INTRODUCTION:

The pain and pleasure theory of Benthom suggested the law which gives high pleasure must be accepted and the law which gives more pain must be rejected. Benthom has his own definition of pain and pleasure as it varies from time, place and people, here we are talking about the anti dowry laws in India which has been misused since made.

The law becomes weapon for the woman to harass the man as betrayal. It is true that there is need of strong and effective law for dowry evil. Dowry death and harassment cannot be denied. With a view to address the social evil of dowry-related violence, stringent provisions like Sec 498A of IPC and the Domestic Violence Act were introduced. But it is also imperative that the innocent should be protected from oppression and injustice at the hands of law enforcement agencies. Like in IMS Buisness School Colloquium Mr. Samarth Pandey and Debashree Chakraborty found that ´for the protection of women, the Government of India inserted Section 498A under IPC by the Amendment Act 1983. But in the recent scenario, there are cases seen where women misuse Sec 498A of IPC and legal Provision of Dowry Prohibition Act etc. by filing case against her husband and her in-laws and get the advantages of the alimony and other remuneration. This section has created biggest problem in a current scenario for men as they are being discriminated and such laws are being misused by women and there is a need of amendment in section 498A so as to protect men and for punishing women misusing the same.

So the question came do we still need to count the cases of misuse or is there need to change the law. Here in this paper we concentrate on the changes or abolition of provisions which makes the anti dowry law as weapon for woman.

Anti dowry law:-

Indian Penal Code- [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— 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 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.]

Section 113-A of Indian Evidence Act [2], reads as follows:

Sec. 113-A, Presumption as to dowry death- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.

Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in section 304-B of the Indian Penal Code (45 of 1860).

The object for which section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in 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 Houses to examine the work of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,1973 (in short ‘the Cr.P.C’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in- law’s and relatives. The avowed object is to combat the menace of dowry death and cruelty.

The act of harassment would amount to cruelty for the purpose of this section. Drinking and late coming habits of the husband coupled with beating and demanding dowry have been taken to amount to cruelty within the meaning of this section, but this section has been held not to include a husband who merely drinks as a matter of routine and comes home late. In a case before Supreme Court it was observed that this section has given a new dimension to the concept of cruelty for the purposes of matrimonial remedies and that the type of conduct described here would be relevant for proving cruelty.

With the help of different landmark decisions of apex court can ease to decide the severity of misuse of anti dowry law:-

1. Object of section 498a of IPC:

In the case of Sushil Kumar Sharma v. Union of India, the Apex Court remarked that the object of the provision is prevention of the dowry menace. But it has been found that in many instances petitioner have made complaints with oblique motive and is not bona fide. With the result of defame in society the acquittal does not wipe out the ignominy suffered during and prior to trial period. Even media plays a bad role in this.

The court also suggested the remedial measures that can prevent abuse of the well-intentioned provision. The court has a statement that “merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment”. it is therefore necessary for the legislature to find out the keys to avoid the frivolous complaints or allegations till the court have to take care the cases with existing possibilities. It becomes a kind of legal terrorism to the society.

2. Cruelty:

Shobha Rani v. Medhukar Reddi – In this case, the Supreme Court remarked that under Section 498A of IPC a new dimension has been given to the concept of cruelty. Explanation to Section 498 A of IPC provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide or likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman), and harassment of the woman with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security would constitute cruelty.

In this case it was held that evidence as to harassment to the wife to meet any unlawful demand for money is necessary to constitute cruelty in criminal law. This is the requirement of the offence of cruelty defined under Section 498 A of IPC.

It was also observed that the cruelty need not to be only intentional, it is required to prove the intention in matrimonial offenses. According to the sec 13(1) (i-a) of Hindu Marriage Act 1955 the intention is not necessary for proving cruelty. The word has to be interpreted in the ordinary meaning. If the word intention is pasted with harm, hurt or harass could be inferred by the nature of the conduct or brutal act complained or cruelty could be established.

Noorjahan V. State- the Supereme court tried to explain the word “Cruelty”

Consequences of cruelty which are 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 the woman is required to be established in order to bring home the application of section 498 A of IPC.” The court explained the intention of legislature behind insertion of section 498 A of IPC. As there was a need of strong law, which can prevent or deter the increasing rate of dowry deaths in India. In some cases it was found that the cruelty of husband and his relatives which results in suicide or murder constitutes only small fraction involving such cruelty, therefore it was necessary to insert or amend the IPC, code of Criminal procedure,1973 and the Evidence Act to deal the present condition.

3. Vinod Rajkrishan Kaushik & ors. … Vs The State of Maharashtra.

The highhandedness and influence of the complainant party was writ large on the face of the record and the police had detained the Petitioner No. 3 in custody without verification of the facts.….”

The apex court stated that “there is phenomenal increase in matrimonial disputes in the recent years which directly claims of use of new laws.” In this case the husband was got arrested from hid office which results in social obloquy. Court found that case was all fake and clearly showed that complainant was seeking personal vendetta without there being sufficient grounds.

4. Arnesh Kumar….. Versus State Of Bihar

The wife alleged that dowry was demanded and she was thrown away from matrimonial home on non fulfilment of such demand.

In this case, the Court observed that the fact that Section 498A, IPC is non-bailable offence, it is more often used as weapon not as shield from harassment. it becomes a legal weapon to wives who wants the betrayal from in laws. It results in harassing the husband and his relatives by getting them arrested and it is more disturbing to see bedridden grandfathers and grandmothers being arrested without a prima facie case. Thus, the Court laid down certain guidelines which the police officer must follow while arresting under Section 498A, IPC or Section 4 of the Dowry Prohibition Act, 1961 and that such arrest must be based on a reasonable satisfaction with respect to genuineness of the allegation. Moreover, even the Magistrates must be careful enough not to authorise detention casually and mechanically

5. Amrit Anand @ Chhotu, Versus The State of Bihar

Gross misuse of 498A.

This case clearly explains the gross misuse of the provision of sec 498 A of IPC. The counselling between husband and wife got failed due to arrogant nature of wife. There were no justification of keeping the petitioner in jail and bond been cancelled. There was a clear intention of torturing husband and making him miserable.

6. Srinivas Rao Vs D. A. Deepa

False 498a, wife stayed herself away from husband deliberately and lodged a false complaint of dowry harassment also alleged she was forced to sleep with father in law.

Marriage was solemnised in 1999. Quarrel starts immediately after marriage and wife left the house stays with her parents just after a day of marriage. She made a complaint of dowry demand of rs 10 lakh and also that her mother in law forced her to have cohabitation with father in law. Police tried to settle the dispute and both parties agrees with terms and closed the case but the NGO “Abla Naree” goes to the court. Hon Supreme court appreciates the entire case and decrees (a) marriage broken down as parties have been completely living apart (b) various cases filed by wife are cruelty (c) wife NEED NOT have physically lived with husband to create cruelty and grants divorce to husband … Supreme court KINDLY provides the wife with Rs 15,00,000 !! as permanent alimony !!

7. Smt.Sunita Goyal & Ors. Vs. State of Punjab & Anr.

Reckless Malafile FIR falsely implicating in-laws vexatiously & maliciously to blackmail & grab property

Wife made a false complaint against his brother in law for property. The complaint was found purely vexatious and malice to put pressure on family as blackmail and got the property. The court goes on to say “… As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction….”

8. Md. Quasim @ Md. Kashim @ Md. Quasim Ansari Vs The State of Bihar

Husband arrested and Jailed for one and half years.

Granting Bail, the Hon HC says “…This case indeed discloses the extent to which the provision of Section 498A, IPC has been misused and as to how the legal system was unkind to the petitioner…..” “..For the past and one and-a-half years the petitioner is in prison. Even if he is held to be guilty of the offence alleged against him, the sentence cannot be that much….”

Bibi Parwana Khatoon v. State of Bihar (2017) 6 SCC 792

Similar to previous cases, the facts of this case are that the wife was killed by setting her up on fire by her husband and her relatives. The sister-in-law and brother-in-law of the deceased wife challenged the conviction in the Supreme Court. The Court brought under notice the facts that the appellants in the case did not even reside at the place of mishap. There was no evidence to prove their charge beyond reasonable doubt. Therefore, the Court acquitted them and held that the Court must guard against false implication of the relatives.

Rajesh Kumar & Ors v. Sate of U.P. (2017 SCC OnLine SC 821)

In the present case, the husband, along with other relatives, was accused for causing cruelty to the wife in lieu of demand for dowry. Most of the dowry cases the petitioner seeks revenge from the whole family and got arrested the relatives with no motive. However the relatives demanded that there should be some guidelines to avoid the situation and protect the relatives from humiliation. It is not necessary that the relatives will be party to the dowry case. Just because it has been explained in the provision it does not been wife can drag the family and relatives to courts in case of sec 498a.

CONCLUSION:

After analysing the above cases we may say that there is an urgent need of modification in the provisions of Sec 498A of IPC. It is proved that more than 90% cases of sec 498A are lodged false. Crimes against women are more likely to be found false by the police and more likely to see acquittals than other cognisable crimes. When the same statistics emerged in the context of rape last year, the consensus was that the police and judiciary were stacked against women’s interests. So it’s difficult to look at these same numbers now and judge that they mean that women are filing false cases.

From speaking to lawyers and judges, my sense is that there is indeed an element of misuse of 498-A. The numbers are in their own, however, are not going to tell us what to think.

Here are some suggestions for the fighting the present situation and filling the gap and correcting the errors of provisions.

Guidelines issued by the Supreme Court in the case of Rajesh Sharma V. State of UP explain the lacking of law.

The core issue was to check the alleged tendency of woman filing complaint under sec 498A to rope in all family members in the settlement of matrimonial dispute.

a) The allegations against the relatives cannot be taken at face value, suggested to focus on husband and his father and mother who may be accused of dowry demand or causing cruelty.

b) The misuse has been judicially acknowledged in several cases.

c) The provision become the weapon to rope into the relatives including old age parents and disabled people in family without there being any verifiable evidence of physical and mental harm or injury.

d) The provision of counselling under sec 14 of the Protection of Women from Domestic Violence Act 2005 should be made compulsory before registration of a case under Section 498A.

Measures to be taken to prevent the misuse of Section 498A of IPC.-

1. Misuse of Section 498-A in many cases has been judicially noticed by the apex court as well as various High Courts. As the misuse is not only the ground for repealing Section 498A or to alter. The object of inserting the section and deterrence must be kept in a view with fake and exaggerated allegations. We need to concentrate on the motive.

2. The need to spread awareness of the provision and available remedies especially in rural areas both among women and men is necessary. The District and Taluka Legal Services Authorities, the media, the NGOs and law students will play an important role in this regard. There must be professional counsellors, mediation and legal aid centres to avoid the harsh effects at the early stage.

3. Except in the cases of visible violence cases the FIR should be avoided. There must be preliminary enquiry before filing the FIR.

4. Establishment of family welfare committee in each district will definitely help to prevent misuse of section 498A. The committee can counsel the parties within a specified period with the help of experts.

5. There should be no arrest matter till the report of welfare committee submitted. It would ease to the unnecessary arrests and maintain the dignity of husband and his family.

REFERENCES:

1. Section 498A, IPC

2. 1999) 3 SCC 620

3. (2002) 7 SCC 414

4. (2000) 10 SCC 662

5. (2005) 6 SCC 281

6. (2005) 6 SCC 281

7. (2010) 7 SCC 667

8. (2010) 13 SCC 540

9. ILR (2003) I Delhi 484

10. (1994) 4 SCC 260

11. (1997) 1 SCC 416

12. (2017) 6 SCC 792

13. (2017 SCC OnLine SC 821)

14. (2014) 8 SCC 273

15. (2012) 10 SCC 303

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Received on 09.06.2020 Modified on 18.06.2020

Int. J. Rev. and Res. Social Sci. 2020; 8(2):103-107.

DOI: 10.5958/2454-2687.2020.00010.6