On August 13, a Bench of the Supreme Court comprising Justice Dalveer Bhandari and Justice KS Radhakrishnan called for serious re-look at the provision of Section 498A IPC (Relating to cruelty by husband or relatives of husband). Expressing serious concern over rapid increase in matrimonial litigation, the Court said most of complaints under this provision are filed in the heat of moment over trivial issues without proper deliberations.
The Apex Court even reminded the learned members of the Bar that as they owe enormous social responsibility and obligation for ensuring social fiber of family life, they ought not to advise presentation of exaggerated versions of small incidents so that ever growing tendency of one complaint giving rise to multiple cases could be curbed. Treating every complaint under 498A as basic human problem, the advocates must make serious endeavour to help the parties in arriving at an amicable solution.
Mere lodging a complaint by a married woman even based on conflicts with husbands on trivial matters (not distantly relating to dowry demand) gets the police machinery into action quickly and all accused are put behind Bars; even young kids and close relatives are not spared sometimes.
Justice Bhandari, writing the judgment also observed that it is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities and make necessary changes in the relevant provisions of law. It even directed the Registry of the Court to send a copy of this judgment to the Law Commission and Union Law Ministry to take appropriate steps in the larger interest of the society.
Section 498A was inserted in the Indian Penal Code by the Criminal Law (Second Amendment) Act, 1883 along with relevant amendments in the Code of Criminal Procedure and the Indian Evidence Act. In addition to being cognizable, nonbailable as well as noncompoundable, it prescribes a maximum sentence of three years and fine.
It was owing to everincreasing evil of dowry-deaths in the country that the need was felt for inserting these stringent provisions in substantive and procedural criminal law which tend to deal effectively with sordid incidents of marital cruelty on hapless and helpless wives. But in recent years, a large chunk of frivolous cases by women have, in fact, made their husbands and other in-laws victims of Section 498A. Mere lodging a complaint by a married woman even based on conflicts with husbands on trivial matters (not distantly relating to dowry demand) gets the police machinery into action quickly and all accused are put behind Bars; even young kids and close relatives are not spared sometimes.
NRI husbands are at a further disadvantage in this scenario. There are thousands of cases of NRI grooms who have been cheated, defrauded, hounded and extorted by Indian brides who manipulate this pro-women law for vested interests. Such is the magnitude of the problem that a travel advisory was issued by the US Department of State in 2005 which says— A number of US citizen men who have come to India to marry Indian women have been charged with crimes related to dowry extractions. Many of the charges stem from US citizen’s inability to provide an immigrant visa for his prospective spouse to travel immediately to US.
In one of his significant judgments delivered in May, 2003 Justice JD Kapoor, the then Judge of Delhi High Court opined 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.
In July, 2005 a Bench of the Supreme Court comprising Justice Arijit Pasayat and Justice HK Sema ( both since retired) upheld the constitutional validity of Section 498A. Justice Pasayat, writing the judgment held that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless a contrary is proved, that administration and application of a particular law would be done, “not with an evil eye and unequal hand”. In such cases, action and not the section may be vulnerable.
However, it was also ruled that merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta. By misuse of the provision, a new “Legal Terrorism” can be unleashed. The Court also called upon the Legislature to find out ways of dealing with those who made frivolous complaints or allegations.
Pertinent to mention that in December, 2009, Dr. M Veerappa Moily , Union Minister for Law and Justice admitted in Lok Sabha that a number of representations have been received from various quarters regarding the misuse of the provision of Section 498A of IPC. Information regarding its misuse is not collected by National Crime Records Bureau. He said that the matter has been referred to the Law Commission of India to study the use of the provision of this section and hold consultation and suggest amendments, if any, to the provision.
While adopting the Criminal Law(Amendment) Bill, 2003 in Rajya Sabha during December, 2005 , the UPA Government adopted an amendment moved by CPI (M) member Brinda Karat on Section 498A to continue as “non-bailable and noncompoundable”. Earlier, based on the Malimath panel recommendation, the Government had considered making offences under this section “bailable and compoundable.” Even a Parliamentary Committee then headed by Sushma Swaraj had supported the government’s initiative.
In order to lay to rest the allegations of misuse of Section 498A IPC, the Ministry of Home Affairs in consultation with the Ministry of Women & Child Development has issued an Advisory to all the State Governments and UT Administrations
In the just-concluded monsoon session of the Parliament, Krishna Tirath, Union Minister of State for Women and Child Development informed the Rajya Sabha that some complaints/ representations a l l e g i n g misuse of D o w r y Prohibition Act, 1961 have been received. These mainly relate to alleged harassment of husband and other family members using Section 498A of IPC. A few suggestions were also received for the amendment of such legal provisions.
In order to lay to rest the allegations of misuse of Section 498A IPC, the Ministry of Home Affairs in consultation with the Ministry of Women & Child Development has issued an Advisory to all the State Governments and UT Administrations laying down that in cases of matrimonial disputes, the first recourse should be to effect conciliation and mediation between the warring spouses and their families and recourse to filing charges under Section 498A IPC may be resorted to only when such conciliation fails and where there appears a prima facie case under Section 498A and other laws. But merely an Advisory is not enough for policemen who hound arrests of all accused named in a complaint. Nevertheless, a 2007 Standing Order by the Police Commissioner of Delhi mandating that arrests in all such cases be made with prior written approval of DCP merits emulation by other States.
At the outset, we may conclude that suitable amendment in Section 498A IPC brooks no delay. Of course, the provision ought not to be so diluted as to defeat the basic purpose behind its enactment and inclusion in IPC. After all, the menace of dowry harassment is still looming large. Every other day we read and watch numerous such cases from every nook and corner of the country. These must be dealt with iron hand. What is needed is checking the framing of innocent and hapless persons by the women for settling scores, with ulterior motive and vested interests under the guise of dowry harassment and marital cruelty.
We also have Protection of Women from Domestic Violence Act, 2005 not only for married women but also for women under “domestic relationship”, hence it is imperative to assess hitherto the working of Section 498A, which of late has been (mis)used by certain wives for harassing husbands and their relatives.
Firstly, Section 498A IPC needs to be made “Compoundable” of course, with the “permission of the court”. Though the section is currently listed as “noncompoundable” in Section 320 CrPC, the Supreme Court has ruled that High Courts in exercise of inherent powers can even allow compounding of an offence in appropriate cases. Although at the same time the Apex Court has also laid down that in absence of express provision in a statute providing for compounding of an offence, the courts can not order so. Amidst all this, different High Courts have been taking contrary stands. Only by inserting clear-cut language for compounding in Section 498A IPC, such ambiguity can be resolved.
Different High Courts have been taking contrary stands. Only by inserting clear-cut language for compounding in Section 498A IPC, such ambiguity can be resolved.
Regarding the classifying of the section as “Bailable”, the latest amendment in CrPC relating to arrest procedure might suffice as it provides that a police officer may not make arrest of a person accused of an offence where seven years imprisonment is provided ( in Section 498A, it is three years) and in lieu issue a notice of appearance to such person for joining/cooperating in investigation. Nevertheless, such police officer has to mandatorily record reasons for his decision of making/not making any arrest in such cases. Hence, arbitrary exercise of police power to make arrests under this law has been curtailed to a considerable extent. Though the section is also “Cognizable (arrest without warrant)”, if the arrest is not considered essential as explained above, there is virtually no need of making it “non-cognizable”.
Last but not the least, before carrying out any amendment in text and consequential implementation of this provision, the prevalent police investigation methodology needs suitable overhaul so as to ensure that each reported incident is dealt meticulously with the quest for ascertaining truth and bringing the real culprits to book including those who have tried to misuse the law by making concocted, frivolous or vague complaint(s).