 punishable 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-

14
(2007) 9 SCC 721, AIR 2007 SC 763
15
AIR 2011 SC 1098, (2011) 4 SCC 427
16
Section 498(A), Indian Penal Code, 1860
 P a g e | 17

(a) any willful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health (whether mental
or physical) of woman; or

(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 of the provision are as follows:

a. The woman must be married.

b. She must be subject to cruelty or harassment; and
c. Such cruelty or harassment must have been shown either by husband of the woman or by
the relative of her husband.

Section 498A is a cognizable, non-bailable and non-compoundable criminal offence. A close

analysis of the section makes it clear that the entire section is founded upon four basic question
of law they are as follows:-

i. Any action, gesture or conduct that is likely to drive a woman to commit suicide.
ii. Any action, gesture or conduct that is likely to cause grave injury to the life, limb or
health of a woman
iii. Harassment caused to the woman and her family with the intention of extracting some
property
iv. Harassment caused to the woman and her family in the event of not being able to or
not in agreement to yield to the demand of money or of any property.

S.498A and other legislations like Protection of Women from Domestic Violence Act have been
specifically enacted to protect a vulnerable section of the society who have been the victims of
cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is
diluted.

Several enactments and provisions have been brought on the statute book during the last two or
three decades to address the concerns of liberty, dignity and equal respect for women founded on
 P a g e | 18

the community perception that women suffer violence or deprived of their constitutional rights
owing to several social and cultural factors. Meaningful debates and persuasions have led to
these enactments. The insertion of Section 498A IPC is one such move and it penalizes offensive
conduct of the husband and his relatives towards the married woman. The provision together
with allied provisions in Cr. P.C. are so designed as to impart an element of deterrence. In course
of time, a spate of 3 reports of misuse of the section by means of false / exaggerated allegations
and implication of several relatives of the husband have been pouring in. Though there are
widespread complaints and even the judiciary has taken cognizance of large scale misuse, there
is no reliable data based on empirical study as regards the extent of the alleged misuse. There are
different versions about it and the percentage of misuse given by them is based on their
experience or ipse dixit, rather than ground level study.

CONCEPT OF CRUELTY

Cruelty is an abstract concept, there is no specific definition or explanation given by any jurist.
Cruelty can be of different forms such as mental, physical, direct or indirect, intended or
unintended. It also depends upon different factors and circumstances such as social-cultural
background of the woman, mental and physical conditions, etc.

The Supreme Court of India through various decisions has explained the concept of cruelty such
as:

1. In N.G. Dastane v. S. Dastane, the Supreme Court has observed that conduct charged as
cruelty should be of such a character as to cause in the mind of the Petitioner, a
reasonable apprehension that it is harmful or injurious to live with the respondent.17
2. In V. Bhagat v. D. Bhagat, the Supreme Court held that the mental cruelty must be of
such a nature that the parties cannot be reasonable be expected to live together. While
arriving at such conclusion regard must be had to the social status, educational level of
the parties, the society they move in and all other relevant facts and circumstances.18
3. In NeeluKohli v. Naveen Kohli, it was held by the apex court that in order to constitute
cruelty the acts complained of as causing cruelty must be more serious than ordinary

17
Kusum, Family Law Lectures, 59 (Lexis Nexis Butterworths Wadhwa 2nd ed. 2008)
18
(1755)2 Lee; 161 ER 283
 P a g e | 19

wear and tear of marriage. Not any and every abnormal act of the other party can be
viewed as mental cruelty.19
4. In A. Jayachandra v. Aneel Kaur, the apex court held that for physical cruelty there can
be tangible and direct evidence but in mental cruelty there may not be direct evidence.
When there is no direct evidence, courts are required to probe into the mental process and
mental effect of incidence that are brought out in evidence.20
5. In Vinita Saxena v.Pankaj Pandit, the Supreme Court held that 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.21

Few instances of cruelty as a social evil in modern era.

i. Slow starvation - is cruelty: The wife was compelled to do all the domestic works
single handed. She was ill-treated and subjected to physical assault when she
protested. She was not getting sufficient food and it resulted in slow starvation,
thereby giving an emaciated look, to meet an unlawful demand of money. When she
committed suicide cruelty stood proved in a court of law.22
ii. Repeated demands of dowry amounts to cruelty: If repeated demands of dowry are
made and harassment is meted out to a woman, who may be physical or mental, it is
an act of cruelty.23
iii. False allegations in litigation amounts to cruelty: The wife was subjected to a series
of malicious and vexatious litigations in which extremely hurtful and offensive
accusations were leveled against the wife of a sense of vindictiveness and wherein
she was humiliated and tortured through the execution of search warrants and seizure

19
AIR 2006 SC 1675
20
(2005)2 SCC 22
21
(2006)3 SCC 778
22
Hira Choudhary v. State of West Bengal, 1997 (1) WLC 543
23
Jagdish v. State of Rajasthan, 1998 RCR (Cr) 9
 P a g e | 20

of her personal property. These very acts when repeated and carried on constitute
cruelty of an intense degree.24
iv. Repeated taunts calling her ugly and mal treatment is cruelty: The wife was ill-treated
from the next day of marriage and she was repeatedly taunted and mal-treated and
mentally tortured by calling her ugly etc. This amounts to cruelty, mental torture for
any bride.25
v. Neglect by husband also amounts to cruelty: the act of the husband was only that of
disregarding his duty to provide the wife and the child elementary means of
sustenance while he himself was squandering his earnings on gambling and other
vices and was starving his wife and infant child to death.26
vi. Non-return of stridhan amounts to cruelty: non-return of stridhan by the husband and
hi relatives amounts to cruelty.27
vii. Cruelty by non-acceptance of baby girl: The conduct of the accused husband and his
father is not accepting the birth of the baby girl was held as amounting to cruelty.28

THE MISUSE OF SECTION 498(A), INDIAN PENAL CODE, 1860

As has been held in Sushil Kumar Sharma vs. UOI,29 and many others, in case of misuse, the
„action‟ and not the „section‟ must be struck down. The courts, using inherent powers u/s 482
Crpc have time and again quashed frivolous complaints filed u/s 498A IPC. In the case of Preeti
Gupta vs. State of Jharkhand30 decided in 2010, the Supreme Court observed that a serious
relook of the provision is warranted by the Legislature. The Court said: “It is a matter of
common knowledge that exaggerated versions of the incidents are reflected in a large number of
complaints”. The Court took note of the common tendency to implicate husband and all his
immediate relations. The Supreme Court directed the Registry to send a copy of judgment to the
Law Commission and Union Law Secretary so that appropriate steps may be taken in the larger

24
Smt. M.M.Chitnis v. Mr. M.M. Chitnis, 1991 (2) Maharastra L.R. 753
25
Pawan Kumar v. State of Haryana J.T. 1998 (1) SC- 565
26
State of Karnataka v. Moorthy 2002 Cr. L.J. 1683
27
Surender Yadav v. State of Delhi (DB) All C.L.R 2000(2) 160
28
State of Karnataka v. Balappa, 1999 Cr. LJ 3064 (Kant)
29
2005 6 SCC 281
30
AIR 2010 SC 3363
 P a g e | 21

interests of society. In an earlier case also - Sushil Kumar Sharma vs. UOI, the Supreme Court
lamented that in many instances, complaints under s.498A were being filed with an oblique
motive to wreck personal vendetta and observed. “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”. It was also observed that “by misuse of the provision, a new legal
terrorism can be unleashed”.31

Observations in the Justice Malimath Committee report 200332

The Justice Malimath committee was constituted by the home ministry in the year 2000 to
consider measures for revamping the criminal justice system. After careful perusal of section

498A, it came to the conclusion that the section suffered from certain shortcomings and
accordingly suggested changes. The committee noted that s.498A, being non-bailable and non-
compoundable operates against the interest of both, the husband and wife because-

1. It poses a serious challenge towards resumption of matrimonial relations between the

estranged couple as such complaints embitter relationships for life.
2. Being non-compoundable, the case against the husband/ relatives continues in spite of
there being reconciliation between parties.
3. Being non-bailable it causes grave harassment to husband/relatives in case of frivolous
complaints.

Perturbed by the flagrant misuse of this ameliorative provision “The offence being non-bailable
and non-compoundable makes an innocent person undergo stigmatization and hardship”, the
committee recommended making 498A a bailable and compoundable offence.

31
Section 498A Report No. 243, Law Commission of India, August, 2012
32
Karan Godara, Misuse of section 498A IPC-Judicial trend, 4(9) IJR (September, 2015), p. 213.
 P a g e | 22

Arnesh Kumar v. State of Bihar33

To curb the arbitrary use of power of arrest u/s 498A IPC, the Supreme Court in Arnesh Kumar
v. State of Bihar, tendered some much needed guidance in relation to „when police may arrest
without warrant‟ and matters incidental thereto. In this case, the petitioner who was
apprehending arrest in a case registered u/s 498A preferred a SLP before the hon‟ble Supreme
Court as his attempt to secure such relief had been turned down by the high court. The
allegations against the appellant-husband were that he approved of her in-laws demand for Rs.8
lakhs, a maruti car, an air-conditioner, amongst other items and threatened to remarry if such
demands were not met.

Justice Chandramauli Kr. Prasad, delivering the judgment on behalf of the hon‟ble Supreme
Court took note of the gross misuse of s.498A observing “The fact that s.498-A is a cognizable
& non-bailable offence has lent it a dubious place of pride amongst the provisions that are used
as weapons rather than shields by disgruntled wives. The simplest way to harass is to get the
husband & his relatives arrested under this provision. In a quite number of cases, bed-ridden
grand-fathers & grand-mothers of husbands, their sisters living abroad for decades are arrested”.
Stating the substance of s.41 and 41A Crpc, the Supreme Court observed that just because an
offence is cognizable and non-bailable does not give the police the right to arrest, it must also
satisfy itself that the arrest is justified, that the conditions precedent stated u/s 41 Crpc are met.
“The police officer must put a question to himself, why arrest?”34

The court directed the police not to make automatic arrests u/s 498A but to arrest only upon
satisfaction of conditions laid u/s 41 Crpc. The court also reiterated the solemn nature of the
magistrate‟s duty to satisfy himself that conditions u/s 41crpc are met when police presents
accused before magistrate for seeking further detention. 35 The court concluded by forewarning
the police officers and magistrates that failure to comply with the stated directions would attract
departmental action.

33
(2014) 8 SCC 273
34
Karan Godara, Misuse of section 498A IPC-Judicial trend, 4(9) IJR (September, 2015), p. 213.
35
Ibid
 P a g e | 23

A VIEWPOINT FROM JUDICIARY

The directives given by the Madras High Court in the case of Tr. Ramiah are as follows36:

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.”

36
Section 498A Report No. 243, Law Commission of India, August, 2012
 P a g e | 24

Interestingly in the case of Inder Raj Malik v. Sunita Malik, the Court held that Sec 498A is
violative of Article 14 and 20(2) of the Constitution since it gives arbitrary powers in the hands
of the Court and it also criticized that the distinction drawn between „cruelty‟ and „harassment‟
is ambiguous and vague. Moreover 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
inadvertently creates a situation of double jeopardy. However Delhi High Court negating such
contention held that Sec 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.

Retrospective effect of section 498A Indian penal code 1860:

Section 498A IPC, 1860 is not retrospective in nature and no such cognizance can be taken under
this section in case the offence was committed before the enforcement of the section.

Co-relation between section 302 and 498A Indian penal code 1860:

In ThatiKonda v. State of A.P. there was a quarrel between the wife and the husband and the
husband wanted to perform second marriage. It was a strong circumstance for the wife to commit
suicide and for the husband to do away with his wife. As favourable view to the accused is to be
taken and it is clear that the husband wanted to marry 2nd time, it amounts to cruelty.

SOLUTION RECOMMENDED BY 243rd LAW COMMISSION REPORT

That Section 498A has been misused in many instances admits of no doubt. This has been taken
judicial notice of in several cases. The Parliamentary Committee has also adverted to this aspect.
The inputs received by the Law Commission and the representations made to the Home Ministry.
also confirm this fact. However, there is no reliable data to reveal the extent of abuse or misuse.
The data/information reveals that urban and educated women are mostly coming forward to file
the complaints under this section.37 The data also reveals that in most of the cases, apart from the
husband, two of his relations (especially in-laws) are being prosecuted. At the same time, the
Commission feels that misuse arising from exaggerated versions and over implication should not

37
Section 498A Report No. 243, Law Commission of India, August, 2012
 P a g e | 25

by itself be a ground to dilute the provision by making it bailable. Depriving the police of the
power to arrest without warrant in order to have proper investigation would defeat the objective
of the provision and may be counter-productive.38 The element of deterrence will be irretrievably
lost, once it is made bailable. It is to be noted that the misuse did not flow from the section itself
but the roots of misuse were grounded on the insensitive police responses and irresponsible legal
advice. The victim/complainant deprived of her cool and objective thinking, quite often,
unwittingly signs a complaint containing such exaggerated or partially false allegations. By the
time she realizes the implications thereof, it would be too late.

The misuse could be minimized by taking such measures as would ensure the strict observance
of the law governing arrest as evolved in D.K. Basu‟s case and incorporated in the statute i.e., in
Chapter-V of Cr. P.C.39 The police at present either overact or adopt indifferent attitude in many
a case. They are expected to act with due sensitivity and with the realization that they are dealing
with an alleged offence arising out of strained matrimonial relations and that nothing should be
done to disrupt the chances of reconciliation, or to cause trauma to the children. While launching
of investigation – preliminary or otherwise, without delay is desirable, the arrest and such other
drastic measures should not close the doors for reconciliation and amicable settlement. The Law
Commission has already recommended that the offence under Section 498-A should be made
compoundable.40 This is the minimum that could be done to promote the restorative, not merely
penal goal of the law. It may be noted that even under the Prevention of Domestic Violence Act,
a specific provision is enacted providing for conciliation at the earliest on the intervention of
Magistrate.

BASIC FLAWS AND AMBIGUITIES IN THE LAW

On perusing the Act document, one can raise a variety of questions against the intention of the
design of the Act. Firstly, as per this definition of dowry, gifts of jewelry, clothes and cash
traditionally given by the groom's family would also be considered by the anti-dowry law and
hence declared illegal.

38
Ibid
39
Ibid
40
Ibid
 P a g e | 26

Secondly here question arises what is a 'voluntary gift' and what is given under pressure of a
demand. The very same family that often declares, at the time of marriage, that they only gave
'voluntary gifts' to the groom's family, does not hesitate to attribute all their 'gift-giving' to
extortionist demands, once the marriage turns sour and is headed for a breakdown. Thus, even
when marital troubles may not be connected to tussles over dowry, and the marital strain is due
to mutual incompatibility rather than the husband's violence or abuse, many women's families
tend to seek an advantage in registering cases using the draconian provisions of the anti-dowry
law when the marriage heads towards a breakdown.

Third what are the grounds that one can decide what is 'excessive' in relation to income by way
of gifts when in India no more than 2-3 percent people declare their incomes and those too are
grossly under reported. So what are the criteria to judge the paying status of a family if most of
their wealth is in 'black' money and property holdings held in bogus names to escape taxes? This
law especially draconian is that the burden of proof has been shifted onto the accused. The
bride's parents rarely want to declare the true value of gifts given because the big dowry givers
also put together their daughter's dowry from black money and, therefore, don't want it listed.
When dowry giving is a crime, why would a groom or bride's family put their signature on the
list of gifts being given? Though the Act treats the case of a bride and bridegroom in the same
intensity, the IPC 304B, 498A etc, specifically and exhaustively address the crimes with a
feminine bias. Hence, the law itself is incomplete in terms of treatment of cases where the
husband, might become the victim. As per the law, even dowry giving is an offence, but there is
hardly ever an instance of the bride's family being prosecuted for giving dowry. The assumption
is that only 'takers' are guilty while 'givers' are hapless creatures yielding to the greed and callous
demands of the groom's family. Also there is scope of misuse of this amendment and after the
amendment made in 1984 and 86, a phenomenal number of cases have been filed under Dowry
Prohibition Act but there are many problems in the manner these cases have been dealt by Police
and by Judiciary.41 Many of these cases have been prosecuted so badly in court that conviction
was hardly likely. It‟s not that this law has not been properly implemented by the Government,
Police and Judiciary. They are also not able to stop the misuse of this law. There are many
instances where this law has been misused by unscrupulous women to extort money and harass

41
Madhu Purnima Kishwar, Destined To Fail, http://indiatogether.org/manushi/issue148/dowry.htm (september 1,
2017)
 P a g e | 27

their husband‟s family. The statistics on suicides in India tell the tale of harsh ground realities
faced by men in Indian society. On July 21, 2005, while hearing the PIL filed by Sushil Kumar
Sharma, The Supreme Court has asked the legislature to find ways for plugging the loopholes in
the law against “false” dowry complaints against the in-laws and husband by a woman in view of
the increasing number of such cases coming to courts.42 Describing such misuse of law as “legal
terrorism”, the court said no one could be allowed to unleash frivolous proceedings on this count
as the provisions of Section 498A “is intended to be used as shield not as an assassin‟s weapon.

SUGGESTIONS AND CONCLUSION

Many social activist, NGOs and in many cases Court‟s judgments have highlighted that the
Dowry Prohibition Act, in its current form is not very effective. Instead of providing security to
lower and middle class women, who are mainly the victims of dowry, this law has been misused
by rich unscrupulous women to harass their husbands. Many feminist organizations are
requesting Government to make these laws stricter, but instead of making these laws stricter,
Government should come up with an effective implementation plan, in which, it should try to
diagnose the roots of the problem, how this evil is spreading to different sections of population
and what can be done to eradicate this issue. The Government should also make amendments in
the law, which will stop woman from misusing this law against Husband and his family.

The word „marriage‟ means i.e. „Marriage is the voluntary union for life of one man and one
woman to the exclusion of all others.‟ It is considered to be a sacred commitment made by the
spouses towards each other. It is regarded to be the social alliance between two families. It is
essential that vows, promises, commitments that are exchanged by the spouses are revered with a
sincere heart because it is this institution which eulogizes the hallmark of love, bonding, union of
families and harmony. Endeavour should always be made to sustain the sanctity of such divine
institution since it is such an edifice which must be rebuilt every day. Here in this social
institution the husband has the responsibility to take care of and maintain his wife. He cannot
neglect his duties.43

42
Ibid
43
Joy Sarkar, A DOCTRINAL RESEARCH ON SECTION 498A IPC, 1860 - A CRITICAL ANALYSIS,
https://www.academia.edu/9531210/A_Doctrinal_Research_on_Section_498a_IPC_1860_-_A_critical_Analysis
(April 30, 2016)
 P a g e | 28

But like all good aspects bad aspects of a particular act too exists. The institution of marriage
suffers from a major social evil i.e. dowry (Money or property brought by a woman to her
husband at the time of marriage); and for the dowry husband exercises physical as well as mental
cruelty on wife. Women are ill-treated, harassed, killed, divorced for the simple reason that they
didn‟t brought dowry. For safeguarding the interest of woman against the cruelty they face
behind the four walls of their matrimonial home, the Indian Penal Code, 1860was amended in
1983 and inserted Section 498A which deals with matrimonial cruelty to a woman.

Having said that, now in 21st century the concept of cruelty which was earlier exercised by the
husbands on married women, nowadays took a new colour and situation is vice-versa. At the
time of introduction of the section it instilled some hope and optimism in the hearts of the
woman and her family as it was seen as an „armour‟ to combat against the brutality of the male
members of the society nevertheless with the passage of time it became transparent that the
provision of Section 498A IPC, 1860 left a host of loopholes which seemed to become a
powerful „weapon‟ if falls on evil hands.

From the judicial trend and observations of various commissions, it becomes clear that section
498A has become a necessary evil. It must continue to remain in our statute books for the much
needed protection of women but with a caveat, its misuse must be curbed.44

44
Karan Godara, Misuse of section 498A IPC-Judicial trend, 4(9) IJR (September, 2015), p. 213.
 P a g e | 29

BIBLIOGRAPHY

Books

1. P S A Pillai‟s , „Criminal Law‟, LexisNexis, 11th Edition 2011

2. Ratanlal & Dhirajlal, The Indian Penal Code, LexisNexis, 33rd Edition 2012
3. K.D Gaur, Criminal Law: Cases and Materials, Lexis Nexis; 7th edition, July 2013
4. indiankanoon.org – (CASES)

Articles

http://indiatogether.org/manushi/issue148/dowry.htm

https://www.wsws.org/en/articles/2001/07/ind-j04.html

https://www.telegraph.co.uk/news/worldnews/asia/india/10280802/Woman-killed-over-dowry-
every-hour-in-India.html

https://www.thenational.ae/world/dowries-and-death-continue-apace-in-india-1.81522

https://countercurrents.org/2016/07/dowry-deaths-indias-shame

http://lawcommissionofindia.nic.in/reports/report202.pdf
P a g e | 30