1

SECTION 498A UNDER IPC IS SHIELD OR

SWORD FOR WOMEN IN PRESENT SENARIO.

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INTRODUCTION

The scope of my Dissertation is to cover Section 498a of the IPC

relating to criminal law in which the wife and her family can charge

any or all of the husband’s family of physical or mental cruelty. This

law is unique to India as it not only discriminates based on gender

(man Vs. woman), but also discriminates against women based on

their relationship with the husband. Typically, the charged family

members in these cases include:

 3

• Mostly women of all ages (unmarried, married and pregnant

sisters of the husband, his mother and sisters-in-law, elderly

grandmothers and aunts)

• Other maternal and paternal relatives and even young children

in the family.

The dissertation will deal with the ingredients of the section and

what must be essentially proved to convict an accused under this

section. I will also deal with the provisions relating to the

cognizable and non-bailable provisions of this section. The non-

bailability provision is grossly misused by unscrupulous wives who

file false complaints against unsuspecting husbands and her in

laws. The police in such cases register and FIR and forward the

chargesheet without proper investigation in most of the cases. A

lot of men have had their lives ruined because of this drastic

section.

IPC section 498a was originally designed to protect married

women from being harassed or subjected to cruelty by husbands

and/or their relatives. This law was mainly aimed at curbing dowry
 4

harassment. Unfortunately, this law has been misused to harass

men and their families rather than protect genuine female victims

of harassment. The Supreme Court of India itself has labelled the

misuse of section 498a as “legal terrorism” and stated that “many

instances have come to light where the complaints are not bona

fide and have been filed with an oblique motive. In such cases,

acquittal of the accused does not wipe out the ignominy suffered

during and prior to the trial. Sometimes adverse media coverage

adds to the misery.“ In agreement with the above statement, the

findings of a study conducted by The Centre for Social Research

indicated that 98 percent of the cases filed under IPC

section 498a are false. Nevertheless, the law has been always

justified based on its intention of protecting women. At this point

it would be worthwhile to think about how IPC section 498a has

really affected women.

It has been argued by Government officials favouring the law that

despite the establishment of legal measures to counter

harassment of married women, there is an increase in the number

of cases of harassment. The first part of the statement suggests

 5

that women who are harassed should be utilizing this law as a

means of protection. If harassed women indeed used the law then

we should see a decrease in the number of cases of harassment

over time. Considering the stringent consequences imposed by

the law and the inordinate delays inherent in the legal system, no

ordinary citizen, male or female, would be impudent enough to

risk being implicated under this law for the sake of satisfying their

monetary or even sadistic desires for that matter. The fact is that

many women who are actually beaten up and harassed by their

husbands and in-laws rarely file 498a or resort to other dowry

related laws. A lot of them live in rural areas, unaware of the law

or lack the necessary economic and moral support from their natal

families. Going by the conviction rate the proportion of women

who have genuine cases is 2%. Most women who file 498a are

from urban backgrounds and are either capable of fending for

themselves or have enough family support to fall back on. The

proportion of women who belong to this category is 98%. In the

98% of false cases, in every instance that 1 daughter-in-law files a

false complaint at least 2 women (an innocent mother-in-law and

 6

sister-in-law) are arrested and undergo stress, humiliation and

harassment in the hands of the exploitative police, lawyers, staff

and officials in Indian courts before being acquitted several years

later. So, in every 100 cases 2 women genuinely benefit, 98

women get away with perjury and extortion, and at least 196

women suffer needlessly.

The number of cases that are filed in police stations or courts are

the basis for the official statistics of dowry harassment. So, given

that the law allows women unlimited scope to fabricate lies (with

no penalty of perjury) and given that women are encouraged to

keep filing false cases the statistics of “dowry harassment” are

bound to rise while the problem of genuine harassment is left

unchecked. So, the government has, in the name of protection of

women, done grave injustice to two groups of women. The first

group constitutes the genuine victims of dowry harassment whose

misery remains unresolved but is constantly alluded to in order to

justify the law. The second group consists of innocent mothers and

sisters of husbands who are criminalized and harassed by the

police and the legal system without any regard to their age, health
 7

or marital status. Pregnant women, unmarried sisters, ailing

mothers and even aged grandmothers have been sent behind the

bars under false allegations but their pain and suffering has not

even been acknowledged leave alone addressed by the

Government. Through IPC section 498a, the Government is

actually protecting those women that indulge in perjury,

blackmail, extortion and harassment of their husbands and inlaws.

The main objective of this dissertation is to critically analyze the

impact of section 498A on men’s and its family members. The

dissertation has been divided in to 6 distinct chapters. The each

chapter is placed under various sub headings in order to

understand the topic with all the minutes’ details. The case laws

from Indian judiciary are also discussed herewith. At last the

conclusion and suggestion is also written to sum up the writing in

short.

CHAPTER-1

HISTORY PRIOR TO SECTION 498 (A) IPC:

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"Some women are indeed better (than men). Bring her up, O Lord

of men. There are women who are wise, virtuous, who have high

regard for mother-in-law, and who are chaste. To such noble wife

may be born a valiant son, a Lord of Realms, who will rule a

kingdom."

 Status Of Women In Ancient And Medieval India

“Rise up woman,":-

In ancient India, women occupied a very important position,

In fact, a superior position, to men. "Sakthi" a feminine term

means "power" and "strength". All male power comes from

the feminine. Literary evidence suggests that kings and

towns were destroyed because the rulers troubled a single

woman.

In Vedic times women and men were equal in many aspects.

Women participated in the public sacrifices alongside men. One

script mentions a female rishi Visvara. Some Vedic hymns, are

attributed to women such as Apala, the daughter of Atri, Ghosa,

the daughter of Kaksivant or Indrani, the wife of Indra. Hindu

 9

religion has been occasionally criticized as encouraging inequality

between men and women, towards the detriment of Hindu

women. This presumption is inaccurate. Hindu women enjoyed

rights of property from the Vedic Age, took a share in social and

religious rites, and were sometimes distinguished by their

learning. There was no seclusion of women in India in ancient

times.

Women were made eligible for admission to what was known as

the Bhikshuni-Sangha, the Order of Nuns, which opened to them

avenues of culture and social service and ample opportunities for

public life.

Women must be honored and adorned by their father, brothers,

husbands, and brother-in-law who desire great good fortune.

Where women, verily are honored, there the gods rejoice; where,

however, they are not honored, there all sacred rites prove

fruitless. Where the female relations live in grief, that family soon

perishes completely; where, however, they do not suffer from any

grievance that family always prospers.

 10

The status of women in any civilization shows the stage of

evolution at which, the civilization has arrived. The term 'status'

includes not only personal and proprietary rights but also duties,

liabilities and disabilities. In the case of a Indian woman, it means

her personal rights, proprietary rights, her duties, liabilities and

disabilities vis-a-vis the society and her family members.

With regard to the status of women in Indian society at large, no

nation has held their women in higher esteem than the Hindus.

Perhaps, no other literature has presented a more admirable type

of woman character than Sita, Maitriya, Gargi. The Indian

civilization has produced great women ranging from Braham

vadinis (lady Rishl) to states woman, from ideal wife to warrior

queen. It dates back to thousands of years. Hindu mythology

witnesses that the status of Hindu woman during the vedic period

was honourable & respectable.

Now that we are no more under aggression or invasion, we should

allow the women community to regain their power, fame and

name. It is we, who made Indira Gandhi, a woman as the prime

Minister. It is we who placed the Mother before the Father in

 11

priority for reverence? Matr devo bhava was the first Upanishad

exhortation to the young. Hinduism is the only religion whose

symbolism places the Feminine on a par with the Masculine in the

profound concept of Siva-Sakthi culminating in the image of

Ardharnari-Isvara. We have honored our country as our

Motherland "Bharat Mata" and our nationalism has grown up

from the seed Mantra "Vande Mataram".

To analyze the impact of Islam on the status of women we have to

look at the immediate pre-Islam Meccan society. It was tribal but

had an active mercantile class The prophet's first wife was a

businesswoman; the prophet had actually been her employee. The

first Umayyad ruler's (Muaviya) mother Hinda actually controlled

her clan and incited them to fight against Muslims. Women used

to openly propose to men. Infact when the prophet accompanied

by his uncle, was going to visit his future wife Bibi Khatija to

propose to her, a woman stopped him on the way and offered him

a hundred camels if he would marry her. "From affection springs

grief, From affection springs fear, For one who is wholly free from

affection, There is no grief, much less fear."

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One would expect that in medieval times women were almost like

domesticated pets caged in the house, considering all the equality

and libertarian movements the mankind has gone though.

Lawmaker Manu's oft-quoted statement that women are not

worthy of freedom strengthens this expectation. However, the

inscriptions, literary sources and sculptures of the period give an

astonishingly different picture of status of women in South India

in medieval times. It is evident from an inscripture of 1187 A.D.

that the Jain nuns enjoyed the same amount of freedom as their

male counterparts. There were female trustees, priestesses,

philanthropists, musicians and scholars.

Bondmaids And Working Women:-

All menial tasks like cleaning in temples and private households

were undertaken by bondmaids whose position was not high in

the society. The saint-poet Basaveshwara tried to better their lot

and that of their children by declaring that after initiation into

Veerashaivism, the latter were to be considered holy and duly

honored. In addition to their household duties, women gave a

helping hand to their men in their vocations. The occupation of a

 13

nurse (dhatri) was quite common. Women also worked in fields.

Institution Of Marriage:-

Marriage was compulsory for all the girls except for those opted

for asceticism. Brahman girls were married between ages 8 and 10

from sixth or century onwards up to the modern times. Polygamy

was permitted to all who could afford and it was especially popular

among Kshatriaysa for political reasons. According to Mansasollsa,

the king should marry a Kshatria girl of noble birth for a chief

queen though he is permitted to have Vaisya or Sudra wives for

pleasure.

 Sati Or Sahagamana:-

Sati was prevalent among certain classes of women, who

either took the vow or deemed it a great honor to die on

the funeral pyres of their husbands. Ibn Batuta observed

that Sati was considered praiseworthy by the Hindus,

without however being obligatory. The Agni Purana

declares that the woman who commits sahagamana goes

to heaven and Medhatiti pronounced that Sati was like

 14

suicide and was against the Shastras. In an age of such

divergent views, women of the Deccan followed a middle

path. They were not coerced, although several wives

committed Sati. The majority of the widows did not

undergo Sati. (see: Love? Duty? or Sacrifice?)

 Widows:-

Alberuni writes that Indian women preferred self

immolation by Sati to the suffering of life of a widow. Ibn

Batuta also felt that the plight of widows was miserable. A

widow was considered an inauspicious person and was

prohibited from wearing colorful clothes, ornaments,

decorate hair, as is seen from descriptions in literature.

A few women of the time who despised their husbands, attracted

other men by wanton behaviors. A sculpture in Bhatkal depicts a

case of a woman's infidelity. A husband catches the paramour of

his wife red-handed and is about to punish him.

 Position of women before independence:-

The Conflict of Women in 20th Century India Throughout

recorded history, women the world over have been held to

 15

different standards than men. They have been consistently

oppressed in nearly all aspects of life, from political to

personal, pulic to private. In the 20th century, great strides

have been taken to end this oppression and level the playing

field.

To understand the position women found themselves in at the

dawn of the 20th century, one must have a general understanding

of the numerous historical women's conflicts unique to the

Subcontinent. It took the overwhelming success of Gandhi's

nonviolent revolution to unite women politically and create the an

atmosphere whereby women, empowered by the times, could

take a stand for their equality. The 1970's saw the beginning of a

highly organized modern women's movement in India. Violence

against women was one of the main focuses of the movement.

Harassment, wife-beating, rape, and dowry deaths were all too

common, and police enforcement was ineffective as were most

attempts at prosecution. Commonly called atrocities against

women, these acts occurred frequently.

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A converted Christian upon her return to India, Ramabia opened

schools for high caste women. This effort, in conjunction with

various projects Ramabia worked on for women, was far ahead of

its time and it would take nearly a century before women would

tightly bind together to formally resist oppression. Early in the

20th century women were forbidden to protest their condition or

even to congregate to discuss the matter. This was a right even the

lowest cast males, the untouchables, was bestowed. It was a

common belief at the time, that free women would inevitably

come to neglect their marital responsibilities. The Indian National

Congress, led by Gandhi, was one of the first political organizations

to actively include woman, even women formally in Purdah.

The population base of this movement was the rural and the

toiling. This was important because the women of this group were

already organized, although not all of these organizations with this

base turned their focus toward feminist causes. 1974 was a pivotal

year for the movement. Not only did it see the founding of POW

(the Progressive Organization of Women), but it was the year that

the official Status of Women Commission published their report,

 17

Towards Equality, on women's low and ever decreasing status in

Indian society. This paper would add much fuel to the impending

fire and validate it to the mainstream population. There were large

conferences in Pune and Trivandrum in 1975 on women's issues

further bringing the movement into the mainstream. Many

autonomous groups popped up with different agendas and issues.

Violence against women (VAW) is a phenomenon that cuts across

boundaries of culture,class, education, ethnicity and age. The

feminist movement of the 70s and 80s made major contribution

in getting VAW recognised as a critical area of concern. It is an

important human rights. In the 1980s, the incidences of ‘dowry

death’ were steadily rising in India, so women’s organisations

across the country pressurised the Criminal Law Amendment

Committee (1982) and urged the government to provide

legislative protection to women against domestic violence and

dowry, so that the victim gets justice while she is still alive. As a

result of the intense campaigning and lobbying, significant

amendments were made in the Indian Penal Code, the Indian

 18

Evidence Act and the Dowry Prohibition Act, with the intention of

protecting women from marital violence, abuse and dowry

demands. The most important amendment came in the form of

the introduction of Section 498A in the Indian Penal Code (IPC).

This was the first time that an attempt was made to consider

domestic violence against women a criminal offence.

S.498A was introduced in the year 1983 to protect married women

from being subjected to cruelty by the husband or his relatives.

A punishment extending to 3 years and fine has been prescribed.

The expression ‘cruelty’ has been defined in wide terms so as to

include inflicting physical or mental harm

to the body or health of the woman and indulging in acts of

harassment with a view to coerce her or her relations to meet any

unlawful demand for any property or valuable security.

Harassment for dowry falls within the sweep of latter limb of the

section. Creating a situation driving the woman to commit

suicide is also one of the ingredients of ‘cruelty’. The offence under

s.498A is cognizable, non-compoundable and non-bailable. The

section is extracted below:

 19

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

punishable 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 willful 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

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.”

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

 20

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 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 course of time, a spate of reports of misuse of

the section by means of false / exaggerated allegations and

implication of several relatives of the husband have been pouring

in. Though there are widespread complaints and even the judiciary

has taken cognizance of large scale misuse, there is no reliable

data based on empirical study as regards the extent of the alleged

misuse. There are different versions about it and the percentage

of misuse given by them is based on their experience or ipse dixit,

rather than ground level study.

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CHAPTER-2

CONCEPT OF CRUELTY IN INDIA AND LAWS

RELATING TO CRUELTY:-
Meaning of Cruelty:

Cruelty is one of the grounds for a divorce petition under Hindu

Marriage Act, 1955 and various other matrimonial laws of India.

The Supreme Court of India through various decisions has

explained the concept of cruelty.

It was held in ‘Kaliyaperumal vs. State of Tamil Nadu ’[1], 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
 23

1
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 vs. Sunita Malik ’[2] , 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 coerce 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 includes following:

(a) Cruelty by vexatious litigation

(b) Cruelty by deprivation and wasteful habits

(c) Cruelty by persistent demand

(d) Cruelty by extra-marital relations

1
. Kaliyaperumal vs. State of Tamil Nadu, AIR 2003 SC 3828.
2. Inder Raj Malik vs. Sunita Malik ,1986 RLR 220.
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(e) Harassment for non-dowry demand

(f) Cruelty by non-acceptance of baby girl

(g) Cruelty by false attacks on chastity

(h) 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 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 vs. Mrs. Sumita Malik ’, 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.

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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 Haryana ’[3]2,

involving the death by burning of a newly married woman, the

3
. Wazir Chand vs. State of Haryana, AIR 1989 SC 378.
 26

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 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.

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Sec 498A and the Allegation of Misuse:

In the last 20 years of criminal law reform a common argument

made against laws relating to violence against women in India has

been that women misuse these laws. The police, civil society,

politicians and even judges of the High Courts and Supreme Court

have offered these arguments of the \"misuse\' of laws

vehemently. The allegation of misuse is made particularly against

Sec 498A of the IPC and against the offence of dowry death in Sec

304B. One such view was expressed by former Justice K T Thomas

in his article titled \'Women and the Law\', which appeared in The

Hindu.21 The 2003 Malimath Committee report on reforms in the

criminal justice system also notes, significantly, that there is a

\"general complaint\" that Sec 498A of the IPC is subject to gross

misuse; it uses this as justification to suggest an amendment to the

provision, but provides no data to indicate how frequently the

section is being misused. It is important therefore that such

\"arguments\" are responded to, so as to put forth a clearer

 28

picture of the present factual status of the effect of several

criminal laws enacted to protect women.

Domestic violence and abuse by spouses and family members are

complex behaviours and the social organisation of courts, the

police and legal cultures systematically tend to devalue domestic

violence cases. Sec 498A was introduced in the IPC in 1983 and the

reforms of the past 20 years have not been adequately evaluated

at all by the government with respect to their deterrence goals,

despite the institutionalization of law and policy to criminalise

domestic violence. A program of research and development is

urgently required to advance the current state of knowledge on

the effects of legal sanctions on domestic violence. The narrow or

perhaps almost negligible study done by law enforcement

agencies about the deterrent effects of legal sanctions for

domestic violence stands in high contrast with the extensive

efforts of activists, victim advocates and criminal justice

practitioners in mobilising law and shaping policy to stop domestic

violence. It is important to do these studies to correct the general

 29

misconceptions that women are misusing the law by filing false

cases against their husbands and in-laws in order to harass them

and get them convicted. The perspective of the state and its

agencies needs to change from that of protecting the husbands

and in-laws against potential \"misuse\" of the laws of domestic

violence to that of implementing their real purpose – to recognise

that such violence is a crime and protect women who have the

courage to file complaints against their abusers.

Article 15 of Indian Constitution:

Article 15 of the Constitution prohibits discrimination on grounds

of religion, race, caste, sex or place of birth. However, it allows

special provisions for women and children. Article 21A provides

for free and compulsory education to all children from the ages of

six to 14 years. Article 24 prohibits employment of children below

14 years in mines, factories or any other hazardous employment.

The court also took note of Article 14 guaranteeing equality, and

Article 21 providing that a person cannot be deprived of life and

 30

liberty except according to procedure established by the law.

Similarly, Article 23 prohibiting human trafficking and forced

labour was also referred to in the court’s judgment.

Moving away from fundamental rights to the directive principles,

the court pressed into service provisions relating to the health of

women and children. Article 39(f) directs the State to ensure that

children are given opportunities and facilities to develop in a

healthy manner and in conditions of freedom and dignity, and that

childhood and youth are protected against exploitation and moral

and material abandonment. Article 42 directs the State to make

provisions for just and humane conditions of work, and maternity

beliefs. Article 45 stipulates that the State shall provide early

childhood care and education for all children until the age of six.

Article 47 lays down the raising of level of nutrition and standard

of living of people, and improvement of public health as a primary

duty of the State.

This section tries to maintain that every married woman needs to

be given due respect and treated with care. It reinforces the fact

that a woman is not a toy to be played with, to be thrown away at

 31

one’s whims and fancies and treated as inferior to any other. It

inherently asks for husbands to treat their wives well and not

misbehave or demand unjustly which in a way sends forth a

message that a woman is a commodity for sale.

What section 498A IPC tries to do is prevent and punish the above

act and re-assert a woman’s right to live a peaceful and happy life.

Use of Section 498 A by Indian Courts:

Indian Courts had been using this provision to safeguard the

women from facing the cruelty faced by them at their

matrimonial home.

9 out of 10 of the cases are always related to dowry, wherein the

woman is continuously threatened for want of more money and

property which if remains unfulfilled , the married woman is

tortured, threatened, abused- both physically and verbally and

harassed. Like in the case of Ram Kishan Jain &Ors v State of

 32

Madhya Pradesh[4]3 due to insufficiency of dowry demands the

woman was administered calmpose tablets and thereafter she

even cut the arteries of both her hands. Sometimes, dowry may

not be the cause but the woman for several reasons like her

complexion or family status is tortured to death.

In the case of Surajmal Banthia & Anr. v. State of West Bengal[5]4

, the deceased was ill-treated and tortured for several days and

even not given food several times. Her father- in-law also

misbehaved with her quite often. This is the treatment that

several young brides face when they move out of their parents’

home and into the house of her in-laws’. It is the duty of the court

to prevent any of these abusers from escaping. The increasing rate

of bride burning for want of more dowry and brutal torture of

young wives, together with a clear escape of the abuser is a clear

4
. Ram Kishan Jain &Ors v State of Madhya Pradesh, II (2000)
DMC 628.
5
. Surajmal Banthia & Anr. v. State of West Bengal II, (2003) DMC
546.
 33

indication that the court has not taken any strong measures for

the implementation of S. 498A IPC properly.

As stated earlier many a times this victim turns into the abuser and

is clearly not wronged but instead wrongs the husband and his

family for no fault of theirs. Several cases show that the married

woman takes advantage of the section and sends the respondents

to jail under the ambit of this section.

Many women rights’ groups justify the abuse of this section as

being a common feature with all other laws and that also the ratio

of false cases to that of true ones as being very low. But this still

does not change the truth that there is slowly a rise in the abuse

of S.498A IPC.

In many judgments, the court has not considered mental cruelty

caused to the woman but has concentrated only on any sign of

physical cruelty. If evidence does not show that the woman was

physically harassed, then the court does not look into the case.

What the court does is call the woman hyper- sensitive or of low

tolerance level and having an unstable mind .

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Also S.498A IPC does not only deal with dowry deaths but also any

willful conduct on part of the husband which causes harm to the

wife’s ‘ life, limb or health (whether mental or physical).’To prove

that cruelty was caused under Explanation a) of S.498A IPC it is not

important to show or put forth that the woman was beaten up-

abusing her verbally, denying her conjugal rights or even not

speaking to her properly would fall into the ambit of mental

cruelty. Showing any mercy to abusers or giving them the ‘benefit

of doubt’ when some proof to torture at their hands is present is

completely wrong.

Like in the case of Ashok Batra & Ors v State[6]5 even though

letters of the deceased stating that harassment had taken place

was present, not treating them as strong evidence and giving the

appellants a benefit of doubt without ordering for a further

investigation into the matter is wrong.

. Ashok
6
Batra & Ors v State, 102 (2003) DLT 642.
 35

The judges have in several instances made a very narrow

interpretation of this section, considering it to be only cruelty in

relation to unlawful demands or dowry demands. In a particular

case, the court went to the extent of stating that ‘merely because

her in-laws or husband were to chastise the woman for improper

or immoral conduct, it does not necessarily amount to cruelty. ’

This act of chastising the woman clearly amounts to mental

cruelty, something that the court apparently failed to notice. Here,

considering the woman to be a hyper- sensitive woman not used

to usual wear and tear of social life is completely erroneous.

In the case of Bomma Ilaiah v State of AP[7]6 the husband of the

complainant tortured the woman physically by forcing his wife to

have sexual intercourse with him. He inserted his fingers and a

stick in her vagina, causing severe pains and bleeding but the court

found the husband of this Woman guilty only under S. 325 IPC and

not S, 498A IPC. Why? Her life both physically and Mentally was at

risk. Didn’t the court notice this?

7. Bomma Ilaiah v State of AP, AIR 2005 AP 498.

 36

The court has in another case not punished the guilty under

S.498A IPC even though medical Reports clearly showed that the

death was homicidal by throttling. This was simply because

According to the court, even though there were dowry demands

in the past, the court felt that Proximity of the death to be caused

due to such a demand was unlikely . Who decides this Proximity?

The cause and its effect on the woman’s health or life may be

profound and even cause her mental unrest at a later stage.

While on the on hand, women’s emancipation is the need of the

hour and prevention of ever increasing dowry deaths and

harassment needs to be stopped, it is also clearly noticed that

women today are still tortured and often the court, being the

ultimate savior also does not come to the rescue to protect these

women.

Misuse of Section 498 A in Modern World:

A violation of this section, its goals and its aims is on the rise with

the woman frivolously making false allegations against their

husbands with the purpose of getting rid of them or simply hurting

the family.
 37

The abuse of this section is rapidly increasing and the women

often well- educated know that this section is both cognizable and

non-bailable and impromptu works on the complaint of the

woman and placing the man behind bars.

Like in the case of Savitri Devi v Ramesh Chand & Ors[8]7 , the court

held clearly that there was a misuse and exploitation of the

provisions to such an extent that it was hitting at the foundation

of marriage itself and proved to be not so good for health of

society at large. The court believed that authorities and lawmakers

had to review the situation and legal provisions to prevent such

from taking place. This section was made keeping in mind

protection of the married woman from unscrupulous husbands

but is clearly misused by few women and again this is strictly

condemned in Saritha v R. Ramachandran[9]8 where the court did

notice that the reverse trend and asked the law Commission and

Parliament to make the offence a non-cognizable and bailable

8. Savitri Devi v Ramesh Chand & Ors, 2003criLJ 2759.

9. Saritha v R. Ramachandran, I (2003) DMC 37.
 38

one. It is been a duty of the court to condemn wrongdoings and

protect the victim but what happens when the victim turns into

the abuser? What remedy does the husband have here? On this

ground, the woman gets to divorce her husband and re-marry or

even gain money in the form of compensation. Many women

rights’ groups go against the idea of making the offence a non-

cognizable and bailable one thinking that this gives the accused a

chance to escape conviction. But what this would do is that it

would give a fair chance to the man and above all help meet the

ends of justice. Justice must protect the weaker and ensure that

the wronged is given a chance to claim back his/her due.

When women accuse their husbands under S.498A IPC by making

the offence non-bailable and cognizable, if the man is innocent he

does not get a chance quickly to get justice and ‘justice delayed is

justice denied’. Therefore, the lawmakers must suggest some way

of making this section non-biased to any individual such that the

guilty is punished and the person wronged is given justice.

 39

The position of the women in India is still bad. They still need rights

to alleviate themselves in society but many a times fail to notice

others’ rights as long as their rights are ensured. The educated

woman of today must agree with the mantra of equality and

demand the same but the trend is slowly getting reversed. Women

are taking due advantage of the fact that they are referred to as

the ‘weaker sex’ and on the foundation of rights ensured to them

are violating others’ rights.

 40

Recent Judgements:

ROLE OF JUDICIARY/WHAT JUDICIARY SAYS?

Judicial decisions

In the case of Preeti Gupta Vs. State of Jharkhand1 (supra)[10]

9
decided in 2010, the Supreme Court observed that a serious

relook of the provision is warranted by the Legislature. The Court

said: “It is a matter of common knowledge that exaggerated

versions of the incidents are reflected in a large

number of complaints”. The Court took note of the common

tendency to implicate husband and all his immediate relations.

The Supreme Court directed the Registry to send a copy of

0. Preeti
1
Gupta Vs. State of Jharkhand, Air 2010 (SC) 3363.
 41

10
judgment to the Law Commission and Union Law Secretary so

that appropriate steps may be taken in the larger

interests of society. In an earlier case also - Sushil Kumar Sharma

Vs. UOI 2 (2005)[11], the Supreme Court lamented that in many

instances, complaints under s.498A were 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 or allegations can be

appropriately dealt with”. It was also observed that “by misuse of

the provision, a new legal terrorism can be unleashed”.

Various High Courts in the country have also noted that in several

instances, omnibus allegations are made against the husband and

his relations and the complaints are filed without proper

justification. The need to exercise caution in the case of arrest of

the husband and his relatives has been stressed while observing

that by such a step, the possibility of reconciliation becomes

remote and problematic. In some of the cases, directions were

11. SHUSHIL KUMAR SHARMA Vs. UOI, JT 2005 (6) SC 266.

 42

given by the High Courts for regulating the power of arrest and for

taking necessary steps to initiate conciliatory effort at the earliest

point of time. Reference may be made in this context to the

decision of Delhi High Court in Chandrabhan Vs. State (order

dated 4.8.2008 in Bail application No.1627/2008)[12] and of the

Madras High Court in the case of Tr. Ramaiah Vs. State (order

dated 7.7.2008 and 4.8.2008 in MP No.1 of 2008 in Crl. O.P.

No.10896 of 2008)[13]11. In the former case, it was observed that

“there is no iota of doubt that most of the complaints are filed in

the heat of the moment over trifling fights and ego clashes. It is

also a matter of common knowledge that in their tussle and

ongoing hostility, the hapless children are the worst victims”. The

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.

2. Chandrabhan
1
Vs. State, RLW 2007 (1) Raj 98.
13. Tr. Ramaiah Vs. State, AIR 1975 Kant 77.
 43

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 5 settlement, then, necessary steps should, in the

first instance, betaken to ensure return of sthridhan and dowry

articles to the complainant.

v) Arrest of main accused be made only after thorough

investigation has been conducted and with the prior approval of

the ACP/DCP.

vi) In the case of collateral accused such as in-laws, prior approval

of DCP should be there on the file.”

The other directions given were :-

The Delhi Legal Services Authority, National Commission for

Women, NGOs and social workers working for upliftment of

women should set up a desk in Crime Against Women Cell to

provide them with conciliation services, so that before the State

machinery is set in motion, the matter is amicably settled at that

very stage. The need to explore the possibility of reunion and

 44

conciliation when the case reaches the Court was also stressed. In

conclusion, it was observed that in these matters, the parties

themselves can adopt a conciliatory approach without

intervention of any outside agency.

In an earlier judgment of Delhi High Court in the case of “Court on

its own in Motion vs. CBI”[14], reported in 109 (2003) Delhi Law

Times 494, similar directions were issued to the police and courts

regarding arrest, grant of bail, conciliation etc. It appears that

these procedural directions issued by the High Court are being

followed in Delhi as stated by senior police officers of Delhi,

though according to the version of some lawyers, there are many

instances of violation at the police station level. It is to be

mentioned that after the order in Chander Bhan’s case, (supra),

the Commissioner of Police of Delhi issued 6 Standing Order

No.330 of 2008 compiling the “Guidelines for Arrest” as laid down

by the Supreme Court and Delhi High Court. The judgments

relevant to Section 498-A and the directions issued therein were

 45

referred to in the Standing Order. It is learnt that the practice of

obtaining the permission of ACP/DCP level 12

officers before effecting arrest of husband/relatives is being

followed in Delhi. In many States, according to information

received by the Chairman of this Commission, there are no

systemic guidelines and there is no regular monitoring of this type

of cases by the higher officials. Ad-hoc practices and procedures

are in vogue.

The directives given by the Madras High Court in the case of Tr.

Ramiah are as follows:

i) Except in cases of dowry death/suicide and offences of

serious nature, the Station House Officers of the All Women Police

Stations are to register F.I.R. only on approval of the Dowry

Prohibition Officer concerned.

ii) Social workers/mediators with experience may be

14. Court on its own in Motion vs. CBI, 109 (2003) DLT 494.
 46

nominated and housed in the same premises of All Women Police

Stations along with Dowry Prohibition Officers.

iii) Arrest in matrimonial disputes, in particular arrest of

aged, infirm, sick persons and minors, shall not be made by the

Station House Officers of the All Women Police Stations.

iv) If arrest is necessary during investigation, sanction

must be obtained from the Superintendent of Police concerned by

forwarding the reasons recorded in writing.

v) Arrest can be made after filing of the final report

before the Magistrate concerned if there is non-cooperation and

abscondance of accused persons, and after receipt of appropriate

order (Non-Bailable Warrant).

vi) Charge sheet must be filed within a period of 30 days

from the date of registration of the F.I.R. and in case of failure,

extension of time shall be sought for from the jurisdiction

Magistrate indicating the reasons for the failure.

vii) No weapon including lathis/physical force be used while

handling cases at the All Women Police Stations.

viii) Complainants/victims should be provided with adequate

 47

security/accommodation at Government Home and interest of the

children must be taken care of.

ix) Stridana properties/movables and immovable to be restored at

the earliest to the victims/complainants and legal aid may be

arranged for them through Legal Services Authority for immediate

redressal of their grievances.”

Pursuant to this order, the Director-General of Police, Tamil Nadu,

issued a circular to the effect that the said orders of the Court

should be strictly followed. In the further order dated 4.8.2008,

the Court observed that when the I.O. seeks remand of the

accused, the Magistrate must examine the necessity therefor and

the remand should not be ordered mechanically on the mere

request of the I.O. The Magistrate should be satisfied that

sufficient grounds exist for directing remand. Further, the Court

deprecated the practice of conducting lengthy panchayats in

police stations.

As regards the decisions of Delhi and Madras High Courts referred

to above, there are a few comments which we consider

 48

appropriate to make. The decisions make the offence practically

bailable by reason of various qualifications and restrictions

prescribed. The decision of Madras High court

goes to the extent of saying that arrest can be made only after

filing of the final report before the Magistrate and on the basis of

non-bailable warrant issued by the Magistrate. Whether this

judicial law-making based on experience and expediency of

restraining the power of arrest in matters arising out of

matrimonial problems, is legally sound is one question that arises.

Secondly, whether the registration of FIR can be deferred for

sometime i.e., till initial investigation and reconciliation process is

completed, is another point that

arises.

In Bhajan Lal’s case[15], 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
 49

substance thereof in the prescribed form, that is to say, to register

a case on the basis of such information.”13

To comply with the procedure as laid down In D.K. Basu’s

case, the Hon’ble Supreme Court in its judgement dated 18.12.96

in CRL CWP No.539/86 – DK Basu vs. State of West Bengal has

stated that the power of arrest without warrant should be

exercised only after a reasonable satisfaction is reached, after

some investigation as to the genuinness and

bonafides of a complaint and a reasonable belief as to both the

person’s complicity as well as the need to effect arrest. Therefore,

in any matrimonial dispute, it may not necessary in all cases to

immediately exercise the powers of arrest. Recourse may be

initially taken to dispute settlement mechanism such as

conciliation, mediation, counseling of the

parties etc.” D.K. Basu case [(1997) 1 SCC 416)].

15. STATE OF HARYANA VS. BHAJAN LAL, AIR 1992 SC 604.

16. LALITA KUMARI V. STATE OF UTTAR PRADESH,(2012) 4
SCC 1.
 50

However, in a recent case of Lalita Kumari v. State of Uttar

Pradesh[16]14, 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, ld.

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.

16. LALITA KUMARI V. STATE OF UTTAR PRADESH,(2012) 4 SCC 1.

 51

Indian Courts in their recent judgements have looked into the

matter of misuse of Sec.-498A I.P.C. As this Section provides that

when an F.I.R. is lodged all the family members of the husband can

be roped in. In their judicial observations and remarks, the courts

have expressed deep anguish over this law. Here are some recent

judicial observations.

1990 Punjab and Haryana High court observed in Jasbir Kaur vs.

State of Haryana[17]15 , case as:

“It is known that an estranged wife will go to any extent to rope in

as many relatives of the husband as possible in a desperate effort

to salvage whatever remains of an estranged marriage.”

In Kanaraj vs. State of Punjab[18]16 , the apex court 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

7. Jasbir
1
Kaur vs. State of Haryana, AIR2003(SC) 3696.
1
8. Kanaraj vs. State of Punjab, 1960 Cri LJ 358.
19. State Vs. Srikanth, 2002 Cri LJ 3605.
 52

cannot be held responsible by mere conjectures and implications.

The tendency to rope in relatives of the husband as accused has to

be curbed”

Karnataka High Court, in the case of State Vs. Srikanth[19] ,

observed as:

“Roping in of the whole of the family including brothers and

sisters-in-law has to be depreciated unless there is a specific

material against these persons, it is down right on the part of the

police to include the whole of the family as accused”

Supreme Court, In Mohd. Hoshan vs. State of A.P.[20]17 case,

observed as:

“Whether one spouse has been guilt of cruelty to the other is

essentially a question of fact. The impact of complaints, accusation

or taunts on a person amounting to cruelty depends on various

factors like the sensitivity of the victim concerned, the social

background, the environment, education etc. Further, mental

0. Mohd.
2
Hoshan vs. State of A.P.,AIR 2002 (SC) 3270.
 53

cruelty varies from person to person depending on the intensity of

the sensitivity, degree of courage and endurance to withstand

such cruelty. Each case has to be decided on its own facts whether

mental cruelty is made out”

LAWS RELATING TO CRUELTY:-

The Dowry Prohibition (DP) Act

Introduced and taken up by then Indlaw minister Ashoke Kumar

Sen, this Act[21] prohibits the request, payment or acceptance of a

dowry, "as consideration for the marriage", where "dowry" is

defined as a gift demanded or given as a precondition for a

marriage. Gifts given without a precondition are not considered

dowry, and are legal. Asking or giving of dowry can be punished by

an imprisonment of up to six months, a fine of up to Rs. 15000 or

the amount of dowry (whichever is higher), or imprisonment up to

5 years. It replaced several pieces of anti-dowry legislation that

had been enacted by various Indian states.

Section 4 of the said Act states:

 54

4. Penalty for demanding dowry.- If any person demands, directly

or indirectly, from the parents or other relatives or guardian of a

bride or bridegroom, as the case may be, any dowry, he shall be

punishable with imprisonment for a term which shall not be less

than six months, but which may extend to two years and with fine

which may extend to ten thousand rupees. Provided that the Court

may, for an adequate and special reasons to be mentioned in the

judgment, impose a sentence of imprisonment for a term of less

than six months.[22]18

However, as per section 3 of the Act,[23] both the giver and the

receiver are sought to be punished. {{quote| 3. Penalty for 19giving

or taking dowry.- [(Note: Section 3 re-numbered as sub-section (1)

thereof by Act No.63 of 1984, sec.3) (1)] If any person, after the

commencement of this Act, gives or takes or abets the giving or

21.^ "Section 4- The Dowry Prohibition Act, 1961".

Vakilno1.com. Retrieved 2013-02-18.

22.^ "Section 3- The Dowry Prohibition Act, 1961".

Vakilno1.com. 1986-11-19. Retrieved 2013-02-18.
 55

taking of dowry, he shall be punishable with imprisonment for a

term which shall not be less than [(Note: Subs. by Act 43 of 1986,

Sec.3) five years, and with fine which shall not be less than fifteen

thousand rupees or the amount of the value of such dowry,

whichever is more:]

Provided that the Court may, for a adequate and special reasons

to be recorded in the judgment, impose a sentence of

imprisonment of a term of less than [(Note: Subs. by Act 43 of

1986, Sec.3) five years.]

(2) [(Note: Ins. by Act 63 of 1984, sec.3) Nothing is sub section (1)

shall apply to, or in relation to, -

(a) Presents which are given at the time of a marriage to the bride

(without any demand having been made in that behalf).

(b) Presents which are given at the time of a marriage to the

bridegroom (without any demand having been made in that

behalf).
 56

Provided that such presents are entered in a list maintained in

accordance with the rules made under this Act.

Provided further that where such presents are made by or on

behalf of the bride or any person related to the bride, such

presents are of a customary nature and the value thereof is not

excessive having regard to the financial status of the person by

whom, or on whose behalf, such presents are given.

IPC Section 406

This section, for offences related to Criminal Breach of Trust, is

usually applied in investigation of stridhan recovery from the

husband and his family.

Offences under this section are Non-bailable and cognizable.

Section 406.

Punishment for criminal breach of trust

 57

Whoever commits criminal breach of trust shall be punished with

imprisonment of either description for a term which may extend

to three years, or with fine, or with both.

 58

IPC Section 304B

This Section of the Indian Penal Code was inserted by a 1986

amendment. The wording of the law states:

Section 304B. Dowry death

(1) Where the death of a woman is caused by any burns or bodily

injury or occurs otherwise than under normal circumstances

within seven years of her marriage and it is shown that soon

before her death she was subjected to cruelty or harassment by

her husband or any relative of her husband for, or in connection

with, any demand for dowry, such death shall be called "dowry

death" and such husband or relative shall be deemed to have

caused her death.

Explanation:-For the purpose of this sub-section, "dowry" shall

have the same meaning as in section 2 of the Dowry Prohibition

Act, 1961 ( 28 of 1961).

 59

(2) Whoever commits dowry death shall be punished with

imprisonment for a term which shall not be less than seven years

but which may extend to imprisonment for life.

IPC Section 498A

Section 498A was inserted into the Indian Penal Code in 1983 via

an amendment.

It reads:

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 punished with

imprisonment for a term which may extend to three years and

shall also be liable to fine.

 60

Explanation-For the purpose of this section, "cruelty" means-

(a) Any willful 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 meet such

demand.

In 2005, the Supreme Court of India upheld the constitutionality

of section 498A in response to a public interest petition asserting

that the law could easily be abused with frivolous complaints. In

2010, Indian Parliament set up a committee (headed by Shri.

Bhagat Singh Koshyari) to investigate misuse of this law.

Recent study found that 75+ % cases are false and filed with

malafide intention , specially for money extortion. Marriage can

fail due to many reason , but in India maximum cases are

 61

translated in Dowry case for money extortion and/or ego

satisfaction. Reason for many false case is that, woman will not

punished for false case under this law.

Domestic Violence Act (2005/2006)

The above being criminal remedies, a civil remedy was brought

into the picture in 2005 (amended in 2006). This was called the

"Protection of Women from Domestic Violence Act".

For the purpose of this act, Domestic Violence includes the

demand for dowry:

For the purposes of this Act, any act, omission or commission or

conduct of the respondent shall constitute domestic violence in

case it -

(a) harms or injures or endangers the health, safety, life, limb or

well-being, whether mental or physical, of the aggrieved person or

tends to do so and includes causing physical abuse, sexual abuse,

verbal and emotional abuse and economic abuse; or

 62

(b) harasses, harms, injures or endangers the aggrieved person

with a view to coerce her or any other person related to her to

meet any unlawful demand for any dowry or other property or

valuable security; or

(c) has the effect of threatening the aggrieved person or any

person related to her by any conduct mentioned in clause (a) or

clause (b); or(d) otherwise injures or causes harm, whether

physical or mental, to the aggrieved person.[23]

This act empowered the lower courts to issue "protection orders"

on the complaint of a woman against her male relatives. The

protection orders could include restraining orders on the husband

and others, monetary compensation, and residence orders.

Though it is a civil remedy, violation of protection orders result in

criminal penalties (including imprisonment).

 63

Criticism

Criticism by men's rights movements

According to the men's rights movements in India, the laws suffer

from the following shortcomings:

 Gender Bias: The laws do not recognize cruelty and

domestic violence against men. The police in India almost

20
never register complaints of extortion or violence against

men in a domestic relationship, but registering a complaint

under 498A (where a woman is the aggrieved party) is

widespread.

 Vague definitions of dowry and stridhan.

 Presumption of guilt. The Dowry Prohibition Act (section 8-

A) states, "Where any person is prosecuted for taking or

abetting the taking of any dowry under Sec. 3, or the

23. ^ "THE CODE OF CRIMINAL PROCEDURE, 1973". Pw

dvhyd.ap.nic.in. 2005-09-13. Retrieved 2013-02-18.

24.^ "The Dowry Prohibition Act". Wcd.nic.in. Retrieved

2013-02-18.
 64

demanding of dowry under Sec. 4, the burden of proving

that he had not committed an offence under those sections

shall be on him."[24]

 Duplication of existing laws. Laws already exist to deal with

offences against intimidation, violence, extortion and

murder. A "dowry death" can be considered a murder, and

a demand for dowry can be considered extortion under

existing laws. The additional laws, instead of reforming the

police, mostly serve to shift the burden of proof onto the

accused.

 Human rights violations: in most cases involving non-

resident Indians, their passports are impounded and they

are restricted from traveling outside the country.

 No penalties for false complaints or perjury.

 Often gifts offered by the bride's parents to win over the

bridegroom are channeled into a dowry tunnel.[25]

Circulars

The Ministry of Home Affairs, as well as various State

governments, have issued notifications and circulars which limit

 65

the arbitrary arrests made by police during investigation of dowry-

related offences.

Demands for amending the law

The Malimath committee in 2003 proposed making amendments

to this section although such amendments were opposed by

women's groups. The Centre for Social Research released a

research report opposing amendments to section 498A. According

to this report, in the studied cases there were no convictions

based solely on section 498A. However, the report states that 6.5

percent of the studied cases were falsified. They also state that

many people believe the law has been abused by "educated and

independent minded women". A police official asserted that in his

district one-third of dowry murder cases were found to be false by

the police.On December 17, 2003, the then Minister of State for

Home Affairs, I.D. Swami, said, "There is no information available

with the Government to come to the conclusion that many

families in India are suffering due to exaggerated allegations of

harassment and dowry cases made by women against their

 66

husbands and other family members involving them in criminal

misappropriation and cruelty."[25]

In August 2010, the Supreme Court asked the Government of India

to amend the Dowry Laws to prevent their misuse.[26]

In February 2011, the Law Commission of India was considering

grounds to recommend amendments to IPC 498A.[27]

In January 2012, the Law Commission of India recommended

dilution of anti-dowry law (Section 498-A).

In its latest recommendation to the law ministry, the commission

headed by Justice PV Reddi, has recommended to the government

to make Section 498-A of the Indian Penal Code (IPC), which deals

21
with harassment for dowry and cruelty to a woman in her

matrimonial home, a compoundable offence.

25.21 ^ http://164.100.24.219/annex/200/AS230.htm

26.^ "Amend dowry law to stop its misuse, SC tells govt". The
N Times Of India. 17 August 2010.
 67

The commission said the offence should be allowed to be made

compoundable provided the women is facing no external

pressure.[27]

This means that those who would be booked in cases under this

section would find it easier to get bail.

“…it is proposed to add sub-section (2A) to Section 320 CrPC. 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. Incidentally, it underscores the need for the court

playing an active role while dealing with the application for

compounding the offence under Section 498-A,” the report said

[sic].[27]

27.^ "Misuse forces a review of dowry law". Hindustan Times.

2011-02-28. Retrieved 2013-02-18.
 68

CHAPTER-3
CRUELTY IS A GROUND OF RELIEF UNDER
SECTION 498-A:
 69

There are two classes of Indian citizens, the privileged and the

ordinary. The privileged will never get into a situation like this, as

the laws don’t apply to them. The Arjun Singh 498A case is a prime

example. Though an accused in a criminal case, he is still a Union

Minister whereas thousands of govt employees have lost their

jobs or find themselves under suspension due to an

unsubstantiated allegation.

This dissertation is meant for the not so privileged, the law-abiding

citizens who have no idea about what it means to get entangled in

a criminal case on the basis of an allegation.

Man or woman, regardless of age or marital status, if you have an

estranged `Bahu’ (daughter in law) in your family, whether she is

living/lived/never lived with you; you can be jailed under Section

498A of the IPC, based on her complaint in the police station. The

objective of the ‘Bahu’ and her parents is to subject you and your

family to an ordeal designed to break your will and ensure that you

give in to their demands. This law targets families who belong to

the middle and upper middle classes of society and NRIs, as these
 70

segments of society are vulnerable to legalized extortion by

corrupt agencies of the government.

There is no way to avoid a 498A from being filed, unless you are

very well connected or somehow manage to make her realize that

it is not in her long term interest to do so. However, you will win if

you choose to fight. A typical case will go on for 3 to 7 years.

Be prepared to lose some of your most productive years

professionally. Be prepared to lose your hair. Be prepared to

spend money and lots of it. Be prepared to shed a lot of tears.

Above all, be prepared to watch your parents and siblings suffer,

all on account of the abuse of this idiotic law.

To fight a 498A, you will need patience, courage, knowledge about

the laws, your fundamental rights, information about how others

have fought their cases, a clear idea about what they want from

you, and you need to develop the ability to think like a crook.

Things become easier of you are well connected/develop

connections with the bureaucracy. Patience and the ability to

think clearly and unemotionally are the most important qualities

needed.
 71

If you are innocent, you will eventually prevail. I assure you of this.

If you apprehend being 498A’d, don’t just stand there like a deer

caught in the headlights. From the people you talk to and from the

online portals you visit, you will learn that this is a criminal law to

combat domestic violence and dowry harassment etc, etc, etc. I’ll

ignore this and cut to the chase.

In its present form,

498a is an extortion racket

 72

In legal terms, 498A is an offence, which is:

• Cognizable: Offences are divided into cognizable and non-

cognizable. By law, the police are duty bound to register and

investigate a cognizable offence. 498A is a cognizable

offence.

• Non-Bailable: There are two kinds of offences, bailable and

non-bailable. 498A is non bailable. This means that the

magistrate has the power to refuse bail and remand you to

judicial or police custody.

• Non-Compoundable: A non-compoundable case, e.g. Rape,

498A etc, cannot be withdrawn by the petitioner. The

exception is in the state of Andhra Pradesh, where 498A was

made compoundable.
 73

In actual terms, 498A is an offence, which is:

• Cognizable: The police will register a 498A case since it is

required by law, but they don’t investigate but go on to

arrest people because of the money to be made in bribes

from both sides in a 498A case.

• Non-Bailable: Since bail is at the discretion of the magistrate,

all sorts of games will be played to have families locked up

while negotiations go on to settle the case. This may happen

in cases where the magistrates are allegedly corrupt or, the

public prosecutor and the cops are in cahoots.

• Non-Compoundable: Though 498A is non compoundable,

the courts are allowing the withdrawal of the case when the

parties agree to reconcile or settle case. In real terms, if you

pay up, the case goes away. If you don’t you’ll get stuck with

a criminal case that will go on for years.

The other characteristics of this extortion racket are:

 74

• It is a law that fosters corruption and enables govt agencies

like the police to violate Fundamental Rights.

• It plays a role in gender based vote bank politics.

• It denies justice to the real victims of dowry harassment.

• It exposes innocent families to the evils of the corrupt Indian

criminal justice system.

• This is a law poisoning the lower judiciary by exposing it to

corruption.

• Above all, this is a gamble bound to fail if the falsely accused

choose to fight back.

The sooner you realize what this law is about, the faster you will

be able to take the first steps to fight this extortion racket. It will

take years, but you will prevail. Each case is unique. But they all

have a common thread running through them. I have outlined the

high level scenario, as every case is unique and has a story line of

its’ own.

I concede that my narrative is simplistic, but the outlines apply in

most cases. This is not legal advice but more of a set of

 75

observations, opinions and suggestions. The intent is not slander

or defame any person or institution, but to raise awareness about

this pernicious law so that citizens can defend themselves. When

taking action, please do so, after seeking the advice of your lawyer.

I am assuming that you belong to the middle/upper middle class,

and there is marital discord. Your parents may have retired or are

close to retiring. You may or may not be part of an extended family

living under the same roof. Your spouse may have warned you that

she will file a 498A against you for some reason or the other. You

or your parents may have assets in some form or another such as

cash, salary, property etc. The family of your spouse may be

politically connected. If you have kids, you will have to deal with

the additional agony of watching them being treated as pawns in

this game.
 76

I have settled on 498A Wives as the best way to refer to women

who abuse Section 498A of the IPC.

Motives And Instigators:

Let’s start with the motives and instigators:

• Money: The greatest of motivators. A 498A can lead to great

terms for a fat cash settlement, or help her dad or sibling in

their ventures, etc, etc.

• Vengeance: Hell hath no fury like a woman scorned. She will

have her revenge and your family will collectively bear the

brunt of it. The 498A Wives have a soft corner for your

mother and your sister (s). Prepare your mom and sister(s)
 77

for special treatment. They may very well see the inside of

a prison.

• Guilt: She’s done something wrong, may have committed

adultery and got caught in the act. She wants to cover it up

with a dowry harassment case to garner sympathy and to

provide cover for her guilt. It also puts her in a good position

to negotiate a fat settlement and gain custody of kids, if kids

are involved. 498A will be filed when paternity is in

question. Don’t count on DNA evidence, as the courts are

reluctant to allow it. Indian law is still ruled by the evidence

act from 1872.

• She Is Just Not Into You: I’m sorry to hurt your pride, but she

just doesn’t like you and wants to get out of the marriage.

The 498A is a convenient tool to do so.

• She Is A Control Freak: She wants to control you in every

possible way. She may also want you to not support your

parents and siblings in any fashion regardless of your ability

to do so. She may want you to throw your parents out of

your/their house. Her goal is to gain control of all aspects of

 78

your life, including finances and to break the bonds and

responsibilities that tie you to your family. Her failure to do

so will result in a 498A.

• To Marry The Boyfriend: This is a new trend whereby she will

file a 498A just to force you into settling the divorce with a

chunk of cash and then go on to marry her boyfriend. They

will use your cash to set up their “Chota Sa Ghar”, or their

“Premiyon Ka Mahal” if the settlement is large enough.

In most cases, the members of her family are the instigators. If her

mother was the instigator, you’ve possibly married into a family

where the mother is a dominatrix. The woman you married thinks

that you should be under her control, because her mother wears

the pants in her house. She will file the 498A in retaliation for her
 79

failure to dominate you. If her father is the instigator, the

motivation is your money. This is a much easier case to handle. If

the case backfires, he will have a 498A-filing daughter on his hands

and marrying her off the second time round will be expensive.

Potential matrimonial matches are always wary of these filers of

498A cases. If this situation applies to your case, once you

withstand the initial onslaught and don’t give in to the threats and

extortion, they will approach you for a compromise.

498A is the perfect tool for extortion and/or to wreak vengeance

on you and your family. The main ingredients that go into making

it an extortion racket are:

• The involvement of the corrupt, Indian police force in a

domestic dispute.

• The involvement of the overburdened and unregulated lower

courts and the convoluted and lengthy Indian justice

delivery system.

• The non-enforcement of penalties (Section 182) for filing

frivolous cases or for perjury.

 80

• Political/police influence from the other side. If this is a factor

in your case, I kid you not; you are in for an ordeal that will

require extra doses of fortitude, courage and patience to

overcome.

All these factors will be used to leverage money out of you or

subject you and your family to the kind of harassment that can

only be defined as torture. It is no wonder that the Supreme Court

(Sushil Kumar Sharma Vs. Union of India Writ petition(C) no.141 of

2005)[28] has condemned 498A as “Legal Terrorism”, though ruling

498A constitutional. 22

Some Basic Terms:

These are some of the terms you will hear all the time. You need

to understand these terms.

• FIR: is the First Information Report. It is the information

recorded by the police officer on duty, given either by the

aggrieved person or any other person about the

28. (Sushil Kumar Sharma Vs. Union of India JT 2005 (6) SC

266.
 81

commission of an alleged cognizable offence. On the basis

of the F.I.R. the police commences its investigation. If the

officer in charge refuses to record the information, the

information may be sent in writing and by post, to the

Superintendent of Police who, if satisfied that such

information discloses the commission of a cognizable.

Offence shall either investigate the case himself or direct an

investigation to be made by any police officer subordinate

to him. The police are required to register every cognizable

offence, such as 498A, by law.

• Investigation: An “investigation” means search for material

and facts in order to find out whether or not an offence has

been committed. In criminal proceedings, once a Police

Officer receives information about the commission of a

cognizable offence, he is entitled to start investigation of

the matter. Investigation includes all the proceedings of

collection of evidence conducted by a police officer or by

any person who is authorized by the Magistrate in his

 82

behalf. The following information is from the website of the

AP CID.

• No male under the age of fifteen years or woman shall

be required to attend at any place other than where

they reside.

• The police officer shall orally examine the person

supposed to be acquainted with the facts and

circumstances of the case.

• A person is not bound to answer those questions,

which would have a tendency to expose him to a

criminal charge or to a penalty or forfeiture.

• No statement made by any person to a police officer in

the course of investigation in writing shall be signed

by the person making it.

• No police officer shall prevent any person from making

in the course of any investigation any statement,

which he may be disposed to make of his own

freewill.
 83

• Any police officer making an investigation may, by

order in writing ask any person being within the local

limits of his own or adjoining police station to come

to the police station for questioning and it is the duty

of the person called to report on the specified time

and place.

• Such person is bound to answer truly all questions

relating to the case put to him by the officer. No

police officer or other person shall offer or make any

such inducement, threat or promise to the person

being questioned sheet:

• Charge When a Police officer gives a Police report under

section 173 Cr.P.C. recommending prosecution, it is called a

charge sheet. After questioning the accused and hearing the

arguments, the magistrate frames charges on the accused

for which he is tried.

 84

Arrest: A person is considered to be under arrest if he or she is

confined or kept in a police station or his movements are

restricted to within the precincts of the police station.

Anticipatory Bail: Anticipatory bail is a direction by a court of

law to release a person on bail, issued even before the

person is arrested.

Bail: Bail is money that is put up for the suspect to allow him

or her to remain free until the completion of the case. Bail

basically creates a financial incentive for a suspect to appear

in court. Failure to do so results in the loss of your bail

money; you’ll also get a warrant for your arrest, and you can

add bail jumping to your criminal charge too. to understand

the laws, judgment.

 85

CHAPTER-4

THE SILENT TEARS OF SHATTERED FAMILIES

THE UGLY REALITY OF DOWRY LAW - IPC – 498A:-

 86

Before 1980's dowry deaths were said to be a widespread menace

at least in the lower economic strata of the society. There were

laws to punish the offender in the cases of murder and suicide of

married woman. But in certain scenarios where wife attempt to

suicide but survived, offenders were set free because they cannot

be charged with:-

 IPC 307 (murder attempt) because it was a suicide attempt

 IPC 306 (Abetment of suicide) because suicide never

happened.

Act 46 of 1983 with reasonably high level of clarity explains in its

‘Statement of Objects and Reasons’ that the said amendment is to

deal effectively on dowry related harassment. Supreme Court has

iterated the same in various judgments.

 87

Allegation of abuse of law

A good explanation about the abuse of this law is given by Dr.

Anupama Singh in her petition. I would like to add that due to the

heavy misuse of this law, finding genuine cases are harder than

finding a needle in the haystack. The source of data shown below

is from National Crime Records Bureau.

Motives for Abuse

IPC 498a is not the only law that is getting abused in India. Where

ever there is a street fight or boundary dispute generally both

parties get admitted in hospital and accuse each other for the
 88

“injuries”. Theft cases to cheat insurance companies are another

good example. Now the new one, aside from IPC 498a, to add to

the list and will come to top in the list sooner, rather than later, is

Protection of Women from Domestic Violence Act because of its

inherent lenient nature to literally rob money and property from

men in the household.

The key motives behind the abuse of family laws are money,

precisely ALIMONY. At present India has no set rules regarding

alimony and men or women don’t know how to handle separation;

existence of multiple maintenance laws are making divorce battle

more miserable. On the other hand this is the best indicator that

women have now come forward to the mainstream and no

longer an under privileged class.

 89

A Typical Dowry Harassment Allegation Leads To:-

1) Husband facing threats on personal safety and that of his

family from wife and in-laws. Unable to cop up with the

harassment, a good number of them opt for suicide too.

[NCRB data show below]

2) Arbitrary arrest of husband and his entire family without

any investigation.

3) Husband's home, possessions and livelihood are at high risk

and deprived by law. - Courts order huge bail amount

without looking at merits of the complaint. Those who are

in Government job get suspended because of arbitrary

 90

police custody and remand. NRIs loose their jobs because

they cant join back to work on time.

4) Husband's have absolutely no recourse when those who

exercise power over them abuse it - highly discriminatory

treatment by the police and courts because of the social and

statutory requirement to favour women.

5) Violates the fundamental right to live with dignity.

Suicide Data of India

70000
60000
Number of Suicides

50000
40000 Men
30000 Women

20000
10000
0
95
96
97
98
99
00
01
02
03
04
05
06
07
08
19
19
19
19
19
20
20
20
20
20
20
20
20
20

Year
 91

There are approximately 27,000 women being arrested per year

in 498A cases a majority of whom are acquitted.

I gathered this from the statistics published by the NCRB. Here is

the data from 2004-2006.

NCRB Data On The Women Arrested Under 498A

How can one call 498A a law meant to protect women ?

 92

Prevention is better than cure

Plugging the holes in IPC 498a may solve the current problem for

the time being, but legislator should recognize the sea change that

India has undergone, and is undergoing, and the dire need to

overhaul the entire family laws at the earliest and there should be

a rapid mechanism for sustained social engineering so as to reduce

the irretrievable damage that it makes to the grass root level man-

woman relationship.

Let me do some math here.

Total number of 498a cases registered in 2008 = 1,64,861

Approximate number of accused, taking an average of 5 per

case = 8,24,305

Total number of dowry deaths reported in 2008 = 8172

[Source: NCRB]

If I’m forced to believe that dowry harassment and death exist in

this 21st century, how much would it be proportionately, taking

 93

this death count to face value? Not to mention that the legal

PRESUMPTION and mandatory inquiry upon anyone’s request

shoots up the dowry death figures in the book.

In Narender Singh Arora Vs State (Govt. of NCT Delhi) & Ors.

[29]
Honorable Delhi High Court stated

“5. This case is a reflection of mentality which is now

taking grip of parents of a deceased wife in the

criminal cases. Whenever a woman dies an

unnatural death within seven years of her marriage

at in-laws’ house, whatever be the cause of death,

the in-laws must be hanged. This case also shows

how truth is losing significance because of the ego of

the litigants to see that in-laws should be hanged.”23

Center for Social Research, a feminist organization, in its 2005

report admits that 98% of 498a cases are false and do not end up

in conviction. That makes the number of convictions as per the

29. Narender Singh Arora Vs State (Govt. of NCT Delhi) & Ors.
CRL. REVISION PETITION NO.555/2003, DELHI HIGH COURT.
 94

data given above to 3297. Reading all those facts and figures

together I tend to believe that IPC498a is been used in its true

intend, only in case of REAL dowry death that means ONLY along

with IPC 304(B).

That being said, when we have more powerful laws IPC306

(Abetment of suicide), IPC 307 (Attempt to murder), IPC 302

(Punishment for murder) where the punishment is 10 years and

even capital punishment, what is the need to keep IPC 498a just

for harassing crores of men women age old parents and even

children?

Indian Express in today’s news (02-dec-2010) reported “Woman,

paramour booked for pushing husband to attempt suicide” which

says

“The police said Trivedi told them that he was mentally

harassed and threatened by his wife Archana, whom he

married six months ago. He claimed Archana asked him to

file a divorce case and claimed alimony. She reportedly

threatened to slap a dowry case against him and his parents

 95

and book them under domestic violence Act. Based on the

call details and SMS produced by Trivedi, the police have

registered a case against Archana, her Jamnagar-based

brother Harish Dave and her lover Anil Goswami,” said

Gandhidham police. The preliminary investigation revealed

that Archana and two other accused have been

threatening Trivedi and book him under dowry case, if he

refused to give her divorce.” [30]24

I would like to point to the first section of this document again and

request the panel to double check, whether or not we as a nation

have achieved the goal, the original intend of Act 46 of 1983.

Twenty seven years had gone by, altogether new generation

having totally different attitude and mentality with totally

different goals and ambitions in life getting into marriage and even

live-in relationship; do the circumstances that lead to Act 46 of

1983 still exist?

30. (http://www.indianexpress.com/news/woman-
paramour-booked-for-pushing-husband-to-attempt-
suicide/719119/0).
 96

Over 76,000 people were arrested while TADA was in force from

1987 to 1995. The conviction rate for these arrests was less than

one percent. TADA was later repealed on the grounds of human

rights violation. From year 1995 to 2008, 1,575,164 cases were

registered under section 498a of Indian penal code and with an

average of five accused in each case the number of arrests made

was approximately 7,875,820. Is this over 7Crore gross HUMAN

RIGHTS VIOLATIONS not enough to wipe off this notorious section

from the rule books?

 97

CHAPTER-5

THOUGHT PROVOKING QUESTIONS ABOUT 498A

Registration of FIR, arrest and court proceedings:

• When an FIR under IPC section 498A (498a) is registered, the

accused are automatically arrested and jailed without

investigation. The Supreme Court of India has ruled several times

that arrest should be an exception, and not a compulsory. Why is

there no penalty for disobeying the Supreme Court’s orders? Is it

not mental cruelty to subject a person to arrest without

investigation or reasonable cause?

• Why is there no provision in the criminal law that can serve to

deter false and exaggerated claims?

• Why does not the judicial system use its power to deter frivolous

complaints made by unscrupulous individuals and prosecutions by

corrupt law and order personnel for wasting the honorable courts’

precious time and imposing the financial burden on the public

exchequer?
 98

• Why is there no provision by which the costs relating to false

498a cases can be recorded and recovered from the complainants

to compensate the falsely accused?

• Why is there no penalty for the complainant who does not

appear to the court proceedings?

Equality of laws:

• According to established research, the frequency of husbands

committing suicide is three times that of wives committing suicide.

When a wife commits suicide it is automatically deemed to be

dowry death, under IPC section 304B. Why do we have no such

protection for husbands?[31]

• The existing laws protect a woman from cruelty and harassment

by her husband and in-laws. Why does the law not provide

protection to a man against cruelty and harassment by his wife

and in-laws?

• The Dowry Prohibition Act clearly states that the dowry giver is

also punishable under the said Act. Why do the police and 25

31. [ref: http://www.flonnet.com/fl1821/18210960.htm].

 99

judicial authorities not take any action against those who admit

that they gave dowry?

• Dowry laws were made to protect women from harassment.

What legal protection is available to a woman who is being

harassed by a daughter-in-law or sister-in-law? What legal

remedies are available to a woman whose daughter-in-law

or sister-in-law has booked a false dowry case against her?

 100

CHAPTER-6

CONCLUSION AND SUGGESTIONS TO

GOVERNMENT:-

CONCLUSION:

IPC section 498a was originally designed to protect married

women from being harassed or subjected to cruelty by husbands

and/or their relatives. This law was mainly aimed at curbing dowry

harassment. Unfortunately, this law has been misused to harass

men and their families rather than protect genuine female victims

of harassment. The Supreme Court of India itself has labelled the

misuse of section 498a as “legal terrorism” and stated that “many

instances have come to light where the complaints are not bona

fide and have been filed with an oblique motive. In such cases,

acquittal of the accused does not wipe out the ignominy suffered

during and prior to the trial. Sometimes adverse media coverage

adds to the misery.“ In agreement with the above statement, the

findings of a study conducted by The Centre for Social Research

indicated that 98 percent of the cases filed under IPC section 498a
 101

are false. Nevertheless, the law has been always justified based on

its intention of protecting women. At this point it would be

worthwhile to think about how IPC section 498a has really affected

women.

It has been argued by Government officials favouring the law that

despite the establishment of legal measures to counter

harassment of married women, there is an increase in the number

of cases of harassment. The first part of the statement suggests

that women who are harassed should be utilizing this law as a

means of protection. If harassed women indeed used the law then

we should see a decrease in the number of cases of harassment

over time. Considering the stringent consequences imposed by

the law and the inordinate delays inherent in the legal system, no

ordinary citizen, male or female, would be impudent enough to

risk being implicated under this law for the sake of satisfying their

monetary or even sadistic desires for that matter. The fact is that

many women who are actually beaten up and harassed by their

husbands and in-laws rarely file 498a or resort to other dowry

related laws. A lot of them live in rural areas, unaware of the law
 102

or lack the necessary economic and moral support from their natal

families. Going by the conviction rate the proportion of women

who have genuine cases is 2%. Most women who file 498a are

from urban backgrounds and are either capable of fending for

themselves or have enough family support to fall back on. The

proportion of women who belong to this category is 98%. In the

98% of false cases, in every instance that 1 daughter-in-law files a

false complaint at least 2 women (an innocent mother-in-law and

sister-in-law) are arrested and undergo stress, humiliation and

harassment in the hands of the exploitative police, lawyers, staff

and officials in Indian courts before being acquitted several years

later. So, in every 100 cases 2 women genuinely benefit, 98

women get away with perjury and extortion, and at least 196

women suffer needlessly.

The number of cases that are filed in police stations or courts are

the basis for the official statistics of dowry harassment. So, given

that the law allows women unlimited scope to fabricate lies (with

no penalty of perjury) and given that women are encouraged to

keep filing false cases the statistics of “dowry harassment” are

 103

bound to rise while the problem of genuine harassment is left

unchecked. So, the government has, in the name of protection of

women, done grave injustice to two groups of women. The first

group constitutes the genuine victims of dowry harassment whose

misery remains unresolved but is constantly alluded to in order to

justify the law. The second group consists of innocent mothers and

sisters of husbands who are criminalized and harassed by the

police and the legal system without any regard to their age, health

or marital status. Pregnant women, unmarried sisters, ailing

mothers and even aged grandmothers have been sent behind the

bars under false allegations but their pain and suffering has not

even been acknowledged leave alone addressed by the

Government. Through IPC section 498a, the Government is

actually protecting those women that indulge in perjury,

blackmail, extortion and harassment of their husbands and in

laws.
 104

SUGGESTIONS TO GOVERNMENT:

1. Role of Women NGOs: These organizations should investigate

complaint properly without any bias towards the woman keeping

in mind that the law is being misused largely to harass more

women in husband’s family. They should not encourage any

woman to file a criminal case against her in-laws for trivial matters.

Foreign Women Organizations should also take responsibility of

not allowing false complaint to be registered against NRI’s just to

harass and extort huge amount of money from them. These

organizations should also conduct survey/research on the misuse

of the act and should educate people about its consequences.

If these organizations are found to be assisting in filing false

complaints, then they should be made liable for prosecution in the

country where they are functioning.

2. Family Counseling Centers: Numerous cases of men being

harassed by wife or/and in-laws have come to light from different

parts of the country. As of now there is no organization, which can

really help these harassed men and his family members, to listen
 105

their side of the story and put their point of view in front of the

government. Need of the hour is to create family counseling

centers across the country to help those aggrieved families.

3. Time bound Investigation and Trial: A speedy trial of 498(a)

cases will not only ensure justice for the innocents that have been

implicated in false charges, it will also lead to prompt redressal of

the grievances of real dowry victims. The reduction in false cases

will also reduce the burden on judiciary and expedite the

processing of real cases.

4. Definition of Mental Cruelty: Mental cruelty has been vaguely

defined in the act, which leaves scope of misuse. This should be

clearly elaborated to remove loopholes in the law. There should

be provision for men also to file a case for mental cruelty by his

wife.

5. Investigation by Civil authorities: The investigation into these

offences be carried out by civil authorities and only after his/her

finding as to the commission of the offence, cognizance should be

taken. The government should create awareness among officers

about its misuse.

 106

6. Bailable: 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. Compoundable: Once FIR has been registered it becomes

impossible to withdraw the case even if wife realizes that she has

done a blunder and wants to come back to her matrimonial home.

To save institution of marriage this should be made

compoundable. Moreover, in the scenario where the couple

decides to end the marriage by mutual divorce, continuation of

criminal proceedings hamper their life.

8. Arrest Warrants: Arrest warrant should be issued only against

the main accused and only after cognizance has been taken.

Husband family members should not be arrested.

9. Penalty for making false accusation: Whenever any court

comes to the conclusion that the allegations made

regarding commission of offence under section 498a IPC are

unfound, stringent action should be taken against persons making

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the allegations. This would discourage persons from coming to

courts with unclean hands and ulterior motives. Criminal charges

should be brought against all authorities that are collaborating

with falsely accusing women and their parental families.

10. Court Proceedings: Physical appearance of the accused on

hearing should be waved or kept low to avoid hassles in appearing

to the court, especially for NRIs. The court should not ask to

surrender passport of the husband and his family which could cost

job of the husband and his family members.

11. Registration of Marriage and Gifts Exchanged: The

registration of marriages should be made compulsory along with

the requirement that the couple make a joint declaration

regarding the gifts exchanged during marriage.

12. Punish Dowry Givers: If the complainant admits giving dowry

in the complaint, the courts should take cognizance of the same

and initiate proceedings against them under the relevant sections

of the Dowry Prohibition Act

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13. Penalize corrupt Investigation Officers: If it is apparent to the

court that a fair investigation has not been conducted by the

investigation officer, and that the husband and his family have

been charge-sheeted without proper verification of the complaint,

the investigation officer should be penalized for gross negligence

of duty.

14. NRI Issues: Unless they are proven to be guilty after the due

judicial process, NRIs should be a given a fair chance to justice by

assuring them of the following -

a) Permission to return to country of employment

b) No impoundment/revocation of passport and no Interpol Red

Corner Notices.

c) No unnecessary arrests

d) Expeditious investigation and trial

15. Gender Neutral: Everyone should have equal rights and

responsibilities, irrespective of gender. In the current social

context, there should be similar laws to protect harassed husband

and his family members from unscrupulous wife.

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BIBLIOGRAPHY
 110

1. http://www.indianexpress.com/news/woman-paramour-

booked-for-pushing-husband-to-attempt-suicide/719119/0).

2. http://www.firstpost.com/fwire/law-commission-

recommends-dilution-of-anti-dowry-law-188059.html

3. "Misuse forces a review of dowry law". Hindustan Times.

2011-02-28. Retrieved 2013-02-18.

4. "Amend dowry law to stop its misuse, SC tells govt". The

Times Of India. 17 August 2010.

5. http://164.100.24.219/annex/200/AS230.htm

6. "The Dowry Prohibition Act". Wcd.nic.in. Retrieved 2013-02-

18.

7. "THE CODE OF CRIMINAL PROCEDURE, 1973".

Pwdvhyd.ap.nic.in. 2005-09-13. Retrieved 2013-02-18.

8. http://web.archive.org/web/20130120115113/http://www.

vakilno1.com/bareacts/IndianPenalCode/S304B.htm

9. "Section 3- The Dowry Prohibition Act, 1961". Vakilno1.com.

1986-11-19. Retrieved 2013-02-18.

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10.Hindu Woman's Right to Property (Past and Present), Review

author[s]: Ludwik Sternbach, Journal of the American

Oriental Society, 1962, p.94 American Oriental Society

11. DIGEST ON CRUELTY AGAINST HUSBAND, REVISED BY ABHINAV

PRAKASH, ADVOCATE SUPREME COURT OF INDIA, 2007.

12. LAW OF MARRIAGE DIVORCE AND OTHER MATRIMONIAL DISPUTES,

FORTH EDITION, P.C. PANT.

13. LAW RELATING TO CRUELTY TO HUSBAND, THIRD EDITION, P.K. DAS.

14. WWW. IPC498A.WORDPRESS.COM.

15. http://www.498a.org.