This article has been written by Manav Sharma, pursuing the Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.This article has been edited by Aatima Bhatia(Associate, LawSikho) and Dipshi Swara (Senior Associate, LawSikho).
Instances of women facing abuse from their husbands or in-laws are a common occurrence in India and such cases are rising on an unprecedented scale. The criminal law of a nation must not only provide penal provisions but also, ensure that justice is done to the victim. It was with this objective that Chapter XXA was inserted by the Act of 1983, which introduced the provision of section 498A “Of Cruelty By Husband or Relatives of Husband. ” The objective behind enacting this amendment was to punish a husband and his relatives who torture or harass the wife with the aim of coercing her or any such person who is related to her to meet any unlawful demands or to drive her to commit suicide.
Cruelty in marriage : provision under the Indian Penal Code, 1860
Section 498A relates to the provision of cruelty done by the husband or his relatives upon a woman. It states that, if the person who is the husband or his relative, performs an act of cruelty upon a woman then he is liable to be punished with an imprisonment of three years (which can be extended) and shall also be liable to pay a fine.
Cruelty includes both physical as well as mental torture done upon a woman by her husband or his relatives. The word ‘wilful conduct’ as mentioned in Explanation (a) of Section 498A means an act done with intention. However, the proof of wilful conduct depends upon the direct and indirect evidence.
Jurisprudence behind Section 498A
The cruelty against women within the marriage and other acts incidental thereto were posing difficulties in the matters of prosecuting the accused and proving their guilt was also difficult. The primary reason behind this was that most women bear their sufferings in silence. The violence can take such serious forms, that it becomes torturous for the women, and they have no other option but to take their own life. The idea behind introducing this provision under IPC was to prevent the torture done upon a married woman by her husband or by her husband’s relatives and punish them for unlawful demands, like dowry.
The increasing cases of violence against women as well as growing cases of bride-burning were a matter of concern, and, for this, it was felt that general offences, like that of assault, grievous hurt, homicide, etc., would not be adequate to deal with such kinds of cases because such offences must be stringent so that atrocities against women can be controlled and also there must be a deterrent effect of such penal provisions.
Provisions of arrest
For any cognizable offence, police can arrest the accused person without an arrest warrant if the information relating to the commission of the said offence is given to an officer who is in charge of a police station by the aggrieved person.
Other provisions governing cruelty in marriage
The provisions governing Cruelty in Marriage are not only covered by Section 498A. Section 304-B states that if the death of a woman is caused as a result of burns or bodily injury within seven years of her marriage and that before her death she was the victim of cruelty done by her husband or his relatives for the demand of dowry, then such death shall be called “dowry death.” The punishment prescribed under this is imprisonment which must not be less than seven years and it can be extended to life imprisonment.
Demand for dowry as a part of cruelty in marriage
Section 304-B does not classify death which is caused by burns, as homicidal, suicidal or accidental, because a death which is caused by burns can be homicidal or suicidal or accidental. The provision has imposed a statutory obligation upon the Court to presume that the accused has committed dowry death when the prosecution has proved that:
- death of his wife has occurred within 7 years of her marriage, and,
- soon before her death, she was the victim of cruelty linked with the demand for dowry.
Demand for property or any valuable security constitutes demand for dowry if it has a direct or indirect connection with that of marriage.
It is also to be noted here that, where the demand by the in-laws for money on account of some financial emergency and for meeting some domestic expenses cannot be termed as a demand for dowry. However, this cannot be misinterpreted in a manner that a demand for money or some property on account of financial emergency cannot be termed as a demand for dowry, and this has to be understood in the light of the factual scenario.
The Protection of Women from Domestic Violence Act, 2005
The Domestic Violence Act of 2005 was enacted for the purpose of providing effective protection to women who are the victims of any kind of violence occurring within the family. The impugned legislation provides the rights of women to secure housing as well as the right to reside in their matrimonial home. The enactment has also empowered the Magistrate to pass such protection orders which will help in coping up with the crime of domestic violence. This act provides for the appointment of Protection Officers who will assist the victim with respect to her medical examination, obtaining legal aid services, safe shelter and other effective legal remedies.
It would be relevant, here to quote the lines from the judgment passed by the Supreme Court in the case of Rupali Devi v. State of Uttar Pradesh and Others, wherein it was held that, Cruelty shall mean intentional and malicious infliction of mental or physical suffering upon a woman. Cruelty includes physical as well as mental aspects. The impact on the mental health of the wife and mental stress or trauma of being driven away from the matrimonial home are aspects that must be taken into consideration while understanding the meaning of the expression “cruelty” appearing in Section 498-A of the Penal Code.
Difference between cruelty and harassment
|Cruelty is when the wife is treated in such a manner that causes reasonable apprehension in her mind that it would be difficult to live with the husband.||Harassment means torturing and subjecting her to constant interference or intimidation. If such torture is done with a view to fulfill unlawful demands.|
|Cruelty includes both mental and physical cruelty. It can relate to abnormal behaviour, continuous taunting, and teasing, calling her barren woman, false attacks on her chastity, etc.||In order to constitute harassment, cruelty it is essential to prove that the woman was tortured either physically or mentally, and that, such an act was done with a view to persuading her to do something which she is not expected legally to do by using force or threats.|
However, it is important to note that every cruelty or harassment does not attract the provisions of section 498A. Cruelty or harassment has done upon a woman with a view to meet dowry demands which will likely drive her to commit suicide or to cause grave injury to life, limb, or health, which can be of any type, whether physical or mental, comes within the purview of section 498A.
Alteration of charge under Section 216 of Cr. PC.
Recently, in the case of Dr. Nallapareddy Sridhar Reddy v. The State of Andhra Pradesh & Others, the Court has opined that charges can be altered at any time before the judgment is pronounced. Whenever such an addition is to be made, it must be read out and explained to the accused. With the aid of this provision, the Court is vested with the powers to add or alter the charge even after the completion of evidence, arguments, and reserving of the judgment. The grounds which can arise are, omission in the framing of charge, upon prima facie examination of the material brought on record, it leads the court to form a presumption as to the existence of the necessary ingredients which constitute the alleged offence.
It is clear from above-cited judgment that charges can be altered, provided that it is done before the pronouncing of judgment. The provision under Section 216 of the Code of Criminal Procedure, 1973 enables the adding or altering of charge based on materials brought on record during the course of trial and that Court can also exercise its power under this section even after the completion of evidence, arguments and reserving of the judgment. The alteration of a charge can be done if in the opinion of the Court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record, it leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the alleged offence. This means that since there are a couple of legal provisions regulating cruelty on married women, even if the case is registered under one charge, it can be altered if sufficient materials are brought on record before the pronouncing of judgment.
Supreme Court of India on Section 498A, IPC
B.S Joshi v. State of Haryana
The Supreme Court, in this case, has held that the object of introducing this provision was to prevent torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing the husband as well as his relatives who are involved in an act of harassing the wife to satisfy unlawful demands of dowry.
Inder Raj Malik v. Sunita Malik
In this case, the High Court of Delhi had an occasion to deal with the issue of whether or not a person can be convicted both under Section 4 of the Dowry Prohibition Act, as well as under Section 498A, IPC. The Court was of the opinion that a person can be convicted both under Section 4 of the Dowry Prohibition Act, 1956 as well as under Section 498A of IPC, and it will not attract double jeopardy. The Court was of the view that Section 498A, IPC, and Section 4 of Dowry Prohibition Act are both different from each other, because under Section 4 of Dowry Prohibition Act mere demand of dowry is punishable, whereas, in Section 498A, an act of cruelty caused to the newly married woman is punishable. Thus, it can be concluded that a person is liable to be prosecuted under both the provisions of Section 4 of the Dowry Prohibition Act and Section 498A, IPC.
Arnesh Kumar v. State of Bihar
In this case, the petitioner was the husband of respondent no. 2, Sweta Kiran. The marriage was solemnized on 1st July 2007. The case of the wife is that the petitioner’s family had made huge demands from her. When this fact was brought to the notice of the petitioner, he threatened that he was going to marry another woman. As a result of this, the respondent was driven out of her matrimonial home due to non-fulfillment of dowry demand. The petitioner, apprehending his arrest and after his anticipatory bail gets rejected, had approached the Supreme Court for anticipatory bail by filing a Special Leave Petition.
Misuse of the provision and its constitutionality
Section 498A was added with the object of punishing cruelty done by a husband or his relatives upon a woman, however, it has appeared that the provision has been extensively misused. The case of Sushil Kumar Sharma v. Union of India, has addressed this concern and viewed that, the object behind enacting section 498A was to curb the increase in the number of dowry deaths which was a matter of serious concern. In some cases, the cruelty of husband and his relatives can even result in suicide or murder of the woman. Therefore, it was proposed to amend IPC, CrPC and the Evidence Act so as to effectively deal not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.
The Hon’ble Supreme Court has also addressed this concern and has viewed that, section 498A was enacted with the objective of overcoming from the curse of dowry death and other related crimes committed at the matrimonial home, and that it cannot be used as a device to achieve some ulterior motives.
Checklist given by the apex court
The Supreme Court, in order to curb the power of police and its arrogance in making an arrest, has issued the following directions:
- All the State Governments are required to instruct their police officers not to immediately arrest when a case under Section 498A IPC is registered but they are first required to satisfy themselves that necessity for arrest has arisen.
- All police officers are to be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii) of CrPC.
- The police is required to forward the checklist duly filled and furnish the reasons as well as materials which made the arrest necessary 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 is required to authorise detention.
- The decision of not arresting an accused shall be sent 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 is required to be served to the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police for the district along with the reasons to be recorded in writing.
- Failure to comply with these directions shall apart from rendering the police officers concerned liable for departmental action, they are required 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.
The 19th Law Commission has suggested major proposals for reform in the existing law, by recommending that Section 498A of IPC should be made a compoundable offence with the permission of the Court. The Law Commission has suggested that a new provision, Section 2A shall be inserted which will lay down the procedure for dealing with an application for compounding of an offence under Section 498A and also prescribed the cooling period of three months. The Commission in its 237th Report has viewed that it would be better if the parties have the option of a compromise so that they can settle down their matter in their lives for a better future and thereby avoiding the burden of litigation. The Law Commission has advised that the arresting police officer should strictly observe conditions under Sections 41 and 41A of the CrPC and not become overactive while making an arrest under Section 498A, IPC. Parties can take recourse to the alternative dispute resolution mechanisms such as mediation, conciliation before taking a step that might take years.
However, none of these recommendations, till now have been included in the law. Even, the Justice Malimath Committee, seeing that huge amounts of false and exaggerated complaints are being filed, has recommended the same but no action has been taken, till now. It can thus be concluded that the criminal law of a nation must not only provide penal provisions but also, it must ensure that justice is done and such justice must meet the demands of the people. The law of the nation must not only prescribe for punishments but also, must prescribe for the alternate solutions which can be effective in curbing the evil of crimes done upon women.
 Gaur K.D, Textbook on Indian Penal Code, Universal’s Lexis Nexis, ed. 6th, 2019.
 Rupali Devi v. State of Uttar Pradesh and Others (2019) 5 SCC 384; (2019) 2 SCC (Cri) 558; 2019 SCC OnLine SC 493
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