Posted in Criminal Law

A dismal setback to sec. 498A IPC

From time immemorial, married women in India have been defencelessly enduring cruelty and domestic violence at the hands of men. Cruelty against women was difficult to prove and to make it worse, there was no specific law aiming to safeguard women against such cruelty. It is not unfamiliar that crimes against women have been a barrier to the holistic development of the society.

Responding to the dire need of gender equality and curbing the menace of marital cruelty upon women due to the evil of dowry prevalent in our country, the Criminal Law (Second Amendment) Act, 1983 was enacted by the Indian Legislature which amended the Indian Penal Code, 1860 by inserting Section 498A, the Code of Criminal Procedure, 1973, the Hindu Marriage Act, 1955, the Indian evidence Act, 1872 (by inserting section 113-A into it) which has shifted the burden of proof to the accused and the Dowry Prohibition Act, 1961.

The section 498A of the Indian Penal Code, 1860 was introduced into the Indian criminal law system with an objective to prevent the menace of dowry death and cruelty inflicted upon women. This was a momentous change introduced in the Indian criminal law system intending to provide protection to the women as the offence of marital cruelty in India became cognizable, non-bailable and non-compoundable offence.

Section 498A is given under the heading, “Husband or relative of husband of a woman subjecting her to Cruelty.” Under this section, “cruelty” has been explained as (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 demands for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. Aiming towards the complete wellbeing of the married women, apart from physical cruelty, section 498A of the Indian Penal Code, 1860 has recognised ‘mental cruelty’ by husband or relatives of the husband as a psychological harm and made it a punishable offence.

Recently, in the name of preventing misuse of Sec. 498A, the guidelines laid down by the Honorable Supreme Court in Rajesh Sharma & Others vs. State of U.P. & Another, blatantly defeated the objective of sec. 498A IPC. It requires that every complaint under sec. 498A received by the Police or Magistrate shall be referred to a particular committee which shall have to submit its report within one month from the date of receipt of the complaint. Moreover, until the report is submitted, no arrest should be made. However, his judgement has undermined “mental cruelty” and it has been made clear that these directions will not apply to the offences involving tangible physical injuries or death of a woman.

The incidences of mental cruelty are no less harmful to any woman. Instead of taking action to prevent cruelty and save the life and dignity of a woman, the judgement instructs to take action only when the woman has been hit, thrashed, beaten up or killed. The Indian women are made to suffer to such an extent to get eligible for access to justice. During the one month period of enquiry to confirm the veracity of the facts of the complaint, the psychological cruelty may continue and even aggravate to harm of a serious nature including psychological depression or even suicidal tendencies in the victim women.

The ground reality regarding the implementation and effectiveness of the law provided under sec. 498A is quite dismal. According to the reports of National Crime Report Bureau, crimes against the female population in India have increased manifold in the recent time. The guideline of the Supreme Court in the above-mentioned case is regressive in nature and it has sabotaged the ongoing effort to bring about gender equality.

According to a report of the CHRI, the Police in India refuses to register complaints of sexual harassment and other crimes against women. It said that “the survey points to a significant proportion of unaddressed and unreported crime, signalling worrying levels of insecurity among the public, particularly women”.

Stringent implementation of the existing laws is required to curb crime against women because there is massive under-reporting of crime against women in India. The real concern for us should be the lower conviction rate for crime against women according to various official data. Guidelines should also be framed to encourage abused women to report crimes and fight her case till the end. The instruction to refrain from filing FIR until a thorough enquiry has been a big demotivating factor.


ABOUT THE AUTHOR

Shampa Chowdhury

Me 20170130_235941

She is a legal professional working in a Law Firm in Kolkata. She has a brief experience of content writing for a few Law portals. Currently, Shampa is pursuing a course on Cyber Law Practice, Information Technology and Social Media Law from NUJS.

 

Posted in Criminal Law, Women and children

Section 498A IPC – The Illusion of Misuse

In the matter of “Rajesh Sharma and Ors Vs. the State of Uttar Pradesh”, the Supreme Court on 27th July, said that there will not be a “normal arrest” of the accused without probing the veracity of the complaint. Previously, in a similar case of Arnesh Kumar Vs the State of Bihar in 2014, the Supreme Court, to protect the human rights of the “innocents”, had restrained the police to directly arrest the accused without proper investigation. Taking the purview of the misuse of the section 498-A of the Indian Penal Code, Supreme Court held that a “Family Welfare Committee” will be constituted by District Legal Services Authorities (DLSA) in every district and the complaints received by the police or magistrate will be referred to this committee. The members of this committee will be social workers, the wives of working officials, paralegal volunteers, social workers, and anyone who is willing and competent. The committee is supposed to submit a report of the case to an investigating officer within one month from the date of receipt of the complaint.

According to the data from National Crime Record Bureau (2015), out of all cases registered under section 498A of domestic and sexual violence, only fifteen percent have been reported in which the accused is convicted. This data to some extent shows the misuse of section 498-A by women. But the data does not provide a holistic picture because there may be different reasons for the acquittal of the accused like improper investigation by the investigating officer, some mid-way settlement, threatening the complainant or the witnesses, etc. So, the data itself is neither comprehensive nor conspicuous.

This move by the Supreme Court has been criticised by the women activists groups as containing an ingrained bias that women misuse the law. While according to the data by National Family Health Survey-3 fifty-three percent of the victims of some sort of sexual or physical violence have never gone to the police and out the forty-seven percent who have sought help of the police, only two percent have filed a First Information Report (FIR) while the remaining have just registered it as a Non-cognizable offence.

In this case, the Supreme Court has seen just one side of the coin while the other remains hidden beneath. This judgement also curtails the powers of the police and only after the review by the “Family Welfare Committee”, can police take any action. Thus, this also creates a virtual justice dispensation system.

The fact the entire process of a full one-month review of the case by the committee is also a problem for the victims of serious sexual or domestic violence. This will delay the justice delivery process and can even cause more sabotage. The victim could be pressurised to withdraw or threatened which again questions the very purpose for which section 498-A was added to the Indian Penal Code.

Also, the rate of conviction is low in nearly all the cases so Supreme Court must rethink considering the damage it would cause to the real victim. This judgement opens the scope of further misuse of the law if not by women, then men. As many are already sceptical of the effectiveness of the judgement, it may delve a victim into the labyrinth of a breakdown if justice is not provided at the appropriate time.


ABOUT THE AUTHOR

ashish lD

ASHISH KUMAR YADAV

Ashish is an undergraduate student at Cluster Innovation Centre, University of Delhi. The institution has a Meta College concept and focuses on an interdisciplinary approach.  He is the co-founder of two non-profit ventures, one of which deals with education and the other in enhancing scientific communication among the masses. He has done three research projects at Cluster Innovation Centre the first aimed to create a prototype of full-fledged Hindi dictionary and another on the Study of a community’s cultural tradition (Banjara community). The third project was Hafta bazaar aimed to digitalize and study the various weekly markets in Delhi. He is quite ardent in the field of economics and journalism and is intrigued by topics from digital marketing to management, which are reflected in his undergraduate studies. He was also a part of a report published on education.

Posted in Criminal Law, Dowry, Marriage and family

Misuse of Section 498- A of Indian Penal Code: The Plight of Husbands and In-laws in India, What is the Solution?

Marriage of a daughter is very essential and inevitable in Indian society that the parents are put under extreme pressure to meet any feasible demand to get their daughters married. The practice of dowry popularly known as dahej or daj is a deep rooted in the Indian society.[1] The practice of dowry is not limited up to the marriage but it continues even after it which is the cause of various social evils. Dowry in itself is a practice which is the root cause of various social evils such as infliction of physical and mental cruelty on the brides for extraction of the dowry demands from her family. Taking into consideration the ill consequences of dowry and the high rates of dowry-related crimes in India, Section 498 A of the Indian Penal Code was introduced as an amendment in the Indian Penal Code of 1860 by Criminal Law Amendment Act, 1983. But in the last decade there have been cases where the women have misused this provision.

An observation and study over the misuse of dowry law was published in a reputed newspaper which stated that,

When a woman cries out foul, she isn’t always speaking up against the tyrannies of patriarchy. Sometimes, she is faking it, manipulating the law to cover up for her extortionist tactics.”[2]

The above statement, when applied and observed in recent cases, verifies to be true. The aim and the objective with which the provisions were introduced are misused vehemently by certain population of women, which in turn leads the woman in the actual tyranny into a disadvantageous position. A common observation has been established that women file a case over trivial fights and just for the sake of blackmailing the families.[3] If such fake cases are considered without taking due caution the intention with which the provision was enacted will lose its sanctity and will also bury the seeds in the society regarding the incapacity of the law and the presumption of the innocence of the women under this provision will be doubted, which will ultimately be disadvantageous to the women who are actually subjected to cruelty for meeting the demands of dowry.

The law is in place to protect the woman from the evils of dowry and it should be in place, giving away of this law will make women more vulnerable to the evils of dowry demands. Misuse of the provision has to be prevented and the women misusing these laws should be condemned, for which a law is needed, but what is more important is the conversation with the woman to extract the truth and a proper investigation to establish the demand of dowry and cruelty inflicted by the husband and his family. Due to the history of harassment of women and her family for meeting the dowry demands it is presumed that the statement given by the women while filing charges against her husband and in-laws is true, but since due to the misuse of provision it is important that the truth is established first before conviction of the husband and the in-laws accused under Section 498-A.

[1]Bert N Adams, Handbook of World Families, Sage Publications Inc.(California, UK), New Delhi, 2005. p.145.

[2]RadhikaOberoi, “How Fair is the Dowry Law?,” Times of India, Sep 8, 2008.

(Accessible at:http://timesofindia.indiatimes.com/city/delhi/How-fair-is-Dowry-Law/articleshow/3456467.cms) Last accessed on: 3rd Sept, 2016.

[3]Ibid

 

AUTHOR

Pooja Ogale