To start with first we have to look that what this word marriage means. ‘Marriage is the voluntary union for life of one man and one woman to the exclusion of all others.’ It is a social institution where a husband has the responsibility to take care of and maintain his wife. He cannot neglect his duties. But at this great institution, a stigma called ‘dowry’ still exists. Women are ill-treated, harassed, killed, divorced for the simple reason that they didn’t bring dowry.
For safeguarding the interest of woman against the interest of woman against the cruelty they face behind the four walls of their matrimonial home, the Indian Penal Code,1860(hereinafter referred to as I.P.C.) was amended in 1983 and inserted S.498A which deals with ‘Matrimonial Cruelty’ to a woman.
ABOUT SECTION 498-A
Chapter 20-A, IPC, having only one section was introduced in the IPC in 1983 in order to curb cruelty and domestic violence against married women. Section 498-A, IPC deals with the cases wherein a woman is subjected to cruelty or harassment, perpetrated either by the husband or husband’s relatives. Cruelty in simple terms means a state of conduct which is painful and disserting to another; harassment is the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. Not the only husband can be held liable for cruelty but also the relatives can be held liable in case of cruelty or harassment.
Section 498A is read as follows:-
[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 pun-ished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) 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
(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.] i
Section 113-A of Indian Evidence Act, 1872 is read as follows:
[113A. Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.1
[113A. Presumption as to abetment of suicide by a married woman.—When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.” Explanation.—For the purposes of this section, “cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).] ii
Section 498-A, IPC was inserted as an independent Chapter with effect from 25 December 1983 by the Criminal Law (Second Amendment) Act, 1983. The amending Act also added Section 113-A to the Indian Evidence Act, 1872, in order to raise the presumption regarding abetment of suicide. The object behind inserting this chapter was to punish the husband and relative(s) of the husband who tortures the wife in order to coerce her or her relative(s) to satisfy any unlawful demands or to drive her to commit suicide.
It is very much relevant to point out at this conjuncture that Hon’ble Supreme Court observed in the case of B.S. Joshi v. State of Haryana iii, the object of introducing Chapter 20-A, in IPC to prevent torture to a woman by her husband or the relatives of the husband.
MEANING OF CRUELTY
It was held in ‘Kaliyaperumal v. State of Tamil Nadu’ iv, 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 v. Sunita Malik ’ v , 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 coercing her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.
Kinds of cruelty covered under this section include the following:
• Cruelty by vexatious litigation
• Cruelty by deprivation and wasteful habits
• Cruelty by persistent demand
• Cruelty by extra-marital relations
• Harassment for non-dowry demand
• Cruelty by non-acceptance of a baby girl
• Cruelty by false attacks on chastity
• Taking away children
The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had an illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A.
CONSTITUTION VALIDITY OF SECTION 498-A
In ‘Inder Raj Malik and others v. Mrs Sumita Malik ’vi, it was contended that this section is ultra vires Article 14 and Article 20 (2) of the Constitution. There is the Dowry Prohibition Act which also deals with similar types of cases; therefore, both statutes together create a situation commonly known as double jeopardy. But Delhi High Court negatives this contention and held that this section does not create a situation for double jeopardy. Section 498-A is distinguishable from section 4 of the Dowry Prohibition Act because in the latter mere demand of dowry is punishable and the existence of the element of cruelty is not necessary, whereas section 498-A deals with an aggravated form of the offence. It punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty to her. Hence a person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and this section.
This section gives wide discretion to the courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishment. This provision is not ultra vires. It does not confer arbitrary powers on courts.
In the leading case of ‘Wazir Chand v. State of Haryana ’vii, involving the death by burning of a newly married woman, the circumstances did not establish either murder or an abetted suicide and thus in-laws escaped the jaws of section 300 and 306, but they were caught in the web of this newly enacted section for prevention of harassment for dowry. Not to speak of the things they are persistently demanding from the girl’s side, the fact that a large number of articles were taken by her father after her death from her matrimonial abode showed that there was pressure being exerted on-in laws and continued to be exerted till death for more money and articles.
With the rise in modernization, education, financial security and the newfound independence the radical feminist have made 498A a weapon in her hands. Many hapless husbands and in-laws have become victims of their vengeful daughters-in-law. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage. In most cases, 498A complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court dowry.”
GUIDELINES INCORPORATED IN THE CRIMINAL PROCEDURE CODE,1973
Section 174 Cr.P.C specially empowers the police officers to make an investigation into cases of suicides and other unnatural or suspicious deaths. The object of the proceeding is merely to ascertain whether a person has died under suspicious circumstances or had an unnatural death and if so, what is the apparent cause of the death.
Section 174 (3) gives discretion to a police officer not to send a body for post-mortem examination only in a case, namely, where there can be no doubt as to the cause of death. The amendment introduced by the Criminal Law (Second Amendment) Act, 1983 makes it mandatory for the police officer to send the body for post-mortem examination if:-
i. The case involves suicide by a woman within seven years of her marriage;
ii. The case relates to the death of the woman within seven years of her marriage, in circumstances raising a reasonable suspicion that the woman was the victim of an offence;
iii. Any relative of the woman made a request in that behalf when she died within seven years of her marriage; and
iv. There is any doubt regarding the cause of death.
Section 176 Cr.P.C provides for enquiry by Magistrates into the cause of death in Police Custody and into other cases of unnatural or suspicious death. The 1983 Amendment similarly empowered the magistrate to have, in these four situations, stated above, an enquiry into the cause of her death, either instead of or in addition to the investigation held by the Police Officer.
Amending the First Schedule to the Cr.P.C, the offence of dowry death has been made cognizable, non-bailable and triable by the Court of Session.
INSERTION IN THE EVIDENCE ACT, 1872
To make the Amendments in the IPC more effective, the amendment in the Evidence Act, 1872 was considered to be necessary. Thus, section 113-A and Section 113-B were added.
Thus a presumption under Section 113-A Indian Evidence Act, 1872 has the following ingredients:
a. Where the question is whether suicide by a married woman was abetted by her husband or in-laws and;
b. Following two conditions are fulfilled:
i. She has committed suicide within seven years of her marriage.
ii. She was subjected to cruelty
c. It will be presumed that her husband and in-laws have abetted her to commit suicide which is an offence under Section 306 IPC.
d. The burden of proof would be shifted to in-laws to show that they had no role to play in the episode and it was the result of her own voluntary act.
e. The word “cruelty” has the same meaning as in Section 498-A of IPC.
Section 113-A is retrospective and so it applies to a case where the offence was committed prior to the insertion of the section. viii This provision is provisional.
In State of Himanchal Pradesh v. Nikku, ix the Supreme Court held that this section shows that if the woman has been subjected to cruelty as defined in Section 498-A I.P.C., the court may presume, having regard to all circumstances of the case that suicide had been abetted by her husband or any of his relatives.
The Supreme Court in a case P. Mani v. State of Tamil Nadu x ruled that where the presumption of a suicide of married woman is not available, the conviction is to be based upon cogent also.
One of the circumstances which have to be considered by the Court is whether the alleged cruelty was of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. xi
MISUSE OF SECTION 498-A AND JUDICIAL PRONOUNCEMENTS
It has been felt by many quarters of the society and also by the courts that section 498-A has been abused from at times to harass the husband and his relatives or settle personal scores, it is true that possibility of abuse does not make the provision invalid and it must be presumed, unless contrary is proved, the administration and application of a particular law would be done “not with evil eye and unequal hand” xii in Preeti Gupta v. State of Jharkhand xiii the Supreme Court observed:
A serious look of the entire provision is warranted by the Legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases.
In an earlier case also, Sushil Kumar Sharma v. Union of India xiv the Supreme Court lamented that in many instances, a complaint under section 498A was being filed with an oblique motive to wreck personal vendetta and observed, “It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints and allegations can be appropriately dealt with.” Since then it has been a constant endeavour by the Supreme Court to balance the needs of the society to protect the vulnerable women and also the gullible relatives of the erring husband.
The Law Commission of India in its 243rd Report reviewed section 498A and recommended that the offence under section 498A should be made compoundable, with the permission of the court and subject to cooling off period of three months. xv The Law Commission noted that the preponderance of view is to make it compoundable’ however, the offence should remain non-bailable. The safeguard against arbitrary and unwarranted arrests lies in strictly observing the letter and spirit of the conditions laid down in section 41 and section 41-A Cr.P.C. relating to the power of arrest and sensitizing the police on the modalities to be observed in cases of this nature.
Not only this, again the Supreme Court issued guidelines in the case of Arnesh Kumar v. State of Bihar xvi which needed to be followed during the investigating officer in case of cruelty and against women. Again the Supreme Court in 2017 in the case of Rajesh Sharma v. State of U.P. xvii issued several guidelines. Here, the division bench issued the new set of directions to prevent the misuse of Section 498A of Indian Penal Code. A two-Judge Bench of Hon’ble Mr. Justice AK Goel and Hon’ble Mr. Justice UU Lalit observed that Section 498A was inserted in the statute with the laudable object of punishing cruelty at the husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983.
“It is a matter of serious concern that a large number of cases continues to be filed under Section 498A alleging harassment of married women. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.” xviii
The same judgment is sub-judice and has been referred to a larger bench for review as some of the recommendations were not in view of the principle of natural justice.
SECTION 498A: PROBLEMS
Any critical analysis of Sec 498A would be incomplete without understanding the history of criminal law reform in India. “The demand for criminal law reform came about because of a large number of women that were dying in their matrimonial homes due to dowry-related harassment. Therefore, the initial demand was for a law to prevent only dowry-related violence. Sec 498A was thus introduced in the IPC in 1983 closely followed by Sec 304B which defined the special offence of the dowry-related death of a woman in 1986 and the related amendments in the Indian Evidence Act 1872.” “It is believed that Sec 498A and Sec 304B were introduced to complement each other and be part of a scheme since Sec 304B addresses the particular offence of dowry death and Sec 498A sought to address the wide-scale violence against married women for Meaning of Cruelty.
1. As it has been recommended by the Law Commission of India in its 243rd report that the said provision must become compoundable.
2. There should be an investigation first then the arrest as in protecting the interest of women the fundamental rights of men is being violated.
The parliament made these laws in order to prevent the women from the torture of husband and his relatives and not only the said provision but also the parliament has passed a separate legislation in order to protect a woman from domestic violence i.e., Protection of Women From Domestic Violence Act, 2005 also known as DV Act. It is although not a penal law but it has ushered in a new jurisprudence in the arena of cruelty against women. But women started taking advantages of these laws and therefore, the courts from time to time issued several guidelines and Law Commission of India issued many recommendations through its reports. At last the case has been referred to a larger bench of the apex court to issue guidelines which will protect the interest of both the parties- husband and wife.
[i] Indian Penal Code, 1860, § 498-A,
[ii] Indian Evidence Act, 1872, §113-A.
[iii] (2003) 4 S.C.C. 675.
[iv] (2004) 9 S.C.C. 157.
[v] (1986) 92 C.R.L.J.1510.
[vii] (1989) S.C.C.(Cr.) 105.
[viii] Gurbachan Singh v. Satpal Singh, A.I.R. 1990 S.C. 209.
[ix] Himanchal Pradesh v. Nikku, A.I.R. 1996 S.C. 67.
[x] P. Mani v. State of Tamil Nadu, (2006) 3 S.C.C. 161.
[xi] Rajbaba & another v. State of M.P., A.I.R. 2008, ⁋ 3216.
[xii] Satish Kumar Batra v. State of Haryana, (2009) 12 S.C.C. 491.
[xiii] (2010) 7 S.C.C. 667.
[xiv] (2005) 6 S.C.C. 281.
[xv] Law Commission of India, 237th Report.
[xvi] (2014) 8 S.C.C. 273.
[xvii] (2017) S.C. Decided on 27 July 2017.