Section 498a IPC has created a mess which the Indian Legal System is not capable of handling and has earned the title of ‘the most dreaded law’, which, in reality, has destroyed many lives and families. Let’s discuss how in today’s’ date one can protect from false 498a cases.
To escape the clutches of 498a and its damaging effects, one needs to understand the factors which play an essential role in a matrimonial dispute. If you are in a rush and are looking for a quick answer on how to escape from false 498a charges, skip to the end of this article. However, I suggest that you develop a complete understanding of the topic instead of resorting to quick measures. Knowledge is power, remember.
WHY MATRIMONIAL DISPUTES ARE ON A RISE?
Simple or bizarre, matrimonial disputes will remain inevitable until a magic wand turns all humans infallible; and in that case, the institution of marriage is quite likely to go obsolete. I do not intend to say that the institution of marriage is stupid, rather, it is one (the most prevalent) way of balancing out human stupidity, while enabling existence. The institution conditions imperfect humans to nestle, procreate and nurture – while socially subjecting them to an inseparable bond of togetherness. A philosophical mind would rightly question – WHY? Why is it even important to nestle, procreate and nurture? Why is it important to marry?
THE RIGHT AND THE WRONG REASONS TO MARRY
Actually, it is not important, until you think it is. Many reasons can answer the question above – why not, what else is there to do, I love babies, I want a family, I want a companion, I like togetherness, I love him/ her…… yet there is no answer which is perfect. They are all whimsical answers by fallible humans who cannot perceive beyond existence to comprehend the larger purpose.
However, there are two very wrong answers to the same set of questions – I have to because I am told. It brings wealth.
If you are wondering what could be so wrong about these two answers, I suggest (without being condescending) that you check your premise of morality and ethics before getting married. Behind these two seemingly harmless answers bear the underlying evil of – unreasoned subjugation, and, entitlement towards unearned – greed.
EVIL HAS NO GENDER
Believe you me, those who answer it wrong, make most of the divorce matters that end up on my table. The wrong answers or the evil cannot be attributed to a particular gender, especially, in the cosmopolitan world where there exists a considerable mix of both ‘patriarchic dowry mongers’ and ‘femi-nazi gold diggers’. Am I generalizing? No, not all are alike. There are healthy, productive and progressive marriages that have existed and still do. That’s another story that no one bats an eye while chasing what media finds interesting – spiteful, prejudicial, miserable, horrible, yet, spicy content from broken celebrity homes. While wrong it is to curb a person’s freedoms and dictate lifestyle – for being a woman, as equally wrong it is to put a person under an unreasonable burden of expectation – for being a man.
LURED BY A FUTURE, HAUNTED BY A PAST
The current generation is somewhere stuck in the middle of fading out patriarchy and traditionalism, and, fading in modernism and equal rights movement. It is a dense cloud that the young Indians are struggling to pass through while carrying backpacks loaded with cultural sentimentalism. The cloud only gets denser when the law enters the field and guarantees protection to one gender. The law carries the good intent of ending cruelty on women on account of age-old misogyny, normalized patriarchy, stereotyped gender roles, and, forced behavioral subscriptions. However, the mechanism upon which the law relies to achieve such good intended end is essentially the police system – dated, unsophisticated, uncouth, highhanded, arbitrary, whimsical, callous, rotten, corrupt, and defunct to a point that rather than checking the misuse of the law, it promotes it by action or abstinence.
THE BIGGER PROBLEM
As matrimonial disputes get denser by the day, the husbands (and family members) often suspect wrongful and false accusation under constant threats by disgruntled wives and their family members. Many people ask what to do under an apprehension of wrongful implication and accusation under 498a IPC.
IPC 498a and the procedural mechanism
Un-threading the history can make one understand the reason and motive of the laws which have come in place. In 1983, as a great savior to the fair gender, section 498-A with respect to cruelty for the purpose of extraction of Dowry, was incorporated in the IPC, Indian Penal Code 1860, stating:
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.
The offence of 498-A was made Cognizable giving police the authority to arrest without warrant. The offence was also made non-bailable and non-compoundable. This came as a blow as its unguarded potential made it one of the most abused law in the history. Further, the sweep came with the explanation of world cruelty:
(a) 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, 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.
498-A, Dowry and the Burden of Proof
Soon section 498-A became a champion sine qua non for Anti Dowry Laws and Cases, thus, facing the tough interpretation of the law as this section is applicable to dowry cases even in the absence of the actual word “dowry” in the section. The reason is that by virtue of Section 8-A of The Dowry Prohibition Act, the husband, and his family members are presumed guilty of the offence. The offences include taking or abetting the taking of any dowry under section 3; or of demanding of dowry under section 4. Since the onus to prove the innocence is burdened on the accused, the, complaints (or their lawyers) took the leverage to resort to an emotional bile spew and levy accusations in an absurd and casual fashion and in absence of any actual specifics or details. The accusations of harassment for compulsive giving of dowry and of further and repeated demands of dowry by husband and family members became a norm.
THE REFORM IN 498A IPC
For a decade, the law was abused. Exaggerated claims and accusations coupled with unaccountable power to the executive, and limitations on the powers of judiciary wreaked havoc and lead to wrongful convictions and grave miscarriages of justice. The Secretary to the Government of India, through his D.O. letter in September 2009, requested the Law Commission of India to suggest measures to check the misuse. Further, the Hon’ble Supreme Court of India in August 2010, in the case of Preeti Gupta vs. the State of Jharkhand, expressed that a serious revision and reform of the provision is warranted by the Legislature. Likewise, the best advocates for dowry and 498-A in their respective cases made many more observations in different cases through different forums. In Aug 2012, the Law Commission, in its 243rd report suggested some legislative revisions. These included provisions for compounding of the offence and objectively analyzing the logical strength of the complaint. After ages of subjugation and an era of stringent approaches, we are now on the threshold of a balanced approach. However, neither the sufferance of the male and his family members, nor the dowry menace has ended.
At the same time as such abuse of law, there still exists a large section of the population which does need 498A in its crude and unforgiving form. If only slum immersions can be made a necessary part of our training systems, the hurt could be felt and understood by one and all. Those in power would know suffering. They would come to relate more appropriately to the poverty struck fair gender that needs specific legal help. These are the people who deserve the rights granted under section 498a as it is.
LANDMARK JUDGMENTS PREVENTING THE ABUSE OF 498A:
“Our endeavor in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498a of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.PC;
All police officers be provided with a checklist containing specified sub-clauses under Section 41(1)(b)(ii);
The police officer shall forward the checklist duly filed and furnish the reasons and materials which necessitated the arrest while forwarding/producing the accused before the Magistrate for further detention;
The Magistrate while authorizing 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 authorize 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 41A of Cr.PC 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 High Court having territorial jurisdiction.
Authorizing detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
We direct that a copy of this judgment be forwarded to the Chief Secretaries as also the Director Generals of Police of all the State Governments and the Union Territories and the Registrar General of all the High Courts for onward transmission and ensuring its compliance.
By order dated 31st of October, 2013, this Court had granted provisional bail to the appellant on certain conditions. We make this order absolute.”
RAJESH SHARMA & ORS. V/S STATE OF U.P. & ANR. (July 2017)
The Supreme Court in order to rescue from the abuse, issued directions in para 19 of the judgment:
19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions:
i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally be effected.
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. 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 today;
iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
iv) If a bail application is 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. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine:
vi) 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
vii) 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.
viii) These directions will not apply to the offences involving tangible physical injuries or death.
Social Action Forum for Manav Adhikar and another VS Ministry of Law and Justice and others (SEPTEMBER 2018)
- In Rajesh Sharma (supra), there is introduction of a third agency which has nothing to do with the Code and that apart, the Committees have been empowered to suggest a report failing which no arrest can be made. The directions to settle a case after it is registered is not a correct expression of law. A criminal proceeding which is not compoundable can be quashed by the High Court under Section 482 CrPC. When settlement takes place, then both the parties can file a petition under Section 482 CrPC and the High Court, considering the bonafide of the petition, may quash the same. The power rests with the High Court. In this regard, we may reproduce a passage from a three-Judge Bench in Gian Singh (supra). In the said case, it has been held that:
“61. … Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and the victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim‟s family and the offender have settled the dispute. Such offences are not private in nature and have a serious impact on society. Similarly, any compromise between the victim and the offender in relation to the offences under special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, etc.; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and predominatingly civil flavour stand on a different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, the High Court may quash the criminal proceedings if in its view, because of the compromise between the offender and the victim, the possibility of conviction is remote and bleak and continuation of the criminal case would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.”
- Though Rajesh Sharma (supra) takes note of Gian Singh (supra), yet it seems to have it applied in a different manner. The seminal issue is whether these directions could have been issued by the process of interpretation. This Court, in furtherance of a fundamental right, has issued directions in the absence of law in certain cases, namely, Lakshmi Kant Pandey v. Union of India, Vishaka and others v. State of Rajasthan and others and Common Cause (A Registered Society) v. Union of India and another and some others. In the obtaining factual matrix, there are statutory provisions and judgments in the field and, therefore, the directions pertaining to constitution of a Committee and conferment of power on the said Committee is erroneous. However, the directions pertaining to Red Corner Notice, clubbing of cases and postulating that recovery of disputed dowry items may not by itself be a ground for denial of bail would stand on a different footing. They are protective in nature and do not sound a discordant note with the Code. When an application for bail is entertained, proper conditions have to be imposed but recovery of disputed dowry items may not by itself be a ground while rejecting an application for grant of bail under Section 498-A IPC. That cannot be considered at that stage. Therefore, we do not find anything erroneous in direction Nos. 19(iv) and (v). So far as direction No. 19(vi) and 19(vii) are concerned, an application has to be filed either under Section 205 CrPC or Section 317 CrPC depending upon the stage at which the exemption is sought.
- We have earlier stated that some of the directions issued in Rajesh Sharma (supra) have the potential to enter into the legislative field. A three-Judge Bench in Suresh Seth v. Commissioner, Indore Municipal Corporation and others ruled thus:-
“5. … In our opinion, this is a matter of policy for the elected representatives of people to decide and no direction in this regard can be issued by the Court. That apart this Court cannot issue any direction to the legislature to make any particular kind of enactment. Under our constitutional scheme Parliament and Legislative Assemblies exercise sovereign power to enact laws and no outside power or authority can issue a direction to enact a particular piece of legislation. In Supreme Court Employees’ Welfare Assn. v. 17 (2005) 13 SCC 287 Union of India18 (SCC para 51) it has been held that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of a subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which it has been empowered to do under the delegated legislative authority. …”
- Another three-Judge Bench in Census Commissioner and others v. R. Krishnamurthy 19, after referring to N.D. Jayal and another v. Union of India and others, Rustom Cavasjee Cooper v. Union of India, Premium Granites and another v. State of T.N. and others, M.P. Oil Extraction and another v. State of M.P. and others, State of Madhya Pradesh v. Narmada Bachao Andolan and another and State of Punjab and others v. Ram Lubhaya Bagga and others, opined:
“33. From the aforesaid pronouncement of law, it is clear as noon day that it is not within the domain of the courts to embark upon an enquiry as to whether a particular public policy is wise and acceptable or whether a better policy could be evolved. The court can only interfere if the policy framed is absolutely capricious or not informed by reasons or totally arbitrary and founded ipse dixit offending the basic requirement of Article 14 of the Constitution. In certain matters, as often said, there can be opinions and opinions but the court is not expected to sit as an appellate authority on an opinion.”
- In the aforesaid analysis, while declaring the directions pertaining to Family Welfare Committee and its constitution by the District Legal Services Authority and the power conferred on the Committee is impermissible. Therefore, we think it appropriate to direct that the investigating officers be careful and be guided by the principles stated in Joginder Kumar (supra), D.K. Basu (supra), Lalita Kumari (supra) and Arnesh Kumar (supra). It will also be appropriate to direct the Director General of Police of each State to ensure that investigating officers who are in charge of investigation of cases of offences under Section 498-A IPC should be imparted rigorous training with regard to the principles stated by this Court relating to arrest.
- In view of the aforesaid premises, the direction contained in paragraph 19(i) as a whole is not in accord with the statutory framework and the direction issued in paragraph 19(ii) shall be read in conjunction with the direction given hereinabove.
- Direction No. 19(iii) is modified to the extent that if a settlement is arrived at, the parties can approach the High Court under Section 482 of the Code of Criminal Procedure and the High Court, keeping in view the law laid down in Gian Singh (supra), shall dispose of the same.
- As far as direction Nos. 19(iv), 19(v) and 19(vi) and 19(vii) are concerned, they shall be governed by what we have stated in paragraph
- With the aforesaid modifications in the directions issued in Rajesh Sharma (supra), the writ petitions and criminal appeal stand disposed of. There shall be no order as to costs.
The Continuing Abuse of 498a
Our society at the same time carries in its fold – the educated, self-dependent and empowered women belonging to a modern social set-up. Ironically, the relief of 498a in its unaltered form, is just as easily available to these empowered women who tend to abuse it by crying victim falsely.
Most of the time the actual friction is because of the conflict in the thought process, family aspirations, status etc. But, in most of the cases, women do not hesitate in going by the proverb “everything is fair in love and war”. Thus, they invoke the powers of section 498-A as a blackmailing shield.
HOW CAN POLICE CHECK THE ABUSE OF 498a?
A just and fair investigation is the first step towards ensuring justice in the matter.
- The complainant should be properly examined and statement should be recorded.
- History of both the complainant, the accused and their family members be examined.
- Investigation of prima-facie evidence of the complaint must reveal the social status, residential status, family background, liabilities, education, and economic strength of the parties.
- A timeline of events – as alleged, should be prepared and the presence of the victim and the accused be verified.
- List of expenditure/ articles should be properly verified.
- The online social history of the parties must be taken into account.
- Email, WhatsApp, text communication should be taken into account.
- Bank statements and ITR should be taken into account.
- Marriage photos and videos should be examined.
- Recorded telephonic conversations, call records and tower location should be called for.
- MLC/ MLR or any pictures/ videos related to abuse, hospital bills, police complaints etc. are to be examined.
HOW CAN INNOCENTS SAVE THEMSELVES FROM ABUSE OF 498A
- If the wife is about to leave or is leaving with all her jewelry and belongings, report it to the police instantly and have it recorded.
- Do not run away from the preliminary investigation when called by the police. To ensure that police conducts a just and fair investigation, cooperate with them.
- Resort to email conversation if the situation has become dense.
- Record your phone calls.
- Do not bribe or influence.
- Do not sign anything under pressure or influence.
- Do not panic.
- Do not admit to anything on phone or in writing in a casual manner. Specifically deny any allegation being put against you.
- Start preparing your side of narrative and search for proofs.
- Timely consult a lawyer.
The above article is authored by Mr. Ambransh Bhandari who is a practicing advocate in the High Court of Punjab & Haryana. Mr. Bhandari is a champion orator and a renowned lawyer in Chandigarh who also runs a law firm by the name of B&B Associates LLP. Mr. Bhandari is a consultant and practicing lawyer in Constitutional, Criminal and Divorce matters. He is a lawyer in Chandigarh who specializes in 498a matters and is an expert in countering atrocious acts by police. Mr. Bhandari has been saving innocents from being harassed and has successfully averted many legal blackmail situations.