Legal Opinion

IN THE HON’BLE SUPREME COURT OF REPUBLIC

OF INDIANA

In the Matter of SPECIAL LEAVE

PETITION(1202 OF 2021)

In Re: Legal opinion on section 498A of the Indiana penal code,1860

Along with:

HUSBAND(PETITIONERS) … PETITIONER(s)

VS.
WIFE(RESPONDENTS).............................................................RESPONDENT(s)

PRELIMINARY REPORT BY THE AMICUS CURIAE

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Table of Contents
IN THE HON’BLE SUPREME COURT OF REPUBLIC OF INDIANA.............................1
● The legal opinion on Section 498A of the Indiana Penal Code, 1860 in Indiana on the
date of hearing before the Hon'ble Supreme Court of Indiana in the capacity of
amicuscuriae..........................................................................................................................4
I. INTRODUCTION.................................................................................................................4
 498A IPC Definition..............................................................................................................4
498A IPC Jurisdiction..................................................................................................................4
498A IPC Punishment..................................................................................................................5

498A IPC Bailable or Not........................................................................................................5

498A IPC Anticipatory Bail.....................................................................................................7

Cruelty...........................................................................................................................................7
Classification of offense................................................................................................................8
Who may file the complaint...............................................................................................8
Cognizance by court.....................................................................................................................9
Cruelty and harassment...............................................................................................................9

 Relative of husband.......................................................................................................9

 Past events of cruelty.....................................................................................................9

Section 498A and dowry demand................................................................................................9
Section 498A and protection of women from Domestic Violence Act,2005...........................10
498A IPC Divorce.......................................................................................................................11
498A IPC Misuse.........................................................................................................................11
IPC 498A Misuse Punishment...................................................................................................12
REFERED SOURCES

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● The legal opinion on Section 498A of the Indiana Penal Code, 1860 in Indiana on
the date of hearing before the Hon'ble Supreme Court of Indiana in the capacity
of amicus curiae

INTRODUCTION.

 498A IPC Definition

In the early 1980s, it was seen that women were suppressed, exploited and subjected to cruelty.
As there were no laws subjected to cruelty towards women, it gave wings to the society. Every
disease requires medication for recovery, and finally, the medication for cruelty towards the
recessive sex in the society was found as “ Feminist Movement”. It led to the enactment of the
Criminal Law (Second Amendment) Act, 1983 (46 of 1983) which amended:

 The Indiana Penal Code, 1860

 Code of Criminal Procedure, 1973

 The Indiana Evidence Act, 1872

 The Dowry Prohibition Act, 1961

These amendments were the pillars of safeguard for women by insertion of S.498A in 1983.

But it has been seen that this provision has been misused, in case of Sushil Kumar Sharma v.
Union of India and others[1] the constitutional validity of S. 498A was questioned. It was
subjected to harassment and mental trauma suffered by the husband and his relatives due to the
instances where the complaints are not bonafide and have been filed with an oblique motive.
But this provision is for people to get justice and it can’t be unconstitutional and at the same
time, it doesn’t provide a license to unscrupulous persons. So it’s the duty of the law-makers to
look into the matter so that the rights of both parties are protected and the culprit is being
punished.

498A IPC Jurisdiction

The Supreme Court on 9th April 2019 delivered the judgment that a woman can file a
case against her husband or in-laws subjected to dowry harassment under Section
498A of IPC at any place she is sheltered.

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But the trail is to be taken place under the jurisdiction of the court where the crime has
taken place.

498A IPC Punishment

shall be punished with imprisonment for a term which may extend to three years or

shall also be liable to fine.

Or the person can be convicted of both imprisonment as well as fine

498A IPC Bailable or Not

The offense under this Section of IPC is a cognizable and non-bailable offense.

 In the case of Arnesh Kumar v. State of Bihar and another, it was held by the Court
that arrest brings shame, diminishes freedom and leaves mental wounds forever. It
also stated that police had no furnished ideas its lesson which is implied and
personified in the Criminal Procedure Code [2] Taking it into sight,the Court, drew a
distinction between the power to arrest and justification for the exercise of it. Section
41 lays down the provision when police may arrest without warrant.
According to the latest amendment, the situations where police can arrest without a warrant are
as follows:

(1) There is no requirement of an order from a Magistrate and even without a warrant, any
police officer can arrest any person:

Any person who commits a cognizable offense, in the presence of a police officer

When a reasonable complaint had been raised against any person or the information
collected is sufficient, or suspicion of a cognizable offense performed has been raised
which is punishable with a term of imprisonment for less than seven years and it
might extend to seven years, with or without fine, if the conditions stated are
satisfied:

 If the facts of the complaint, information, or suspicion are sufficient for the police
officer to believe that the said offense has been committed by the person

When the police officer is satisfied on the ground that such arrest is necessary:

for prevention of such person from committing the offense any further

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the investigation of the offense to be proper and accurate

prohibition of the person from washing off the evidence of the offense or tampering
with evidence

 The person should be prohibited from making any incentive, threat or promise to any
person familiar with the facts of the case so as to prevent him from disclosing such
facts before the Court or to the police officer

The presence of the person who is not arrested till in the Court is required whenever
summoned and the date can not be ensured, and recording while making such arrest
shall be recorded by the police and the reasons for writing should be specified. In
case the arrest of the person is not required according to the provisions under this
following, then the reason should be specified, why the arrest was not done in the
form of writing.
A situation where a police officer has reasonable reason to believe on the basis of the
information that the offense committed is a cognizable offense in nature and punishment of it is
may extend more than seven years, with or without fine and even death sentence can be
pronounced and such person has committed the offense stated.

 Under this code or by the order given by the state government , any person who has
been ?

 If any person is found of having possession of anything, which is suspected to be stolen

property under reasonable ground and the person who is suspected of having
committed an offense with an association to such thing under reasonable
circumstances.

If any person causes hindrance in the way of a police officer while he is executing his
duty or any person who has fled or attempts to flee.

 When a person is reasonably suspected of being truant from any of the Armed Forces of
the Union, or

If the act is done at any place out of India but if committed in India, would have been
considered as an offense, when there has been a reasonable

A person who is a released prisoner and commits a breach of any rules made under sub-
section (5) of section 356

 A person for whose arrest any summons has been made it may be written or oral, has
been received from another police officer, provided that the summons specifies the
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arrest of a person and the offence or any other cause which would lead to the arrest to
be made and it permits to arrest the person lawfully without a warrant by the officer
who issued the summons.
(2) If any person who is not concerned in a non-cognizable offense or against whom a
complaint has been filed or strong information has been received or a reasonable suspicion
exists he has been concerned, shall be arrested exception provided i.e it may be under a warrant
or order of a Judicial Magistrate.

498A IPC Anticipatory Bail

The rising misuse of section 498A under 406, has caused alarm in the eyes of the Supreme
Court. The false accusation leads to prosecution against the family members and thus
hampering their reputation in society.

Thus anticipatory bail is provided under these circumstances:

1. All the ornaments of the complainant in possession of her husband such as gold or
silver ornaments should be returned back. And the accused has to deposit a sum of
money, in the name of the complainant.

2. The petitioner is bound to join the investigation, when called upon and should not
threaten the witnesses.

3. If the accused agrees to pay the maintenance amount to the complainant

4. If the affair filled is indistinct. The complaint given is false in nature and the
restrainment of things as dowry is vague

Cruelty

The term cruelty has not yet been defined in the statute, knowingly. It has been done to
give freedom to the judges to decide the case according to the situation and changing
social and moral values.

“Cruelty” can be both physical as well as mental cruelty.[7]

Factors that amount to cruelty is always a question of fact.

“Cruelty” in this section does not have a justified meaning because it is subjected to
provide security to women from the evil and to ensure she lives with dignity in her
matrimonial place.[8]

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Cruelty is one of the essentials required to constitute offence under 498A of IPC. it
should be shown that the actual amount of cruelty which the women was subject to is
enough to build the offence under this section.

Classification of offense

Offense under section 498A is cognizable which means that the police have the power
to arrest without warrant or any other law according to the circumstances.

Its is non-bailable in nature which means that only the court has the power to grant bail.

Who may file the complaint

By the aggrieved wife or

By her father, mother, brother, sister

When the court grants leave, to any person related to her by blood, marriage or
adoption.

Husband

The word “husband” means a person who enters into a marital relationship that is legal in the
eyes of law and under the feigned status of husband subjects the woman to cruelty which falls
under Section 498-A. There is no prohibition that defines the word “husband”, in circumstances
where persons who contract marriages avowed and cohabit with such woman, in the exercise of
their role as “husband” is not a ground to be excluded from the purview of section 498A of
IPC.

Second Wife

 In the judgment given by the Supreme Court, it was held that a complaint under Section
498A of IPC can be filed even by the second wife.

When the former marriage of a person is hidden to a woman with whom second
marriage is contracted, then she would be entitled to complain against her husband
under Sections 494 and 495 of IPC

A. Subash Babu vs. State of A.P. and Ors.

Women in live in relationship

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 A woman in a live-in relationship can’t file a complaint under this section.

Cognizance by court

Under section 198A of CrPC, the court is bound not to take cognizance of an offence
punishable under section 498A of IPC.

Except in cases where the police report is filed by the aggrieved wife or by her father,
mother ,brother, sister or with the leave of the court, by any person related to her by
blood ,marriage or adoption.

Cruelty and harassment

Relative of husband

-It is the essential ingredient to prove the offense under this section. The word “relative” has not
been defined by taking reference of the judgments. It is seen that “relatives” means father,
mother, sister, brother of the husband to be prosecuted under this section.

-Here relative means people who are connected by blood, marriage or adoption.

-It is the essential ingredient to prove the offense under this section.

Past events of cruelty

-In the case of Kaliyaperumal and Ors. Vs State of Tamil Nadu, it was seen that “soon before”
was essential to constitute the offense under cruelty.

-It is necessary to show that she was subjected to cruelty soon before the incident, to prove it

-The period under “soon before” is to be determined by the court under the circumstances of the
incident and the facts.

Section 498A and dowry demand

When a woman is subjected to harassment by her in-laws because of the fact that she was not
able to fulfill the demand of money or property made by her in-laws or husband, then her

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husband or in-laws would be convicted under the Section 498A of IPC . This section deals with
harassment subjected to demand of dowry.

Inder Raj Malik v Sunita malik

-In this case, the judgment was delivered by the Delhi High Court.

-It clearly justified that a person can be convicted of both section 498A of IPC as well as
Section 4 of the Dowry Prohibition and the situation of double jeopardy is not being created
under Article 20(1) of the Constitution.

Vijender Sharma v state

-The learned ASJ stated that as there were attempts to set the complainant on fire and this was
the second time, anticipatory bail was requested.

-Thus, the plea was rejected.

-But as the accused was ready to reconcile and return the possessions of the complainant and
also had deposited the specified sum of money.

-But the complainant never showed up in the proceedings.

-Thus on this ground, anticipatory bail was granted

Dr Sunil Kumar v state

-The controversy arose only after the expiry of the period of more than 6 years from the date of
marriage.

-The reason for the dispute between the parties was probably due to the suspicion that the
deceased had an illicit relationship.

– There was no demand of dowry and ill-treatment earlier.

– It was very vague that after such a long period of time the appellants suddenly started
demanding and ill-treating the deceased to the extent that she did commit suicide.

– Thus, the allegations remained unnatural and improbable.

Section 498A and protection of women from Domestic Violence Act,2005

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It is seen that the number of cases of women being subjected to harassment or cruelty by
her husband or in-laws are increasing, due to which the trials are delayed. So in this
situation where the case status is pending under Section 498A of IPC, before the
Criminal Court and the allegation made is not vague, then the appellant can seek
relief under Sections 18,19, 20, 21, 22 of the Domestic Violence Act, 2015 [13]

The Domestic Violence Act, 2015, aims to protect women from domestic violence by
providing remedy and Section 498A of IPC aims to protect the woman from the
harassment and cruelty that she is subjected to by her in-laws. Thus, these two
provisions provide remedies for women from violence. They only difference
between the Domestic Violence Act, 2015 and Section 498A of IPC is that Section
498A of IPC provides criminal prosecution as a remedy and the Domestic Violence
Act, 2015 provides civil suits as remedy.

And they even can seek interim relief under Section 23 of the Domestic Violence Act,
2015

498A IPC Divorce

If the complaint under Section 498A of IPC and Sections 3 & 4 of the Dowry
Prohibition Act,1961 is filed after a long period of time from the divorce date, then it
can’t be considered.

In the case of Mohammad Miyan v State of UP, it was seen that the wife had filed FIR
against her husband and his relatives under Sections 498A, 323, 325, 504 and 506 of
the Indian Penal Code and Sections 3 and 4 of Dowry Prohibition Act,1961. The
complainant had stated the fact that she has been divorced for more than 4years.

And the proceeding was quashed.

498A IPC Misuse

Every law is inserted to cure suffering and to check if people are subjected to social evil.
But we often misuse the laws, which amounts to the constitutional validity. This
section was inserted so that a woman can live with dignity in her matrimonial place.
But some of them file fake affair to put their in-laws in trouble. It is even seen that
the judges start assuming the accused to be criminal before the starting of the
proceedings. This happens due to certain environmental circumstances as well as
personal experience. They put themselves in the situation while giving the verdict. In
society as women are suffering a lot, everyone starts believing them and often they
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misuse the privileges. In recent cases it is seen that the provisions under Section
498A are being misused.

In Sushil Kumar v Union of India &Ors, it was seen that

-The complaint was filed with the intention to harass in-laws.

-As this offense has been made non-bailable, the families are put into trouble by the police as
well as the agencies to avail of anticipatory bail.

-The proceedings always start with the presumption that the accused is guilty.

-Such acts are causing legal terrorism.

-But this doesn’t amount to the questioning of the constitutional validity of law because of a
mere abuse of a statutory provision.

-Moreover presumption shall be done until the contrary argument is proved.

-Thus the contention was raised to formulate “guidelines” to protect the innocent people.

IPC 498A Misuse Punishment

In Arnesh Kumar v State of Bihar judgment that was delivered was to make provision to ensure
that the police officers do not arrest the accused, without any strong proof and Magistrates do
not detain them casually. The following provisions are:

All the State Governments were ordered to instruct the police officers not to arrest the
accused immediately. They are directed to go through the parameters of the situation
and think about what should be done and proceed accordingly.

A checklist containing specified sub-clauses under Section 41(1) (b) (ii) is to be

provided to the police officers.

Before forwarding the accused to the Magistrate, the police officers are required to
forward the checklist that is filled and also justify the reasons as well as necessities
that demanded an arrest in the situation.

Then the Magistrate is required to go through the furnished report of police officers. He
has to state that he is satisfied with the following statements and it authorizes
detention.

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In case a situation arises where the police officers did not arrest the accused within two
weeks from the date of the institution of the case, then the report should be forwarded
by the Superintendent of the Police of the District to the Magistrate for the purpose of
reasons to be recorded in form of writing.

 The accused has to appear before the court within two weeks from the date of
institution of the case under Section 41A of CrPC but it may be extended by the
Superintendent of the Police of the District to the Magistrate if the record writing is in
process.

If the following guidelines are not being followed by the police officer then
departmental action is to be taken against him and he would be liable to be punished
for contempt of court that would be instituted before High Court with territorial
jurisdiction into consideration.

If the Judicial Magistrate directs detention without recording reasons then he would be
subjected to departmental action by the High Court with territorial jurisdiction into
consideration.
In Rajesh Kumar v State of UP in the case, the judgment was based on directions to prevent the
misuse of Section 498A.It further modified the guidelines in Social Action Forum for Manav
Adhikar v. Union of India. The followings are:

The District Legal Services Authorities of every district are directed to constitute one or
more Family Welfare Committees. It shall comprise of three members.

The working of these committees is to be reviewed at least once a year by the chairman
of the committee that is the District and Session Judge.

The members of the committee are to inspect the complaints filed under Section 498A
of IPC, received by the police officers or Magistrate. The members can communicate
with the parties and it can be any mode of communication.

These members are not allowed to be witnesses.

The report by the members is to be submitted to the authority under whom it was filed
within the span of one month from the date the complaint was filed.

The committee is free to give their opinion regarding it.

No arrest is to be done until the report is submitted by the committee.

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Training is to be provided by the Legal Services Authority to the members of the

committee.

The members of the committee are subjected to the honorarium.

A designated officer is to be appointed to investigate complaints under Section 498A of

IPC.

Disposition of the proceedings including the closure of the criminal case relating to
matrimonial case incase of settlement is done. It should be opened to the District and
Session Judge or any other competent authority.

The case can also be decided on the same day when the bail application is filed with at
least one clear day’s notice to the public prosecutor.

Impounding of passports or insurance of Red Corner Notice should not be a notice when
the person is not residing in India.

These provisions are not applicable to the offenses involving corporeal physical injury
or death.

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Reference

1. (2005) 6 SCC 281 : AIR 2005 SC 3100

2. (2014) 8 SCC 273

3. https://www.sci.gov.in/supremecourt/2014/40984/40984_2014_Judgement_14-Sep-
2018.pdf

4. (21.07.2011 – SC) : MANU/SC/0845/2011

5. AIR 2014 SC 2756

6. MANU/SC/0909/2017

7. 2018 SCC OnLine SC 1501

8. https://indiankanoon.org/doc/538436/

9. Inder Raj Malik v Sunita malik

10. Vijender Sharma v state
11. Dr Sunil Kumar v state
12. Kaliyaperumal and Ors. Vs State of Tamil Nadu,

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