You are awaiting the birth of your child outside the maternity ward. The nurse comes over and gives you the good news – “A baby girl is born”. With the birth of your daughter, the first thought that dawns upon you is, ‘From now on, I need to save every penny of my income for the dowry payable at the time of her marriage’.
Aforementioned is the picture of India infected with the evil of dowry a few years ago. Realising this sad plight of every middle class family, the central government framed the anti-dowry laws.
Onset of anti-dowry laws
In 1961, the Dowry Prohibition Act was enacted to prohibit presenting, demanding or obtaining dowry by either party to the marriage. To deal further with the harassment of women by their husbands and in-laws was introduced Section 498A in the Indian Penal Code, 1860 which reads as-
“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.”
Misuse of Section 498A
But over the last few years, this cure for harassed wives and daughters-in-law is being misused by unreasonable women to infect menfolk and their families.
The misuse of Section 498A is a matter of concern before the Supreme Court and the High Courts. According to the National Crime Records Bureau Report, “Crime In India 2012 Statistics”, the conviction rate under 498A is a meagre 15% which is indicative of the number of false cases. Some women possess oblique motives and consequently, husbands and their family members are unjustifiably booked under 498A and tried before the court.
A villainous woman uses ‘498A’ to threaten and extort money from the husband and his relatives. The opportunists file dowry harassment cases along with divorce petitions since the alimony claim would not suffice their greed. This section has therefore become a tool used for legal extortions, blackmails and baseless claims by wives.
Besides, as remarked by Justice Bhandari of the Supreme Court, most of the complaints are filed on the spur of the moment over trivial issues without deliberation of the consequences. To discourage and mitigate the results of the same, the Supreme Court has laid down certain directions for the advocates, judges, police officials and parties involved. These directions form the dam to stop the overflow of false implications under 498A.
Responsibilities of the members of the Bar
Sometimes while reporting harassment, filing for divorce etc. women are ill advised by their advocates to include ‘Section 498A’ merely to strengthen their case before the court. Furthermore, there are times when women with the desperation to force their husbands to succumb to their demands file false complaints of dowry harassment with concurrence of their lawyers.
Here is when learned members of the bar need to take measures to preserve family ties and uphold the nobility of their profession. As directed by the Supreme Court in the case of Preeti Gupta v. State of Jharkhand, they should look upon a case under this section as a basic human problem and take every possible initiative so as to encourage an amicable resolution of the problem. These responsibilities, if duly discharged by the advocates, will prevent the question of 498A from rising in some cases or even if it does will settle it to the advantage of both the parties.
Non-compoundable in law but compoundable to a certain extent in essence
A non-compoundable offence is one which can be compromised – neither at the instance of the parties nor the court. Section 498A is a non-compoundable offence. But in the case of K. Srinivas Rao v D.A Deepa, the Supreme Court has permitted the settlement of these disputes highlighting their larger matrimonial colour.
There are several complaints under 498A filed impetuously without considering the golden youth years which are lost in fighting the case. Having committed the blunder vehemently, the regretful parties wish to settle. But, they are unable to, since it is a non-compoundable offence. A number of such matrimonial disputes can be resolved if attempts are made at the nascent stage without letting it reach a stage beyond repair.
In the aforementioned judgment, the apex court has directed criminal courts to refer the parties to mediation centres for dispute resolution if there exist elements of settlement. The court has also instructed every mediation centre to have pre litigation desks to help such pre-litigation settlements.
During mediation, they may decide to part company on mutually agreed terms or they may decide to patch up and stay together. Either course of settlement would demand the complaint to be quashed by approaching the High Court. The High Court will order the same only if, convinced of the equitability and genuineness of the settlement, using its inherent powers under Section 482 of the Criminal Procedure Code –
“Saving of inherent powers of High Court – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”
No Automatic arrests under Section 498A
When an FIR alleging the in-laws of cruelty is filed, a casual arrest of all the accused follows including even the bed-ridden grandparents. Arrests cast scars on relationships and dissolves the possibilities of a settlement from the side of the husband and his family forever.
According to the National Crime Records Bureau Report, the rate of chargesheeting under 498A, IPC is as high as 93.6% but the conviction rate is merely 15%.
Therefore, the Supreme Court in the case of Arnesh Kumar v. State of Bihar has given a nine-point check list to the police officials to ensure adherence of the requisites under Section 41 of the Criminal procedure Code and thereby prevent these unreasonable arrests(the link to be provided here). The consequent check on automatic arrests of the accused under 498A will open greater avenues for resolution of these matrimonial disputes.
Therefore, 498A seems to have become a powerful tool in a woman’s armour and these guidelines aim at checking the unjustified use of it. But, at the same time, due care has to be taken so that the adequacy and vigour of 498A is not diluted and, an erring individual is not able to take undue advantage of these provisions and escape the clutches of law adding to the miseries of real victims.