By Aditya Tripathi
Section-498A of the Indian Penal Code, 1860 (IPC) was inserted by way of an amendment in 1983. It was enacted with the aim of providing protection to married women against cruelty by their husband or in-laws, which often may lead to cases of dowry deaths. However, with the changing scenario it has been observed that the power given under Section-498A of IPC to married women is being used to harass their husbands or any of their family members. Thus, there is a need for providing safety to the innocent men in the society from the frivolous filing of cases under Section-498A. As of now, there is no law to provide shield and remedy to men from such exploitation.
A BRIEF OVERVIEW ON ABUSE OF SECTION 498A
In India, women require special protection to their rights as guaranteed under Part-III of the Indian Constitution. But at the same time, these rights cannot be exercised unlawfully against their husbands, minor children, grandparents etc. As per research conducted by various human rights activists groups and institutions, cases registered under Section-498A have the lowest conviction rate. Moreover, the records of National Crime Records Bureau (NCRB) showed that there are 3.3 lakhs of cases registered as crime against women’s in 2016. However, cases recorded under Section-498A witnessed the lowest conviction rate of merely 12.2% among cases related to crime against women which includes acquittals of 39,248 cases and conviction of only 5,433 cases .
CONSTITUTIONAL VALIDITY OF SECTION 498A
In the case of Sushil Kumar Sharma v. UOI the issue raised was to declare Section-498A as unconstitutional. The petitioner contended that there is requirement of strict action against those women who are involved in filing frivolous cases against their husbands.
The Supreme Court (SC) gave its decision by declaring Section-498A as valid and not ultra-virus to the Constitution. SC concluded that the object of Section-498A is to curb the menace of dowry deaths and it cannot be struck down. The Supreme Court observed its functions and worked under the prescribed parameters and held that it is upon legislature to legislate, until the mechanism is devised to control the frivolous filing of cases the SC cannot do anything.
LAW COMMISSIONS REPORT ON SECTION 498A
The 243rd Law Commission report highlighted the reason for amendment of Section-498A. The amendment made was to curb the iniquity of dowry and cruelty against women and suggested that in no way it could be possible to re-evaluate the misuse of Section-498A as the section basically aims to protect the rights of the women.
The Law Commission pointed out that the police officials must exercise their powers cautiously in case of “cognizable cases” i.e. the power must be exercised sparingly under the context of Sections 41 and 41A of the Criminal Procedure Code, 1973.
It is evident from the law commission report that instead of overthrowing Section-498A it rather emphasizes to concentrate on solution, which is given under Sections-41 and 41A of CrPC.
ROLE OF JUDICIARY IN CONTROLLING THE ABUSE OF SECTION 498A
Recently, the Supreme Court by its various decisions has condemned the abuse of Section-498A of IPC. In case of Saritha vs. Ramachandran, the SC held that Section-498A is exploited by some married women to harass their innocent husband and at the same time it emphasized the need to make the offence as a bailable and non-cognizable one.
In the case of Kanaraj vs. State of Punjab, it was observed that there is a strict need to protect the relatives of the husband who are deliberately held to be involved in such cases having no fault on their part. They cannot be held responsible for their mere acts of concern; rather their acts have to be proved beyond reasonable doubts in order to hold them guilty.
Similarly, in the case of State vs. Srikanth, it was observed by the Karnataka High court that such situations need to be curbed where the whole family is roped in into the matter including brothers and sisters-in-law. The Court said that in case unless there is some specific material against these persons, only then the police has the right to include them in that particular case as accused.
In case of Rajesh Sharma & Others vs. State of UP & Another, the SC has issued various directions to control the misuse of Section-498A. These directions are as follows: –
1) Their needs to be Family Welfare Committees at the district level. The complaints under Section 498A, which are to be received by the magistrate or the police, have to be reviewed by the committee established. The committee is entitled to prepare a report within a month. The process for arrest is to be initiated only after the committee has submitted the report.
2) Only the designated officer of the area shall be having the power to investigate the offence related to Section-498A.
3) In case a person is residing in a foreign country or an out-stationed city then forfeiture of passports or giving red corner notice should not be practiced regularly.
4) The District Judge or the Senior Judicial Officer designated by the District Judge shall have the power to club all the cases related to matrimonial dispute between the parties so as to reduce the wastage of time of the court.
5) The court has allowed video conferencing for family members whose presence cannot be obtained because of their presence in other countries etc. The trial court in such cases of outstation may grant exemption from such personal appearance.
In the recent case of Social Action Forum for Manav Adhikar and Another: the directions issued in the Rajesh Sharma case were re-analyzed. It was observed that the constitution of Family Welfare Committee is not covered under the provisions of IPC and held that creation of third agency and powers conferred on it were impermissible.
The Court further issued directions to the investigating officer having the charge of investigation under Section-498A that he must comply with the guidelines issued by the court in various landmark cases such as D.K.Basu v. State of West Bengal, Joginder Kumar v. State of U.P, and Arnesh Kumar v. State of Bihar and another.
It was directed by the court to proceed with the procedure as prescribed under Sections-205 and 317 of CrPC in case of video conferencing of the family members depending upon at which stage the exemption is sought. The court further notified that possession of dowry items itself cannot be considered as a ground for rejection of bail.
Thus, the Supreme Court has re-considered its directions, which were issued in Rajesh Sharma case and has retained only those directions, which complied with the provisions of IPC.
WAYS TO CONTROL THE ABUSE OF SECTION 498A
There are different ways suggested to control the misuse of the impugned provision which includes:-
1) Need for establishment of family counseling centers across the country in order to address the needs of the aggrieved family members.
2) There is a need for speedy trial in order to provide justice to the innocent victims of false charges. This will also help in reducing the burden on the Judiciary.
3) One of the main reasons for misuse of Section-498A is because of its non-bailable nature. The section needs to be recognized as a bailable offence in order to stop its misuse.
4) When the FIR is already being filed once, it becomes impossible to withdraw the case especially in case of matrimonial disputes where the criminal proceedings may create hindrance in obtaining divorce by mutual consent.
5) In order to create deterrence and to discourage misuse of this provision there must be imposition of some strict penal measures.
6) The wide scope of mental cruelty leaves a ground for misuse of Section-498A by the women. Thus, there’s a need for defining the scope of cruelty by the legislature under this provision.
It is evident from the recent judicial trend and various commission reports that Section-498A of the IPC has become a menace in our modern day society. From the above cited judicial decisions it has been concluded that Section-498A continues to remain in our statute books in order to provide protection to the women but at the same time, it needs to be highlighted it must be used judiciously and there is a need to curb the misuse of this provision by some married women.
This provision is basically used as weapon to harass husbands and in-laws. It’s true that the provision provides protection to women but looking into its reality, it is creating an unhealthy impact on the society by its misuse and requires legislative concern to overcome the loopholes provided in Section-498A. Furthermore, considering that the problem associated with the misuse of Section-498A still persists in the future, soon it will become a bane for the society.
[The author is a fourth year B.A. L.L.B. (Hons.) student at DSNLU, Visakhapatnam.]
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