It was in the year 1983 when section 498A IPC was introduced and made a statute with the objective to protect married women from being subjected to cruelty by the husband or his relatives. The provision provides for a punishment which may extend to 3 years and also fine. It is important to note that the word cruelty has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of a woman and also includes harassment of a woman with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. However, it is important to note that every harassment does not amount to cruelty within the meaning of Section 498-A. For the purpose of Section 498-A, harassment simpliciter is not “cruelty” and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to “cruelty” punishable under Section 498-A IPC as observed by Supreme Court in State of A.P. vs. M. Madhusudan Rao.
Further discussing about the expression cruelty, it can either be mental or physical. It is difficult to lay down a straitjacket concept for the term cruelty by means of a definition because cruelty is a relative term. What constitutes cruelty for one person may not constitute cruelty for another person as observed by Supreme Court in G.V. Siddaramesh vs. State of Karnataka. Harassment for dowry falls within the second part of this section. It is also to be noted that creating such a situation which drives a woman to commit suicide is also one of the ingredients of ‘cruelty’. The offence under Section 498A IPC is cognizable, non-compoundable and non-bailable.
The Supreme Court in numerous pronouncements had observed that a serious review and re-evaluation of the provision of Section 498A IPC is warranted by the Legislature in the present time. It is a matter of common knowledge and experience that exaggerated versions of the incidents are reflected in a large number of complaints which in a manner dilutes the legislative intent behind incorporating the provision. The tendency of over-implication is also reflected in a very large number of cases. The Supreme Court on various occasion took note of the common tendency to implicate husband and all his immediate relations. In the matter of Sushil Kumar Sharma vs. Union of India, the Supreme Court lamented that in many instances, complaints under Section 498A IPC were being filed with an oblique motive to wreck personal vendetta. It was also observed by the Supreme Court that it has therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Further it was observed that by misuse of the provision, a new legal terrorism can be unleashed.
The Supreme Court of India in Preeti Gupta vs. State of Jharkhand, observed that a serious relook of the provision is warranted by the Legislature. Recently Punjab and Haryana High Court in Amarjit Kaur & ors. Vs. Jaswinder Kaur & ors alsoobserved that “it has become a common practice to use the provisions of Section 498- A IPC as a weapon rather than shield by disgruntled wives”. The court further observed that, “The simplest way to harass is to get the relatives of the husband roped in under this provision, no matter they are bed ridden grandparents of the husband or the relatives living abroad for decades”.
Recently, the Supreme Court in Arnesh Kumar vs. State of Biharin an endeavor to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically in cases under Section 498-A IPC, the Court gave certain directions (however, the directions apply also to other cases where offence is punishable with imprisonment of not more than seven years) which include that police officers not to automatically arrest the accused when a case under 498-A IPC is registered. They should satisfy themselves about the necessity of arrest under parameters flowing from Section 41 Criminal Procedure Code 1973.
Further police officers shall fill the checklist (containing specified sub-clauses under Section 41(1)(b)(ii) Criminal Procedure Code 1973) and furnish the reasons and material necessitating the arrest. Specific directions have been issued by the Supreme Court that the Magistrate would authorize detention only after recording its satisfaction on the report furnished by the police officers. It had been further directed that if the police officers fail to comply with the directions, they would be liable for departmental action as well as punishment for contempt of Court. Further specific directions have been issued by the Supreme Court to the effect that failure of the Judicial Magistrate to comply with the directions would render him liable for departmental action by the appropriate High Court. These directions have to be followed in its true letter and spirit.
Thereafter, in Rajesh Sharma vs. State of Uttar Pradesh again Supreme Court gave directions to prevent misuse of Section 498-A IPC which were further modified in Social Action Forum for Manav Adhikar vs. Union of India. These directions include that the complaints under Section 498-A and other connected offences may be investigated only by a designated Investigating Officer of the area. If a settlement is reached between the parties, it is open to the parties to approach the High Court under Section 482 Criminal Procedure Code 1973 seeking quashing of proceedings or any other order. If a bail application is filed with at least one day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. It was further observed that recovery of disputed dowry items may not, by itself, be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Further in respect of persons ordinarily residing out of India orders or directions for impounding of passports or issuance of Red Corner Notice should not be made in a routine manner except special reasons arises and such reasons to be recorded in writing. These directions would not apply in case of tangible physical injuries or death. These directions have to be followed in its true letter and spirit.
Now if we talk about the other aspect of the matter which relates to the remedies or recourse available to a woman who has been a victim of cruelty and harassment by husband or his family members. Since women are part of vulnerable section of the society hence legislations like Protection of Women from Domestic Violence Act and provisions of Section 498A IPC have been engrafted with the purpose and intent for the protection of women from such act of cruelty and harassment. Further the provisions like Section 125 Criminal Procedure Code 1973 and enabling provisions under Hindu Marriage Act and Domestic Violence Act are also engrafted to give social and economic security to such women and also to the child born out of the wedlock. The basic thrust behind the analogy of maintaining the status quo of the provision of Section 489A IPC is the social purpose behind legislating such provision which will be lost if the rigor of the provision is diluted. The abuse or misuse of law is not peculiar to this provision. The misuse of the provision of law can however be curtailed and countered within the existing framework of law.
At the very outset derailing or diluting the provision of Section 498A IPC altogether by making the offence compoundable or Bailable one, would also be prejudicial in the interest of large society of women suffering with mental or physical cruelty and harassment and it would result into shielding a scrupulous wrongdoer and at the same time removing the umbrella of social and legal protection accorded by law to such victims. However, the fact of false implication by imputing allegations and more importantly such imputed allegations being exaggerated in nature and far away from correct facts cannot be lost sight also by the law framers or review committee.
The fact that Section 498A IPC deals with a domestic problem and a condition of marital inharmoniousness unlike the other crimes against society at large, cannot be overlooked. It does not however mean that the grievance of the complainant woman should not be dealt with compassion and in empathetic manner. Section 498A IPC has social purpose to serve and it should continue as a beneficial legislation to protect the interest of victim whenever the occasion arises. Its object and purpose cannot be deadened by overstressing its potentiality for abuse or misuse. Misuse of the provisions by itself cannot be a ground to repeal it or to mollify the rigor of the provision. However, at the same time frivolous complaints and the scourge of over-implication with exaggerated allegations has to be countered and discouraged. A composed and holistic assessment has to be taken on evaluating and balancing the pros and cons. There is no doubt in the present social scenario, the misuse situations have to be addressed and efforts should be made to arrive at a rational solution through legislative process or otherwise.
Another fact which has to be taken note that Supreme Court has recognized the legality of the couples in a live-in relationship for a substantive period of time without the factum of marriage and observed that lady partner is entitled to claim maintenance under the statutory laws and the child born out of such live-in relationship would be a legitimate child. So now once the highest constitutional court of the country accords legal sanctity to such Live-in Partners and their rights, duty and obligations have been recognized under the statute hence in such times the provisions of Section 498A IPC need to be relooked and re-examined in context and parlance of present social status of the society.
Thus, the time demands to create awareness of the provisions and there should be widespread and well-organized campaign to spread consciousness and mindfulness in most diversified manner. Presently, the endeavor in this direction is quite minimal. Further there is a versatile opinion that the lawyers whom the aggrieved women or their relatives approach in the first instance should act in a more responsible manner and give appropriate advice consistent with the real problem diagnosed and make efforts to mediate and settle the disputes protecting the interest of the victim as paramount consideration. Exaggerated and imputed allegations and unnecessary implication of husband and his family members should be scrupulously avoided. The sensitivity of cases should be ascertained by legal professionals and also by police officers and hence efforts should be made to provide correct advice by legal professionals. Further the sensitivity of the Police officials dealing with the cases are very important, and if these are in place, undoubtedly, the law will not take a devious path. Further the scheme of mediation process which is prevalent at District level situated in the District and Family Courts and also full-fledged mediation centers operates at High Courts also. A more comprehensive and dynamic approach has to be adopted towards facilitating a better atmosphere and ambience to the parties to dispute to have a recourse towards mediation process in a more comfortable manner.
Preferred Citation: Taandon, A., “A Discussion on Section 498A in Present Social Scenario” The Law Culture (2020)