Cruelty to Women [S. 498-A IPC and allied sections]

[Disclaimer: This note is for general information only. It is NOT to be substituted for legal advice or taken as legal advice. The publishers of the blog shall not be liable for any act or omission based on this note]

Introduction

Section 498-A 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 3 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”.

Penal Code, 1860

Section 498-A: 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 purposes of this section, “cruelty” means—

(a) 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

(b) 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.

Evidence Act, 1872

Section 113-A: Presumption as to abetment of suicide by a married woman — When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation. — For the purposes of this section, “cruelty” shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860).

Classification of offence

The offence under Section 498-A IPC is cognizable (a case in which a police officer may arrest the accused without an arrest warrant) if the information relating to the commission of the offence is given to an officer-in-charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf. Also, it is a non-bailable offence.

Object and caution

Section 498-A IPC was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives, Onkar Nath Mishra v. State (NCT of Delhi), (2008) 2 SCC 561.

Who may file a complaint?

The complaint under Section 498-A may be filed by the women aggrieved by the offence or by any person related to her by blood, marriage or adoption. And if there is no such relative, then by any public servant as may be notified by the State Government in this behalf.

Complaint under Section 498-A — Period of Limitation

As per Section 468 CrPC, a complaint alleging commission of an offence under Section 498-A can be filed within 3 years of the alleged incident. However, Section 473 CrPC enables the Court to take cognizance of an offence after the period of limitation if it is satisfied that it is necessary so to do in the interest of justice.

The essence of the offence in Section 498-A is cruelty. It is a continuing offence and on each occasion on which the woman was subjected to cruelty, she would have a new starting point of limitation, Arun Vyas v. Anita Vyas, (1999) 4 SCC 690.

When can the Court take cognizance?

No Court shall take cognizance of an offence punishable under Section 498-A except upon a police report of facts which constitute such offence or upon a complaint made by the person aggrieved by the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister. The Court can also take cognizance if the complaint is made by any other person related to her by blood, marriage or adoption with Court’s permission.

— Section 198-A CrPC

Ingredients

For commission of an offence under Section 498-A, following necessary ingredients require to be satisfied: (a) The woman must be married; (b) She must be subjected to cruelty or harassment; and (c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband, U. Suvetha v. State, (2009) 6 SCC 757.

Husband — Who is

The expression “husband” covers a person who enters into a marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty in the manner provided under Section 498-A, whatever be the legitimacy of the marriage itself for the limited purpose of Section 498-A. The absence of a definition of “husband” to specifically include such persons who contract marriages ostensibly and cohabit with such woman, in the purported exercise of their role and status as “husband” is no ground to exclude them from the purview of 498-A IPC, Reema Aggarwal v. Anupam, (2004) 3 SCC 199.

Woman — Second wife

A Two-Judge Bench of the Supreme Court has held that even a second wife can file a complaint under Section 498-A. In this connection, following words of Arijit Pasayat, J. (talking in terms of Sections 498-A and 304-B IPC and Section 113-B Evidence Act, 1872) assumes importance:

“… The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent. …” (para 18, Reema Aggarwal v. Anupam, (2004) 3 SCC 199)

The abovesaid para was quoted with approval in A. Subash Babu v. State of A.P., (2011) 7 SCC 616 wherein the Supreme Court held that Section 498-A is attracted even in the case of allegation of cruelty to second wife.

Woman in a live-in relationship — Whether can file complaint under Section 498-A IPC

Kerala High Court, after considering various decisions of the Supreme Court has held that for an offence under Section 498-A to be committed, the parties must have undergone some sort of ceremonies with the object of getting married. In that case, the parties did not perform any ceremony and just started living together. It was held that a woman in a live-in relationship was not entitled to file a complaint under the section, Unnikrishnan v. State of Kerala,2017 SCC OnLine Ker 12064.

Cruelty and Harassment

Every harassment does not amount to “cruelty” within the meaning of Section 498-A. For the purpose of Section 498-A, harassment simpliciter is not “cruelty” and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand for property, etc. that it amounts to “cruelty” punishable under Section 498-A IPC, State of A.P. v. M. Madhusudhan Rao, (2008) 15 SCC 582.

Cruelty can either be mental or physical. It is difficult to straitjacket the term cruelty by means of a definition because cruelty is a relative term. What constitutes cruelty for one person may not constitute cruelty for another person, G.V. Siddaramesh v. State of Karnataka, (2010) 3 SCC 152.

The concept of cruelty and its effect varies from individual to individual, also depending upon the social and economic status to which such person belongs, Gananath Pattnaik v. State of Orissa, (2002) 2 SCC 619.

Relative of husband — Who is

In order to be covered under Section 498-A IPC one has to be a “relative” of the husband by blood, marriage or adoption, Vijeta Gajra v. State (NCT of Delhi), (2010) 11 SCC 618. 

A girlfriend or a concubine being not connected by blood or marriage is not a “relative” of the husband as per Section 498-A, U. Suvetha v. State, (2009) 6 SCC 757.

 Section 498-A — Proof of

Proof of the wilful conduct actuating the woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical, is the sine qua non for entering a finding of cruelty against the accused person, Gurcharan Singh v. State of Punjab, (2017) 1 SCC 433.

In a criminal trial, the charges made against the accused must be proved beyond all reasonable doubts. This requirement does not stand altered in case of Section 498-A IPC. Before recording a finding of guilt, the Court must satisfy itself that the deceased was not hypersensitive, State of W.B. v. Orilal Jaiswal, (1994) 1 SCC 73.

Section 498-A and “Dowry Demand”

Dowry demand is included in the “unlawful demand” as contemplated under Explanation (b) of Section 498-A; however, it need not be the only demand. The Supreme Court in Modinsab Kasimsab Kanchagar v. State of Karnataka, (2013) 4 SCC 551, held that a demand of Rs 10,000 towards repayment of a society loan, though not a dowry demand, was an unlawful demand sufficient to attract Section 498-A.    

Past events of cruelty included

Section 498-A includes in its amplitude past events of cruelty, Kaliyaperumal v. State of T.N., (2004) 9 SCC 157.

Section 498-A and presumption under Evidence Act

Section 113-A, Evidence Act mandates that when a woman commits suicide within seven years of her marriage and it is shown that her husband or any relative of her husband had subjected her to cruelty as per the terms defined in Section 498-A IPC, the court may presume that such suicide has been abetted by the husband or the relative, Pinakin Mahipatray Rawal v. State of Gujarat, (2013) 10 SCC 48.

Non-compoundable offence — Quashing of proceedings — Reduction of sentence

Section 498-A IPC is non-compoundable. Non-compoundable offences are those where the court cannot record the compromise between the parties and drop charges against the accused.

However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed by the High Court under Section 482 CrPC (inherent powers), even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape, etc.

In case a conviction have been recorded and sentence is awarded under Section 498-A, and if the Court feels that the parties have a real desire to bury the hatchet, in the interest of peace, it can reduce sentence of the accused to period of sentence already undergone, Manohar Singh v. State of M.P., (2014) 13 SCC 75

Section 498-A and Protection of Women from Domestic Violence Act, 2005

Even before a criminal court where a case under Section 498-A is pending, if allegation is found genuine, it is always open to the appellant to ask for reliefs under Sections 18 to 22 of the Domestic Violence Act and interim relief under Section 23 of the said Act, Juveria Abdul Majid Patni v. Atif Iqbal Mansoori, (2014) 10 SCC 736.

(Domestic Violence Act, 2005 provide for a remedy under the civil law which is intended to protect the women from being victims of domestic violence occurring within the family and to prevent the occurrence of domestic violence in the society. It makes provision for a protection order under Section 18, residence order under Section 19, monetary relief under Section 20, custody order under Section 21, compensation under Section 22 and interim relief under Section 23)

Misuse of the provision and its Constitutionality

Many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. By misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. However, a mere possibility of abuse of a legal provision does not invalidate it. Section 498-A is constitutional, Sushil Kumar Sharma v. Union of India, (2005) 6 SCC 281.

Directions of the Supreme Court

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) The Magistrate will authorise detention only after recording its satisfaction on the report furnished by the police officers.

(d) 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.

(e) 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.

(c) 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.

(d) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine.

(e) These directions will not apply in case of tangible physical injuries or death.

Further Suggested Reading

1. Surendra Malik and Sudeep Malik – Supreme Court on Penal Code Collection [Buy Here]
2. Surendra Malik and Sudeep Malik – Supreme Court on Marriage & Divorce, Cruelty/Dowry Death, Custody, Adoption & Maintenance (In 2 Volumes) [Buy Here]
3. Mamta Roy – Law relating to Women & Children [Buy Here]

——————————-

† Assistant Editor (Legal), EBC Publishing Pvt. Ltd.