Section 498A IPC (Domestic Violence)

Context:

The Supreme Court in a recent judgement highlighted the growing misuse of Section 498A IPC, with friction rising in marriages.

What is Section 498A?

• Section 498A, which was passed by the Parliament in 1983, states that “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’
• In 1983, ‘Section 498-A of the IPC was introduced with affirmed 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
• The simplest way to harass is to get the husband and his relatives arrested under this provision.
• In quite a number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.
• The Society for Prevention of Cruelty to Husbands help men at the receiving end of anti-dowry laws.

Facts:

• Cruelty by husband or his relatives, covered under Section 498A of Indian Penal Code (IPC), makes up the largest chunk of all crimes against women
• The charge, often levelled by a wife against her in-laws in cases of dowry harassment, accounts for over 30 per cent of all crimes against women.
• Cases under Section 498A was found to have the lowest conviction rate — merely 12.1 per cent — among all cases of crimes against women

Timeline:

• Section 498A has been a matter of debate over the last few years
• Government in 2015 even attempted to make the offence compoundable. This would have allowed complainants to enter into a compromise with the accused and agree to have the charges dropped
• Making the dowry law compoundable was also among the recommendations made by the Law Commission and the Justice Malimath Committee
• Various courts, including the Supreme Court, have over the years called Section 498A as being prone to abuse
• In 2014, the SC said that it had a “dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives”

What is the issue around Section 498A?

The Supreme Court said women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code.

Citing very low conviction rate in such cases, it directed the state governments to instruct police “not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code”.

The bench quoted “Crime in India 2012 Statistics” published by National Crime Records Bureau to say that nearly 2 lakh people were arrested in India in 2012 under Section 498-A, which was 9.4% more than in 2011.

Indian Courts had been using IPC 498-A to safeguard the women from facing the cruelty faced by them at their matrimonial home. Most of the cases are related to dowry, wherein the woman is continuously threatened for want of more money and property which if remains unfulfilled, the married woman is tortured, threatened, abused- both physically and verbally and harassed.

Several cases show that the married woman takes advantage of the section. Many women rights‘ groups justify the abuse of this section as being a common feature with all other laws and that also the ratio of false cases to that of true ones as being very low. But this still does not change the truth. The abuse of this section is rapidly increasing and the women often well- educated know that this section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.

Justice must protect the weaker and ensure that the wronged is given a chance to claim back his/her due. When women accuse their husbands under Sec 498A IPC by making the offence non-bailable and cognizable, if the man is innocent he does not get a chance quickly to get justice. Misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin‘s weapon.

Therefore, the lawmakers must suggest some way of making this section non-biased to any individual such that the guilty is punished and the person wronged is given justice.

What is the decision of SC in regard of Section 498A?

• Police cannot arrest the accused without conducting a preliminary inquiry under dowry harassment cases.
• With this, apex court put an end to immediate arrest of the husband and his family members in the dowry harassment cases filed under Section 498A of Indian Penal Code (IPC).
• Now cases under Section 498A of IPC will be referred to Family Welfare Committees (FWC). FWC must be constituted at every district and no arrest will be effected till the committee’s report is received. Such report may be then considered by the investigating officer or the magistrate on its own merit.
• FWC must comprise 3 members who may be social workers, retired persons, para-legal volunteers, wives of working officers and other citizens who are found suitable and willing. However, these committee members will not be considered as witnesses.
• There must be adequate material to show that the arrest is necessary to prevent the accused from committing any further offence.
• Moreover, designated police officer should be appointed to deal with such complaints.
• These directions will not apply to the offences involving tangible physical injuries or death.
• There will be also no routine impounding of passports or issuance of Red Corner Notice for the accused NRI.
• The personal appearance of all family members and particularly outstation members will be also not be required.

Rajesh Sharma vs The State of Uttar Pradesh

• Proceedings had arisen from complaint dated 2nd December, 2013 filed by respondent.
• The complainant alleged that she was married to appellant on 28th November, 2012.
• Her father gave dowry as per his capacity but the appellants were not happy with the extent of the dowry.
• They started abusing the complainant. They made a demand of dowry of Rs.3,00,000/- and a car which the family could not arrange.
• On 10th November, 2013, appellant dropped the complainant at her matrimonial home.
• She was pregnant and suffered pain in the process and her pregnancy was terminated.

How is it misused?

• Police often visit the office premises of men in order to shame them and jeopardize their job situation. Police also pick up relatives of men who are not even named in the complaint, they are illegally detained by police and forced to give their statements.
• Judges grant interim bail and then keep on extending the bail for every 5 or 7 days and thus the man is neither arrested nor free but keeps on attending court dates without any reason.
• After giving interim bail, the cases are referred to mediation where the man is psychologically tortured to bow down before wife’s demands and if he does not do so, his bail is canceled and he is sent to jail.

What could be the effects of this decision by the SC?

• By creating the Family Welfare Committee, the court creates one more layer between the victim and the justice system, and as a result, justice could be compromised.
• The creation of an intermediate body that will inspect complaints against cruelty, before the complaint reaches the formal authority, to check for maliciousness is to indicate that the judiciary does not trust the very beneficiaries of this legal provision.

What steps can the Government take?

• Drop the move for amending 498A to make it compoundable.
• Make Section 498A bailable and non-cognizable.
• Form committees of innocent men, who have been acquitted, as watchdogs to monitor and review orders by judiciary.
• Insert a special provision to punish those police and judicial officers who do not follow the law properly and resort to malpractices under the cover of Section 498A.
• Stop the extortion and blackmailing of men in the name of mediation and counseling.

What are Acts of Domestic Violence?

• Physical violence, such as slapping, hitting, kicking and beating.
• Sexual violence, including forced sexual intercourse and other forms of sexual coercion.
• Emotional (psychological) abuse, such as insults, belittling, constant humiliation, intimidation, threats of harm, threats to take away children.
• Controlling behaviors, including isolating a person from family and friends, monitoring their movements and restricting access to financial resources, employment, education or medical care.

What are Indian laws that help curb the instances of violence against women?

• The Dowry Prohibition Act, 1961
• The Indecent Representation of Women (Prohibition) Act, 1986
• The Commission of Sati (Prevention) Act, 1987
• Protection of Women from Domestic Violence Act, 2005
• The Sexual Harassment of Women at Workplace Act, 2013
• The Criminal Law (Amendment) Act, 2013

Source: Indian Express

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Though there are some misused of section 498A but Domestic Violence is truth.

You can recognize survivors of abuse by their courage. When silence is so very inviting, they step forward and share their truth so others know they aren’t alone.”