Call for amendment of section IPC 498a

To the kind attention of Hon’ble Members of the Committee on Petitions of the Rajya Sabha,

Subject: Memorandum on Amendments of IPC 498A Honorable Members,

I would like to present this memo with reference to the invitations in support of the  petition praying for amendments in Section 498A of Indian Penal Code, 1860. I wholeheartedly support the petition which points to the extensive abuse and misuse of this provision of the Penal Code, which occurs on a daily basis.

Current IPC 498-A498-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 purpose 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.

498-A is cognizable, non-bailable, and non-compundable. Arrests are made, without any preliminary investigations. Statement of wife is treated as gospel truth.

The provision of IPC 498A was inserted in the Indian Penal Code by reason of The Criminal Law (Second Amendment) Act, 1983 (Act No.45 of 1983). The statement of objects and reasons thereof reads as under :-

“The increasing 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 working of Dowry Prohibition Act, 1961. Cases of cruelty by the husband and the 1 of 6relatives of the husband which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is therefore proposed to amend the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of Dowry Death but also cases of cruelty to married woman by their in laws.”

Though, IPC 498A was enacted with the main objective of curbing, dowry deaths, in majority of the cases, where it has been used, not even a whisper of demand of dowry is there, or any physical injury is present.

Clause A of 498A, which deals with physical and mental abuse is dealt with in a very comprehensive manner under The Protection of Women from Domestic Violence Act, 2005, (PWDVA). Clause A of 498A is very vague, and is very wide open for any interpretations. And where wide interpretations are possible, misuse becomes rampant. PWDVA provides a better definition of Domestice Violence, and hence renders 498A infructous. In majority of the cases, baseless allegation of physical cruelty are made, even though, no physical injury exists. With no procedure, to curb false allegations, exaggerated complaints with malafide intentions have became the norm.

Clause b of IPC 498A, covers the demand for dowry. The Dowry Prevention Act,1961 was enacted for this sole purpose, and looking at the mis-use of 498A(98% acquittal) it is very clear, that clause B of IPC 498A has failed miserably. This also underlines the fact, that the sole purpose of invoking 498A is to harass husband, and his relatives. Further IPC 406 is used for further safeguarding of streedhan. Hence overall IPC 498A is useless in todays circumstances. The high number of quashed 498-A cases throws enough light, on the way, this section is being heavily misused, to harass husbands and his relatives.

By treating the statement of wife as gospel truth, arrests are made, without any opportunity being given to the accused husband, which goes against the principle of natural justice.

Rather than effectively implementing existing laws, adding new laws, for issues, for which there are existing legal remedies, creates new problems. Hence the need of the hour is not new laws for marrital issues, but effective implementation of current laws. Since PWDVA provides all the relief to a wife, IPC 498A  has became irrelevant.

The Real Statistics    and Effects of the 498A Misuse

a) Number of false cases has increased by 280% since the last 12 years. From 28579 cases in 1995, it has reached 81344 in 2008(source National 2 of 6Crime Record Bureau, 2008). Almost a million people have been arrested since 1999.

b) 80% of people arrested are found innocent after a legal trial of an average of 7 years. The average length of trial has increased from 7.1 years in 2003 to 7.8 years in 2006. Approximately 98% of cases where 498A(r/w 34) is only charge and the wife is alive are found to be false. Punishment is seen in some cases where section 304B is tagged with 498A where the wife has committed suicide.

c) More than 30% of all bail applications are due to IPC 498A. The biggest beneficiaries of this act are the lawyers who are making make money from innocent people’s misery.

Independent research conducted by the well known NGO Save Indian Family Foundation has shown that the total productivity loss annually due to the false 498A related cases is close to Rs 4000 crores. The Indian youth which could have been productive wastes a significant amount of productive time and energy defending itself against false and frivolous cases.

Few    reactions to section 498A and its misuse

To backlash against 498A misuse has been phenomenal and to cover all of it one letter is impossible, however some notable judgements and  remarks have been covered.

Hon. Supreme Court of India has ordered the Govt to amend 498A many times but to no avail

At the time of delivering the judgment in case of CRIMINAL APPEAL NO. 1512 of 2010, (Arising out of SLP (Crl.) No.4684 of 2009) in the case of Preeti Gupta & Another vs State of Jharkhand & Another, the Hon’ble Supreme Court of India had stated the below  with reference to section 498A and its immense misuse . “Before parting with this case, we would like to observe that a serious  relook of the entire provision is warranted by the legislation. It is also a matter of  common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases”.

“We direct the Registry to send a copy of this  judgment to the Law Commission and to the Union Law Secretary, Government  of India who may place it before the Hon’ble Minister for Law & Justice to take  appropriate steps in the larger interest of the society.”

More such observations regarding 498-A have been made by the Hon. Supreme Court.−

In Criminal Appeal No. 891 of 2004 (Dr. Sunil Kumar Gupta Vs. State of 3 of 6Maharashtra), in point 35, “It is a clear cut case of gross abuse of  dowry laws”

− Appeal (crl) 967 of 2008, M. Saravana Porselvi Vs. A.R.Chandrashekhar & ors, the court has declared “It (complaint) was initiated malafide.”

− Appeal (crl) 1274 of 2008, Ruchi Agarwal Vs Amit Kumar Agarwal & Ors, “In our opinion, the conduct of the appellant indicates that the criminal complaint from which this appeal arises was filed by the wife only to harass the respondents.”

The Hon. Supreme Court, has on many occasions, has came down heavily on wives filing false complaints, and tendencies of prosecution to hastily jump on to the conclusion of husbands being criminal without any material evidence, since it goes against the principle of natural justice. SC has also commented on the unscrupulous wives, filing false 498A complaint, with the only ulterior motive of harassing her husband, and his relatives. Similar sentiments have been regularly echoed by various High Courts across the country.

A sample of such comment, is the below

In Narendar Kumar Vs. State (Govt of NCT Delhi) Cri. Appeal No. 696/2004, Hon. Justice Shiv Narayan Dhingra has commented “ From the entire documents and the testimony of the witnesses I come to the conclusion that it is an unfortunate case where the complainant by making false statement  implicated the entire family in offences of under Section 307 and 498 A IPC.  The Trial Court was not cautious enough to even look to admitted documents on record before convicting the family on mere statement of an estranged wife. Trial  Courts should guard themselves from being swayed by emotions. They should consider entire circumstances and should carefully analyze the entire evidence”

Other notable Legal recommendations

In  Savitri Devi Vs. Ramesh Chand (Delhi High Court, CRL, R462/2002), Hon. Justice JD Kapoor of the Delhi HC passed a landmark Judgement in 2003 against 498A and its misuse .

“Before parting, I feel constrained to comment upon the misuse of the provisions of Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of  the society at large. To leave such a ticklish and complex aspect of proposition as to what constitutes `marital cruelty’ and `harassment’ to invoke the offences  punishable under sections 498A/406 IPC to a lower functionaries of police like Sub Inspectors or Inspectors whereas some times even courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and  unskilled masters.”

“There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative- including minors and even school going kids nearer or distant relatives 4 of 6and in some cases against every person of the family of the husband whether  living away or in other town or abroad and married, unmarried sisters, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as  many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or  exaggerate allegations or there is no evidence of any physical or mental harm or  injury inflicted upon woman that is likely to cause grave injury or danger to life,  limb or health, it comes as an easy tool in the hands of Police and agencies like  Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till  they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being  lodged day in and day out.”

“ It is rightly said sometimes the remedies are worse than the perils or disease. Having seen and experienced the enforcement of  these laws for decades, time has come to take stock and review them as  thousands of marriages have been sacrificed at the altar of this provision. In one metropolis alone, thousands divorce cases arising from the cases under Section  498A/406 IPC are pending in Courts. There are equal or more number of  marriages which are in limbo. What else is it if not a social catastrophy ? This should be a matter of concern for social scientists, law-makers and Judges also.”

Government wastes taxpayer money to subsidize a wife’s vengeance

It is now common knowledge in India that over 98% of all cases filed under section 498A are false to begin with. Since a 498A case is a crime against the state, the Indian Govt fights a 498A case on behalf of the wife. Hundreds of crores of tax payer money is wasted in pursuing these 98% of false cases which essentially are wild goose chases for decades. The same taxpayer money which is now used to subsidize a wife’s greed and vengeance can be better used to improve the working condition of the Indian courts and also reduce judicial backlog.

WHO calls 498A as the primary reason for Elder abuse in India

In the report titled “Elder Abuse in India” the world health organisation (WHO) stated “Daughters-in-law” was the next “problem” in both the groups(upper and lower middle class senior citizens). While both the groups stressed on the lack of  caring attitude by the daughters in law, women of the lower socio-economic class got very vocal about the fact that daughters in law were misusing the law, by reporting harassment by in-laws to the police, leading to maltreatment by the police to the in-laws. (Indian Penal Code sec.498(a), is designed to tackle dowry  deaths)”

Press / Media and Newspapers

Not a single day passes when there is not an article in the a journal/newspaper calling for the repealement / amendment of this draconian legislation.

Ministerial Advisories / Stop Gap measures undertaken

Alarmed at the ever increasing number of false cases and the inaction at the center about changing this law. Local police started issuing advisories agsint arrest without investigations. Also the Central Home Ministry has issued an official advisory in which it stated

“In some cases, every member of the husband’s family has been arrested, irrespective of whether they had a role in inflicting cruelty on the married woman or not. In some cases, the provisions have been used to settle personal scores. Cases have been reported where momentary anger has resulted in invocation of Section 498A, which resulted in the arrest of the members of the family shutting down any possibility of  reconciliation in future and total collapse of the marriage. Even where there is a divorce proceeding, the case under Section 498A continues to persist because of the offence being non-compoundable,” .

Recommendations .

Keeping in view all the above facts, it will be in the interest of justice, that the draconian section 498A of Indian Penal Code be repealed. IPC 498A is clearly unsustainable. It has cause much harm(and is still continuing to do so) to the Indian society, particularly the institution of marriage is threatened by 498A. Growing number of men, are opting to stay out of marriage, for fear of, a false 498A complaint being lodged against them.

Thanking you ,

Your’s Truly

Zubair