Constitutionality of Section 498-A IPC – A Critical Analysis

Author: - Shawaiz Nisar

3rd Year B.A. LL.B (Hons.)
Rajiv Gandhi National Law University, Punjab

1. INTRODUCTION

Section 498A of the Indian Penal Code 1860 is the only provision in the code which recognizes cruelty against women. In India, demanding dowry was a usual practice; in which the groom’s family demanded some money or materialistic things of high value from the family of the bride. People used to consider more dowry as more respect and less or no dowry as no respect. The practice became so disastrous that it took the lives of hundreds and thousands of women in India. The bride with either less or no dowry was treated unfairly and harassed by the groom and his family. This unfair treatment and harassment ultimately forced brides to end their lives by committing suicide. Indian Criminal Law had not any provision to stop this menace and punish the offender/s. But a breakthrough came in 1983 in the form of an amendment to the Indian Penal Code. The amendment inserted section 498A which recognized the matrimonial cruelty against the women. The provision says that any person either husband or the relative of the husband of a woman if subjects such woman to cruelty shall be punished with imprisonment up to 3 years as well as with fine[1]. The offence is non-bailable, non-compoundable and Cognizable on a complaint filed by the victim or her designated relative.

The section considers cruelty to women as: –

  1. Any willful conduct of nature as likely to drive the women to end her life by committing suicide or to cause any grave injury or threat to her life, limb, or health (either physical or mental); or,
  2. Any harassment to the women with a view of coercing her or her relative to meet any unlawful demand of property or money or due to her failure of meeting such demand.

 

According to Section 113B of the Indian Evidence Act 1872[2], Section 498A applies to cases where the dowry death through brutal physical and mental torture to the woman occurs within 7 years of marriage. Moreover, Section 306 of IPC[3] applies to an abetter of such suicide also and can land such an abetter for 10 years in jail.

Additionally, there is Protection of Women from Domestic Violence Act, 2005, aimed at protecting women from domestic violation from either the husband or his family. Under Sections 18-22[4], the complainant can apply for the concerned reliefs.

2. CRITICISM OF SECTION 498A

Every legislation has some loopholes and potentiality of its misuse is inherent in almost every legislation. Same is the case with Section 498A. The provision was inserted to protect women from any harassment from her husband or in-laws. However, this law has been misused many times by the women against innocent husbands and in-laws. This misuse has been termed as ‘legal terrorism’[5] since the law is used more to oppress innocent people rather than punish the offender. This section has also been termed as ‘anti-male law’[6]. There is a widespread cry against this section and even the judiciary is taking cognizance of the issue. For instance, the Apex Court of the country in Preeti Gupta v. State of Jharkhand[7] observed that a serious reconsideration is required by the legislature regarding the provision. The court even accepted the fact that the misuse of the provision is prevalent.

The situation is so grave that the High Court of Delhi in Chandra Bhan v. State[8] even issued some guidelines to be followed while registering the complaints to avoid the misuse of the section. Some of them are: –

  1. FIR should only be registered after scrutinizing complaints carefully and not in a routine manner.
  2. The case under Section 498A/406 IPC should not be registered without the prior approval of DCP/Addl. DCP.
  3. Before registration of FIR, some efforts must be made to reconcile the issue.
  4. The arrest of the accused must be made only after proper investigation and with the prior approval of the ACP/DCP.
  5. In case the allegation is on in-laws also, then prior approval of DCP is required in such a case.

 

3. CONSTITUTIONALITY OF SECTION 498A IPC

The Section has been challenged to be unconstitutional based on the following:

  1. Violation of Article 20(2) [Double Jeopardy]

Double Jeopardy means twofold punishment for the commission of some offence. Article 20 (2) of the Constitution of India[9] provides that no person shall be punished twice for the commission of some offence. In Inder Raj Malik and others v. Mrs Sumita Malik[10], it was contended that the section violates Articles 14 and 20(2) of the Constitution. It was contended that Section 4 of the Dowry Prohibition Act provides punishment for the same offence, thus the two provisions viz., Section 498a IPC and Section 4 DPA create a situation of double jeopardy. However, the Court refused to accept this contention and stated that Section 498A IPC is distinguishable from Section 4 of the DPA as in the latter just demand of dowry is punishable and incidence of cruelty is not necessary, whereas the former relates to the aggravated form of the offence. Section 498A IPC punishes demand of dowry coupled with cruelty. Hence, the section is not ultra vires the constitution.

  1. Violation of Articles 14 and 21

Secondly, the section protects the women from cruelty but at the same time jeopardizes the life of many innocents making it susceptible to questioning on the grounds of being against Article 14 of the constitution[11]. The same potentiality of the provision makes it questionable based on Article 21[12] as the section fails to protect the right to life for all. But on the other hand, amending such a section to make it more liberal would defeat the purpose of the section thus failing to protect right to life for all and also failing to achieve gender equality as put forth by Article 14 of the Constitution.

 

4. HOW TO FIGHT AGAINST 498A MISUSE?

A false allegation of harassment or cruelty on a person and his family can be disastrous for all of them. The damage can be on the reputation of a person, his mental health, and many more. That loss is nearly irreparable, but the law provides an opportunity to such a person to retain his reputation and punish the person who made a false allegation against him. Some of the options for such person areas: –

  1. A defamation case can be filed under Section 500 of the Indian Penal Code[13].
  2. An application for recovery of damages that he and his family suffered on account of false accusations, may be filed under Section 9 of IPC[14].
  3. Punishment in the form of imprisonment up to 6 months for misleading the court with false information can be subjected to the culprit under Section 182 IPC[15].

 

Moreover, some ways to prevent such misuse include: –

  1. Establishing family counselling centers,
  2. Speedy trial of the accused,
  3. Making the offence bailable,
  4. The imposition of strict penal measures in cases of false accusations,
  5. Following steps given by the High Court of Delhi in Chandra Bhan v. State[16] for filing of FIR and registration of cases.

 

5. WAY FORWARD

Justice Malimath Committee on Reforms of Criminal Justice System, 2003[17] recommended amending the law. The need for making the offence under section 498A is bailable and compoundable was felt urgent. However, the same was opposed by the Women’s Groups[18]. In 2005, Justices Arijit Pasayat and H.K. Seema of the Supreme Court declared Section 498A as Constitutional, but they recognized the potentiality of its misuse as well. They stated that the provision is intended to be used as a shield and not an assassin’s weapon. The bench said, “If [the] cry of the wolf is made too often as a prank, assistance and protection may not be available when the actual wolf appears[19].” Every law is susceptible to misuse and that solely cannot be the ground for not implementing the law or abrogating any. However, there is a need to minimize such misuse by developing appropriate mechanisms. Moreover, developing better understanding between the husband and wife and their families is the only sure option by which the menace of dowry can be eliminated as well as the prevention of misuse of this law can be achieved.

 

References:

[1] Indian Penal Code 1860, § 498A (Act No. 45/1860) (Hereinafter, IPC 1860)

[2] Indian Evidence Act, § 113B (Act No. 1/1872)

[3] IPC 1860 § 306.

[4] Protection of Women from Domestic Violence Act, 2005, § 18-22 (Act No. 43/2005) (India)

[5] Smriti Singh, Misuse of dowry provisions is legal terrorism: Court, Times of India (Mar 3, 2011),

https://timesofindia.indiatimes.com/city/delhi/Misuse-of-dowry-provisions-is-legal-terrorism-Court/articleshow/7615680.cms .

[6] Varsha, 498A Use and Misuse, BNB Legal (Nov 4, 2019) ,

https://bnblegal.com/article/498a-use-and-misuse/ .

[7] Preeti Gupta v. State of Jharkhand (2010) 7 SCC 667

[8] Chander Bhan & Anr. v State (High Court of Delhi) (Hereinafter, Chander Bhan Case).

[9] INDIAN Const. art. 20(2) (Hereinafter, INDIAN Const.)

[10] Inder Raj Malik and others v. Mrs. Sumita Malik, ILR (1986) 2 Del179

[11] INDIAN Const. art. 14

[12] Id. art. 21

[13] IPC 1860 § 500

[14] Id. § 9.

[15] Id. § 182

[16] Chander Bhan Case.

[17] INDIA: REPORT OF THE MALIMATH COMMITTEE ON REFORMS OF THE CRIMINAL JUSTICE SYSTEM: SOME OBSERVATIONS, Amnesty International (18 Sep, 2003) https://www.amnesty.org/download/Documents/104000/asa200252003en.pdf .

[18] T.K. RAJALAKSHMI, Oppressor’s case, Frontline (Apr 08, 2011)

https://frontline.thehindu.com/social-issues/article30175033.ece.

[19] Sushil Kumar Sharma vs Union Of India And Ors, (2005) 6 SCC 281.

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