EXPLOITATION WITHIN THE FOUR WALLS – SECTION 498-A OF INDIAN PENAL CODE

THIS ARTICLE WAS WRITTEN BY ISHAA AJAY, A STUDENT AT SASTRA UNIVERSITY.

INTRODUCTION

Domestic violence is very rampant in India with not only husband but the in-laws taking an active part in harassing the married women. Violence against women can be attached to a number of kinds, such as physical, psychological and sexual violence arising in the family, including sexual abuse of children, dowry-related violence, marital rape, female genital mutilation and other non-spousal violence and violence related to exploitation. Though marriage is a voluntary union of man and woman, it is a social institution where man has the responsibility to take the utmost care to fulfil certain obligations to his wife. The fundamental reason for familiarising section 498A with the Indian Penal Code was to safeguard women from marital harshness. This section was embedded in the penal code by the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) and by same Act section 113A was presented under the Indian Evidence Act to raise assumption with respect to abetment of suicide by married women. Nevertheless, the Hon’ble Supreme Court and various other High courts have found falsely documented cases being reported against their husbands and his relatives in order to pester the spouse and thus the Section 498A was being maltreated[1].

DEFINITION

1. CRUELTY

Before getting into the meaning and implication of Section 498A, one should be familiarised with the term ‘Cruelty’. The Supreme Court has given a new aspect to the concept of cruelty. It states that any wilful act which drives a woman to commit suicide or causes grievous injury to life with a view of coercing her for satisfying any unlawful demand would amount to ‘Cruelty’[2]. In State of Karnataka v. H.S. Srinivas[3], the Hon’ble court held that the articulation pitilessness theorises such treatment as to cause sensible fear in the mind of the spouse that her living with the husband will be unsafe and harmful to her.It comprises, imposing physical or mental pain/harm to the body as well as the health of the women and indulging in acts of harassment with a view to meet any sort of unlawful demands for money or any property. Dowry harassment also falls within the ambit of the term and so does driving the women to commit suicide, which is an ingredient for ‘Cruelty’.

2. SECTION 498A

The section enunciates the fact that if any person, being the husband or the relative of the husband subjects the wife to cruelty, he shall be punished with imprisonment for a term of 3 years and fine[4].This was further supported by Section 304B of Indian Penal Code where a woman had committed suicide within 7 years of her marriage or died in circumstances raising a reasonable suspicion that some other person has committed an offence, provisions were being made for an inquest by Executive Magistrates.

 Further, Section 113B of the Indian Evidence Act, 1872 was also amended to provide that in cases where the woman had committed suicide within 7 years of marriage and it is shown that her husband or any other relative of her husband had subjected her to cruelty, then the Court may presume that such suicide was abetted by her husband or such relative of the husband.

The 8 different kinds[5]of cruelty covered under this section are:

1. Cruelty by vexatious suit
2. Cruelty by hardship and inefficient propensities
3. Calling spouse desolate lady
4. Cruelty by persevering interest
5. Cruelty by additional conjugal connection
6. Harassment and plural marriage
7. Cruelty by a renunciation of infant young lady
8. Cruelty by a false assault on the purity

Also, in A. SubashBabu v. State of A.P[6], the Supreme Court held that cruelty against the second wife also attracts Section 498A.

Also a presumption as to cruelty also arises withinthe Section 113-A of the Evidence Act, 1872 which makes the husband guilty of abetment to suicide within the ambit of Section 306 where the husband has an illicit relationship with another woman and used to beat his wife which makes it persistent cruelty under Section 498A explanation (a).

STATUOTARY ARRANGEMENTS OF CRUELTY UNDER VARIOUS INDIVIDUAL LAWS.

HINDU LAW

Under The Hindu Marriage Act, 1955 cruelty is being made a ground for separation and for legal partition. Under Section 10(1) (b), either of the party can opt for Judicial Separation, on the ground that the other party has treated the petitioner with such cruelty as to cause a reasonable fear in the mind of the petitioner that it will be injurious for the petitioner to live with the other party. Section 13(1)(i-a) of the Act also gives rise to the presentation of dissolving the marriage by a decree of divorce on the ground of cruelty[7].

PARSI LAW                                                                                               

Under the Parsi Marriage and Divorce Act, 1936 preceding 1988, cruelty was a ground for legal partition, and cruelty was clarified in that capacity conduct “as to render it in the judgment of the court uncalled for to force him or her to live with the respondent”.

CHRISTIAN LAW

 The Indian Divorce Act, 1869, priorto its change in 2001, stated that a spouse was allowed to look for separation when the husband was liable for the conduct of cruelty with infidelity. But now, after the change in the year 2001, the reason for marital help has been carried at standard with that of the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.

MUSLIM LAW

 Under the Dissolution of Muslim Marriages Act 1939, cruelty is indicated as one of the grounds to get separate from a marital relationship.

ABUSE OF SECTION 498A

One of the most prominent allegations found in the laws relating to women is the misuse of it. Thus Section 498A Indian Penal Code, 1860 at times said to be ‘sexual orientation biased law[8]. In the case of Savitri Devi v. Ramesh Chand &Ors[9]thecourt held that there was a clear cut misuse and exploitation of the provisions, to the extent that it was striking the foundation of marriage. The Court thus alleged that the law-making authorities had to review the situation and make appropriate legal provisions to prevent such activity.

Women should not ignore the rights of their male counterparts while seeking justice. Section 498 A of the Indian Penal Code 1860 should be used as a shield and not a lethal weapon to exploit the situation.

CONSTITUTIONAL VALIDITY – SECTION 498A

In the case of Inder Raj Malik and others vs. Mrs.Sumita Malik[10]it was contended that Section 498A was anultra-virus of Article 14 and Article 20(2) of the Indian Constitution. It was opposed that since there is the Dowry Prohibition Act which also deals with similar types of cases both statutes together create a situation commonly known as double jeopardy. But the Delhi High Court held that “a person can be convicted both under Section 4 of the Dowry Prohibition act as well as under Section 498 A of IPC as it does not create any situation of double jeopardy as defined under Article 20(1) of the Constitution”. Section 498A and Section 4 of the Dowry Prohibition Act are distinguishable, as in the latter mere demand for dowry is punishable and the existence of cruelty is not necessary but in the former case, it punishes such demands of property from wife which are coupled with cruelty. This Section thus gives a wide discretion to interpret the words and in the matter of awarding punishments. The provision thus is not ultra-virus and is right within the constitution.

CONCLUSION & SUGGESTIONS

Section 498A is a highly debatable issue nowadays. Though it’s a boon for the society if the problem is not solved by the authorities in a proper and precise manner it may turnto be a bane. Numerous women who truly require security from Domestic Violence will most likely never think about it and regardless of whether they do, never utilize it. But if misused, this law will be a weapon in the hands of deceitful women who will abuse it at the smallest opportunity.

Certain suggestions ought to be made in order to curb the menace of misuse such as:

1. Making the offence non-bailable would curtail the harassment towards innocent parents, husband, and relatives.
2. The definition of “cruelty” should be elaborated inorder to remove loopholes to avoid further misuse.
3. Those who encourage dowry should be booked and meted out exemplary punishment to serve as a lesson to others.
4. India being a democratic country, each and every citizen has equal rights and responsibilities irrespective of gender. Thus there should be similar laws for husbands who are harassed from their dishonest wife.
5. It will better if children are taught right from their childhood to respect the other gender. Only then a change for a better society may happen.

The problem of cruelty against wife has been existing since time immemorial and will remain to exist as long as there are couples. Though laws have been introduced and enforced, it has not been able to achieve the desired goals.

[1] 1 RATANLAL & DHIRAJLAL, THE INDIAN PENAL CODE 1117 (LexisNexis, 34th ed.)

[2] (1988) S.C.R.(1) 1010.

[3] (1996) Cr LJ 3103.

[4] Section 498A, Indian Penal Code

[5]VASUNDHARA, Use And Misuse of Section 498A, LEGAL SERVICE INDIA, http://www.legalserviceindia.com/legal/article-652-use-and-misuse-of-section-498a.html.

[6](2011) 7 S.C.C. 616.

[7]PROF. KAMLESH M. PANDYA, The Concept of Cruelty in Hindu Marriage Act in India, 3. IJR Paripex (2014).

[8] S.R. Subaashini&M. Kannappan, A Study on Cruelty against Married Women and Legal Framework in India (Section 498(a)), Volume 119. IJPAM (2018).

[9]2003 Cr. L.J. (2759).

[10] 1986 CriLJ 1510.