Gone are the days when only married women and their parents had to face several problems due to some evil traditions like dowry etc. Parliament of India has enacted several legislations to uplift and empower the women and punish the people who are wrongdoer. However, these laws have brought misery and tears in the eyes of many people from the husband’s side because of their biased nature. Words of woman are considered gospel truth and immediate arrest of husband and his parents, sisters, brothers, grandparents has taken place many times. All of them had to get bail by going to the courts. IPC Section 498A isn’t an ordinary law. It is criminal law and enforcement agencies should be sensitive and careful when dealing with matrimonial disputes.
Much has been already said and written about rampant abuse of IPC section 498A. Supreme Court of India had described misuse of IPC section 498A as “legal terrorism”. Politicians, bureaucrats, ministers and members of judiciary know that section 498A of IPC is being grossly misused. Law commission of India has also published reports about this section and suggested some changes. However, government of India has been showing reluctance to bring a single change into these legal provisions. Politicians want to score brownie points in the name of so called “Woman empowerment”. They don’t want to appear as anti woman and misogynist. Lobby of feminists and woman’s organisations want to maintain status quo.
Other day I came across one judgement which was given by Delhi High Court regarding rampant abuse of section 498A of IPC. It is a judicially recognized fact that there is tendency of many unscrupulous women and their parents to falsely implicate the husband, his parents and also other relatives when things go wrong in a marriage.
Details Of The Case
Charges under IPC section 406 for misappropriation of dowry articles and stridhan (ornaments given to wife) were framed against husband, father-in-law, brothers-in-law and sister-in-law (wife of one of the brothers of her husband) and unmarried sister-in-law were discharged and charge for the offence under section 498A was framed against the husband and father-in-law alone. According to wife, every member of the family should have been subjected to trial for both the criminal offences under section 498A as well as section 406 of IPC.
The woman had alleged that her father in law, her husband and the brother in law didn’t like the dowry items and expressed their unhappiness that they weren’t given a Hero Honda bike and cash amounting of Rs 50 thousand. The lady also alleged that her brother-in-law and his wife along with sister of her husband did not like the clothes given for them and elder brother also criticised that if Sanjay (husband) had married her younger sister then he would have got more dowry. The main accusations of harassment were against the husband and father-in-law.
The primary contention of the wife was that non acceptance of the gifts by husband’s relatives and others tantamount to harassment and cruelty as defined in the section 498A of IPC.
What did the Delhi High Court say in its 2003 Judgement?
It is apparent, neither every cruelty nor every harassment has element of criminal culpability for the purposes of section 498A of IPC. Delhi High Court referred to the judgement of Supreme Court of India in V Bhagat v. Mrs. D. Bhagat in which definition of mental cruelty was laid down. Mental cruelty can be broadly defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for the party to live with the other. In other words mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put with such conduct and continue to live with the other party. It is not necessary to
prove that the mental cruelty is such as to cause injury to the health of the petitioner.
High Court said that Ingredients of cruelty as contemplated under Section 498A are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage i.e. Divorce. In constituting cruelty contemplated by Section 498A IPC the acts or conduct should be either such that may cause danger to life; limb or health or cause grave injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be willful; i.e intentional. So to invoke provisions of IPC section 498A the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb or physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and wilful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed up with marital life.
The word harassment in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to coerce any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to harassment as contemplated by Section 498A.
Only accusation against the respondents is that they did not like the clothes brought by the petitioner as customary gifts for relatives of the husband. One of the sisters- in-law remarked that had the marriage taken place with her sister, more dowry would have been received. These allegations when tested on the anvil of aforesaid tests, do not make out a case of either cruelty or harassment as contemplated by Section 498A of IPC. Non-acceptance of gifts might have hurt her feelings and other remarks might have been unkindly and incisive but by no stretch of imagination, such a conduct involves any of the ingredients of either offence under Section 498A IPC or 406 IPC.
Neither such an act or conduct has the effect of driving the woman to commit suicide nor of causing grave injury nor, is likely to cause danger to life or limb nor did it amount to tormenting her either physically or mentally to compel or force her or her relatives to fulfil the demands of any property or valuable security. For the foregoing reasons, the petition is highly misconceived and is being used as a tool to hold the entire household to ransom and jeopardy. Petition is dismissed.
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Unfortunately these provisions have been abused by the Investigating and Prosecuting Agencies and exploited by the women and their relatives to such an extent that these have proved to be most ineffective in curbing the evil of dowry as well as disciplining the husband and his relatives to treat the woman in human and humane manner and give the bride or wife proper respect and honour.
High Court judge said that before parting, he feels constrained to comment upon the misuse of the provisions of Section 498A/406 of IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large. To leave such a ticklish and complex aspect of
proposition as to what constitutes marital cruelty and harassment to invoke the offences punishable under Sections 498A/406 of IPC to a lower functionaries of police like Sub Inspectors or Inspectors whereas sometimes even courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and unskilled masters. Court said that their experience isn’t so happy nor is implementation or enforcement of these laws is anything but satisfactory or punctilious in several cases.
These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counterproductive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative-including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to 15 or even more relatives of the husband.
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Once a complaint is lodged under Sections 498A/406 of IPC whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out.
It was primarily a social problem and social evil but has been allowed to be dealt with iron and heavy hands of the police. These provisions have tendency to destroy whole social fabric as power to arrest anybody by extending or determining the definition of harassment or cruelty vests with the lower police functionaries and not with officers of higher rank who have intellectual capacity to deal with the subject.
For ages cruelty, desertion and adultery have been ground for divorce which were to be proved in civil courts. Now the police and that too its lower functionaries are given the decision making authority to conclude whether the harassment or the cruelty as brought out in the statement of the complainant wife is sufficient to
put all the relatives including school going minor brothers and sisters of the husband behind the bar. Such was neither the intention nor the object of the legislation.
It is rightly said sometimes the remedies are worse than the perils or disease. Having seen and experienced the enforcement of these 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. In one metropolis alone, thousands divorce cases arising from the cases under Section 498A/406 of IPC are pending in Courts. There are equal or more number of marriages which are in limbo. What else is it if not a social catastrophe? This should be a matter of concern for social scientists, law-makers and Judges as well.
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Sterner provisions have failed to make any dent. Menace and evil of dowry is still looming large and sections of society are still boldly pursuing this chronic evil to fulfil their greedy desires. It does not mean that the wolves masquerading in the human flesh should be given a free hand. They should rather be dealt with iron hand. Again it is because of tendency to involve innocent persons that the Supreme Court has cautioned the courts to act with circumspection. In the words of Supreme Court, innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the court to separate such individuals from the offenders. Hence the courts have to deal such cases with circumspection, sift through the evidence with caution and scrutinise the circumstances with utmost care.
Delhi High Court said that marital offences under Section 498A/406 IPC be made bailable, if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hatchet they have buried should be allowed to be dug up and mar their present life or future married life.
Lastly Delhi High Court said that in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law as it stands today it is required that the investigation into these offences be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken.
Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under section 498A/406 IPC, DCP for the offence under section 304B IPC i.e dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and further proceedings. Their arrests ruin their future life and lower them in their self esteem. This court has even dealt with the bail applications and prosecution of children merely for the fact that their names also figured in the complaint lodged by the wife. In certain cases even grand-parents of the husband who are in their eighties nineties and suffer this traumatic situation.
There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.
About The Author
The writer blogs by the name of Pravasi Meet. You may reach him at [email protected]
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