ACKNOWLEDGEMENT

The aim of this research is to acquaint the reader with the Misuse of 498A IPC.

I would like to extend my gratitude and sincere thanks towards the cooperating
faculty of Law in Army Institute of Law without whom this project would be
of much difficulty. Our Professors have pushed us towards achieving newer
levels of understanding and grasping all that we can in the field of Law.

I would also like to thank the supporting piers and not forgetting to mention
my parents who have supported me throughout my life and without whom
understanding the ways of making a good, no, a better project, a thought that
might seem very obscure to few individuals.
Introduction:

The infamous Sec 498A IPC was inserted by way of amendment in the year 1983 to curb the

Matrimonial Cruelty meted out to women in Indian households. By the same Amendment Act,

modification was effected in the Indian Evidence Act also, by insertion of Sec 113A to raise a

presumption regarding abetment of suicide by a married woman. The main agenda for the

insertion of the Sec 498A IPC was to protect a woman who is being harassed by her husband

or relatives of husband.

Section 498-A: 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 purposes 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.

The expression “cruelty” has been defined in wide terms so as to include inflicting physical or

mental harm to the body or health of the woman and indulging in acts of harassment with a

view to coerce her or her relations to meet any unlawful demand for any property or valuable

security. The sanction for harassment of dowry fall within the ambit of the latter part of the

explanation. Wherefore, creating a situation driving the woman to commit suicide is also one

of the aspects of “cruelty” under Sec 498A.

Classification of the Offence:

The offence committed under Sec 498A IPC is a cognizable and non-bailable offence.

Cognizance of the offence, however, is possible only when the information as to the

commission of the offence is given to an officer-in-charge of a police station by the person

aggrieved by the offence, or by any person related to her by blood, marriage or adoption or if

there is no such relative, by any public servant belonging to such class or category as may be

notified by the State Govt. in this behalf.

It being a non-bailable offence, the bail can only be granted under certain grounds as envisaged

under the Sec 437 CrPC.

Furthermore, Sec 498A IPC is a non-compoundable offence i.e. the Court cannot records the

compromise between the parties and drop charges against the accused.

Object and caution:

The aforesaid section, subject matter of the present research, was introduced with the avowed

object to combat the menace of dowry deaths and harassment to a woman at the hands of her

husband or his relatives. Nevertheless, the provision should not be used as a device to achieve

oblique motives.1

Ingredients:

For the commission of an offence under Sec 498A, following necessary ingredient are required

to be satisfied:

a) The woman must be married.

b) She must be subjected to cruelty or harassment

1
Onkar Nath Mishra v. State (NCT of DelhI), (2008) 2 SCC 561
 c) Such cruelty or harassment must have been shown either by husband of the woman or

by the relative of her husband.2

The ambit of “Husband”:

The term “hubans” covers a person who enters into a marital relationship and under the colour

of such proclaimed or feigned status of husband subjects the woman concerned to cruelty in

the manner provided under Sec 498A, whatever by the legitimacy of the marriage itself for the

limited purpose of Sec 498A. the absence of a definition of “husband” to specifically include

such person who contract marriages ostensibly and cohabit with such woman, in the purported

exercise of their role and status as “husband” is no ground to exclude them from the purview

of Sec 498A IPC.3

The ambit of “relative of husband”:

In order to be covered under Section 498-A IPC one has to be a “relative” of the husband by

blood, marriage or adoption.4

A girlfriend or a concubine being not connected by blood or marriage is not a “relative” of the

husband as per Section 498-A. 5

The ambit of “wife”:

The two-judge bench of the Supreme Court has held that even a second wife can file a

complaint under Sec 498A.

“… The legislature has taken care of children born from invalid marriages. Section 16 of the

Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said

2
U. Suvetha v. State, (2009) 6 SCC 757
3
Reema Aggarwal v. Anupam, (2004) 3 SCC 199
4
Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618
5
U. Suvetha v. State, (2009) 6 SCC 757
that the legislature which was conscious of the social stigma attached to children of void and

voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious

of the legal consequences entered into the marital relationship? If such restricted meaning is

given, it would not further the legislative intent. …”6

However, the Hon’ble Courts had a different opinion while dealing with cruelty to partners in

a live-in relationship.

The Kerala High Court, after considering various decisions of the Supreme Court has held that

for an offence under Section 498-A to be committed, the parties must have undergone some

sort of ceremonies with the object of getting married. In that case, the parties did not perform

any ceremony and just started living together. It was held that a woman in a live-in relationship

was not entitled to file a complaint under the section.7

Interpretation of “cruelty”;

Every harassment does not amount to “cruelty” within the meaning of Section 498-A. For the

purpose of Section 498-A, harassment simpliciter is not “cruelty” and it is only when

harassment is committed for the purpose of coercing a woman or any other person related to

her to meet an unlawful demand for property, etc. that it amounts to “cruelty” punishable under

Section 498-A IPC.8

Cruelty can either be mental or physical. It is difficult to straitjacket the term cruelty by means

of a definition because cruelty is a relative term. What constitutes cruelty for one person may

not constitute cruelty for another person. 9

6
Supra.
7
Unnikrishnan v. State of Kerala, (2017) SCC Online Ker 12064
8
State of A.P. v. M. Madhusudhan Rao, (2008) 15 SCC 582
9
G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152
The concept of cruelty and its effect varies from individual to individual, also depending upon

the social and economic status to which such person belongs.10

Non-compoundable offence- Effect:

The Sec 498A being a non-compoundable offence, the court cannot acquit the accused by the

fact that there is a compromise between the parties.

However, if there is a genuine compromise between the husband and wife, the criminal

complaints arising out of the matrimonial discord can be quashed by the High Court. The same

can be done by the High Court under Sec 482 CrPC, where even if the offences alleged therein

are non-compoundable, the reason being, such offences being personal in nature and do not

have repercussions on the society unlike heinous offences like murder, rape, etc.

In case an accused is convicted and sentenced under Sec 498A, even then if the Court feels that

the parties have a real desire to bury the hatchet, in the interest of justice, it can reduce the

sentence of the accused to period of sentence already undergone. 11

Cruelty to Husband and his relatives?

With the rise in the rate of education, financial security and modernization, the more

independent and radical feminists, no doubt, the said feminism being a pathway for a better

world, but the said Sec 498A has been used time and again, as a weapon in her hands than a

shield.

Today, the section is among the most debatable sections regarding women, as it is claimed that

it is more often misused than used. The Former Union Minister for Women and Child

10
Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619
11
Manohar Singh v. State of MP, (2014) 13 SCC 75
Development, stated about 70% of women in India to be victims of domestic violence, there

was a huge commotion in media, several foundations like that Save India Family Foundation

came forward and reported that while giving the states she deliberately avoided the actual

convictions in dowry death trials after false cases were dismissed in the courts.

The Hon’ble Court held specifically that there are misuse and exploitation of the provisions to

such an extent that it was hitting on the basis that is the foundation of marriage itself and which

ultimately proved to be not a good sign for the health of society for the public at large. 12

However, more recent cases have risen to address the burning issue of misuse of Sec 498A:

Arnesh Kumar v. State of Bihar

Facts: The wife alleged that dowry was demanded from her and that she was driven

out of the matrimonial home on non-fulfilment of such demands. The husband

applied for anticipatory bail which failed. Therefore, by SLP the husband

approached the Supreme Court.

Decision: The Court observed that the fact that Section 498A, IPC is a cognizable and

non-bailable offence, it is more often than not is used as a weapon rather than

shield by disgruntled wives. It results in harassing the husband and his relatives

by getting them arrested under this Section and it is more disturbing to see

bedridden grandfathers and grandmothers being arrested without a prima facie

case. Thus, the Court laid down certain guidelines which the police officer must

follow while arresting under Section 498A, IPC or Section 4 of the Dowry

Prohibition Act, 1961 and that such arrest must be based on a reasonable

satisfaction with respect to genuineness of the allegation. Moreover, even the

12
Savitri Devi v. Ramesh Chand and Ors., (2003) DMC 328
 Magistrates must be careful enough not to authorise detention casually and

mechanically.

Manju Ram Kalita v. State of Assam

Facts: The wife alleged physical and mental cruelty at the hands of the husband and

accused him under Section 498A, IPC. The husband, however, denied all the

charges.

Decision: The Court held that “Cruelty” for the purpose of Section 498-A IPC is to be

established in the context of Section 498-A IPC as it may be different from other

statutory provisions. It should be determined by considering the conduct of the

man, weighing the gravity or seriousness of his acts and to find out as to whether

it is likely to drive the woman to commit suicide, etc. It is to be established that

the woman has been subjected to cruelty continuously or at least in close

proximity of time of lodging the complaint. The Court further held that petty

quarrels cannot be termed as “cruelty” to attract the provisions of Section 498-

A IPC.

Bibi Parwana Khatoon v. State of Bihar

Facts: Similar to previous cases, the facts of this case are that the wife was killed by

setting her up on fire by her husband and her relatives. The sister-in-law and

brother-in-law of the deceased wife challenged the conviction in the Supreme

Court.

Decision: The Court brought under notice the facts that the appellants in the case did not

even reside at the place of mishap. There was no evidence to prove their charge

beyond reasonable doubt. Therefore, the Court acquitted them and held that the

Court must guard against false implication of the relatives.

Rajesh Sharma and ors. v. State of UP

Facts: In the present case, the husband, along with other relatives, was accused for

causing cruelty to the wife in lieu of demand for dowry. However, the other

relatives demanded that there should be certain guidelines to prevent over-

implication. Thus, in most of the cases the relatives of the husband are also

being dragged into Courts in cases of Section 498A. However, it is not necessary

that they have been party to the offence. Thus, a question with respect to the

need for directions to prevent misuse of Section 498A, IPC was raised in the

appeal.

Decision: The Supreme Court laid down comprehensive directions to prevent the misuse

of the provision of Section 498A, IPC.

Family Welfare Committee

 The constitution of one or more Family Welfare Committees in every

district which shall preferably consist of three members. Such a constitution

is to be made by the District Legal Services Authorities.

 The members may be volunteers/social workers/retired persons/wives of

working officers/other citizens or anyone who may be found suitable and

willing.

 Frequent review of constitution and working of such committees in addition

to the yearly review which is a minimum requirement. Such review shall be

done by the District and Session Judge of the district who is also ex-officio

chairman of the District Legal Services Authority.

 The Committee members will not be called as witnesses.

 Every complaint has to be referred to the Committee and the committee has

to submit the report to the authority who referred to such complaint. The

report may be then considered by the Investigating Officer or the Magistrate

on its own merit.

 The work of the committee includes looking into every complaint under

Section 498A received by the police or the Magistrate.

 No arrest should normally be effected till report of the committee is

received.

Investigating Officer

 Investigating Officers to be designated within a month from the delivery of

judgment to investigate the complaints under Section 498A and other

connected offences.

 Such designated officer may be required to undergo training for such

duration (not less than one week) as may be considered appropriate. The

training may be completed within four months from the date of delivery of

the judgment.

Settlement

 In cases where a settlement is reached, the District and the Sessions Judge

to dispose of the proceedings. Such disposal also includes the closing of the

criminal case if the dispute primarily relates to matrimonial discord. The

District and Sessions Judge may also nominate any other senior Judicial

Officer to do the same.

Bail Matters
 Cases where a bail application is filed with at least one clear day’s notice to

the Public Prosecutor or the complainant, the same may be decided 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 or minor children can otherwise

be protected.

 Further, in dealing with bail matters, certain things such as individual roles,

the prima facie truth of the allegations, the requirement of further arrest or

custody and interest of justice must be carefully weighed.

Issuance of Red Corner Notice

 In respect of persons ordinarily residing out of India, impounding of

passports or issuance of Red Corner Notice should not be a routine.

Clubbing of cases

 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.

Personal appearance

 Personal appearance of all family members and particularly outstation

members may not be required.

 Further, the trial court ought to grant exemption from the personal

appearance or permit appearance by video conferencing without adversely

affecting the progress of the trial.

 However, the Court further said that these directions will not apply to the

offences involving tangible physical injuries or death. The Court also said that

the National Legal Services Authority may submit a report after a trial of 6

months of such arrangement and latest by March 31, 2018, for any change in the

directions issued or for any further directions.

Social Action Forum for Manav Adhikar v. Union of India

Facts: The petition was filed under Article 32 of the Constitution. The petitioners

contended that it is not untrue that there are a number of women suffering from

violence at the hands of husband and his relatives and that the accusation that

Section 498A is being misused is not supported from any concrete date on such

misuse. It was further argued that the social purpose behind Section 498-A IPC

is being lost as the rigour of the said provision has been diluted and the offence

has practically been made bailable by reason of various qualifications and

restrictions prescribed by various decisions of this Court including Rajesh

Sharma v. State of U.P.

Decision: After referring to the directions, the Court concluded that the direction with

respect to Family Welfare Committees and their duties are not in accordance

with any provision of Code of Criminal Procedure, 1973. The offence of cruelty

is non-bailable and cognizable offence but due to the direction making it

impossible to arrest before the report of such committee has made this

ineffective. Thus the directions given in Rajesh Sharma case has been modified

by Court as further explained.

 The direction with respect to constitution and duties of Family Welfare

Committee has been declared impermissible.

  Further, direction pertaining to the settlement has been modified to include

that it if a settlement is arrived at, the parties can approach the High Court

under Section 482 of the Code of Criminal Procedure. The High Court,

keeping in view the law laid down in Gian Singh v. State of Punjab[14],

shall dispose of the same.

Conclusion:

It is important to note that the domestic violence and abuse by the spouses and family members

are very complex behaviours and social organization of courts, legal cultures and the police

systematically tend to devalue several domestic violence cases. Therefore the perspective of

the state and the people needs to change from potential “misuse” of the concerned laws of

domestic violence to that of implementing it for their real purpose and thus, to recognise that

any such type of violence is a crime and to protect women who have shown the courage and

stood up to file complaints against their abusers.