Abuse Of Section 498A Of Indian Penal Code 1860 - Rights, Remedies and Defenses

The public outrage on violence against women in India started as a concerted campaign against incidents of stove deaths (later unveiled as dowry deaths) in the 1970s and 1980s. As a result of sustained efforts by women’s rights organizations, the government responded by enacting Section 498A of the Indian Penal Code (IPC) in 1983, which made ‘cruelty by husband or his relatives’ a cognizable, non compoundable and non-bailable offence.

The introduction of Section 498-A to the IPC, along with the allied provisions of the Code of Criminal Procedure and the Indian Evidence Act, was meant to be utilized as a measure to protect a woman who is being harassed or tortured by her husband or the relatives of her husband.

However, sometimes, the very provisions of law which are meant to be ameliorative, become a source of harassment. Section 498A of the Indian Penal Code (IPC) has become infamous for its women-centric character.

The National Crime Records Bureau 2012 report demonstrates the extent to which the section is misused. As per the report, the rate of charge-sheeting was as high as 93.6% while the conviction rate was as low as 15%.

The data also suggests that the number of FIRs registered under Section 498-A is far more than the convictions, indicating that a significant number of such FIRs are registered without any basis and for the sole purpose of harassment.

Statutory Backing

Section 498A in the Indian Penal Code-

Whosoever, being the husband or the husband's relatives, subjects such woman to cruelty shall be punished with imprisonment for a term, which may extend to 3 years and shall also be liable to fine.

For the purpose of this, ―cruelty means:

(a). any willful conduct which is of a nature as is likely to make the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman; or

(b). The harassment of a woman where such harassment is to coerce 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 relative of her to meet such demand.

INGREDIENTS OF SECTION 498A IPC

Section 498 (A) is the only section in the Indian Penal Code, 1860 which recognizes domestic violence against women as a crime. Insertion of Section 498A was done with the idea of curbing cruelty against married women by her husband and in-laws and subsequent amendments were also made in the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1972 by the same amendment to effectively deal with cases of dowry deaths and cruelty to married women by the husband, in-laws and relatives.

In addition to the 498A, the Protection of Women from Domestic Violence Act, 2005, is also a linchpin to curtail the immoral and offensive practices against women. The complainant can apply for the reliefs under section 18-22 and interim reliefs can be obtained by the appellant under Section 21 of the Domestic Violence Act.

The basic essentials to attract Section 498A are:

1. The woman must be married;

2. She must be subjected to cruelty or harassment; and

3. Such cruelty or harassment must have been inflicted either by the husband of the woman or by the relative of her husband.

A bare perusal of this section highlights that the word ‘cruelty’ covers the occurrence of the following act(s):

1. 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; or,

2. Harassment of the woman where such harassment is with a view to coerce 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.

HOW TO SEEK PROTECTION AGAINST SECTION 498A IPC?

An offence under Section 498A of the Indian Penal Code is a cognizable one. It is also non-bailable and non-compoundable. Although the Government has been considering the option of making such an offence compoundable, that has not been materialised it. Therefore, in case of a complaint lodged by a wife under Section 498A, the accused husband or his relatives are in for some extreme harassment, whether finally acquitted or not.

Below is a list of legal remedies and effective defences, that one can use for protection against section 498-A IPC, if a woman decides to misuse the law and threatens to register a false case against her husband or in laws for her personal gains.

Collect all Evidence & Documents: The first step in proving a false accusation would be to gather all substantial and material evidence on the 498-A case details. You must start collecting and preserving as much evidence as possible, which includes:

• Any evidence of conversation between the husband or his family member with his wife or wife’s relatives like SMS, emails, letters, call recordings, etc.

• Any evidence that proves that the wife moved willingly out of your house;

• Any evidence that shows no demands for dowry were made before or after the wedding.

Get an Anticipatory Bail: If one thinks his wife may file an FIR under Section 498A, hire a criminal defense lawyer and get an anticipatory bail to prevent yourself or your family member’s arrest. Anticipatory bail is like a precautionary bail in case police move ahead to arrest you or your family members. You can file application for anticipatory bail under Section 438 of Criminal Procedure Code,before the Sessions Court or High Court.

Get the 498A FIR Quashed: One can also get the falseFIR under Section 498A, quashed by High Court under Section 482 of Criminal Procedure Code. Courts are generally reluctant to quash an FIR or interfere in the law and order process, but if someone shows sufficient proof, the court has the power to quash the false 498A FIR filed by the wife. Engaging a good criminal lawyer helps.

File an FIR against your wife for false 498A complaint: One can also file an FIR against the wife for threatening or filing a false 498A case. If you make your case full-proof, the police cannot deny you to register an FIR against your wife. Get your complaint drafted by a good criminal lawyer so that the police cannot reject it on any grounds. It is even better if your lawyer accompanies you for the registration of the FIR. If the police refuse to register your FIR, you can file a written complaint against the police officer, with the Superintendent of that police station or even complain to any Magistrate. FIR can also be sent to the Superintendent of Police by post.

File a case for Restitution of Conjugal Rights: If your wife has left her matrimonial home and went back to live with her family, you can file a case for restitution of conjugal rights against your wife under Section 9 of Hindu Marriage Act. You can mention all the terms and conditions that she’ll have to follow to start living with you once again.

File a defamation case against false 498A case: You can also file a civil or criminal defamation case against your wife for maligning your image by filing a false 498A case against you.

While fighting the 498A case, the duration of the case will depend largely on the evidence produced before the court and how efficiently your lawyer fights in the court representing your case.

RIGHTS GUARANTEED TO THE HUSBAND AGAINST A FALSE 498A CASE

If a woman has been harassed for dowry or threatened for the same, before, during or after marriage, her husband, his family or in-laws can be subjected to punishment under the Dowry Prohibition Act, 498A and even Section 304A of the Indian Penal Code (in case her life has been threatened).

Yet, despite the lack of legal protection against section 498A IPC case, there is a list of sections which we have identified for you, which might be helpful in this case, if you wish to file a counter case against your wife, such as:

• If your wife is conspiring a crime against you, then under Section 120B IPC, you can file a case against her.

• If you suspect that false evidence is being framed or presented against you then under Section 191 IPC, you can file a case alleging that you are being framed wrongfully.

• Man being a social animal, reputation is of utmost importance for him. So if she threatens you to defame or falsely drag you and your family to court, you can file a counter case of defamation under Section 500 of IPC.

• In a situation where your wife threatens you to do harm to you or your family or anything related to you, gather the evidence and present it to court under Section 506 of IPC.

• If you believe that the complaint registered by your wife is false, you can file an application under Section 227 stating that the 498A case filled by your wife is false.

• If you have enough proofs, or if she does not have enough proof to substantiate the charges, chances are that the judge just dismisses the 498A case as it is a framed one.

• If she breaks into your home, creates a scene, and goes to a 'protection officer' and lies that you abused her physically, emotionally, or economically', file a damage recovery case under Section 9 of CPC against her.

The complaint must be filed as soon as possible from any alleged incident. The Indian courts and enforcement authorities have become vigilant in dealing with cases regarding Section 498A due to an increasing number of false cases. However, if you are a victim who needs protection against section 498A IPC case, then you should be aware of all your legal rights and use them.

JUDICIAL APPROACH

Section 498A states that if a husband or relatives/family of the husband are found to subject the wife to cruelty, then they will be imprisoned for a jail term of three years with a liability to fine.

However, the law which is meant to protect women, if misused, then a new set of directions has been implemented by the Supreme Court to prevent this from happening.

The Supreme Court have, in the case of Rajesh Sharma v. State of UP[1], issued certain guidelines for the enforcement authorities for dealing with 498A cases in India which are:

• In every district, 1 or more Family Welfare Committees must be established by the District Legal Services Authorities to deal with cases filed under Section 498A.

• All complaints under Section 498A IPC received by the police or Magistrate must be sent to the committee.

• The committee must look into the matter and send a report on it within 30 days to the authority that referred the complaint.

• No arrest must be made until a report is sent by the committee.

• If an anticipatory bail for 498A is filled with one day’s notice, it must be decided within that time frame only.

• Personal appearance of all family members may not be required in court and appearance by video conferencing must be allowed for outstation family members.

The Court further held, “Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such a committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication. Report of such committee is given to the Authority by whom the complaint is referred to it the latest within one month from the date of receipt of the complaint. The committee may give its brief report about the factual aspects and its opinion on the matter. Till report of the committee is received, no arrest should normally be effected. The report may be then considered by the Investigating Officer or the Magistrate on its own merit.”

There have also been judgments that have laid down procedural safeguards to prevent any possible misuse of Section 498A. For instance, in Arnesh Kumar V. State of Bihar (2014) 8 SCC 273, the Supreme Court restrained police from making automatic arrests until they were satisfied that it was necessary to prevent such persons from committing any further offence, or for proper investigation of the case, or to prevent the accused from making any inducement or threat etc.

Similarly, in Lalita Kumari V. State of Uttar Pradesh (2014) 2 SCC 1 the Court said police have to conduct a preliminary enquiry before registering an FIR under 498A. In Sushil Kumar Sharma V. Union of India AIR 2005 SC 3100, the apex court went to the extent of stating how through “misuse of the provision, a new legal terrorism can be unleashed” and exhorted the legislature to come up with deterrents in the law to prevent such ‘frivolous’ complaints.

In the Rajesh Sharma case, the main issue brought up before the court was whether there was a mandate to check the provision’s reach when it came to roping in all family members to settle a matrimonial dispute and cruelty under section 498A. The court states that if complaints are filed under this legal provision, it would not just be harassment against the innocent husband and his relatives, it would also mean that reconciliation and reunion of the couple wouldn’t be possible if such a complaint is filed.

CONCLUSION

From the judicial trend and observations of various commissions, it becomes clear that section 498A has become a necessary evil. It must continue to remain in our statute books for the much needed protection of women but with a caveat, its misuse must be curbed. Following the judgment in the Arnesh Kr case, it appears that the police and magistrates will carry out their duties with greater diligence, substantially bringing down the misuse of Section 498A without devaluing the utility of section 498A in genuine cases. However, the main focus for any victim of such abuse of the law should be to act fast in taking all the legal remedies available.

[1] Criminal Appeal 1265 of 2017

This article has been authored by Ms. Anwasha Halder, Advocate, and Mr. Lokendra Singh Panwar, a student of ICFAI Law School, Jaipur. Please find the PDF file for this article below. You can download the same from the link provided below. In case of any queries or questions, feel free to drop a message here, or send an email at lawfieldassociates@gmail.com

Abuse of Section 498A IPC - Rights, Reme

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