498A Abuse / Legal Terrorism
Written by Karandeep Kaur
It is a common perception (through the media hype about women’s torture and anti-patriarchal propaganda) that only men are the torturer and women are victims, which is also quite evident from the average physical strength of the duo. The legal torture of men is not an issue of physical strength or abusive behaviour of one party, it is an issue of a legal system, which is designed to do injustice and hand-over powerful tools of torture in the hands of one-section of the society. The system is indeed eradicating evils from society but at the same time there is such a huge proportion of innocent individuals who are ground in the system, which is crumbling the not so bad patriarchy as it is portrayed through media.
Today, there is a growing tendency to convert every marital dispute into a criminal offense of cruelty or dowry harassment. Instead of using family courts, men are dragged to police stations or crime against women cells. When a marriage breaks, there will be pain and a lot of tears for both men and women. These side effects of marriage dispute must not be considered as crime against women.
The duty of Indian police is to fight crime. It is not their duty to work as agents of women to issue threats of arrest, jailing or seizure of passports to facilitate exorbitant alimonies. At a time, when gay sex and premarital sex is considered legal by Government, it is unfortunate if all marital disputes are considered as crime against women by men and instead of solving these disputes in Family Courts, police threats and draconian laws are used to force out of court
THIS IS SAME AS LEGALIZING EXTORTION BY TRAMPLING THE VERY PROCESS OF JUSTICE.
Indian Supreme Court warned of legal terrorism due to misuse of section 498A and said, “The role of the investigating agencies and courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations.”
LEGAL ANALYSIS: INDIAN PENAL CODE
SECTION 498A OF INDIAN PENAL CODE was introduced by Criminal Law (Second Amendment) Act of 1983. This section reflects the anxiety to extend protection to the weaker spouse. Section 498A speaks about;
“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”.
For the purpose of this section, “Cruelty” means- (a) Any willful 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 physical or mental) 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 lawful 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.
This law is unique to India, it not only discriminates based on gender (man vs. woman), but also discriminates against women based on their relationship with the husband.
Typically, the charged family members in these cases include:
• Mostly women of all ages (unmarried, married sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)
• Other maternal and paternal relatives and even young children in the family.
For every complaint filed by a woman, there are at least twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.
The torture to men comes from the draconian provisions and presumptions of Indian law against the natural principles of justice, in pursuit of quick questionable justice to woman, with the predisposition against husband and his family. The definitions of act constituting crime in matrimonial matters are extremely vague and the procedures are attempts to make justice before court’s verdict. The domestic violence law goes further one step, in allowing the conviction of the man only on wife’s testimony. A man who is caught with an unscrupulous wife, which is more often than not the case, is doomed for life. He constantly lives under terror in house as his liberty financial, social and physical is completely at the behest of a woman.
For example, Section 498A where a woman has only caused minor hurt to “a man” is a bailable offence, but if man causes the same hurt to a woman who happens to be “a wife”, it is a non-bailable offence. Thus the legal position is that a man causing the hurt to a wife is liable to be imprisoned immediately, but a wife committing the same has to undergo trial and is free in society. Thus man is punished before the Court’s verdict.
Characteristics of Section 498A, Indian Penal Code.
• Cognizable – The accused can be arrested and jailed without warrant or investigation
• Non-Compoundable – The complaint cannot be withdrawn by the petitioner (chances of living together again are lost)
• Non-Bailable – The accused must appear in the court to request bail
The WHO report says that daughter-in-laws routinely abuse elders using the stringent anti-dowry laws.
“In India, there is a law that is intended to protect daughters-in-law from abusive in-laws. A daughter-in-law can go to the police station and lay a complaint that she is being abused by her in-laws, and the in-laws are arrested on her word alone. However, the focus group participants reported that some daughters-in-law are using this law as a form of elder abuse, by making false police reports. In general, participants stressed that the lack of a caring attitude by daughter-in-law was a major problem. (India)”.
Men, who do not succumb to the blackmail and extortion, often get jailed along with their parents, brothers and sisters. On a single complaint of the wife, the husband and his entire family can be packed off to behind the bars, with an estimated 40,000 such accusations per year and an average of 5 members of the husband’s family implicated in each of these 498-A cases, about 200,000/- people are directly affected by these cases. In 2008, 37,000 women and about 140,000 men were jailed under section 498A. Often, additional sections of IPC were put on them later to force them into exorbitant out of court settlements.
Wife usually uses provisions of 498A in the hope of enhancing her bargaining position against her husband and in-laws. In most cases of settlement, wife withdraws her complain u/s 498a and gives divorce after getting a huge amount. So the laws are misused for extortion of husbands with the involvement of women organisations, police and lawyers. Such instances have been increasing and the Supreme Court has identified them as “Legal Terrorism”. In such cases, the Lie-Detector Tests such as Brain Mapping Test and Narco-Analysis test should be used to get to the truth of the story. After seeing the plight of increasing number of harassed husbands and their family members, a Public Interest Litigation (PIL) DBCW Petition No.- 2825/05 ARJUN LAL VS STATE OF RAJASTHAN, was filed at Rajasthan High Court, Jaipur bench for demanding such facilities for lie-detector tests by police and state authorities which is currently under consideration. As earlier Yasmin Hazarika, for long in charge of the Crime against Women Cell (CWC) once said “We need safeguards. A massive, thorough inquiry is absolutely essential before a case is registered”. So the centers like CWC should be asked for cases where they conducted thorough inquiry, and found out that cases were wrongly fabricated.
Hon’ble Supreme Court and various High Courts have time & amp; again showed concern over this growing menace by observing that “By misuse of the provision (IPC 498A – Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon… says the Hon’ble Supreme Court. Merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta.
The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon’ble Court in BALBIR SINGH VS. THE STATE OF PUNJAB observed:
“Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS.”
Justice J.D. Kapoor (Delhi High Court) said in his order passed on 30th May, 2003
“I feel constrained to comment upon the misuse of the provisions
(of law) to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.”“There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband”.
In JASBIR KAUR VS. STATE OF HARYANA : the Punjab & Haryana high Court rightly observed that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains on an estranged marriage.
In KANRAJ VS. STATE OF PUNJAB the Hon’ble Apex Court observed:
“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
Karnataka High Court, in the case of STATE VS. SRIKANTH observed “Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”
The Hon’ble Supreme Court, in MOHD. HOSHAN VS. STATE OF A.P., observed “Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
Delhi high Court, in SAVITRI DEVI VS. RAMESH CHAND, categorically stated “These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grandparents or as many as 10 o 15 or even more relatives of the husband.”
Punjab and Haryana High Court, in BHUPINDER KAUR AND OTHERS VS. STATE OF PUNJAB AND OTHERS, held:“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”
The Hon’ble Supreme Court, in a relatively recent case, SUSHIL KUMAR SHARMA VS. UNION OF INDIA AND OTHERS
“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that many instances have come to light where the complaints are not bonafide 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. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. 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. Till then the Courts have to take care of the situation within the existing frame work.
But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin’s weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view.”
The latest addition in a women’s legal artillery is The Protection of Women from Domestic Violence Act – This law is absolutely pro-women and anti-men, this law assumes every man as a virtual torturer” and considers only women as victims. This law is highly vague, and speaks of verbal/economical & emotional abuse, which are impossible to quantify & ascertain. Many husbands and their family members, falsely implicated in these cases have committed suicide after being jailed, unable to bear the social trauma.
Nearly 44.7% of the suicide victims were married males while only 25% were married females. This clearly shows the ratio of victims of domestic violence and gender abuse.
ANTI DOWRY LAWS enacted for providing protection to innocent victim girls who are really harassed, tortured and killed for dowry, in majority of the cases the law is being used for ulterior motives to grab the hard earned money and property of the husbands and in-laws. Lacs of women i.e. the mothers in law, sisters in law, have been consumed by the Dowry Laws & lacs had been arrested and have been facing criminal cases throughout the country since the amendment of IPC and Indian Evidence Act. And lacs have escaped themselves by paying lacs and crores of rupees & properties to the estranged wives Aided, abetted, & protected by the Law, police & the Courts.
Most of the 498A cases result in payment of high amount of alimony to woman and withdrawal of the cases. Because the woman is not interested in jailing her husband as there is hardly anything that can be achieved from it and husband is already enough frustrated by the imprisonment, dealing with police and long-drawn trial, in which his parents and younger siblings are also implicated. The husband wants to get out of the trouble by hook or crook. The example of the trauma can be witnessed in Crime against women cell, where men are regularly threatened and made to mend their ways. A day’s anonymous visit in such cell will easily show many men, elders and younger ones being abused by legal machinery at the behest of women.
Maintenance is another such form of injustice. Maintenance is payable to woman, without prejudice to who is at fault in the matrimonial tiff. Indian law has created provision for livelihood of women at the expense of other person. The alimony is also supposed to be paid according to the status of the man. A woman is supposed to be part of the work force, and need not be pampered like a child for whole life. Instead the law has created provision for free lavish life for women, encouraging the women to live at the expense of man. The law means that the richer the man you marry the better will be the alimony. Instead the alimony should be granted considering the amount required for woman to stand on her own feet again, lead a secure life and cover any damages to her earning capacity also considering the behaviour of the woman and the devotion of the woman to the family life and the same relief must be also available to man. There is absolutely no need for making a man part with his hard earned property. The form of alimony law allowed for women should only be allowed for children. Marriage is not license to be parasite on man for woman.
The accused under dowry laws crime are rapidly increasing in jails across India. They are kept with hard-core criminals that severely impact their personality and thinking. Study should be undertaken in all jails about these prisoners who are prosecuted under dowry related laws. Our laws with loopholes encourage the wrong complaints by wives, as there is no such counter check available to investigate the reality of any such crime informed by wife. In most cases, wife file false FIR under the pressure of her parents who think that police case will weaken their son-in-law, ‘damaad’ mentally so he and his family would agree to their demands, be it related to money, property or family related issues.
The stringency of laws is so severe that it absolutely blocks any access to wife by husband, as he fears cases fabricated against him, which will immediately lead to his and his family’s arrest. The presumptions are also such that once the wife has left home, the husband fears that untimely death of the wife will land him in a murder trial and moreover union with the wife, will result in more legal torture. In such a legal system created by Indian government, divorce is usually the best solution for him, despite the short-term jail and severe financial loss as it is at least a short time torture, instead of continuous life-long one.
The opportunities to grab property are increasingly luring women, to seek divorce, which is made even easier, by the extra-ordinarily stringent laws. Mischievous parents fall for the huge benefit with little disgrace now associated with divorce. A man under divorce proceeding is thrown out of his own house, made to part with his past earnings, made incapable of retaining any money he earns in future, has to see his parents and siblings fall in jail, driven away from his children and moreover ridiculed and berated by society and feminises say “HE” is the torturer!
Surprisingly the INDIAN CONSTITUTION DOES NOT ALLOW FOR CRIMINAL PROSECUTION OF ONE GENDER AGAINST ANOTHER. The article 15(3) of constitution reads as
15(3) Nothing in this article shall prevent the state from making any special provision for women and children.
Must be read with article (44)
(44) The State shall endeavour to secure for the citizens a uniform “civil” code throughout the territory of India.
Article 44 maintains that discrimination is allowed in the drafted laws by the parliament, in “civil laws”, to give social, economical and political advantage on the criterion mentioned in sub-articles of article 15.
All crimes including rape, sexual assault, cruelty and domestic violence can be committed by women. The criminal tendencies of feminine gender will be quite clear, by looking at the No. of cases registered against females which is staggering 151675 in year 2003. There is no wonder that so many men are crying about legal torture in India.
Undoubtedly, damage has been done which cannot be undone. Therefore, to conclude I would like to say that its time the courts in India pierced the legal veil thereby taking every case of misuse to task and keenly taking interest in its redressal. The worth of any legal system to the society or civilisation is the way it is used and definitely, not the way it is ‘misused’. It is imperative we take concrete steps in establishing a foolproof legal system by sifting the chaff from the grain so that no accused is, in reality, the ‘victim’ held in the clutches of law.
However, due to the emerging and novel forms of evidence taking, an improvement in the form of efficiency can be expected from the judiciary, prosecution and the police, the three building blocks of the justice delivery system. By the misuse of the legal provisions, a new legal terrorism has unleashed. The provision is intended to be used as a shield and not as an assassin’s weapon. If cry of “wolf” is made too often as a prank, assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with such ridiculous allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot lose sight of its ultimate objective, that is, punish the guilty and protect the innocent.
Act came into force with effect from 25th December 1983
Document no. WHO/NMH/VIP/02.1, WHO/NMH/NPH/02.2 Title Missing Voices
Statistic given by Public Relations Officer ,Save Indian Family Foundation, Bangalore
1987 (1) CRIMES – 76
(1990)2 Rec Cri R 243
2000 CriLJ 2993
2002 CriLJ 3605
2002 CriLJ 4124
2003 CriLJ 2759
2003 CriLJ 3394
JT 2005(6) 266
NCRB Table 12.4