Millennium Post

Why punish him for her crime

Section 498A of the Indian Penal Code was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to three years and fine has been prescribed. The expression ‘cruelty’ has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security.

Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of ‘cruelty’. The offence under Section 498A is cognisable, non-compoundable and non-bailable. Several enactments and provisions have been brought on the statute book during the last two or three decades to address the concerns of liberty, dignity and equal respect for women founded on the community perception that women suffer violence or deprived of their constitutional rights owing to several social and cultural factors. Meaningful debates and persuasions have led to these enactments. The provision together with allied provisions in Cr. P.C. is so designed as to impart an element of deterrence. In course of time, a spate of reports of misuse of the section by means of false/exaggerated allegations and implication of several relatives of the husband has been pouring in.

In the case of Preeti Gupta vs state of Jharkhand, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. The Court said, ‘It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints’.
Supreme Court lamented that in many instances, complaints under Section 498A were being filed with an oblique motive to wreck personal vendetta and observed. ‘It may therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with’. It was also observed that ‘by misuse of the provision, a new legal terrorism can be unleashed’.

The Supreme Court in Arnesh Kumar vs state of Bihar and Anth has held that women were increasingly using the anti-dowry law to harass in-laws and restrained police from mechanically arresting the husband and his relatives on mere lodging of a complaint under Section 498A of the Indian Penal Code. Citing very low conviction rate in such cases, it directed the state governments to instruct police ‘not to automatically arrest when a case under Section 498A of IPC is registered but to satisfy themselves about the necessity for arrest under the parameters (check list) provided under Section 41 of criminal procedure code’. Section 41 lays down check list for police to weigh the need to arrest after examining the conduct of the accused, including possibility of his absconding.
Referring to the National Crime Records Bureau 2012 statistics which showed arrest of 1,97,762 persons all over India for offence under Section 498-A of the IPC including 47, 951 women arrested, the Apex court observed ‘it depicts that mothers and sisters of the husbands were liberally included in their arrest net. The rate of charge-sheeting in cases under Section 498A of IPC is as high as 93.6 per cent, while the conviction rate is only 15 per cent, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

Leading legal experts have lauded the decision of the Apex court directing the police officials to first investigate the matter and only than make arrest if required and thereby refrain them from making reckless arrest only on the basis of mere allegations in the complaint. It is a dichotomy that after the gang rape and brutal assault which resulted in the death of the paramedical student in the capital city on 16 December 2012 the Parliament enacted the Criminal Law (Amendment) Act 2013 whereby enlarging the definition of rape and making the punishment more stringent for the offences committed against women under various sections of the Indian Penal Code. And on the other hand a legislation which was introduced three decades ago to protect women requires a fresh look.
The society must learn its lesson and therefore behave in a more mature manner. Because of the fault of the few stakeholders in the system, a legislation which was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives has been diluted by the Apex court because of its misuse by those for whom it was enacted by the Parliament.The legislation had lent a dubious place in the history as a provision that is used as weapon rather than the shield by the wives and her relatives.

The author is an advocate

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