By Vijaya Mandal-
Home is a place which is supposed to provide safety, security and comfort. In cases of violence by strangers, a home provides a sense of protection. However, in a situation where a woman is abused within the home by those who are entrusted with the obligation to `protect’ her, she finds no escape.
Violence in homes therefore has devastating consequences for the survivors and obstructs their quality of life.[1] It becomes worse than custodial torture or a power rape situation where a perpetrator violently exhibits his power and authority continuously over a prolonged period from which a victim cannot easily escape. For a victim the trust within the relationship no longer exists and the word `home’ loses its meaning as it no longer remains safe.
Stringent laws have been made across the globe against the crime of violence within homes. In India it is in the late 1970s that women’s groups took to the streets to protest against dowry related murders and after much effort the Criminal Law (Second) Amendment Act 1983[2] introduced section 498A in the Indian Penal Code.
During the year 1978-79, a large number of young brides who failed to fulfill the demands for dowry made by their marital families were murdered.
The murder of 21 year old Shashibala in 1979 within a year of her marriage acted as a stimulus. Soon `dowry violence’ became a metaphor for describing cases of deaths of young women in their matrimonial homes, while also unmasking the internal dynamics and daily trauma of `traditional family life’. Wide media coverage gave a push to the campaign. Public protests against police apathy grew vehemently.
The campaign translated the assertion of `personal is political’. Public protests were held around shaming the families who demanded dowry, raising consciousness about dowry related violence and insisting that the police take strict action in such cases.
A private member[3] Bill was introduced to amend the Dowry Prohibition Act, 1961 and the matter was subsequently referred to a Joint Select Committee (JSC) of both the Houses of Parliament. By August 1982, the JSC presented its report to the Lok Sabha[4] . The Committee identified several deficiencies such as the narrow definition of dowry, procedural lapses in filing cases and lack of deterrent punishment.
The notorious murder of Sudha Goel[5] became a further point to rally when the High Court overturned the conviction of the husband, the mother in law and the brother in law.
ADVENT & NEED OF SECTION 498A IPC
The Criminal Law (Second) Amendment Bill was introduced as a package of measures to curb violence within the home. The then Minister of Home Affairs, Venkatasubbaiah introduced the Bill to `cover cases of cruelty on account of dowry or otherwise’ in recognition of ineffectiveness of the Dowry Prohibition Act, 1961.
During the debates there were members within the Parliament who argued that the legal provisions were inadequate and not punitive enough. Others opposed it on the basis of sacred notions of family while objecting to the critique of marriage. There were those who got worried because they perceived women as agents challenging the domestic hierarchy. While some demonstrated acceptance of feminist views, others treated the issue with pity seeing women as helpless victims[6].
The legislative debates conceptualized domestic abuse as a part of the wider phenomenon of violence against women while ignoring the specificity of wife beating[7]. Also, a few arguments linked domestic violence with the issue of dowry although the others focused on celebration of Indian culture putting women on a pedestal as mothers and projected their traditional stereotypical image rather than seeing them as citizens claiming their rights.
Yet, others reiterated the misogynist position that `women are women’s worst enemies’ while pitting mothers in laws against daughters in law. Some viewed domestic violence as a male versus female issue while others added a salacious tinge to the debate where the use of female sexuality was depicted as an instrument of social change while negating the question of women’s powerlessness within marriage[8]. It has been argued that in many such positions, violence is trivialized and normalized.
The concept of setting up shelter homes was not taken up seriously and any discussion on single woman facing violence within the family was ignored. Any existence of women apart from marital tie is considered as an anomaly in such arguments[9]. However, these debates do highlight the fact that domestic violence is not an episodic issue. Rather it relates to vulnerability of women in marriage.
Nonetheless, a consensus finally emerged and the Criminal Law (Second) Amendment Act, 1983[10] introduced Section 498A, 304B and added stringent punishments under Section 306 in the Indian Penal Code.
These provisions criminalized domestic violence, dowry deaths and abetment to suicide. Section 113(A) was introduced in the Indian Evidence Act, which states that if a woman commits suicide within seven years of marriage, and there was an evidence of cruelty prior to her death, her husband and in-laws would be held responsible for her murder unless evidence to the contrary is provided.
Furthermore, while passing the provisions under 498A, some of the members argued that the injury could only be reported by `the injured woman, or her relative by blood or by the public servant of such class and category as notified by the State government’[11]
After debate, Section 198A was added in the Criminal Procedure Code which states that “No Court shall take cognizance of an offence punishable section 498A of the Indian Penal Code except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or, with the leave of the Court, by any other person related to her by blood, marriage or adoption”[12]
Of these amendments, Section 498A, IPC is the only criminal provision that specifically addresses the situation of domestic violence or cruelty against a married woman within her matrimonial house.
Besides dealing with day to day violence, this provision is invoked before a woman dies in her marital home and therefore it also acts as a deterrent to dowry deaths. It is preventive in nature as compared to Section 304B which can be cited only after a woman dies in the matrimonial home because of demands made for dowry by the husband or her in-laws.
The purpose is to reduce the number of dowry deaths[13]. The law criminalizes cruelty in everyday lives of women and seeks certainty of legal response, thereby addressing age-old historical and social wrong. In the situation of powerlessness, it empowers women to voice their concerns relating to the pain, humiliation and torture they face in their daily lives. Prior to enactment of this law, violence within the home was not named.
The word `cruelty’ that has been introduced under the personal laws is more of a gender neutral term and it does not consider the situation of domestic violence as abuse of wife by husband or in-laws per se[14]. However, Section 498A provides visibility to violence which is private in nature and is influential enough to shake the age old belief that tolerating violence within marriage is women’s destiny.
After seeing the rampant nature and prevalence of reported cases for cruelty against women Section 498A was introduced in the year of 1983 for one side to protect society from crime against the women and other side to put matrimonial cruelty in penal code for making it more stringent to curb wife battering, dowry system which made society more polluted.
INGREDIENTS OF SECTION 498A IPC
Section 498 (A) is the only section in the Indian Penal Code, 1860, that recognizes domestic violence against women as a crime. Insertion of Section 498A was done with the idea of curbing cruelty against married women by her husband and in-laws and subsequent amendments were also made in the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1972 by the same amendment to effectively deal with cases of dowry deaths and cruelty to married women by the husband, in-laws and relatives.
In addition to the 498A, The Protection of Women from Domestic Violence Act, 2005, is also a linchpin to curtail the immoral and offensive practices against women. The complainant can apply for the reliefs under section 18-22 and interim reliefs can be obtained by the appellant under Section 21 of the Domestic Violence Act.
The basic essentials to attract Section 498A are:
- The woman must be married;
- She must be subjected to cruelty or harassment; and
- Such cruelty or harassment must have been inflicted either by the husband of the woman or by the relative of her husband.
A bare perusal of this section highlights that the word ‘cruelty’ covers the occurrence of the following act(s):
- Any wilful 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
- Harassment of the woman where such harassment is with a view to coercing 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.
MEANING OF CRUELTY
It was held in ‘Kaliyaperumal vs. State of Tamil Nadu[15]’, that cruelty is a common essential in offences under both the sections 304B and 498A of IPC. The two sections are not mutually inclusive but both are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC.
The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well. Under section 498-A of IPC cruelty by itself amounts to an offence whereas under section 304-B the offence is of dowry death and the death must have occurred during the course of seven years of marriage. But no such period is mentioned in section 498-A.
In the case of ‘Inder Raj Malik vs. Sunita Malik’[16] , it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.
OBJECTIVES BEHIND SECTION 498A
The main objective of this Section is to provide protection to the women who are being harassed by her husband and his relatives and also to protect those women who became victims of cruelty or abuse by the same. In 1980-82, there were quiet a feminist movement which were visible with very passionate activists.
The feminist movement demanded for the legislation which is comprehensive in nature on domestic violence. During the movement, one more incident happened that is Bhanwari Devi case. Because of all the movements and campaigns, a law was enacted which is known as Criminal Law (Second Amendment) Act, 1983 (46 of 1983) which amended Code of Criminal Procedure (1973), Indian Penal Code (1860), the Dowry Prohibition Act (1961) and The Indian Evidence Act, (1872) with the sole intention of preventing married women from the abuse, cruelty and harassment. The Bombay High Court in B.K.Moghe vs State of Maharashtra & others clearly outlined the intention and object behind enactment of Section 498A. It says that it is a matter of concern that social evil dowry despite being punished under The Dowry prohibition Act, 1961, has been increased.
MALIMATH COMMITTEE REPORT
The recommendations of the Malimath Committee on Criminal Justice Reforms (2003) suggested that Section 498-A should be made bailable and compoundable (the case can be withdrawn and settled by mutual agreement between the parties). It was observed by Justice Malimath that a less tolerant and impulsive women may lodge an FIR on trivial issues resulting in immediate arrest of husband and his family members.
Due to this stringent provision even innocent persons languish in custody as the offence is a non-bailable and there is suspension or loss of job. The report realizes and appreciates the difficulties in logistics, particularly when it applies to women who solely depend on alimony or maintenance from the husband.[17]
This report failed to address and gather the views and opinions of either victims of matrimonial cruelty or of interested stakeholders. It failed to address the concern of violence against women, much less any substantial explanation of Section 498A. The report had virtually no reference to substantiate the allegation of misuse of Section 498-A. Thus, the relevance of this report, particularly with reference to 498-A is questionable.
MISUSE OF SECTION 498A
The lawmakers designed and inserted section 498A into the legal framework with the idea of protecting women against cruelty, harassment, and other offensive. But when the cross investigations are performed to check the viability of these provisions, the number of acquittals was more in comparison to the convictions.
Therefore, one who has brought 498A into action envisaging it as a shield to the women against cruelty i.e., Supreme Court, is now considering it as legal terrorism. Because misuse of Section 498A is dwindling its actual credibility. That is one of the many reasons behind calling it an anti-male law.
There have been instances when the section has been violated by women making frivolous allegations against their husbands and his family with the aim of getting rid of the husband or the family and to bring shame and condemnation in the public eye.
The women who are aware of the nature of this offence being both cognizable and non-bailable, misuse it to ensure that the husbands and their families are put behind bars as soon as the complaint filed by the woman. The Apex Court as well as various High Courts have taken notice of this allegation. Similarly, the Parliamentary Committee on Petitions (Rajya Sabha) have taken note of this issue.
Though there are widespread complaints and even the judiciary has taken cognizance of large scale misuse, there is no reliable data based on the empirical study as regards the extent of the alleged misuse.
The Supreme Court of India in Preeti Gupta V. State of Jharkhand[18], observed that a serious relook of the provision is warranted by the Legislature and said: “It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints”.
Due to false accusations and immoral exercising of section 498A, the innocent, i.e. husband and his family have to suffer exponentially. During this period of suffering and ignominies, some of the men give up and commit suicide. Here the law has to exercise the power in a righteous manner with thorough investigation and cross-examination of the whole matter.
The Hon’ble Delhi High Court in Chandra Bhan V. State[19] introduced steps to be followed to avoid the Misuse of Section 498A of IPC which are:
- FIR should not be registered in a routine manner.
- The endeavor of the police should be to scrutinize complaints carefully and then register FIR.
- No case under section 498-A/406 IPC should be registered without the prior approval of DCP/Addl. DCP.
- Before the registration of FIR, all possible efforts should be made for reconciliation and in case it is found that there is no possibility of settlement, then, necessary steps should, in the first instance, be taken to ensure the return of stridhan and dowry articles to the complainant.
- The arrest of the main accused should be made only after thorough investigation has been conducted and with the prior approval of the ACP/DCP.
- In the case of collateral accused such as in-laws, prior approval of DCP should be there on the file.
LAW COMMISSION REPORT ON MISUSE OF SECTION 498A
The Law Commission of India made an exhaustive examination of Section 498-A via its Report No. 243[20]. The Commission had pursued the matter of researching and analysing the said subject in pursuance of the Home Ministry and considering the observations made by the Hon’ble Supreme Court in Preeti Gupta’s case[21] in the wake of complaints of misuse of the Section.[22]
The Report also emphasized on the State’s obligation to take care of estranged women in distress. The report stated that sufficient attention should be bestowed by the states and Union Territories in giving required aid and assistance to the hapless women who having gone to the Police Station with a genuine grievance and in a state of distress do not venture to go back to marital home or even unable to stay with relatives. The report highlighted the grim status of women, particularly of those who have no support system and are forced to fight a lone battle.
The Commission made a comprehensive inquiry into the said matter and made certain recommendations wherein one of various recommendation is on misuse of Section 498A. Misuse of said provision in many cases has been judicially noticed by the apex court as well as various High Courts.
This has also been taken note of by Parliamentary Committee on Petitions (Rajya Sabha). However, misuse (the extent of which is not established by any empirical study) by itself is not a ground to abolish Section 498-A or to denude the Section of its teeth. The social objective behind the Section and the need for deterrence should be kept in view while at the same time ensuring that the complaints filed with false or exaggerated allegations out of ulterior motives or in a fit of emotion should be curbed.
Furthermore, there is a need for medical attention, housing, counselling services, crisis centres attached to Women Police stations to be afforded to women in such times of distress. The report stated at present, even in cities, there is no facilities available to such women, there are no Hostels and Shelter Homes worth mentioning which are catering to the welfare of victimized women.
The Commission accentuated on the accountability of the state to meet the needs of victimized women and provide them the requisite assistance, cooperation and support. The report stated that, the States should consider this problem on a priority basis and initiate necessary steps to alleviate the suffering of women in need of help as a part of the welfare goal ingrained in our Constitution.
SUPREME COURT ON MISUSE OF SECTION 498A
In Rajesh Sharma and others vs. State of Uttar Pradesh[23], the Supreme Court of India has issued a set of directives related to the application of Section 498-A of the Indian Penal Code (I.P.C.), with a view to prevent the misuse of this provision in cases filed under it.
There is a precedence for this ruling in Arnesh Kumar vs. State of Bihar & Anr.,[24] where the SC ruled that arrests should not to be made under this section in “a routine, casual or cavalier manner” because it concerns a non-bailable and cognizable offence.
A two Judge Bench of Justices AK Goel and UU Lalit observed that the noble purpose of Section 498-A is to ensure that cruelty in the hands of the husband or his relatives against the wife is addressed at the earliest to prevent such cruelty from escalating to a situation of suicide or murder of a woman. It also expressed concern on the misuse of the Section by disgruntled wives as a tool to harass and humiliate the husband and his families. To this end, the court has defined specific guidelines for the police and other law-enforcing authorities to follow while dealing with cases filed under I.P.C.498-A.
The Hon’ble Supreme Court of India in its recent judgment of Social Action Forum for Manav Adhikar and Another v Union of India Ministry of Law and Justice and Others[25] revisited the important issue relating to Section 498-A. In Social Action Forum for Manav Adhikar and Another, the judgment of Rajesh Sharma and others v. State of U.P. and another[26] passed by the Hon’ble Supreme Court came in question.
In the Rajesh Sharma judgment, the Hon’ble Supreme Court, in order to prevent misuse of S. 498-A, gave a number of directions. In Social Action Forum for Manav Adhikar and Another, the Hon’ble Supreme Court examined whether the Court in Rajesh Sharma could, by the method of interpretation, have issued above such directions. With due deliberations, the Hon’ble Supreme Court was pleased to modify the directions issued in Rajesh Sharma case.
With respect to the constitution of Family Welfare Committee, the Hon’ble Supreme Court has ruled that constitution of the Family Welfare Committees by the District Legal Services Authorities and the prescription of duties of the Committees and further action thereof are beyond the IPC and the same does not really flow from any provision of the IPC and have nothing to do with the IPC. Accordingly, the same was impermissible.
However, the Court issued direction to the officers investigating under S 498-A to be careful and be guided by the principles propounded in the landmark Supreme Court judgments of Joginder Kumar v. State of U.P and others[27], D.K. Basu v. State of W.B[28], Lalita Kumari v. Government of Uttar Pradesh and others[29] and Arnesh Kumar v. State of Bihar and another[30].
With respect to the directions regarding clubbing of “appearance of all family members and outstation members by video conferencing”, the Court directed that an application could be filed either under Section 205 or Section 317 of Criminal Procedure Code depending upon the stage at which the exemption is sought.
The Hon’ble Supreme Court therefore, found that some of the directions given in the Rajesh Sharma case had potentially entered into the legislative field. Keeping this in mind, the Hon’ble Supreme Court undertook a re-examination of the directions and only retained the ones that find their bedrock within the Indian Penal Code and in doing so propounded a more balanced approach towards the application of section 498A.
[1] Nigam S (2008) Domestic Violence in India: What One Should Know? We the People Trust, India
[2] In its statement of objects and reasons it says that, “Cases of cruelty by husband and relatives of husbands which culminates in suicide by, or murder of the helpless women concerned, constitute only a small fraction of the cases involving such cruelty”
[3] Smt. Pramila Dandvate introduced a Bill to amend the dowry law in the year 1980
[4] Chaired by Smt Krishna Sahi
[5] State v Lakshman Kumar AIR 1986 SC 250, The Supreme Court ultimately held the accused husband and mother in law guilty. Some of the other cases too raised similar concerns. Jethmalani Rani and PK Dey (1995) Dowry Deaths and Access to Justice in Empowerment, Laws and Dowry Death: Kali’s Yug Har-Anand, New Delhi
[6] Lok Sabha Debates 1983 Vol. 42 n. 1 dated 15th July 447
[7] Lok Sabha Debates 1982 Vol. 30 n. 1 p 305-06
[8] Lok Sabha Debates 1984 Vol 45 April 5 279. (Shri Moil Chand Dada stated, “You women influence men at night, you can persuade them to do anything”). (Translated from Hindi)
[9] Gangoli Geetanjali (2007) Indian Feminism: Laws, Patriarchies and Violence in India, Ashgate UK
[10] 46 of 1983 with effect from 25th December 1983 amended the IPC, the CrPC and the Indian Evidence Act
[11] 7 This stand was criticized by the MP Susheela Gopalan who argued that the women’s organizations play a crucial role in assisting victims. Refer Lok Sabha Debates 1983, Vol. 4 n. 1 21 November 431
[12] The Criminal Procedure Code, 1973, Section 198A, Prosecution of offences under section 498A of the IPC
[13] Jaising Indira (2014) Concern for the Dead Condemnation for the Living, EPW XLIX 30 July 26 p. 34-36
[14] 4 SCC511, Ravi Kumar v Julmidevi (2010) 4 SCC476 among others
[15] 2004 (9) SCC 157; 2004 SCC(Cr) 1417; 2003 AIR(SC) 3828
[16] 1986 (2) Crimes 435; 1986 (92) CRLJ 1510; 1986 RLR 220
[17] Shankar Gopalakrishnan, Recommendations of the Malimath Committee on Reforms of Criminal Justice System, People’s Union for Civil Liberties (Tamil Nadu & Pondicherry)
[18] AIR 2010 SC 2012, decided on 13/08/2010
[19] Order dated 4.8.2008 in Bail application No.1627/2008
[20] Justice P.V. Reddi, Former Judge, Supreme Court of India, Chairman, LAW COMMISSION OF INDIA, Section 498A I.P.C., Report No.243, AUGUST 2012
[21] Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363
[22] Id. The Court directed the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law & Justice to take appropriate steps in the larger interest of the society.
[23] Criminal Appeal No. 1265 of 2017, AIR 2017 SC 3869
[24] Criminal Appeal No. 1277 of 2014 (@Special Leave Petition (CRL.) No.9127 of 2013
[25] Writ Petition (Criminal) No. 156 of 2017: Judgment Delivered on 14.09.2018
[26] AIR 2017 SC 3869
[27] (1994) 4 SCC 260
[28] (1997) 1 SCC 416
[29] (2014) 2 SCC 1
[30] (2014) 8 SCC 273