Unfairly targeting Section 498A

Let’s admit that neither dowry nor dowry deaths have been eliminated.

Written by Sunieta Ojha | Updated: July 14, 2014 8:41 am
The Supreme Court judgment only considers one aspect of the issue and is likely to have a disappointing effect at the bottom levels of the judiciary  and police. Source: PTI The Supreme Court judgment only considers one aspect of the issue and is likely to have a disappointing effect at the bottom levels of the judiciary and police. Source: PTI

Let’s admit that neither dowry nor dowry deaths have been eliminated.

Violence against women within domestic peripheries is a fact. In the case of India, the problem of dowry and harassment related to dowry was seen as the main cause of domestic violence, and hence the amendments in the 1980s to address the issue of domestic violence focused only on that aspect. A law under Section 498A was introduced into the Indian Penal Code in 1983, applicable in cases where the complainant is a married and is subjected to cruelty by her husband or a relative of her husband.

Such cruelty consists of (a) wilful conduct by her husband or relative of husband of such nature as is likely to drive her to commit suicide or cause her grave injury, or (b) harassment to coerce her into meeting dowry demands. Further, in 1986, another section was added to the IPC — Section 304B. This applies in cases of unnatural death, death by burns or bodily injury taking place within seven years of marriage, and where there are allegations of dowry demand. Presumption of guilt arises only in cases of such unnatural deaths within seven years of marriage, and not in allegations of cruelty under Section 498A.

The debates in and around Section 498A need to distinguish between these two. The same set of arguments cannot be used to sweep aside the serious nature of the crime addressed under the second part of Section 498A and under 304B, where the woman’s life has been lost. Faulty and corrupt investigations, together with a misplaced sympathy for the groom’s family, result in routine acquittals. There is a need for stricter implementation of these provisions, a fact lost in the general cacophony around the “misuse of dowry laws”.

Let’s admit that neither dowry nor dowry deaths have been eliminated. Also, there are cases of extreme domestic violence leading to death that may not be related to dowry. Dowry as an angle may not exist in some of the cruelest cases of domestic abuse, and an attempt to establish the same in order to secure a conviction under these sections leads to some storytelling and evidence-building even in genuine cases. Who is at fault? The complainant or the structure of the law?

Since the first clause defining physical/ mental cruelty under 498A does not use the term “dowry”, it can be used by women who are victims of domestic violence but not necessarily of a dowry demand. Thus, a woman who has faced repeated violence over 10-15 years of married life should be able to invoke this section and get a conviction.

Until the Domestic Violence Act was passed, this was the only provision a victim of domestic violence not necessarily interested in seeking a divorce on the ground of cruelty could take recourse to. However, since the genesis of 498A lay in the anti-dowry struggle, neither the police nor the courts entertained such cases unless accompanied by allegations of dowry. Therefore, invariably some lines are inserted relating to dowry. Which, ultimately, goes to discredit the entire, otherwise genuine, case. Again, who is at fault? The complainant or the investigative and judicial machinery that fails to uphold the law as is?

Another allegation against women filing 498A cases is that they are filed only to extract money from the husband and the in-laws, since the majority of cases are settled after some payment has been received by the complainant. While it is true that the majority of 498A cases are settled by parties filing for mutual consent divorce, it is hardly indicative of the genuineness of the case. Women are advised to settle and start afresh from the onset. The courts have also facilitated this, laying down guidelines from time to time.

The Delhi High Court has passed detailed guidelines on registering FIRs to carry out arrests in 498A cases. There is a liberal attitude adopted in the compounding of offences and quashing of FIRs on the basis of a compromise arrived between the parties. Even from the perspective of women caught in a violent marriage, it is not always the conviction that offers a balm to her wounds but a dignified exit with some financial security. It also needs to be understood that the settlements offered are meticulously calculated. What a woman gets is not the price for the withdrawal of a criminal complaint, as often projected, but the full and final settlement of all her legal claims that she is otherwise entitled to, such as alimony and maintenance.

The Supreme Court’s July 3 judgment unfortunately only considers one aspect of the issue and is likely to have disappointing effect at the bottom levels of the judiciary and police, which are the first line of contact for victims. For instance, after the SC’s judgment in Batra vs Batra, where it refused to grant residency rights to the victim in the house belonging to her mother-in-law, magistrates routinely reject prayers for protection orders with respect to the matrimonial home if it is owned by the in-laws. There are already obiter dicta from the highest court, calling for amendments to Section 498A. There are also decided cases of various high courts, where guidelines have been laid on the registration of FIRs in 498A cases and the investigation. There are enough safeguards in place.

 

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First Published on: July 14, 2014 12:26 am
  1. S
    Sunit Sharma
    Mar 7, 2016 at 11:00 am
    Bcz misusing of 498a act most of joint family in India r nearly to finish
    Reply
    1. S
      Sunit Sharma
      Mar 7, 2016 at 10:53 am
      What about parents n family member of groom side if the girls misusing the law system by putting a false case what u call woman violence against woman my mother n sister are not a woman
      Reply
      1. S
        shddn
        Jul 11, 2016 at 9:40 am
        Author is challenging the judgment of highest court in India. She should have thought twice before writing this manited and biased article which is stupid.
        Reply
        1. K
          Kritika
          Jul 19, 2015 at 7:05 pm
          I completely agree the law clearly says that cruelty needn't be necessarily be related to dowry. This is not an extortion scheme. Honestly I feel the only kind of men who oppose such law may be the kind to be torturing their wifes
          Reply
          1. D
            Danish Khalifah
            Apr 30, 2015 at 2:23 am
            What a piece of garbage
            Reply
            1. A
              Anil
              Jan 25, 2015 at 7:16 pm
              The Author is relying on her Motives.They dont change their mind because that is their moot.
              Reply
              1. T
                TAMOGHNA 4
                Jan 19, 2015 at 11:14 am
                CRIME HAS NO GENDER..
                Reply
                1. T
                  TAMOGHNA 4
                  Jan 19, 2015 at 11:13 am
                  married male suiside rate 8/min married female suicide rate 19/ minwhat a biased news from indiabn express:timesofindiadiatimes...
                  Reply
                  1. V
                    Vinu Eugene
                    May 21, 2015 at 12:00 pm
                    An extensive diatribe of conclusions carefully avoiding quoting any facts regarding 498a including the Supreme Court . The rich and powerful are above this law (remember Arjun Singh), the poor do not need it or use it (the 14th commission law report). The only people who use it are the upper middle cl educated women (in most part with their families) to blackmail or to get favorable terms of divorce with the police and woman's organisations receiving a share in the public blackmail. Yes, this article is journalism with courage!!!
                    Reply
                    1. B
                      Bose
                      Jul 14, 2014 at 4:30 pm
                      Firefighting with nuclear bombs !!! Are these people rational human beings ???Draconian Law is never the answer. Stop it totally and Start Counseling and People Awareness --which the people sitting in AC rooms never do.
                      Reply
                      1. S
                        shot by
                        Nov 13, 2014 at 11:54 am
                        Had i myself not been a suffered of 498a case, i would have supported the author, because I too always felt that Indian women are treated badly, and they sacrifice a lot during the course of their marriage. But my wife proved it all wrong, because she was treated like a daughter at my home, and without even having a fight or argument, she left and filed for false 498. The police also understood that it was false, so a gentleman ACP tried to dissuade her, but all in vain. It's been more than a year, even the Judge gave us 6 months to settle it somehow so that we can be out of problems. But the demand is way too high... 50 lacs 1 BHK flat in Mumbai... to wind up the case leave the custody of daughter with me(which I already have).I don't know, whether the author would have a change of mind after reading all this, but this is her personal choice. Life will teach her that, when she experiences any of her male friend's or relative plight... while encountering such cases. Just remember your father, brother & sons all are males.. and think of it whether you would enjoy and write such articles when they are trapped in such FALSE cases.
                        Reply
                        1. A
                          Anuj Kapoor
                          Jul 14, 2014 at 4:45 am
                          Not surprising the article by Ms. Ojha or rather a lawyer .. where the entire law has been anlysed from the point of view of the client whilst the concerns of the other side has been entirely ignored. When she says that majority of cases are settled out of court the logic she has given is not correct as if only the woman is the only stakeholder in a marrige .. completely ignoring the man , his family and above all the family of the woman. The role pla by them also becomes important and should be subjected to scrutiny by the IO. Section 498A effectively ignores the role of IO and by default cases land up in court (where they are settled) by who else the lawyers.
                          Reply
                          1. K
                            kamu
                            Dec 20, 2014 at 2:58 pm
                            I pray Sunieta Ojha that your son is one of such victim of false case. Its easy to write with pen but god will soon show u those days when your son is among one who spends night in lockup without any fault but only because he refused to bow down in front of his wife and family who wanted u to be thrown out of your own house.
                            Reply
                            1. A
                              Ashish Jain
                              Jul 15, 2014 at 3:54 pm
                              Has the author read news of suicide of Hardik rawer of Ahmedabad, a victim of 498a. Has the author gone through the conviction rate and collected data about its misuse. This is d effect of notorious law that families are breaking n wives are mislead by lawyers n women organisation. Is it real woman empowerment. I can't understand why women organisations are motivating woman to break family. Actually all zender based laws are unconsutional n funny where an innocent person is arrested merely based upon the statement of complainant girl. Whenever, there is difference of opinion between male n female living together, women use it like a weapon to take revenge n satisfy their ego. I advise author to go through the database and then only to express views
                              Reply
                              1. R
                                Rita
                                Dec 11, 2014 at 11:19 am
                                One your sister or daughter is killed due to dowry demand, then you come and say.
                                Reply
                                1. H
                                  Ho Tan
                                  Nov 23, 2014 at 1:43 pm
                                  1.498a violates human rights . it may be applicable in case of dowry death ONLY and NOTotherwise. This will reduce misuse / false cases , reduce work load on the Courts andreduce corruption .2. it is ridiculous to jail 10 members of a family just on mere accusation of one woman and then let her go scot free if she is proven a liar. Punishment for women for false cases must be same as that for men. No mercy to anyone. Equal,fair and just treatment to all must be ensured. If the law of the land remains defiantly unjust and unfair despite Supreme Court's lambasting, husbands will be forced to do justice themselves.
                                  Reply
                                  1. H
                                    Ho Tan
                                    Nov 23, 2014 at 1:45 pm
                                    PRE-NUP CONTRACTS—EMPOWERING WOMENLet us empower women by fixing the root cause of their problems. Since Govt. / judiciaryNEVER gets involved or takes any responsibility whatsoever in match making and even if a family is starving to death , they should avoid playing the role of middlemen (dalaal) in maintenance / et matters related to marriage / divorce as well .Since insution of marriage has been reduced to money/ ets/ child custody rights by the present laws , LET THE TWO PERSONS INVOLVED DECIDE THESE ISSUES UPFRONT at the time of marriage . NO DALAALS, PLEASERegistration of marriage has already been made mandatory. Submission of following doents should be made mandatory or at least legally valid and enforceable.1. PRE-NUP CONTRACTS defining upfront issues related to maintenance, ets and child custody. 2.List of all items deemed as istridhan and dowry signed by bride & groom and duly certified . No claims should be legally admissible later on IF such a list was not made. BENEFITS-1: Quick And Efficient Divorce & Resolution Of Marital Matters 2. Reduced Misuse Of Gender Biased Laws and Torture of Innocents. 3. Reduced Load On Judiciary , Police, NCW and Prisons4.Reduced Corruption
                                    Reply
                                    1. B
                                      BlindMonk
                                      Jul 14, 2014 at 9:08 am
                                      Ill-informed, and off the point. Did you even read 3rd july judgement? It says police has to answer to the magistrate within two weeks. If police did not arrest where an arrest was necessary, the IO will be held accountable. Are you saying this is wrong? Please enlighten me how this scenario weakens the law?
                                      Reply
                                      1. X
                                        Xavier
                                        Jul 17, 2014 at 9:14 am
                                        100 %, especially your last sentence. This 'law' which has come out of emotional knee jerk reactions can only be misused and never used.
                                        Reply
                                        1. N
                                          nick dev
                                          Oct 6, 2014 at 7:47 pm
                                          Once u or or brother trap in false 498A case where a girl just bombard 498A with DV ,etc falsely than u would realize the factum about this gender based misused law..ots poor journalism to just write to earn few clap since this way u are trying to become a sensible writerI have seen many educated mens/young boys traped in this and eating their time just beco they are innocent and can't give huge extorsion money which always starts as 50 lalh as settlement all over India 😊
                                          Reply
                                          1. P
                                            Prashanth
                                            Jul 15, 2014 at 2:57 pm
                                            Opposing 498A is not condoning dowry deaths. One can legitimately ask if the remedy is worse than the disease. Dowry deaths will stop when women are empowered and society is transformed - a very slow process, unfortunately. In the meantime, lets fix our inheritance laws that discriminate against daughters. Let community leaders take the lead.To me, it is clear we can't legislate away all our societal ills. To compensate for the weaknesses and incompetence of the prosecution system, 498A basically turns transfers the burden of evidence to the defendant - perverting the course of justice, in unintended, but easily foreseeable ways.The law itself seems to be an emotional, not a rational, response to the problem of dowry deaths. The powerless women are too powerless to avail of 498A, while the powerful women become all-powerful by availing it.
                                            Reply
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