Unscrupulous wives “victimizing” Husbands under Section 498A

Dowry as defined in oxford dictionary is ‘an amount of property or money brought by a bride to her husband on their marriage’; it was a practice which originated in ancient India in the upper caste family which by its own will paid dowry as a wedding gift to the grooms family in return of the assurance from the in-laws of treating their daughter well.  However soon after, the in-laws and the husband misused this tradition of payment of dowry to them by will and instead forced and compelled the bride’s parent to do so. In cases where in the demand of the groom’s family were not fulfilled by the bride’s family, bride was ill-treated to the extent that she even committed suicide aka dowry death.

Thus in order to prohibit the demanding, giving and taking of Dowry, the Dowry Prohibition Act,1961 came into being and along with that Section 498-A was added in the Indian Penal Code, and Section 198-A was added in the Criminal Procedure Code to stop the offences of cruelty by husband or his relatives on wife. On account of the Dowry Prohibition Act, a wife or her relatives can now take recourse of law and the demanding of dowry itself has been termed as a cruel act and can be a ground of Divorce. Also, a husband or his relatives can now not only be sentenced for 3 years imprisonment but can also be fined for behaving cruelly with the wife by demanding dowry.

This legal provision i.e. Section 498- A of the IPC being cognizable (can be arrested without warrant), non-bailable (the accused have to appear before the court for bail), and non-compoundable offence (complaint cannot be withdrawn by the complainant), which was earlier enacted with the intention of protecting wives from marital violence, abuse and extortionist dowry demands, is however now being misused by modern Indian women, in the name of law, to harass innocent husband, his old aged parents and his sisters, even if he has not taken any dowry or demanded any dowry.

Relying on this legal provision, many bogus claims are now being filed by unscrupulous wives and her family/relatives, which are not cases of actual dowry demands, but a reflection of a more sinister design to legally blackmail innocent husband and in-laws,  since under this provision, once the complaint is filed/registered, the authority have no other choice but to take action, without any enquiry being conducted, against everyone who has been named in the complaint whether it’s the old Aged parents of husband, pregnant sisters of husband, and also breast fed children of her since they can’t separate when mother was falsely charged in 498A.( Savitri Devi vs. Ramesh Chand, 2003 CriLJ 2759)

In recent scenario, certain cases have come to light where in woman have used the strict provisions of 498A in the hope of enhancing her bargaining position vis a vis her husband and in-laws, in cases where in the husband has not conceded to wife’s demand of setting up a nuclear family, the wife used 498A as a bargaining device; a woman tries to get divorce proceedings faster by filing a 498A case even if no dowry was demanded.

Therefore in order to protect the family being roped in the false allegation; the apex court (Kanaraj vs. State of Punjab, 2000 CriLJ 2993) observed as:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

It has been noticed by several authorities that in close to 98% of cases filed under Section 498A, the accusations are false and that the complaints are only filed with ulterior motives. Thus the increase in the number of these false claims; the blatant misuse highlights the several significant loopholes present in the Section 498A of the IPC which is wrongly based on the assumption that:

Several times, based on the above mentioned ground, the constitutional validity of Section 498A of IPC has been questioned as being violative of Article 14 and Article 21. However 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.

But at the same time the loopholes significant in that Section has also taken into consideration. In a recent judgment, Supreme Court (Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 266 ) has labeled the misuse of Section 498A as “legal terrorism”and “anti-social” and clearly said that it is for the legislature to find ways on how to deal with misuses of this  law as well as on how to wipe out the ignominies suffered during and after the trial by the falsely accused.

Following the orders from the apex court, 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 had 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[1]. But since merely an Advisory is not enough for policemen who hound arrests of all accused named in a complaint, therefore 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 was enacted, which henceforth merits emulation by other States.

Thus at the outset, it can be concluded that although the provision (Section 498A) ought not to be so diluted as to defeat the basic purpose behind its enactment and inclusion in IPC, since the menace of dowry harassment is still looming large, what is required is an amendment to the Section which 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.

The various amendments which can be done to Section 498A to prevent it from being misused are firstly Section 498A of IPC should immediately be made non-cognizable, since innocent  citizens not even sparing children and senior citizens are being arrested everyday based on mere complaints without requiring evidence or investigation, secondly, Section 498A of IPC should immediately be made bailable since the present Section allows punishing the accused by imprisonment even before guilt is established which is against the Universal Declaration of Human Rights according to which everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law.  Although it can be argues that the main intention of making Section 498A non bailable was to protect abused women, but placing unconditional faith in the statements of a woman and confining the accused husband and his family in police or judicial custody, until bail is granted by a court, is not the way to accord protection to women. Thirdly, 498A should be made Gender neutral since in the present case, it is based on the wrong assumption that victims of physical, verbal, emotional, sexual, and financial abuse are always women. Thus, our fathers, brothers, sons and husbands should also be accorded protection from physical, verbal, emotional, sexual, and financial abuse by women. Lastly, the most important amendment should be that persons who misuse IPC 498A; women-protection laws as weapons for settling personal scores in marital disputes  should be penalized immediately, after completion of trial, by the very same court, which is conducting the trial. Also the trial should be made time bound.

Thus once the above mentioned amendments are brought into force, it will ensure that there is no further misuse of Section 498A of IPC.


[1] http://www.lawyersupdate.co.in/LU/9/1043.asp as visited on 12/05/2011

 

Article by-

Aarti Goyal

Student, BBA- LLB (Hons), School of Law, Christ University

[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]

 

By Competition2011 on May 18, 2011 · Posted in Law and Women, Legal Issues

7 Comments | Post Comment

Karan Pradeep says:

While I agree with the opinion that the current legislation has ample scope to be abused, I do not believe that In my opinion, a better way to curb the misuse of not just the anti-dowry law but any other law would be to ensure swift closure of cases. Today if a person is willing to take the risk of abusing this law it is because he/she is aware that in the worst case by the time the court acquits the accused and turns on them a period of 10 years would have passed and in all probability they will go scot free.

Posted on May 19th, 2011

Abhijith Krishnan says:

Karan,
u must admit the fact that it is not a pragmatic approach that you are talking about. a march 2010 report says that it will take a minimum of 320 years to settle the cases till then(http://articles.timesofindia.indiatimes.com/2010-03-06/india/28143242_1_high-court-judges-literacy-rate-backlog). you can criticize the entire Indian legal system for this humongous backlog of cases. there is no easy way out from this.
in my opinion, through her article, she has come up with some practical ways of minimising abuse!!!well done aarti!!u had done a good job,,u deserve some piece of appreciation for sure!!!

Posted on May 20th, 2011

Aarti says:

@ karan- I also do agree with ur opinion that in order to curb the misuse there should be swift closure of cases. In fact, the same has been opined by me as well, in the last few line of the concluding para wherein i have expressly stated that the trials should be time bound. By saying so, i mean trial of “”every case”” should be time bound and not just of the one wherein the complainant herself is found guilty for raising a false claim.

@ Abhijit- Firstly, thanx a lot for appreciation. 🙂 Secondly, i agree that minimum of 320 years will be required to clear the backlog cases taking in consideration that point only, i have suggested that if the trials are made time bound from atleast now on through an amendment, we can ensure swift closure of the cases filed after the amendment thereby ensuring justice and preventing further misuse of the law.

Posted on May 20th, 2011

Tanmay says:

I read the whole thing today….i dnt think making it non cognizable will be of much help..it will simply switch the victims from men to women..after all how do you think they will be able to prove their in- laws guilty …especially if they could stay back at home and make life even more difficult for the female, nd obviously she cannot turn to her own family either…who consider it a taboo to discuss such matters….there is no simple solution….the mistake probably is to simply rely on laws to solve the problem…the law alone will not help in any case…and it has not…the act has been there for more than 50 yrs now and it has not deterred anybody from taking dowry…somebody has to look at the long run and realise that unless dowry becomes redundant( which can happen only through development of the areas where it is rampant, women empowerment and a conscious effort to really change the caste based traditional nexuses rather than re-inforcing them for votes…if you really want these things to end…we will have to outgrow them ..victorian england had dowries..now they dnt simply because women are completely independent have high enough incomes and the social nexus required for marriage or keeping it intact forcefully are gone)) it will continue and the laws will simply have high side-effects…nd take the time and money of the exchequer.

P.S. its well written though…and title bhi accha hai .

Posted on May 21st, 2011

anshul sehgal says:

you have plagarised your 7th paragraph from my article!

Posted on May 21st, 2011

Aarti says:

@anshul- do visit the link mentioned below

http://www.lawyersclubindia.com/articles/Sec-498A-of-the-Indian-Penal-Code-a-weapon-in-the-hands-of-vamps-585.asp

and then come up with d accusations!!…YOU hav indeed COPIED/PLAGERISED THE WHOLE ARTICLE (or the main paras) from there and hav put it up as urs here..EVEN THE HEADING HAS BEEN COPIED BY YOU!!! n if you want me to quote the para’s u have copied, i will be obliged to do so..

ps- in ma defence i will say, I HAVE NOT PLAGERISED the para. its just the finding that that 98% of the claims are false that has been stated in my paragraph. such findings can be found at the links below:

http://www.csrindia.org/attachments/Research%20-%20498A.pdf

http://mynation.wordpress.com/2007/07/14/csr-study-98-dowry-cases-498a-are-false/

Posted on May 21st, 2011

anshul sehgal says:

excuse me get your facts clear aarti…whatever link youve posted regarding the article is itself a copied article which i posted in lawyers update way back in jan 09 (not even being a law student) with efforts of mine and a group of friends so u get your facts straight and right…

peace!

Posted on May 23rd, 2011