Law on Section 498A IPC, 498A misuse
What is Section 498A:
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. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
History of Section 498A IPC:
Section 498-A was brought into the statute book in the year 1983 with an intention to curb the Dowry Deaths. The amendment was done in Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act to deal effectively not only with cases of Dowry Death but also cruelty to married woman by their in laws. Three major changes were done.
- Section 498A was introduced in IPC, for cruelty to a woman by her husband or any relative of her husband punishable with an imprisonment for a term which may extend to three years and also with fine
- Provision was made for inquest by Executive Magistrates and for postmortem in all cases where a woman has, within seven years of her marriage, committed suicide or died in circumstances raising a reasonable suspicion that some other person has committed an offence
The Indian evidence Act, 1872 was amended to provide that where a woman has committed suicide within a period of seven years from date of her marriage and it is shown that her husband or any relative of her husband and subjected her to cruelty, the court may presume that such suicide had been abetted by her husband or by such relative of her husband
Supreme Court on Section 498A
Arrest under Section 498A IPC
The Supreme Court of India in Arnesh Kumar v. State of Bihar and another has observed that the said offence which 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.
Further regarding the arrest, the supreme court had observed in that ““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 (2014) 8 SCC 273 drastic power of arrest has been emphasised time and again by the 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”
The supreme Court ruled that under Section 41(1) CrPC, the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 CrPC has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.
The supreme court of India instructed all the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down;
- All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
- The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
- The Magistrate while authorising 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 authorise detention;
- 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;
- Notice of appearance in terms of Section 41-A CrPC 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;
- 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 the High Court having territorial jurisdiction.
- Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
Misuse of Section 498A IPC
The Supreme Court of India In Rajesh Sharma and others v. State of U.P. and another, issued the directions to prevent misuse of S. 498-A, such as –
- One or more Family Welfare Committees were to be constituted by the District Legal Services Authorities in every district. Every complaint under Section 498A received by the police or the Magistrate would then be referred to and looked into by such Committee which would within one month give its report to such committee. Till the report was received, no arrest would be normally effected.
- The complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area.
- Further, in cases where a settlement is reached, the District and Sessions Judge or any other senior Judicial Officer nominated by him could dispose of the proceedings and close the criminal case if dispute primarily related to matrimonial discord.
- If a bail application was filed with at least one clear day’s notice to the Public Prosecutor/ complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.
- In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.
- It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
- Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
However, in Social Action Forum for Manav Adhikar and Another,the Hon’ble Supreme Court examined whether the Court in Rajesh Sharma could, by the method of interpretation, have issued above such directions. With due deliberations, the Hon’ble Supreme Court was pleased to modify the directions issued in Rajesh Sharma case.
With respect to the constitution of Family Welfare Committee, the Hon’ble Supreme Court has ruled that constitution of the Family Welfare Committees by the District Legal Services Authorities and the prescription of duties of the Committees and further action thereof are beyond the IPC and the same does not really flow from any provision of the IPC and have nothing to do with the IPC. Accordingly, the same was impermissible.
However, the Court issued direction to the officers investigating under S 498-A to be careful and be guided by the principles propounded in the landmark Supreme Court judgments of
- Joginder Kumar v. State of U.P and others,
- D.K. Basu v. State of W.B,
- Lalita Kumari v. Government of Uttar Pradesh and others and
- Arnesh Kumar v. State of Bihar and another.