BY SUCHI CHATURVEDI
ASSOCIATE, H.K. LAW OFFICES
What is Section 498A Indian Penal Code?
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 punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.—For the purposes of this section, “cruelty means”—
(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 the 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.
ESSENTIALS OF S. 498A IPC:
- The women must be married;
- She must be subjected to cruelty or harassment (as per the definition of cruelty mentioned above).
- Such cruelty or harassment must have been inflicted by the husband of the woman or by the relative of her husband.
PUNISHMENT FOR S. 498A IPC:
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.
COGNIZABLE AND NON- BAILABLE OFFENCE-
As per the provision of section 498A IPC, the offence is categorised as Cognizable if the information relating to the commission of the offence is given to the officer. And it if further Non- Bailable and is triable by Magistrate of 1st Class.
But it is well settled proposition by Hon’ble Supreme Court of India in various landmark judgments that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation.
WHO CAN FILE A COMPLAINT UNDER S. 498A, IPC AND WHAT IS THE LIMITATION PERIOD FOR FILING S. 498A COMPLAINT?
Most significantly, the victim i.e., female who is married can register a case under section 498A IPC against his husband and other perpetrators for subjecting her to cruelty (as mentioned in the above definition of cruelty). The complaint can either be filed by aggrieved woman or any person related to the aggrieved woman by blood, adoption, or marriage, it can also be a government notified public servant.
As per Section 468 CrPC, the complaint regarding the offenses under 498A must be filed within the time period of 3 years from the alleged last incident of cruelty happened.
Exceptionally, cognizance of such offense can be cognizable by the court even after the limitation period when there is dire need for justice.
NEED FOR THE LAW-
Living in society where women have always been subject to cruelty by males. The society which enjoys patriarchal approach it is necessary for women to feel that they are even heard.
i. Women are continuously forced, tortured, threatened in our society so it is very essential to have a law which protects the rights of the women and also punish the wrongdoer.
ii. Women are also subjected to mental cruelty. There is no law to protect or ease the pain of women suffering from mental cruelty. Act like these help woman in every possible ways.
iii. Every law has it’s pros and cons, the laws can always be amended so there will be certain loopholes but always a provision can be added to rectify the problems.
UGLY FACET OF SECTION 498A –
Supreme Court calls the Section 498A as ‘Legal Terrorism’. The misuse or abuse of the law is mostly done by urban and educated women.
There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.[1]
Women use it as a weapon to shield themselves. In Arnesh Kumar v. State of Bihar, it was stated that bedridden grandfathers, grandmothers and even relatives living abroad were arrested. So, women have started using it as a weapon to punish husband and his relatives if they fail to satisfy her. The Supreme Court of India in ‘Preeti gupta v. State of Jharkhand’ decided in 2010, observed that a serious relook of the provision is warranted by the Legislature and said : “ It is a matter of common knowledge that exaggerate versions of incidents are reflected in a large number of complaints”.
There have been a number of cases when the male is not of India and he comes to India to marry the lady and is made to do things in fear of 498A. Even when there is small disagreement or argument within the family the woman tend to register FIR in 498A. Police visit the office premises of men and his reputation is harmed in society. Gifts are also misunderstand as dowry. So, the laws favoring women should not harm innocent men of the society just because women is seeking some kind of revenge through 498A.
The Hon’ble Supreme Court of India in case of Arnesh Kumar v. State of Bihar[2] has further observed that “Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, but the power of arrest is also one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”[3]
Therefore, the Apex Court of India in landmark judgement of Arnesh Kumar v. State of Bihar has laid guidelines to protect the innocent from unreasonable arrest and has held that:-
“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
i. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
ii. All police officers be provided with a check list containing specified sub- clauses under Section 41(1)(b)(ii);
iii. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
iv. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;
v. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
vi. Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
vii. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
viii. Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
ix. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.”[4]
Section 498-A and presumption under Evidence Act-
Section 113-A, Evidence Act mandates that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume that such suicide has been abetted by the husband or the relative.[5]
Some of the judgments of the Hon’ble Supreme Court of India which have interpreted the width and ambit of Section 498A IPC are as under:-
A. Vanaka Radhamanohari vs Venaka Venkata Reddy[6] affirmed in Sarah Mathew vs Institute of Cardiovascular Diseases[7]; The Supreme Court held that the maxim vigilantibus, et non dormientibus, jura subveniunt is not applicable to offences relating to cruelty to women in matrimonial cases. The question should be judged in the light of Section 473 of the CrPC and therefore the limitation prescribed in Section 468 of CrPC would not strictly apply.
B. Ramesh Kumar vs State of Chhattisgarh[8]; It has been held that Section 498 A and 306 of the IPC are independent provisions and constitute different offenses. Proving of offense under one provision does not depend on the other.
C. Giridhar Shankar Tavade vs State of Maharashtra[9]; Supreme Court has explained as to what constitutes cruelty. Supreme Court has held that the word cruelty as expressed by the Legislature is attributable to two specific instances explained in the explanations. One has an element of physical injury and the other lacks the element of physical injury. One is patent and the other is latent. However, both are equally serious in nature. Court has also held that even under Article 136, Court can take note of mis-appreciation of evidence by the lower Courts if it leads to utter perversity.
D. Reema Aggarwal vs Anupam[10]; The term husband has been defined to mean and specifically include such persons who contract marriages ostensibly and cohabit with such women in the purported exercise and role as a husband. Such person would be amenable to be punished under Section 498A. A person indulging in bigamy comes within the sweep of the said provision and there can be no impediment in law for liberal construction in this regard.
E. Ramesh vs State of TN[11]; The starting point of limitation would be when the woman leaves the matrimonial home or the last act of cruelty.
F. State of A.P vs M Madhusudhan Rao[12]; Harassment simplicitor is not cruelty. Only when such harassment is committed for the purpose of coercing a women or any other person to meet an unlawful demand for property etc. alone would amount to cruelty punishable under Section 498 A.
G. Dinesh Seth vs State (NCT of Delhi)[13]; Scope of Section 304B and 498A are different. While Section 304B deals with cases of death as a result of cruelty or harassment within 7 years of marriage, Section 498A has a wider meaning as it includes all forms of cruelty by husband or relative of husband which may result in death by way of suicide or injury to life and health for unlawful demand for property.
H. U. Suvetha vs State[14]; The meaning of relative is relation by blood, marriage or adoption. Therefore, girlfriend or concubine is outside the purview of Section 498A.
I. Bhaskar Lal Sharma vs Monica[15]; Supreme Court has restated the essential ingredients of the offense and the pleadings necessary.
J. State of UP vs Santosh Kumar[16]; Examining the distinction of Section 304B and 498A, it has been held that the demand for dowry is an essential ingredient to attract Section 304B whereas under Section 498A, the same is not a basic ingredient of the offense.
K. Lakshman Ram Mane vs State of Maharashtra[17] ; Illicit relationship of a married man with another woman would answer the definition of cruelty under Section 498A.
L. Pinakin Mahipatray Rawal vs State of Gujarat[18] ; It is held that the burden of proof under Section 113 A is on the prosecution when the offense alleged is under Section 498 A of IPC. Only if the prerequisites under Section 113 A are satisfied, the burden would shift onto the accused to rebut the presumption.
M. S Mehaboob Basha vs State of Karnataka[19]; The Court has held that the offense of ill treatment is committed in closed doors and one can hardly expect any witness , much less an independent witness. Therefore, examination of an independent 7 witness to the acts of ill treatment cannot be insisted upon and other factors and circumstances should be considered.
N. Preeti Gupta and Anr vs State of Jharkhand and Anr[20]: It has been held that members of the bar have an enormous social responsibility and an obligation to ensure that social fiber of family life is not ruined or demolished by filing complaints by exaggerating small incidents and the provision itself needs a relook in the light of public opinion.
O. Arnesh Kumar vs State of Bihar[21]; Supreme Court has termed Section 498A as a provision having dubious place of pride and a weapon rather than a shield of a disgruntled wife. Various directions are issued to the State Government, Police and Magistrates in dealing with complaints under Section 498A. This judgment also considers the statistics of complaints in great detail.
With increasing abuse of provisions of law for harassing others which were meant for protection oneself, the Judiciary has been constantly trying to maintain a balance between individual liberty and societal order while exercising the powers of law to punish the real offender.
[1] Arnesh Kumar v. State of Bihar (2014) 8 SCC 273
[2] (2014) 8 SCC 273
[3] Ibid.
[4] Ibid.
[5] Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48
[6] (1993) 3 SCC 4
[7] (2014) 2 SCC 62
[8] (2001) 9 SCC 618
[9] (2002) 5 SCC 177
[10] (2004) 3 SCC 199
[11] (2005) 3 SCC 507
[12] (2008) 15 SCC 582
[13] (2008) 14 SCC 94
[14] (2009) 6 SCC 757
[15] (2009) 10 SCC 604
[16] (2009) 9 SCC 626
[17] (2010) 13 SCC 125
[18] (2013) 10 SCC 48
[19] (2014) 10 SCC 244
[20] (2010) 7 SCC 667
[21] (2014) 8 SCC 273
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