“A comprehensive analysis on the efficacy of section 498A IPC”
Introduction “In India males are treated as borne Ravanas whereas females are borne Sitas.” -Anonymous. Violence against women is systemic, pervasive and has assumed epidemic proportions in our societies. Intimate partner violence is the most common form of violence in the private domain. Violence has been used as a tool to keep women in a position of subordination/inequality. In the Indian context, patriarchy and religious, traditional and cultural practices are more commonly used as instruments to justify and perpetrate violence against women in family settings. Social structure and cultural norms are the key determinant of women’s role and their position in society. Religious beliefs, traditional and cultural norms antithetical to women’s empowerment, have limited the scope of their full and equal participation in the society and the achievement of their full potential. Violence against women is also linked to inequalities based on factors like economic position of women in society. Women’s subjugation is the result of the hierarchies that are maintained by or reflected in the institutions and structures involved in creating, maintaining, and normalizing violence against women. Violence against women has been identified as a major public health problem, which can result in a wide range of physical, mental, sexual, reproductive, and maternal health problems. It is an undisputed fact that women lacking health care and medical treatment due to economic, social, political and geographic barriers are at greater risk of chronic, and possibly fatal, effects of violence. Violence occurring in a private setting is broadly covered within the scope of Domestic Violence. Domestic violence is one of the most prevalent forms of gender-based violence. According to crime statistics in India, cruelty by husband and relatives accounts for 44% of the total crime committed against women.
Several enactments and provisions have been brought on the statute book during the last two or three decades to address the concerns of liberty, dignity and equal respect for women founded on the community perception that women suffer violence or deprived of their constitutional rights owing to several social and cultural factors. Meaningful debates and persuasions have led to these enactments. The insertion of Section 498A IPC is one such move and it penalizes offensive cruel conduct of the husband and his relatives towards the married woman. The provision together with allied provisions in Cr. P.C. are so designed as to impart an element of deterrence in such crimes.1 However the provision has come under continuous criticism because of it alleged misuse. Cases have come where frivolous complaints or allegations have been made with oblique motive to wreck personal vendetta. Supreme Court went upto saying that “by misuse of the provision, a new legal terrorism can be unleashed.”2 In the case of Preeti Gupta vs. State of Jharkhand, (2010) the Supreme Court observed that “serious relook of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. Quite recently the division bench of Supreme Court in Arnesh Kumar v. State of Bihar3 observed that- “The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.” This judgment led to a debate on Section 498A with feminist activists calling it an ‘anti-women’ judgment4 and some calling it ‘the much needed air of change’.
1
243Rd Report of Law Commission of India on Section 498A. Page 2, Para 1.3. Sushil Kumar Sharma v. UOI AIR 2005 SC 2071. 3 Criminal Appeal No. 1277 OF 2014. 4 Jayanthi Natrajan, ‘SC Order Weakens Dowry Law, Hurts Women Rights’ The Hindusthan Times (28 August 2014) < http://www.hindustantimes.com/analysis/a-crime-is-after-all-a-crime/article1-1257229.aspx > accessed on 09/10/2017 2
In light of this background it becomes important to figure out what exactly is the problem with the section, if at all there is a problem.
Historical Background The beginning of 19th century plays an important role in degrading Indian women till its depth. The fear of insecurity not only envisaged in unmarried young women but also married women. In India, “family” has always been prime importance. Marriage being an important social institution since Vedic period was biased against women. It was regarded as the social alliance between two families instead of two persons. The bride was expected to serve her husband and his family and ensure their happiness and wellbeing. There was no question of her happiness, expectation or content. There were three main objectives of Hindu marriage: dharma or religious duties
to
be
performed
by
the
couple
or
procreation,
and
conjugal
love.
Exploitation of woman began with the child marriage. A girl too young to take life seriously, a girl too young to understand the meaning of ‘life’ and ‘marriage’, had to step into the world of thorns. She was subjudicated by her mother-in-law and other members of her husband’s family, most of the time including even her husband. She was expected to observe ‘purdah’, not to speak to elders, speak in low voice to younger members of family, not to speak or meet her husband except midnight and bear all harsh words and sufferings for even minor fault and above all never to express her sorrows or utter a word of distress to anyone Section 498A, the only section of Chapter XXA (Title of chapter- Of Cruelty by Husband or Relatives of Husband) of the Indian Penal Code. The same was inserted by Criminal Law 2ND Amendment Act, 1983( Act No. 46 of 1983). It came into force on 25th December 1983 and it reads as followsWhoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished 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. If we look into the Statement of Objects and Reasons of the Criminal Law 2ND Amendment Act, 1983(Act No. 46 of 1983), it clearly observes that though the number of dowry deaths are on increase, however such cases where cruelty of husband and his relatives results in suicide or murder of the wife, are just a small fraction of cruelty inflicted upon women. Basically Sec. 306, IPC and the Dowry Prohibition Act, 1961 were found to be inadequate tackle cruelty against women in marriage and in backdrop of this sec. 498A was introduced. Before coming into existence of this section cruelty towards a wife by her in laws or/ and husband were covered in general provisions of IPC dealing with assault, hurt, grievous hurt etc. The amendment intended to define the substantive offence of cruelty to women by her husband and relatives of him. As far as scope of this sec. is concerned then the ordinary dictionary meaning of ‘cruelty’ has not been given to word as it is vague and can be given various interpretation.5 ‘Cruelty’ has been defined categorically and clearly. It is apparent, neither every cruelty nor every harassment has element of criminal culpability for the purposes of Section 498-A. For the purpose of Section 498A IPC which is peculiar to Indian families victim spouse is always the 'wife' and guilty is the husband and his relatives-near or distant, living together or separately. 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.
6
Bare reading of the provision clear shows that
Under Explanation a, the prosecution must show that-
firstly, there was a wilful conduct on the part of the offender, (wilful conduct contemplates obstinate and deliberate behaviour). Hence mens rea is essential requirement. 5
Sunagal L. Hegde v. Laxminarayan Anat Hegde 2003 Cr. LJ 1418 (Kant.), Krishna Lal v. UOI 1994 Cr. LJ 3472 (P&H) , K. Subramaniam v. State 1988 2 Crimes 633 Mad, Arvind Dhawan v. State of Haryana 1998 3 RCR (Cri) 593 (P&H), Sarala Prabhakar v. State of Maharasthra 1990 Cr. LJ 407 ac cited in S.K. Sarkaria, R. A. Nelson’s Indian Penal Code (Volume 3, 9th edn., Lexis Nexis Butterworths (2003) 4627. 6 Savitri Devi v. Ramesh Chand 2003 Cr. LJ 2759.
secondly, the nature of act was such so as to drive a woman to commit suicide or to cause grave injury or danger to life or limb. (This can be both mental and physical).
Under Explanation b the cruelty pertains to harassment with demand of dowry. 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 498-A. Thus to constitute "harassment" following ingredients are essential:-
firstly, Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation; secondly, Such act should be with a view to pursued or compel her to do something which she is legally or otherwise not expected to do by using force or threats; or Intention to subject the woman should be to compel or force her or her relatives to fulfil unlawful demands for any property or valuable security.7 This section is wider in scope than Section 304B which covers only dowry death. Sec. 498A covers even those cases where cruelty did not result in death.
7
Savitri Devi v. Ramesh Chand, 2003 Cr. LJ 2759.
Constitution Validity of Section 498-A In Inder Raj Malik and others vs. Mrs. Sumita Malik8, 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 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 existence of element of cruelty is not necessary, whereas section 498-A deals with 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 vs. State of Haryana9, 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 modernisation, education, financial security and the new found independence the radical feminist has made 498A a weapon in her hands. Many a hapless husbands and in laws have become victims of their vengeful daughter-in-laws. 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
8 9
1986 (92) CRLJ 1510 1989 (1) SCC 244
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.10
10
http://www.legallyindia.com/views/entry/section-498a-of-ipc-its-use-misuse-html
Misuse of the Provision The Indian judiciary, right from the trial court upto the apex level has expressed concern over the matter of misuse of Sec. 498-A I.P.C in its recent judgments. In their judicial observations and remarks, the courts have expressed deep anguish over this law. However, there is neither reliable data nor empirical study to prove the extent of the alleged misuse, nor have the judiciary through their judgments offered any data to support this conclusion. In all, the institutional response to Sec. 498-A I.P.C has been that women are “misusing the law”. In the case of Savitri Devi vs. Ramesh Chand11, the Hon’ble Delhi High Court had categorically stated that the provision has been misused 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”. In the same judgment, the court had recommended to the authorities to review Sec. 498-A, that court was of opinionthat “thousands of marriages have been sacrificed at the altar of this provision”. In Sushil Kumar Sharma vs. Union of India12, the Hon’ble Supreme Court stated that “…it is necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with”. Similarly, in the case of Preeti Gupta vs. State of Jharkhand13, the Hon’ble Supreme Court observed that “It is 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”. As already stated, no data has been collected nor evaluated to warrant that most complaints are made on frivolous grounds. Surveys such as the National Family Health Survey foreground the seriousness and impact of domestic violence on women. The study indicates that most women are not open to reporting cases of domestic violence to police. This only reinforces that women are compelled to file a formal complaint only when the violence committed by their spouse or their family takes a turn of event, becoming far graver and intolerable for the women to no longer stay in an abusive relationship. Secondly, one does not factor in that the overwhelming increase of complaints over the years may be attributed to growing awareness among women about the law. Statements such as these reflect institutional bias that exists within the criminal justice system. Instead, they turn a blind eye to the shortfall that exists within the system in dealing with cases of violence against women. 11
2003 Cr. LJ 2759 AIR 2005 SC 2071 13 AIR 2010 SC 3363 12
Then again, in many occasions, the Apex Court and lower courts have acknowledged that dowry harassment and domestic violence is rampant in our society. In some cases, the judiciary has also questioned the failure of the criminal justice system in dealing with cases of violence against women. The inability of the law enforcement officials to investigate and build a case with material evidences and strong witnesses which are the prime reasons for acquittal, perhaps leaves an impression among many that the provision of Sec. 498-A is being misused. The belowmentioned study also indicates that in many instances, cases have resulted in acquittal due to compromise between the parties. Enforcement agencies, magistrates to mediators, at every stage inadvertently make their own efforts to bring about a settlement between the women and the perpetrators with the intention to “unite families”, overlooking at times the safety and best interest of the women, who with passing time are subjected to more violence. The Hon’ble Supreme Court in the case of Chhotan Sao and Anr. vs. State of Bihar14, observed that ”…lapse on the part of the prosecutors and enforcement agencies…. is bound to jeopardize the prosecution case resulting in avoidable acquittals. Inefficiency and callousness on their part is bound to shake the faith of the society in the system of administration of criminal justice in this country which, in our opinion, has reached considerably lower level than desirable.”
14
(2014) 4 SCC 54
Section 498 and Cr. P.C. -Major Area of Concern Compoundability of Section 498ACompounding in the context of criminal law means forbearance from the prosecution as a result of an amicable settlement between the parties. As observed by Calcutta High Court in a vintage decision in Murray, compounding of an offence signifies “that the person against whom the offence has been committed has received some gratification, not necessarily of a pecuniary character, to act as an inducement of his desiring to abstain from a prosecution”. 15 Certain offences punishable under the sections of the Indian Penal Code can be compounded as per Sec. 320 of Cr.PC. The section provides for compounding the offence through two mechanism one simply and another with permission of court. Who can compound the given offence has also been provided. However 498A is not mentioned under this section and hence cannot be compounded. There is preponderance of opinion in favour of making the offence under S,498-A compoundable with the permission of the court. The court in Ramgopal v. State of MP opined that the offence should be made compoundable.
16
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.17 Justice Malimath Committee’s Report on Reforms of Criminal Justice System strongly supported the plea to make Section 498 A a compoundable offence. The Committee observed: “A less tolerant and impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody.18 th
Similarly, the 154 report of Law Commission of India (1996) recommended inclusion of S. 498A in the Table appended to Section 320(2) so that it can be compounded with the permission 15
237th Report of Law Commission of India on Compoundability of Offences, Page 6, Para 1.2. SLP (Crl.) No. 6494 of 2010 17 Savitri Devi v. Ramesh Chand 2003 Cr. LJ 2759. 18 Page 191, Para 16.4.4. 16
of the Court.19 Further, the 177th Report20 , The Department-Related Parliamentary Standing th
Committee on Home Affairs in its 111 Report on the Criminal Law (Amendment) Bill 2003 th
(August 2005),21 The 128 Report of the said Standing Committee (2008) on the Code of Criminal Procedure (Amendment) Bill, 200622 had similar views. 237th LCR which specifically relates to Compoundability of IPC offences suggested that – “if the wife is prepared to condone the ill-treatment and harassment meted out to her either by reason of change in the attitude or repentance on the part of the husband or reparation for the injury caused to her, the law should not stand in the way of terminating the criminal proceedings.”
23
The
report asked to take more holistic and practical approach because even social harms do not operate in vacuum. The stand of 243rd report is no different.24 As crime under Sec 498-A is a non-compoundable offence, both parties cannot compromise and compound the case legally.In B. S Joshi vs. State of Haryana33, the parties reached a compromise but the High Court refused to quash the FIR, on the ground that the offence is noncompoundable. However, the Supreme Court in the said case held that such power could be exercised by the court either to prevent abuse of the process of any court or otherwise to secure the ends of justice; though it may not be possible to lay down any precise, clearly defined guidelines nor can the court give an exhaustive list of cases wherein such power should be exercised. It further observed that since because there was an amicable settlement between the two parties, there is no chance of conviction and in such a case the court has the power to quash the proceeding. Argument against making the offence CompoundableIt is argued that the dowry and harassment for dowry is a social evil and how the law which is designed to punish those who harass the wives with demand of dowry can be stopped to take its full course and be made a tool at the hands of husband through the private compromises. The social consciousness and the societal interest demands such out of court settlement cannot be 19
Page 48, Para 2. As cited in 237th Report of Law Commission of India on Compoundability of Offences. Page 13, Para 3.7. 21 As cited in 237th Report Law Commission of India on Compoundability of Offences. Page 21, Para 5.8.5. 22 As cited in 237th report Page 22, Para 5.8.6. 23 Page 16, Para 5.4 24 Page 42, Para 19.5. 20
allowed. The legal recognition of amicable settlement in such cases would encourage the forbidden evil i.e. the dowry, they say. The other argument which is put forward against compounding is that hapless women especially those who are not much educated and who do not have independent means of livelihood, may be pressurized and coerced to withdraw the proceeding and the victim woman will be left with no option but to purchase peace though her grievance remains unsolved. Arguments in favour of making the Offence CompoundableSection 498A should not be allowed to become counter-productive. It is quite often argued that road of sec 498A is different from that of other offences. Here a family, a marriage, sometimes kids are involved. In our country still both the social factors and legal factors aims at saving a marriage. In matters relating to family life and marital relationship, the advantages and beneficent results that follow from allowing the discontinuance of legal proceedings to give effect to a compromise or reconciliation would outweigh the degree of social harm that may be caused by non-prosecution. 25 If the proceedings are allowed to go on despite the compromise arrived at by both sides, either there will be little scope for conviction or the life of the victim would become more miserable. In what way the social good is achieved thereby? 26 The conviction rate in respect of the cases under s.498A is quite low – it is about 20%. One of the reasons is subsequent events such as out-ofcourt settlement, the complainant women do not evince interest in taking the prosecution to its logical conclusion. The permission to compound does not amount to legal recognition of violence against women. Rather it amounts to take into consideration the ground realities of Indian society where the family members/ elders try to reconcile the matter. Compoundability further becomes important for protecting interest of children because in the whole tussle and hostility, children are the worst victim.27
25
237th Report of Law Commission of India on Compoundability of Offences, Page 16, Para 5.4. 237th Report of Law Commission of India on Compoundability of Offences, Page 17, Para 5.4 27 Tr. Ramaiah v. State of Madras HC, MP no 1 of 2008 in Cr.O.P. No. 10896 of 2008 as cited in 243 rd Report of Law Commission of India on Section 498A, Page 4, Para 2.2. 26
As far as this argument is concerned that out of court settlement in cases of social evil should not be allowed, then let’s not forget many offences having the potentiality of social harm, not merely individual harm, are classified as compoundable offences. Quashing of Proceedings Sometimes when parties come to an out of court settlement in case s of 498A and hence file for quashing proceedings of the case.
Courts have in various cases used the inherent power
available to it under sec. 482 Cr.P.C. Courts have opined that though case is non-compoundable in nature, however if parties have jointly expressed their willingness for compromise, then the same can be allowed. Courts can exercise inherent power in sec. 482 Cr.P.C. to permit the same.28However at various places courts said that in light of mandatory language of section 320 another case court held that a non-compoundable offence cannot be compounded by writ jurisdiction of HC or inherent power of HC.29 Court again in Heerala Prasad Verma v. State30 accepted plea of wife who had earlier charged her husband u/ the sec that when she has no grievance and is living happily with her in-laws, hence it is duty of the court to encourage genuine settlement because any hyper technical view would be counter productive and against the interest of women. Court accepted it. Again in B.S. Joshi v. State of Haryana31 held that a HC when approached by both the parties and jointly prayed for quashing of the criminal proceedings filed by wife u/ 498 A, is empowered to quash the criminal proceedings though the offence is not compoundable for securing ends of justice. Section 320 neither affects nor limits the inherent power of HC. But agin in Nazimunnisa v. State of Karnataka32 and Bankat v. State of Maharshtra33 were hesitant to accept such views.
28
State of Rajasthan v. Gopal Lal 1992 Cr LJ 273.Gurusharan Kaur v. State 1993 CrLJ 2076 (Raj). Daggupati Jayalakshmi v. State 1993 CrLJ 3162 (AP), Mahesh Chand v. State AIR 1988 SC 2111 as cited in Ratanlal and Dhirajlal, The Indian Penal Code (32nd edn., Lexis Nexis Butterworths Wadhwa, 2010) 2769. 29
Neeta Sanjay Togde v. Smt. Vimal Saashiv Togde 1997n CrLJ (Bom) 3263 as cited in Ratanlal and Dhirajlal, The Indian Penal Code (32nd edn., Lexis Nexis Butterworths Wadhwa, 2010) 2769. 30 2006 Cr LJ 778. (Jhar). 31 AIR 2003 SC 1386 as cited in KI Vibhute, PSA Pillai’s Criminal Law (10th edn., Lexix Nexis Butterworths, 2008).775. 32 2001 i Kant LJ 577 KI Vibhute, PSA Pillai’s Criminal Law (10th edn., Lexix Nexis Butterworths, 2008). 776. 33 2005 I SCC 343.
Hence in light of this inconsistent approach of the courts it becomes further important to decide immediately whether the offence shall be made compoundable or not? Further the procedure under Sec. 482 Cr.P.C. is time consuming and costly also. Bailability The Malimath Committee Report on Reform in Criminal Justice System observed that- once an FIR is lodged with police under sec. 498A/406, it becomes an easy tool at the hands of police to arrest or threaten to arrest husband and other relatives named in the FIR without even considering the intrinsic worth of allegations and making a preliminary inquiry. When the members of the family are arrested and sent to jail with no immediate prospect for bail, the chances of amicable reconciliation and salvaging the marriage will be lost for once and for all.34 The Section together with its allied Cr.PC provisions should not act as an instrument of oppression and counter harassment and become a tool of indiscreet and arbitrary actions on the part of the Police. The fact that s.498A deals with a family problem and a situation of marital discord unlike the other crimes against society at large, cannot be forgotten. It does not however mean that the Police should not appreciate the grievance of the complainant woman with empathy and understanding or that the Police should play a passive role. S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale. The re-evaluation of Section 498-A merely on the ground of abuse is not warranted. Besides that, while courts are confronted with abusive dimensions, sometimes very visibly in Section 498A prosecutions, legislature cannot close our eyes to a large number of cases which go unprosecuted fora variety of reasons35.
34 35
Page 191, Para 16.4. Report 243
Power of Arrest of Police Supreme Court in Nand Raj v. State of Punjab36 expressed concern over the ‘tendency of roping in relatives of husband in over enthusiasm and anxiety to seek conviction for maximum people. This ultimately weakens the case itself. There is a growing tendency amongst the women 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 grandparents or as many as 10 to 15 or even more relatives of the husband.37 The biggest problem is indiscriminatry and arbitrary arrest in cases without looking into the peculiar circumstances of each case. Registration of FIR Immediate registration of FIR in case of this sec. has been opposed by various groups. In fact in case of Tr. Ramihah v. State following directions were given to the police authorities: i) “FIR should not be registered in a routine manner. ii) Endeavour of the police should be to scrutinize complaints carefully and then register FIR. iii) No case under section 498-A/406 IPC should be registered without the prior approval of DCP/Addl. DCP. iv) Before the registration of FIR, all possible efforts should be made for reconciliation and in case it is found that there is no possibility of settlement, then, necessary steps should, in the first instance, be taken to ensure return of sthridhan and dowry articles to the complainant.38 However this case brings us to question- whether the registration of FIR can be deferred for sometime i.e., till initial investigation and reconciliation process is completed? In Bhajan Lal’s case,39 the Supreme Court observed, “It is therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a 36
2000 Cr.LJ 2993 SC as cited in S.K. Sarkaria R. A. Nelson’s Indian Penal Code (Volume 3, 9th edn., Lexis Nexis Butterworths 2003) 4654. 37 Savitri Devi v. Ramesh Chand, 2003 Cr. LJ 2759. 38 HC MP no 1 of 2008 in Cr.O.P. No. 10896 of 2008 39 State of Haryana v. Bhajan Lal, AIR 1992 SC 604
case on the basis of such information.” However, in a recent case of Lalita Kumari v. State of Uttar Pradesh40, the question whether a police officer is bound to register the FIR when a cognizable offence is made out or he has the discretion to conduct some kind of preliminary inquiry before registration of FIR, has been referred to a larger bench of Supreme Court in view of the apparent divergence in views. The law on this point is therefore in an uncertain state. In this situation, the police in various States have to follow the law laid down or directives issued by the respective High Courts in regard to registration of FIR till the law is settled by the Supreme Court. Shri Amarjit Singh, Member of the Commission has suggested that except in cases of physical violence, the FIR need not be registered instantaneously without any enquiry being made. Whether there should be a legislative provision in this regard specifically with reference to F.I.Rs under S, 498-A is a matter on which a fresh look could be taken after the Supreme Court interprets the relevant Sections in the above case.41
40 41
AIR 2012 SC 1515 Page 8. Para 2.7.
Suggestion and Submission No study is worth conducting if it does not suggest reforms and solutions to improve the status quo! I would like to humbly submit following suggestions1. No Dilution of Sec. 498A is warranted but reform is required in the Procedural Law Attached to the SectionAs far as Sec. 498A specifically is concerned I don’t believe that we need to make any amendments to it as Justice Malimath committe on Reform in Criminal Justice System very rightly pointed out that it is not the sting of Sec. 498A which make it vulnerable to misuse, it is the Cr.P.C. provisions attached with it.42 If this provision is diluted then it will loose its rigour. Criminal system should take into account the most vulnerable possible victims while making laws. Hence the provision per se need not be changed. Let’s not forget the realities that evil of harassment related to dowry and cruelty for the same has not yet been completely thrown out of our society. Any change in the section 498A is unwarranted as of now. As 243 rd LCR says“Sec. 498A has a lofty social purpose to serve. It should remain in the statue without diluting its rigor. The larger object of the provision cannot be ignored by overemphasising its potential to misuse. 43 Mrs. Jayanthi Natrajan goes as far as saying that why we are signalling out sec. 498A for misues? Any law can be misused.44 Though I vehemently oppose any change in the provision itself. But I am not blind to the frivolous, malafide and exaggerated complaints which are filed under this sec. According to me the triple problem with the offence is connected to- Non-Compoundability of offence, indiscriminately arrest and hurry in arrest, and lastly, the tendency to rope in each and every family member into the accused list. 2. The Offence should be Made Compoundable in Certain CircumstancesI believe that the offence under sec. 498A should be made compoundable with permission of court with cooling off period of 3 months. However compounding of offences shall not be 42
243rd Report of Law Commission of India on Section 498A.Page 11, para 1. Page 14, para 7.2. 44 Jayanthi Natrajan, ‘SC Order Weakens Dowry Law, Hurts Women Rights’ The Hindusthan Times (28 August 2014) < http://www.hindustantimes.com/analysis/a-crime-is-after-all-a-crime/article1-1257229.aspx > accessed on 03/10/2017, Para 4. And SC gave a similar view in Sushil Kumar Sharma v. UOI AIR 2005 SC 3100. 43
allowed in cases where serious physical injury has been caused to the victim. 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. I suggest adding sub-section (2a) to Section 320 Cr.P.C. The proposed provision will ensure that the offer to compound the offence is voluntary and free from pressures and the wife has not been subjected to ill-treatment subsequent to the offer of compounding. This answers a large section of those who oppose that illiterate, poor women might be forced to compound offence forcefully. After the application for compounding an offence under S.498A of Indian Penal Code is filed and on interviewing the aggrieved woman, preferably in the Chamber in the presence of a lady judicial officer or a representative of District Legal Services Authority or a counsellor or a close relation, if the Magistrate is satisfied that there was prima facie a voluntary and genuine settlement between the parties, the Magistrate shall make a record to that effect and the hearing of application shall be adjourned by three months or such other earlier date which the Magistrate may fix in the interests of Justice. On the adjourned date, the Magistrate shall again interview the victim woman in the like manner and then pass the final order permitting or refusing to compound the offence after giving opportunity of hearing to the accused. In the interregnum, it shall be open to the aggrieved woman to file an application revoking her earlier offer to compound the offence on sufficient grounds.45 Section 23(2) of the Hindu Marriage Act, 1955 casts on the Court the duty, in the first instance, in matrimonial cases, where it may appear that there may be chance of saving the marriage, to make every endeavour to bring about reconciliation between the parties. 46 I am not one of those who put overemphasis on importance of marriage, but marriage as a social institution shall be protected specially looking into our society where divorce or splitting of marriage is still a taboo. Further looking at children is also important. Some Other Suggestions for this are-
45 46
237th Report of Law Commission of India on Compoundability of Offences, Page 19, para 2. Saraswati Sutradhar v. State of Tripura 1999 Cr.LJ 117 (Gau).
The women police stations (under the nomenclature of Crimes against Women Cell) should be strengthened both quantitatively and qualitatively. And at the same time staff at mahila thana shall be given timely training to stop them from becoming biased towards women.47
Creation of Mahila Desks at police station and Crime Against Women (CAW) Cell, at least at the district level which would specifically deal the complaints made by women. When a wife moves to file a complaint to a women cell, a lot of persuasion and conciliation is required. The Legal Service Authorities of the States / UTs, National Commission for Women, NGO and social workers should set up a desk in CAW Cell to provide conciliation services to the women so that before the state machinery is set in motion the matter is amicably settled at that every stage in case less serious cruelty.48 3. Power of Arrest of Police
The attitude of arrest first and then proceed with rest should be discourages (emphasis added). Casual, indiscrimination and hasty application of power of arrest is clearly against the fundamental rights enshrined in Part-3 of the constitution, are anathema to rule of law and criminal justice system. The provision in Cr.P.C. which regulates and channelizes the power of arrest shall be followed strictly. Let’s not forget that objective of provision is not better served by viewing arrest as an effective tool, it should be the last resort. Power of arrest comes with duty to act reasonably. Sec. 498A envisages various degrees of cruelty which can be categorized as more serious and less serious. Indiscriminate application is bound to result in unwanted hardships. While there is immediate and imminent danger to the life and to physical security of the woman arrest can be made immediately, but not in the other cases of 498A. Overreach and inaction are equally bad. I am nowhere suggesting that under no circumstances whatsoever the power of arrest shall be resorted or that the investigative officer shall postpone the arrest till the reconciliation is complete. The only point which I am trying to make is that the police man must act reasonably as per peculiar facts and circumstances of each and every case.
47
243rd Report of Law Commission of India on Section 498A, Page 42, 19.10. NCW Report, placed before the Parliamentary Committee on Petitions (Rajya Sabha) (On 07.09.2011) as cited in 243rd Report of Law Commission of India on Section 498A, Page 13, Para 6.1 48
As mentioned already arrest without warrant is possible only after the satisfaction that immediate arrest as warranted as per Sec. 41(1)(b)(ii) of Cr.P.C.. The police must be very careful and cautious in applying this section. If this approach of answering need of each case is taken, with ensuring complete following of law as in black and white, will be curb the menace of misuse on a large scale level. And the guidelines for arrest as given various cases like D.K.Basu case shall be followed, not on paper, but also in reality.49 The 243rd report suggested adding of one new provision to Sec. 41 Cr.P.C i.e. Sec. 41(3) which shall read as follows(3): Where information of the nature specified in clause(b) of subsection (1) of Section 41 has been received regarding the commission of offence under section 498-A of Indian Penal Code, before the police officer resorts to the power of arrest, shall set in motion the steps for reconciliation between the parties and await its outcome for a period of 30 days, unless the facts disclose that an aggravated form of cruelty falling under clause (a) of Explanation to S, 498-A has been committed and the arrest of the accused in such a case is necessary for one of the reason. 50 It will be fair enough if this amendment is brought, however even if this section is not specifically added then also indirectly mentions the same. Hence even if it is not brought explicitly, then also if will not make much difference. 4. No specific Provision required to curb the False case filingIt has been long standing demand of various groups that the woman who files false cases under and misuses this provision, shall be dealt very strictly by adding a new provision for punishment in cases in statue book. According me such a provision might work as a hurdle to those illiterate, poor woman who face harassment and cruelty but fail to prove their allegations. Let’s not forget that still for a normal Indian woman going to police station and filing an FIR against her own relatives require a lot of courage. Hence I don’t think that a specific provision dealing exclusively with misuse of sec. 498A is needed especially in the light of the fact that we already have sec. 182, 211, IPC and sec. 358, 250 Cr.P.C. to deal with such malicious prosecutions. 5. Need of Immediate Empirical Data Collection – 49 50
AIR 1997 SC 610. Page 37, Para 16.1.
There is no reliable data available to figure the extent and major reasons of misuse or abuse of the sec. in question. While the ‘moderators’ suggest is around 40-50%, the large section of police force believe that the misuse is as high as 85-90% and the women’s organisation argue that it is negligible and just 10-15% of all the cases. Mostly assumptions regarding extent of offence are based on experience i.e. ipse dixit. Hence I suggest immediately an empirical data collection should be done so as to figure out the root cause and extent of problem. 6. Bailability There has been huge demand for making the offence under the sec 498A bailable. 51 However, 243rd LCR took a different stand and opined that the offence shall not be made bailable. 52 The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them. 7. Cognizableness – As far as cognizableness of offence is concerned I believe the status quo shall be maintained. 8. Registration of FIRHowever, in a recent case of Lalita Kumari v. State of Uttar Pradesh,53 the question whether a police officer is bound to register the FIR when a cognizable offence is made out or he has the discretion to conduct some kind of preliminary inquiry before registration of FIR, has been referred to a larger bench of Supreme Court in view of the apparent divergence in views. The law on this point is therefore in an uncertain state. In this situation, the police in various States have to follow the law laid down or directives issued by the respective High Courts in regard to registration of FIR till the law is settled by the Supreme Court. The Apex Court in Lalita Kumari further states that when the police officer conducts preliminary investigation, before registering an FIR and decides to close the case, he must take this decision at the earliest. The police officer must immediately inform the complainant of his decision in writing not later than one week so that she may pursue the remedy of approaching a Magistrate
51
Savitri Devi v. Ramesh Chand 2003 Cr. LJ 2759. Page 41. Para 19.6. 53 AIR 2012 SC 1515 52
under Sec. 156 (3) for a direction to register FIR. It must disclose reasons in brief for closing the complaint and not proceeding further. I personally however feel that if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirements of Section 154(1) of the Code, the said police officer has to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. If such power is given to police so as to first conduct some preliminary inquiry and then register an FIR will lead to arbitrary power to arrest which in all probable cases lead to FIR not getting registered even in genuine cases. Police officers have general practice of not registering FIRs even in other offences because this will lead to bad impact on the report submitted on the crime rate in the particular area under the said police station. This provision will give clear pretext for not registering FIR to police officers.
Conclusions The future of many marriages, of many helpless woman who suffer in silence and of many poor husband who have been falsely implicated in this sec. depends on how seriously and immediately we react to these reforms which are need of the hour. Courts have time and again shown concern about the misuse of the provision,54 hence reforms in the procedure is immediately warranted especially because the so-called misuse of provision had made even the genuine cases being looked down as false cases. With my own personal experience with police and general data I have observed that policeman have become suspicious about every woman who files case under sec 498A. 6 months back I had taken interview of a Police Officer in Jaipur who claimed that s high as 90% of cases under this sec are false! 55 It is clearly an exaggeration but it shows that the provision which was to protect woman, has become enemy of them, making them prone to be doubted about, to be judged and to be tagged as ‘jhoothi’/ ‘villain’56! We are at cross road where at one place we need to protect woman and their rights, but at the same time we don’t want are ‘would be husband’ to get 498A pre-wedding jitters (as used 498a.org –a blog run by NRIs who are strongly working against misuse of the sec.) 57 A wise and pragmatic moderations without overlooking the need and relevance of the retention of penal sanctions necessary to protect and promote women’s rights and interests, is what we need. NCRB data 2013 shows that around 3 Lakh cases were filed under sec. 498A in the year 2013. Out of which 90% were chartsheeted. However the conviction rate is mere 16% which is well below the average conviction rate of 23-25%. In toto, a pragmatic and holistic approach is needed. Courts have time and again repeated the need for re-look at the sec. 498A and called for change based on ground realities of our society and of our system.58The offence shall remain non-bailable, but compounding the offence shall be
54
Pawan Kumar v. State of Haryana AIR 1998 SC 958. ‘Majority of Dowry Cases Are Fakse-Says SP’ The Times of India- Patna City (19 August 2003) < http://www.498a.org/contents/paperArticles/majorityOfDowryCasesAreFalse.pdf > accessed on 19/09/2017 56 ‘Some Brides are Villians, Not Victims-Lawyers’ The Times of India Kolkata (1 May 2001) < http://www.498a.org/contents/paperArticles/Some%20brides%20are%20villains%20not%20victims.pdf > accessed on 19/09/2017 57 ‘498A gives Men Pre-Wedding Jitters’ Vijay Times Banglore City (07 April 2005)< http://www.498a.org/contents/paperArticles/498aGivesMenPreWeddingJitters.pdf > accessed on 19/09/2017 58 Preeti Gupta v. State of Jharkhand, AIR 2010 SC 3363 . 55
allowed. Rules for arrest power of police are very clearly and categorically have been specified. Need for the hour is these rules shall be strictly followed. But in the ultimate analysis any number of legislative action will be ineffective and inadequate until gender bias in social institutions and the generally discriminative social attitude towards women are transformed. Within the institution of marriage the gender roles have to be redefined, so that a patriarchal order is replaced by a gender equal order.59
59
KI Vibhute, PSA Pillai’s Criminal Law (10th edn., Lexix Nexis Butterworths, 2008) 768.
References Statues 1. The Indian Penal Code, 1860. 2. The Code of Criminal Procedure, 1973. Law Reports 1. 243 Report of Law Commission of India 2012. rd
2. 91st Report of Law Commission of India, 1983. 3. 237th Report of Law Commission of India, 2011. 4. 154th Report of Law Commission of India, 1996. 5. 111th Report of the Dept. Related Standing Committee on Home Affairs on Criminal Amendment Bill 2003. 6. 177th Report of Law Commission Of India, 2001. 7. Malimath Committee on Reforms of Criminal Justice System, 2013. Books 1. P.K. Das, Protection of Women from Domestic Violence (Universal Law Publishing, 2011) 2. M.U. Qureshi, Women and Crime (SBS Publishers,2006) 3. Shobha Saxena, Crime Against Women and Protective Laws (Deep & Deep Publications, 2004) 4. Dr. Monica Chawla, Women and Protective Law (Regal Publications, 2013) 5. Ramesh Bhandari, Women Rights and Welfare (Alfa Publications, 2010) 6. Ratanlal and Dhirajlal, The Indian Penal Code (32nd edn., Lexis Nexis Butterworths Wadhwa, 2010) 7. KD Gaur, Criminal Law Cases and Materials (6th edn., Lexis Nexis Butterowrths Wadhwa: 2009) 8. S.K. Sarkaria, R. A. Nelson’s Indian Penal Code (Volume 3, 9th edn., Lexis Nexis Butterworths 2003) 9. KI Vibhute, PSA Pillai’s Criminal Law (10th edn., Lexix Nexis Butterworths, 2008)
Articles 1. Indira Jaising. ‘Concern for Dead, Condemnation for Living’ XLIX (30) EPW < http://www.epw.in/system/files/Concern%20for%20the%20Dead%2C%20Condemna tion%20for%20the%20Living.pdf > accessed on 22-10-2017 2. Sunieta Ojha, ‘Unfairly Targeting Section 498A’ The Indian Express (14 July 2014) <
http://indianexpress.com/article/opinion/columns/unfairly-targeting-section-498a/
m> accessed on 04-10-2017 3. S.S. Kavitha, ‘Matrimonial Cruelty Against Women A Criminal Offence’ The Hindu (14 December 2012) 4. Jayanthi Natrajan, ‘SC Order Weakens Dowry Law, Hurts Women Rights’ The Hindusthan Times (28 August 2014) < http://www.hindustantimes.com/analysis/acrime-is-after-all-a-crime/article1-1257229.aspx > accessed on 03-09-2017 5. Saurav Datta, ‘What Powers the “Section 498A misuse” Bandwagon?’ DNA Newspaper (5 July 2014) < http://www.dnaindia.com/india/standpoint-what-powersthe-section-498a-misuse-bandwagon-1999791 > accessed on 04-20-2017 6. Ritwik Bisaria, ‘Spare a Thought For Innocent Husbands’ The Hindusthan Times (31 August
2014)
innocent-husbands/article1-1258561.aspx > accessed on 17-10-2017 7. Prabha Sridevan, ‘In Search of Ordinary Woman’ The Hindu (11October 2013)< http://www.thehindu.com/opinion/lead/in-search-of-the-ordinarywoman/article5222195.ece > accessed on 22-09-2017 8. S. S. Kavita, ‘An Underused Law’ The Hindu (12 December 2012) < http://www.thehindu.com/features/metroplus/society/an-underusedlaw/article4191907.ece > accessed on 22-09-2017 9. Satya Prakash, ‘SC Says No to Automatic Arrest Under Dowry Law’ The Hindusthan Times (03-07-2014) < http://www.hindustantimes.com/india-news/sc-says-no-toautomatic-arrests-under-dowry-law/article1-1236105.aspx > accessed on 21-10-2017
