498A

IPC Section 498A

(1) Overview (2) Constitutional validity of 498A (3) Complaint registration process u/s 498A (4) How to counter 498A (5) Supreme Court Judgements (6) High Court Judgements (7) Misuse of 498A

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The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A (as discussed at para 1.2 above).

1.7    Section 113-A of Indian Evidence Act 1872: Sec. 113-A, deals with a presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman (wife/bride) or not if it is shown that soon before her death, if such woman (wife/bride) has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).
The object for which section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,1973 (in short ‘the Cr.P.C’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in- law’s and relatives. The avowed object is to combat the menace of dowry death and cruelty.

The act of harassment would amount to cruelty for the purpose of this section. Drinking and late coming habits of the husband coupled with beating and demanding dowry have been taken to amount to cruelty within the meaning of this section, but this section has been held not to include a husband who merely drinks as a matter of routine and comes home late. In a case before Supreme Court it was observed that this section has given a new dimension to the concept of cruelty for the purposes of matrimonial remedies and that the type of conduct described here would be relevant for proving cruelty.

2.1    With the advent of IPC section 498A, there are few controversies erupted over it’s constitutional validity as there is the Dowry Prohibition Act which also deals with similar types of cases; therefore, both statutes together create a situation commonly known as double jeopardy.

2.2     It was also contended that this section is ultra vires Article 14 and Article 20 (2) of the Constitution. Since, these articles belong to Fundamental Rights and the same are guaranteed by the constitution of India. Fundamentals rights only can be suspended the time of emergency (Article: 352, 356 & 360). However, Article 20 & 21 are protected even in the time of emergency.

2.3    Hon. Delhi High Court in case of Inder Raj Malik and others vs. Mrs. Sumita Malik (mentioned in Para 1.3) also negatives this contention and held that this section (IPC 498A) does not create situation for double jeopardy. Section 498-A is distinguishable from section 4 of the Dowry Prohibition Act (DPA) because in the latter (DPA), mere demand of dowry is punishable and existence of element of cruelty is not necessary, whereas section 498-A deals with aggravated form of the offence. It punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty to her. Hence, a person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act (DPA) and this section (498A).
This section (498A) gives wide discretion to the courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishment. This provision is not ultra vires. It does not confer arbitrary powers on courts.

2.4    In this context, an example can be taken into consideration to clear ‘ultra varies’. In a case of ‘Wazir Chand vs. State of Haryana involving the death by burning of a newly married woman, the circumstances did not establish either murder or an abetted suicide and thus in-laws escaped the jaws of IPC section 300 and 306. But, they were caught in the web of IPC Section 498A as they (in-laws of the bride) were persistently demanding from the bride’s side. The fact was revealed as a large number of articles were taken by her father after her death from her matrimonial abode showed that there was pressure being exerted on-in laws and continued to be exerted till death for more money and articles. Section 498A is specialised for prevention of harassment for dowry.

3.1    It is very important to discuss the process of registration of any complaint under section 498A. For convenient and to harass her husband and his relatives, wife generally register it at her comfortable place which is her hometown or Mayeka in order to drag all accused (Husband & his relatives) to face hardship at distant place for no help and being strange place.

3.2    There are many ways used by wives to register complaint under section 498A which are – (a) FIR at jurisdictional Police Station of her Mayeka, (b) Woman Police Station of her hometown (Mayeka), (C) Crime Against Woman (CAW) Cell, (d) Direct complaint to the court under section 156 of CrPC as complaint case.

3.3    With a written complain to either at her jurisdictional Police Station or at Woman Police Station, a wife can register an FIR against her husband and husband’s relative as per her choice. There is no restriction of respondents. Accused are added as per the choice of the wife (Nagin) and all are made accused. Hardly any woman register complaint under section 498A at the actual place (her matrimonial place i.e. sasural) where it may be supposed or imagined or conspired to have taken place.

3.4     A wife also directly, approaches to the court of her jurisdiction of Mayeka and directly register a complaint case against husband and his relatives of her choice under section 156 of CrPC.

3.5    Wife preferably, chose to register FIR in her jurisdictional Police Station to use Police power to invade to her matrimonial house, to malign the respect and integrity of her-in-laws and try to torture and humiliate them.

3.6    It is well known that Police is hot spot of corruption and prone to accept bribe and acts accordingly. The same was also pronounced in a land mark judgement in Crl. Mis. No. in Arnesh Kumar Vs. State of Bihar and anr. In CRIMINAL APPEAL NO. 1277 OF 2014 (@SPECIAL LEAVE PETITION (CRL.) No.9127 of 2013), Bench: Justice, Chandramouli Kumar Prasand & Pinaki Chandra Ghose delivered on 02/07/2014. However, in Indian law, women have been given top priority. Police, Court, Society and all government or non-government institutions always favours woman without knowing the fact instantly.

3.7    The main aim of wife is to somehow, get arrest her husband and all her relatives who are made accused according to her plan & conspiracy. In this series, police does not issue notice to accused (husband & his relatives) under section 41A of CrPC and try to portray that all accused are running out of police and not supporting police in investigation. As a result, there is an atmosphere is created so that police can use it’s legal power with the consent of Court to invade and make some arrest. As a result to create pressure, Police visits a number of time to the husband’s and his relatives house to harass and create pressure.

3.8    As a result of such police torture and invasion, there is a possibility of fraction of opinion among husband and all his relatives. This sometimes also creates distance and brake of relationship among them which is also the plan of the wife. Somehow, to make husband alone and isolated so that he can easily be trampled down of her choice.

3.9    In this case, it is practically found that Police and court only treats the wife as woman and all benefit of woman is enjoyed by the wife only. No, woman of her-in-law side can enjoy the benefit of a woman if there are any woman made respondent under this complain as they are not entertained.

3.10    The only target of the wife and her parents to put husband and her relatives somehow behind bars. They tries every bit of care and effort so that the accused (husband & his relatives) can’t able to get bail and be sent in judicial custody.

3.11    Crime Against Woman (CAW) Cell: This topic is comprehensively discussed in Crime against woman (CAW) Cell.

4.1    The main objective of a wife and her parents to put husband and his relatives (all accused) behind bars to exert pressure on them so that they will remain afraid of them forever and wife can rule over as per her desire and will.

4.2    The first and main target is to get bail in this case. Once, bail is granted, all conspiracy and planning of wife and her parents punctured out and half of the battle is won. Hence, it is important for husband and his relatives to get bail. The same are discussed in successive para hereinafter.

4.3    As soon as the FIR is registered, husband and his relatives required to be vigilant and ensure not be afraid of if they have not committed any crime. Confidence and coolness of mind play very vital role to counter fake 498A. Half battle is won by confidence and calmness. Once, confidence is lost and results into mental blackout, wife and her parents will rule over.

4.4    Draft an application addressed to the SSP/SP or ACP of the jurisdiction under which that police station falls where the FIR under section 498A is registered with a copy to the concerned Police Station. Narrate all the facts with supporting documents and witness of neighbor and intimate SSP/SP or ACP that a false is registered and all accused are ready to cooperate in Police inquiry. The application should be supported with an affidavit regarding the facts which are produced before these authorities.

4.5    Original copy of the application signed by the husband with all documents as discussed in para 4.4 is required to be sent to SSP/SP or ACP as the case may be and a copy of the same to be forwarded to the SHO of the concerned police station only either by Speed Post or Registered Post. Paste the counter slip of the Speed Post/Registered post on the back of the application of individual copy for record.

4.6    Never visit Police station alone. Visit Police station with a professional lawyer and request in written to issue notice under section 41A of CrPC to all accused. If the notice is served, the police can’t arrest any accused. If 41A notice is not served, approach to SSP/SP or ACP that Police is torturing and not doing as per the procedure of law.

4.7    Obtain a certified copy of the plaint/FIR either from Police station or from court as one copy of FIR is served to the concerned magistrate of jurisdiction. It is advisable to rush to the High Court and file FIR quashing petition there under section 482 of CrPC. Try to obtain an order of stay for further process on FIR. Once, the order is issued, all the process and police activities/investigation will be fridged instantly. As the entire process is fridged, no arrest can be made.

4.8    File Anticipatory Bail petition before the court and pray before the court for grant of bail on the basis of circumstance and evidence. Try to convince the court that all will support in police investigation and never escape to any other country to delay or avoid litigation.

4.9    All accused except husband will be granted bail from the subordinate court. In most of the states in India, husband is also granted bail by the subordinate court. In Bihar, Jharkhand, Utter Pradesh (UP) & Uttarakhand, husband is not practically not granted bail by the subordinate court.

4.10    Approach to the High court for grant of bail. There may be a process of mediation, conciliation for patch up and all authority try to convince and even threat the husband to compromise and keep his wife with him. At this time, husband needs to be as cool as cucumber and as firm as mountain in his stand and determination.

4.11    just be firm on determination that once a woman approached to Police and Court and tried to put his husband and his relatives behind bars with false and fabricated case, she lost her right to reside with her husband. A husband should affirm about it and never look back or think to continue with his wife after this bitterness in a fear of being arrested. Always ready to be arrested rather to live with her. Husband should told confidently that his life is in danger with this woman. He can’t put his life on stake. He got the fundamental life to live in under Article 20 of the Indian Constitution.

4.12    An arrested and jail life is better than a life of hell with such kind of woman/wife (Nagin). So be clear in vision that husband should be ready to stay in prison rather to stay with such nagin. At least in prison, husband can alive and can breathe in free air. Never be double minded.

4.13    Generally, High Court grants bail to the husband. Once bail is granted, half of the battle is won.

4.14    Meanwhile, always keep vigil on the ongoing investigation process of the
FIR. If there is a doubt that Police is not doing proper investigation, a petition in the concerned magistrate may filed for issuance of order regarding proper investigation and also point or subject of investigation may be highlighted as well.

4.15    Once, Chargesheet/Challan is submitted in the court u/s 173 of CrPC, a negotiation between court staff may be done regarding – (a) removal of the name of some accused, (b) removal of some un-needed sections which were deliberately included to harass. This can easily be done by the help of court clerk. As all know that mostly 498A cases are false and un-needed people are made respondents. Hence, it the court clerk proposes for removal of some un-needed sections or persons, the same can be accepted by the court. Hence, at this state, come relief can be obtained. In the view of magnitude of sections against cognizance is made by the court, the case is transferred to the competent court. Generally, 498A case is transferred to Sub-Divisional Judicial Magistrate (SDJM) court.

4.16     If no such relief is obtained/granted, never be in hurry to appear before the court on summon. Try to not to accept the summon issued by the court for appearance. This practice is to be adopted to delay the proceedings.

4.17    Meanwhile, obtain the certified copies of – (a) FIR, (b) Cognizance Report (c) Chargesheet/Challan, (d) any other cases laudged by Nagin like – Maintenance Case u/s 125 of CrPC, Domestic Violence case under section 15 of PWDV Act, 2005 etc. and file quashing of cognizance of lower court. Also, it is advised that go through the Chargesheet carefuly, note down police movements date as mentioned in the Chargesheet and apply for grant of Certified Copy of Station Diary pertaining for that dates. It will change the direction of trail in the court. Role of station diary in criminal case can be known widely from the published article named ‘Police’.

4.18    It is advised to file quashing of cognizance order of lower court in the concerned High Court in different bunches as – (a) Husband only, (b) Family relatives who lives outside the core family viz. Brother-in-law (Jija/Sala), Sister-in-law (shali) and so on in one bunch & (c) one bunch for core family relatives viz. brother, Sister-in-law (Bhabhi), Father, Mother etc.

4.19    Try to obtain a stay order from the High Court for stay on further proceedings at lower court. Never appear all respondents on a single day. As the opposite party (nagin) will try to move for charge the case to make the trial commence. Once, the case is charged, the effect of quashing of cognizance order of lower court lost its validity.

4.20    Meanwhile, to delay the proceedings at lower court, discharge petition is preferably advised to be filed one by one in the name of the respondents. The process of discharge petition is broadly discussed in ” Brief about Criminal Court Process”.

4.21    It is mostly, found that the lower court where trial of the case is scheduled, usually rejects the discharge petition. It the discharge petition is rejected, obtain a certified copy of the concerned order and appeal against this order in Session Court. Untill the appeal is decided in Session Court/Court of Session, the proceedings in the lower court will be fridge as all records are called for record and argument in the court of Session. Lower court don’t have any paper to move on.

4.22    Once, the appeal for discharge petition at Session court is rejected, obtain the certified copy and appeal against the order of court of Session in the High Court. All proceedings in the lower court will be paralyzed until the appeal is pending in the High Court. However, amidst this process, it is advised to file another discharge petition in the lower court in the name of other respondent and let the delayed process run alike. Repeat this cycle again and again to delay the process.

4.23    It is most likely that, cognizance order against all respondents except the husband is quashed by the High Court as it is assumed that all demand of dowry if any lies with the husband only. Several, High Courts & Supreme Court judgements are available in this regard.

4.24    Once, the cognizance of the lower court against all respondents except the husband is quashed, they have no role in the case and they are free from all the charge. It deeply affects the ongoing trail process in the lower court as Police scripted the false investigation by portraying names of different respondents to make its report to give the favour to the bride/wife/nagin. Since, their names are removed, the script of the police in the chargesheet are also treated to be deleted and it helps in the trial.

4.25    Every police personnels above the rank of Head Constable are required to endorse their every respective movements in the Station Diary which is maintained in Every Police Station under Police Rule 22.48 to 22.52 of 1934. Any willful wrong entry liable the police personnel from dismissal from service. Hence, if certified copy of station diary is obtained and if there are some entries not made or don’t match as per Chargesheet submitted. The fate of case can easily be decided and the investigating officer may be traped.

4.26    Criminal cases if run for long period, only respondent is benefited from it. Hence, it is advised to make sure to stretch it out as much as possible. It has many benefit – (a) the confidence of Nagin vanish and she begin to broke down and start feeling regretted (b) witness from Nagin side either hostile or may die. Longer the criminal case longer is the chance of acquittal.

4.27    In case of complaint case as discussed in 3.2(d), the process incorporated in Para 4.7 to 4.26 except para pertaining to quashing of FIR under section 482 is advised to be adopted. Further, there may be a possibility that court may order the police for investigation. If investigation order is issued then, the same dealings with the police may be practiced/adopted.

4.28    “Brief about Criminal Court Process” is highly recommended to be followed for awareness and better outcome. As the same process is followed in every criminal case.

5.2    Petty quarrels cannot be termed as “cruelty” to attract the provisions of Section 498-A IPC: In Manju Ram Kalita v. State of Assam (2009) 13 SCC 330, Hon. Supreme Court referred to the case of S. Hanumantha Rao v. S. Ramani – for the meaning of mental cruelty. The Court also referred to other cases for cauging the scope of cruelty such as Mohd. Hoshan v. State of A.P, Raj Rani v. State, Sushil Kumar Sharma v. Union of India, etc.

Highlight of the judgement: 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.

5.3    FIR instituted against one and all family members living separately liable to be quashed: Hon. Supreme Court of India in G.V. Rao Vs. L.H.V. Prasad. Date of Judgement: 06/03/2000. Bench: Justice D.P. Wadhwa & Justice S.S. Ahmed.

Highlight of the judgement: Hon. Supreme Court’s verdict in G. V. Rao vs. L.H.V. Prasad, wherein the Court stated that a complaint relating to matrimonial dispute where all the members are roped into irrespective of role, becomes liable to be quashed.

(6) High Court Judgements

6.1   Lodging false case under Section 498A of IPC is Cruelty and Ground for Divorce: Hon. Bombay High Court in Mrs. Christine Lazarus Menezes v. Mr. Lazarus Peter Menezes (Bombay High Court), CRIMINAL REVISION APPLICATION NO.368 OF 2008.

Highlight of the judgement: If the Criminal Complaint filed by the appellant wife against her husband was false and was filed only to bring back her husband and consequent to which he was arrested and was in jail for about 7 days, it would constitute a clear case of cruelty by the wife against her husband.

6.2    FIR Instituted against one and all Family Members Liable to be quashed: The Gujrat High Court in Natubhai Somabhai Rohit v. State of Gujrat & Anr. in CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 14484 of 2013.  Judgement date: 12/12/2015.  Name of Judge: Justice R.M. Chhaya.

Highlight of the judgement: The court observed that when the allegations are shown to be non-specific and not of the degree of seriousness contemplated in law, and when the applicants accused (Respondents) are shown to be living separately coupled with attendant facts and aspects, the allegations become too bald to be sustain in law.

 (7) Misuse of 498A

7.1    498A is the most misused IPC section. This is the section in which conviction rate is the lowest. This is used as a legal tool to rope in husband and all his relatives in a view to torture and harass to rule over.

7.2    The abuse of this section is rapidly increasing and the women often well- educated know that this section is cognizable, non-bailable and Non-compoundable.

7.3    Hon. Supreme Court of India in its judgement dtd: 19/05/2003 in Savitri Devi v Ramesh Chand & Ors., the court stated that – there was a misuse and exploitation of the provisions to such an extent that it was hitting at the foundation of marriage itself and proved to be not so good for health of society at large. The court believed that authorities and lawmakers had to review the situation and legal provisions to prevent such from taking place. Bench: Justice Kapoor.

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