SECTION 498A OF INDIAN PENAL CODE

THIS ARTICLE EXPLAINS ABOUT THE SECTION 498A OF INDIAN PENAL CODE

1. INTRODUCTION

Section 498A has been engrafted in the IPC in a situation where the national conscience was disturbed by the intensity and volume of instances of wife beating, bride burning and cruelty of different degrees and variations directed against women that necessitated a law to punish such acts. Whereas religion and custom prescribed marriage to be founded on love and the concept of sharing, local experience indicated, society particularly, that it had been transformed into a license to a bond in some strata of ill-treat. Law as an instrument of fostering social order is also required to be used as a channel for doing good and conversely for curbing evil. It was by the Criminal Law (Second Amendment) Act, 1983 (46 of 1983), which received the President's assent on 25 December 1983, that section 498A was inserted in the IPC. The statement of objects and reasons of the said amending Act referred to the increasing number of dowry deaths, which was a matter of serious concern. The extent of the evil was commented upon by the joint committee of both the Houses to examine the working of the Dowry Prohibition Act, 1961. It was found that cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the hapless woman concerned, constitute only a small fraction of cases involving such cruelty. An offence in the nature of abetment to commit suicide may also attract the provisions of section 306, IPC, which was already in the statue book. It was, therefore, proposed to suitably amend the IPC, CrPC, and the Indian Evidence Act, 1872 to effectively deal with not only the cases of dowry deaths, but also the cases of cruelty to a married woman by the relatives of her husband. It was with a view to achieving this object that, inter alia, section 498A was inserted in the IPC. The other amendments effected by Criminal Law (Second Amendment) Act, 1983 were to sections 174 and 176 of the CrPC and the insertion of section 198A of the CrPC and section 498A of the IPC thereof. As far as the Indian Evidence Act, 1872 is concerned, after section 113, section 113A was inserted raising a presumption against the husband that he or his relative had abetted the suicide by the married woman. The Legislature has tried to amend the law in order to curb the vice of husband or the married woman by their husband or the relatives of her husband which may culminate in suicide by or murder of the hapless woman concerned. It can be safely said that this amendment of the criminal law and the rule of procedure was necessitated to meet the social challenge to save the married woman from being ill-treated or forced to commit suicide by the husband or relatives of the husband generally in order to coerce her to fetch more dowry or on her refusal to do so kill herself keeping in view that the ill-treatment of married woman is usually confined within the four walls of her matrimonial home which in most of the cases are located far away from the home of her parents and there is no likelihood of availability of any evidence. The Legislature in its wisdom has rightly enacted section 113A of the Indian Evidence Act, 1872 raising a presumption against the husband or the relatives of the husband for the abetment of suicide by a married woman within a period of seven years of her marriage if she has been treated with cruelty by her husband or such a relation in order to coerce her to fetch more dowry or on her refusal to do so. Thus, it cannot be said by any stretch of imagination that section 498A of the IPC or section 113A of the Indian Evidence Act, 1872 has introduced invidious classification qua the treatment of a married woman by her husband or relatives of her husband vis--vis the other offenders. This chapter consists of only one section, viz, section 498A, IPC but the importance of this chapter and section can be judged by the fact that these are in rampant use in matrimonial cases. The basic purpose underlying this chapter is to prevent woman from cruelty at the hands of their husband and his relatives. However, it is seen that the provisions of this chapter are sometimes misused by the victim-wife to unnecessarily implicate the relatives of the husband, the tendency of which should be discouraged. This view finds support from the under mentioned authorities.

S. 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. (1)

Explanation.-For the purposes 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 is on account of failure by her or any person related to her to meet such demand.

2. SCOPE

Section 498A was grafted in the IPC specifically to deal firmly and effectively with all cases of cruelty towards and harassment of women. The section, however, is especially worded in order to encompass even the class of cruelty committed through the litigate process. The provisions contained in Section 498A of the IPC, encompasses both mental as well as the physical well-being of the wife. The definition of "cruelty" figuring in the explanation appended under section 498A, IPC is not vague as the perusal of clause (a) would show that the prosecution has to establish, first the willful conduct of the offender, secondly, that the nature of such conduct was likely to drive a woman to commit suicide or to cause grave injury or danger to life or limb (whether mental or physical). Thus, on proof of these facts to the satisfaction of the court under the circumstances of a particular case the husband or relatives of the husband shall be presumed to have treated the woman with cruelty. The willful conduct certainly implies the establishing of a motive to treat such a woman with cruelty. The gravity of such conduct is also reflected in the wording of clause (a) of the explanation that such conduct should be likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of a woman. Consequently, the definition under clause (a) cannot be said to be vague as it rules out minor differences between the wife and husband or the latter's relatives. In clause (b). the definition of cruelty pertains to harassment of a married woman with a view to coercing her or any person related to her to meet the unlawful demand of dowry or for any property or valuable security or on account of her failure of any person related to her to meet such a demand. Thus, on the given facts of a particular case the court has first to form an opinion that as a matter of fact such harassment has close nexus with coercing a married woman to meet the unlawful demand of her husband or relatives of the husband qua any property or valuable security. Thereafter, the presumption of treating her with cruelty will arise. Obviously, the Legislature has defined the term "cruelty" while keeping in view the object which was required to be achieved. Thus, the ordinary dictionary meaning of "cruelty" would not be applicable to hold that it is vague being interpreted in so many ways.

3. AMENDMENT

Section 498A is the only section in ChapterXXA and both were inserted in the IPC by the Criminal Law (Second Amendment) Act, 1983 (46 of 1983). The assent of the President was received on 25 December, 1983 and publication in the Gazette of India, (Extra) was made on 26 December, 1983.

4. STATEMENT OF OBJECTIVES AND REASONS

The statement of objects and reasons of the Criminal Law (Second Amendment) Act, 1983 (46 of 1983) opens with the following observations:

The increasing number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the joint committee of the House to examine the working of the Dowry Prohibition Act 1961. Cases of cruelty by the husband and relatives of the husband which culminate in suicide by or murder of the hapless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is therefore, proposed to amend the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by their in-laws.

After setting out the above, para 2 mentions the proposed changes. The Indian Penal Code, 1860 was proposed to be amended by making cruelty to a woman by her husband, or any relative of her husband, punishable with imprisonment for a term which may extend to three years and also with fine. Willful conduct of such a nature by husband or any relative of the husband as is likely to drive the woman to commit hysical or mental injury to her and harassing a woman by her suicide or cause grave physical husband or any relative of her husband with a view to coercing her or any of her relatives to meet any unlawful demand of property was to be made punishable as cruelty. That is why section 498A came to be inserted in the IPC. A perusal of the said provisions makes it clear that what is made penal is the conduct of the husband or the relative of the husband who subjects such a woman to cruelty. The word "cruelty" has been defined in the explanation to section 498A, IPC. Clause (a) thereof deals with 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 the woman. Clause (b) deals with 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. It is common knowledge that despite prohibition of the pernicious social evil of demand or payment of dowry under the Dowry Prohibition Act, 1961, number of dowry deaths was escalating. It had become a subject of grave concern to the enlightened section of the society. It therefore, received anxious consideration of the joint committee of both the houses of Parliament. As a result of constant harassment, humiliation etc. at the hands of the husband or his relatives, the married woman used to become helpless and being unable to bear with it, was driven to commit suicide. The existing law was found to be inadequate even though section 306, IPC, stood on the statute book and Dowry Prohibition Act, 1961 was enacted. It was in this background that section 498A was inserted in the Penal Code."

5. CONSTITUTIONAL VALIDITY

The provision of section 498A of the IPC is not unconstitutional and ultra vires. The classification of the husband and his relatives, of a married woman, as a separate class under section 498A, IPC, is not at all discriminatory and there is no violation of the guarantee enshrined under Article14 of the Constitution. There is a valid justification for classifying the husband and his relatives as a separate class for the purposes of section 498A, IPC. Normally, in the offences committed within the four walls of the matrimonial home, where others have no easy access, there is no discrimination or anything obnoxious to the doctrine of equality, so as to violate the guarantee enshrined in Article 14 of the Constitution."

6. OBJECT

The object of the provisions is prevention of the dowry menace.

SECTION 498A HAS PROSPECTIVE APPLICATION

According to Article20 (1) of the Constitution of India:

(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

The penal provision, therefore, can have no retrospective effect." A bare perusal of section 498A, IPC, leaves no doubt that the Legislature intended the operation of this provision to be prospective in nature and not retrospective because in the latter case, it would have specifically stated so. Thus, these penal provisions of section 498A are certainly prospective in nature and would not be attracted where the alleged act of cruelty towards the wife by the husband or the latter's relatives took place prior to the insertion of section 498A in the IPC. These acts may otherwise be punishable under the then existing provisions of the IPC, if according to the charge-sheet, the offence of section 498A, IPC, was committed between 11 March 1976 and 11 December 1983. Chapter XXA containing section 498A has been introduced in the IPC by the Amending Act 46 of 1983, which came into force on receipt of the assent of the President on20 December 1983. It is, therefore, clear that section 498A, IPC, was not in the IPC, at the time when the offence is said to have been committed."

7. SECTION 498A AND SECTION 304B-DISTINCTION

Section 304B and section 498A, IPC are not mutually exclusive. These provisions deal with two distinct offences. It is true that "cruelty" is a common essential to both sections and has to be proved. The explanation to section 498A, IPC gives the meaning of "cruelty". In section 304B, IPC there is no such explanation about the meaning of "cruelty" but having regard to the common background to these offences the meaning of "cruelty" or "harassment" will be the same as given in the explanation to section 498A under which "cruelty" by itself amounts to an offence and is punishable under section 304B. It is "dowry death" that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in section 498A and the husband or his relatives would be liable for subjecting the woman to "cruelty" any time after the marriage. Section 498A to some extent overlaps with section 304B but it cannot be said that sufficient provision has already been incorporated in the IPC in the shape of section 498A so as to deprive the court from recording the conviction under section 304B read with section 116, IPC." The ingredients of section 304B are totally different than that of section 498A, IPC. The scope of section 498A is wider as compared to section 304B, IPC."

8. SECTION 498A AND DEMAND OF DOWRY

Section 498A has nothing to do with demand of dowry.

9. SECTION 498A AND SECTION 306-DISTINCTION

The basic difference that lies between the two sections is that of "intention" under section 498A, IPC, where cruelty committed by the husband or his relations compels the woman to commit suicide, while under section 306, IPC, suicide is abetted and intended.

10. CONCLUSION

Violence against women at home is not only a violation of womens human rights but also a crime under Indian law, which was created to protect the rights of all its citizens. India has accepted several international conventions that recognise womens unequal status and include special provisions for women to remedy this disparity, including the Convention for the Elimination of All Forms of Discrimination Against Women (CEDAW). Domestic violence is prohibited in all contexts, including marriage and the family, by the Dowry Prohibition Act (DPA) and the Protection of Women from Domestic Violence Act (PWDA), Sections 498A and 304B of the IPC.

But this Section 498As exclusive remedy for females has become a contentious topic of discussion lately. Without legislative action, this impasse will grow into a terrifying social menace. For the sake of the publics faith in the judicial system, this provision should be updated immediately. Unfortunately, not all women who could benefit from this information or services will be aware of them, and even fewer will actually seek help for domestic violence. Unscrupulous women will utilise this rule as another tool in their arsenal. Everyone who relies on a man will suffer if he is expelled from his own home due to charges of domestic violence or cruelty, whether or not those allegations are accurate. The entire family should not be punished even if the accused man is abusive. It is a complex and significant concern that an innocent man and his relatives are often being subjected to unjust legal persecution through this provision.

Is Section 498A subject to the presumption of innocence?

The accused must have their guilt established beyond a reasonable doubt under Indias accusatorial system of criminal law. If the accused is to be found guilty, the prosecution must dispel all reasonable doubt. Everyone charged with a criminal crime has the right to be assumed innocent unless proven guilty according to law in a public trial at which he has had all the protections essential for his defence, reads Article 11.1 of the Universal Declaration of Human Rights, 1948.

Article 20 of our Constitution provides for a presumption of innocence for a suspect; nevertheless, the Constitution does not affirm or forbid this, leaving it to Parliament to disregard this provision if it is deemed necessary or advantageous to do so. While the husband does not enjoy the presumption of innocence when facing charges under IPC Section 498A, he does have a higher burden of proof under Section 304B, which is governed by Section 113B under the Indian Evidence Act.

11. CITATION

1. R.A.Nelson, Indian Penal Code 4115, Lexis Nexis, 13th Edition