Section 498-A I.P.C. is an offence relating to marriage. Marriage is a socially- ritually recognized and voluntary union between one woman with a man which establishes rights and obligations between them, their children and between themselves and their in-laws. It is an institution where husband has the responsibility to take care and to maintain his wife. But in this great institution a stigma called ‘Dowry’ still exists. Women are ill-treated, tortured, harassed, killed and also divorced for the reason of dowry.
There is a phenomenal in matrimonial dispute in recent years. The institution of Marriage is greatly revered in our country. With the avowed object to safeguard and protect the women against the harassment, torture and cruelty in the matrimonial home, the Indian Penal Code,1860 was amended in the year 1983 and the provisions of section 498-A was inserted without considering its vulnerability of its misuse and abuse including ultimate consequences running contrary to the underline basic idea of Matrimonial Law to preserve the Marriage Institution. The said Section 498A deals with ‘’Cruelty By husband Or Relatives Of Husband’’
According to section 498 A of Chapter XXA of Indian Penal Code “whoever , being the husband or relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine.’’
This is cognizable , non-bailable and non-compoundable.
This section is enacted to fight against the dread of dowry deaths and this provision of law has been using in the courts to safeguard the married women from facing cruelty in their matrimonial homes. Most of the cases are always related to dowry wherein women are continuously threatened for want of more money and valuable property from their parents. But, in many cases the victim turns into the abuser of this provision of law and the husband and his relatives have to face serious harassment for no fault of their own. Several cases show that the married woman takes advantage of this section and send the husband and his relatives to jail under the ambit of this section because section 498A I.P.C. requires the bridegroom and his family members to be arrested on the basis of a complaint of dowry harassment that too in casual and cavalier manner. This provision of law has been widely abused or misused which can be observed in the mechanical arrest by the police. The fact that section 498-A is a cognizable, non-bailable and non-compoundable has taken it an ambiguous place of pride amongst the provisions that are used as weapons rather than shield by discontented wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In number of cases bed-ridden fathers & mothers of the husband, his married & unmarried sisters are arrested. In many cases, even the relatives of the husband who are residing abroad having no concern are also being harassed.
Of late, the provision of the law is extensively encouraged the married woman towards prevalent cheap thought to divide her husband from the accountability of dependent in-laws owing to avail the test of micro family including fiscal relaxation. Approach of sacrifice and social bonding became valueless in their lives rather like to enjoy according to self-designed beliefs. In case of failure of the effort due to rigid attitude of husband to the responsibility, the issue sometime rushes to misrepresentations of the section 498-A of IPC in the conjugal habitat and consequent of which relation of spouse blemish and ultimately budged in the direction of separation with ugly face.
The main reasons for increasing misuse of this provision of law as per my view is that nowadays women are highly ambitious, highly qualified and are not economically dependent upon their husbands. Though educated & working ladies can be good home-makers but in most of the cases earning huge sum of money by the wives make them egoistic and they become impatience, they cannot tolerate the dominion of husband over them. The dishonest women are mis-using section 498-A as a weapon to harass the in-laws in order to fulfill their illegal (arbitrary) desires/demands.
Such misuse and abuse of Section 498A of the IPC was time and again voiced by the Police, civil Society, Politicians and even Judges of the High Courts and the Supreme Court. The former Judge of the Supreme Court, Justice K. T. Thomas in his Article titled ‘Women and the Law’ appeared in the ‘Hindu’ expressed the concern over increasing misuse of the provisions of Section 498A of the IPC. 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.
In case of Savitridevi v/s. Ramesh Chand & Ors, 2003 Cr. LJ 2759 (Delhi), it was held that there was a misuse of the provisions of Section 498A of the IPC to such an extent that it was hitting at the foundation of marriage itself and prove to be not so good for health of Society at large. The Punjab & Haryana High Court in the case of Jasbir Kaur vs. State of Haryana, held that “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 the case of Kanaraj vs. State of Punjab, the apex court observed that “for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”.
The Karnataka High Court, in the case of State Vs. Srikanth 2002 Cr. LJ 3605 (Kant.) observed that “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.”
In the case of Sushil Kumar Sharma vs. Union of India and others, (2005) 6 SCC 281, the Apex Court observed that “The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. 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. Till then the Courts have to take care of the situation within the existing frame work.”
It is pertinent to note that the Law Commission in their 243rd Report dated 29th August, 2012 expressed their serious concern regarding the misuse of Section 498A of the IPC after considering various representations including the concern expressed by the Hon’ble Supreme Court and the High Court in various judicial pronouncements regarding misuse of Section 498A of the IPC. The Law Commission suggested various measures including to make the offence under Section 498A of the IPC compoundable with the permission of the Court. However, no steps have been taken by the Government/Parliament to amend Section 498A of the IPC.
In spite of the concern expressed by the Supreme Court and the High Courts and also Law Commissions regarding misuse of Section 498A of the IPC with suggestions to amend the provisions, no steps have been taken by the Parliament or the Government. In the recent judgment of the Apex Court in the case of Arnesh Kumar v/s. State of Bihar reported in AIR 2014 SC 2756 issued certain guidelines/directions (having force of law) to protect the innocent accused persons from unnecessary harassment and arrest. The Apex Court observed in Paras 6 to 8 of the said Judgment as under :-
There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the Indian Penal Code was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence Under Section 498-A of the Indian Penal Code, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases Under Section 498A, Indian Penal Code is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.
Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Code of Criminal Procedure. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.
Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest……” Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short ‘Code of Criminal Procedure), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. The value of the proportionality permeates the amendment relating to arrest.
After considering the misuse of the provisions in the said Judgment of Mr. Arnesh Kumar, the Apex Court issued following guidelines/directions to protect against the illegal cavalier arrest in implementation of Section 498A of the IPC:-
“Our endeavor in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
(1) All the State Governments to instruct its police officers not to automatically arrest when a case Under Section 498-A of the Indian Penal Code is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Code of Criminal Procedure;
(2) All police officers be provided with a check list containing specified sub-clauses Under Section 41(1)(b)(ii);
(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
(4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorize detention;
(5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;
(6) Notice of appearance in terms of Section 41A of Code of Criminal Procedure be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;
(7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.
(8) Authorizing detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”
After the said judgment of the Apex Court in the case of Arnesh Kumar, the present Government has decided to amend the Law relating to Anti-dowry including Section 498A of the IPC by making the said Section 498A of the IPC compoundable as recommended by the Law Commission in its 243rd Report. However, the said provision is not amended till date. Thus, it is clear that the problem of misuse is a social phenomenon due to financial independency and high education amongst the women coupled with weakening of affinity towards the matrimonial and family institution.