Author: Harshit Jaiswal, II year of B.B.A.,LL.B.(Hons.) from Prestige institute of management and research, Gwalior.
ABSTRACT
The present paper claims to throw light on section 498-Aof the Indian Penal Code. In this paper the researcher wants to discuss on the issues that incorporate the penal liability under the impugned provision.This paper will throw light upon the possibilities of abuse of the provision and the proposed remedies the judiciary may deliver to rectify it to make sure it reduces the rate of getting it abused.
INTRODUCTION
INDIA has been constituted as a male dominant society.Despite the fact that marriage is a highly pious and respected institution in India, our intrinsic characteristic of male dominance led to the suppression of women after marriage. The original Indian Penal Code which was drafted by the Britishers had no specific provision to deal with this India specific problem.
Section 498 – A was introduced in the Indian Penal Code by Criminal Law (2nd Amendment) Act of 1983 which came into force with effect from 25/12/1993. This section aims to curb cruelty meted out to the weaker spouse and savor from the whims and fancies of the man.It is also pertinent here to mention that Section 498 – A is prospective in operation which means any offence constituted before the date of implementation which meets out the ingredients of the section shall not be punishable under the section.
This aspect was clarified by the High Court of Madras
In the case of Prasanna Kumar vs Mrs. Dhanalakhsmi[1]The Judgment of the Court was delivered by M. FATHIMA BEEVI, J. Special Leave granted. The appellant married the first respondent on 29.4. 1979. They lived together until 1982 and have two children. They separated and the legal battle commenced in 1983. The first respondent moved the City Civil Court for divorce. The appellant instituted criminal complaint in the court of the Metropolitan Magistrate. The complaint was taken cognizance of for offences under Sections 494, 496, 498-A, 112, 114, 120, 120-B and 34 IPCagainst the respondents.
According to Section 498-A of Indian penal Code 1860, Husband or relative of husband or 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 punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
For the purpose of this section, “cruelty” has been defined as 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 the woman. Harassment of the woman has been defined 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.
The offence has been classified as Cognizable, Non Bailable and Non-Compoundable offence i.e.one can get arrest without any warrant, and bail will not be granted unless magistrate proceeds with the case and once the complaint has been filed it can’t be withdrawn respectively. All these provisions have been instituted for the strict implication of the 498-A and the victim can get fair justice for such a heinous crime.
THE CARDINAL ISSUE OF POSSIBILITY OF ABUSE
In simple words we can say that the misuse and wrong mindset/ perception is the root cause of possibility of misuse that arises in this context.For the empowerment of women feminism plays a vital role, as it has enhanced the status of women in the society. Irrespective of the field woman are getting success and they are able to match the level of their opposite gender.
Just because of the mindset of male dominancy andthe injustice done by the male society, suppressing them and snatching opportunity in the name of household works, rape done by some part of male community, harassing them for dowry. These all has put the male community into the dark side of the society.
There are some lacuna’s or we can say that legislation has given more remedies for the exploitation to woman for their welfare and protection but now some are just taking advantage of it and using it against man for having unreasonable benefits and harasses man in the shadow of these legislature.
Even the BJP leader Lal Krishna Advani has accepted it that he is well aware about the fact of the abuse of 498-A[2]but he is also unable to do anything because of the opinion of Woman Organization. The concept of DOUBLE JEOPARDY states that an individual can’t be punished twice for the same offence.
Article 50 - Right not to be tried or punished twice in criminal proceedings for the same criminal offence. No one shall be liable to be tried or punished again in criminal proceedings for an offence for which he or she has already been finally acquitted or convicted within the Union in accordance with the law.
In some of the cases the person has more than one case of 498-A in different courts, for example one in Bangalore high court and other in Mumbai High court.
Maintenance case can also file anywhere in India. In some scenario it has been found 498-A doesn’t came alone, with its woman side also files several cases with relevant charge i.e., 406,507,377,384 of IPC, 125 of CRPC domestic violence and RAPE charges as well in some cases.
A single case itself take lots of time and multiple cases leads to the exploitation of persons liberty, peace and dignity. It leads to the wastage of valuable time of a man in getting himself acquitted. Justice SN DHINGRA has suggested to make a separate family law which deal with this all charges or cases.
ACTIVIST of save Indian family movement SWARUP SARKAR has also stated that overall 6-7 cases filed for a simple marriage. Law makers has made 6-7 laws, councils and peoples are just misusing it.[3]
MULTIPLE ALLEGATION
In most of the cases it has been found that with the allegation of 498-A, for the sake of greed and personal issues the defendant imposes multiple allegations on the respondent with the allegation of 498-A. Defendant uses all the rights which are provided for the prevention as mode making a strong false case, which leads to harm their reputation and can get more compensation.
Allegation like: 377, 384, 406 of IPC, Rape charges and 125 CRPC for maintenance. One allegation is enough to harm the reputation of a citizen and it leads to the defamation. Arrest can be done without warrant and in some cases the respondent got arrested from their workplace which ultimately leads to defamation in the society. Might be the chances of loosing that particular job as well.
Justice S N DHINGRA has also talked about that party ask a lump sum amount in the name of compensation in some of the cases. Matter got settled. Cruelty goes once the money is given[4]. FORMER CP ALOK MITTAL has also stated that parties try to settle the matter with compensation option.[5]
ABSUSE AS COMMERCIAL ACTIVITY
In some cases, it has been found that some of the judges, police officers and advocates has formed a business and make money by helping parties to do settlement between them. They suggest them to go for compensation option to solve the case as soon as possible sometimes even MEDIA is also a part of this business, with these departments media also makes money for themselves.
Even MAHILA AAYOG get some part in some cases. ICSSR Prof. MADHU KISHWAR has also said that some judges are making money and with judges even lawyers they fixed a price for the issuing bail and what kind of legal remedies they can get. It has become aninstrument of blackmailing.[6]
ADV. MRUNALINI DESHMUKH BOMBAY HIGH COURT has also said that where police and lawyers make money from the sides. Police recommends their lawyers to parties for solving the matter.[7] All these pillars of law protectors are making money by setting price for the resolution.
Let’s look over some of the judgements of case based on the topic
In this case of Saritha vs R. Ramchandra[8]JusticeBsa swamystates that the law commission and the parliament to make the offence a Non cognizable and bailable one so that not educated women of this country and their parents don’t misuse the provision to harass innocent people for the sin contacting marriage with egoistic women.
In the case of Preeti Gupta vs State of Jharkhand[9]justice Dalveer Bhandaristates that a matter of common experience that most of these complaints under section 498A IPC are filled in the heat of trivial issues without proper deliberations. We come across a large number of such complaints, which are not even bona fide and are filled with opaque motive.
Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. Unfortunately, a large number of complaints have not been flooded with courts but also have led to enormous social unrest affecting harmony, peace and happiness of the society.
In the case of Geeta Mehrotra Vs State of Up[10]Justice Gyan Sudha Mishra coming to the facts of the case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially it happens soon after the wedding.
In the case of Sushil Kumar Sharma Vs Union Of India &others[11]the Bench states that Merely because the provision is constitutional and intra vires, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment.
By misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used shield and not an assassin’s weapon. It is to be noted that the role of the investing agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations.
In the case of Savitri Devi Vs Ramesh Chand &others[12]JUSTICE J D KAPOOR said that I feel constrained to comment upon the misuse of the provisions of section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has to be not so good for the health of the society at large. It is rightly said sometimes the remedies are worse than the perils or disease.
Having seen and experienced the enforcement of the laws for decades time has come to take stock and review them as thousands of marriages have been sacrificed at the altar of this provision. What else is it if not a social Catastrophe?
Let’s look over some statistical data to understand it in a proper manner:
We can understand with data that in a large number 498A is misused and false allegation has been imposed on persons:CRL. R 462/2002
REFORMS OF CRIMINAL JUSTICE SYSTEM, 2003
CHAIRPERSON
DR. JUSTICE V.S. MALIMATH
FORMERLY, CJ OF KARNATAKA AND KERALA HIGH COURT
States that this section therefore, helps neither wife nor the husband. The offence being non-bailable and non-compoundable makes an innocent undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations.
It is therefore necessary to make this offence BAILABLE AND COMPOUNDABLE, to give chance to the spouses to come together.[1]
But still no changes have been made till date.
RECOMMENDATION
Repeal is not a good option to be consider in this case instead of that we can modify provisions as per the need for example: Word wife should be replaced with spouses. It should be bailable and compoundable. Provision for the punishment of false case/allegation should be followed strictly as similarly we are doing with punishing the guilty. Section 182,199&211 of IPC provide punishment of false but it is rarely invoked. These must be uses very strictly.
Charge of defamation should be get imposed on defendant once the respondent gets acquittal. A procedure should be established for the punishment and heavy compensation.
One family law should be made for the which deals with all the provisions which are woman protection which one judge should be appointed to deal with it. Provisions like 406,507,377,384,498A of IPC, 125 of CRPC, DOMESTIC VIOLENCE AND DIVORCE.
498A case should be filed at place of cause of action and proper jurisdiction should be defined so that filing of same case can be stopped. There should be concept of necessary parties as we can see in most of the cases defendant used to drag all the members of family in a case sometimes an old age person and newly born baby also get name in the case.
Process of SETTLEMENT should be strictly monitored by the court as some cases cruelty goes as party gets compensation it is clearly showing cases are just use for the purpose of greed not for the justice.
For better utilization of this section 498A a proper investigation should be done by police before arresting accused party. In investigation police must investigate from husband side too, statement from man’s neighbor and all relatives, in some cases police only records the statement woman’s side.
Legislature must go through the provisions of it once and make some suitable modification/amendment in it because the women’s condition of last decade was different and now the condition is little bit different so legislation should be get modified as per the situation and requirement. Even justice have also recommended about the relook over the provisions related with it.
CONCLUSION
Conclusion I therefore conclude this paper very succinctly in a couple of lines by saying that Section 498 – A was very well-intentioned but with the passage of time despite the good things it is doing, has also been used as a handle of harassment by disgruntled wives. Luckily the judiciary has recognized this aspect and has started to give Section 498 – A the correct shape it always deserved.
[1]https://www.youtube.com/watch?v=vKRAkw5RUdw; Documentary: Martyrs of marriage, Last visited on 19/07/2022
[1]1989 CRLJ 1829. [2]https://www.youtube.com/watch?v=vKRAkw5RUdw; Documentary: Martyrs of marriage, Last visited on 19/07/2022 [3]ibid [4]https://www.youtube.com/watch?v=vKRAkw5RUdw; Documentary: Martyrs of marriage, Last visited on 19/07/2022 [5]ibid [6]ibid [7]https://www.youtube.com/watch?v=vKRAkw5RUdw; Documentary: Martyrs of marriage, Last visited on 19/07/2022 [8]2002 (6) ALD 319, 2002 (4) ALT 592, I (2003) DMC 37 [9](2010) 7 SCC 667 [10] (2012) 10 SCC 741 [11][1997] 5 SCC 536, [12]CRL. R 462/2002
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