This writer, not just because he is a practising advocate, has maintained that the last barrier between our society, that offers genuine freedom as befitting a modern State, and anarchy, is the judiciary. No matter how often the judges are bad-mouthed, lectured to, even intimidated and some convicted, the courts are the last bulwark against mob rule and tyranny. How long before that dam is breached depends on the will of the people and the extent to which they will refuse to be fooled and trampled upon.
There is no doubt that ours is a country where the vestiges of patriarchy are rooted deep and firm. Men must rule; women must do as they are told. That has been the order of the day, for centuries. Someone even declared that sati was an acceptable practice. Why? “Because if the tree falls, the shadow must disappear with it.” Wah!
If one attacks a cow, he is lynched. If a woman is killed, especially if she is the wife, a million excuses are mouthed. That is what led, 25 years ago, to the promulgation of Section 498A, which deals with the husband or relative of the husband. And, as if to prove that the fairer sex is as adept as the other half, misuse crept in. A splendid piece of legislation was sought to be corrupted, often very successfully.
Section 498A of The Indian Penal Code (IPC) starts thus: “Husband or relative of husband of a woman subjecting her to cruelty.” The definition of a “complaining or accused relative” is wide and linkage is by blood, but not restricted to any definite degree of separation. The absence, however, of such a relative leaves no void. Designated persons can also file a complaint. So far so good; but the real misuse lies not in complaining, but in the powers given to the arresting authorities. Non-bailable, non-compoundable, is the terror weapon. In effect, a simple complaint of ‘cruelty’ means immediate lock-up, awaiting trial.
The bedrock of civilised society’s judicial system lies in the Latin maxim, ‘Audi Alteram partem’. It means, “… hear the other side”. Section 498A literally swept aside a fundamental right. True, the accused had to be produced before a first class magistrate where he, or she-relative, could plead for bail. But smart women would ensure that the complaint was made on a Friday, guaranteeing a weekend behind the bars for the accused. That leaves enough time to reach a ‘settlement’, usually with the aid of a police-recommended interlocutor, who paints a grim picture for the accused if a settlement is not reached.
You be the judge. A case is brought to you, as it happened recently, in a Delhi court. A woman complained of cruelty by her husband; usually the plea is that he or his family members had asked for dowry. The man is arrested and produced before you. The punishment can be up to three years in jail. The man asks for bail, denying the charges, saying he has been framed. Would you grant his plea?
The higher courts have come up with some guidelines. Until now bail, immediate, seemed improbable. As cases kept on increasing, and usually with the charge of ‘cruelty’ being without any visible physical evidence, the courts had misgivings. In 2012, statistics were compiled which showed some home truths. A quarter of the arrested were women relatives of the husband. Charge-sheets were filed in almost all cases (93.6%), but convictions were abysmally low, at under 15%. Something was obviously wrong. At that rate, the report went on to say, 372,306 pending cases will have 317,000 acquittals.
Where does this lead us? The courts have demanded more reasonable methods before arrest. One, a civilian committee in the neighbourhood. Two, greater care in filing charge-sheets and, finally, as has now started, severely disciplining the bogus, vindictive complainants.
in 2005, in words said by SC that In writ petition (civil) 141 of 2005 Sushil Kumar Sharma Vs Union of India and othrs on 19/72005 Honable Supreme Court has termed its misuse as legal terrorism. What court said in decade ago judgement as per below:-
The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal of the accused does not in all cases wipe out the ignomy 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. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins' weapon. If cry of "wolf" is made too often as a prank assistance and protection may not be available when the actual "wolf" appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre- conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.
then 2014 , factually said by SC with guidelines about arrest that Hon’ble Supreme Court in deciding Criminal Appeal no. 1277 of 2014 Arnesh Kumar vs State Of Bihar & Anr on 2 July, 2014 has also showed concerned about the misuse of 498A, IPC by disgruntled wives.
SC said, “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 IPC 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 IPC, 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, IPC 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.â€
in 2017, again said by SC with guidance of reconciliaiton and knowing genuine complaints,
3. Rajesh Sharma vs The State Of Uttar Pradesh on 27 July, 2017
13. We have given serious consideration to the rival submissions as well as suggestions made by learned ASG and Shri V. Giri, Senior Advocate assisted by Advocates Ms. Uttara Babbar, Ms. Pragya Baghel and Ms. Svadha Shanker. We have also perused 243rd Law Commission Report (August, 2012), 140 th Report of the Rajya Sabha Committee on Petition (September, 2011) as well as several decisions to which our attention has been invited.
14. Section 498A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the Statement of Objects and Reasons of the Act 46 of 1983. The expression ‘cruelty’ in Section 498A covers conduct which may drive the women to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand.8 It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women. We have already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. This Court had earlier observed that a serious review of the provision was warranted 9. The matter also appears to have been considered by the Law Commission, the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the Home Ministry, which have been referred to in the earlier part of the Judgment. The abuse of the 8 Explanation to Section 498A 9 Preeti Gupta (supra) provision was also noted in the judgments of this Court referred to earlier. Some High Courts have issued directions to check such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard uncalled for arrests. Recommendation has also been made by the Law Commission to make the offence compoundable. 15. Following areas appear to require remedial steps :-
i) Uncalled for implication of husband and his relatives and arrest.
ii) Continuation of proceedings in spite of settlement
between the parties since the offence is
non-compoundable and uncalled for hardship to parties on that account.
16. Function of this Court is not to legislate but only to interpret the law. No doubt in doing so laying down of norms is sometimes unavoidable.10 Just and fair procedure being part of fundamental right to life,11 interpretation is required to be placed on a penal provision so that its working is not unjust, unfair or unreasonable. The court has incidental power to quash even a 10 Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) 10 SCC 603- para 52, SCBA v. Union of India (1998) 4 SCC 409- para 47, Union of India vs. Raghubir Singh (d) by Lrs. (1989) 2 SCC 754- para 7, Dayaram vs. Sudhir Batham (2012) 1 SCC 333 11 State of Punjab vs. Dalbir Singh (2012) 3 SCC 346- para 46,52 & 85, (2014) 4 SCC 453- para-21 non-compoundable case of private nature, if continuing the proceedings is found to be oppressive. 12 While stifling a legitimate prosecution is against public policy, if the proceedings in an offence of private nature are found to be oppressive, power of quashing is exercised.
17. We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August, 2012, 140th Report of the Rajya Sabha Committee on Petitions (September, 2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
18. To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned 12 Gian Singh vs. State of Punjab (2012) 10 SCC 303- para-61, (2014) 5 SCC 364- para -14 trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.
BUT STILL THERE IS NO SOUND FROM GOVERNMENT SIDE IN THIS REGARD, THIS IS COMPLETE APATHY OF GOVERNMENT OF INDIA, MORE so in cent conversation with Ministry of women and child, said that there is no suicide of the men when question were raised but little later, in press note it was said GOVERNMENT BELOW EQUAL RIGHT OF GENDERS BUT IN REALITY IT IS NOT CORRECT.
so hope remains with court only not with investigation agency, and forget Government attemept
All these some of the heroes had their brains where their buns sit.
If contextual point based 498A was imagined, the 498A would not have been hijacked by urban educated, rather than the rural traditional women.
So is it outright stupidity in the profession's top guys in the Govt or is it that they saw the OPPORTUNITY for Grand Harvest. I choose the latter, for, the top guys are unlikely to be that stupid.
It is utter disgrace to the Judicial establishment that it took decades and millions juiced and glasses clicked, before they decided to do something about it, probably, farming and harvesting is no longer a paying profession.