CRUELTY (S.

498A)

Inserted by way of Amendment 1983

Dowry practiced since ancient times…. Various kinds of gifts given to brides… by passage
of time, gifts which were given out of love or affection became the reason of husband
coercing his wife….

1961- Dowry Prohibition Act

---- it defined what is dowry

---- made punishable both taking of and giving of dowry..

S.2- Definition of Dowry - In this Act, “dowry” means any property or valuable security given or
agreed to be given either directly or indirectly— (a) by one party to a marriage to the other party to
the marriage; or (b) by the parents of either party to a marriage or by any other person, to either
party to the marriage or to any other person; at or before 2 [or any time after the marriage] 3 [in
connection with the marriage of the said parties, but does not include] dower or mahr in the case of
persons to whom the Muslim Personal Law (Shariat) applies. 4 * * * * * Explanation II.—The
expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of
1860)

S.3- Penalty for giving or taking dowry –If any person, after the commencement of this
Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with
imprisonment for a term which shall not be less than five years, and with fine which
shall not be less than fifteen thousand rupees or the amount of the value of such
dowry, whichever is more
S.4- Penalty for demanding dowry - If any person demands, directly or indirectly, from the
parents or other relatives or guardian of a bride or bridegroom, as the case may be, any
dowry, he shall be punishable with imprisonment for a term which shall not be less than six
months, but which may extend to two years and with fine which may extend to ten thousand
rupees.

S.304B- Dowry death – [Inserted by 1986]

INDIAN EVIDENCE ACT, 1872

S.113A- Presumption as to abetment of suicide by a married woman — When the

question is whether the commission of suicide by a woman had been abetted by her husband
or any relative of her husband and it is shown that she had committed suicide within a period
of seven years from the date of her marriage and that her husband or such relative of her
husband had subjected her to cruelty, the court may presume, having regard to all the other
circumstances of the case, that such suicide had been abetted by her husband or by such
relative of her husband. Explanation. — For the purposes of this section, “cruelty” shall have
the same meaning as in Section 498-A of the Indian Penal Code. [Inserted by 1983]

S.113B- Presumption as to Dowry Death - If a woman dies in relation with any demand for
dowry and it was shown that soon before her death she was subjected to harassment or
cruelty by any person. Then the court will assume such a person responsible for her death.
[Inserted by 1986]

DIFFERENCE BETWEEN S.498A IPC AND S.4 OF DOWRY PROHIBITION ACT

Section 4 of the DP act talks about penalty for demanding dowry which is imprisonment of
minimum 6 months which may extend up to 2 years and fine up to Rs 10000/-. The Section is
Gender neutral i.e. its applicable to any person who demand dowry from the parents,
other relatives or guardian of the bride or the bride-groom. However, discretion is given
to the Judicial Officer to impose a sentence of less than 6 months but on the condition that he
has to mention the reasons for imposing a sentence of less than 6 months in his judgment.

Section 498A, IPC talks about punishment in form of imprisonment for a term upto 3 years
and liability to a fine the amount of which is not mentioned in the section but left to judicial
discretion for the offence of subjecting a woman to cruelty by her husband or relative of
husband. Cruelty according to the section means any wilful conduct which 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) or harassment of a woman with a view to coercing her or
any person related to her to meet any unlawful demand for any property or valuable security
or the harassment is by husband or the relative of the husband is because of the failure by the
woman or any person related to her to meet such a demand. Thus, the section is strongly
gender biased in favour of the fairer s*x.

Whereas, Section 4 of DP Act defines a single offence, cruelty under section 498A may take
into its ambit number of offences which may be assault,battery, libel, character assassination.
WHO IS RELATIVE?

U.Suvetha vs State By Insp.Of Police & Anr on 6 May, 2009,

By- marriage, blood, adoption …Mother, father, husband, wife, daughter, grandchildren,
niece… girlfriend, concubine---- not included !!

P. Bikshapathi And Ors. vs State Of Andhra Pradesh on 27 October, 1988

A Lady – committed suicide in her letter--- she stated there was demand of TV etc…

Her husband addicted to alcohol - he used to beat her after… court held him liable under
498A and 306…

CONSTITUTIONAL VALIDITY OF SECTION CHALLENGED

In Inder Raj Malik and others vs. Sunita Malik 1986, It was contended that this section is
ultra vires Article 14 and Article 20 (2) of the Constitution. There is the Dowry Prohibition
Act, 1961 which also deals with similar types of cases; therefore, both statutes together create
a situation commonly known as double jeopardy. But Delhi High Court negatived this
contention and held that this section does not create situation for double jeopardy. Section
498-A is distinguishable from Section 4 of the Dowry Prohibition Act because in the latter
mere demand of dowry is punishable and existence of the element of cruelty is not necessary,
whereas section 498-A deals with an aggravated form of the offence. It punishes such
demands of property or valuable security from the wife or her relatives as are coupled with
cruelty to her. Hence a person can be prosecuted in respect of both the offences punishable
under section 4 of the Dowry Prohibition Act and this section. It was thus held that though,
this section gives wide discretion to the courts in the matters of interpretation of the words
occurring in the laws and also in matters of awarding punishment.
Similarly, its constitutionality was challenged in the case of Polavarpu Satyanarayana v.
Soundaravalli 1988 where it was again held that 498A is not ultra vires of constitution.

Satish kumar Batra v. State of Haryana 2009, Court held that merely because there is
possibility of abuse of this section doesn’t render it unconstitutional.

The Supreme Court in its recent judgment in Arnesh Kumar v. State of Bihar and Anr
2014 said that no arrest should be made immediately in the offences which are allegedly
committed by the accused and the offence is cognizable and non-bailable, with particular
reference to S. 498A. It laid down certain guidelines for the police officers to follow relating
to the arrests made under the section, due to increase in number of false complaints.
SOCIAL ACTION FORUM FOR MANAV
ADHIKAR v. UOI 2018
Let's look at the background of the judgment titled "Social Action Forum for Manay Adhikar and
another Versus Union of India and others The NGO challenged various judgments of Supreme
Court and High Courts by writ of mandamus which had diluted the provisions of 498A .It wanted
a uniform policy of registration of FIR arrest and bail in cases of Section 498A IPC in
consonance with the law of the land. Let to register FIR on complaint of cruelty and harassment
by married women as per the provisions of IPC and CRPC. The said writ was filed in 2015, and
in between Rajesh Sharma judgment was pronounced by another bench of SC

Another NGO in the mean time filed another Writ Pention challenging the Rajesh Sharma
judgment and wanted women NGOs to be part of Family Welfare Committee. These however did
not pan out for the NGO as if wanted to percolate the Family Welfare Committees through the
weinen NGO Today, the Apex Comt bench headed by CJI Deepak Misra abolished the Family
Welfare Committees in entirety

Ever since the passage of 498A there has been frequent judgments to curb the misuse of 498A.
The current judgment starts from that only The chief justice writing on behalf of the complete
bench said in the very beginning and decried that despite the misuse being vertically rising the
legislature has failed to bring the remedial protective provisions to curb the misuse. Thereafter it
starts a discussion on the previous judgment along with other judgments passed by the Apex
Court in curbing misuse of vanous provisions related to arrest and also that of 495A

After detailed deliberations the Supreme Court Supreme Court abolished the Family Welfare
Committees and tweaked the other directions given in Rajesh Sharma judgment Now let me my
to explain what it means to men fighting 198A and other related cases. There is an increasing
number of crimes against women including instances of domestic violence and abuse. Section
498-A was brought into the statute book in the year 1983 to deal effectively not only with cases
of Dowry Death but also cruelty to married woman by their in laws. This petition was filed
seeking directions to create an enabling environment for married women subjected to cruelty. The
directions issued by the Supreme Court in the case of Rajesh Sharma were considered in detail in
this case and the competency of the Court to issue directions through interpretation was also
examined.

It was contended by the petitioners that the legislative intent behind Sec 498-A is being diluted
due to the absence of any uniform system of monitoring and systematic review of violence
against women. The rigour of the Section is being lost because of the qualification and restriction
prescribed by the judiciary including that in Rajesh Sharma case.

The main direction in the aforesaid case was the setting up of Family Welfare Committee this as a
whole was held as not in accord with the statutory framework. The constitution of the FWC and
its constitution by the District Legal Services Authority and the power conferred on the
Committee is impermissible. The three judge bench also directed that investigating officers who
are in charge of investigation of cases of offences under Sec 498-A should be given training
relating to arrest. And be guided by the Principles stated in Joginder Kumar, Lalita Kumarri and
Arnesh Kumar.
Facts
The petitions have been preferred under Art 32 of the Constitution of India seeking directions to
the respondents to create an enabling environment for married women subjected to cruelty to
make informed choices and to create a uniform system of monitoring and systematically
reviewing incidents of violence against women under Sec 498-A IPC including their prevention,
investigation, prosecution and rehabilitation of the victims and their children at the Central, State
and District levels.

Prayer has been made to issue writ of mandamus to the respondents for a uniform policy of
registration of FIR, arrest and bail in cases of Sec 498-A IPC in consonance with the law of the
land, ie, to immediately register FIR on complaint of cruelty and harassment by married women
as per the IPC.

The essential contention was that the social purpose behind Sec 498-A was being lost by reason
of various qualifications and restrictions prescribed by various courts including the recent
decision in Rajesh Sharma and others v. State of U.P and another. The Supreme Court in this
case had issued directions to prevent purported misuse of Sec 498-A. The core issue that arose in
the appeal related to the need to check the alleged tendency of woman filing complaint under Sec
498-A to rope in all family members in settlement of matrimonial dispute. The most important
direction given was with regard to the establishment of Family Welfare Committees to look into
complaint filed under Sec 498-A.The court also directed that no arrest in the matter shall be made
unless the Committee’s report is received. It was also stated that in cases where a settlement has
been reached, it may be open to the District and Sessions Judge or any other senior Judicial
Officer to dispose of the proceedings including closing of the criminal case if dispute primarly
relates to matrimonial discord.

Issue
The issues that were considered in this case are:

 Whether the Court in Rajesh Sharma case could, by the method of interpretation, have
issued such direction?

Arguments

Arguments in favour of the Petitioner

Arguments put forward by the petitioners are as follows;

1. The legislative intent behind Sec 498-A is being diluted due to the absence of any uniform
system of monitoring and systematic review of incidents of violence against married women.
2. Though there is general complaint that Sec 498A is subject to gross misuse, yet there is no
concrete data to indicate how frequently the provision has been misused. Moreover misuse alone
cannot be a ground to repeal a penal provision or take away its teeth.

3. The social purpose behind Sec 498-A is being lost as the rigour of the provisions have been
diluted and the offence made bailable by various qualifications and restrictions prescribed by
various decisions including Rajesh Sharma and others v. State of U.P and another.

4. Despite the fact that Section 498-A IPC discloses a non-bailable offence and sufficient checks
and balances have been provided in the law itself under Section 41 CrPC, the police is hesitant to
arrest the accused on complaint by married women and the same inaction is justified by quoting
various judgments.

5. There is a lack of monitoring mechanisms to track cases registered under Sec 498-A including
systematic study of the reasons of low conviction.

6. Investigation by the police of offence under Sec 498-A is often unprofessional and callous and
the investigating officers perceptibly get influenced by both the parties which results in
perpetrators escaping conviction.

7. In many cases under Sec 498-A the court has not considered mental cruelty caused to the
woman but has concentrated only on sign of physical cruelty and led the courts to brand the
woman on many occasions as hyper sensitive or of low tolerance level.

8.The alleged abuse of the provision is mostly by well educated women but this cannot be a
ground for denying the poor illiterate women the protection by Sec 498-A.

Arguments in favour of the Petitioner

The arguments put forward by the respondents are as follows;

1. Sec 498-A which is cognizable and non-bailable has lent it a dubious place of pride amongst
the provisions that are used as weapons rather than shield by disgruntled wives.(Arnesh Kumar v.
State of Bihar and another).

2. The simplest way to harass in laws is to get the husband and his relatives arrested under Sec
498-A. Arrest brings humiliation, curtails freedom and casts scars forever.

3. Power to Arrest is one of the lucrative source of police corruption and it is largely considered
as a tool of harassment and oppression. The attitude is to arrest first and then proceed with the
rest. This is despicable and needs to be regulated.

4. Crime in India 2012 Statistics published by the National Crime Records Bureau, Ministry of
Home Affairs which shows arrest of 1,97,762 persons all over India during the year 2012 for the
offence under Section 498-A.
Amicus Curiae
Mr.V Shekhar, learned Senior Counsel, appointed as Amicus Curiae gave the following
submissions:

1. The decision in Rajesh Sharma requires reconsideration, as the judgment confers powers on
the Family Welfare Committee to look into the criminal complaints under Sec 498-A.

2. The constitution of FWC is contrary to the procedure prescribed under the Criminal Procedure.

3. Entrusting the power to dispose of the proceedings under Section 498-A IPC by the District
and Sessions Judge or any other senior judicial officer nominated by him in the district in cases
where there is settlement, are impermissible, for an offence under Section 498-A is not
compoundable and hence, such a power could not have been conferred on any District and
Sessions Judge or any senior judicial officer nominated by him.

4. The recovery of disputed dowry items may not itself be a ground for denial of bail which is the
discretion of the court to decide the application of grant of bail in the facts and circumstances of
the case and thus, this tantamounts to a direction which is not warranted in law.

5. Para 19(v) was criticized which states that for persons who are ordinarily residing out of India,
impounding of passports or issuance of Red Corner Notice should not be done in a routine
manner.

6. The dispensation of personal appearance of outstation family members is unwarranted, as a

competent court in a criminal proceeding should be allowed to exercise the judicial discretion.

Judgement
The Court gave out the following considerations while delivering the judgment:

It is not within the domain of the courts to embark upon an enquiry as to whether a particular
public policy is wise and acceptable. The court can only interfere if the policy framed is
absolutely capricious or not informed by reasons or totally arbitrary, offending the basic
requirement of Art 14 (Census Commissioner and others v. R. Krishnamurthy). Moreover, it has
been held that no court can direct a legislature to enact a particular law (Suresh Seth v.
Commissioner, Indore Muncipal Corporation and others).

With regard to the issue as to whether the directions as in the case of Rajesh Sharma, could have
been issued by the process of interpretation, the court analysed the fact that judiciary in
furtherance of a fundamental right, has issued directions in the absence of law in certain cases
namely, Vishaka and Others v. State of Rajasthan and others, Lakshmi Kant Pandey v. Union of
India..The Court also observed that the prescription of duties of the Welfare Committees and
further action are beyond the Code and the same does not flow from any provision of the Code.
It was also opined that the legislature in its wisdom has made the offence under Sec 498-A
cognizable and non-bailable, the fault lies within the investigating agency which jumps into
action without application of mind.

While considering the judgment in Lalita Kumari v. Government of Uttar Pradesh and others the
Court stated that it is quite vivid that the Constitution Bench had not suggested that preliminary
enquiry may be held in matrimonial/family disputes.

On the basis of the aforesaid judgments and considerations the Court gave its judgment holding
that the directions pertaining to Family Welfare Committee and its constitution by the District
Legal Services Authority and the power conferred on the committee is impermissible and made
the following observations:

The directions issued in the judgment are as follows;

1. The investigating officers be guided by the principles stated in Joginder Kumar v. State of U.P
and others, D.K Basu v. State of W.B, Lalita Kumari and Arnesh Kumar v. State of Bihar and
another.

With regard to the directions given in Rajesh Sharma, the Court gave out the following
judgment:

1. The direction contained in 19(i), which contains the provision of establishment of Family
Welfare Committees, as a whole is not in accordance with the statutory framework .

2. Court modified the direction No. 19(iii) stating that if a settlement is arrived, the parties can
approach the High Court under Sec 482 of the Code of Criminal Procedure.

3. So far as direction No. 19(vi) (clubbing of all connected cases) and 19(vii) (exemption from
personal appearance) are concerned, an application has to be filed either under Section 205 CrPC
or Section 317 CrPC depending upon the stage at which the exemption is sought.

4. Director General of Police of each state should make sure that the investigating officers who
are in charge of investigation of cases of offences under Sec 498-A be imparted rigorous training
with regard to principles stated by this court relating to arrest.

5. When an application for bail is entertained, proper conditions have to be imposed but recovery
of disputed dowry items may not by itself be a ground while rejecting an application for grant of
bail under Section 498-A IPC.

To sum up, the NGOs which applied these writs have not got what they desired. Neither the
Apex Court ordered immediate registration of FIRS nor it allowed NGOs to percolate into the
Family Welfare Committees. The judgment, however, took away few relaxations which were
accorded to husband and their family members. Arrests are now at the discretion of
Investigating Officers and his superiors. notwithstanding that they would have to follow the
conditions of 41A CRPC. Exemptions from personal presence is also at the discretion of the
magistrate. Today, the Apex Court lost an opportunity to make this a truly Landmark
Judgment by not following its own footsteps like it did in regards to RTI ACT. Sec 66 A of
IT Act. Vishakha Guideline and lately by reading down Sec 377 IPC.

MISUSE OF SECTION 498A AND ITS RECOVERY

With the continuous rise of modernization, education, financial security, and new
independence, radical feminists have made 498A a weapon in her hands. Many unhappy
husbands and relatives became victims of these kinds of women. 498A proved to be wrong
(recognized by the High Court and Supreme Court of India repeatedly) because it was merely
an attempt to blackmail the in-laws by the wife (or her close relatives) when forced with a
strained marriage. In most of the cases of section 498A, a large amount of money (extortion)
was demanded to resolve the case out of court.

If his wife made false accusations against these men and he proved his innocence in
accordance with the law, the abuse of 498A could be combated. The Indian government and
judiciary continue to protect women, and the law does not ignore men. Justice continues to
triumph over injustice. Individuals whose reputations have been damaged by false
accusations seek compensation and protection from IPC Article 498A. They are:

Section 500 of the Indian Penal Code allows husbands to file defamation suits.

According to Section 9 of the CPC, the husband can claim compensation for the losses
suffered by him and his family based on false accusations of cruelty and abuse.

Section 182 of the IPC is one of the safeguards against a wide range of false 498A cases. If
the agency believes that the average value described is invalid, under Section 182 of the
Indian Penal Code the culprit will be sentenced to 6 months imprisonment or both. The
judicial system charges the person for misleadingly providing false information.