Section 498A dilemma: India's bid for modern justice should not gloss over concerns for women's safety in marriages - Hindustan Times
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Section 498A dilemma: India's bid for modern justice should not gloss over concerns for women's safety in marriages

May 09, 2024 01:39 AM IST

India's push for modern criminal laws faces a hurdle with retention of Section 498A, raising debates on balancing women's safety with safeguards against misuse

The three new criminal laws are expected to turn a new leaf for criminal justice in the country. The Bhartiya Nyaya Sanhita, 2023 (BNS), the Bharatiya Nagarik Suraksha Sanhita, 2023 and the Bharatiya Sakshya Act, 2023 will replace the three existing criminal laws, the Indian Penal Code, 1860 (IPC), the Code of Criminal Procedure, 1973 (Cr.P.C.) and the Indian Evidence Act, 1872, respectively, with effect from July 1. When the three criminal laws were introduced in the Parliament, the ruling party highlighted that these British-era laws would be amended per today’s context and requirements.

Section 498A in the IPC pertains to cruelty by a husband or his relatives against a woman, defining “cruelty” as any wilful conduct that “is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health”. (Getty Images/iStockphoto/ Representational image) PREMIUM
Section 498A in the IPC pertains to cruelty by a husband or his relatives against a woman, defining “cruelty” as any wilful conduct that “is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health”. (Getty Images/iStockphoto/ Representational image)

However, the question of one section of the IPC looms due to its far-reaching effect on the rights of women and the institution of marriage.

In 2023, there were nearly 22.8 lakh crimes reported against women, Of these, about 7 lakh, or 30 per cent, were reported under Section 498A of the IPC, according to the data recorded by the ministry of statistics and programme implementation (MoSPI) in its report, “Women and Men in India 2022.” The National Crime Record Bureau (NCRB) in its latest “Crimes in India” report also highlighted a surge of around 4% in crime against women from 3,71,503 cases in 2020 to 4,45,256 cases in 2022.

Section 498A in the IPC pertains to cruelty by a husband or his relatives against a woman, defining “cruelty” as any wilful conduct that “is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health”. This section has been introduced ad verbatim in Sections 85 and 86 of the BNS, without any change.

The complex issues of Section 498A

A sensitive legal provision like Section 498A was introduced vide Criminal Law (Second Amendment) Act, 1983 as there was an increasing number of dowry deaths and incidents of cruelty by husbands and their relatives, consequently resulting in suicide and death cases. The legislative intent behind the introduction of Section 498A was to prevent the undue harassment of women in their matrimonial houses and to provide a speedy and effective remedy to the aggrieved person. The IPC was proposed to be amended to make the cruelty to a woman by her husband or his relative an offence punishable by imprisonment which may extend to three years along with a fine.

Taking a broader view after the recommendation made by Preeti Gupta, the situation remains the same as the legislature has not introduced any change in the new criminal laws set to be enacted in July. The issue was again highlighted by justice JB Pardiwala and justice Manoj Misra in Achin Gupta v. State of Haryana and Anr, where it was observed that Sections 85 and 86 of the BNS are nothing but verbatim reproductions of Section 498A. The only difference is that the explanation to Section 498A is now by way of a separate provision, i.e., Section 86 of the BNS. The judges requested the legislature to look into the issue and consider making necessary changes in Sections 85 and 86 of the BNS before the new provisions come into force.

Notably, Parliament overlooked the suggestion made by the Supreme Court in Preeti Gupta v. State of Jharkhand, where the Court requested to consider the informed public opinion and the pragmatic realities into consideration and take necessary changes, as it was observed that most of the complaints under Section 498A IPC are not even bona fide and are filed with oblique motive and in the heat of the moment over trivial issues without proper deliberations. The Hon’ble Court also expressed its concern over the exaggerated versions of the incident reflected in a large number of complaints and at the same time, rapid increase in the number of genuine cases of dowry harassment.

A growing concern observed in the complaints filed under Section 498A IPC is that most complaints are not bona fide and are filed with oblique motives. The Court also expressed its concern over these exaggerated complaints and the rapid increase in the number of genuine cases of dowry harassment.

Further, the data collected by different sources like NCRB and MoSPI over a period of 10 years reveals that the IPC provision has constantly been abused to harass the husband and his relatives with mala fide intentions to extort money or any unlawful gain. Even the Law Commission highlighted the gross misuse of Section 498A to the SC and the different high courts.

In Kahkashan Kausar v. State of Bihar, the SC held that the husband’s relatives cannot be forced to undergo trial in the absence of specific allegations of dowry demand and also observed that “a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged.”

In this case, it was observed that the plain reading of the FIR and the chargesheet papers indicate that the allegations levelled by a complainant are sometimes vague and sweeping, specifying no instances of criminal conduct. Section 498A cannot be applied mechanically as every matrimonial conduct, which may cause annoyance, may not amount to cruelty.

Emphasising the role of police in FIR registration and investigation, it is crucial to view them as a last resort, not a panacea as the first thing that comes to the mind of the wife and her relatives is the police. The foundation of a strong marriage lies in tolerance, adjustment, and mutual respect. Rushing to the police, even with fair chances of reconciliation, risks irreparable harm.

The 243rd LC Report recommended that even if the offence committed under Section 498A is non-bailable, safeguard against arbitrary and unwarranted arrests lies in strictly observing the letter and spirit of the conditions laid down in Section 41 and 41-A of Cr.P.C. relating to power of arrest and sensitising the police on the modalities to be observed in case of this nature. Further, there should also be a monitoring mechanism in the police to keep track of Section 498A cases and the observance of guidelines.

Thus, it is true that it is the need of the hour to introduce changes in the existing laws which shall help curb the issue of complaints filed with false or exaggerated allegations as finding out the truth is a herculean task in most of these complaints. At the same time, the onus shall also be on the police to register the complaint, except in cases of evident violence, based on preliminary investigation. Further, there is an implied obligation on the lawyers as well to uphold the dignity and sanctity of this noble profession by discouraging the practice of filing false and frivolous cases against the husband and his relatives as in India, marriage is not only considered a union of two souls, but also a union of two families.

Sanya Singh is a practising lawyer based out in New Delhi. She pursued a B.A. LL.B. (Hons.) from NUSRL, Ranchi and holds a keen interest in civil and commercial litigation.

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