Family Law 1 Project.docx

Family Law- III Semester

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

TOPIC SECTION 498A OF IPC- MISCONCWPTION OF ITS MISUSE

2017-2018 FAMILY LAW- I

SUBMITTED TO:

SUBMITTED BY:

Mrs. Samreen Hussain

Alok Bhardwaj (23)

Assistant Professor (LAW)

SECTION- A

RMLNLU, Lucknow

B.A. L.L.B. (HONS.)

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Family Law- III Semester

Declaration

I

hereby

declare

that

the

project

work

entitled

“SECTION

498A

OF

IPC-

MISCONCWPTION OF ITS MISUSE” submitted in Dr. Ram Manohar Lohiya National Law University, is a record of the work done by me with the assistance of my seniors and under the guidance of Mrs. Samreen Hussain (Assistant Professor) and this project work has not been submitted anywhere else for any of the purposes and is exclusively given to you.

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

Alok Bhardwaj



Roll no. 23



3rd Semester



B.A.LL.B (Hons.)

Family Law- III Semester

Acknowledgement I would like to extend my sincere thanks to all those who helped me in this topic of research. I extend my sincere acknowledgements to my teacher and mentor Mrs. SAMREEN HUSSAIN Ma’am who gave me this wonderful opportunity to make a project on “SECTION 498A OF IPC- MISCONCWPTION OF ITS MISUSE”. I am deeply indebted to her helping me with her able guidance and advice in choosing this particular topic. I further extend my thanks to Vice Chancellor, Dr. GURDEEP SINGH Sir and Dean (Academics), Professor C.M. JARIWALA for their encouragement and enthusiasm, my seniors for sharing their valuable tips, and my classmates for their constant support.

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

Alok Bhardwaj



3rd Semester



B.A.LL.B (Hons.)

Family Law- III Semester

Table of Contents INTRODUCTION ....................................................................................................................... 5 CHALLENGES METED OUT TO SEC.498A OF IPC SINCE ITS INSERTION IN PENAL CODE .......................................................................................................................................... 8 RELIABLE DATA SHOWING NO MISUSE OF PROVISION ............................................. 11 A WRONG INTERPRETATION BY JUDICIARY AND OTHER INSTITUTIONS ............ 15 APPROACH OF SUPREME COURT IN RAJESH SHARMA & ORS. V. STATE OF UTTAR PRADESH AND LOOPHOLES IN DIRECTIONS .................................................. 17 CONCLUSION ......................................................................................................................... 19

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Family Law- III Semester

INTRODUCTION Marriage is an important social institution in Indian society since time immemorial, but sadly it has been somewhere biased against women because it is the bride who is supposed to serve her husband and parent-in-laws not the male counterpart.1 Also it is the woman who is supposed to act as glue to keep the family intact and if she complains about something, then the existence of institution of family will be endangered.2 It is not incorrect to say that women have been subjected to cruelty, harassment, and torture of both mental and physical nature within the four walls of marital home and outside of it since time immemorial because of archaic social structure where patriarchy ruled the roost and because of male chauvinism that is prevalent in society.3 India got its independence in 1947 and adopted the Constitution, the supreme law of the land, in 1950, which remains in the force till today. Fundamental rights (art.12- art.35) which are given under part-III of the Constitution are of much importance. Under Art.21, right to life and personal liberty is given which has been interpreted as right to live life with dignity and free from violence and under Art.15, Parliament is empowered to take affirmative measures for women.4 Complying with the same and with the headway and advance of society and with women's movement picking up energy against the rigid patriarchy, it was felt that sufferings of the women should be mitigated by providing more rights to them, and make them free from the shackles of savagery and social fetters and therefore, a number of legislations and provisions both civil and penal in nature were introduced to curb the practice of dowry and to place women on an equal footing along with their male counterparts and make them able to divorce her

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Richa Mishra, Section 498A IPC, Legal Service India, (Sept.13, 2017, 4:50 PM), http://www.legalserviceindia.com/article/l336-Section-498-IPC.html. 2 Sharmila Lodhia, Legal Frankensteins and Monstrous Women: Judicial Narratives of the "Family in Crisis", 9 Meridians 102, 120(2009). 3 Saurabh Sinha, Matrimonial cruelty: Need for a Relook, 57 P.L. 58, 58 (2012). 4 Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 338-339 (2012).

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Family Law- III Semester husband, to obtain maintenance, to protect themselves against violence within matrimonial home or outside of it etc.5 During 1980s, there were cases of unnatural brides’ death on large scale in the society which were termed as “stove bursts” or “kitchen accidents” with no further investigation. Further, investigation on the behest of women’s parents and women organization led that these deaths were not accidents but intentional murder by their in-laws because of unlawful dowry demands or for similar reasons.6 Therefore, organizations across the nation pressurized the government to enact such legislation that could protect women from cruelty and harassment, which is meted out to them in their matrimonial homes. The objective behind this agitation was to enable the establishments of state to intercede and keep the homicides of young wives who were not able to meet the demands of dowry by their in-laws.7 With this object in mind, Indian Penal Code, 1860 was amended in 1983 by GOI through the Criminal Law (Second Amendment) Act, 1983 by inserting a new provision under IPC i.e. Section 498A of IPC. The purpose behind inserting this provision was clear by the Statement of Objects and Reasons of the amendment that stated “the increasing number of dowry deaths is 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 the Dowry Prohibition Act, 1961. Cases of the cruelty by the husband and relatives of the husband which culminate in the suicide by, or murder of, the helpless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is therefore proposed, to amend Indian Penal Code, Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with dowry deaths but also cases of cruelty to women by their in-laws.”8 S.498A of IPC deals with offences of cruelty meted out to women in their matrimonial homes. Under this section, if any willful conduct by husband or his relatives is of such nature as is likely to drive woman to commit suicide or to cause any grave mental or physical injury or danger to life, limb or health or harassment of the woman with a view to forcing her or any relative of her to take care of any unlawful demand for any property or important security or is because of

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Saurabh Sinha, Matrimonial cruelty: Need for a Relook, 57 P.L. 58, 58-59 (2012).

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Indira Jaisingh, Concern for the dead, Condemnation for the living, E.P.W., July 26 2014, at 34, 34. Ramanuj, Understanding Section 498A of Indian Penal Code, on Domestic Violence, ipleaders, (Sept. 17, 2017, 10:25PM), https://blog.ipleaders.in/understand-section-498a-domestic-violence. 8 The Criminal Law (Second Amendment) Act, 1983, No.46, Acts of Parliament, 1992. 7

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Family Law- III Semester disappointment by her or any relative of her to take care of such demand is punished with three years of imprisonment and also liable to fine. This provision is non-bailable, non-compoundable and cognizable.9 For the purpose of this provision, the term ‘relative of husband’ includes a person related to husband by blood, marriage or adoption.10 However, in last two decades, a misconception regarding this provision has become visible in the patriarchal society where people have started thinking that this provision is misused on large scale by women to harass their in-laws. Even cognizance of such alleged misuse has been taken by judiciary from time to time. Several reports decried this provision on the basis of its alleged misuse. However these studies, reports and judgments didn’t provide any reliable data or empirical study to demonstrate such alleged misuse.11 The recent judgment in this series is Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr,

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and it seems to convey that

violence/cruelty inflicted upon women is nothing but figment of their imagination and further conveys that they are irrational beings. Without weighing the implications of their actions, they file false cases in the heat of the movement, to harass their in-laws.13 Supreme Court under this judgment issued certain guidelines to curb the alleged misuse of the provision which can make this important provision ineffective and it will cease to be a deterrent against wrongdoers. In the World Economic Forum’s Global Gender Gap Report 2016, India’s evaluating in the category “health and survival” is grim. It positions second from the base amongst 144 countries. This category deals with the issue of violence against women. The positioning makes India one of the worst countries for women in the world.14 This ranking renders statements by judiciary or by studies invalid regarding the misuse of section 498A of IPC and raises a question against actions of government to not to improve the condition of women in society. In this paper, author will put the reliable data showing no misuse of the provision and will show that this is just a misconception and will also point out loopholes in the directions given in the

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Indian Penal Code, 1860, No.45, Acts of Parliament, 1860. State of Punjab v. Gurmit Singh, (2014) 9 S.C.C. 632. 11 Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 1.3. 12 Rajesh Sharma &Ors v. State of UP & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of S.L.P. (Cr.l) No. 2013 of 2017. 13 Flavia Agnes, Supreme Court’s judgment Ignores Lived Reality of Married Women, E.P.W., Sept. 9 2017, at 16, 16. 14 Flavia Agnes, Supreme Court’s judgment Ignores Lived Reality of Married Women, E.P.W., Sept. 9 2017, at 16, 17. 10

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Family Law- III Semester recent judgment of SC, which can make this provision weak and ineffective and thus it can’t impart justice in true sense.

CHALLENGES METED OUT TO SEC.498A OF IPC SINCE ITS INSERTION IN PENAL CODE Crimes related to dowry have been common in the traditional Indian families for quite a while and terrible appearances of dowry and cruelty related crimes against women have been coming up on numerous occasions in their matrimonial homes. Matrimonial cruelty and domestic violence is a serious offence which is reliably expanding. 37% of women have encountered some sort of mental or emotional, physical or sexual cruelty in their marital homes, and 40% - 50% instances of cruelty and violence against them go unreported or unregistered because a woman does not want to shatter her family by registering case against her in-laws; she approaches to polices only after suffering protracted torture and harassment in her marital home, however underreporting can also be attributed to other reasons too. This report was given by National Family Survey of India.15 However, the s.498A of IPC has been encountering with several challenges since its insertion in penal code, based upon constitutionality and misuse of the provision etc. It was introduced to protect women from matrimonial cruelty.16 But in the case of Harvinder Kaur v. Harmander Singh,17 Delhi HC held that “introduction of Constitutional Law in the home is the most inappropriate. It is like introducing a bull in a china shop. ... In the privacy of the home and the married life neither Art 21 nor Art 14 have any place". This judgment completely decried the insertion of this provision on the basis of fundamental principles of the constitution. After three years of insertion of s.498A in the landmark judgment of Delhi HC in Inder Raj Malik v. Sunita Malik,18 the constitutionality of the provision was challenged on the following two grounds:

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Rajya Sabha Committee on Petitions, Petition Praying for Amendments in Section 498A of Indian Penal Code, 1860 (Rajya Sabha Committee on Petitions, 2011) para 3.1-3.2. 16 Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 352-354 (2012). 17 Harvinder Kaur v. Harmander Singh, A.I.R. 1984 Delhi 66. 18 Inder Raj Malik v. Sunita Malik, 1986 S.C.C. OnLine Del 39.

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Family Law- III Semester (a) That it gives arbitrary power to the courts as well as to police hereby offending art.14 of the constitution as the word ‘cruelty’ and ‘harassment’ were vague and based upon discretion. (b) It is against the principle of double jeopardy as now demand of dowry is punishable under s.498A of IPC and under s.4 of Dowry Prohibition Act, 1961 too. However, Court explicitly dismissed second ground and also said that there is no arbitrary power given to police as well as Court as word ‘cruelty’ as well as ‘harassment’ are well defined and their import are well known and the provision is not in conflict with art.14 of the constitution. After passing its constitutionality test, this provision has been encountering a new threat to its existence and it is regarding the misuse of the provision by ‘disgruntled wives’ to harass their husbands and in-laws as the provision is non-bailable, cognizable and non- compoundable.19 Delhi H.C. in Savitri Devi v. Ramesh Chand,20 accepted the misconception regarding misuse of the provision and said that “it feel constrained to comment upon the misuse of the provision 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 whereas sometimes even Courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and unskilled masters.” Further SC in Preeti Gupta v. State of Jharkhnd,21 held that “the s.498A of IPC is misused and the complaints are filed in the heat of the moment over trivial issues without proper deliberations.” However in the case of Chandrabhan v. State,22 Delhi H.C. issued some guidelines for making a procedure of how to arrest accused persons and made s.498A practically bailable because of various restrictions and qualifications prescribed by the HC. In the case of Tr Ramaiah v. State,23 Madras H.C. practically restricted arrest of the accused, contrary to the cognizable nature of provision as decision said that arrest can only be made after filing of the final report before the Magistrate and on the premise of non-bailable warrant issued by the him/her. 19

Arnesh Kumar v. State of Bihar, (2014) 8 S.C.C. 273. Savitri Devi v. Ramesh Chand, 2003 S.C.C. OnLine Del. 483. 21 Preeti Gupta v. State of Jharkhnd, (2010) 7 S.C.C. 667. 22 Chandrabhan v. State, (2008) Bail Application No. 1627/2008. 23 Tr Ramaiah v. State, (2008) MP No 1/2008 in Crl. O. P. No. 10896/2008. 20

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Family Law- III Semester Also various studies, commissions recommended some amendments in this provision to curb the alleged misuse. Law commission in its 237th report said that this provision should be made compoundable to curb its misuse and the Malimath Committee has pointed out flaws in the implementation of this provision and recommended some amendments in IPC to make offence bailable, compoundable.24 The opponents of this provision argue that this law violates men’s right to equality as it is not gender neutral and only women can file complaints under this provision, and showing husband and his relatives as vulnerable group instead of woman.25 However, 243rd report of law commission stated that many cases of matrimonial cruelty go unreported and extent of misuse that is alleged is not established by reliable data or studies and various other reports that allege such misuse do not rely upon any reliable data.26 Also, according to Amnesty International, Malimath Committee didn’t provide any data to show how frequently this provision is misused and suggested that committee’s observation was based upon rumor rather that empirical research.27 Moving to the bone of contention i.e. judgment of Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr.,28 in which SC accepted the alleged misuse of s.498A of IPC and issued certain guidelines to curb misuse of the provision which can render it ineffective. To establish the misuse, SC relied upon precedents and some reports that are mentioned in this paper too and data given by NCRB in 2005, 2009, 2012 and 2013. Court’s justification in issuing the guidelines is that a few cases were pronounced false by virtue of mistake of fact or law (NCRB-2005, 2009) and higher rate of arrest and filing of charge sheet and lower rate of conviction (NCRB-2012, 2013). The contention of the author is that Court didn’t go in depth of the matter and just reiterated what was said in the past. SC didn’t take pain to inquire into the reasons behind higher rate of arrest and charge sheet and lower rate of convictions in cases related to matrimonial

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Law Commission, Compounding of (IPC) offences (Law Com No 237, 2011) Para 6.4: Committee on Reforms of Criminal Justice System (Committee on Reforms of Criminal Justice System, 2003). 25 Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 353 (2012). 26 Law Commission, Section 498A of IPC (Law Com No 243, 2012) Para 1.3. 27 Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 358 (2012). 28 Rajesh Sharma &Ors. v. State of U.P. & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of S.L.P. (Crl.) No. 2013 of 2017.

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Family Law- III Semester cruelty. It also didn’t explore other remedies to curb, if any, misuse of this provision that are already exist under CrPC and IPC and just took away element of deterrence from this provision. However, through these judicial pronouncements and reports, we have begun to witness the transformation of an anti-cruelty statute for women to instrument of family destruction, tool for harassment of in-laws, a veritable “legal terrorism” that is held out by Indian judges as far worse that the original ailment it was designed to remedy. Also a particular kind of female subjectivity can be read in these judicial narratives, one that comes into direct conflict with the patriarchal legal culture that characterizes the Indian legal system. What emerges from these discourses is that educated and career-minded woman who fails to maintain the sanctity of the family and the institution of marriage by asserting her right to live a life free of violence must therefore be construed as undeserving of the law's protection. Reading these decisions as a kind of cultural narrative, we find evidence of the belief that the institution of marriage is under attack, and the familial order undermined, when women seek the intervention of the law to address violence within the home.29

RELIABLE DATA SHOWING NO MISUSE OF PROVISION There are some studies, reports which can explain the true status of women in Indian society and can make the observation of various judgments and studies invalid. International Center for Research on Women expressed in 2011 about India that one in every five male studied confessed to compelling their female counterparts into sex, and 65% of male studies said that they accept that on some occasions female ought to be physically harassed or thrashed. The National Family Health Survey–III (2005-2006) has demonstrated that over 54% of male and 51% of female said that it was alright for a male to beat his spouse. This study uncovered that 31% of women were physically harassed and 10% were subjected to “severe domestic violence” such as strike with a weapon or burning in their marital homes. Another twelve percent individuals who reported severe cruelty no less than one of the accompanying injuries like bruises, sprains, wounds, broken bones, dislocation and severe burns and 14% of

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Sharmila Lodhia, Legal Frankensteins and Monstrous Women: Judicial Narratives of the "Family in Crisis", 9 Meridians 102, 117-120-121(2009).

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Family Law- III Semester those who reported encountered psychological mistreatment. And curiously these instances were unreported.30 So what judiciary is claiming is based upon underreported data. National Crime Records Bureau (2005) reported that 160 women a day experience violence and that more than nineteen women are killed for dowry on a daily basis. This report coined a term "crime clock," i.e. one case of cruelty by a husband or relatives, is recorded every nine minutes. Study of International Center for Research on Women (1999) found that nearly 50% of women in India suffer at least one incident of physical or psychological violence in their lifetimes.31 Likewise National Crime Bureau data (2008) uncovered that the instances of deaths related to dowry had increased 8,093 in 2007 from 6,975 in 1998. Incidents reported under s.498A had also increased to 75,930 from 41,375 (almost coupled). This pattern uncovers just that the incidents of reported or registered cases increased, yet does not enlighten us regarding the misuse of the provision.32 In 2011, 99,135 incidents/cases are registered under s.498A and amid the two earlier years, numbers of cases were 94,041 and 89,546. Therefore there is about 5% increment in the registered cases each year. As mentioned above, many cases are not reported; therefore, the insights identifying with revealed episodes may not in this manner furnish a reliable data of genuine rate or instances of crimes in the States.33 However by relying on NCRB data of 2005, 2009, 2012 and 2013, the Supreme Court in Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr.,34 formed an opinion that the low conviction rate and the acquittals in the cases means they are false. The Supreme Court overlooked the fact that the conviction rate in 498A cases could be low because of out-of-Court settlements, the complainant often not taking interest in the matter, ineffective investigation, and so on. If low conviction rates indicate the truthfulness and genuineness of a genre of cases, then 63.5% of cases of murder are false and fake (NCRB 2013: the conviction rate in murder is 36.5%). Even otherwise, the highest rate of conviction in any genre of cases in India is 37.8%, and that is in

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Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, E.P.W. June 6, 2015, at 12, 13. Sharmila Lodhia, Legal Frankensteins and Monstrous Women: Judicial Narratives of the "Family in Crisis", 9 Meridians 102, 109(2009). 32 Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 358 (2012). 33 Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 3.2. 34 Rajesh Sharma &Ors. v. State of Uttar Pradesh & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of S.L.P. (Crl.) No. 2013 of 2017. 31

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Family Law- III Semester counterfeiting.35It can’t be stated that low conviction rate in any penal provision means misuse of that provision. Also various studies suggested that data of crimes against women in India provided by NCRB is not properly reported as over 40% (2005-06) and 30% (2015-16) married women in India have encountered various types of domestic violence, and going by those numbers, not even 1% of victims actually lodge complaints under s.498A. In such circumstances, the SC and other studies have repeatedly and very narrowly used the NCRB statistics to draw a misconception of misuse of s.498A, which was enacted to address the violence faced by women inside their marital homes.36 Now coming to reporting of the wrongdoings, above mentioned judgments and studies appear to give the feeling that heading off to a police headquarters and enrolling a grievance is simple, that the police instantly react and start criminal investigation against the accused. However when a poor woman with draining injuries or a fracture approaches the police, she is made a request to backpedal and "adjust" for after all it is just her better half who is beating her. It is named as “ordinary wear and tear” of marriage. According to our judges as well, at this stage, women should be “counseled” and sent back to the same savage marriages without any protection.37As men’s rights activists have repeatedly claimed that police indiscriminately arrest the real culprits and innocents named in complaint as the section is non-bailable. However, more than 70% of the persons named in the complaint, had paid anticipatory bail and only about 24% of the named persons been arrested under complaints lodged under s.498A38. Even SC has given its nod to this mechanism.39 SC after relying upon NCRB statistics in recent judgment has failed to make this crucial distinction between those who get anticipatory bail and those who don’t and put them in the same category of ‘arrested’ because persons after getting anticipatory bail do not get arrested but only appear in the police station, which can’t be considered as an arrest.40

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Jyotika Kalra, Misuse of dowry laws and failure of the system, The Hindu, Aug.6, 2017, at . Bindu N. Doddahatti, The Dangerous, False myth that Women routinely misuse Domestic Cruelty Laws, The Wire, (Sept.11, 2017, 2:30AM), https://thewire.in/166766/section-498a-domestic-cruelty-laws. : Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, E.P.W. June 6, 2015, at 12, 13. 37 Flavia Agnes, Supreme Court’s judgment Ignores Lived Reality of Married Women, E.P.W., Sept. 9 2017, at 16, 17. 38 Bindu N. Doddahatti, The Dangerous, False myth that Women routinely misuse Domestic Cruelty Laws, The Wire, (Sept.11, 2017, 2:30AM), https://thewire.in/166766/section-498a-domestic-cruelty-laws. 39 Ravindra Saxena v. State of Rajasthan, (2010) 1 S.C.C. 684. 40 Bindu N. Doddahatti, The Dangerous, False myth that Women routinely misuse Domestic Cruelty Laws, The Wire, (Sept.11, 2017, 2:30AM), https://thewire.in/166766/section-498a-domestic-cruelty-laws. 36

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Family Law- III Semester For low convictions too some reasons can be attributed. It is generally and widely perceived that some police officers and judicial officers intentionally pick not to enforce cruelty and domestic violence provisions and laws. It has been evidenced that the police often neglect to appropriately investigate and report cases related to cruelty and dowry. This disinclination to investigate and report cases can be credited to the far-reaching view "that domestic violence is a family issue and ought to be dealt privately”. Police failures to legitimately explore cruelty cases and execute judicial orders have forestalled victims from receiving equity. Likewise rampant corruption is prevalent in local police administration. The police are frequently hesitant to squeeze charges and investigate against accused those have strong political backing and economic standing and they are often able to influence the police to support them.41 Another reason for low conviction rate is out-of-Court settlement42. Even this provision is non- compoundable, Courts can allow an out-of-Court settlement in the interest of justice by using s.438 of CrPC and SC itself gave its node to this type of settlement43. Because if a woman wants to separate or divorce on the ground of cruelty, she would have to follow two different cases in civil Court under DV Act, 2005 and other in a criminal Court under S.498A of IPC and at this pivotal time, woman is at a phase of remaking her life and finding a cover, a job, and child custody. Under the civil law she would in any event be entitled for maintenance, which would be her prominent priority. So if she somehow happens to pick between the two proceedings, much of the time, she would pick the civil case where she would be entitled to maintenance, guardianship, injunction against harassment, and finally a separation which would set her free from her violent marriage and thus she drop the criminal proceeding.44 S.498A of IPC deals with physical as well as mental cruelty. If case is about to physical cruelty then facts speak for themselves but if the case is of mental cruelty, then it becomes very difficult to prove the mental cruelty as it must be proved “beyond reasonable doubt”. Given that by and large, the acts of brutality occur without witnesses, it is just the words of victim against the accused persons,45 as evidenced in Arvind v. State of Bihar,46 in this case, woman who was singed to death by her better half and his relatives, made a statement to her mother that accused 41

Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 376 (2012). 42 Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 3.3. 43 B.S. Joshi v. State of Haryana, (2003) 4 S.C.C. 675. : Nikhil Merchant v. C.B.I. (2008) 9 S.C.C. 677. 44 Madhu Kishwar, Laws against Domestic Violence: Underused or Abused?, 15 N.W.S.A. 111, 117 (2003). 45 Why Women need 498A, E.P.W. July 19, 2014, at 7, 7. 46 Arvind v. State of Bihar, (2001) 6 S.C.C. 407.

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Family Law- III Semester poured kerosene and tossed a matchstick on her. The SC said that no evidence was there to demonstrate that the woman endured any savagery prior to her demise and presumed that s.498A can’t be pulled in. There is another aspect of low convictions under s.498A of IPC. After examining the detailed cases under s.304B, it becomes apparent that barely any victim, who was killed, had earlier recorded her grumbling under s.498A that deals with cruelty to victim before her death. Also, regardless the demonstration that many cases documented under s.498A are not genuine, under s. 304B of IPC, conviction rate is generally high, about 35% (LCI, 2012) but conviction rate under s.498A is low 15.6% (NCRB 2013). Unquestionably for every victim who is killed, there would be great many others who are subjected to cruelty/harassment, as showed by various surveys and studies.47 It implies Courts rush to convict for death. It was never suggested by any court that dead woman lied, or abused the law; because the dead body of the victim is the true verification of the cruelty that she encountered when alive. But when the matters come under s.498A, the main proposal is that “disgruntled wives” are abusing the law to put “bed-ridden grandfathers and grandmothers” correctional facility.48 By above mentioned studies and reliable data, it can be concluded that judiciary didn’t take cognizance of another aspect of s.498A where many cases go unreported, poor investigation, outof-Court settlement happens and are present and create a situation of higher rate of arrests and lower rate of conviction under the said provision.

A WRONG INTERPRETATION BY JUDICIARY AND OTHER INSTITUTIONS S.498A of IPC was introduced to restrain the acts of matrimonial cruelty against women. However it seems that various institutions, that have to enforce this provision in the interest of society, have wrongly interpreted it. It is apparent from the reading of s. 498A that its clause (a) is about cruelty (mental or physical) and clause (b) is related to harassment to fulfill dowry demand.

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Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, E.P.W. June 6, 2015, at 12, 13. Indira Jaisingh, Concern for the dead, Condemnation for the living, E.P.W., July 26 2014, at 34, 36.

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Family Law- III Semester However there are many instances when judiciary didn’t take cognizance of mental cruelty if victim is not physically abused or there is no demand of dowry49. To attract the application of s.498A, it is not obligatory to show that the woman is physically harassed, even mishandling her verbally; not speaking to her legitimately or denying her matrimonial rights are sufficient to attract clause (a) or mental cruelty50. Mental cruelty may also be portrayed as any ridiculous lead, for example, disparaging, mortifying and offending comments and treatment, utilizing dialect as disdainful as to make a genuine gouge the sense of pride of any stately individual.51 SC in Mohd. Hoshan v. State of Andhra Pradesh,52 expressed that the effect of grievances, allegations or insults on a person amounting to cruelty relies upon different components such as the affectability of the individual casualty concerned, the social foundation, education, the environment and so on. Further, mental cruelty can’t be gauged from the perspective of reasonable person and varies from individual to individual contingent upon the power of affectability and the degree of courage or endurance to withstand such savagery. In Vinita Saxena v. Pankaj Pandit,53 the Supreme Court observed that to prove mental cruelty it is not necessary that alleged incidents are of continuous but what should be taken into cognizance is their intensity gravity to affect victim and their deleterious effect. However in numerous judgments, the Courts have not given importance to mental cruelty, rather just focused on physical cruelty. In fact, when evidences do not demonstrate physically harassment or cruelty, then the Courts do not take cognizance of the case. However What the Courts do, is call the woman “hyper sensitive”54 or “of low tolerance level and having an unstable mind”55. SC in Savitri Devi v. Ramesh Chand,56 didn’t perceived mental cruelty and held that exclusive accusations against the respondents are that they did not like the garments brought by the bride as standard presents for in-laws and one of the sister-in-law commented that had the marriage of the man occurred with her sister, more dowry would have been gotten. Here the taunts for gifts and remarks of marriage and dowry could attract mental cruelty by definitions given by SC itself but in this case SC didn’t consider it. 49

Bomma Ilaiah v. The State of A.P., 2003 S.C.C. OnLine A.P. 38. Ramesh Dalaji Godad v. State of Gujarat, 2003 S.C.C. OnLine Guj. 15. 51 Saurabh Sinha, Matrimonial cruelty: Need for a Relook, 57 P.L. 58, 60 (2012). 52 Mohd. Hoshan v. State of Andhra Pradesh, (2002) 7 S.C.C. 414. 53 Vinita Saxena v. Pankaj Pandit, (2006) 3 S.C.C. 778 54 State of Maharshtra v. Jaiprakash Krishna Mangaonkar & Ors., 2003 (2) A.L.D. Cri. 64. 55 Annapurnabai @Bhori v. State of M.P., I (2000) D.M.C. 699. 56 Savitri Devi v. Ramesh Chand, 2003 S.C.C. OnLine Del. 483. 50

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Family Law- III Semester Another misinterpretation regarding this provision is that to attract s.498A there should be dowry demand in the complaint because of lack of awareness among women and other institutions. A reason for declaring cruelty related cases false on basis of Mistake of facts is that when woman approach police station to register her complaint they suggest her to include dowry demand in complaint to make her case strong and if no dowry demand will be included then judgment will not be in your favor. Women who approach the police authorities with broken bones and draining wounds are criticized with remarks such as, “If a husband does not beat his wife, who else will? There is nothing special about a husband beating his wife. If you are harassed for dowry, then it is serious, and we shall arrest him”. Even Advocates suggest the same.57 As evidenced in Waghmare v. State of Maharashtra,58 that a female endured serious physical and mental abuse on account of her husband and in-laws, and she in the end committed suicide. They routinely beat her and pestered her for a bike and following the two months of marriage set her ablaze. But HC held that such episodes of violence were not adequate to lead her to end her life and demand for bike was not a demand of dowry. Even in such a horrendous case, s.498A was not pulled in and no relief was provided to a victim because the Court was unwilling to demonstrate the acts of violence as cruelty or harassment. From above given findings, it is obvious that the judges in number of cases made a very restricted interpretation of the provision, viewing it to be only cruelty in connection to physical harassment or dowry demands and not viewing mental cruelty as one of the fundamentals of the provision.59

APPROACH OF SUPREME COURT IN RAJESH SHARMA & ORS. V. STATE OF UTTAR PRADESH AND LOOPHOLES IN DIRECTIONS This case of Rajesh Sharma & Ors. v. State of Uttar Pradesh,60 came before SC as a criminal appeal under art.134 of the constitution and then SC issued some directions to restrain the misuse of the provision. While exercising appellate jurisdiction, the Court is required to examine 57

Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 355 (2012). 58 Waghmare v. State of Maharashtra, 1989 S.C.C. OnLine Bom. 355. 59 Richa Mishra, Section 498A IPC, Legal Service India, (Sept.13, 2017, 4:50 PM), http://www.legalserviceindia.com/article/l336-Section-498-IPC.html. 60 Rajesh Sharma &Ors. v. State of Uttar Pradesh & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of S.L.P. (Crl.) No. 2013 of 2017.

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Family Law- III Semester whether the Court below committed an error that resulted in misuse of the process of law61. However in this case the Court has not indicated any specific error committed by a Court below but travels beyond to take cognizance of misuse and issued directions by using art.142 of the constitution.62 However there is contention regarding the power of SC while acting under art.142 of the constitution. Whenever SC discovered that the rights of citizens required to be enforced, yet there was a vacuum by virtue of the nonattendance of any law to ensure and to uphold any such rights, this Court has constantly ventured in and developed new instruments to secure and authorize such rights, to do complete justice, however the power under Article 142 is not intended to be worked out, when such exercise will straightforwardly in conflict with the express provisions of a statute.63 But while issuing directions in present case, (a) directions were in conflict with express provision of penal code as introduction of family welfare committee and insertion of bail provision are not there in s.498A (b) there was no vacuum on account of law to protect innocents because there are some provisions given under CrPC and IPC to prevent alleged misuse.

Likewise while issuing directions, SC performed the role of legislature as these directions equal to amendment to the s.498A of IPC and will take away its deterrent effect against wrongdoers. However in case of Dayaram v. Sudhir Batham,64 it was observed that Judges ought not outlandishly or unjustifiably attempt to perform legislative or executive functions in the name of judicial activism and they cannot cross their cutoff points and endeavor to assume the control over the functions which have a place with another organ of the State. However directions have been issued but there are some loopholes which can defeat the purpose behind issuing directions and insertion of s.498A and would have negative impact upon victims. According to the directions, every complaint related to s.498A should be referred to family welfare committee (comprised members of civil society) in every district and the committee should give its report on the matter within one month to responsible authority, and till then there will be no arrest of any accused. The premises behind constituting such committee is that it can prevent misuse through interaction with parties but main contention regarding it is that when the 61

Som Mittal v. Government of Karnataka, (2008) 3 S.C.C. 753. Jyotika Kalra, Misuse of dowry laws and failure of the system, The Hindu, Aug.6, 2017, at . 63 Supreme Court Bar Assn. v. Union of India, (1998) 4 S.C.C. 409. 64 Dayaram v. Sudhir Batham, (2012) 1 S.C.C. 333. 62

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Family Law- III Semester hierarchy of Courts (with family Courts with attached counselors) themselves and investigation agencies could not identify the misuse of the law, would members of civil society be in a position to do so? Also the appointment of such a committee will complicate the process and open an additional window for corruption. It is not clear what would be evidentiary value of the reports of the committee will have. The direction to add a committee in the process doesn’t mention whether a case would be referred to the committee at the stage of receiving a complaint or after the lodging of an FIR or after the investigation, for the purpose of seeking a nod from the committee to arrest the accused.65 Also the gap of one month, for instance, between filing a complaint and the committee submitting its report is long enough for a major turnaround in a legitimate case of emotional assault because there is likewise a view exists in society that once the culpable relatives come to know about the complaint, there might be further torment of the victim and her life and liberty might be jeopardized66. Further, the constitution of committee is not clear it may be possible that those who join the welfare committees may bring in their own biases that may be inimical to any fair hearing of the cases. Also CrPC, 1973 clearly lays down the reasonable procedure of investigation and police must follow it. Therefore there was no compelling reason for the Court to substitute investigative power through constitution of extraneous committee which will have no accountability if the disputants do not arrive at the settlement.67

CONCLUSION Author would like to conclude by quoting Manu “Yatra naryastu pujyante ramante tatra Devata, yatrai taastu na pujyante sarvaastatrafalaah kriyaah”, which implies where women are regarded, heavenly nature blooms there, and where they are shamed, all activity regardless of how honorable stay unfruitful. Crimes against women cannot be completely eradicated by efforts through legislation and law enforcement agencies. There is necessity of social arousing and change in the demeanor of society, so that due regards and equivalent status can be given to women. It is a high time to remold our attitude. This arousing can be brought by educating the youth and making mindfulness among the masses by featuring the causes leading to such crimes

65

Jyotika Kalra, Misuse of dowry laws and failure of the system, The Hindu, Aug.6, 2017, at . Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 4.3. 67 R.K. Vij, Tacking s Narrow View, The Indian Express, Sept. 18, 2017, at 10. 66

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Family Law- III Semester and by scattering information about their calamitous impact on the womanhood and the general public on the loose. Mass media can assume a dynamic part here as in the present days it has achieved each side of the country.68 The legal history of s. 498A IPC demonstrate that it was sanctioned to address the particular need of shielding women from cruelty perpetrated inside the marital homes. Various reports on Section 304B and 498A of IPC demonstrate that cases of violence related to dowry have still not gone down. Section 498A IPC is as significant today as it was somewhere in the range of 30 years prior and there is no case for its weakening.69Violence by spouse and in-laws is perplexing behavior and the social association of Courts, the police and legal cultures methodically tend to depreciate domestic violence laws. There is need of innovative work to propel the current state of knowledge on the impacts of legal sanctions on domestic violence to correct the misconceptions that law is misused by women. The restricted or may be practically unimportant studies done by various institutions about the deterrent effects of legal sanctions for

cruelty and domestic violence stands in high contrast with the broad

endeavors of advocates of victims, activists and practitioners of criminal law in activating law and forming and shaping policy to stop domestic violence. The perception of the state and its institutions needs to transform from that of protecting the wrongdoers against potential abuse of the domestic violence laws to that of implementing their genuine purpose and to perceive that such savagery is a crime and protect women who have the mettle to register complaints against the accused.70 Also we have some methods to curb the alleged misuse. CrPC, 1973 prescribes investigation procedure by police. In Lalita Kumari v. Govt of U.P.,71 SC held that registration of FIR is obligatory as per s.154 of the CrPC, if the content of FIR uncovers commission of a cognizable offence and no preparatory inquiry is permissible in such circumstance. However if the content received does not uncover a cognizable offence but rather demonstrates the need for an inquiry, a preparatory inquiry may be directed only to ascertain whether cognizable offence is unveiled or not. So if police agencies think that information is false they can conduct preliminary inquiry. Even after registering FIR, under s.41 of CrPC, police officer can arrest person guilty of 68

Justice S.J. Mukhopadhaya, Protection of Women against Atrocities: Legal Remedies and Judicial Response, 5 L.W. (J.S.) 15, 28 (2013). 69 Rajya Sabha Committee on Petitions, Petition Praying for Amendments in Section 498A of Indian Penal Code, 1860 (Rajya Sabha Committee on Petitions, 2011). 70 Jayna Kothari, Criminal Law on Domestic Violence: Promises and Limits’, E.P.W. Nov.12, 2005, at 4843, 4846. 71 Lalita Kumari v. Govt of U.P., (2008) 14 S.C.C. 337.

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Family Law- III Semester cognizable offence if reasonable or credible information has been received, however if officer has any doubt regarding reasonability of the information then officer can countercheck the veracity of the complaint.72 Apart from these provisions, s.182 of IPC, 1860 i.e. “ False information, with intent to cause public servant to use his lawful power to the injury of another person”, s.211 of IPC, 1860 i.e. “False charge of offence made with intent to injure”, s.250 of CrPC, 1973 i.e. “Compensation for accusation without reasonable cause”, s.358 of CrPC, 1973 i.e. “Compensation to persons groundlessly arrested”, are capable to curb the alleged misuse of the provision by punishing the wrongdoer.

72

Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973.

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