Misuse of 498-A (Anti-Dowry Laws)
An article by:
Ms. AAKSHI SEHGAL
(Ricky Chopra International Counsels)
‘Dowry’ means property or money or all kinds of gifts like jewellery, electrical appliances, furniture etc. that a bride brings to her husband’s house at the time of her marriage. It is a custom that is prevalent in all the sections of Indian society in one form or the other. It has become a kind of a ‘social evil’ that a very few can escape it.
“Dowry” in the sense of the expression contemplated by Dowry Prohibition Act is a demand for property of valuable security having an inextricable nexus with the marriage, i.e., it is a consideration from the side of the bride’s parents or relatives to the groom or his parents and/or relatives for the agreement to marriage.
Dowry has been the oldest social evil of our society, whereby the women have had been suffering since time immemorial due to notions and norms made during Manu’s Era. The law to curb the same was enacted to protect the women of our country who had been suffering at the hands of their husbands, their families and the society at large. The concept and practice of dowry has been a part and parcel of our society since very long and the concept still exists in our country. It is not only the lower or the un-educated class of the society that practices dowry, but it is very much prevalent amongst the educated and higher class of the society as well and hasbecome a practise for displaying one’s status in the society.
Various laws and rules were enacted to put an end to the menace of dowry in the society and to improve the position of women in the Patriarchal Indian Society. But, over the period of time, the laws that were made to safeguard the women of our society are being misused by some of them. In the recent past, umpteen number of false and frivolous cases have been filed by women, misusing the laws enacted to safeguard the interest of the victims of the grave offence and other atrocities to take vengeance.
The Dowry Prohibition Act, 1961
The Dowry Prohibition Act, 1961, (Act No. 28 of 1961) was enacted to curb the menace of dowry and it aimed at penalising individuals or groups for demanding, giving and taking dowry. In this Act, dowry means any property or valuable security given or agreed to be given either directly or indirectly:
- by one party to a marriage to the other party to the marriage; or
- by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation II.-The expression `valuable security’ has the same meaning as in Sec. 30 of the Indian Penal Code (45 of 1860).
The Act only aimed at penalising the demanders, givers and takers of dowry with imprisonment and fines but did not acknowledge the other heinous crimes and aftermaths of the dowry practise, burnt of which is faced by the women.
Hence, in December 1983,Section 498 A of the Indian Penal Code (IPC) was enacted to combat the menace of dowry related harassment, injury and deaths through Criminal Law (Second Amendment) Act, 1983 (46 of 1983). The Section aims at penalising the husband and his family whoever treats the woman with cruelty. It includes abetment to suicide, grave injury, danger to life, limb or health, harassment 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.
CHARACTERSTICS OF 498A
Characteristics of 498A, Indian Penal are:
- Cognizable – The accused can be arrested and jailed without warrant or investigation as and when the complaint is made.
- Non-Compoundable – The complaint cannot be withdrawn by the Complainant.
- Non-Bailable – The accused must appear in the court to request bail.
Further, the Code of Criminal Procedure was also amended, Chapter XXA was inserted in the first Schedule i.e. the ‘Classification of offences’, after Section 498A IPC was introduced, Chapter XXA provided for punishment for subjecting a married woman to cruelty, i.e. imprisonment for three years and fine. The said offence was made Cognizable and Non-bailable.
Indian Evidence Act was also amended by including Section 113A that helped in including presumption of abetment to suicide by married women. Lastly, there was also an amendment of Section 174 of the Criminal Procedure Code, which made it compulsory to conduct post-mortem of women who died within 7 years of marriage.
In recent past, the criminal law of the land has undergone radical changes to provide protection to women, more fangs have been provided to the existing laws, but unfortunately the remedy is becoming worse than the ailment, which is now a comprehendible fact.
The biased nature of these laws is evident from that fact that unlike almost all laws in India, the burden to prove innocence lies on the accused, this implies as soon as the complaint is made, the persons named in the complaint are accused in the eyes of law. When Section 498A of the Indian Penal Code was introduced in 1983, it was meant to deter or punish husbands and in-laws who tortured women for dowry. It was meant to stem the tide of dowry deaths. One of its most important and stringent provisions was that the offence was cognizable and non-bailable. A complaint by the victim or her relatives could put her tormentors behind bars at once.
The Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed that the law should be amended immediately. Justice Malimath suggested that “Section 498A be made bailable and compoundable (where the case can be withdrawn and settled by mutual agreement between the parties). He said that a less tolerant and impulsive woman may lodge an FIR even on a trivial act and innocent persons may languish in custody for the same”.
The Hon’ble Supreme Court and various High Courts have time and again showed concern over this growing menace by observing that misuse of the provision (IPC 498A – Dowry and Cruelty Law) a new legal terrorism can be unleashed.
The judicial recognition of blatant misuse of these laws is not new, way back in 1987, The Hon’ble Supreme Court in Balbir Singh Vs. The State of Punjab observed that:
“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging.”
Expressing concern over disgruntled wives misusing the anti-dowry law against their husbands and in-laws, the Supreme Court on 27thJuly, 2017, in the matter of Rajesah Sharma &Ors. Vs State of U.P., observed that “there is a tendency to rope in all the family members”. The court mentions the statement of the Additional Solicitor General (ASG) that there is a growing tendency to abuse the provisions of the law and mentions data from the National Crime Records Bureau (NCRB) to create a foundation that there is widespread misuse of the law.The Court also directed that no arrest or coercive action should be taken on such complaints without ascertaining the veracity of allegations.
Acknowledging a growing trend among women involved in marital discord to abuse Section 498A of IPC to rope in their husband’s relatives- including parents, minor children, siblings and grandparents- in criminal cases, a bench of Justices A K Goel and UU Lalit said it was high time such frivolous cases which violated the human rights of innocents was checked.
The Bench observed that “It is a matter of serious concern that large number of cases continue to be filed under Section 498A alleging harassment of married women, many such complaints are not even bona fide. At the time of filing of the complaint, implications and consequences are not visualised. At times, such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside”.
The Supreme Court of India has ordered the authorities to stop misuse of the anti-dowry law after concerns that a large number of false cases were being filed. The court said that people accused of dowry harassment should not be arrested until charges are verified. It was observed that thousands of people are arrested every year under the tough anti-dowry law, but conviction rates are low as eventually. It was ruled that the police can no longer make immediate arrests of those accused in cases filed under Section 498A.
Directions by Supreme Court
- that bail applications be decided on the same day,
- no need for personal appearances in the court,
no need to impound passports if the accused resides outside India;
The only exceptions can be in cases where there is “tangible” injury to the victim, or, better still, death.
- In every district, one or more family welfare committees be constituted by the District Legal Services Authorities (DLSA) and every complaint received by police or the magistrate under this provision be referred to and looked into by the committee. The committee would comprise of three members, may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district concerned. Such committees may be constituted of para legal volunteers, social workers, retired persons, wives of working officers and others who may be found suitable and willing. It also said that committee members would not be called as witnesses in such cases and the panel may have interaction with the parties, involved in such cases, personally or by other means of communication.
- If a bail plea is filed in such matter, the same may be decided as far as possible on the same day with at least one day’s notice to the public prosecutor or the complainant. Recovery of disputed dowry items may not by itself be aground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.
- Provisions regarding persons residing out of India, the process of impounding of passports or issuance of Red Corner Notice should not be a routine and personal appearance of all family members and particularly outstation members may not be required, and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial. However, these directions will not apply to the offences involving tangible physical injuries or death.
- The court has asked the National Legal Services Authority(NALSA) to give a report about need for change, if any, in the directions or for any further directions and listed the matter for consideration in April 2018.
The ruling is truly landmark, for it amounts to a tectonic shift in the way the criminal justice system will look at Section 498 A henceforth. From protecting a woman who is tortured for dowry, the emphasis seems to be shifting towards making life easier for the accused.
The observations of the Supreme Court were made quoting National Crime Records Bureau’s 2012 data, the bench said that while chargesheets were filed at an exponentially high 93.6 percent of cases, only 14.4 percent ended in convictions”. In other words, the rest were frivolous.
Despite the various guidelines/recommendations of the Justice Malimath Committee and the Supreme Court of India that the working of these laws should be reviewed and reformed with change in time, so that the innocent is protected, and false complaints made with malafide intention are not registered, the suggested amendment to the law has been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system.
Hence it would not be wrong to say that the law that was enacted to safeguard the interest of women suffering at the hands of the menace of dowry and related atrocities, has now become a weapon in the hands of few.It is pertinent to note here that the real sufferers of the evil practice of dowry i.e. the rural or the uneducated class are not even sensitised about their rights and fail to use their rights. If the Supreme Court guidelines are adhered to and the said reforms are incorporated, the misuse of the anti- dowry laws can be curbed, and the actual sufferers would get justice.