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non-bailable (the accused have to appear before the court for bail), and non-compoundable offence (complaint cannot be withdrawn by the complainant), which was earlier enacted with the intention of protecting wives from marital violence, abuse and extortionist dowry demands, is however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:
- Victims of marital cruelty are always women; the aggressors being always a man and his family
- Women are always honest victims, and, hence, requiring proof of their claims is unnecessary.
- The accused man and his family are guilty until proven innocent.
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. 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.
 http://www.lawyersupdate.co.in/LU/9/1043.asp as visited on 12/05/2011
Student, BBA- LLB (Hons), School of Law, Christ University
[Submitted as an entry for the MightyLaws.in Blog Post Writing Competition, 2011]