Friday, May 01, 2015

Section 498A of Indian Penal Code: A perspective

498A. 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 punishable 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 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 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.”

The bandwagon of cases of misuse of 498 A frequently catches our imagination. So much so that it carried the weight of an entire film (Daawat-e-ishq) on its shoulders where 498 A is termed as a "kutti cheez". The problem with a lot of us is the sweeping generalizations we fall for. From a time when each husband was looked down upon with suspicion at the unnatural death of his wife (since dowry deaths disguised as kitchen accidents were on a rise), we are now witnessing a tectonic shift with the husband viewed as hapless and innocent (with misuse of 498 A being termed as legal terrorism by the apex court of the country). We were wrong then, we are wrong now. The essence of criminal law is "beyond reasonable doubt" and assumptions basis the fad of the day isn't the right way to deliver justice.

I had the opportunity to be exposed to this law and its various stakeholders- police, lawyers, human rights group, society and most importantly the victim (both men and women) for a period of 18-24 months which made me understand the intricacies of the journey. First, approaching the police to file a FIR invoking section 498 A against husband/ in-laws is the most drastic step a woman would be willing to take. Since the possibility of an arrest is high, it is a point of no return in a marital relationship. If there is any willingness to have a reconciliation, the woman would rather seek remedy under the Domestic Violence Act 2005 where the procedure for withdrawal of the case is much simpler. So majority of the cases would involve women who have suffered beyond their threshold and whose fear for her life is much greater than the pain that awaits her in times to come.

The process of being probed on every minute detail of what happened in your bedroom not in front of a counselor but a police station with multiple women officers sympathizing is not the start you wish for. Be it lawyers, police or your own family- the understanding of the concept of "emotional violence" is alien to most. So no one will pay heed to a complaint of mental harassment and the woman is likely to be interpreted as "too sensitive or not matured enough" , which is why women don't report cases early on. And then there are cases of marital rape to which the killed spirit of a woman has no remedy since it isn't acknowledged a crime. That's where there the system provokes falsification of charges. One false claim of you being punched in the stomach, being locked up in the room without food or even being asked dowry is the de-minimus to get your genuine complaint registered under 498 A.  Whether this is fair is a point to ponder on.

 Let this not fool us to believe that a woman who makes no false complaints has a strong case. Faulty and corrupt investigation practices, proceedings that run into 4-5 years and an unforgiving system that doesn't allow you to move on are a tough ask. Women are in fact asked in course of the proceedings to settle and start afresh. If 498 A cases end up with filing of divorce under mutual consent, questioning the genuineness of these cases is again a point to ponder on.

Having said the above, it is also a harsh reality that there are women who blatantly misuse these provisions. There are cases where the man is harassed so much that he starts contemplating separation. Since we still lack the maturity to settle such disputes amicably, resorting to character assassination or lying about intentions just creates more animosity provoking the woman's family to file a false complaint to get back at the guy's family. Ideally, post discussion with families, a divorce should be filed as soon as possible. This is where the system again fails us by not having a provision like "irretrievable breakdown of marriage" as a ground for seeking divorce. If you can file for divorce only by proving cruelty, impotency, infidelity etc, it is once again inviting storytelling and evidence buildup.

Taking note of the high number of arrests and finally low convictions made under sec 498A, the SC observed that 498A has the dubious distinction of being used as a weapon by "disgruntled wives". This aphorism reeks of a generalization that is best avoided. If convictions have remained low in spite of a 20% increase in dowry deaths between 2001 and 2013, is diluting a strict law the solution?

498 A assumes the charged guilty unless proven innocent and is non-bailable (bail not at police station but after being produced in front of a magistrate). This is only to provide protection to the woman who is still a vulnerable class, not harass her in the process of getting justice and eliminating abuse of power and money. A proper investigation before an arrest and noting its necessity has always been the imperative. If it has been flouted and arbitrary arrests have been made, the solution is not to deter the police from making arrests when necessary but to strengthen the investigation mechanism. Speedy disposal of cases with empathy and without prejudice is the sin qua non for justice. If the case has false allegations, quick closure of the proceedings should be followed by a counter case for defamation (Section 499) and false evidence (Section 193) which can invite imprisonment up to 7 years.

Let prejudices not obscure the truth and generalizations not color the lies. Stereotypes are to be kept at bay if justice has to see the light of the day.


  1. Thank you... Very enlightening

  2. One cannot really argue with what you are conveying but it is a fact that the police throughout (not only the SC) regards this law as one of the most misused ones. The facts and the ground investigations indeed buttress the view taken by the police and the SC.


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