Cruelty to Women IPC 489 (A)

Name : Harshita Pandey

Course : BA.LLB (H)

Year : 3rd Year

College : Amity University, Lucknow Campus

Abstract:

Domestic violence or some form of abuse including mental, physical and sexual abuse in a domestic setting, such as in marriage or cohabitation also commonly known as intimate partner violence.

It is a common occurrence throughout the world but in India, it is prevalent here as the issues of dowry, male dominance and living in joint family set ups are the norm here. Therefore, these factors play an additional role in making the women, victims of domestic violence. Not only do the women suffer violence from the husband but also from the family members of the husband specially when the issue is of dowry whether lack of it or an unsatisfactory amount. The statistics do not show the correct picture as things are not reported often due to social stigma attached with it and the whole Indian mentality of worrying about other peoples’ opinion. Most of the time, only way the issue reaches the police and courts of law are when either the victim dies due to the injuries, commits suicide or reaches the hospital for treatment. Otherwise the milder forms of abuse are mostly kept well hidden.

Prior to 1983, there was no provision in Indian legislation to deal with specifically with domestic violence. When the Indian Penal Code (45 of 1860), was amended in 1983, Section 498A was inserted. Section 498A deals with ‘Matrimonial Cruelty’ perpetrated on a woman. Matrimonial Cruelty in India has now been made a cognizable, Non- bailable and Non-Compoundable offence.

Introduction

The declaration on the elimination of violence against women defines “violence against women” as “any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life.”

A subset of violence against women, is domestic violence, defined as “violent or aggressive behaviour within the home, typically involving the violent abuse of a spouse or partner”. It is prevalent in India, as the Indian society is well defined by certain norms and practices that might be considered regressive.

The dowry system is a glaring example of such a regressive practice and considered one of the root causes of domestic violence in India. The dictionary definition of dowry being “an amount of property or money brought by a bride to her husband on their marriage”.In India, the whole concept of a successful marriage is often defined by the amount of dowry the bride brings. If the bride’s family is unable to fulfil this demand then the whole cycle of demand for additional dowry and domestic violence ensues. Regular beatings, deprivation of basic needs, emotional abuse like continuous demands for dowry, insults to the women and her family, the cycle keeps on increasing. In most of the instances, the victim keeps quiet in order to avoid emotional and financial distress to her family, her inability to stand up for herself, financial dependence, lack of education and knowledge of her rights and fear of social stigma. Often, the only way these cases reach the police or court of law is when either the victim dies due to the injuries, commits suicide or reaches the hospital for treatment.

Though this system of demand for dowry and domestic violence associated with it, is an age old practice yet prior to 1983, there was no provision in Indian legislation to deal with it specifically. When the Indian Penal Code (45 of 1860), was amended in 1983, Section 498A was inserted which deals with ‘Matrimonial Cruelty’ and is defined as “Husband or relative of husband of a woman subjecting her to cruelty”. Matrimonial cruelty has now been made a cognizable, non-bailable and non-compoundable offence.

Case Details

The case was of a 29-year-old female in an arranged marriage with demands for additional dowry. She was beaten up regularly by her husband and FIL. Following the beatings, she began to have some neurological problems. When she became pregnant with a female child (sex determination was done illegally) her in-laws and husband pressurized her to abortion it, which she refused and was allegedly administered some unknown substance/poison by her MIL.

During this time there were she mentioned 2 specific episodes of violence by her husband and FIL when she was hit on the neck with danda and belt following which her condition start deteriorating. She was taken to a local hospital who referred her to Neurology Department of AIIMS. During her treatment she was put on ventilator and kept in ICU for 2 months.

She alleges that even while admitted, she was subjected to multiple episodes of violence by her husband and FIL who threatened to remove the ventilator if her father didn’t pay additional dowry.

She was discharged after 6 months with following diagnosis: LMN Quadriparesis with diaphragmatic weakness and ventilator dependence. She was not taken care of properly in her in laws house, so she went back to her own home and currently she is bedridden on ventilator and residing at her parents’ house.

She has lodged an FIR with the police alleging domestic violence and torture with demands for additional dowry.

A medical board of doctors was formed to opine whether her condition was a result of physical violence meted out her. Her treatment papers were reviewed, and in view of unknown substance administered to the victim, samples were collected for toxicological analysis.

At the time this case report was written, the case was still under investigation and deliberation by the board.

Discussion

The case discussed shows that the topic of dowry remains closely associated with perpetration of domestic violence over women. Under the Indian Law, the factor “beyond reasonable doubt” forms the basis of prosecution against all crime and in cases of domestic violence, the violence occurs within the four wall of the marital home, proving her case in front of the Court of Law proves exceedingly difficult for the victim.

A study by Leela Visaria – “Violence against Women in India: Evidence from Rural Gujarat” showed that two-thirds of the married women out of the 450 surveyed, reported some form of psychological, physical, or sexual abuse. Of the total sample, 42 percent experience physical beatings or sexual assault. An additional 23 percent suffer abusive language, belittlement, and threats. About 36-38 percent of women in a Tamil Nadu study and 42-48 percent of women in an Uttar Pradesh study reported violence.

According to the NCRB data, domestic violence figures at the top in violence against women in 2018. Majority of cases under crimes against women, out of total IPC crimes against women were registered under ‘Cruelty by Husband or His Relatives’ (31.9%). The crime rate per lakh women population is 58.8 in 2018 in comparison with 57.9 in 2017.

Total no of cases registered under Cruelty by Husband or his relatives (Sec. 498 A IPC) was 104165 in 2018 all over India while those registered under Dowry Deaths (Sec. 304B IPC) was 7277 and under Abetment to Suicide of Women (Sec. 305/306 IPC) was 5266.

Kimuna et al. have published domestic violence trends in India, based on the 2005–2006 India National Family Health Survey-III (NFHS-III) data on the 69,484 married women of ages from 15 to 49 from all regions of India. They report 31% of respondents had experienced minor to major form of physical violence in the 12 months prior to the survey, while the domestic sexual violence prevalence rate experienced by the woman was about 8%. Women who lived in cities, had higher household wealth, were Christian and educated had significantly lower risk of physical and sexual domestic violence. In contrast, wives of men who drank alcohol had significantly higher risks of experiencing both physical and sexual violence.

A 1999 study published by the American Journal of Epidemiology identified so-called “stress factors” that are critical to understanding varying rates of domestic violence. These stress-related factor include low educational levels, poverty, young age at time of marriage, having multiple children, socioeconomic class, educational level of both victim and perpetrators, and family structure.

The Indian legal system has formed Section 498A of Indian Penal Code according to the Criminal Law (Second Amendment) Act, 1983 (46 of 1983), specially for dealing with domestic violence. 498A IPC states – “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. Sec 498A IPC is cognizable, non compoundable and non bailable.

One more safeguard that the Indian Law has added in order to protect women from domestic violence is the provision of Indian Penal Code (45 of 1860) Amendment Act, 1986 whereby Section 304B has been added to the Indian Penal Code which addresses dowry death.

Even though the law provides for the security of women, yet there is a big loophole; a lack of awareness in the victims, most of whom do not know that they have the option to approach the law.

CASE LAW

Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

In an endeavour to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically in cases under Section 498-A IPC, the Court gave certain directions (however, the directions apply also to other cases where offence is punishable with imprisonment of not more than seven years) which include:

(a) Police officers not to automatically arrest the accused when a case under 498-A IPC is registered. They should satisfy themselves about the necessity of arrest under parameters flowing from Section 41 CrPC (the judgment lays down the parameters).

(b) Police officers shall fill the checklist (containing specified sub-clauses under Section 41(1)(b)(ii) CrPC) and furnish the reasons and material necessitating the arrest

(c) If the police officers fail to comply with the directions, they will be liable for departmental action as well as punishment for contempt of Court.

€ Failure of the Judicial Magistrate to comply with the directions will render him liable for departmental action by the appropriate High Court.

Rajesh Sharma v. State of U.P., 2017 SCC OnLine SC 821

In this case, too, the Supreme Court gave directions to prevent misuse of Section 498-A IPC which were further modified in Social Action Forum for Manav Adhikar v. Union of India, 2018 SCC OnLine SC 1501. These directions include:

(a) Complaints under Section 498-A and other connected offences may be investigated only by a designated Investigating Officer of the area.

(b) If a settlement is reached between the parties, it is open to them to approach the High Court under Section 482 seeking quashing of proceedings or any other order.

© If a bail application is filed with at least one day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not, by itself, be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected.

(c) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.€ These directions will not apply in case of tangible physical injuries or death.

SUGGESTIONS

The Court and Legislature have to make changes if the laws of matrimonial cruelty are to be of any deterrence. Looking into the recent observations and the increase in the misuse of this Section, there should be certain amendments which should be brought up in this law:

1. Role of Women NGOs: These organizations should investigate complaint properly without any bias towards the woman keeping in mind that the law is being misused largely to harass more women in husband’s family. They should not encourage any woman to file a criminal case against her in-laws for trivial matters. Foreign Women Organizations should also take responsibility of not allowing false complaint to be registered against NRI’s just to harass and extort huge amount of money from them. These organizations should also conduct survey/research on the misuse of the act and should educate people about its consequences. If these organizations are found to be assisting in filing false complaints, then they should be made liable for prosecution in the country where they are functioning.

2. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-laws have come to light from different parts of the country. As of now there is no organization, which can really help these harassed men and his family members, to listen their side of the story and put their point of view in front of the government. Need of the hour is to create family counseling centers across the country to help those aggrieved families.

3. Time bound Investigation and Trial: A speedy trial of 498(a) cases will not only ensure justice for the innocents that have been implicated in false charges, it will also lead to prompt redressal of the grievances of real dowry victims .The reduction in false cases will also reduce the burden on judiciary and expedite the processing of real cases.

4. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law. There should be provision for men also to file a case for mental cruelty by his wife.

5. Investigation by Civil authorities: The investigation into these offences be carried out by civil authorities and only after his/her finding as to the commission of the offence, cognizance should be taken. The government should create awareness among officers about its misuse.

6. Bailable: The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them.

7. Compoundable: Once FIR has been registered it becomes impossible to withdraw the case even if wife realizes that she has done a blunder and wants to come back to her matrimonial home. To save institution of marriage this should be made compoundable. Moreover, in the scenario where the couple decides to end the marriage by mutual divorce, continuation of criminal proceedings hamper their life.

8. Arrest Warrants: Arrest warrant should be issued only against the main accused and only after cognizance has been taken. Husband family members should not be arrested.

9. Penalty for making false accusation: Whenever any court comes to the conclusion that the allegations made regarding commission of offence under section 498a IPC are unfound, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families.

10. Court Proceedings: Physical appearance of the accused on hearing should be waved or kept low to avoid hassles in appearing to the court, especially for NRIs. The court should not ask to surrender passport of the husband and his family which could cost job of the husband and his family members.

11. Registration of Marriage and Gifts Exchanged: The registration of marriages should be made compulsory along with the requirement that the couple make a joint declaration regarding the gifts exchanged during marriage.

12. Punish Dowry Givers: If the complainant admits giving dowry in the complaint, the courts should take cognizance of the same and initiate proceedings against them under the relevant sections of the Dowry Prohibition Act

13. Penalize corrupt Investigation Officers: If it is apparent to the court that a fair investigation has not been conducted by the investigation officer, and that the husbandand his family have been charge-sheeted without proper verification of the complaint, the investigation officer should be penalized for gross negligence of duty.

14. NRI Issues : Unless they are proven to be guilty after the due judicial process, NRIs should be a given a fair chance to justice by assuring them of the following -a) Permission to return to country of employment b) No impoundment/revocation of passport and no Interpol Red Corner Notices. c) No unnecessary arrests d) Expeditious investigation and trial

15. Gender Neutral: Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife.[25]

This Section only provides for the remedy to woman only and these days it is being used as a ‘brahamastra’ by the woman. It is a highly debatable issue these days, if this problem is not solved by legislation it may become a bane for the society. People’s trust over the judiciary will come to an end. So it’s high time that this Section be amended and some changes like mentioned above should be brought up in this law.

Conclusion

Misuse of Section 498A is not a rumour it is proved now, the woman laid down a false charge under the provisions of Section 498A IPC and created her husband under the rule. The boys have no laws to protect themselves from women’s abuse. Moreover, in every district court case, section 498A IPC was misused. The cases were still unresolved, and the square measure of husbands paying maintenance to their wife just because he’s husband doesn’t mean he’s to blame for all the expenditures and benefits. The ladies are scammers as opposed to men in society. This section is used as a weapon by the wives to collect some cash from their husband’s. It is the fact that Section 498A IPC is misuse by the women to husbands and in-laws. The tests are finished and published already. This segment was seen to be keen on people. Section 498A is right to protect women, but it’s actually harassment of husband and in-laws by a spouse. The effect on society of this example is terribly unhealthy. The Law Commission addressed the issue concerning abuse of this provision in its 243 reports on IPC Section 498A. The commission has recommended that the offence can only be made compoundable with the court’s permission, and precautions must be taken before granting. The commission has recommended, however, that the offence should remain undeclared. The abuse does not mean that we are removing the usefulness of the laws that impact the wider public interest.

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