Family Law- III Semester

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

TOPIC

SECTION 498A OF IPC- MISCONCWPTION OF ITS MISUSE

2017-2018

FAMILY LAW- I

SUBMITTED TO: SUBMITTED BY:

Mrs. Samreen Hussain Alok Bhardwaj (23)

Assistant Professor (LAW) SECTION- A

RMLNLU, Lucknow B.A. L.L.B. (HONS.)

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Family Law- III Semester

Declaration

I hereby declare that the project work entitled “SECTION 498A OF IPC-
MISCONCWPTION OF ITS MISUSE” submitted in Dr. Ram Manohar Lohiya National Law
University, is a record of the work done by me with the assistance of my seniors and under
the guidance of Mrs. Samreen Hussain (Assistant Professor) and this project work has not been
submitted anywhere else for any of the purposes and is exclusively given to you.

 Alok Bhardwaj

 Roll no. 23

 3rd Semester

 B.A.LL.B (Hons.)

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Family Law- III Semester

Acknowledgement

I would like to extend my sincere thanks to all those who helped me in this topic of research. I
extend my sincere acknowledgements to my teacher and mentor Mrs. SAMREEN HUSSAIN
Ma’am who gave me this wonderful opportunity to make a project on “SECTION 498A OF
IPC- MISCONCWPTION OF ITS MISUSE”. I am deeply indebted to her helping me with
her able guidance and advice in choosing this particular topic.

I further extend my thanks to Vice Chancellor, Dr. GURDEEP SINGH Sir and Dean
(Academics), Professor C.M. JARIWALA for their encouragement and enthusiasm, my seniors

for sharing their valuable tips, and my classmates for their constant support.

 Alok Bhardwaj

 3rd Semester

 B.A.LL.B (Hons.)

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Family Law- III Semester

Table of Contents
INTRODUCTION ....................................................................................................................... 5

CHALLENGES METED OUT TO SEC.498A OF IPC SINCE ITS INSERTION IN PENAL

CODE .......................................................................................................................................... 8

RELIABLE DATA SHOWING NO MISUSE OF PROVISION ............................................. 11

A WRONG INTERPRETATION BY JUDICIARY AND OTHER INSTITUTIONS ............ 15

APPROACH OF SUPREME COURT IN RAJESH SHARMA & ORS. V. STATE OF

UTTAR PRADESH AND LOOPHOLES IN DIRECTIONS .................................................. 17

CONCLUSION ......................................................................................................................... 19

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Family Law- III Semester

INTRODUCTION

Marriage is an important social institution in Indian society since time immemorial, but sadly it
has been somewhere biased against women because it is the bride who is supposed to serve her
husband and parent-in-laws not the male counterpart.1 Also it is the woman who is supposed to
act as glue to keep the family intact and if she complains about something, then the existence of
institution of family will be endangered.2 It is not incorrect to say that women have been
subjected to cruelty, harassment, and torture of both mental and physical nature within the four
walls of marital home and outside of it since time immemorial because of archaic social structure
where patriarchy ruled the roost and because of male chauvinism that is prevalent in society.3

India got its independence in 1947 and adopted the Constitution, the supreme law of the land, in
1950, which remains in the force till today. Fundamental rights (art.12- art.35) which are given
under part-III of the Constitution are of much importance. Under Art.21, right to life and
personal liberty is given which has been interpreted as right to live life with dignity and free
from violence and under Art.15, Parliament is empowered to take affirmative measures for
women.4 Complying with the same and with the headway and advance of society and with
women's movement picking up energy against the rigid patriarchy, it was felt that sufferings of
the women should be mitigated by providing more rights to them, and make them free from the
shackles of savagery and social fetters and therefore, a number of legislations and provisions
both civil and penal in nature were introduced to curb the practice of dowry and to place women
on an equal footing along with their male counterparts and make them able to divorce her

1
Richa Mishra, Section 498A IPC, Legal Service India, (Sept.13, 2017, 4:50 PM),
http://www.legalserviceindia.com/article/l336-Section-498-IPC.html.
2
Sharmila Lodhia, Legal Frankensteins and Monstrous Women: Judicial Narratives of the "Family in Crisis",
9 Meridians 102, 120(2009).
3
Saurabh Sinha, Matrimonial cruelty: Need for a Relook, 57 P.L. 58, 58 (2012).
4
Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach to
Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 338-339 (2012).

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Family Law- III Semester

husband, to obtain maintenance, to protect themselves against violence within matrimonial home
or outside of it etc.5

During 1980s, there were cases of unnatural brides’ death on large scale in the society which
were termed as “stove bursts” or “kitchen accidents” with no further investigation. Further,
investigation on the behest of women’s parents and women organization led that these deaths
were not accidents but intentional murder by their in-laws because of unlawful dowry demands
or for similar reasons.6 Therefore, organizations across the nation pressurized the government to
enact such legislation that could protect women from cruelty and harassment, which is meted out
to them in their matrimonial homes. The objective behind this agitation was to enable the
establishments of state to intercede and keep the homicides of young wives who were not able to
meet the demands of dowry by their in-laws.7 With this object in mind, Indian Penal Code, 1860
was amended in 1983 by GOI through the Criminal Law (Second Amendment) Act, 1983 by
inserting a new provision under IPC i.e. Section 498A of IPC. The purpose behind inserting this
provision was clear by the Statement of Objects and Reasons of the amendment that stated “the
increasing number of dowry deaths is matter of serious concern. The extent of the evil has been
commented upon by the joint committee of the houses to examine the working of the Dowry
Prohibition Act, 1961. Cases of the cruelty by the husband and relatives of the husband which
culminate in the suicide by, or murder of, the helpless woman concerned, constitute only a small
fraction of the cases involving such cruelty. It is therefore proposed, to amend Indian Penal
Code, Code of Criminal Procedure and the Indian Evidence Act suitably to deal effectively not
only with dowry deaths but also cases of cruelty to women by their in-laws.”8

S.498A of IPC deals with offences of cruelty meted out to women in their matrimonial homes.
Under this section, if any willful conduct by husband or his relatives is of such nature as is likely
to drive woman to commit suicide or to cause any grave mental or physical injury or danger to
life, limb or health or harassment of the woman with a view to forcing her or any relative of her
to take care of any unlawful demand for any property or important security or is because of

5
Saurabh Sinha, Matrimonial cruelty: Need for a Relook, 57 P.L. 58, 58-59 (2012).
6
Indira Jaisingh, Concern for the dead, Condemnation for the living, E.P.W., July 26 2014, at 34, 34.
7
Ramanuj, Understanding Section 498A of Indian Penal Code, on Domestic Violence, ipleaders, (Sept. 17, 2017,
10:25PM), https://blog.ipleaders.in/understand-section-498a-domestic-violence.
8
The Criminal Law (Second Amendment) Act, 1983, No.46, Acts of Parliament, 1992.

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Family Law- III Semester

disappointment by her or any relative of her to take care of such demand is punished with three
years of imprisonment and also liable to fine. This provision is non-bailable, non-compoundable
and cognizable.9 For the purpose of this provision, the term ‘relative of husband’ includes a
person related to husband by blood, marriage or adoption.10

However, in last two decades, a misconception regarding this provision has become visible in the
patriarchal society where people have started thinking that this provision is misused on large
scale by women to harass their in-laws. Even cognizance of such alleged misuse has been taken
by judiciary from time to time. Several reports decried this provision on the basis of its alleged
misuse. However these studies, reports and judgments didn’t provide any reliable data or
empirical study to demonstrate such alleged misuse.11 The recent judgment in this series is
12
Rajesh Sharma & Ors. v. State of Uttar Pradesh & Anr, and it seems to convey that
violence/cruelty inflicted upon women is nothing but figment of their imagination and further
conveys that they are irrational beings. Without weighing the implications of their actions, they
file false cases in the heat of the movement, to harass their in-laws.13 Supreme Court under this
judgment issued certain guidelines to curb the alleged misuse of the provision which can make
this important provision ineffective and it will cease to be a deterrent against wrongdoers.
In the World Economic Forum’s Global Gender Gap Report 2016, India’s evaluating in the
category “health and survival” is grim. It positions second from the base amongst 144 countries.
This category deals with the issue of violence against women. The positioning makes India one
of the worst countries for women in the world.14 This ranking renders statements by judiciary or
by studies invalid regarding the misuse of section 498A of IPC and raises a question against
actions of government to not to improve the condition of women in society.
In this paper, author will put the reliable data showing no misuse of the provision and will show
that this is just a misconception and will also point out loopholes in the directions given in the

9
Indian Penal Code, 1860, No.45, Acts of Parliament, 1860.
10
State of Punjab v. Gurmit Singh, (2014) 9 S.C.C. 632.
11
Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 1.3.
12
Rajesh Sharma &Ors v. State of UP & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of S.L.P. (Cr.l)
No. 2013 of 2017.
13
Flavia Agnes, Supreme Court’s judgment Ignores Lived Reality of Married Women, E.P.W., Sept. 9 2017, at 16,
16.
14
Flavia Agnes, Supreme Court’s judgment Ignores Lived Reality of Married Women, E.P.W., Sept. 9 2017, at 16,
17.

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Family Law- III Semester

recent judgment of SC, which can make this provision weak and ineffective and thus it can’t
impart justice in true sense.

CHALLENGES METED OUT TO SEC.498A OF IPC SINCE ITS

INSERTION IN PENAL CODE

Crimes related to dowry have been common in the traditional Indian families for quite a while
and terrible appearances of dowry and cruelty related crimes against women have been coming
up on numerous occasions in their matrimonial homes. Matrimonial cruelty and domestic
violence is a serious offence which is reliably expanding. 37% of women have encountered some
sort of mental or emotional, physical or sexual cruelty in their marital homes, and 40% - 50%
instances of cruelty and violence against them go unreported or unregistered because a woman
does not want to shatter her family by registering case against her in-laws; she approaches to
polices only after suffering protracted torture and harassment in her marital home, however
underreporting can also be attributed to other reasons too. This report was given by National
Family Survey of India.15
However, the s.498A of IPC has been encountering with several challenges since its insertion in
penal code, based upon constitutionality and misuse of the provision etc. It was introduced to
protect women from matrimonial cruelty.16 But in the case of Harvinder Kaur v. Harmander
Singh,17 Delhi HC held that “introduction of Constitutional Law in the home is the most
inappropriate. It is like introducing a bull in a china shop. ... In the privacy of the home and the
married life neither Art 21 nor Art 14 have any place". This judgment completely decried the
insertion of this provision on the basis of fundamental principles of the constitution.
After three years of insertion of s.498A in the landmark judgment of Delhi HC in Inder Raj
Malik v. Sunita Malik,18 the constitutionality of the provision was challenged on the following
two grounds:

15
Rajya Sabha Committee on Petitions, Petition Praying for Amendments in Section 498A of Indian Penal Code,
1860 (Rajya Sabha Committee on Petitions, 2011) para 3.1-3.2.
16
Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach
to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 352-354 (2012).
17
Harvinder Kaur v. Harmander Singh, A.I.R. 1984 Delhi 66.
18
Inder Raj Malik v. Sunita Malik, 1986 S.C.C. OnLine Del 39.

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Family Law- III Semester

(a) That it gives arbitrary power to the courts as well as to police hereby offending art.14 of
the constitution as the word ‘cruelty’ and ‘harassment’ were vague and based upon
discretion.
(b) It is against the principle of double jeopardy as now demand of dowry is punishable
under s.498A of IPC and under s.4 of Dowry Prohibition Act, 1961 too.
However, Court explicitly dismissed second ground and also said that there is no arbitrary power
given to police as well as Court as word ‘cruelty’ as well as ‘harassment’ are well defined and
their import are well known and the provision is not in conflict with art.14 of the constitution.
After passing its constitutionality test, this provision has been encountering a new threat to its
existence and it is regarding the misuse of the provision by ‘disgruntled wives’ to harass their
husbands and in-laws as the provision is non-bailable, cognizable and non- compoundable.19
Delhi H.C. in Savitri Devi v. Ramesh Chand,20 accepted the misconception regarding misuse of
the provision and said that “it feel constrained to comment upon the misuse of the provision of
Section 498A/406 IPC 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. To leave such a ticklish and
complex aspect of proposition as to what constitutes ‘marital cruelty’ and ‘harassment’ to invoke
the offences punishable under sections 498A/406 IPC to a lower functionaries of police whereas
sometimes even Courts find it difficult to come to the safer conclusion is to give the tools in the
hands of bad and unskilled masters.”
Further SC in Preeti Gupta v. State of Jharkhnd,21 held that “the s.498A of IPC is misused and
the complaints are filed in the heat of the moment over trivial issues without proper
deliberations.”
However in the case of Chandrabhan v. State,22 Delhi H.C. issued some guidelines for making a
procedure of how to arrest accused persons and made s.498A practically bailable because of
various restrictions and qualifications prescribed by the HC. In the case of Tr Ramaiah v. State,23
Madras H.C. practically restricted arrest of the accused, contrary to the cognizable nature of
provision as decision said that arrest can only be made after filing of the final report before the
Magistrate and on the premise of non-bailable warrant issued by the him/her.

19
Arnesh Kumar v. State of Bihar, (2014) 8 S.C.C. 273.
20
Savitri Devi v. Ramesh Chand, 2003 S.C.C. OnLine Del. 483.
21
Preeti Gupta v. State of Jharkhnd, (2010) 7 S.C.C. 667.
22
Chandrabhan v. State, (2008) Bail Application No. 1627/2008.
23
Tr Ramaiah v. State, (2008) MP No 1/2008 in Crl. O. P. No. 10896/2008.

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Family Law- III Semester

Also various studies, commissions recommended some amendments in this provision to curb the
alleged misuse. Law commission in its 237th report said that this provision should be made
compoundable to curb its misuse and the Malimath Committee has pointed out flaws in the
implementation of this provision and recommended some amendments in IPC to make offence
bailable, compoundable.24
The opponents of this provision argue that this law violates men’s right to equality as it is not
gender neutral and only women can file complaints under this provision, and showing husband
and his relatives as vulnerable group instead of woman.25
However, 243rd report of law commission stated that many cases of matrimonial cruelty go
unreported and extent of misuse that is alleged is not established by reliable data or studies and
various other reports that allege such misuse do not rely upon any reliable data.26 Also, according
to Amnesty International, Malimath Committee didn’t provide any data to show how frequently
this provision is misused and suggested that committee’s observation was based upon rumor
rather that empirical research.27
Moving to the bone of contention i.e. judgment of Rajesh Sharma & Ors. v. State of Uttar
Pradesh & Anr.,28 in which SC accepted the alleged misuse of s.498A of IPC and issued certain
guidelines to curb misuse of the provision which can render it ineffective. To establish the
misuse, SC relied upon precedents and some reports that are mentioned in this paper too and data
given by NCRB in 2005, 2009, 2012 and 2013. Court’s justification in issuing the guidelines is
that a few cases were pronounced false by virtue of mistake of fact or law (NCRB-2005, 2009)
and higher rate of arrest and filing of charge sheet and lower rate of conviction (NCRB-2012,
2013). The contention of the author is that Court didn’t go in depth of the matter and just
reiterated what was said in the past. SC didn’t take pain to inquire into the reasons behind higher
rate of arrest and charge sheet and lower rate of convictions in cases related to matrimonial

24
Law Commission, Compounding of (IPC) offences (Law Com No 237, 2011) Para 6.4: Committee on Reforms of
Criminal Justice System (Committee on Reforms of Criminal Justice System, 2003).
25
Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach
to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 353 (2012).
26
Law Commission, Section 498A of IPC (Law Com No 243, 2012) Para 1.3.
27
Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach
to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 358 (2012).
28
Rajesh Sharma &Ors. v. State of U.P. & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of S.L.P.
(Crl.) No. 2013 of 2017.

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Family Law- III Semester

cruelty. It also didn’t explore other remedies to curb, if any, misuse of this provision that are
already exist under CrPC and IPC and just took away element of deterrence from this provision.
However, through these judicial pronouncements and reports, we have begun to witness the
transformation of an anti-cruelty statute for women to instrument of family destruction, tool for
harassment of in-laws, a veritable “legal terrorism” that is held out by Indian judges as far worse
that the original ailment it was designed to remedy. Also a particular kind of female subjectivity
can be read in these judicial narratives, one that comes into direct conflict with the patriarchal
legal culture that characterizes the Indian legal system. What emerges from these discourses is
that educated and career-minded woman who fails to maintain the sanctity of the family and the
institution of marriage by asserting her right to live a life free of violence must therefore be
construed as undeserving of the law's protection. Reading these decisions as a kind of cultural
narrative, we find evidence of the belief that the institution of marriage is under attack, and the
familial order undermined, when women seek the intervention of the law to address violence
within the home.29

RELIABLE DATA SHOWING NO MISUSE OF PROVISION

There are some studies, reports which can explain the true status of women in Indian society and
can make the observation of various judgments and studies invalid.
International Center for Research on Women expressed in 2011 about India that one in every
five male studied confessed to compelling their female counterparts into sex, and 65% of male
studies said that they accept that on some occasions female ought to be physically harassed or
thrashed. The National Family Health Survey–III (2005-2006) has demonstrated that over 54%
of male and 51% of female said that it was alright for a male to beat his spouse. This study
uncovered that 31% of women were physically harassed and 10% were subjected to “severe
domestic violence” such as strike with a weapon or burning in their marital homes. Another
twelve percent individuals who reported severe cruelty no less than one of the accompanying
injuries like bruises, sprains, wounds, broken bones, dislocation and severe burns and 14% of

29
Sharmila Lodhia, Legal Frankensteins and Monstrous Women: Judicial Narratives of the "Family in Crisis",
9 Meridians 102, 117-120-121(2009).

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Family Law- III Semester

those who reported encountered psychological mistreatment. And curiously these instances were
unreported.30 So what judiciary is claiming is based upon underreported data.
National Crime Records Bureau (2005) reported that 160 women a day experience violence and
that more than nineteen women are killed for dowry on a daily basis. This report coined a term
"crime clock," i.e. one case of cruelty by a husband or relatives, is recorded every nine minutes.
Study of International Center for Research on Women (1999) found that nearly 50% of women
in India suffer at least one incident of physical or psychological violence in their lifetimes.31
Likewise National Crime Bureau data (2008) uncovered that the instances of deaths related to
dowry had increased 8,093 in 2007 from 6,975 in 1998. Incidents reported under s.498A had also
increased to 75,930 from 41,375 (almost coupled). This pattern uncovers just that the incidents
of reported or registered cases increased, yet does not enlighten us regarding the misuse of the
provision.32
In 2011, 99,135 incidents/cases are registered under s.498A and amid the two earlier years,
numbers of cases were 94,041 and 89,546. Therefore there is about 5% increment in the
registered cases each year. As mentioned above, many cases are not reported; therefore, the
insights identifying with revealed episodes may not in this manner furnish a reliable data of
genuine rate or instances of crimes in the States.33
However by relying on NCRB data of 2005, 2009, 2012 and 2013, the Supreme Court in Rajesh
Sharma & Ors. v. State of Uttar Pradesh & Anr.,34 formed an opinion that the low conviction rate
and the acquittals in the cases means they are false. The Supreme Court overlooked the fact that
the conviction rate in 498A cases could be low because of out-of-Court settlements, the
complainant often not taking interest in the matter, ineffective investigation, and so on. If low
conviction rates indicate the truthfulness and genuineness of a genre of cases, then 63.5% of
cases of murder are false and fake (NCRB 2013: the conviction rate in murder is 36.5%). Even
otherwise, the highest rate of conviction in any genre of cases in India is 37.8%, and that is in

30
Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, E.P.W. June 6, 2015, at 12, 13.
31
Sharmila Lodhia, Legal Frankensteins and Monstrous Women: Judicial Narratives of the "Family in Crisis",
9 Meridians 102, 109(2009).
32
Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach
to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 358 (2012).
33
Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 3.2.
34
Rajesh Sharma &Ors. v. State of Uttar Pradesh & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of
S.L.P. (Crl.) No. 2013 of 2017.

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Family Law- III Semester

counterfeiting.35It can’t be stated that low conviction rate in any penal provision means misuse of
that provision. Also various studies suggested that data of crimes against women in India
provided by NCRB is not properly reported as over 40% (2005-06) and 30% (2015-16) married
women in India have encountered various types of domestic violence, and going by those
numbers, not even 1% of victims actually lodge complaints under s.498A. In such circumstances,
the SC and other studies have repeatedly and very narrowly used the NCRB statistics to draw a
misconception of misuse of s.498A, which was enacted to address the violence faced by women
inside their marital homes.36
Now coming to reporting of the wrongdoings, above mentioned judgments and studies appear to
give the feeling that heading off to a police headquarters and enrolling a grievance is simple, that
the police instantly react and start criminal investigation against the accused. However when a
poor woman with draining injuries or a fracture approaches the police, she is made a request to
backpedal and "adjust" for after all it is just her better half who is beating her. It is named as
“ordinary wear and tear” of marriage. According to our judges as well, at this stage, women
should be “counseled” and sent back to the same savage marriages without any protection.37As
men’s rights activists have repeatedly claimed that police indiscriminately arrest the real culprits
and innocents named in complaint as the section is non-bailable. However, more than 70% of the
persons named in the complaint, had paid anticipatory bail and only about 24% of the named
persons been arrested under complaints lodged under s.498A38. Even SC has given its nod to this
mechanism.39 SC after relying upon NCRB statistics in recent judgment has failed to make this
crucial distinction between those who get anticipatory bail and those who don’t and put them in
the same category of ‘arrested’ because persons after getting anticipatory bail do not get arrested
but only appear in the police station, which can’t be considered as an arrest.40

35
Jyotika Kalra, Misuse of dowry laws and failure of the system, The Hindu, Aug.6, 2017, at .
36
Bindu N. Doddahatti, The Dangerous, False myth that Women routinely misuse Domestic Cruelty Laws, The
Wire, (Sept.11, 2017, 2:30AM), https://thewire.in/166766/section-498a-domestic-cruelty-laws. : Flavia Agnes,
Section 498A, Marital Rape and Adverse Propaganda, E.P.W. June 6, 2015, at 12, 13.
37
Flavia Agnes, Supreme Court’s judgment Ignores Lived Reality of Married Women, E.P.W., Sept. 9 2017, at 16,
17.
38
Bindu N. Doddahatti, The Dangerous, False myth that Women routinely misuse Domestic Cruelty Laws, The
Wire, (Sept.11, 2017, 2:30AM), https://thewire.in/166766/section-498a-domestic-cruelty-laws.
39
Ravindra Saxena v. State of Rajasthan, (2010) 1 S.C.C. 684.
40
Bindu N. Doddahatti, The Dangerous, False myth that Women routinely misuse Domestic Cruelty Laws, The
Wire, (Sept.11, 2017, 2:30AM), https://thewire.in/166766/section-498a-domestic-cruelty-laws.

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Family Law- III Semester

For low convictions too some reasons can be attributed. It is generally and widely perceived that
some police officers and judicial officers intentionally pick not to enforce cruelty and domestic
violence provisions and laws. It has been evidenced that the police often neglect to appropriately
investigate and report cases related to cruelty and dowry. This disinclination to investigate and
report cases can be credited to the far-reaching view "that domestic violence is a family issue and
ought to be dealt privately”. Police failures to legitimately explore cruelty cases and execute
judicial orders have forestalled victims from receiving equity. Likewise rampant corruption is
prevalent in local police administration. The police are frequently hesitant to squeeze charges
and investigate against accused those have strong political backing and economic standing and
they are often able to influence the police to support them.41 Another reason for low conviction
rate is out-of-Court settlement42. Even this provision is non- compoundable, Courts can allow an
out-of-Court settlement in the interest of justice by using s.438 of CrPC and SC itself gave its
node to this type of settlement43. Because if a woman wants to separate or divorce on the ground
of cruelty, she would have to follow two different cases in civil Court under DV Act, 2005 and
other in a criminal Court under S.498A of IPC and at this pivotal time, woman is at a phase of
remaking her life and finding a cover, a job, and child custody. Under the civil law she would in
any event be entitled for maintenance, which would be her prominent priority. So if she
somehow happens to pick between the two proceedings, much of the time, she would pick the
civil case where she would be entitled to maintenance, guardianship, injunction against
harassment, and finally a separation which would set her free from her violent marriage and thus
she drop the criminal proceeding.44
S.498A of IPC deals with physical as well as mental cruelty. If case is about to physical cruelty
then facts speak for themselves but if the case is of mental cruelty, then it becomes very difficult
to prove the mental cruelty as it must be proved “beyond reasonable doubt”. Given that by and
large, the acts of brutality occur without witnesses, it is just the words of victim against the
accused persons,45 as evidenced in Arvind v. State of Bihar,46 in this case, woman who was
singed to death by her better half and his relatives, made a statement to her mother that accused
41
Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach
to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 376 (2012).
42
Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 3.3.
43
B.S. Joshi v. State of Haryana, (2003) 4 S.C.C. 675. : Nikhil Merchant v. C.B.I. (2008) 9 S.C.C. 677.
44
Madhu Kishwar, Laws against Domestic Violence: Underused or Abused?, 15 N.W.S.A. 111, 117 (2003).
45
Why Women need 498A, E.P.W. July 19, 2014, at 7, 7.
46
Arvind v. State of Bihar, (2001) 6 S.C.C. 407.

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Family Law- III Semester

poured kerosene and tossed a matchstick on her. The SC said that no evidence was there to
demonstrate that the woman endured any savagery prior to her demise and presumed that s.498A
can’t be pulled in.
There is another aspect of low convictions under s.498A of IPC. After examining the detailed
cases under s.304B, it becomes apparent that barely any victim, who was killed, had earlier
recorded her grumbling under s.498A that deals with cruelty to victim before her death. Also,
regardless the demonstration that many cases documented under s.498A are not genuine, under s.
304B of IPC, conviction rate is generally high, about 35% (LCI, 2012) but conviction rate under
s.498A is low 15.6% (NCRB 2013). Unquestionably for every victim who is killed, there would
be great many others who are subjected to cruelty/harassment, as showed by various surveys and
studies.47 It implies Courts rush to convict for death. It was never suggested by any court that
dead woman lied, or abused the law; because the dead body of the victim is the true verification
of the cruelty that she encountered when alive. But when the matters come under s.498A, the
main proposal is that “disgruntled wives” are abusing the law to put “bed-ridden grandfathers
and grandmothers” correctional facility.48
By above mentioned studies and reliable data, it can be concluded that judiciary didn’t take
cognizance of another aspect of s.498A where many cases go unreported, poor investigation, out-
of-Court settlement happens and are present and create a situation of higher rate of arrests and
lower rate of conviction under the said provision.

A WRONG INTERPRETATION BY JUDICIARY AND OTHER

INSTITUTIONS

S.498A of IPC was introduced to restrain the acts of matrimonial cruelty against women.
However it seems that various institutions, that have to enforce this provision in the interest of
society, have wrongly interpreted it. It is apparent from the reading of s. 498A that its clause (a)
is about cruelty (mental or physical) and clause (b) is related to harassment to fulfill dowry
demand.

47
Flavia Agnes, Section 498A, Marital Rape and Adverse Propaganda, E.P.W. June 6, 2015, at 12, 13.
48
Indira Jaisingh, Concern for the dead, Condemnation for the living, E.P.W., July 26 2014, at 34, 36.

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However there are many instances when judiciary didn’t take cognizance of mental cruelty if
victim is not physically abused or there is no demand of dowry49. To attract the application of
s.498A, it is not obligatory to show that the woman is physically harassed, even mishandling her
verbally; not speaking to her legitimately or denying her matrimonial rights are sufficient to
attract clause (a) or mental cruelty50. Mental cruelty may also be portrayed as any ridiculous
lead, for example, disparaging, mortifying and offending comments and treatment, utilizing
dialect as disdainful as to make a genuine gouge the sense of pride of any stately individual.51 SC
in Mohd. Hoshan v. State of Andhra Pradesh,52 expressed that the effect of grievances,
allegations or insults on a person amounting to cruelty relies upon different components such as
the affectability of the individual casualty concerned, the social foundation, education, the
environment and so on. Further, mental cruelty can’t be gauged from the perspective of
reasonable person and varies from individual to individual contingent upon the power of
affectability and the degree of courage or endurance to withstand such savagery. In Vinita
Saxena v. Pankaj Pandit,53 the Supreme Court observed that to prove mental cruelty it is not
necessary that alleged incidents are of continuous but what should be taken into cognizance is
their intensity gravity to affect victim and their deleterious effect.

However in numerous judgments, the Courts have not given importance to mental cruelty, rather
just focused on physical cruelty. In fact, when evidences do not demonstrate physically
harassment or cruelty, then the Courts do not take cognizance of the case. However What the
Courts do, is call the woman “hyper sensitive”54 or “of low tolerance level and having an
unstable mind”55. SC in Savitri Devi v. Ramesh Chand,56 didn’t perceived mental cruelty and
held that exclusive accusations against the respondents are that they did not like the garments
brought by the bride as standard presents for in-laws and one of the sister-in-law commented that
had the marriage of the man occurred with her sister, more dowry would have been gotten. Here
the taunts for gifts and remarks of marriage and dowry could attract mental cruelty by definitions
given by SC itself but in this case SC didn’t consider it.
49
Bomma Ilaiah v. The State of A.P., 2003 S.C.C. OnLine A.P. 38.
50
Ramesh Dalaji Godad v. State of Gujarat, 2003 S.C.C. OnLine Guj. 15.
51
Saurabh Sinha, Matrimonial cruelty: Need for a Relook, 57 P.L. 58, 60 (2012).
52
Mohd. Hoshan v. State of Andhra Pradesh, (2002) 7 S.C.C. 414.
53
Vinita Saxena v. Pankaj Pandit, (2006) 3 S.C.C. 778
54
State of Maharshtra v. Jaiprakash Krishna Mangaonkar & Ors., 2003 (2) A.L.D. Cri. 64.
55
Annapurnabai @Bhori v. State of M.P., I (2000) D.M.C. 699.
56
Savitri Devi v. Ramesh Chand, 2003 S.C.C. OnLine Del. 483.

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Another misinterpretation regarding this provision is that to attract s.498A there should be dowry
demand in the complaint because of lack of awareness among women and other institutions. A
reason for declaring cruelty related cases false on basis of Mistake of facts is that when woman
approach police station to register her complaint they suggest her to include dowry demand in
complaint to make her case strong and if no dowry demand will be included then judgment will
not be in your favor. Women who approach the police authorities with broken bones and
draining wounds are criticized with remarks such as, “If a husband does not beat his wife, who
else will? There is nothing special about a husband beating his wife. If you are harassed for
dowry, then it is serious, and we shall arrest him”. Even Advocates suggest the same.57 As
evidenced in Waghmare v. State of Maharashtra,58 that a female endured serious physical and
mental abuse on account of her husband and in-laws, and she in the end committed suicide. They
routinely beat her and pestered her for a bike and following the two months of marriage set her
ablaze. But HC held that such episodes of violence were not adequate to lead her to end her life
and demand for bike was not a demand of dowry. Even in such a horrendous case, s.498A was
not pulled in and no relief was provided to a victim because the Court was unwilling to
demonstrate the acts of violence as cruelty or harassment.
From above given findings, it is obvious that the judges in number of cases made a very
restricted interpretation of the provision, viewing it to be only cruelty in connection to physical
harassment or dowry demands and not viewing mental cruelty as one of the fundamentals of the
provision.59

APPROACH OF SUPREME COURT IN RAJESH SHARMA & ORS. V.

STATE OF UTTAR PRADESH AND LOOPHOLES IN DIRECTIONS

This case of Rajesh Sharma & Ors. v. State of Uttar Pradesh,60 came before SC as a criminal
appeal under art.134 of the constitution and then SC issued some directions to restrain the misuse
of the provision. While exercising appellate jurisdiction, the Court is required to examine

57
Rehan Abeyratne; Dipika Jain, Domestic Violence Legislation in India: The Pitfalls of a Human Rights Approach
to Gender Equality, 21 Am. U. J. Gender Soc. Pol'y & L. 333, 355 (2012).
58
Waghmare v. State of Maharashtra, 1989 S.C.C. OnLine Bom. 355.
59
Richa Mishra, Section 498A IPC, Legal Service India, (Sept.13, 2017, 4:50 PM),
http://www.legalserviceindia.com/article/l336-Section-498-IPC.html.
60
Rajesh Sharma &Ors. v. State of Uttar Pradesh & Anr., (2017) Criminal Appeal No. 1265 of 2017 arising out of
S.L.P. (Crl.) No. 2013 of 2017.

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whether the Court below committed an error that resulted in misuse of the process of law61.
However in this case the Court has not indicated any specific error committed by a Court below
but travels beyond to take cognizance of misuse and issued directions by using art.142 of the
constitution.62 However there is contention regarding the power of SC while acting under art.142
of the constitution. Whenever SC discovered that the rights of citizens required to be enforced,
yet there was a vacuum by virtue of the nonattendance of any law to ensure and to uphold any
such rights, this Court has constantly ventured in and developed new instruments to secure and
authorize such rights, to do complete justice, however the power under Article 142 is not
intended to be worked out, when such exercise will straightforwardly in conflict with the express
provisions of a statute.63 But while issuing directions in present case, (a) directions were in
conflict with express provision of penal code as introduction of family welfare committee and
insertion of bail provision are not there in s.498A (b) there was no vacuum on account of law to
protect innocents because there are some provisions given under CrPC and IPC to prevent
alleged misuse.

Likewise while issuing directions, SC performed the role of legislature as these directions equal
to amendment to the s.498A of IPC and will take away its deterrent effect against wrongdoers.
However in case of Dayaram v. Sudhir Batham,64 it was observed that Judges ought not
outlandishly or unjustifiably attempt to perform legislative or executive functions in the name of
judicial activism and they cannot cross their cutoff points and endeavor to assume the control
over the functions which have a place with another organ of the State.

However directions have been issued but there are some loopholes which can defeat the purpose
behind issuing directions and insertion of s.498A and would have negative impact upon victims.
According to the directions, every complaint related to s.498A should be referred to family
welfare committee (comprised members of civil society) in every district and the committee
should give its report on the matter within one month to responsible authority, and till then there
will be no arrest of any accused. The premises behind constituting such committee is that it can
prevent misuse through interaction with parties but main contention regarding it is that when the

61
Som Mittal v. Government of Karnataka, (2008) 3 S.C.C. 753.
62
Jyotika Kalra, Misuse of dowry laws and failure of the system, The Hindu, Aug.6, 2017, at .
63
Supreme Court Bar Assn. v. Union of India, (1998) 4 S.C.C. 409.
64
Dayaram v. Sudhir Batham, (2012) 1 S.C.C. 333.

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hierarchy of Courts (with family Courts with attached counselors) themselves and investigation
agencies could not identify the misuse of the law, would members of civil society be in a
position to do so? Also the appointment of such a committee will complicate the process and
open an additional window for corruption. It is not clear what would be evidentiary value of the
reports of the committee will have. The direction to add a committee in the process doesn’t
mention whether a case would be referred to the committee at the stage of receiving a complaint
or after the lodging of an FIR or after the investigation, for the purpose of seeking a nod from the
committee to arrest the accused.65 Also the gap of one month, for instance, between filing a
complaint and the committee submitting its report is long enough for a major turnaround in a
legitimate case of emotional assault because there is likewise a view exists in society that once
the culpable relatives come to know about the complaint, there might be further torment of the
victim and her life and liberty might be jeopardized66. Further, the constitution of committee is
not clear it may be possible that those who join the welfare committees may bring in their own
biases that may be inimical to any fair hearing of the cases. Also CrPC, 1973 clearly lays down
the reasonable procedure of investigation and police must follow it. Therefore there was no
compelling reason for the Court to substitute investigative power through constitution of
extraneous committee which will have no accountability if the disputants do not arrive at the
settlement.67

CONCLUSION

Author would like to conclude by quoting Manu “Yatra naryastu pujyante ramante tatra Devata,
yatrai taastu na pujyante sarvaastatrafalaah kriyaah”, which implies where women are
regarded, heavenly nature blooms there, and where they are shamed, all activity regardless of
how honorable stay unfruitful. Crimes against women cannot be completely eradicated by efforts
through legislation and law enforcement agencies. There is necessity of social arousing and
change in the demeanor of society, so that due regards and equivalent status can be given to
women. It is a high time to remold our attitude. This arousing can be brought by educating the
youth and making mindfulness among the masses by featuring the causes leading to such crimes

65
Jyotika Kalra, Misuse of dowry laws and failure of the system, The Hindu, Aug.6, 2017, at .
66
Law Commission, Section 498A of IPC (Law Com No 243, 2012) para 4.3.
67
R.K. Vij, Tacking s Narrow View, The Indian Express, Sept. 18, 2017, at 10.

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and by scattering information about their calamitous impact on the womanhood and the general
public on the loose. Mass media can assume a dynamic part here as in the present days it has
achieved each side of the country.68 The legal history of s. 498A IPC demonstrate that it was
sanctioned to address the particular need of shielding women from cruelty perpetrated inside the
marital homes. Various reports on Section 304B and 498A of IPC demonstrate that cases of
violence related to dowry have still not gone down. Section 498A IPC is as significant today as it
was somewhere in the range of 30 years prior and there is no case for its weakening.69Violence
by spouse and in-laws is perplexing behavior and the social association of Courts, the police and
legal cultures methodically tend to depreciate domestic violence laws. There is need of
innovative work to propel the current state of knowledge on the impacts of legal sanctions on
domestic violence to correct the misconceptions that law is misused by women. The restricted or
may be practically unimportant studies done by various institutions about the deterrent effects of
legal sanctions for cruelty and domestic violence stands in high contrast with the broad
endeavors of advocates of victims, activists and practitioners of criminal law in activating law
and forming and shaping policy to stop domestic violence. The perception of the state and its
institutions needs to transform from that of protecting the wrongdoers against potential abuse of
the domestic violence laws to that of implementing their genuine purpose and to perceive that
such savagery is a crime and protect women who have the mettle to register complaints against
the accused.70

Also we have some methods to curb the alleged misuse. CrPC, 1973 prescribes investigation
procedure by police. In Lalita Kumari v. Govt of U.P.,71 SC held that registration of FIR is
obligatory as per s.154 of the CrPC, if the content of FIR uncovers commission of a cognizable
offence and no preparatory inquiry is permissible in such circumstance. However if the content
received does not uncover a cognizable offence but rather demonstrates the need for an inquiry, a
preparatory inquiry may be directed only to ascertain whether cognizable offence is unveiled or
not. So if police agencies think that information is false they can conduct preliminary inquiry.
Even after registering FIR, under s.41 of CrPC, police officer can arrest person guilty of

68
Justice S.J. Mukhopadhaya, Protection of Women against Atrocities: Legal Remedies and Judicial Response, 5
L.W. (J.S.) 15, 28 (2013).
69
Rajya Sabha Committee on Petitions, Petition Praying for Amendments in Section 498A of Indian Penal Code,
1860 (Rajya Sabha Committee on Petitions, 2011).
70
Jayna Kothari, Criminal Law on Domestic Violence: Promises and Limits’, E.P.W. Nov.12, 2005, at 4843, 4846.
71
Lalita Kumari v. Govt of U.P., (2008) 14 S.C.C. 337.

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cognizable offence if reasonable or credible information has been received, however if officer
has any doubt regarding reasonability of the information then officer can countercheck the
veracity of the complaint.72 Apart from these provisions, s.182 of IPC, 1860 i.e. “ False
information, with intent to cause public servant to use his lawful power to the injury of another
person”, s.211 of IPC, 1860 i.e. “False charge of offence made with intent to injure”, s.250 of
CrPC, 1973 i.e. “Compensation for accusation without reasonable cause”, s.358 of CrPC, 1973
i.e. “Compensation to persons groundlessly arrested”, are capable to curb the alleged misuse of
the provision by punishing the wrongdoer.

72
Code of Criminal Procedure, 1973, No.2, Acts of Parliament, 1973.

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