Over the last decade, misuse of Section 498A under Indian Penal Code has become common knowledge. Men Rights Activists as well as Indian J...
Over the last decade, misuse of Section 498A under
Indian Penal Code has become common knowledge. Men Rights Activists as well as
Indian Judiciary has taken explicit note of the on-going practise of filing
false cases of cruelty against the husband and his relatives, particularly
parents, brothers and sisters. Section 498A is a provision of criminal law and
therefore, the impact of a false complaint is very serious – the husband can be
imprisoned, along with his elderly parents, he has to face social scrutiny, and
in many cases, men also report losing jobs and becoming unemployed. The
expenditure on lawyers and everyday harassment is not even accounted for. Thus,
given the high stakes, disgruntled wives often lodge false complaints against
the husband and in-laws. This has become a mode of exacting revenge, rather
than ensuring justice and safety of the woman.
Although no relief has come for men from legislature,
Indian judiciary has significantly stepped up to the issue and made various
changes in application of the law so that misuse can be prevented as far as
possible. Here, it is important to understand that majority of cases filed
under Section 498A are genuine and Indian society still has a long way to go in
terms of ensuring women safety, even inside her own home. The rampant practise
of Dowry in our society also leads to a necessity to have a law as provided
under Section 498A. Thus, the legislature has still not amended the law to
reflect prevention of misuse.
Section 498A provides that a wife facing mental or
physical cruelty at hands of her husband or his relatives can lodge an FIR
against him. This also includes harassment due to dowry demands. FIR can be
lodged by any person related to the wife, or by a civil servant as well. The
FIR can be lodged within three years of the occurrence (the limitation period
of three years can be condoned by the court in cases where it deems fit).
“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 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.
Following various judgments, the procedure under
section 498A has been relaxed. Prevention of misuse of sec-498A is achieved
through following procedural changes:
1)
Immediate arrest of the named
offenders (husband, or his relatives) is not mandatory. The Police Authorities
receiving a complaint alleging cruelty are not required to register an FIR
immediately. They can conduct a preliminary enquiry to establish the true
facts.
2)
In most cases, the complaint is forwarded to the local Women Cell, where
the couple and their family undergo mandatory counselling sessions to resolve
their matrimonial issues. The purpose of the counselling sessions is to save
the marriage through peaceful negotiation. Both the parties are given equal
time and space to voice their personal issues.
3)
After the counselling sessions, which may continue for six months or
more, the parties are asked to reach a settlement. In case no settlement can be
reached, the wife who originally filed a complaint is asked to decide whether
she wants to register an FIR under section 498A, or initiate divorce
proceedings in the civil court.
4)
After registration of an FIR, the court will take cognizance of the same
on the basis of factual report submitted by the Police. Thus, the grant of bail
will depend on the investigation report so filed, and not merely on the FIR
lodged by the wife.
5)
Through various judgments, the courts have clarified that Section 498A
is meant to work as a “Shield” for the aggrieved wife, and not as a “Weapon” to
attack her husband and in-laws. Therefore, if the allegations made by wife are
proved false, the court can order payment of compensation as well as damages to
the husband and his family.
6)
In case the charge under section 498A is proved false, the husband can
use the fact to establish a claim of cruelty under section 13 of Hindu Marriage
Act (and corresponding Acts) to initiate divorce proceedings in the civil
court. A major benefit here would be that the husband may receive significant
relaxation in payment of alimony and maintenance, since his wife is the
defaulter.
7)
The Police officers undertaking investigation must follow the procedure
under section 41(1)(b)(ii) CrPC and follow its mandate
completely:
“Section
41: When Police May Arrest Without Warrant:
41(1) (b) against whom a reasonable
complaint has been made, or credible information has been received, or a
reasonable suspicion exists that he has committed a cognizable offence
punishable with imprisonment for a term which may be less than seven years or
which may extend to seven years whether with or without fine, if the following
conditions are satisfied, namely:--
(relevant)
(ii) the police officer is
satisfied that such arrest is necessary--
(a) to prevent such
person from committing any further offence; or
(b) for proper
investigation of the offence; or
(c) to prevent such person
from causing the evidence of the offence to disappear or tampering with
such evidence in any manner; or
(d) to prevent such
person from making any inducement, threat or promise to any person acquainted
with the facts of the case so as to dissuade him from disclosing such facts to
the Court or to the police officer; or
(e) as unless such person is
arrested, his presence in the Court whenever required cannot be ensured,
and the police officer shall
record while making such arrest, his reasons in writing:
2[Provided that a police
officer shall, in all cases where the arrest of a person is not required under
the provisions of this sub-section, record the reasons in writing for not
making the arrest.]
8)
In case the Police Officer doesn’t comply with the instructions under
section 41(1)(b)(ii) CrPC, departmental inquiry can be initiated
against him/her.
Apart from above stated changes, the family members of
the husband can request appearance through video conferencing also. Nowadays,
Family welfare bodies also help in counselling of the couple and their
families. They actively assist the police force to prevent misuse of the provision.
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