Cruelty against married women has been an age-old phenomenon in India, where women have long been subjected to physical, emotional, and psychological exploitation within the domestic sphere, often under the pretext of dowry demands, family honor, or societal pressures. Recognizing the urgent need to address this social malaise, the Indian legislature enacted Section 498A of the Indian Penal Code, 1860, through the Criminal Law (Second Amendment) Act, 1983, making cruelty towards a married woman by her husband or his relatives a cognizable, non-bailable, and non-compoundable offence punishable with imprisonment and fine. The section defines cruelty as conduct likely to drive a woman to commit suicide, inflict grave injury, or coerce her or her relatives into fulfilling unlawful property or dowry demands. The legislative intent was to offer the first substantive criminal remedy in India for domestic violence within marriage, thereby protecting women from oppressive practices that were otherwise difficult to address under pre-existing civil or criminal laws. Since its inception, Section 498A has served as a vital tool for women facing harassment and torture, empowering them to approach the police and courts for redress and instilling societal awareness about the legal protection available to married women. However, the law has also been mired in controversy, drawing sustained criticism from various quarters, including sections of civil society, police personnel, lawyers, and judiciary, on the grounds that it is often misused by some women and their relatives to harass husbands and in-laws for personal vendettas, financial gain, or other ulterior motives. The constitutionality of Section 498A has been challenged in multiple judicial forums, including Inder Raj Malik v. Sunita Malik (1986), Girija Shankar v. State of Madhya Pradesh (1989), and Balakrishna Panduranga Moghe v. State of Maharashtra (1998), primarily on the premise that the terms “cruelty” and “harassment” are vague and confer arbitrary power on the police and courts, thereby violating Articles 14, 20(3), and 21 of the Constitution. In each instance, the respective High Courts upheld the validity of the provision, emphasizing that the language was sufficiently clear in context and that the legislative purpose of protecting women outweighed the speculative risk of misuse.
CRUELTY AGAINST MARRIED WOMEN - A CRITICAL STUDY
Table of Cases
Preface
Common Abbreviations and Terms
Table of Cases
I. Introduction
II. Law relating to Matrimonial Cruelty
III. Concept of Cruelty
IV. Cruelty in Personal Laws
V. Legal Terrorism in Practice – Institutional Response
VI. Operation of Section 498A, IPC 1860 - A Reality Check
VII. Matrimonial Disputes - Need for application of ADR Mechanism
VIII. Recommendations and Suggestions
Reference Section
I. Selected Bibliography
II. Appendixes
CERTIFICATE
This is to certify that the thesis entitled “CRUELTY AGAINST MARRIED WOMEN - A CRITICAL STUDY” submitted to Damodaram Sanjivayya National Law University, Visakhapatnam in partial fulfillment of the requirement for the award of the Degree of Doctor of Philosophy in Law is a record of original research work done by Mr. BENDALAM LAVARAJU under my supervision and guidance to my satisfaction and the thesis has not formed the basis for the award of any Degree/Diploma of any other University/Institution.
Dr. P. SUBHAKARA REDDY
LL.M., PhD
DECLARATION
I declare that thesis titled: “CRUELTY AGAINST MARRIED WOMEN - A CRITICAL STUDY” is an authentic record of my own contribution and bona fide research, carried out under the supervision of Dr. P. SUBHAKARA REDDY, in accordance with regulations of the Damodaram Sanjivayya National Law University, for the award of the Degree of Doctor of Philosophy in Law.
This research work has not been previously submitted to any University or Institution for the award of any Diploma, Degree or any other similar title.
Visakhapatnam
Date:
Attested
Dr. P. SUBHAKARA REDDY
LL.M., PhD
ACKNOWLEDGMENTS
First and foremost, I wish to record my profound gratitude to Dr. P.Subhakara Reddy for having consented to be my Research Supervisor and counselled me throughout this research work with his rich experience and versatile knowledge. I deem it a great privilege to have my research programme under his able guidance.
It is my great pleasure to acknowledge my deep indebtedness to Prof. Dr. A. Lakshminath, Chancellor, Damodaram Sanjivayya National Law University, Visakhapatnam for his benign advice and help.
Words fail to express my deep sense of gratitude to Prof. V. Kesava Rao, Vice-Chancellor, Damodaram Sanjivayya National Law University, Visakhapatnam on whose good wishes and constant encouragement, the research work is completed. His divinity and masterly words help me to complete this herculean task with passion and commitment.
My thanks are due to Dr. Dayananda Murthy C.P. Registrar-in-charge, Damodaram Sanjivayya National Law University, Visakhapatnam for the support given to me in the completion of the thesis.
I wish to express my special gratitude to Dr. P. Sri Devi, Dean, Academic Affairs & Research, Damodaram Sanjivayya National Law University, Visakhapatnam without whose kind and willing co-operation, I could not have completed the study.
I have special words of thanks to Prof. (Dr.) K.N. Chandra Sekharan Pillai, Cochin University, External Expert in the Doctrinal Research Committee for his valuable suggestions and inputs with expertise.
I express my deep sense of gratitude to my teachers Prof. R. Venkata Rao, (ViceChancellor, National Law School of India University, Bangalore, Karnataka) and Prof. A.Rajendra Prasad, and Prof. S.Sumithra who inspired me to choose this topic during the course of my study of LL.M (2003-05) in Dr. B.R. Ambedkar College of Law, Andhra University, Visakhapatnam.
This stupendous task could not have completed in time without co-operation of the Prof. R. Jagan Mohan Rao, Prof. V. Rajya Lakshmi, Prof. A. Shankuntala Rajendra Prasad, Prof. DVR Murthy, Dr. Y.D. Ramdas and Dr. J. Alak Chandrudu, who extended the role of external supervisors for editing the manuscripts of the research work.
My special thanks are due to Prof. (Dr.) N.S.Jagannadha Rao, Ganjam Law College, Berhampur, for encouragement during the visit of ODISHA, for the purpose of research work.
I am grateful for the responses and suggestions received from the prestigious institutions like APPA, NALSAR, Andhra University, Osmania University, AMS College for Women, Berhampur University, National Law School of India University, Bangalore, AP State Women’s Commission, AIDWA (Visakhapatnam Division) and Bar Associations of Itchapuram, Sompeta, Srikakulam, Visakhapatnam and APHC, and Social Action Groups like Save India Family (SIF) Organisation for their constant encouragement during the course of work.
My thanks are due to different categories of stakeholders including Judicial Officers, Police Personnel, Public Prosecutors, and Advocates for they have given me the judgment copies to accomplish the empirical work. Many other contributors, including Professors and Students of prestigious Universities also volunteered and rendered valuable opinions.
I am obliged to all the litigants of 498A, IPC cases in the Courts of Andhra Pradesh who respond cordially while filling up questionnaire; it was well nigh impossible for me to complete the present project in time.
I should not forget to thank my friends G. Rama Prasad, Vijayawada and P. Narasingha Rao, A. Prabhakar Reddy, M. Shiva Rama Krishna, Thomas Raja Sekhar, Y.Ramesh, Leading Practitioners, Visakhapatnam, for their constant guidance, valuable criticism and keen interest evinced in many aspects of the research work.
I am greatly indebted to the authorities of Damodaram Sanjivayya National Law University, for providing me the opportunity to carry out this research work. I acknowledge my deep sense of gratitude to them all.
I am extremely thankful to all the teaching faculty of Damodaram Sanjivayya National Law University for their whole hearted cooperation in this regard.
I am also grateful to Librarian-in-chief and staff , who have rendered their services in finding out various books and journals in time for successful completion of this research work.
I have referred the works and articles of many authors. I am greatly indebted to all of them, whose contributions have enriched my knowledge.
I cannot forget the help and assistance extended to me by Subhash Gogia, Sunny Gogia and Sandeep Gogia, and Rama Rao, Andhra Law House, Visakhapatnam for providing books and material relevant to my research work.
Finally, I offer my sincere thanks to P. Prasad, P. Shanmukh Rao, and V. Satish Kumar of Sri Krishna Internet Centre, M.V.P Colony, Visakhapatnam for shaping the research work into a beautiful form.
I express my thanks to each and every person who helped me in this task at every stage to prosecute my Doctorate of Philosophy in Law.
SPECIAL ACKNOWLEDGMENTS
The completion of this research work has also taken away valuable time from my family. Without their cooperation I may not have completed this.
Let me at the very outset express affectionate gratitude to my parents Bendalam Seetha Rama Murthy and Lakshmamma, without wish; I do not have any existence in this life, for their valuable blessings to me in prosecuting my studies in ever means and at every stage till this day.
I shall be failing in my obligation, if I do not acknowledge the affectionate/ revered gratitude to my parents-in-law Priya Appala Raju and Jayamma for their cooperation by all means and constant encouragement to complete my research work.
I owe a deep debt of gratitude to my better half Smt. Jyothi Priya who put off with all inconveniences with grace and my eyelids Sri Vaishnavi (Durgamma) and Venkata Shivani (Puttu Jaya Lakshmi) for their affection and moral support in all aspects in my life and encouragement to pursue my Doctorate of Philosophy in Law.
Dedicated to My Parents
Bendalam Lakshmamma
&
Seetha Rama Murthy
The Present Research Work is the result of their perspiration
PREFACE
Cruelty against married women has been an age-old phenomenon, where women have been subjected to brutality and inexplicable exploitation for one reason or the other. In the wake of widespread violence and cruelty inflicted upon married women, Section 498A has been inserted in the Penal Code by the Criminal Law (Second Amendment) Act, 1983 (46 of 1983). The substantive Section 498A of the Indian Penal Code, 1860 appears in Chapter XXA, specifically deals with ‘cruelty towards a woman by her husband or his relatives’. The chief object to bring into this law is to punish the husband and/or his relatives who torture and harass the woman with a view to coerce her or any person related to her to meet any unlawful demand for any property or valuable security or to drive her to commit suicide.
Section 498A is the first law in the Indian context pertaining to violence within the home. This provision brought some relief to women, whose life has become miserable because of torture and violence perpetrated against her by her husband or his relatives. It should be agreeable fact that among the many laws passed by the legislature to criminalise oppressive practices against women, Section 498A has been most controversial and newsworthy. Since its inception, this provision has drawn the hostility from various quarters in a quite systematic and sustained manner. The antagonists to this provision termed it as unfair and responsible for the victimisation of husbands by their wives and her relatives. With the rise in education, financial security, modernization and the new-found of independence some arrogant women have made 498A, as an assassin’s weapon. The Civil Society, the Police Personnel, Lawyers and even Judges of the High Courts and Supreme Court have offered these arguments of the “misuse” of laws vehemently. Indian Courts now and then, in their observations and remarks have looked into the matter of misuse of Section 498A, IPC and expressed deep anguish over this law.
The constitutionality of Section 498A, IPC has been challenged in many cases viz. Inder Raj Malik v. Sunitha Malik, reported in 1986 Cri LJ 1510 (Delhi); Girija Shankar v. State of Madhya Pradesh 1989 Cri LJ 242 MP; and Balakrishna Panduranga Moghe v.State of Maharashtra, (1998) Cri.LJ 4496; on the ground that it gave arbitrary power to the Police and the Courts because the words “cruelty” and “harassment” are vague. The respective High Courts in all these cases opined that ‘the introduction of these words is clearly understood and therefore the section cannot be held to be violative of Articles 14, 20 (3) and 21 of the Constitution’.
Commenting on the situation in our country, the Apex Court in Sushil Kumar Sharma v. Union of India, reported in AIR 2005 SC 3100; it was observed ‘ mere possibility of abuse of the provision of law does not per se invalidate a law. ’ Thus, the provision of Section 498A, IPC is not unconstitutional. There is no doubt, the object behind the provision is prevention of the dowry menace, but some instances have come to light, now and then, where complaints are lodged under the garb of this statutory protection to settle their personal scores. ‘ Laws are not instruments of oppression but to safeguard and protect the victim.’ Thus, merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. By misuse of the provision, a new legal terrorism can be unleashed. Although, there is a provision i.e., perjury to prosecute those who allegedly misuse the law by reporting or instituting false complaints, it has been witnessed that the same is rarely exercised or not practiced by courts in India, against the woman and her parents in such kind of cases. The judiciary does not proceed in such cases as it might send wrong signal to genuine victims of such crimes who may be wary of approaching courts of law for justice. Unfortunately, the same benevolent approach is proving to be ‘blessing in disguise’ for all those who either nurture some grudge in their mind towards anyone or have a tendency to extract money or other valuables from someone by devising wicked means. Indeed the current scenario is highly alarming and there is an urgent need to put in place adequate and suitable mechanisms so as to adequately filter all genuine victims from notorious elements who often tend to hijack the law for their selfish ends.
It is in this background present research has been carried, keeping in mind the need to arrive at a perception regarding the use or misuse of Section 498A, IPC and what steps are to be taken to minimize the alleged misuse. The study is a preliminary research and certain inferences should be drawn by understanding the perceptions of different categories of people affected by the implications of 498A, i.e. the victims, the accused, the relatives of the both sides and other role players like the Police, Lawyers, Judges and the Civil Society as a whole. The remarks/observations should be presented in general as the findings of the study on the existing laws on the subject of matrimonial cruelty and suggested certain recommendations which have to be executed for practical implementation of the legislation in this regard.
COMMON ABBREVIATIONS
Illustrations are not included in the reading sample
TABLE OF CASES
A
A. Jayachandra v. Aneel Kumar (2005) 2 SCC 22).
A.P Rangarao v. Vijayalakshmi; (1990) 1 DMC 367 (Mad).
A.P.Mary v. K.G. Raghavan AIR 1979 MP 40.
A. Sreenivasa Rao and Others v. State of Andhra Pradesh, 2002 (4) ALD 881.
A. Viswanathan v. G. Lakshmi (2002) 2 SCC 619.
Abbas Ali v. Rabia Bibi, 1951 ALJ 346.
Abdul Aziz v. Bashiran Bibi PLD 1958 Lah 59.
Abdul Hamid Salat v. State of Chhattisgarh 2006 (1) Crimes 738 Chhattisgarh.
Abu baker Haji v. Manu Koya (1971) ILR Ker 338.
Adedabi v. Sikandar Akbar Muzawar 1980 Bom.CR 240.
Aftab Alam Hamid Ansari v. State of Maharashtra 2006 (1) Crimes 172. (Bom.)
Afcon’s Infrastructure Ltd. & Anr. v. Cherian Varkey Construction Co. (P) Ltd. & Ors (2010) 8 SCC 24.
Aftab Alam Hamid Ansari v. State of Maharashtra 2006 (1) Crimes 172 (Bom.).
Akula Ravinder v. State of Andhra Pradesh , AIR 1991 SC 1142; 1991 SCC (Cri) 990.
Aleque Padamsee and Others v. Union of India and Other; (2007) 6 SCC 171.
Anantha v. Ramchander, 2009 (2) HLR 259 (Cal.).
Anil Bhardwaj v. Nirmalesh; AIR 1987 Del 11.
Anil Jain v. State 2004 (1) Crimes 521 (Delhi).
Anil Kumar v. Sindhu 2009 (5) RCR (Criminal) 343 (Kerala).
Anil Kumar v. State of Punjab (1997) 2 AI Cri LR 638 (P&H).
Arun Garg v. State of Punjab, (2004) 8 SCC 251.
Arun Khanna v. State of Bihar and another [1994 (1) PJLR 513].
Arun Pramod Shah v. Union of India 2008 (3) RCR (Criminal) 192 (Delhi).
MANU/DE/0626/2008.
Ashmabai v. Umer, AIR 1941 Sind 23.
Ashwini Kumar Sehgal v. Swatanter Sehgal 1978 HLT 594.
Aziz Hussain v. State of J&K 2003 (3) Crimes 221 (J&k).
B
B.P. Achala Anand v. S. Appi Reddy AIR 2005 SC 986.
B.P Mittal v. State 2003 (4) Crimes 1 (Delhi).
B.R. Mehta v. Atma Devi (1987) 4 SCC 183.
B.S.Joshi v. State of Haryana AIR 2003 SC 1386; MANU/SC/0230/2003.
Badri Narayan v. Savitri-II, (2000) DMC 552.
Badrunnisa v. Md. Yusuf AIR 1944 All 23.
Baker v. Baker, (1955) 1 WLR 1011, Hall v. Hall, (1962) 1 WLR 1246.
Bala Krishna Panduranga Moghe v. State of Maharashtra, (1998) Cri.LJ 4496 (Bom.)
Balakrishna Savalram Pujari Waghmare v. Dhyaneswar Maharaj Sansthan AIR 1959 SC 798.
Bala Prasad v. State of Rajasthan, AIR 1952 Raj.142.
Bankat & Anr vs. State of Maharashtra (2005) 1 SCC 343, (2005) Cri LJ 646 (SC).
Bathala Subbarayudu v. State of A.P., 1994 Cri LJ 446(AP);
Begum Zahra v. Md. Ishaq, PLD 1955 Sind 378.
Begum Subanu v. A.M. Abdul Gafoor AIR 1987 SC 1103.
Bhagavan Singh v. Harmukh, (1906) 29 All 137.
Bhagirath Kanoria v. State of Madhya Pradesh AIR 1984 SC 1688; [1986] 68 FJR.98.
Bhagwant Singh v. Commissioner of Police, Delhi AIR 1983 SC 826.
Bhai Sher Jung Singh v. Virender Kaur, 1979 Crilj 493 (P&H).
Bhaskar Lal Sharma v. Monica (2009) 10 SCC 604: (2009) 161 DLT 739.
Bhajan Lal v. Usha Rani, P&H HC (decided on 08.08.2007). 1978 ACJ 310.
Bhaskar Mitra V. State of Bihar and Ors 1997 (1) BLJR 822.
Bhola Kumar v. Seema Devi (2015) DMC 437 (DB) (Patna).
Binapani Bhattacharjee v. Pratap Bhattacharjee I (2007) DMC 460 Gau.
Binda v. Kausilia (1890) ILR 13 ALL.120,
Bini v. K.V. Sundaran AIR 2008 Kerala 84.
Bir Bhadra Pratap Singh v. D.M. Azmgarh, 1959 Cri. LJ, 685.
Brij Lal v. Premchand and another. AIR 1989 SC 1661.
Brij Lal v. Prem Chand, 1991 SCC (Cri) 394; 1989 Supp (2) SCC 680.
Britt v. Britt (1953) 3 All ER 769.
Buchler v. Buchler (1947) 1 ALL E.R 319.
C
C. Veerudu & another v. State of Andhra Pradesh, 1988 (3) Crimes 549 (A.P); 1989 Cri.LJ
NOC 52 (A.P).
C.R. Chenthil Kumar v. K. Sudha II (2008) DMC 278 Mad.
Chameli Singh v. State of Uttar Pradesh 1996 (2) SCC 549.
Chanda v. State of Andhra Pradesh, 1996 Crilj 2670.
Chandan Aggarwal v. Mukesh Kumar Aggarwal 1 (1996) DMC 598.
Chiranjeevi v. Lavanya @ Sujatha II (2006) DMC 553 AP; AIR 1999 AP 316.
Chouinard v. Chouinard, 10 D.L.R. (3d) 263;
Cooper v. Cooper, (1954) 2 All ER 415.
Court on its own motion v. C.B.I Crl.M (M) 3875/2003.
Cowasjee Nusserwanji v. Shehra Cowasjee, (1973) 39 Bom. L.R 1138.
Crawford v. Crawford (1963) 2 All ER 994.
D
Dr. Keshaorao Krishnaji Londhe v. Nisha Londhe AIR 1984 413 (FB).
Dr. N.G Dastane v. S. Dastane, AIR 1975 SC 1534.
Dr. Srikkanth Raghavacharya Adya v. Anuradha AIR 1980 Kant. 8.
Daggupati Jayalakshmi v. State of Andhra Pradesh 1993 Cri LJ 3162 (AP).
Daud Mohammad Aga v. State, 1995 Cri L.J. 2947 (Bom.)
Daulat Ram v. State of Punjab, AIR 1962 SC 1206; 1962 Cri. LJ 286 (SC)
Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingade AIR 2010 Bom 16.
Dennison Paulraj v. Mayavinola MANU/TN/0525/2008, MAD).
Dennison Paulraj v. Union of India, (2008) 2 MLJ 389.
Dilip K. Basu vs. State of West Bengal & Ors. 1997 SCC (Cri.) 92.
Donaldson v.Donaldson, [(1917) 31 Idaho 180, 170].
Dular Koer v. Dwarakanath Misser; (1907) ILR 34 Cal 97).
E
Evans v. Evans (1790), 1 Hag Con, 35.
Eveneet Singh v. Prashant Chaudhury & Others, CS (OS) 1307/2010 Del.
F
Fakhruddin v. Hamadan, AIR 1953 All 571.
Food Inspector v. Ch. Qadir Wani, 1996 Cri. LJ 1618 (J&K).
G
G. A Mohammed Maideen v. State 2000 Cri LJ 4355 (Mad).
G.Sagar Suri & another V.State of U.P., (2002) 2 SCC 636.
G.V.N Kameswara Rao v. G. Jabilli AIR 2002 SC 576.
Gajendra Singh v. Smt. Minakshi Yadav and Anr, 2022 (1) CriLJ (Raj.) 839.
Ganapath Patnaik v. State of Orissa, (2002) 2 SCC 73.
Gangadharan vs. Madhukar, AIR 1988 Ker 244.
Gaurav Nagpal v. Sumedha Nagpal A.I.R 2009 SC 557.
Gian Singh v. State of Punjab 2010 (12) SCALE 461; (2012) 8 SCC 303.
Giridhar Shankar Tawade v. State of Maharashtra , 2002 Cri LJ 2818; AIR 2002 SC 2078;
2002 (1) HLR 685 (HP) (DB).
Girija Shankar v. State of Madhya Pradesh, 1985 Cri.LJ 242 MP.
Gokuldas Vaingankar Naik v. State of Goa 2001 (4) Crimes 546 (Bom.).
Gollins v. Gollins (1963) 2 All ER 966 (HL).
Gopal v. Mithelish AIR 1979 All 316.
Gopal Lal Bolya v. Gayathri Devi 1989 (1) CCC 139 (Raj.).
Gul Mohammed v. Emperor AIR 1947 Nag. 121.
H
Hamid Hussain v. Kabra Begum, A.I.R 1952 All 145.
Hamida vs. Rashid 2008 1 SCC 474.
Hans Raj Saxena v. State 2011 (4) MLJ (Crl) 1.
Harbhajan Singh Monga v. Amarjeet Kaur, AIR 1986 MP 41.
Haridas v. State of West Bengal A.I.R 1964 SC 1173.
Harijit Singh v. State of Punjab
Hiralal v. State (Government of NCT) Delhi 2006 Crilj 554.
Hiralal v. State (Government of NCT) Delhi 2006 Crilj 554
Holden v. Holden (1810), 1 Hag Con, 453.
Humayun, (1907) PR No.26/1908.
Hybertson v Hybertson, [(1998) 582 N.W. 2d 402,
I
In re: Matter of Matrimonial Disputes, 2011 (102) AIC 9 (All.).
In re: Enforcement and Implementation of the Dowry Prohibition Act, 1961.
A.I.R 2005 SC 2375: (2005) 4 SCC 565: 2005 SCC (Cri) 1163.
Inder Raj Malik v. Sunitha Malik (1986 Crilj 1510 Del.).
Indubai v. Koutik, (1982) 1 DMC 93 (MP).
Itwari v. Smt. Asghani AIR 1960 All 684.
Ivens v. Ivens, (1954) 3 All ER 446.
J
J.P. Chourasia v.State, (1994 (3) Crimes 404);
Jagraj v. Bir Pal Kaur, JT 2007 (3) SC 389.
Jamieson v. Jamieson (1952) AC 525.
Jitendra v. State of U.P, 2000 Cri. LJ 3087 (All);
Jogindar Kumar v. State of U.P, AIR 1994 SC 1349.
John Idiculla & another v. State of Kerala & another (2005) Cri LJ 2935 (Ker.).
Jorden Diengdeh vs. Swaran Singh Chopra AIR 1985 SC 935.
K
K.R Manjunatha v. Veena AIR 1999 Kntk 64.
K. Srinivasa Rao v. D.A.Deepa 2013 STPL (Web) 152 SC.
K.Srinivas v. K. Sunita (2014) 16 SCC; 2014 SCC OnLine SC 915
Kakumanu Jaya Prasada Rao v. State of Andhra Pradesh 2005 (1) Crimes 478 (A.P).
Kaliya Perumal v.State of Tamilnadu; 2004 (9) SCC 157; AIR 2003 SC 3828)
Kalpana Srivastava vs. Surendranath, AIR 1985 All 253.
Kamala Bhai vs. Ratnavelu, AIR 1965 Mad 88.
Kamalapapi, 1979 Cri. LJ 679: AIR 1979 SC 777.
Kamesh Panjiyar @ Kamlesh Panjiyar v. State of Bihar, MANU/SC/0076/2005; (2005) 2 SCC 388; 2005Cri LJ 1418.
Kamireddy Mangamma and Ors v. State of Andhra Pradesh , Criminal Petition No. 6642 of 2007
Kamini Gupta v. Mukesh Kumar Gupta, AIR 1985 Del 241;
Kanaraj v. State of Punjab, AIR 2000 2324, 2000 Cri.LJ 2993: (2000) 5 SCC 207.
Kaniz Fatima v. State of Rajasthan & Anr, 2008 (104) RD 305.
Kaslefsky vs. Kaslefsky, (1950) All ER 398 p.403.
Kaushalya v. Wasikaran AIR 1961 Punj 520.
Kaushalya vs. Masat Ram, AIR 1981 HP 63.
Keshab Chandra Panda v. State of Orissa, (1995) 1 Crilj 174 (Ori.)
King vs. King (1952) AC 584.
Kiran Mandal v. Mohini Mandal, AIR 1989 Punjab & Haryana 310.
Kiran v. Surendra (1982) RLR Note 32.
Kishan Bahadhur v. State of A.P ., 1994 Cri LJ 1418(A.P);
Krishna v. Alok Ranjan AIR 1985 Cal 4431
Knoll v. Knoll, 10 D.L.R. (3d) 199,
Kondal vs. Ranganayaki Ammal, AIR 1924 Mad 49.
Koppisetty Subbarao v. State of Andhra Pradesh (2009) 3 Cri.LJ 3480 (SC).
Krishnan Lal v. Union of India , 1994 Cri LJ 3472 (P&H).
Kunju Moideen v. Syed Mohammed; AIR 1986 Ker 48.
Kusumlata v. Kampta Prasad AIR 1965 All 280.
L
L.S. Arnesh Kumar vs State of Bihar & Anr , AIR 2014 SC 2756, (2014) 8 SCC 273,
Lalita Kumari v. Government of Uttar Pradesh and Others AIR 2012 SC 1515.
Lajapatrai Sehgal v. State, 1985 Crilj 888.
Lajwanthi Chgndhok v. O. N. Chgndhok, AIR 1982 NOC 111.
Lakshmi Maruthi Hara Gopal v. P. Seshu Kumari 2004 (2) HLR 498.
Laloo vs. Bachi, AIR 1986 Raj 49,
Le Brocq v. Le Brocq, [(1964) 3 All E.R. 464 at p. 465, 402],
La Ravere v. La Ravere, [4 FLR 1]
Luther v. Luther, [(19780 5 R.F.L (2d) 285, 26 N.S.R. (2d) 232
Love Kumar v. Sunita Puri ; AIR 1997 Punjab &Haryana 189: 1997(1) HLR 179.
M
Md. Abbas v. M. Kunhipathu, AIR 1975 Ker 129.
Md. Abdul Zalil Ahmed v. Marina Begum AIR 1999 Gau 28.
M.P.Lohia v. State of West Bengal 2005 (10 Supreme 766.
Mr. Ishpal Singh Kahai v. Mrs. Ramanjeet Kahai II (2011) DMC 250.
Madan Lal v. Sudesh Kumar AIR 1983 Del 93.
Madhuri Martand Chitnis v. Mukund M. Chitnis 1992 Crilj 111 (Bom).
Madhurima Bhargava v. State of Uttar Pradesh (1999) Cri LJ 685 (All).
Madumuri Suryanarayana Raja v. State, 2003 Cri LJ NOC 75 (Kant.); AIR 2002 Kant HCR 3196.
Mahesh Chand v. State of Rajasthan, (AIR 1988 SC 2111)
Mallappa Reddy v. State of Madras, (1903) 27 Mad 127, 128.
Manaharlal Singh v. Yogesh Kumar Kanhailal, (1998) India Judicial Reports 15 (Guj) 28.
Manju Ram Kalita v.State of Assam, AIR 2009 SC (Supp) 2056.
Mangesh Balkrushna Bhoir v. Leena Mangesh Bhoir, A.I.R 2016 (NOC) 364 Bom 1.
Manoj Kumar v.State of Rajasthan (1999) Cri LJ 10 (Raj).
Manoj Sharma v. State 2008) 16 SCC 1.
Maria Linda v. Ashley Joseph, AIR 1993 Bom 110.
Mary Sonia Zachariah v. Union of India (1990) 1 Ker.LT 130.
Masarati v. Masarati (1969) 1 WLR 393.
Mayadevi v. Jagadeesh Prasad , AIR 2007 SC 1426; I (2007) DMC 325 SC.
Meera v. Vijay AIR 1994 Raj 35.
Missouri v. Danforth, 428 U.S. 52, 67-72 (1976).
Moonshee Buzloor Ruheem v. Shumsoonissa Begum (1867) 11 MIA 551
Mohinder vs. Bhagram, A.I.R 1970 Bom 312.
Monica v. Swaran; 2001 (2) HLR 136 (Gau.).
Mukesh Rani v. State of Haryana 2002 (1) RCR (Criminal) 163
N
N. Sreedharacharya v. Vasantha AIR 1970 Mys 232.
Nand Kishore v. State of Rajasthan 2009 (2) RCR (Criminal) 909 (Rajasthan).
Narayan, 1972 Cri. LJ 1446 (Del FB).
Narendra Kumar Gupta v. Indu AIR 2002 Raj 169.
Narottam Singh v. State of Punjab, AIR 1978 SC 1542.
Nathulal v. Nathibai; (1997) DMC 598.
Naveen Kohli v. Neelu Kohli (2006) 2 Supreme 627.
Narinder Singh v. Rekha AIR 2007 Del 118.
Narinder Singh v. State of Punjab JT 2014 (4) SC 573];
Nazimunnisa v. State of Karnataka (2006) 1 Kant LJ 577.
Neelam v. Vinod Kumar AIR 1986 P&H 253.
Neeta Sanjay Tagade v. Smt.Vimal Sadhasiv Tagade (1999), Cri LJ 3263 (Bom.).
Neorbibi v. Pir Bux AIR 1971 Ker 261.
Nihar Bala Banerjee v. State of West Bengal , 1989 Crilj (NOC) (Cal).
Nikhil Merchant v. Central Bureau of Investigation (2008) 9 SCC 677; MANU/SC/7957/2008
O
Oliver v. Oliver (1801) 161 ER 581.
Om Prakash v. Rajni AIR 1988 Del 107.
P
P.C Gupta, 1974 Cri. LJ 945 (All FB).
P.K. Bharucha vs. Aloo, AIR 1984 Bom 75 at 80.
P.L. Sayal v. Sarla, AIR 1961 Punj 125.
P.Mohanarao v. Vijayalakshmi, AIR 2007 NOC 2494 AP.
P. Rathinam Nagabhusan Pattnaik v. Union of India, JT (1994) 3 SC 392.
Padmaben Patil v. State of Gujarath, (1991) 1 SCC 144.
Pawan Kumar v. State of Haryana, (1998) 3 SCC 309: AIR 1998 SC 958.
Pinky Jain v. Sanjay Jain, 2005 (3) CCC 542 Delhi.
Planned Parenthood of Southeastern Pennsylvania et al v. Robert P. Casey et al 505 U.S. 833 (1992).
Polavarapu Satyanarayana @ Narayan v. Polavarapu Soundaravalli & Others (1987) 3 Crimes (AP) 471.
Prakash Chander v. State, 1995 Cri LJ 368 (Del).
Parakkattil Abu v. Pachiyath Beekkutty AIR 2011 Ker 38.
Pinakin Mahipatray Rawal vs. State of Gujarath, 2013 AIR (SCW) 619;
Poonam Gupta v. Ganashyam Gupta AIR 2003 All. 51.
Prasana v. Dhanalakshmi 1981 Cri LJ 1829 Mad.
Pragati Varghese v. Cyril George Varghese AIR 1997 Bom 349.
Pramodh Kumar Padhi v. Goleka, 1986 Cri. LJ 1634 (Ori.).
Praveen Singh v. Kanchan Devi 1990 (1) DMC 24 (HP).
Pratibha Rani v. Suraj Kumar, AIR 1985 SC 628; (1985) 2 SCC 370.
Pran Nath v. Pushpa Devi I (2007) DMC 211 Del.
Praveen Mehta vs. Inderjeet Mehta, AIR 2002 SC 2582,
Preeti Gupta v. State of Jharkhand, A.I.R. 2010 SC 3363.
Prem Dass v. State of H.P., 1993 Cri LJ 707 (H.P).
Premwathi v. State of Madhya Pradesh, 1991 Crilj 268 (MP).
Prithpal Kaur v. Jagrup Singh AIR 1999 P&H 16.
Public Prosecutor v. T. Punnaiah , 1989 Cri LJ 2330 (AP).
Puran Singh v. Shanti Devi II (2002) DMC 279 Raj.
Purushottam Dass v. Purnima 2006 (4) CCC 750.
R
Radha Shyam Saraf v. Mamatha Saraf; (2006) 1 Femi Juris CC 18 (Chhatt).
Radhey Shyam Sharma v. Kusum Sharma 1990 (1) DMC 290 (M.P).
Rajammal v. State, 1993 Cri LJ 3029 (Mad).
Rajeev Verma v. State of Uttar Pradesh (2004) Cri LJ 2956 (All).
Rajesh Kumar Saxena v. Nidhi Saxena 1995(1) HLR 472.
Rajinder Bhardwaj v. Anitha Sharma; AIR 1993 Delhi 135.
Rajinder Sigh v. Taramati AIR 1980 Del. 213.
Rakesh Goyal v. Deepika Goyal, I (2007) DMC 457 P&H.
Ramekbal Singh v. Harihar Singh, AIR 1962 Pat 343.
Ramesh Chand v. State of Uttar Pradesh, 1992 Cri LJ 1444 (All).
Ramesh v. State of Tamil Nadu, 2005(2) RCR (Criminal) 68: [2005(3) SCC 507]
Ramesh Jangid v. Sunitha AIR 2007 Raj 160.
Ram Gopal v. State of Madhya Pradesh2010 SCALE 711.
Rani Devi vs. Hasan Lal, AIR 1988 (P&H).
Ratna Banerjee v. Chandra Madhab Banerjee I (2007) DMC 566 Cal: (2006(2) HLR 363).
Ravindra Pyarelal Bidhan v. State of Maharashtra , 1993 Crilj 3019 (Bom).
Reema Aggarwal v. Anupam & Others; AIR 2004 SC 1418, 2004 Crilj 892 (SC)
Reynold Rajamani v. Union of India AIR 1982 SC 1261.
Rishiram v. State of Madhya Pradesh 1995 (4) Crimes 162 (M.P).
Rishi Kumar v. State of Haryana, 1997 Cri LJ 196.
Rita Nijhawan v. Bal Krishnan Nijhawan AIR 1973 Del 200.
Rita v. Brij Kishore AIR 1984 Del 291.
Roop Ram v. State of UP, Criminal Revision No 2308/2009, Allahabad High Court.
Rubin Roy Choudary v. State, 1998 Cri. LJ 1699 (Cal),
Rulia Singh v. Kartarao; [1 (1990) DMC 521].
Rupe Lal v. Kartaro, AIR 1970 J&K 158.
S
S.Gopala Reddy v. State of Andhra Pradesh (1996) 4 SCC 596.
S. K. Garg v. Chanchal Kumari I (2005) DMC 96 P&H.
T. Prabhakaran v. State of Kerala 2009 (2) RCR (Civil) 883 (Kerala).
S.R. Batra v. Smt. Tarun Batra. AIR 2007 SC 1118.
Salem Advocate Bar Association v. Union of India-I 2003(1) SCC 49.
Salem Advocate Bar Association v. Union of India-II AIR 2005 SC 3353. 2005(6) SCC 344.
Salem Bar Association Cases I &II. 2005(6) SCC 344 & (2010) 8 SCC 24.
Sanapareddy Maheedhar and Anr v. State of Andhra Pradesh and Anr, 2008 AIR (SC) 787;
2008 Cri.LJ 1375.
Sanjeev Kumar and Others v. State of U.P 2011(2) JIC 481: 2011 (73) ACC 613.
Saptami v. Jagadeesh (1969) 87 CWN 502.
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.
Santhosh Singh v. Izhar Hussein, AIR 1973 SC 2190.
Sarita v. R. Ramachandra (2003) DMC 37 (DB).
Sarla Prabhakar Waghmare v. State of Maharashtra 1990 Cri LJ 407.
Sarvana Perumal vs. Sasikala Perumal (reported in ILR 1969 Mad 845),
Satya v. Siri Ram AIR 1983 P&H 252.
Satish Kumar Batra v. State of Haryana, 2009 SC 2180. (2009) 12 SCC 191).
Satish Kumar Sharma v. State of Haryana, AIR 2009 SC 2180; (2009) 12 SCC 191.
Satish Sitole v. Ganga AIR 2008 SC 3093.
Satvir Singh v. State of Punjab; 2001 (8) SCC 633.
Savitri s. Mulchand AIR 1987 Del 52.
Savitri Devi v. Ramesh Chand & Ors. (2003) Cri LJ 2759 (Del). 2003 (3) Crimes 100 (Delhi);
Savitri Pandey v. Prem Chandra Pandey, AIR 1975 SC 1534.
Satbir Singh v. State of Haryana, AIR 2005 SC 3546: 2005 Cri LJ 4137.
Samir Samantha v. State [1993 Cri LJ 1134 (Bom).]
Sandhya Manoj Wankhade V. Manoj Bhimrao Wankhade and Others (2011) 3 SCC 650.
Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Others. (2011) 3 SCC 650.
Sanjeev Kumar and Others v. State of Uttar Pradesh and Others
Criminal Misc. Writ Petition No.3322 of 2010.
Seema vs. Ashwani Kumar AIR 2006 SC 1158.
Seran v. Pyli, AIR 1959 Ker 75.
Shah Chandulal, 1980 Cri. LJ 514 (Guj.).
Shankuntala v. Om Prakash AIR 1981 Del 53; 1981 (1) DMC 25 (Delhi).
Shanthi Devi v, Raghav Prakash: 11 (1985) DMC 85; AIR 1986 Raj 13.
Sheldon v. Sheldon (1966) 2 All ER 257.
Shivcharan Lal Verma v. State of M.P 2002(3) Supreme 168.
Shiv Kumar Prasad Singh v. State of Bihar, 1984 Cri. LJ 1417 (Pat).
Shyamsundar v. Santhadevi AIR 1962 Orissa 50.
Shobha Rani v. Madhukar Reddy, AIR 1988 SC 121 Para 9; (1988) 1 SCC 105
Smt.Begum v. State of Uttar Pradesh 2005 (3) Crimes 796 (All.).
Smt. Neera Singh v. State (Govt.) of NCT, Delhi and Others. I (2007) DMC 542 - 545; 138 (2007) DLT 152.
Smt. Shanti v. State of Haryana, AIR 1991 SC (1226) 1230.
Smt. Sujatha Mukherjee v. Prashanth Kumar Mukherjee AIR 1997 SC 2465.
Som Mittal v. Government of Karnataka, Criminal Appeal 206 of 2008; (2008) 3 SCC 574.
Sofia v. Zaheer, AIR 1933 Oudh 15.
Solomon Devasahayam v. Chandrirah Mary (1968) Mad Lj 289.
State v. Bijay (unreported judgment)
State (Delhi Admn.) v. Laxman Kumar, AIR 1986 SC 250;
State of Bihar v. Deokaran Nenshi AIR 1973 SC 908.
State of Himachal Pradesh v. Nikku Ram, (1995) 6 SCC 219: 1995 SCC (Cri) 1090.
State of Himachal Pradesh v. Tara Dutt (2000) 1 SCC 230.
State of Haryana and Others v. Bhajan Lal AIR 1992 SC P.604; 1992 Cri.LJ. 527
State of Karnataka v. M.V. Manjunatha Gouda, AIR 2003 SC 809.
State of Karnataka v. H.S. Srinivasa, 1996 CriLJ 3103.
State of Karnataka v. H.S. Ravanasiddappa, 1994 Cri. LJ 2928;
State of Maharashtra v. Vasantha Shankar Mahasane, 1993 Cri LJ 1134 (Bom).
State of Maharashtra v. Sanjiv Bhimrao Kamble 2016 All M R (Cri) 2058.
State of Punjab v. Iqbal Singh , AIR 1991 SC 1532.
State of Punjab v. Iqbal Singh, (1991) 3 SCC 1: 1991 SCC (Cri) 513.
State of Punjab v. Kirpal Singh, 1992 Cri LJ 2472.
State of Punjab v. Sarwan Singh 1981(3) SCC 34.
State of Rajasthan v. Gopilal (1992) Cri. LJ 273 (Raj).
State of West Bengal v. Ori lal Jaiswal, (1994) 1 SCC 73: AIR 1994 SC 1418;
Sudharam v. Thadaveshwara, (1946) Tra LR 224 (FB). (Travancore)
Sukhwinder Kaur v. Jatinderbir Singh I (2007) DMC 492 P&H.
Sulekha vs. Kamala kantha. AIR 1980 Cal 370.
Suman Khanna v. Muneesh Khanna, ILR (2011) V DELHI 488; 2011 (122)
Surjya Hariani, (1901) 6 CWN 295.
Susarla Subrahmanya Sastry v. S. Padmakshi II (2005) DMC 707 AP.
Sushil Kumar Sharma v. Union of India &Ors., A.I.R. 2005 SC 3100, JT 2005 (6) SC 266.
Sushil Kumar v. State of Bihar 2006(4) Crimes 43 (Patna).
Sushil Kumar Verma v. Usha AIR 1987 Delhi 86.
Swapna Ghosh vs. Sadananda Ghosh AIR 1989 Cal 1.
Swarna Kumari v. M.B Chowdary 1996 (3) CCC 238 (A.P).
Syed Hyder Hussain v. State of Andhra Pradesh 2002 (2) Crimes 199 (M.P).
T
U. Venkata Lakshmi vs. State of A.P. 1991 Cri LJ 749
Tr.Romaiah v. State, Inspector of Police, Tamilnadu M.P no.1/2008 Crl.O.P.No.10896 of 2008.
Tapan vs. Anjali, (AIR 1993 Cal 10).
Tapanlal v. State of West Bengal 1992 Cri LJ 1017 (Cal).
Tekait Manmohini Jemadai v. Basantha Kumar Singh[1] (1901) ILR 28 Cal. 750)
Thomas v. Thomas, [(1947) 1 All E.R. 582.
Trimbak Narayan Bhagawat v. Kumudini Trimbak Bhagawat AIR 1967 Bom. 80
Tulasamma v. N. Seenan; 2003 (1) HLR 90.
U
U.Sovetha v. State, AIR 2009 SC (Supp) 1451; (2009) 3 Cri LJ 2974 (SC)
Umar Bibi v. Md. Din AIR 1945 Lah 51.
Umat-ul-Hafiz v. Talib Hussein AIR 1945 Lah 56.
Umawanthi v. Arjun Dev; 1 (1996) DMC 519, AIR 1995 P&H 312.
Undavalli Narayana Rao v. State of Andhra Pradesh, AIR 2010 SC 3708. (2009) 14 SCC 588.
V
V.Bhagat v. D.Bhagat AIR 1994 SC 710; (1994) 1 SCC 337.
V.D Bhanot v. Savita Bhanot AIR 2012 SC 965, (2012) 3 SCC 183.
V.S. Sharma v. State of Uttar Pradesh, 1988 Cri LJ 158 (All.).
Vandana v. Srikkanth 2008 (1) RCR (Civil) 366 (Madras).
Vanka Radha Manohari v. Vanka Venkata Reddy, 1993(3) SCC 4.
Vasant Bhagawat Patil v. State of Maharashtra, 2012 Crilj 65 (Bom).
Vasantha Tulsiram Boyar v. State of Maharashtra, 1987 Cri LJ 901 (Bom.).
Vijaykumar Sharma v. Sadhana Sharma; (1998) DMC 636.
Vijeta Gajra v. State of NCT, Delhi AIR 2010 SC 2712, (2010) 11 SCC 618.
Vinod Kumar Sethi v. State of Punjab, AIR 1982 P&H 372 (FB).
Vishal Damodar Patil v. Visakha Vishal Patil 2009 Crim. LR 107 (Bombay).
Y
Yamuna Bhai and Narayan Jagannath Bhidle v. Narayan Moreswar Pendse; (1876) ILR 8 All 126.
Yogendra Yadav v. State of Jharkhand AIR 2014 SC 3055; 2014 STPL (Web) 481 SC,
Young v. Young (1964) P 152, 158.
Yusuf Abdul Aziz v. State of Bombay AIR 1954 SC 321.
W
Walsham v. Walsham, (1949)
Wazir Chand v. State of Haryana , AIR 1989 SC 378; 1989 Cri LJ 809.
Williams v. Williams (1963) 2 All ER 994.
Z
Zubaidaa v. Sardar Shah AIR 1943 Lah 310.
CHAPTER-I INTRODUCTION
“Sakthi: the feminine term means “power” and “strength.”
All the power comes from the feminine.
1. Introduction
The family is the natural and fundamental group/unit of the society and it is entitled to by society and state.[1]
- Article 16 (3) and Article 25 (2) of the Universal Declaration of Human Rights
According to David M. Walker, ‘family’ is a fundamental and social unit consisting basically of two adults, a male and a female living in one household co-operating in many activities and frequently producing and caring for children. This gives rise to various legal relationships of great social importance, particularly those of husband and wife, parent and child, legitimation, adoption and problems of individual, joint and community property and of inheritance. Legal systems commonly treat the family as a social institution to be preserved and supported. In many systems of different times rules have been sought to encourage family life, favouring marriage, legitimate children and succession within the family. This object has justified provisions in such fields as property, succession, evidence and criminal law as well as in family law itself. [2]
According to Friedman, of all the social groups within the State, the family is at once the well-knit, the smallest and the most enduring. It has always been recognised by philosophers, philosophers, jurists and political scientists, that the closeness and intimacy of family ties make the relationship between State and family a problem of special importance. [3] Traditionally, the ‘family’ is known as the basic unit of the social organisation, and meant for socio-psycho- economic and physical protection, love and care, moral and emotional support and healthy and —
1 Article 16 (3) and Article 25 (2) of the Universal Declaration of Human Rights (UDHR).
2 B. M. Gandhi: Family Law, (Eastern Book Company, Lucknow, Vol.1, First Edition, 2012), p.3. Cited in David M. Walker , ‘The Oxford Companion to Law’.
3 B. M. Gandhi: Family Law, (Eastern Book Company, Lucknow, Vol.1, First Edition, 2012), p.3. Chapter 7, “ Family Law’, Cited in Wolfgang Gaston Friedmann, Law in a changing Society (University of California Press, 1959) 172-75.
optimum development of the characters and personality of its members. It provides the safest and the most secure environment to an individual to grow. Thus, it has been considered as a sphere of intimacy and devoid of conflicts of interests among the members. Family, apart from providing security and emotional support, fulfills certain essential and non-essential functions. It influences the conduct and character of its members. It helps transmit traditions, choice of religion, value-systems and social norms. It controls the sexual impulses of its members. It is, therefore, a strategic social unit. The family, therefore, is a socially recognized unit of people related to each other by kinship, marital, and legal ties. Every society implies its ultimate control over this unit by institutionalization of marriage and the definition of rights and obligations that arise as a result of marriage and consequent reproduction. Through this ideology, women are continued as wives and mothers, having vested with the duty of child rearing and domestic labour. Men on the other hand are continued as husbands and fathers, responsible for the financial welfare of the family.4 In fact, the word ‘Family’ has been derived from Roman word ‘ famulus ’ meaning ‘ a servant’. In Roman law the word denoted the group of producers and slaves and other servants as well as members connected by common descent or marriage.5 Thus, it is apparent that the safest place for men to commit violence is the ‘ home ’. In India, violence in domestic relationship has been directly related to status and role of individuals in the family.
1.1 Status of women in Ancient and Medieval India
The status of Indian woman is best conceptualized in terms of India’s ancient and modern history. Hindu mythology witnesses that the status of Hindu women during the Vedic period was honourable and very respectable. Indian Vedas, Smrithis, Holy Texts, Mythology and the ‘Sayings of religious saints’ and seers demonstrate that women were held in high esteem and honour in the olden days. The women had an exalted position and also enjoyed a fair amount of personal freedom and equality with men. They were treated equal in many aspects. The Hindu women participated in the public sacrifices alongside men. They enjoyed rights of property and took a share in social and religious rites and were sometimes distinguished by their learning. Both boys and girls had equal opportunities for education. The institution of marriage was a
sacrament uniting the parties in an indissoluble union. The husband and wife stood on equal footing. The position of the wife was an honoured one in the household. There was no seclusion of women in India in ancient times. Dowry system was also unknown.
1.1.1 Impact of Muslim Rule
The honoured status that women enjoyed in the family and society during the Vedic era gradually declined with the Islamic invasions. With the coming of Muslim rule, medieval India witnessed enhanced dependency of women on men. Some Islamic practices such as polygamy and divorce, which favored men to give more control over women, influenced Hindus also. During that period, marriage was made compulsory for all the girls except for those opted for asceticism. Polygamy was permitted to all who could afford, and it was especially popular among Kshatriyas for political reasons. The Islamic custom of Purdah (veiling of women) forced the public world to be separated from the private world, with women confined to the latter. Following its subjugation by the Muslims, and fearing adverse outcomes for its women, a large part of the Hindus accepted the practice of veiling.[6]
Repeated invasions by the Muslims further pushed the Indian women towards inhuman traditions such as ‘child marriage, the dowry system, purdah and sati’ (the immolation of the widow on the dead body of her husband).[7] It is yet another phenomenon peculiar to an illiterate, conservative and tradition bound society. It is nothing but a manifestation of the barbaric attitude of man towards a helpless woman who becomes widow on the death of her husband. The irony of fate is that instead of the poor woman getting solace, sympathy and shelter to bear the tragic loss of her husband, she is forced to become or encouraged to be sati. [8]
The challenge of Islamic aggression also made Hindus as defensive and introverted causing a desperate return to orthodox beliefs and practices and further constraining the status of Indian women. The denial of education to the women and early marriage pushed them to an —
6 “ Gender Empowerment of Women ” a manual prepared by MGSIPAP, Chandigarh, p.51.
(Year and Publication is undated).
7 The Word ‘sati’ derives from the word ‘ sat ’ means ‘ truth ’. So, ‘sati’ means a woman who is true -not a woman who spontaneously combusts. From, Kishwar, Madhu Purnima: Zealous Reformers, Deadly Laws: Battering stereotypes, (EBSCO Publishing, Sage Publications Pvt.Ltd, New Delhi, 2008), p.84.
[8]K.D.Gaur, “The poor victim of uses and abuses of criminal law and process in India ”, 27 Indian Bar Review 39 (2000).
inferior status. Illiteracy, ignorance and superstition were conducive to promote the inhuman practice of “Sati”.
1.1.2 Practice of Sati Sahagamana or Widow Burning
‘Sati Sahagamana’ or ‘Widow burning’ was prevalent among certain classes of women, who either took the vow or deemed it a great honour to die on the funeral pyres of their husbands. The Agni Purana declares that woman who commits Sahagamana goes to heaven.6 Al- beruni,7 a Persian Muslim Scholar in his writings, observed that Indian women preferred selfimmolation by the sati to the suffering of life of a widow. It was considered praiseworthy by the Hindus.8 A widow was considered an inauspicious person and was prohibited from wearing colourful clothes, ornaments; decorate hair. Ibn Battuta,9 a Moroccan explorer in his writings commented that the plight of widows was miserable. Thus, during the medieval period, Indian women lost their earlier status and they were almost like domesticated pets caged in the house.
1.2 Position of women before Independence
At the dawn of the British rule, the position of women in the family and society had reached the maximum deterioration. The position of women before independence had been consistently oppressed in nearly all aspects of life from political to personal, public to private. The wife’s position in the house was in a sorrow state of affair because the evils of socioreligious practices, sinister customs, irrational religious rights and human superstitions crept into the society. The plight of the women, thus, became the focal points for social reformation. The reform movements during the British period tackled inter alia, the problems of sati, purdah, widow-remarriage, child marriages, education and property rights. However, the pace of women’s welfare process during the British period was very slow. In order to eradicate the existing social evils, the Hindu Widows Re-marriage Act, 1856 and the Child Marriage Restraint Act, 1929[13] and the like were enacted. However, these laws were ineffective and remained a dead letter for a long time.[14]
1.3 Position of women after Independence
1.3.1 Constitutional Status of Women
After Independence, efforts had been made to promote the welfare of the women. The Constitution of India, which came into force on 26th January 1950, operates as a fundamental law in India. The Preamble to the Constitution briefly crystallizes and solemnly declares among other things; “Justice, Social, Economic and Political” and “Equality of Status and Opportunity” which by implication sought to equalize women. The Constitution of India envisages that all are equal before law irrespective of their caste, creed, religion, race, sex or place of birth. The fundamental rights enshrined in Articles 14,15 and 16 of the Constitution guarantee that women in India should not be treated as inferior to their counter parts in any respect. Article 15(3) of the Constitution empowers the State to make special provisions for the advancement of women and children. The Directive Principles of State Policy under Article 39 also enjoins the State to provide equal right for women and men to adequate means of livelihood. Several laws granting property and other rights to women were passed in India.
1.3.2 Legal Status of Women
In terms of constitutional safeguards is concerned, women in India enjoy complete equality with men in civil and criminal matters, whether they relate to concluding contracts, administering property, practicing of profession, choosing choice of her partner in life and in all respects.
The Indian Penal Code, contains numerous provisions specially deals with certain offences against women which are punishable under Sections 292 (sale, etc., of obscene books, etc), 302/304B, (homicide for dowry or dowry deaths or their attempts), 306 (abetment to —
13 The Act of 1929 was repealed by the Prohibition of Child Marriage Act, 2006.
14 Dr.R.Revathi, ‘Law relating to Domestic Violence’ (Asia Law House, Hyderabad, 2nd Edition, 2009), pp 2-3. commit suicide), 361, 363-373 (kidnapping and abduction for different purposes, 354 (molestation), 366/366B (importation of girls, up to 21 years), 375-376, 376 A to D (sexual offences), 498A (torture/harassment by husbands and in-laws) 509 (sexual harassment) etc. all these are helpful in mitigating offences against women. The inclusion of Sections 354A, 354B, 354C and 354D by the Criminal Law (Amendment) Act, 2013 imposes huge liability in cases of sexual harassment, assault or criminal force with intent to disrobing of women, voyeurism, stalking and stripping respectively. There are special enactments like, the Dowry Prohibition Act, 1961,10 the Indecent Representation of Women (Prohibition) Act, 1986 and the Immoral Traffic (Prevention) Act, 195611 and the Commission of Sati Prevention Act, 198712 and the PreNatal Diagnosis Techniques (Regulation and Prevention of Misuse) Act, 1994 - specially intended to safeguard the women, their dignity and honour. Several other legislations, rules, have been formulated for protecting women from gender-based crimes.
Despite all these safeguards, today, women in Indian society continue to be oppressed, and vulnerable to various forms of violence at home as well as outside. Earlier reforms do not seem to completely have eradicated evils such as 'sati' and social menaces such as dowry and female infanticide, which continue to be practiced.13 In recent years, dowry has become an expected part of the marriage transaction. Dowry demands can escalate into harassment threats and abuse; in extreme cases, a woman is killed or driven to suicide, freeing the husband to pursue another marriage. Such cultural traditions undermine the ability of women to escape from abusive relationships. Cultural attitudes towards female chastity and male honour also provide justification for violence against women.
1.4 Violence by men against women
Crimes which are directed specifically against women and in which only women are victims are characterized as ‘crimes against women’. It is equally important to clarify the concept of ‘violence by men against women’. For women, violence is a phenomenon, where they have been subjected to brutality and inexplicable exploitation for one reason or the other. It starts at their conception and is carried on throughout their entire life span.
Today, violence against women assumes greater importance than what it was earlier. These days violence against women in general and domestic violence in particular is on the increase. Violence within the home is universal cutting across culture, class, education, religion, ethnicity and age. Every day, countless wives are being abused psychologically, physically and sexually by their husbands and in-laws. Starting from domestic violence within the four walls of a home by husbands who are expected to protect them, it extends to the incidences of sexual assaults, marital rape, wife battering and dowry harassments. In the male-dominated society, she has been treated not better than as a commodity, a mere puppet in the hands of her so-called protector, be it father, brother or husband and sons. Her position has been reduced next to nothing but a thing of pleasure. By virtue of this pathetic plight, she has been enduring the cruelty meted out to her in the hands of her husband and his relatives.14 A woman, in Indian setting and culture, has to perform many demanding roles expected from her in her matrimonial home by her husband, father-in-law, mother-in-law, brothers-in-law, and sisters-in-law. All want her to adjust with them, and no one is prepared to adjust with her. If she fails or refuses to make adjustments, she is ill-treated or harassed resulting in family discord and mental agony. Some of the victimised women may turn highly erratic and accident prone. Some of them may try to solve their problems by committing suicide while others resort to desertion or divorce as the case may be. Thus, family/house has become the safest, secluded and isolated area to plan and execute various kinds of crimes.
1.4.1 Historical background of Section 498A, IPC
Dowry is a social practice and deeply rooted in the socio-cultural system of our country. It is linked with custom that has become legitimized in the subconscious minds of the people and is not regarded as immoral and illegal. The Britishers cast a disapproving eye on the practice of dowry. Indian social reformers also realised the malaise. Prior to Independence, the then Provincial Government of Sind made an attempt to control the practice of dowry through the mechanism of law, known as ‘the Sind Deti Leti Act of 1939’. This Act prohibited the giving and taking of dowry, and also prescribed the punishment for violating the provisions of the Act. Following independence, only two states, namely Bihar and Andhra Pradesh enacted legislations for restraining the taking or giving of dowry in a marriage. But, as incidents of dowry escalated, need for a central legislation was felt and the first systematic law to prohibit dowry known as the Dowry Prohibition Act was passed in 1961 (Act 28 of 1961). The Act of 1961 was twice amended, once in 1985 and then in 1986 with a view to giving teeth to the law. However, the amended dowry law may bark but it would not bite. Due to lack of social sanctions and other reasons the Act proved quite ineffective and limited.15 There is a vast difference between theory and practice. The position of married women is unsafe. The married women are treated with cruelty. The dowry that they brought with them, their entire property, the stridhan, is retained by the husband and his family members. Such women have no remedy to recover the same. The civil suit that they have a right to file is dilatory and thus self-defeating.16
The Feminist’s movement, in the early part of 1980’s initiated campaigns against rape, wife battering and dowry deaths, which put the issue of violence against women on the political agenda. There has been a commensurate increase in the rate of dowry deaths and bride immolation. Women Organisations across the country pressurized the Government to provide legislative protection to women against marital violence and dowry-related deaths, so that the victim gets justice while she is still alive.17 With a view to remedying the inherent weakness of the Dowry Prohibition Act, 1961 a private bill was introduced in the Parliament by Smt. Pramila Dandavate, Member of Parliament on June 13, 1980.[23] The bill was considered, and the Joint Committee of Parliament was constituted on working of the Dowry Prohibition Act, 1961 and to suggest effective measures to eradicate this evil of dowry. The Committee identified several impediments for the abject failure of the enactment: the narrow definition of dowry, procedural lapses in filing cases and lack of deterrent punishment against the offenders. The Committee suggested interalia a number of important changes that are intend to be incorporated in the Act of 1961. The Committee also suggested that the cruel treatment to a married woman for demanding and procuring dowry must be made punishable and stringent punishment is required.
As a result of intense campaigning and in the wake of recommendations made by the Law Commission of India in its 91st Report (1983) some significant amendments were introduced in the Criminal Law to deal more effectively with dowry deaths and cruelty to married women[24]. The offence under Section 498A, was inserted by Section 2 of the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) by way of a separate Chapter XX-A in the Indian Penal Code (hereinafter called - IPC), 1860 which defines ‘of cruelty by husband or relatives of husband.’
The Act 46 of 1983 also amended the Code of Criminal Procedure, 1973 and the Indian Evidence Act, 1872 and added Section 198A in the Code and Section 113A in the Act, which limited the scope of operation of Section 498A IPC and an artificial presumption of law was introduced for offence committed within a period of 7 years respectively[25]. Further, Section 304B, a new provision on ‘dowry death’[26] was also introduced in the Penal Code with a view to curbing the practice of dowry death. The provisions under Section 304B are more stringent than that provided under Section 498A. This was a major step forwarded for the campaign against violence on women especially in the area of domestic relationship. It put an end to the so-called sanctity of the home and brought their private issues within the legal purview.
1.5 Statement of the Problem
Section 498A, IPC is the first law in the Indian context that deals with violence on women within the marriage/home. The chief objective of this law is to punish the husband and his relatives who torture and harass the wife with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or wilfully drive her to commit suicide or cause grave danger to her life, limb or health18. To make the offence deterrent, Section 498A prescribes a sentence of three years imprisonment and also a fine.
It is an agreeable fact that among the many laws passed by the legislature to criminalise oppressive practices against women, Section 498A, IPC has been most controversial and newsworthy. This provision is said to have brought some relief to women, whose life has become miserable because of torture and violence perpetrated against her by her husband or his relatives. However, since its inception, a few voices have been complaining that the laws originally meant for the protection of the rights of women are being misused by some wives, against their husbands and in-laws. These few voices are Men’s Rights Organisations which have come across harassed individuals and their families. The opponents to this provision termed it as unfair and responsible for victimisation of husbands by their wives and their parents. With the rise in education, financial security, modernization and a new found independence some women have made 498A, as an assassin’s weapon. This is certainly a serious accusation in the face of rising incidents of domestic violence reported every year.
1.6 Need for the Research
Traditionally women are subjugated to the whims and caprice of men, especially in the relationship of wife and husband. Therefore, to extend protection to the weaker spouse and to curb the barbarous acts of violence of any kind occurring within the family including dowry deaths, several legislations have been enacted. At the same time, it is surprising to note that no attention was paid by the lawmakers to the fact that males can also be subjected to such harassment in the hands of the women in certain circumstances.
In the last thirty years of Criminal Law reform, a common argument made against the ‘ laws relating to the crime against women’ in India has been that women misuse these laws. The allegation of misuse made against Sections 498A and 304B, IPC and Section 23 of the Domestic Violence Act.[28] Allegations of misuse of such provisions of law by women have been voiced consistently over a number of years, and there are Court judgments where such observations are included. The Judges of various High Courts and the Supreme Court, the Police, the Civil Society even the politicians have offered these arguments on misuse of these laws vehemently. The studies conducted by certain Civil Society Groups on the issue of ‘use and misuse of matrimonial provisions’, reveal that in majority of the cases Section 498A, IPC has been used as a machine for causing distress and harassment to the husband and his family members in certain circumstances. The impugned provision has put many innocent persons behind the bars on the basis of wrong and false accusations by their wives.[29] The cases of false implication in dowry- related matters have reached an alarming level that almost every married male person and his relatives are afraid of it. As a result, the legal relief for a bonafide sufferer is either delayed or denied. There are real victims of these offences.
Many women’s rights groups justify the misuse of this provision as being a common feature with all other laws and that also the ratio of false cases to that of true ones as being very low. But, this still does not change the truth that there is slowly a rise in the misuse of Section 498A, IPC. It is also not disputed that there are many genuine cases of torture on women, but instances of torture on husbands are also there.
Law is always to protect its subjects and to ensure justice which is its end. But, when a ‘piece of legislation’ becomes a ‘symbol of terror’ for the subjects, it is horrible. Domestic violence is a complex social behaviour and the social organisations of courts, the police and the advocates systematically tend to devalue the cases of domestic violence. Section 498A was introduced in the Penal Code in 1983 and the reforms of the thirty years have not been adequately evaluated at all by the Government with respect to their deterrence goals, despite the institution of law and policy to criminalise domestic violence. The studies conducted by the law enforcement agencies on this subject stand in high contrast with the extensive efforts of activists, —
28 S.23 of the PWDV Act provides for grant of interim orders by the Magistrate. He may also pass ex parte orders on the basis of affidavits given by the aggrieved person.
29 Kiran Singh: ‘ Protection of innocent victims of matrimonial offences’, Cri LJ 2012, p.241, para 1. victim advocates and prosecutors in mobilizing law and shaping policy to stop domestic violence. It is important to do these studies to correct the general misconception that women are misusing the law by filing false cases against their in-laws in order to harass and get them convicted. The perspective of the state and its agencies need to change from that of protecting the husbands and in-laws against potential misuse of the laws of domestic violence to that of implementing their real purpose.
A program of research and development is urgently required to advance the current state of knowledge on the effects of legal sanctions on domestic violence, and to address the issue of abuse of this law19 as inter alia the ramifications of its abuse are far more damaging the institution of marriage. The problem is assuming such an enormous magnitude that it has become vital to study it in all its aspects and ramifications: social, cultural, economic as well as legal. The system itself requires a re-look to counter the evil. In this context, it has been undertaken a study on ‘Section 498A, IPC’.
1.7 Justification of the subject
The main purpose for the selection of the present subject i.e., ‘Cruelty against married women’ is to highlight the matrimonial violence and its effects on the society and also to study the existing criminal law and family law provisions in India. The judiciary has failed to give justice to the real victims of the dowry harassment cases since it is hard to differentiate between the real victims and false accusations and sometimes real victims fall prey to the unfortunate situation and that is why it has earned the infamous title of being a ‘legal terrorism’ as quoted by Justice Arijit Pasayat of the Supreme Court.20 It was always in the mind of the researcher to check whether there is necessity of more adequate law to prevent the problem of matrimonial violence. Hence, the present subject is selected.
1.8 Objectives of the Study
The present study is one of the inquiries to discern, as to how; a ‘law’ can effectively create desired effect regarding legal right of married women and the law which can work as an instrument of social change. Hence, the Researcher has been formulated the following objectives.
- To explain and critically analyse the basic principles of the law relating to marital violence, particularly the provision of 498A, IPC and allied provisions,
- To understand the prevalence and trends of matrimonial cases instituted under Section 498A, IPC and allied provisions in which ‘Cruelty’ is a common component,
- To check the prevailing situation in the light of accusations levelled by the Civil Society Groups regarding the misuse of matrimonial provisions, and to assess the need for the provision of 498A, IPC,
- To analyse and examine the effect upon the husbands and their families, if the misuse claimed is true, to what extent they are adversely affected,
- To assess the perspective and attitude of different stakeholders including the Police Personnel, Public Prosecutors, Defence Counsel, Judicial Officers, Teachers of Law, and Students of Law towards the use or misuse of the matrimonial provisions,
- To suggest steps to check indiscriminate and unwarranted arrests while dealing with the cases of cruelty under Section 498A, IPC and
- To suggest amendments to the existing law and to recommend practical solutions to the problems associated with the law relating to cruelty.
1.9 Hypotheses
In view of the proposed objectives, the following statements have been hypothesized.
1. There is a high number of marital violence,
2. The prevalent cause for such violence is demand for dowry,
3. The majority of the victims are not aware of the law,
4. The anti-dowry law is being misused,
5. The law has had impact on the lives of victim as well as accused and their families, and
6. Mediation is the best measure to resolve all matrimonial disputes including cases Under Section 498A, IPC.
1.10 Research Design and Methodology
The research methodology adopted by the researcher for the present study is both doctrinal and non-doctrinal or empirical research. Both the methods of research are pursued to test those hypotheses that pose the research issues of law relating to matrimonial offences.
For the purpose of doctrinal study, data will be collected from various sources like text books on the subject, articles from law journals, and magazines. The doctrinal part examines the theoretical bases and legal solutions offered to deal with the problem of cruelty against married women. The methodology applied to conduct this research is of content analysis and descriptive method. The content analysis here will be from the secondary data available to the researcher through various statutes on the research topic, and articles published different journals and text books, and other sources like judicial observations passed in recent times by higher judiciary. Further, the problem at hand has enormous importance, concerning the society in general and women in particular; an empirical method of research has been conducted through the questionnaire method. The empirical study will be based on critical analysis of primary data. The study made an attempt to collect primary information from the litigants of matrimonial offences, who have initiated cases under Section 498A, IPC and allied provisions including the Domestic Violence Act, 2005 under the jurisdiction of various courts in the State of Andhra Pradesh during the study. The study also made an attempt to collect views of stakeholders who are closely associated with criminal justice system like judicial officer’s, prosecutors and defence advocates and police. The study extended to collect the views of academicians like lecturers of law and students of law from various law colleges to understand whole process of criminal justice system and its application.
This study is undertaken with the purpose of gathering and analyzing responses from a cross section of society on the said research problem i.e. cruelty against married women. An attempt has been made to understand the perceptions of different categories of stakeholders, affected directly or indirectly by the implication of Section 498A, IPC. Basing on the responses, some inferences are sought to be drawn to arrive at rational conclusion and hence, making constructive suggestions. The research problem is therefore, a preliminary study on Section 498A, IPC as perceived by the sample population, identifying the arguments put forth-for and against it and arriving at lucid findings on the research problem. Here, the researcher’s idea is to study the problem of ‘cruelty against married women’ as a social problem and the existing legal provisions related to violence that is perpetrated against married women in a domestic relationship.
1.10.1 Universe and Sample
The estimated sample size of the study is 1000, among them 500 respondents ‘ litigants of matrimonial offences ’, and 500 ‘ different stakeholders ’ who closely associated with Criminal Justice System and also academicians on the subject in hand. For questionnaire 1, a sample of 300 litigants, both the victim and the accused, who were solely litigants of matrimonial offences within the jurisdiction of various courts in the State of Andhra Pradesh responded while for questionnaire 2, a total of 200 stakeholders responded from various towns and cities in the States of Andhra Pradesh, Telangana, Tamilnadu, Karnataka, and Orissa, for the purpose of present study. The total respondents for both the questionnaires I & II are five hundred (N=500) and the average response rate is 50 percent.
In selecting the sample, it is adopted ‘ stratified random sampling’. The sample is selected without any bias, and they are administered questionnaires consisting of structured questions.
1.10.2 Sampling Procedure
A three-stage sampling procedure has been followed in the selection of samples for the purpose of Part-I of the empirical study. In the first stage, seven coastal districts from the State of Andhra Pradesh have been selected on the basis of convenience.
In the Second stage, two blocks from each district have been chosen to represent both urban and rural background of the sample. Accordingly, Srikakulam and Itchapuram (both are urban) and Kaviti and Besi Ramachandra Puram (both are rural) have been selected from Srikakulam district. Accordingly, Vijiyanagaram and Parvathipuram (urban) and Venu Gopala Puram and Seetha Nagaram (rural) have been selected from Vijiyanagaram district. Accordingly from Visakhapatnam district Visakhapatnam and Anakapalle (urban) and Padmanabham and Simhachalam (rural) and from East Godavari district Rajahmundry and Kakinada (urban) and Daksharamam and Pitapuram (rural) have been selected. From West Godavari district, Eluru Tenali and Bhimavaram (urban) and Akivedu, Palakol and Dirsamurru (rural) and from Krishna district Vijayawada and Machilipatnam (urban) and Kaikalur and Malleswara (rural) have been selected. Finally, from Guntur district, Guntur and Narasaraopet and (urban) Mangalagiri and Tenali have been selected. Thus, the number of cities and villages covered for this study are 18 (i.e., urban 9 + rural 9 = 18).
In the third stage, 18 sample victims each of matrimonial offences litigants (both the victims as well as the accused) have been selected from each sample district (Total cases 18*7= 126).There were 500 samples distributed to represent urban and rural background, and responses are 300, the response rate is 60 percent.
For the purpose of Part-II of the study the respondents are also choosed at random from different stakeholders of the criminal justice system including academicians and civil society groups. The Researcher visited the offices of the Attorneys, Chambers of the Judges, Police Stations, Law Colleges, Universities, and the Offices of the NGOs who are working with women or on legal reforms and requested them to mark their options in the questionnaire. At first the researcher sought prior permission from the respondents to carry-out the study and introduced himself and stated the purpose of the study. They were assured of the confidentiality of their replies to elicit uninhibited answers. The researcher interacted with different classes of stakeholders, and both the victims/wives of domestic violence, and the accused/husbands and other in-laws at their places of residences and offices of the advocates.
While filling up of the questionnaire the researcher explained plainly, each and every question to the respondents, and to create awareness. As some questions contained ‘legal terms’ as per definition/s given in the legislation, and the purpose is to appraise the attitude and perception of the respondents and to gain a better insight towards the problem under inquiry. It is also to be stated that, wherever necessary the researcher translated the questions from English to Telugu, and vice-versa, as most of respondent’s/litigants are not highly educated and their mother tongue is Telugu. Further, some of the questions are provided with more options to choose the opinion of the respondents, because no single factor explains the cause of incidence of domestic violence. Furthermore, in the QUESTIONNAIRE PART, wherever necessary the researcher gives key notes and references to understand the question easily and answer. The answers given by the respondents on different questions are calculated by using the arithmetical method i.e. percentage of responses is worked-out, and the same were analysed descriptively with the help of graphical presentations. The remarks/observations are presented in general as the findings of the study on the subject of matrimonial cruelty.
1.10.3 Rationale for chosen sampling
The rationale for including the litigants of a 498A, case as respondents to the questionnaire is that, they are directly affected by the decision of the Judicial System. The justification for adding rest of the stakeholders is that, though they not directly affected as compared to the litigants of a 498A, case, they are connected with the Criminal Justice System either defending or prosecuting the cases of 498A, IPC and therefore, their observations on the research problem are very significant. In each category, a fair proportion of woman is included. Thus, the method of sampling adopted is initially purposive in so far as the categorization was a deliberate exercise and therefore it was stratified random sampling.
1.10.4 Methodological Note
The present study was in relation to the critical analysis of the provision of law as laid under Section 498A, IPC. The research is being conducted mainly to find out whether the provision in the statute has been implemented properly or not; whether there is any misuse of the provision. The study is intended to suggest amendments, if any necessary, to make the laws more effective for preventing marital violence as well as its misuse, if any, and comment on any other related matter.
In the absence of definitions of certain concepts of law relating to the matrimonial cruelty, an attempt has been made to understand those terms with the help of precedents. It involves an analysis of case law, arranging, ordering and systematizing legal propositions and study of legal institutions. The arguments are made on the basis of ‘ connection, relationship, association, common variables or attributes between things and activities’. Both deductive and inductive methods of arguments are used to frame the generalizations. The inductive method of research has been used for the Doctrinal Method of Research, which examines various causes one after another and tries to establish causal relations between them. General principles are laid down after examining a large number of special instances or facts. On the other hand, the deductive method is used for Empirical Method of Research, which is the study of a phenomenon by taking some assumptions and deducing conclusions from these assumptions. It is felt the research topic being a socio-legal problem; the empirical research is much useful particularly for this kind of research. Hence, the thesis is of both doctrinal and empirical approach.
1.10.5 Concept of Variables
The following are the terminologies which are being used in the research by the researcher i.e. Cruelty, dowry and dowry death.
a. Cruelty
Cruelty has been defined where a woman is harassed with a view to causing her to meet any unlawful demands for any property or valuable security etc. Therefore in order to come into the ambit of cruelty by husband, the harassment must be in furtherance to extract unlawfully from the woman by a man. Unless these two ingredients are satisfied no offence under Section 498A of IPC can be alleged to have been committed.21
b. Violence
Violence represents a physical act of aggression of one individual or group against another or others. Violence can be both physical and psychological indicating aggressive behaviour toward not only the physical well-being but also the self respect and self confidence of women.
c. Domestic Violence
This term is used to indicate any act of physical or mental violence to women/children by their husband or in-laws as reported by the women. In other words, ‘domestic violence’ is the violent victimisation of women within the boundaries of family, usually by men to whom they have been married or with whom they have marriage like relationship.
d. Abuse
Abuse is defined as a situation where a more powerful person takes advantage of a less powerful one.
e. Mediation
Mediation is a voluntary and consensual process wherein the disputing parties are assisted in reaching a mutually agreeable settlement by a neutral third party, whose role is to facilitate communications and discussions, but who has no decision making power.
1.11 Sources of Data
The two main sources of data come from the inner world of library and the outside world of living people. We may call them simply the paper and the people. The researcher studied the laws concerning research topic carefully; effectiveness of the legal provisions and its implementation is obtained informally.
There are two sources of data i.e. primary and secondary sources. Primary sources include statutes, acts etc. and on the other hand secondary sources includes books, articles, magazines, journals, websites etc. The Sources of data used in the present research work are of two types.
1.11.1 Primary or Original Sources
The Primary or Original sources that have been referred to and relied upon are in the legislative enactments made by the Parliament and the State Legislature on the subject matter i.e. the Indian Penal Code, and the Dowry Prohibition Act, 1961 and Indian Evidence Act, and reports of the Law Commission of India, and the Committees like the Parliamentary Committee on Petitions, Rajya Sabha on the perceived misuse of Section 498A, IPC and the Committee on Reforms of Criminal Justice System and other documents like the Standing Orders issued by the Delhi Police etc. in which the research work is carried on.
1.11.2 Secondary Sources
The secondary sources that have been referred to and relied upon are in the Text Books on law, and Articles, Commentaries from Criminal Law Journal and Legal and Political Magazines. The relevant material is drawn from the judgments of the Supreme Court and various High Courts. The tertiary resources in the form of websites and search engines have been browsed extensively to get information and literature on the topic under the study at both national and international.
1.11.3 Sources of Data (for Empirical research)
The empirical part of legal research (i.e. Chapter - VI) was based on the data collected from both primary and secondary sources.
- Primary data thorough filling up of questionnaire regarding Section 498A of Indian Penal Code on a limited scale, and
- Secondary data is of documentary nature, which consists of collection of material from text books written by different authors, periodicals published in various legal journals, reports by various Committee’s on the concerned subject, Bare Acts and Statutes on the subject. The statistics published by the NCRB, the official reporter of the incidences of the crime in India, annually have been substantially used to explain the information wherever necessary. Besides this, relevant information on the research topic was taken from popular law web sites.
1.11.4 Mode of Citation
The present research work has relied on uniform mode of citation for case laws, textual books, articles from journals, Government reports and Non-Governmental Organisations reports, and electronic resources etc. The researcher has followed ‘The Bluebook's unique system of citation’ in this thesis.
1.12 Methods of Data Collection
The researcher has planned research so as to investigate about the problem of ‘Cruelty against married women’ in India and the existing legal parameters in the field of domestic violence in India i.e. both criminal law and family law. While conducting doctrinal research, the researcher has to collect the relevant materials and also visited few websites to find out the current scenario related to the problem. Secondary data have been collected through various propositions advocated and professed by scholars and social theorists, commentaries of social thinkers and eminent personalities, text books written by renowned scholars and social activists, case reports and their analysis, personal opinion of the judges associated with the cases, various international journals and magazines publishing recent trend in cases newspaper articles, online materials from the multiple websites dealing with issues of 498A of IPC and also cases concerning domestic violence.
The study is inter-disciplinary and exploratory. It examines both legal and social aspects of the issue relating to marital violence that is faced by married women in the hands of their husbands and their relatives. The methodology used for the study is qualitative in nature. This approach helps in better understanding the reasons or factors that have a direct impact on the implementation of matrimonial provisions including 498A, IPC on the society. It is to be stated that both Descriptive and Historical Research methods are used by critically analyzing and examining the source materials, for doctrinal method of legal research.
1.1.1 1 Time and Place of Data Collection
The process of filling the questionnaire-I was carried out systematically and extensively from 1st February 2013 to 31st March 2016 covering various cities/towns of Srikakulam, Vizianagaram and Visakhapatnam, East Godavari and West Godavari, Krishna and Guntur Districts of the State of Andhra Pradesh, while the process of filling the questionnaire-II was carried out extensively from 1st February 2013 to 31st December 2015 covering various cities/towns of the State of Andhra Pradesh and the same was extended to an inter-state survey by covering the cities of Berhampur of Odisha, and Bengaluru, Chennai, and New Delhi on a limited scale. For this purpose, questionnaires are mailed to the identified legal personalities as aid above, including the authors of the text books.
The researcher (during the course of research work) personally visited to litigants (sample) to collect the data. Firstly, he explained the purpose of the study, and requested to fill up the questionnaire. Some of them were familiar to such type of tests whereas some of the women respondents were resistant to fill the data. In such situation the researcher assured them that whatever information they furnished would be kept in confidential and used only for research purpose. The respondents were asked to write the name, age, occupation etc. in every questionnaire. Every effort was made for expressing the honest responses. They were asked to be truthful and given opinions about the problem in hand. Oral instructions were given to clarify the doubts on the subject matter or difficulties answering the questionnaires.
1.1.2 2 Tools Employed
The responses that are given by the respondents should be presented in the form of statistical diagrams such as pie-charts, doughnut s and bars through MS Excel. It is processed through Statistical Package for Social Sciences (SPSS). The remarks and observations are presented in general as the findings of the study on the existing laws on the subject of matrimonial cruelty and suggested certain recommendations of which have to be executed for presentation of the research work in this regard.
1.14 Scope and Limitations of the Study
A number of limitations were identified during the course of conducting this research.
The important limitations are:
a. The present research work is focused only upon legal issues relating to and limited to Section 498A, IPC. It theoretically analyses and empirically examines the use or abuse of law relating to the matrimonial offences, with special emphasis on Section 498A, IPC only. However, it briefly explores the causes of dowry menace and corresponding issues wherever necessary.
b. The subject matter of violence is a matter of multiple disciplines and hence in every chapter there is a discussion on violence or cruelty against married women.
c. Cruelty can be both mental as well as physical which is being practiced in different modes in the society in different circumstances. Here for the purpose of the research, the researcher studies into the effects of cruelty from the perspective of matrimonial relationship.
d. As the most of the previous works on research topic were done in the urban areas and also in the mega cities like Delhi, Mumbai, Bengaluru and Hyderabad, the researcher has chosen both the urban and rural areas of the State of Andhra Pradesh.
e. The Part-I of empirical research work is limited in the sense that due to its geographical context, it focuses only on seven districts of the State of Andhra Pradesh.
f. The sample size is on limited scale, covering a total of 500 respondents. Since, the object of the study is to expand the same.
g. It is not possible for the researcher to explore all the violence that is perpetrated against women in their daily life, from womb to tomb. Hence, the researcher has selected the subject of domestic violence in India.
h. As the present study pertains to the role of the legal system within the context of cruelty under Section 498A, IPC information regarding the issues like divorce, maintenanc e among others have been avoid while preparing the report.
i. Since, the present study is an assessment of the implementation of matrimonial provisions; there are some facts and findings i.e. structural factors such as gender and social class and life course variables about the respondent’s viz., age at marriage, duration of marriage and having children are also included in the questionnaire which is meant for litigants of matrimonial offences.
1.15 Review of Literature
The primary sources that have been referred in the present research work are in the nature of ‘declarations and conventions’ adopted on ‘Crimes against women' by India at the international level and various enactments made the Parliament and State Legislature, ‘Reports’ of the Committees, etc. The important among those are illustrated below.
1.15.1 Human Rights Instruments
The issue of advancement of women’s rights has concerned the United Nations since the organization’s founding. United Nations through its various platforms has declared domestic violence to be a serious human rights concern. The organisation has come out with important declarations in this regard. Important among them being, the Universal Declaration of Human Rights (UDHR),22 the Convention on Elimination of All Forms of Discrimination Against Women (CEDAW),23 the Declaration on the Elimination of Violence Against women (1993)24 and the Beijing Platform of Action on Women-1995.[35]25 The study of all these conventions helps the Researcher to know the historical background of the laws concerning domestic violence at international level.
1.15.2 The Criminal Law (Amendment) Acts, 1983 and 1986
The Criminal Law (Second Amendment) Act, 1983 recognised cruelty to married women as an offence under Section 498A, IPC. This amendment has been considered a necessary amendment in the light of rising incidences violence against women. The review of existing legislation helps to know what exactly is dowry, dowry related deaths and suicides and to what extent can it be related to cruelty. The study also helps to critically analyse the genesis, cause, nature, and extent of dowry related torture in the country.
Since ‘cruelty is a ground for divorce’ the study of personal laws assists to understand the prevalence and trends of matrimonial cases that are instituted under various matrimonial laws,
1.15.3 The Protection of Women from Domestic Violence Act, 2005
Section 498A, IPC is designed to punish the offender and does not provide a civil remedy. In order to provide certain remedies in the civil law for the protection of women from being victims of domestic violence and to prevent the occurrence of domestic violence in the society “the Protection of Women from Domestic Violence Act, 2005” (43 of 2005), has been enacted.26 The rights guaranteed under the Act of 2005 are essentially of a civil nature with the mix of penal provisions. The study of this Act helps to articulate different contours of cruelty in a domestic relationship.
1.15.4 National Crime Records Bureau (NCRB) Annual Reports
The study of hard statistics of the incidences of crime against women helps the Researcher to assess the factual position of the women in the country. The NCRB reports have been the principal reference for crime statistics in India, and it provides meticulous and in-depth information on a range of aspects of crime in the country. It publishes exhaustive information based on every aspect of criminality in the society and it provides useful information to the various stake-holders, Law enforcement agencies like Police Personnel, Media persons, Researchers and Non-Gazetted Organisations (NGOs).
1.15.5 Law Commission of India Periodical Reports
The Law Commission of India has taken-up the subject on Section 498A, IPC pursuant to the reference made by the Supreme Court in Preeti Gupta v. State of Jharkhand .27 The Law Commission in its 243rd report (2012) recommended that the offence under Section 498A, IPC should be made compoundable with the permission of the court. The review of periodical reports of the Law Commission helps to examine the institutional response of authorities to their endeavour to prevent and control crimes against married women.
1.15.6 Reports of various Committees
• Justice V.S. Malimath Committee Report
The Justice V.S Malimath Committee on Reforms of Criminal Justice System (2003) has suggested various remedial measures to reduce the misuse of Section 498A, IPC. To implement those recommendations, the Ministry of Home Affairs have issued “advisories” to all the State Governments and Union Territory Administrations on 20th October 2009 for taking effecting measures for prevention of misuse of Section 498A.
• Bhagat Singh Koshyari Committee Report
Dr. Anupama Singh, a resident of New Delhi has submitted a petition, dated 7th July, 2008 to the Chairman Rajya Sabha praying for amendments in Section 498A, and it was admitted on 11th November 2010 and referred to a ten-member Committee on Petitions headed by Bhagat Sigh Koshyari for examination and report. A gist of recommendations is suitably incorporated in its 140th Report.
The study of above reports helps to suggest practical solutions to the problem in the wake of complaints of misuse of Section 498A, IPC.
The secondary sources that have been referred to and relied upon are in the nature of text books, Articles and Commentaries from Criminal Law Journal and other sources viz. popular websites and search engines etc.
1.15.7 Textbooks
The views expressed by various authors of textbooks on Criminal Law of India, and the Law relating to women in India, domestic violence and other matrimonial offences including dowry harassments, cruelty by the husband and his relatives have been taken into consideration, for the purpose of the present study. The existing textual literature that is available on the research problem is reviewed here under.
Derret, J.D.M, in his book: ‘ Introduction to Modern Hindu Law’ described the Hindu notion of marriage, ceremonies of marriage, the capacity to marry, grounds for nullity of marriage, quarrels, separation, and reconciliation, and condonation. He marginally concerned with the system of personal law, and not with the vestiges of Hindu law in its original sense. This book is a constructive criticism of the modern Hindu law.
Derret, J.D.M, in his book: ‘ A Critique of Modern Hindu Law’ provided a full description of the property rights of the women with reference to the shastric law relating to the stridhanam. He concluded that any Hindu caste or community gave women rights of acquiring, enjoying, and disposing of property equal to those enjoyed without question by their male relatives.
K.D.Gaur , ‘Textbook on the Indian Penal Code’, discussed the historical background regarding the insertion of Section 498A into the Penal Code, and relevant case-laws on the subject-matter and cases where misuse has occurred. A detailed and comprehensive account of offences concerning cruelty against women in their marital homes is discussed in this volume.
K.D.Gaur, ‘ Criminal Law: Cases and Materials’ helped the researcher in finding out relevant case-laws related to Section 498A of IPC. This book is a unique exercise to project the latest innovations which have culled through judicial observations.
Kishwar, Madhu in her study on dowry tiled ‘Zealous reformers, Deadly Laws: Battling Stereotypes’ described the reasons why people give and take dowry. She remarked that oppression of wives for bringing inadequate dowry is only another excuse for using violence against them. In other words, and in fact evidence from other country has indicted as much even without tradition of dowry, inter spousal violence is endemic.
Kishwar, Madhu in her article: ‘ Laws against domestic violence, underused or abused ’ addressed the unfortunate rise in reported cases of domestic violence and dowry related murders, since 1978. In her article ‘ Misuse of Section 498A, IPC’ the author pointed-out that our laws do not recognise the possibility of daughters-in-law maltreating old in-laws or other members of their family. She remarked that there was already a distinct trend to include dowry demands in every complaint of domestic discords, even when dowry was not an issue at all.
“Marriage, Divorce, and Matrimonial Litigation ” by Flavia Agnes and “Marriage And Divorce Law Reforms, (the Marriage Laws (Amendment) Act, 1976)” by Paras Diwan reveal that the act of cruelty against the wives in general are of physical, emotional and psychological, negative consequences on women.
Dr. Anjani Kant, in her book titled, “Law relating to the Women and Children”, highlights the United Nations Conventions and Indian Law relating to the women and children viz. the Statutes of Hindu Marriage Act, 1954, the Special Marriage Act, 1954, the Foreign Marriage Act, 1969 and The Dowry Prohibition Act, 1961.
Dr. R.Revathi, in her book titled, “Law relating to Domestic Violence” throws the light on various areas of domestic violence in the theoretical perspective and the legislative response to the problem of domestic violence against the women.
Laitha Dhar Parihar ’s “Women and Law from improvement to empowerment - a critique”, discussing the issues of perpetrating cruelty with a purpose, checks against abuse of Section 304-B, IPC and woman that blooms in the bud”.
“Addressing the domestic violence throws the law” research and writing by Saumaya Uma (edited by Vrinda Grower) address the law relating to the domestic violence in an exclamatory pattern that includes the issues: domestic violence as a violation of women’s fundamental rights, domestic violence - law in action: procedural and evidentiary standards and remedies for domestic violence under other laws.
Prof. G.B. Reddy’s “Women and the Law”, illustrates the fact that all most all women irrespective of their religion face domestic violence and no religion can boast about the equal rights given to the woman on par with men in all respects in the topic “Personal Laws and Women”.
M. Ponnian’s “Criminology and Penology”, describes the issue of crime against women in India and observed that the instances of crime that are reported against the women folk is showing an increasing trend and need to spot out the criminal tendencies to curb their growth by preventive steps and stress the Government of India to take appropriate action.
V.K.Dewan, in his book titled, “Laws relating to cruelty and offences against the husbands”, looks into the acts of cruelty by the wives against their husband and his family and its impact on matrimonial matters, with a view of the laws relating to the matrimonial provisions including Section 498A, IPC have being misused by some section of the people with ulterior motive to satisfy their scores with the matrimonial family.
Dr. Paras Dewan, in his book titled, ‘ Law relating to dowry, dowry deaths, bride burning, rape and related offences’, discussed the concepts of dowry, dowry related deaths and cruelty. Since, the concept of cruelty is also a ground for divorce under personal laws; the author had discussed these from the aspect of matrimonial law. As most of these laws are generally covered by statutory law, case laws have also made its contribution. The author has also discussed both the statutory law as well as law propounded in judicial decisions.
O.P.Tewari , in his book titled, “Cruelty against husbands by wives and its remedies” discussed clearly the concept of cruelty in matrimonial disputes. This book contains what acts or conduct on part of the wife may be called acts of cruelty in legal sense and the remedies for the husband to get rid of by decree of divorce or for judicial separation.
“Cruelty against husband ” by A.S.Arora and “ Cruelty by wife ” by A. Partha Saradhi reported number of judgments on the research topic on various perspectives as women being the perpetrator of cruelty and describe various instances of cruelty by wives against their male counter-part and the Researcher used those judgments appropriately as “ready referencer” on the research topic but under different headings.
“The Blue Book - A Uniform System of Citation”, has been used in the present work to refer and give credit to the authoritative sources. Citation of resources gives respect and recognition to the authors for their ideas, thereby protecting their moral right over this work.
1.15.8 Articles and Commentaries
There are number of Articles and commentaries pertaining to the research topic written by eminent jurists, authors, academicians and lawyers etc. and the same were published in leading law journals like the Criminal Law Journal, All India Reporter, SCALE, Journals of Indian Law Institute and Supreme Court Journal have been reviewed for the purpose of the research work.
The important among those are P.R. Thakur, “Compounding a Non-Compoundable Offence Judicial Pragmatism: Neither activism nor absolutism”, Lawrence Gomes, “Section 498-A of Indian Penal Code, 1860 - Its implications, applications and viabilities in our present day daily life and Socio-economic System”, Lalsa Mohini, “Legitimacy of Section 498-A of Indian Penal Code”, Dr. Sobharam Sharma, “Legal Terrorism in India: Need to change the Law”, and Kiran Singh, “Protection of ‘Innocent Victims’ of Matrimonial offences” etc.
1.15.9 Tertiary Sources
- The decisions rendered by the Apex Court and various High Courts from time to time on the current subject, reported in different law journals like the Supreme Court cases, Supreme Court Today, All India Reporter etc.
- Reports of Inquiry Commissions and the Committees that are constituted to conduct a comprehensive study on the Criminal Justice System in our country and the Parliamentary Committee set up for the examination and report of the impugned provision i.e. Section 498A, IPC and the periodical reports of the Law Commission of India,
- Annual Reports of National Crime Records Bureau (NCRB), National Commission for Women (NCW), Ministry of Women and Child Development (MWCD), National Family Health Services (NFHS), reports of Women and men in India, published by Ministry of Statistics and Programme Implementation (MSPI), and Compendium of Bureau of Police Research and Development (BPR&D), New Delhi, published by Ministry of Home affairs, Government of India,
- Leading works on the offence of cruelty enshrined in Section 498A, IPC by various organisations viz. Sava India Family Organisation, Parivarak Suraksha, AIDWA, etc.
- The internet resources like Wikipedia, 498a.org (Save India Family), rakshakfoundation.org, and popular legal web sites: Manupatra, Indiankanoon.com, findlaw.com, prsindia.org, vakilnumberone.com, legalserviceindia.com, lawmin.nic.in, indiacode.nic.in, indiacourts.com,
- Legal Dictionaries and Lexicons form different publishers and
- Articles in published in the daily News papers viz. The Hindu, Times of India, and also leading Telugu dailies Eenadu, Saakshi and Andhra Bhoomi etc. were examined.
All the above manifestations of legal literature have been used in the present research work to draw theoretical generalizations after through reading of the all literature of the research topic and gist of the same reproduced in a limited extent.
1.16 Scheme of the Thesis
Law is said to be the important and pivotal instrument for the regularization of the society. Hence, the researcher has tried to throw light on the static characteristic of the laws meant for the protection of women and also procedural factors related thereto.
The thesis entitled ‘ CRUELTY AGAINST MARRIED WOMEN: A CRITICAL STUDY’ is divided into eight exhaustive chapters, with multiple headings and sub-headings. All the chapters are inter and intra-linked with each other.
• Chapter One ‘ Introduction ’. The study starts with the discussion on the ‘institution of family and significance of marriage’. It continues the discussion on status of the women from ancient India to the present status in the socio-legal atmosphere. This chapter also discusses about ‘violence by men against women’ and the historical milieu of Section 498A of IPC. This Chapter also contains the following essential features of research methodology viz., objectives of the study, statement of the problem, and the hypotheses formulated; sources of data, literature reviewed, methodologies adopted, and scope and limitations of the study, and lastly, scheme of the thesis.
• Chapter Two ‘ Law Relating to Matrimonial Cruelty’. It specifically deals with
elementary principles of law concerning cruelty against women in their marital homes. The object of this chapter is to demonstrate the development in Substantive and Procedural Criminal Law since the Criminal Law (Second Amendment) Act 1983 to Protection of Women from Domestic Violence Act, 2005. It is a plain reading of Sections 498A, 304B, 306, 406 of the IPC, and the allied provisions viz. Section 198A of CrPC, Sections 113A and 113B of the Evidence Act, and also the provisions of the Domestic Violence Act. The interrelationship and distinctions among the said provisions have also been discussed with the help of case laws. An extensive attempt has been made in this chapter to understand the meaning of cruelty from the perspective of existing position of law.
• Chapter Three ‘ Concept of Cruelty ’ discusses the essential elements of cruelty under English Law as well as Indian Law. In the absence of specific definition of the term ‘ cruelty ’ in the legal sense, this chapter draws the instances that are recognised as acts of cruelty by the wives as well as the husbands against each other in certain occasions that have been upheld by the Supreme Court and also by various High Courts. This chapter provides an analytical state of offences against women in India with position of incidence of cruelty on women as defined in the penal law.
• Chapter Four ‘ Cruelty under Personal Laws ’ deals with the remedies which an aggrieved spouse may haunt for getting relief against his spouse to get rid of by decree of divorce or for judicial separation. This chapter also discusses the relationship of the concept of cruelty under Section 498A, IPC and cruelty under Personal Laws of the parties concerned and the consequential difficulties that arise for the application of these laws. It identifies the different conflicting areas in cases of matrimonial matters relating to marriage and divorce in respect of personal laws of the parties to the dispute viz., existence of the co-wife, concept of dowry, adultery, option of puberty, and the age of majority. It would help understanding the magnitude of the problem and also to locate the subject of cruelty on women as a form of offence in the society.
• The Criminal Law per se does not discriminate against women, be it the Indian Penal Code, the Code of Criminal Procedure, or other relevant laws like the Indian Evidence Act. However, with regard to the offences related to women and their prosecution certain loopholes are found. Chapter Five ‘ Legal Terrorism in Practice — Institutional Response ’ brings the existing loopholes and suggests measures for making further reforms in the laws. The object of this chapter is to examine the present day scenario in relation to the implementation of Section 498A of IPC and how come it had incurred the title of ‘ Legal Terrorism’. An attempt is made in this Chapter to examine the common reasons responsible for misuse of matrimonial provisions and the effects of false 498A case, the statutory remedies available to the victim under the provisions of the Penal Law, and the institutional response by the three principal organs of the democratic state i.e., executive, legislative and judiciary measures to mitigate the process of abuse of the impugned provision and the gravity of the offence. This chapter gives an exhaustive and comprehensive commentary on issues of repercussions of a false 498A case on the society in socio-legal perspective.
• Chapter Six ‘ Operation of Section 498A, IPC 1860 - A Reality Check’ is a socio-legal study conducted by the researcher in the light of frequent allegations made by certain class of people, for its misuse. The study is about engagement with litigants of matrimonial offences, who are victims of violence and who have lodged cases in different police stations being subjected to cruelty. The views and opinion of different stakeholders who are closely connected with criminal justice system have also been dealt with in this chapter. This chapter in a sense provides an explanation to the research question as to why it is viewed widely that the provision under Section 498A is misused.
This chapter presents an empirical analysis of the data pertaining to the victims/survivors of dowry related offences. The purpose of conducting this empirical survey is to identify the real causes of dowry deaths in India and also to know the level of understanding and awareness about the protective laws for women. The testing of hypotheses and other concomitant problems are explained with reference to the various inferences. The analysis of findings of the study is reproduced in the same chapter.
• Chapter Seven ‘ Matrimonial Disputes - Need for application of ADR Mechanism’ . The objective of this chapter is to analyze the law relating to ADR, in India more specifically the practice and procedure of mediation. This chapter critically examines the appropriateness of mediation for resolving family probate disputes including cases under Sections 498A and 406 of IPC. The study is supported by the judicial response in recent time for promoting ‘mediation’ in matrimonial disputes.
• Chapter Eight ‘ Conclusion’ which evaluates the entire study. The object of this chapter is to suggest amendments, if any necessary, to the existing law and to recommend practical solutions to the problems associated with the law relating to matrimonial cruelty. It is intended to suggest measures to streamline the implementation of the law and prevent its misuse, if any, and otherwise to counter allegations in that part. Finally, an effort has been made to enumerate the suggestions for further research and application.
• Appendixes
In order to support the research work in a broader perspective and to make it relevant, certain Tables and Flow Charts on specific issues are appended along with ‘Selected Bibliography’ in the references part. The appendixes present the broader contours of the subject under study. This part also comprises ‘questionnaire to the respondents’.
1.17 Contribution to the Society
The researcher has done a socio-legal research from the perspective of a legal professional. The study was about the penal provision related to cruelty against married women laid down under Penal Code and its post effects which are good as well as bad. The researcher has critically analysed the problem with special reference to misuse of matrimonial provisions. After going into the problem it is suggested that cruelty is a necessary social evil which needs to be erased but at the same time we should give a second thought on the factor that there is an increasing number of preposterous complaints of Section 498A of IPC which is to be kept in mind while dealing with the individual cases so that justice is delivered in the truest sense.
In the Indian social fabric the status of women is not only unequal in comparison with their counterpart male member but also women are subjected to various forms of atrocities due to their vulnerable position. Over the years emphasis has been accorded on empowerment of women to enhance their capacity to lead a life with dignity fortified with socio-cultural and economic development in the process of planning by the State including prevention of crime against them. However, women continue to suffer discrimination. Considering the vulnerability of women especially in the matrimonial home which sometimes drive them to commit suicide or being harassed to such an extent that life of such women comes under threat or met with death. The Indian Parliament contemplated several legislative measures to protect women from violence in their marital homes. One such attempt of the State was incorporation of Section 498A to the Penal Code[39] which constitutes cruelty by the husband and other in-laws against the wife in her matrimonial home is an offence and shall be punishable by law as a culpable act. However, there have been several untold miseries perpetrated on women in various magnitude and diverse forms. The sagacious endeavour by the state and society does not help women to lead violence free lives. In a society where women do not enjoy equal status and where the life as well as liberty of women as a class is at risk in spite of legal protection through provision made in the penal law, it is contingent upon the state to enhance the capacity of institutions which are created for women. But in contrast it is observed that pressure on the state is being built to unfasten the legal safeguard on the ground of the provision being misused. Hopefully, the present study would provide adequate insights and evidences concerning the working of law to safeguard women in their matrimonial home. The study would contribute to build knowledge to understand the rhetoric and realities about the state response to cruelty against women in its totality. It is expected that the findings of the study would serve the purpose of giving proper orientation to penal laws of the country in order to protect women from violence.
It is high time that law concerning cruelty against married women should be amended by a wise balancing of gender justice in the interests of family in general and society at large. The study helps the state in general and the society in particular to identify the pitfalls in the existing legal system dealing with matrimonial violence in India.
1.18 Conclusion
Family is considered to be the basic institution of any society, and this institution, at the same time has been considered a sphere of intimacy and devoid of conflicts of interests among the members that pose ideal cultural and focus of identity. Marriage is one of the principal tools used in expansion of family, and it is the voluntary union for life of one man and one woman to the exclusion of all others.’ It is considered to be a sacred commitment made by the spouses towards each other. It is regarded to be the social alliance between two families. It is essential that vows, promises, commitments that are exchanged by the spouses are revered with a sincere heart because it is this institution which eulogizes the hallmark of love, bonding, union of — families and harmony. Endeavour should always be made to sustain the sanctity of such divine institution since it is such an edifice which must be rebuilt every day.40
According to Derret, marriage is the ‘Samskara’ or ‘sacrament’ undergone by the woman when she is given by her relations and accepted by the men in the ceremony called ‘ Panigrahana ’ followed by ‘ Saptapadhi ’ (seven steps before the sacred fire), accompanied by the appropriate Vedic mantras (Hymns and invocations). The institution of the sacrament is to make the husband wife one, physically and psychically for secular and spiritual purposes, for this life and for after lives41. However, the institution of civil marriage has undergone monumental changes in the last few decades. With the fast changing attitude towards marriage as an institution, the subject of marriage and divorce has acquired importance in the field of Family law. It is such a delicate issue that many research scholars have studied the problem with utmost sincerity.
Research on cruelty against married women is a key component of any programme designed to solve the problem. Though, the research on violence against women has increased significantly in the past two decades; it shows the existence of relevant research bias. In other words, most of the studies have been carried out either in favour of the men or women and therefore they could not be determined the knowledge of the problem as whole and thus, limiting the development of efficient interventions to end it. As seen, there are a multitude of reasons that lead women to file cases under Section 498A. The State should take stringent measures to deal with cases registered under Section 498A.
The present work done by the researcher mainly revolves around the concept of cruelty which is been practiced in a matrimonial relationship between the spouses. Cruelty was mainly practiced as a part and parcel of a social evil known as dowry system. Earlier married women were subjected to cruelty so much by their in-laws that they have only relief to resort was to commit suicide. Then the government took an active step and brought Section 498A under the Penal Code as a shield against cruelty married women in the year 1983. But we can see that in the first half of the 21st century it took a new shape and colour and the very section which was inserted in penal laws for the benefit of the women raised a plethora of questions and issues to be dealt with.
The eminent jurists and social scientists are of the opinion that the whole provision is harbouring the possibility of massive social upheaval in large scale. It is plagued with innate ambiguity and lack of prudence. There is a rapidly escalating social evil in the Indian families where Section 498A has become more of a weapon rather than a shield. A section which was originally meant to be a bulwark especially to combat against the atrocious infliction of torture of the male members of the society, has now become a legally recognized alibi in the hands of women in the case of which she decides to leave the husband’s house on preposterous grounds and would still possess the entitlement of receiving alimony, rendering the husband and his family wretched. In other words the law made for relief is now being misused. Along with it, many other problems are working as ancillary part of such misuse such as corruption among the policemen and law enforcers who usually take bribes from one party to harass the other; shrewd politicians who take advantage of the scenario in spite of knowing that many frivolous complaints are being lodged by women just to harass the in-laws, while they support them in order to secure the vote-bank; even the lower judiciary disposes of such cases quickly without looking into the facts in hand carefully. It is now a herculean task for the Court to differentiate between the false accusations and defending the real victims since the whole provisions aims at protecting the women from being tortured on the hands of her husband or his family. The research problem is thus, a preliminary study on Section 498A, as perceived by the sample population, identifying the arguments put forth-for and against it and arriving at lucid findings on the research problem.
CHAPTER-II LAW RELATING TO MATRIMONIAL CRUELTY
The degradation of society due to the pernicious system of dowry and the unconscionable demands made by the greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by women has shocked the legislative conscience to such an extent that the legislature has deemed it necessary to provide additional provisions of law, procedural as well as substantive, to combat the evil.
- Brij Lal v. Prem Chand [27]
2.1 Introduction
Marriage and family are the basic institutions of any society, more so of the Indian society, where marriage was perceived and eulogized as a union intended for seven births. The traditional status of man, thus the husband, under our divine laws was considered as the protector of wife, family and its members. The wife’s first duty, therefore, was to submit herself to the authority of her husband and to remain under his roof and protection. The inferior socioeconomic and political position of women in society is precursor of gender violence against them which takes various forms and occurs at various stages in the life span of a woman. The occurrence of ‘dowry offences’ is one of such manifestation of imbalanced power equations and gender violence, to which the married women are subjected. Marriage or the union of the spouses which is sanctified as a sacrament and the stability of Indian family is losing its importance and sanctity day by day with the ever increasing incidence of dowry-related violence. Dowry mars the sanctity of marriage while violence shakes its very foundation. A stable society now stands with its familial norms and values threatened.
Marriages are made in heaven indeed, but mothers-in-law, sisters-in-law, husbands and other relatives are being increasingly involved in the breaking of the wedlock for the lust of dowry. Dowry-death, murder-suicide, and bride burning are symptoms of peculiar malady and are an unfortunate development of our social set-up. This development is peculiarly Indian, a “Black Plague” spawned by the dowry system. During the last few decades, India has witnessed the evil practice of dowry system in a more acute form in almost all parts of the country, and it is practiced by every section of the society. It is a matter of day-to-day occurrence that not only married women are harassed and humiliated, tortured and ill-treated, beaten and forced to commit suicide, to leave husband, etc., but thousands are burnt to death because parents are unable to meet the dowry demands of their husbands and other in-laws.28
There prevails a misconception that the present dowry system has its origin to the two Hindu marriage rites, viz. kanyadan and varadakshina. The most pious rule associated with a Hindu marriage is Kanyadan which means literally, the gift of a virgin. According to Hindu Shastras the bride be duly adorned with jewellery and then be gifted away. The meritorious act of dana or ritual gift however, remained incomplete till the receiver is given dakshina. So when the bride is given over to the bridegroom he has to be given something in cash or kind, which constitutes ‘varadakshina’29. Thus, kanyadan is associated with varadakshina i.e., the cash or gift in kind by the parents of the bride to the bridegroom. It is submitted that the ‘Joint Parliamentary Committee on Dowry’ which submitted its report in 1982 made an error. The Committee abruptly equates varadakshina with dowry. It says, ‘this varadakshina or dowry in those days included ornaments and clothes, which the parents of the bride could afford and were given away as the property of the bride. It adds, this varadakshina was offered out of affection and did not constitute any kind of compulsion or consideration for the marriage. This act was voluntary in nature without any coercive overtones. The Committee made another error that ‘varadakshina was essentially a present made to bridegroom and it was retained by him’.30 It is to be stated that the same error is perpetrated in Sudharam v. Thadaveshwara 31 where it was observed that varadakshina was not to be kept by bridegroom’s family, nor can he make a profit out of it. The court added, it was meant to serve as a nucleus of married couple as a sort of matrimonial estate. Consequently, the court held that varadakshina was dowry. To call varadakshina, and presents made to bride at or about marriage as dowry is to misunderstand the very concept of stridhan. In fact, major portion of stridhan is received by her subsequently to marriage. The stridhan given to her at the time of marriage cannot and should not be called dowry.
According to Dr. Paras Diwan, this confusion between dowry and stridhan is causing lot of difficulties not merely in framing legislation but also in its judicial interpretation. Dowry is always been and conceptually that property is obtained under duress, coercion, or pressure. Thus, dowry is not presents made to the bride and bridegroom. The distinction between the two is that dowry is essentially a property which is extorted or extracted from the bride or her parents while presents are those properties which are voluntarily and willingly given.[6] The dowry cannot be thus traced to kanyadan and varadakshina.[7]
Another implied ideology governing dowry was that it was a means of pre-mortem inheritance for the girl from her parent’s wealth. Under the Mitakshara system, a woman was not entitled to a share in the parental wealth and the system of favouring the daughter with handsome dowry seemed to have been introduced to overcome this restriction.[8] Religious rationalizations apart, the main motivation on the part of bride’s parents was to provide security and compensation for inheritance rights to the daughter in order to enable her to lead a dignified and harmonious relationship with her husband and his family. It is generally understood that dowry, in its original form, was not based on avarice and extortion as is quite often the case today, but was just a token of love and regard for the bridegroom.
The society accepts dowry for variety of reasons. Firstly, it is associated with the status or prestige of bride’s parents. Secondly, no religion in our society is opposed it. The common sense effects are that a good dowry would hook a good catch and lastly it is the desire of every parent to see that their daughter is well settled in life and gets love and affection from her husband and other in-laws, therefore, they would yield to the high volume of dowry.[9] The parents of the bride may give a substantial amount of money to his daughter out of love and affection as dowry. In order to equipoise the emotion of parting of daughter at marriage, they offered gifts to the bride and bridegroom. They have certainly done it with a noble intention. Gradually, the element of voluntariness disappeared and a callous, crass and commercial system came into being. [10] Materialist conceptions have also entered the marital considerations and marriage is now being viewed as a competitive market with financial exchanges of money and property. Marriage has come to be regarded as a commercial enterprise and an economic exchange than a union of spouses. The combination of inflation and commercialization of the institution of marriage, aggravated by the insufficient earning capacity of the groom has contributed to the hardening of the extortionate and ugly demands for dowry, which may be limitless and endless in time. The failure of bride’s parents to meet such demands may result in coercion, harassment, infliction of mental and physical cruelty to her and in extreme cases she may be strangulated, poisoned or burnt alive. It is these materialist overtones which get reverberated in the acts of violence committed on the under compilers or non-compilers of dowry, within a family setup.
The practice of dowry never possessed a pernicious nature because the objective behind it was most sacred and benign. So long husband and his parents recognised the sacred nature of marriage and that of the gifts, there is no need for any law to regulate it, because doing the same is illogical. For, the wife in the name of reverence to husband is always prepared to cuddle bridegroom’s emotions for a solemn promise of having taken her as a wife. No sooner gifts are treated, as property or consideration for the marriage, the marriage too assumed the semblance of a sacred contract between the parties and thus it has become a dissoluble union. One major aftereffect is gradually realized, in terms of the husband turning out to be mercantile in his attitude towards marriage evaporate it and changed its nature to a contract and the gifts otherwise graciously presented turned into dowry. The benign practice of offering gifts became a social menace when it changed to dowry and to procure the same different methods to extort dowry from the parents of the bride gradually came to limelight. The easiest method in this regard is cruelty and harassment of the bride that too when she is physically present in the in-law’s house. The psychological condition of the wife worsens as and when her husband joins his parents in this willful and unlawful conduct to extort gifts albeit dowry from the in-laws. It loses its meaning when cruelty results into murder, thus the need arises to check it because protection of the right to life is the primary concern of all socio-legal systems.
2.2 The Legal armoury
The First statutory law touching marital life of Hindus was relating to abolition of ‘ Sati Pratha’ (Custom of burning Hindu widows) which was passed in 1829 on the request of social reformer Raja Ram Mohan Roy of Bengal. Second step bringing codified law in the matters of Hindus was on legalization of re-marriage of Hindu widows at the instance of Pandit Eswara Chandra Vidya Sagar took place in 1856.32
After independence, the Indian Parliament has been enacted various legislations concerning marital life with the sole object to curtail the barbarous acts of violence of any kind occurring within the family including dowry deaths, and to extend the protection to the weaker spouse. The prominent among them are discussed below.
2.2.1 The Dowry Prohibition Act, 1961
The lawmakers, taking the note of the seriousness and gravity of the problem of dowry and its cancerous growth on an unprecedented scale, took various legislative measures to plug the loopholes in the law as well as to enact new provisions, so as to make the law pragmatic and effective. The first step in the direction was enactment of the Dowry Prohibition Act of 1961 (Act 28 of 1961). It is the first national legislation to deal with the problem of dowry.33
The Dowry Prohibition Act came into force from July 1, 1961. The Bihar Dowry Restraint Act, 1950 and the A.P Dowry Prohibition Act, 1958 were repealed making the Act of 1961 uniformly applicable through-out the country. The Central Government, taking into consideration a variety of customs prevalent in different parts, allowed the State Governments to process and amends the Dowry Prohibition Act in the light of regional diversities. Thus, the State of Bihar, West Bengal, Orissa, Haryana, Himachal Pradesh, and Punjab passed the enactments amending the Dowry Prohibition Act in application to their respective states.34
The Act of 1961 is a small penal statute consisting of only ten sections. Punishment is prescribed for both giving and taking of dowry[14] and it was laid down that dowry if given was to be treated as a trust in favour of the bride for whose benefit it was given.[15] The offence was made non-cognizable, bailable and non-compoundable under the Act.[16] The Central Government was authorised to make rules for carrying out the purposes of the Act.[17]
The object of this Act is to prohibit the evil practice of giving and taking of dowry. It marked the beginning of a new legal framework of dowry harassment laws effectively prohibiting the demanding giving and taking of dowry. Inspite of the best efforts of the Central Government and the State Governments, to their utter surprise, the Dowry Prohibition Act proved to be a complete failure. The Joint Parliamentary Committee on Dowry in its report of 1982 has remarked that there were some shortcomings relating to certain provisions which rendered the Dowry Prohibition Act weak.
Firstly, the Section 3 of the Dowry Prohibition Act excludes all presents (whether given in cash or kind) from the definition of dowry, unless the same were given in consideration of marriage, and it is almost impossible to prove that gifts or presents given at, before or after the marriage were given in consideration of marriage. Since, no giver of the present will ever come forward to say that he gave the same in consideration of marriage, as giving of dowry is as much an offence as taking it.
Secondly, the Dowry Prohibition Act has no effective enforcement instrumentality. Any court can take cognizance of a dowry offence, except on a complaint made by a person within one year from the date of the commission of a dowry offence. It is unrealistic to except the bride or bride’s parents or other relations to go to lodge a complaint. The parents are usually the victims of dowry. They do not come forward because they feel apprehension that is may lead to the victimisation of their daughter. [18] In brief, the offence was made non-cognizable and a Magistrate could not act suo motu, and who would file the complaint when the giver and taker of dowry under the Dowry Prohibition Act, were offenders.
Thirdly, the punishment prescribed under the Dowry Prohibition Act was not sufficient. The Act also did not fix the criminal liability of a person who failed to return dowry to the woman concerned.
One of the very notable reasons for the failure of the Dowry Prohibition Act and increase in disturbing proportion in dowry cases was lack of social support and acceptance. In spite of non-acceptance the Committee highlighted the role of legislation according to Jawaharlal Nehru:
“Legislation cannot by itself normally solve deep-rooted social problems. One has to approach them in other ways too, but legislation is necessary and essential, so that it may give that push and have that educating factor as well as legal sanction behind it which helps public opinion to give a certain shape.”
Thus, taking into account the loopholes in the 1961 Act, the Joint Parliamentary Committee made following recommendations.
1. That, the definition of dowry as contained in the Section 2 of the 1961 Act should be modified by omitting the expression ‘as consideration for marriage’ used therein on the ground that it is impossible to prove that anything given was consideration for the marriage. Hence, it was proposed to substitute the words ‘in connection with the marriage’ for the words ‘as consideration for marriage’,
2. That, the presents made voluntarily (with conditions) at or before or after marriage should not be deemed as dowry for the purpose of Section 3. However, the value of gift should not exceed twenty percent of the income or fifteen thousand rupees, whichever is less.
3. That, for making the Act more deterrent, Section 4 of the Dowry Prohibition Act, 1961 relating to punishment was recommended to be amended to make punishment more stringent,
4. That, the time limit35 within which dowry received should be restored to the woman was recommended to be reduced from one year to three months and for failure to do so the punishment was made more stringent. Under a special provision where a person is convicted for failure to restore the dowry to the woman concerned within the specified period, the court may in addition to punishment issue a direction requiring him to restore the property to the woman within the period specified the direction. In case of noncompliance the value of the property would be recoverable from such person as if it were a fine and the amount so recovered may be paid to the woman concerned or her heirs,
5. That, the offence was recommended to be made cognizable.
On the basis of the above recommendations of the Joint Parliamentary Committee, the Dowry Prohibition Act, 1961 was amended in 1984. But even after those amendments, the Dowry Prohibition Act was found inadequate in the existing circumstances. Again for:
1. Raising the minimum punishment for taking or abetting the taking of dowry,
2. Shifting the burden of proof on the person who makes or abets the taking of dowry, there was demand for dowry,
3. Not subjecting to prosecution, the statement made by the person aggrieved by the offence,
4. Banning any advertisement by any person offering any share in his property or any money in consideration of the marriage of the son or daughter and making it punishable,
5. Making the offence non-bailable,
6. Appointing of Dowry Prohibition officers by State Governments to be assisted by Advisory Board,
7. Including ‘dowry death’ as a new offence by suitably amending the Criminal law.
The Dowry Prohibition (Amendment) Act, 1986 was introduced the above-mentioned provisions.
Further, the Supreme Court has given important decisions in the area of dowry. Its efforts continue to make its contribution in making law more effective and meaningful. Let us now examine some of the provisions of the Dowry Prohibition Act as amended by the Acts of 1984 and 1986 along with the leading judgments of the Supreme Court and various High Courts.
2.2.1.1 Examination of the Provisions of the Dowry Prohibition Act, 1961
• Definition of dowry
The main operative part of the dowry definition as contained in Section 2 of the Dowry Prohibition Act as:
Any property or valuable security given or agreed to be given either directly or indirectly-
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person—at or before[20] or after the marriage[21] as consideration for the marriage of the said parties, but does not include dower or mehr in case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation I (******)[22]
Explanation II The expression ‘valuable security’ has the same meaning as in Section 30 of
the Indian Penal Code (45 of 1860).
Various states like Bihar, Haryana and Orissa had introduced certain amendments in Section 2.[23]
(1) The Act prohibits not only actual receiving of dowry but also the very demand for dowry made before marriage
“The Dowry Prohibition Act is a piece of social legislation which aims to check the growing menace of the social evil of dowry and it makes punishable not only the actual receiving of dowry but also the very demand of dowry made before or at the time or after the marriage where such demand is preferable to the consideration of the marriage.” The explanation of the definition of ‘dowry’ was given in S.Gopala Reddy v. State of Andhra Pradesh .[24] It is clear from the definition of the term ‘dowry’ under Section 2 of the Dowry Prohibition Act that any property or valuable security given or agreed to be given either directly or indirectly by one party to the marriage to the other party would become punishable under the Act as dowry. But, to constitute ‘dowry’, it must be given or demanded in connection with the marriage of the said parties.
(ii) Demands after the marriage
The Supreme Court in the case of State of Himachal Pradesh v. Nikku Ram ,36 stated that ‘addition of the words ‘anytime’ before the expression ‘after the marriage’ would clearly show that even if the demand is long after the marriage, the same would be constituting ‘dowry’, if other requirements of the section are satisfied.’
(iii) In connection with the marriage
The words ‘in connection with the marriage of the said parties’ were substituted for the word ‘as consideration for the marriage’ to broaden the scope of the definition of dowry. It is generally seen that the bride’s family is put under a compulsion after marriage to make-up for the so-called ‘deficiencies’ at the time of marriage. Thus, it was observed by the Joint Parliamentary Committee that dowry is not isolated payment initially made at the time of marriage or before. It continues even after marriage and if the connection is obvious then it will come within the ambit of dowry.
(iv) Traditional Presents not included in dowry
The Dowry Prohibition Act does not in any way bar the traditional giving of presents at or after the wedding which may be voluntary and affectionate gifts by presents and relatives to the bride. The traditional giving of presents is an accepted practice which finds mention in the ancient Hindu scriptures at and even after marriage. In Vinod Kumar Sethi v. State of Punjab 37 that a voluntary and affectionate giving of dowry and traditional presents would be plainly outside the ambit of the definition under the Act and, once that is so, the rest of the provisions of the Act would be inapplicable. But, the real difficulty arises, pointing towards the flaw in the Act, in making a distinction between voluntary and extorted gifts. The coercive element in cases of dowry becomes very difficult to prove.
In this regard, it may be right to point out the observations made by the Joint Parliamentary Committee:
“Keeping in view the interest of the girl uppermost in mind and to ensure that the parents of the bride are also not put to any undue hardship, the committee is of the opinion that
presents made voluntary, i.e., without compulsion or coercion either directly or indirectly to her by parents, relatives, friends, etc. at or before or after marriage in form of cash, ornaments, clothes or other articles should not be treated as dowry.”
(v) Dower is not dowry
The amount paid by a Mohammedan in connection with a daughter’s marriage, to the prospective bridegroom for purchase of property in joint names of daughter and would be son-inlaw is not ‘dowry’ within the meaning of Section 2 of the Dowry Prohibition Act.38 The exclusion regarding mehr from the scope of Section 2 is important because of the fact that the Act is equally applies to Muslims, Parsis, Christians, Jews or any person solemnizing a marriage in India and mehr is defined as ‘a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage’.
(vi) The Act is applicable to all persons residing in India
Dowry is stated to be a widespread social evil among Hindus. But it is contended that it applies only to Hindus and does not apply to non-Hindus. The reality is that it equally applies to Muslims, Christians, Parsis, and Jews or to any and every person who performs his marriage in India, and is found guilty of any dowry offence. The evil practice of dowry may be rampant among Hindus, but it does not mean that it does not recognise among the others.
The Joint Parliamentary Committee observed that: ‘It is equally prevalent among the Muslims, and the Christians. Among the Muslims in many parts, there is a custom of giving cash to the bridegroom (known as salaml) after the nikah ceremony and of giving clothes and jewellery to the bride by her parents who also bear other expenses of the marriage. The Christians of Mangalore follow it pre-conversion custom of Kanyadan. It is reported that in a state like Kerala with its high literacy rate and progressive outlook, prevailing high rate of dowry makes marriages almost impossible for many Christian girls belonging to large families and induce them to join nunneries or search desperately for jobs in other states, there is, in fact, no difference these days in the pattern and motives of conspicuous consumption and dowry, either religion-wise.
(vii) Dowry and Stridhan
In modern Hindu Law, stridhan denotes not only the specific kinds of property enumerated in the Smritis, but also other species of property acquired or owned by a woman over which she has absolute control; and she forms the stock of descent in respect of such property which accordingly devolves on her own heirs. According to Dr. Paras Diwan, ‘the remarkable aspect of the Dowry Prohibition Act, 1961 is that any property given to a women before, during and after her marriage in connection with her marriage is considered as her Stridhan, i.e., her separate property, except the one given to her and her husband jointly. Interesting aspect of the Act particularly of Section 6 is that ‘dowry’ has been treated as property given on the occasion of marriage from the bride’s side and not the other way round. In can happen that ‘dowry’ may be demanded and given from the side of the bridegroom or his parents, and in accordance with the definition of dowry, it is also called dowry. That is reason why mehr has been excluded from the definition of dowry’.39 This aspect of the matter has been over-looked by Parliament as is clear from the marginal title of Section 6 as well its text.40
Section 5 of the Dowry Prohibition Act lays down that an agreement for giving and taking dowry is void41. This obviously means that if under such an agreement the giver has not given the dowry to the taker, the agreement cannot be enforced. But it does not mean that if the taker has received the dowry, he can retain it. This section provides that wherever dowry is received despite the Dowry Prohibition Act, the receiver of the dowry cannot retain it. He must hold it in trust for the bride and must transfer it to her within the stipulated period of three months. If the women dies within seven years of marriage the property would go to her children and if there were no children then to her parents. If he does not do so, he will be guilty of a dowry offence under this section. This provision further lays down that even after his conviction he must return the dowry to the woman within the time laid down in the order. If the accused defaults even then, it can be recovered from him as a fine.
There is hardly any case relating to breach of trust by a third person who is in possession of dowry, but there is sufficient case law on breach of trust by the husband who does not or refuses to return wife’s stridhan. The prominent case is Pratibha Rani v. Suraj Kumar 42 where the Apex court upset the decision of the Punjab and Haryana High Court. In Vinod Kumar Sethi v. State of Punjab 43 the High Court opined that ‘where a husband entrusts a specific sum of money of his wife for paying school fees of their children, but in a shopping spree she converts the same into sarees for herself, she will not by guilty of breach of trust. Similarly, where a husband misused or appropriates some property of his wife for himself, it would not amount to breach of trust. The court elaborating the point further said that where the husband is the breadwinner and he brings home the months wages and hand them over to the wife to spent on the family and if she uses the same against the consent of her husband for her own purpose, she would not be guilty of breach of trust.
Dr. Paras Diwan says: so long marriage is a going concern, and there is a peace and harmony between the spouses, such a question will not arise. The question assumes importance only when the marriage breaks down and the wife is turned out of the matrimonial home or leaves it since she finds it impossible to continue to live there, and the husband refused to hand over her stridhan. In such a case, is he not guilty of criminal breach of trust? But, the High Court holds there cannot be any criminal breach of trust. The court says: “The inevitable presumption during the existence or imminent breakup of the matrimonial home, therefore, is one of the joint possession of the spouses which might perhaps be dislodged by the special terms of a written contract. However, to be precise, this presumption of joint possession of properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate breakup thereof. The Court then takes the argument to the logical end and thereby errs, when it says, “It would be equally untenable to hold that either desertion or expulsion of one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of Section 405 of the Penal Code i.e., Criminal Breach of Trust.” The joint custody and possession once established would thereafter exclude either express entrustment or the passing of the dominion over the property.44
Since the High Court has propounded the concept of unity of possession of all properties in the matrimonial home on the analogy of partnership firm, he is led to say that even when the wife is turned out of the matrimonial home and the husband refuses to return her stridhan, he is guilty of no breach of trust. The only remedy the wife has is to file a civil suit for the recovery of her stridhan. Dr. Diwan added: two aspects of matrimonial life have been ignored by the High Court, ‘no reasonable person expects, certainly in India, that a newly married woman joining her husband, living in the same house and under the same roof, will keep her personal effects and property like jewellery, clothing, etc., under her own lock and key or in a bank locker in her own name - it would be a sure indication of distrust of one by the other. Secondly, ‘when a wife entrusts her stridhan to her husband or in-laws, she is not expected to enter into a written agreement of entrustment with them. No marital relationship can really begin with such agreements of entrustment of property. It is a different matter that the Dowry Prohibition Act stipulates for making of a list of the presents made to the bride and bridegroom at the time of marriage which has to be maintained by each party. But again, no list of dowry items is stipulated as no list of illegality can be stipulated by the statute to be made. Yet another fundamental error that the High Court makes is the exclusion of criminal liability for the perusal by the wife. One should not overlook that criminal and civil remedies can run side by side. It is for the person concerned to follow the one he desires.
In the words of the Fazal Ali, J. 45: the two remedies are not mutually exclusive but clearly coextensive and essentially differ in their content and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property or the state for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does, not, however, affect the civil remedies at all for suing the wrongdoer in cases like arson, accidents etc. It is an anathema to suppose that when a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly, misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under Section 406, IPC, or render the ingredients of Section 405, IPC, nugatory or abortive. To say that because the stridhan of a married woman is kept in the custody of her husband, no action against him can be taken as no offence is committed is to override and distort the real intent of the law.46
Overruling Vinod Kumar Sethi v. State of Punjab, 47 Fazal Ali, J., observed:
Thus, if the husband of his relations misappropriates the same and refuse to hand it over to the wife and convert them to their own use and eventhough these facts are clearly alleged in a complaint for an offence under Sections 405/406, IPC. Some courts take the view that the complaint is not maintainable. Thus, even when clear and specific allegations are made in the complaint that such properties were entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague. The allegations of the complainant in this appeal and the appeal before the Punjab and Haryana High Court shows that it is not so but the is a pure figment of the High Court’s imagination as a result of which the High Court completely shut their eyes to this fact that the husband could be guilty of criminal breach of trust under Sections 405/406, IPC, in view of the clear allegations made in the complaint.
The Apex Court held that the complaint prima facie disclosed an offence of criminal breach of trust, as defined in Sections 405/406, IPC and the Punjab and Haryana High Court was not justified in quashing the complaint.
2.2.1.2 Penalty
(i) For giving or taking dowry
Section 3 of the Dowry Prohibition Act, prescribes the penalty for giving or taking of dowry. Under Section 3 (1), if any person, gives or takes or abets the giving or taking of dowry, he shall be punishable[37] [with imprisonment for a term which shall not be less than[38] [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more]: Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of less than five years.
The term ‘dowry’ under Section 3 (2) of the Dowry Prohibition Act does not include (a) presents given to the bride at or around the time of the marriage and (b) presents given to the bridegroom at the time of the marriage without any demand having been made in that behalf.
Provided that such presents are entered in a list maintained in accordance with the rules made under this Act.
Provided further that where such presents are made by or behalf of the bride or any person related to the bride, such presents are of a customary nature and the value thereof is not excessive having regard to the financial status of the person by whom, or on whose behalf such presents are given.
Parliament accepted the recommendations of the Joint Parliamentary Committee and provided for listing of presents to ensure that the presents in the form of cash, ornaments, clothes and other items gifted to the bride at or before or after marriage were exclusively for her benefit and should be listed and registered.
The Dowry Prohibition (Maintenance of the Lists of presents to the bride and the bridegroom) Rules, 1985 provide for the listing of the following:
(a) Presents given to the bride, which is to be maintained by her,
(b) Presents given to the bridegroom, to be maintained by him.48
It is the option of the bride or bridegroom to obtain the signatures on the list of the other party or any relation or any other person(s) present at the time of marriage.49
Section 3 (1) of the Dowry Prohibition Act, thus imposes a punishment on a person who gives or takes or abets the giving or taking of dowry. The 1984 and 1986 amendments have introduced significant changes. They enhanced the punishment form six months to two years and fine from Rs.5, 000 to 15,000.
Abetment of a dowry offence will include not only instigation but also conspiracy and aiding the commission of the offence. A mere association with an offender without any instigation is however not abetment.50
The above provisions help a woman in recovering her stridhan after she leaves or is forced to leave her matrimonial home. The need for sensitivity of the courts can be felt from the observations made by the Supreme Court in Paniben v. State of Gujarath 51, that: “ in
awarding sentence, it would be travesty of justice if sympathy is shown when such cruel act is committed.”
(ii) For demanding dowry
Section 4 of the Dowry Prohibition Act, prescribes for penalty for demanding dowry directly or indirectly. The Dowry Prohibition (Amendment) Act, 1984 (Act 63 of 1984) has brought two changes, namely the minimum and maximum punishments have been prescribed and no sanction of the State Government is required for the prosecution of the offender. The proviso to Section 4 under which the court take cognizance of the offence of demanding dowry only with the prior permission of the State Government or an officer appointed by the Government for this purpose has been removed.
The Act discourages the very demand of dowry. Though the Act is silent as to the time during which the demand should be made, the Supreme Court in S.Gopala Reddy v. State of Andhra Pradesh 52 held that “the demand, even if made before the marriage, amounts to an offence under Section 4 of the Dowry Prohibition Act.” In this case the court held that mere demand of dowry is sufficient to bring home the offence to an accused of money, property or valuable security made from the bride or her parents or other relatives by the bridegroom or his parents or vice versa would fall within the mischief of dowry under this Act. The noteworthy point laid down by the Supreme Court is that marriage in this context would include a proposed marriage also, more particularly where the non-fulfillment of the demand of dowry heads to the ugly consequence of the marriage not taking place at all.
The Supreme Court in State of Himachal Pradesh v. Nikku Ram ,53 observed: “Dowry, dowry and dowry: This is the painful reception which confronts and at times haunts many parents of a girl child in this holy land of ours ‘where, in olden days, the belief was where woman is worshipped, there is abode of God’. We have mentioned dowry thrice, because this demand made on three occasions: before marriage, at the time of marriage, and after the marriage. Greed being limitless, the demands become insatiable in many cases, followed by torture of the girl, leading to either suicide in some cases or murder in some.”
• Agreements relating to dowry
Section 5 of the Dowry Prohibition Act, says that any agreement for the giving and taking of dowry is void and it shall not have any value in the eye of the law. Therefore, a suit for recovery of such amount agreed to be given as dowry is not maintainable and cannot be decreed. In Ramekbal Singh v. Harihar Singh 54 it was held that the amount paid at the tilak under a contract contravenes the provisions of the Dowry Prohibition Act, and the contract being an agreement prohibited by law cannot be enforced. It is to be stated that the term ‘dowry’ under Section 3 (2) of the Dowry Prohibition Act does not include (a) Stridhan- includes anything given to the bride at or around the time of the marriage and (b) presents given to the bride or bridegroom at the time of the marriage without any demand having been made for them. Thus, the Dowry Prohibition Act to begin with, had an honesty of purpose in the sense that dowry as a whole in any form whatsoever and at any time subsequent, at the time or prior to the marriage was prohibited and the agreements even related to dowry were declared to be void [S.5].
• Restoration of Dowry
Section 6 (Dowry to be for the benefit of the wife or her heirs) of the Dowry Prohibition Act, provides that the dowry received by a person, other than the woman in connection with the marriage it is given, is to be transferred to the woman or her heirs within a period of three months, failing which imprisonment from 6 months to 2 years and fine from five to ten thousand rupees can be imposed upon the offenders.
In Md. Abbas v. M. Kunhipathu 55 it was held that: demanding, giving or taking or agreement to give or take dowry, no doubt are all invalid as per Sections 3, 4 and 5 of the Act. But, if in violation of such provisions dowry is given and received, the consequence is that the receiver is bound to transfer the property to the woman and he is a trustee, until such transfer, for the woman. In other words, the beneficial interest in the transaction is with the woman and the transferee is only a trustee.
This shows that the transaction does not void and the property continues to be with the person who purported to effect a transfer. An echo of this decision was found in Bhai Sher Jung Singh v. Virender Kaur 56 where it was held that whatsoever property is given to the wife by way of gift or will it will constitute her stridhan and she is its absolute owner. Any person who holds the property of his wife and denies it to her is guilty of criminal breach of trust.
These two decisions did put the Hindu female wholly on par with Hindu male. But these observations could not be followed in Vinod Kumar Sethi v. State of Punjab. 57
In this case the accused was charged with the offence of criminal breach of trust for refusing to return dowry to his wife. It was observed that from time immemorial Hindu law has recognised the individual ownership of the wife with regard to the property given at the time of marriage and this constitutes her stridhan. The court further observed that the very concept of matrimonial home connotes the joint possession and custody of both the spouses even with regard to the movable properties exclusively owned by each of them. No question of entrustment or dominions over the property would normally arise during coverture or its imminent break up.
This controversy was settled by the Supreme Court in Pratibha Rani v. Suraj Kumar .58 In this it was observed with regard to stridhan property of a married woman, that even if it is placed in custody of her husband or in laws, they would be deemed to be trustees and bound to return the same if and when demanded by her. While quoting the decision of Vinod Kumar 59, the Court observed that the common use and enjoyment of certain articles of dowry and traditional presents by other members of a joint family with the leave and license of the wife cannot have the effect of extending the jointness of control and custody of the couple to undefined and unreasonable limits. It was held that joint enjoyment does not divest a Hindu wife of her exclusive ownership by mere factum of use. The Court observed that: “ the two views expressed by the High Court stand contradicted by its own findings and are wholly understandable ”.
• Cognizance of offences and their trial
The Dowry Prohibition (Amended0 Act, 1984 contains a couple of provisions to achieve better enforcement of the laws. Sections 7 to 10 of the Dowry Prohibition Act, deal with the procedural aspects of dowry prohibition. Section 7 of the Dowry Prohibition Act, relates to the cognizance of offences. Section 7 (a) provides that ‘no court inferior to that of a Metropolitan Magistrate or Judicial First Class shall try any offence under the Act.
Section 7 (b) enables that; no court shall take cognizance of an offence under this Act except upon (i) Its own knowledge or a Police Report of the facts which constitute such
offence, or (ii) a complaint by the person aggrieved by the offence or a parent or other relative of such person, or by any recognised welfare institution or organization.
Under the unamended Act it was not clear as to who had the ‘standing’ to file a complaint for dowry offence and this caused a lot of problems in interpretation as only an aggrieved party could file the complaint. Now after the amendment the court can take cognizance of the offence either upon its own knowledge, police report or complaint made by the aggrieved person, his relatives or parents or on a complaint by a recognised welfare organisation.
In Lajapatrai Sehgal v. State 60 it was argued (under the unamended Act) that cognizance of an offence could not be taken on the basis of the police report. However, the Supreme Court held that: “On harmonious construction of the provision of the Code of Criminal Procedure, it was evident that a police report of a non-cognizable offence would be deemed to be a complaint. In terms of the definition of the complaint under Section 2 (d) of the Code, a complaint includes a report made by a police officer after investigation and this would be deemed to be a complaint, and a complaint made by the investigating officer can be a complaint in terms of Section 7 (b), the Dowry Prohibition Act,. The complaint within the meaning of Section 7 (b) and the fact that permission has been obtained under Section 155 (2) of the Code to authorise the investigation would not take the police report out of the purview of the deemed complaint within the meaning of Section 2 (d), Code of Criminal Procedure.
• Offences non-bailable, non-compoundable and cognizable for certain purpose
The offences under the Dowry Prohibition Act, 1961 have been declared to be COGNIZABLE and NON-BAILABLE and NON-COMPOUNDABLE.61 Dowry offences thus are made cognizable for the purposes of matters other than matters referred to in Section 4262 CrPC and the arrest of a person without warrant or without an order of Magistrate. The Police Officer can arrest the accused of demanding dowry without a warrant and initiate criminal proceedings against the culprit. The penalty for demanding dowry has been made more stringent besides many other significant changes, such as the establishment of family Courts etc., which have been provided in the Act.
• Burden of proof
Another well-intentioned provision for the enforcement of the legislation is Section 8A63 which provides that where a person is prosecuted for taking or abetting the taking of dowry under Section 3 or the demanding of dowry under Section 4, the burden of proving that he did not commit an offence under these provisions shall be on him.
• Dowry Prohibition Officer
In the past, one of the main reasons for the failure of the Act was lack of proper and effective enforcement machinery which could intervene, whenever necessary, in averting dowry tragedies by helping dowry victims. The Joint Parliamentary Committee had suggested the appointment of Dowry Prohibition officers for different areas. Parliament through 1986 amendment Act inserted Section 8B to the Dowry Prohibition Act, which provides that the State Government may appoint as many Dowry Prohibition Officers as it deems fit and specify the area in respect of which they shall exercise their jurisdiction, powers and functions. Every such officer shall have:
(i) to see that provisions of the Act are compiled with,
(ii) to prevent as far as possible, the taking or abetting the taking of, or the demanding, of dowry,
(iii) to collect such evidence as may be necessary for the prosecution of persons committing offences under the Act, and
(iv) to perform such additional functions as may be assigned to him by the State Government or as may be specified in the rules made under this Act.
• Power to make Rules
Sections 9 and 10 of the Dowry Prohibition Act confer rule-making powers on the Central Government and the State Governments respectively. The Central Government has made the Dowry Prohibition (Maintenance of Lists of Presents to the bride and bridegroom) Rules, 1985. The State Governments and rules are also valid if they are not inconsistent with the provisions of the Dowry Prohibition Act.
This is the scheme and structure of the Dowry Prohibition Act, 1961 after the 1984 and 1986 amendments. The Act of 1961 has been amended twice by the Dowry Prohibition (Amendment) Acts, 1984 and 1986, with the objects to widen the definition of ‘dowry’, to regulate the permissible presents and to enhance the punishment for the various violations of the Act. But in spite of the Act and amendments, the offence of dowry continues unabated. The definition of dowry in Section 2 of the Act of 1961 was too restrictive and obsolete. It is still defective in the sense that it must be shown to have been “given or agreed to be given in connection with the marriage.” In other words, mere demand for dowry would not constitute an offence unless it was accepted by the other party. Further, the Dowry Prohibition Act forbids one from giving or taking of dowry in connection with the marriage. The Act excluded the presents of cash, ornaments, clothes or other articles made at the time of marriage to either party to the marriage unless made as consideration for the marriage.64 Dowry can still be demanded not in connection with the marriage but for a ‘collateral purpose’ like cost of education of the bridegroom, foreign trips, occasions of birth days etc. which are not covered under the Dowry Prohibition Act. It was therefore felt that amendments should be introduced in the Penal Code and the Indian Evidence Act for a multi-prolonged approach to combat the menace of dowry.65
2.2.1.3 Implementation of the Dowry Prohibition Act, 1961
For the effective enforcement and implementation of the Dowry Prohibition Act, and for arousing conscience of people against demand and acceptance of dowry, a writ petition was filed, In re: Enforcement and Implementation of the Dowry Prohibition Act, 1961 . 6667 The main prayers were for the issue of writs of mandamus directing the Central Government to frame the rules under Section 9 of the Act, directing the State Governments to frame the rules under Section 10 of the Act and providing for additional functions to be performed by the concerned officers under Section 8B of the Act, for the appointment of the Dowry Prohibition officers by States as required under Section 8B, to furnish, details regarding working of Dowry Prohibition Officers wherever they have been appointed; for setting up of Advisory Boards as mandated by Section 8B of the Act and to furnish details of the composition of the Boards and their working, if the Boards have already been established in any particular state. In this writ petition various interim directions were issued. Almost all states have framed rules under the Act and most states except Andhra Pradesh and Orissa did not adopt model rules. Dowry Prohibition officers have been appointed by almost all states except the States of Jharkhand and Uttar Pradesh.
The Court held that the implementation of the Act and rules were not effective and it has not been taken up with zeal by the Government while enforcing legislation. The Court directed Union of India and States to take more effective steps to implement the provisions of the Dowry Prohibition Act with particular reference to Sections 3 and 4 and various rules framed thereunder. It was also directed to activate the Dowry Prohibition officers and to ensure that submitting of list as contemplated by the Act and rules is strictly implemented. It was further said that it is necessary to arouse the conscience of the people against the demand and acceptance of dowry. Effective steps should be taken for stepping up Anti-dowry Literacy among people through Lok Adalats, Radio Broadcasts, Television and Newspapers. It was said:
“ The establishment of a committed and sincere machinery to implement the Act and rules can hasten the eradication of the evil. The Union of India and the State Governments are directed to devise means to create honest, efficient and committed machinery for the purpose of implementation of the Dowry Prohibition Act, 1961.”68
2.2.1.4 Medicine turns out to be poison
In spite of several deterrent punishments, the menace of dowry could not be controlled over the years. The peaceful methods of settling the cases of dowry demand generally ends up in failure or gives rise to aggravated kind of cruelty against the wife, which ordinarily would assume primacy. This resulted into increase in dowry-related suicide cases besides increase in the rate of abandonment, judicial separation and divorce of the wives in distress. The worst of all has been an increase in demands even after primary demands are fulfilled by the wife’s parents, and the girl is made to leave the conjugal life or killed by burning. The cases on dowry-related offences reveal that dowry demands, and its fulfillment takes different forms which are achieved by ensuring that no evidence of any offence is left behind. Similarly, efforts are made in dowry- related offences to hide rather than efface any evidence that would directly or indirectly establish connection between dowry demand and the young bride who either commits suicide or is brutally killed in their in-laws house.
Even though, the Dowry Prohibition Act lays down number of preventive and punitive provisions but, as could be anticipated, the objectives have not been achieved. The failure is not primarily due to a few defects in the law or even the lack of will or capacity on the part of the Government regarding its enforcement but because of the fact that the dowry practice is too well entrenched among all the cross-sections of the Society. The irrelevance and inefficacy of the law is evident from the fact that not only the action is taken on the registered cases in a negligent number of cases but most of the people are not even aware of the legislation on the subject.
2.2.1.5 Need for Legislation on Dowry-related violence
No sooner this menace began to take the toll of young bride’s lives in the form of bride burnings, mutilation and killing, gagging and hanging, the legislators felt compelled on account of demands made by women organizations and other Non-Governmental Organisations (NGOs) to give a serious thought to the problem. As a result, amendment to the Penal Code and the Code of Criminal Procedure, besides to the Evidence Act of 1872 was deemed unavoidable.
In order to tackle this, it was felt by the Parliament that comprehensive legislative changes were required at three levels:
(i) to define the substantive offence of cruelty to women by husbands and relatives of husbands;
(ii) to introduce procedures which make investigation in cases of certain deaths of women mandatory;
(iii) to bring changes in the Evidence Act, this will make prosecution and conviction of accused in cases of violence against women easier.
• Creating separate offences under the Penal Laws
The Law Commission of India also suggested a number of measures in its 91st report. Consequently, the Criminal Law has been amended to create special offences of acts cruelty to a woman by a husband and his relatives and dowry death. The Criminal Law (Second) Amendment Act of 1983 has inserted Section 498A, in the Indian Penal Code and Section 113A in the Indian Evidence Act,. The Amendment Act of 1983 which affected the relevant amendments has explained the reasons for the same in its statements of objects and reasons: The increasing number of dowry deaths as 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. Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the hopeless women concerned, constituted only a small fraction of the cases involving such cruelty. It is, therefore, proposed to amend the Indian Penal Code, and the Code of Criminal Procedure, and the Indian Evidence Act suitably to deal effectively not only with the cases of dowry deaths but also cases of cruelty towards married woman by their in-laws.
2.2.2 Cruelty against a woman by the husband or relatives of the husband
Section 498A, was incorporated into the Penal Code by Section 6 of the Criminal Law (Second Amendment) Act of 1983 (Act 46 of 1983) under a new Chapter XXA, entitled: “ of Cruelty by husband or relatives of husband ” which came into force with effect from 25 December 1983. This (Amendment) Act, 1983 introduced substantial and procedural changes in the existing law. Until then, harassment of a wife by her husband or her in-laws was covered by the general provisions of the IPC dealing with assault, hurt, grievous hurt or homicide. This Section reflects the anxiety of the society to extend t protection to the weaker spouse.69 Life for a woman in the family of a husband is sometimes so intolerable and so miserable that it drags the woman towards suicide and it is in such cases that Section 498A, IPC comes into play.
Section 498A, IPC reads as follows:
“498A: Husband or relatives of husband of a woman subjecting her to cruelty -
Whoever, being the husband or 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 shall also be liable to fine.
Explanation
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 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 her to meet any lawful demand for any property or valuable security or is on account of failure by her or any person related her to meet such demand,---
(1) the offence is cognizable if the report to Police is made by the aggrieved or a person interested in the aggrieved;
(2) the offence is non-bailable and triable by a first class Magistrate;
(3) In Andhra Pradesh, the offence is compoundable with the permission of the Court. Provided that a minimum period of 3 months shall elapse from the date of request or application provided none of the parties withdraw the case in the intervening period (vide CrPC (A.P. Amendment) Act 11 of 2003 w.e.f. 09-07-2003).
(4) The offence is attracted irrespective of the period of marriage and also whether the woman is alive or dead.
2.2.2.1 Cognizance of the Offence
The offence Under Section 498A, IPC is Cognizable, Non-bailable, and triable by a Metropolitan Magistrate/Judicial Magistrate of the First Class and it is also Non- compoundable.70 Its cognizance can be taken only on a complaint filed with the Commissioner of Police by the aggrieved party or her parents, brother, sister, or any other blood relation or relation by marriage or adoption.71
A private complaint can be filed by the victim herself, or any person related to her by blood, marriage, or adoption72 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.73 The information about the offence can also be given to the Police by any other person.
The Police will then enquire into the truth of the allegations made, and may file a report before the Magistrate that
The abuser is the husband of the woman, or his relative,
The abuser is treating or has treated the woman with cruelty.
To prove this the woman can produce:
a) A medical certificate from a doctor/ hospital,
b) Photographs of the physical injuries,
c) Earlier complaints registered by her at the Police station (whether N.C.s or F.I.R.s), d) Letters written by her to her parents/relatives/friends or any other person about the cruelty,
e) Evidence of her parents/relatives/friends or any other person who knew about/ was a witness to the cruelty.74
The aggrieved woman is allow to file a complaint under Section 498A, IPC against the offender along with other provisions such as Sections 302, 304B, 306, 406 of IPC and the provisions of the Dowry Prohibition Act depending upon the nature of the offences inflicted on them.
2.2.2.2 New Provision: Non-retrospective in operation
The question before the Court was whether an offence committed by the husband before the coming into force of Section 498A, IPC can be tried against him by the state under this Section. The Court observed that it could not be done as Section 498A, IPC unless the legislature says so, cannot be given a retrospective application. In the instant case harassment for insufficient dowry took place in 1982-83 by the husband before the new provision come into force (i.e. from 25 December, 1983) was held to be not covered by it. Section 498A, IPC is not retrospective in operation being a prospective Act; the allegation of cruelty cannot go back to the date of marriage, if it is performed before the commencement of this section.75 Where the relationship of marriage is still continuing, the events of cruelty taking place prior to the amendment can be taken into account. That does not have the effect of giving a retrospective operation to the provision.76
2.2.2.3 Prosecution of offences against marriage
The Criminal Law (Second Amendment) Act, 1983 also inserted Section 198A to the Criminal Procedure Code, 1973. This Section envisages that the cognizance of an offence of cruel treatment as defined under Section 498A, IPC must be taken on Police report or upon a complaint made by an aggrieved person or by her father or mother or brother or sister or by her father’s brother or mother’s brother or sister or with the permission of the Court by any person related to her by blood, marriage or adoption.
Sections 198 and 198A, CrPC are exceptions to the general rule that “ any person having knowledge of an offence can set the law in motion”. These provisions provide for offences against marriages under Chapter XX of the IPC e.g. offence of bigamy (S. 494), rape (S.376), enticing or taking away or detaining with criminal intent, a married woman (S.498), husband or relative of husband of a woman subjecting her to cruelty (S.498A); etc. according to which some person other than aggrieved person may be relative of the victim, can with the leave of the Court, file a complaint against the accused.[68] It is not all necessary that the victim of rape or bigamy should make the complaint, any other person on her behalf, such as father, mother, sister, brother; brother-in-law, mother’s brother or any other person related to the victim by blood, adoption or marriage can file a complaint of the offence.[69] Thus, this provision widens the scope for prosecution, and any relative of the wife can file a complaint.
2.2.2.4 Presumption as to abetment of suicide by a married woman
(Under Section 113A of the Indian Evidence Act, 1872)
Cruelty against the woman within the institution of marriage posed certain difficulties in matters of prosecuting the accused and proving their guilt. This was because, very often, women bear their sufferings in silence. It may also be borne in mind that women seldom come out with complaints against their husbands or in-laws on the occurrence of the very first act of cruelty. It is only after suffering for long years and after prolonged acts of cruelty that the woman or her family comes forward with complaints. Further, demands for dowry and harassment of women if they fail to meet the demands, may not always be in the form of direct assault on the body of a woman. The violence is often in subtle forms, but equally tortuous, many a time driving the woman to take her own life. In view of the nature of the dowry offences, which are committed in the privacy of residential homes and secrecy, independent and direct evidence necessary for conviction is not easy to get. In most of the dowry cases, the Courts are confronted with the problem of establishing the exact cause of death.77 In the absence of conclusive evidence, the husband and his relatives invariably get acquitted on benefit of a doubt. An important feature of crimes that led to dowry deaths are that they are invariably committed within the safe precincts of home and the culprits are mostly close relations--- brother-in-law, mother-in-law and sister-inlaw living under the same roof. The phenomenon is the by-product of the exploitation of newly married woman by husbands and their relations in direct connivance with each other. The family ties are so strong that the truth will never come out, and there would be no eyewitness to testify against the guilty in a Court of law. The circumstances are hostile to an early or easy discovery of the truth. Punitive measures may be adequate in their formal content, but their successful enforcement is a matter of great difficulty. This is why guilty men go scot-free and are seldom brought to book and punished.
Accordingly the Criminal Law Second (Amendment) Act 46 of 1983 has been inserted Section 113A in the Indian Evidence Act raising a presumption against a husband or the relatives of the husband for the abetment of the suicide by a married woman. The provision of the section is as follows:
- S. 113A. Presumption as to abatement of suicide by a married women
When the question is whether the commission of suicide by a women 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 has 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 498A of the Indian Penal Code (45 of 1860).
In simple, under Section 113A, IEA the law raises a presumption of abetment of suicide by a married woman against the husband or relatives of the husband if death of the wife occurs within seven years of her marriage if she has been treated by her husband and in-laws with cruelty to fetch additional dowry.
2.2.2.5 Scope of Section 498A, IPC
Section 498A, IPC says that, whoever being the husband or the relative of the husband of a woman subjects that woman to cruelty or harassment (whether in relation or not with dowry) shall be punished with imprisonment for a term which may extend three years and also be liable to fine.
This Section sayswoman, or
(2) A relative o that the offender must be:
(1) Husband of a f the husband.
Therefore, this Section can be invoked not only against the husband, but also against any of his relatives as well.
Further, Section 498A, IPC deals with, four types of cruelty,78
- Any conduct that is likely to drive a woman to commit suicide,
- Any conduct which is likely to cause grave injury to the life, limb, or health of the woman,
- Harassment with the purpose of forcing the woman or her relatives to give some property or
- Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property.
Therefore, this Section covers harassment for not only dowry but also any wilful conduct,79 which would drive the women to commit suicide or cause grave injury physical or mental.
Furthermore, the Explanation appended to this Section also defines “Cruelty”, by saying that for the purpose of this Section ‘Cruelty” means
(a) Any wilful conduct on the part of the husband or his relatives that drive the wife to commit suicide or grave injury to life, limb or health (whether mental or physical) of the woman or
(b) Harassment or coercion of the woman to meet any unlawful demand for any property or other valuable security or is on account of failure by her or any person related to her, to meet such demand.
Thus, the offence under Section 498A, IPC has the following essentials:[72]80
(i) That the victim was a married woman (She may also be a widow),
(ii) That she has been subjected to cruelty by her husband or the relative of her husband,
(iii) That such cruelty consisted of either:
(1) harassment of the woman with a view to coerce meeting a demand for dowry, or
(2) a wilful conduct by the husband or the relative of the husband of such a nature as
is likely to lead to the woman to commit suicide or to cause grave injury to her
life, limb or health (physical or mental),
(iv) That such injury may be physical or mental,
(v) That the conduct of the husband or in-laws of a woman has to be wilful, deliberate,
and consensual, and
(vi) There should be a nexus between harassment and unlawful demand for dowry.
In Giridhar Shankar Tawade v. State of Maharashtra 81 the Supreme Court described the following ingredients of an offence under Section 498A, IPC:
a) To drive a woman to commit suicide or
b) To cause grave injury or
c) Danger to life, limb or health, both mental or physical torture or atrocity
d) Causing harassment where one is patent and the other is latent, one which is a view to compelling her to meet some unlawful demand or failure to meet such unlawful demand.
2.2.2.6 Difference between Explanations (a) and (b) to Section 498A, IPC
The elements of Cruelty so far as Clause (a) of the Explanation is concerned, have been classified as follows:
(i) Any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or
(ii) Any wilful conduct which is likely to cause grave injury to the woman or
(iii) Any wilful act which is likely to cause danger to life, limb or health whether physical or mental of the woman; and
For the purpose of Clause (b), the essential ingredients are as under:--
(i) The harassment of a married woman,
(ii) With a view to coercing her or any person related to her to meet the unlawful demand of dowry or for any property or valuable security or on account of her failure or failure of any person related to her to meet such demand.
The Explanation (a) to Section 498A, IPC involves two specific situations viz.
(i) To drive the woman to commit suicide or
(ii) To cause grave injury or danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity.
In the Explanation (b) there is an absence of physical injury. But, the legislature thought that it fit to include only coercive harassment which is equally heinous to match the physical injury. Whereas one is patent, the other is latent but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of cruelty in terms of Section 498A, IPC.82
In simple, the Explanation appended to the Section 498A, IPC gives the meaning of Cruelty with Sub-section (a) dealing with cruelty of the married woman and Sub-section (b) with dowry- related cruelty.
Therefore, it is evident that the charge under Section 498A, IPC can be brought home if the essential ingredients either in Clause (a) or (b) or both are found duly established. The Supreme Court examined decisions in important cases of almost two decades, and held that provisions of Section 498A, IPC were introduced by an amendment to curb the harassment of the woman by her husband and/or his family members for demand of dowry etc. under the garb of fulfillment of customary obligations.
In Ravindra Pyarelal Bidhan v. State of Maharashtra [76] it was held that under Section 498A, Explanation (a), for proof of cruelty it is necessary to show a reasonable nexus between under cruelty and suicide. Mere proof of cruelty or suicide is not enough. There is no vagueness or obscurity about the meaning of the word ‘cruelty’ as spelt out in clauses (a) and (b) of the Explanations. The definition sub-serves the object sought to be achieved.
In Undavalli Narayana Rao v. State of Andhra Pradesh [77] the Supreme Court examined the case in the light of the settled legal propositions. It was held that ‘Cruelty’ has been defined by the Explanation added to the Section itself. The basic ingredients of Section 498A IPC are ‘wilful conduct’ and ‘harassment’. The Supreme Court further held that in Explanation II, which relates to harassment, there is absence of the requirement of physical injury but it includes coercive harassment for demand of dowry. It deals with the patent and latent acts of the husband or his family members.
• Meaning of ‘relatives’
The offence under Section 498A, IPC is restricted to only acts of commission or omission done by the husband or his relatives. The word ‘relative’ has not been defined. But a perusal of the case reveals that the parents, sisters and brothers of the husband have been prosecuted under this Section. A person who is not a relative, but a friend, however close he is to the family of the husband, cannot be prosecuted under this section.[78] — [76] 1993 Crilj 3019 (Bom).
77 AIR 2010 SC 3708. (2009) 14 SCC 588.
78 Anil Kumar v. State of Punjab ( 1997) 2 AI Cri LR 638 (P&H).
- Is Section 498A applicable to cruelty against ‘legally weeded wife’ only? (or)
- Can a second wife file complaint under Section 498A, IPC?
(Definition of ‘husband’)
Reema Aggarwal v. Anupam & Others 83 is an important case where the relevance of the provisions of Sections 304B and 498A, IPC and 113A, Indian Evidence Act, was involved. In this instant case, the appellant, Reema Aggarwal, who was harassed by her husband and his relatives for not bringing sufficient dowry, consumed poisonous substance. She admitted that she married him during the lifetime of the first wife. Based on these facts, her husband, with others, was charge-sheeted under Sections 307 and 498A, IPC. It was argued that ‘husband’ of the second wife, who marries her during the subsistence of his earlier legal marriage, is not the ‘husband’ within the meaning of Section 498A, IPC and the second wife, therefore, cannot invoke Section 498A, IPC for the cruelty and harassment caused to her by the him or his relatives. The Trial Court acquitted him accepting the contention that the charge under Section 498A was thoroughly misconceived as it presupposes a valid marriage of the alleged victim/woman with the offender-husband. The High Court also accepted the contention. However, rejecting the contention, the Supreme Court considered the validity of the marriage of the parties. The Court observed: “the question as to who would be covered by the expression ‘ husband ’ for attracting Section 498A, IPC does present problems. Etymologically, in terms of the definition of ‘husband’ and ‘marriage’ as given in the various Law Lexicons and dictionaries - the existence of a valid marriage may appear to be a sine quo non for applying a penal provision”. Admittedly, the victim in this case is second wife of the petitioner who is said to have married her by suppressing the fact of his first wife living. Therefore, prima facie marriage between the petitioner and the second respondent is void and therefore, it cannot be said that the alleged harassment or cruelty meted out by the petitioner towards her attracts penal provision under Section 498A, IPC.
Comparing the context of Sections 494 and 498A, IPC and stressing the legislative intent of Section 498A, IPC the Supreme Court opined that the concept of marriage to constitute the relationship of ‘husband’ and ‘wife’ might require strict interpretation where claims for civil rights or right to property follow or flow. However, a liberal approach and different perception cannot be an anathema when the question of curbing a social evil is concerned.
The Court ruled:
... [T]here could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validly married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, cohabitate and exercise authority as such husband over another 80 woman.84
The court stated that the concept of ‘dowry’ is intermittently linked with marriage and the provisions of the Dowry Prohibition Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise. If the validity of the marriage is under legal scrutiny, the demand in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which Sections 498A and 304B of IPC and Section113A if the Evidence Act were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively, require to be interpreted with certain element of realism too and not merely pedantically or hyper technically. These provisions were added to the respective statutes for curbing and eliminating the rampant social evil of dowry. They intended to prevent harassment to a woman who enters into the marital relationship with a person and later on becomes a victim of the greed for money.
Can a person who enters into a marital agreement be allowed to take shelter behind a smoke screen to contend that, since there was no valid marriage the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provision. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ‘dowry’ does not have any magic charm written over it. It is that, a label given to demand of money in relation to marital relationship. The legislative intent is clear from the fact that, it is not only the husband but also his relations who are covered by Section 498A, IPC. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to Section 494, IPC has also some relevance. According to it the offence of bigamy will not apply to ‘any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction.’ It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions of Sections 304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of Sections 498A or 304B, IPC. Such an interpretation known and recognised as purposive construction has to come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabits with such woman in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of Sections 304B or 498A, IPC viewed in the context of the very object and aim of the legislations introducing these provisions. A person contracting second marriage during the subsistence of the earlier marriage can be charged under Sections 304B and 498A, IPC. The Court pressed into service the Heyden’s rule of construction which means purposive construction and mischief rule.
It is also contended by the petitioner’s counsel that there is no property involved in this case and that therefore, penal provisions under Sections 417 and 420, IPC have no application herein. The said contention does not stand to scrutiny because definition of cheating contained under Section 415, IPC is attracted in case of damage or harm to the person in body, mind, reputation or property. Thus, the petitioner can get limited relief in this petition to the extent of offence punishable under Section 498A, IPC only. In the result, the petition is partly allowed quashing proceedings before the Judicial Magistrate of the First Class, in so far as offence punishable under Section 498A, IPC alone. The petition is partly dismissed in respect of other offences punishable under Sections 494, 495, 417 and 420, IPC.
In the case of John Idiculla & another v. State of Kerala & another 85 a set of arguments leading to three interesting questions pertaining to the interpretations of the words ‘the husband or relatives of the husband’ appearing in Section 498A, IPC was advanced before the Kerala High Court. The issues involved are:
(i) Can the so called ‘second wife’ of the husband, who marries her during the subsistence of his earlier legal marriage, be treated as ‘ the relative of the husband’, for the purpose of Section 498A, IPC?;
(ii) If so, under what circumstances?
(iii) Does an offence under Section 498A, IPC lie against such a ‘second wife’, if she inflicts cruelty on the first legally-wedded wife of the husband?
It was argued that an offence under Section 498A, IPC lies only against the ‘husband’ and/or ‘the relative of the husband’ of a woman and not against the ‘second wife’ of the husband, whose marriage is invalid, as she cannot be treated as ‘the relative of the husband’. Law can treat such a second wife only as a ‘mistress’ and not as a ‘wife’ and hence it would be paradoxical and even ridiculous for a Court to hold her liable under Section 498A, IPC by conferring upon her the status of ‘wife’ and relative of the ‘husband’ by (illegal) marriage. A ‘relative of the husband’ , it was argued, is a person with whom the wife will normally interact after marriage, but such an interaction between the first and second wife, like in the instant one, is out of question.
Rejecting these contentions, the High Court ruled that if ‘second wife’, whose marriage is not strictly legal but she is treated as wife by the husband, relatives, friends or society, commits matrimonial cruelty on the legally wedded wife of her alleged husband, cannot be allowed to wriggle out of the criminal liability under Section 498A, IPC on the ground of the invalidity of her marriage. And a ‘second wife’ can be considered to be ‘the relative’ of the husband’ for the purpose of Section 498A, and thereby she can be held liable under Section 498A, IPC.
• Justifying its reasoning the High Court observed
.. ,|N|on-existence of a strictly legal marriage cannot be made a ground for an offending second wife to run away. The invalidity of a marriage can under no circumstances be granted a license to her to harass none other than the legally- wedded wife. She shall not be allowed to skip-out of the strong grip of law.. a Court cannot remain divinely silent to forgive her or calmly shut its eyes to this tragic situation, assert and justify that a second wife is not precisely referred to in the Section and hence she is not covered by Section 498A, IPC. The legal system in this country cannot shy away and hide itself under the mask of an evasive explanation that a second wife cannot be treated as a ‘relative’ as legislature did not specifically include the second wife in Section 498A, IPC. In a recent case Vasant Bhagawat Patil v. State of Maharashtra 86, the Supreme Court observed that Section 498A, IPC refers to the word ‘woman’ and not ‘wife’ and by the said section protection was contemplated to married woman and to the legally wedded wife only. where accused and diseased were residing together and the evidence proved that marriage of accused and deceased took place by ‘ Sulagna Procedure’, the contention of the accused that deceased was not his legally wedded wife as there was no evidence of valid marriage between them to attract the provisions of Section 498A, IPC cannot be accepted.
- Meaning of the term ‘relative’ of the husband - whether include a ‘girl friend’ or ‘concubine’?
It was held in U. Sovetha v. State represented by Inspector of Police and Anr., 87 that in the absence of any statutory definition of the term ‘relatives’ of the husband, the term relatives must be assigned meaning as is commonly understood. Ordinarily, it would include father, mother, husband or wife, son, daughter, brother, sister, nephew, niece, grandson or granddaughter, of an individual or the spouse of any person. The meaning of the word ’relative’ would depend upon the nature of the statute. It principally includes a person related by blood, marriage or adoption. By no stretch of the imagination, a girlfriend or even a concubine of the husband in an etymological sense would be a ‘relative’. In relation to cruelty to wife under Section 498A, IPC, the word ‘Cruelty” having been defined in terms of Explanation appended to Section 498A, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same would not attract the wrath of Section 498A, IPC. Moreover Section 498A, IPC being a penal provision ought to be given strict construction. Therefore, a girlfriend or concubine of husband cannot be charged under Section 498A, IPC.
In Bhaskar Lal Sharma v. Monica [88] it was held: “A girl friend of the husband or a concubine being in the category of relatives of the husband is not covered by Section 498A, IPC”.
An offence in terms of Section 498A is committed by the persons specified therein. They have to be the ‘husband’ or his ‘relatives’. Either the husband of the woman or his relative must be subjected to her to cruelty within provision of law. In the absence of any statutory definition, the term ‘relative’ must be assigned a meaning as is commonly understood. Ordinarily, it would include father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an individual or the spouse of any person. The meaning of the word ‘relative’ would depend upon the nature of the statute. In principally includes a person related by blood, marriage or adoption. By no stretch of imagination a girl friend or even a concubine in an etymological sense would be a ‘relative’. The word ‘relative’ brings within its purview a status. Such a status must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise.
The Supreme Court in Vijeta Gajra v. State of NCT, Delhi [85] while holding that the appellant/wife no valid reason to lodge an FIR against the foster sister of husband alleging cruelty under Section 498A, IPC for non-fulfillment of the demand of dowry in marriage, held that since foster sister is not a ‘relative’ of the husband by blood, marriage or adoption; she cannot be tried for offences under Section 498A, IPC.
A complaint was filed against the husband and his relatives because of demand for dowry. Shia law was applicable to the parties. The husband had divorced the complaining wife by ‘talaq’ under the Shia law there is prohibition on marrying the woman whom one had earlier divorced. Thus, even if they were living together, they could not be called husband and wife. Section 498A, IPC was not applicable. The complaint was liable to be dismissed.[86]
2.2.2.7 Mens Rea for establishing the offence under Section 498A, IPC
Mens Rea is an essential ingredient of every offence, and its exclusion can only be deduced if the legislature has either expressly ruled it out or by implication intended its exclusion . A look at the provisions of Section 498A reveals that there are no express terms of such ruling out the existence of mens rea. Therefore, it is to be seen whether the legislature has by implication intended the exclusion. The best acceptable method of testing it is to see whether the offence is comparatively of a minor nature. It is the punishment prescribed for the offence that gives out the clue in this respect. The offence is comparatively not of a minor nature to hold that the legislature has by implication intended to rule out the existence of mens rea. On the other hand, the explanation to Section 498A clinches the issue otherwise by giving out the meaning of cruelty as any ‘Wilful conduct’ which is of such a nature as is likely to drive the woman to commit suicide etc. the adjunctive ‘Wilful’ qualifying the word ‘conduct’ contemplates obstinate and deliberate behaviour on the part of the offender for it to amount to cruelty the sole constituent of the offence as such. The term ‘wilful conduct’ is thus explicit in character and reflects the intention of the legislature that intention or mens rea is an essential ingredient of the offence, as held in the case of C . Veerudu & another v. State of Andhra Pradesh . [87]
2.2.2.8 Constitutional validity of Section 498A, IPC
The Constitution of India guarantees the fundamental right to equality to all citizens under Article 14, which states that ‘the state shall not deny to any person equality before law or the equal protection of laws within the territory of India’. Equal protection necessitates equal treatment in similar circumstances. It is well settled law that the principle of equality does not mean that every law must have universal application for all persons, who are not by nature, attainment or circumstances in the same position as the varying needs of different classes of persons often requires separate treatment. It is in this context that a number of laws for the protection and upliftment of women including Section 498A, IPC have been enacted. Further, Article 14 operates on the basis of intelligible differentia. This means reasonable classification of persons for the different treatment. The constitutional validity of Section 498A, IPC has been upheld in many cases.
In Inder Raj Malik v. Sunitha Malik ,[88] the constitutional validity of Section 498A, IPC was challenged on the ground that it gave arbitrary power to the Police and the Court because the words ‘cruelty’ and ‘harassment’ were vague. It was argued that this section is ultra vires to Articles 14 and 20 (2) of the Constitution of India, and the Section 4 of the Dowry Prohibition Act also deals with similar types of cases. Therefore, both statutes together create a situation commonly known as ‘ double jeopardy’. But, the Delhi High Court rejecting the arguments held that Section 498A, IPC is clearly distinguishable from Section 4 of the Dowry Prohibition Act.
The Court has taken a pragmatic approach in the impugned case and said that the word ‘cruelty’ is well defined. The Court further held that since the word ‘cruelty’ is well defined in the Section, no arbitrary power has been given to the Police and the Court, and the discretion as to what sentence can be passed is not arbitrary as it is always exercised judicially by the Court and thus Article 14 of the Constitution is not violated. The import of the word ‘harassment’ is a very well known word, and interpreting the same cannot be called arbitrary. Article 20 is not violated in view of the fact that while Section 498A, IPC punishes the demand of property or valuable security as coupled in cruelty; the Dowry Prohibition Act penalizes mere demand for dowry and the element of cruelty is not necessary under this Act, and thus these are two distinct offences. In this regard, the Court observed that, a person can be convicted both under Section 4 of the Dowry Prohibition Act as well as under Section 498A, IPC because it does not create any situation for double jeopardy.89 The Court said that it was only a discretion conferred on the Court to punish a person for the offence. It is well- established principle of law that discretion cannot be said to be arbitrary under Article 14 of the Constitution. Hence, the constitutionality of Section 498A, IPC was upheld by the Court. The Court held that the imports of these words were clearly understood and therefore the provision cannot be held to be violative of Article 14, and 20 (2) of the Constitution.
In Krishnan lal v. Union of India, 90 while examining the constitutional validity of Section 498A, IPC a full bench of the Punjab and Haryana High Court held that the husband and other relatives of the husband of a married woman form a class apart by themselves and it amounts to reasonable classification especially when a married woman is treated with cruelty within the four walls of the house of her husband and there is no likelihood of any evidence available. Consequently, this section cannot be said to be violative of Article 14 of the Constitution. The words ‘having regard to all the other circumstances of the case’ in Section 113A of the Indian Evidence Act, give wide powers to Court to appraise evidence and come to conclusion whether there was some extraneous cause for a woman to commit suicide. These inbuilt safeguards do not violate right to life and fair procedure provided under Articles 20 (3) and 21 of the Constitution.
Article 15 (3) of the Constitution of India states: “ nothing in this Article shall prevent the state from making any special provision for women and children.” Thus, it has been held in Yusuf Abdul Aziz v. State of Bombay ,91 that any law making special provisions under Article 15 (3) cannot be challenged on the ground of contravention of Article 14 of the Constitution of India. The Supreme Court while describing the ambit of Article 15 of the Constitution observed that the legislation awarding punishment to males and exempting females from the same offences was found to be valid as the classification was not based on sex alone. In this case, the petitioner has stated that Section 498A, IPC should be made gender-neutral, in the light of the perceived misuse. This section has been enacted with the specific purpose of protecting women taking into consideration their special needs when customary norms demand that a woman leaves her natal home and goes to her in-laws home to start her matrimonial life. The unequal position in which they are placed warrants a special law to protect women within the realm of laws, relating to assault that has been provided in the Indian Penal Code. Thus, making the law genderneutral will nullify the very purpose of the law. The substratum of the Section is to protect women from cruelty and harassment in their matrimonial home, and if it is made gender-neutral, it will negate the rationale behind the law.
The High Courts of Andhra Pradesh and Calcutta have decided two cases in which both the accused were prosecuted under Section 498A, IPC for cruelty to wife. The cases are important as the very definition of Cruelty was challenged being violative of Article 14 of the Constitution of India. In Polavarapu Satyanarayana @ Narayan v. Polavarapu Soundaravalli & Others 92 the husband who was prosecuted under Section 498A, IPC for subjecting his wife to cruelty challenged the very definition of ‘cruelty’ as given under the explanation as ‘arbitrary’ and ‘delightfully vague’ and as such ultravires of the fundamental right to equality guaranteed under Article 14 of the Constitution.
The Andhra Pradesh High Court while admitting that the expression ‘cruelty’ was not capable of precise definition held that Section 498A, IPC is neither vague, nor arbitrary nor indefinite and as such it is not violative of Article 14 of the Constitution. Each case has to be adjudicated in the light of the facts of that particular case in the historical circumstances which necessitated the amendment. Similarly, with regard to the second contention that some relatives i.e. in-laws cannot be signed out by legislation for punishment and as such, new provisions violated the fundamental right to equality, the Court replied in the negative. Since, dowry deaths are a hazard faced by women the husband and relatives may be treated as a class. This classification is not unreasonable and is intended to achieve the object of the new law.
The petition also challenged the related amendment to the Indian Evidence Act vide Section 113A93 which states that, if it is shown that, a woman committed suicide within seven years of her marriage and her husband or in-laws had subjected her to cruelty, the Court may presume that, such suicide has been abetted by her husband or relatives of husband. It is for the husband and the in-laws to prove their innocence. Thus, Section 113A, Evidence Act, shifting the burden of proof of innocence on the part of the accused, as against prosecution (in the case of abatement of suicide by a married woman and a wife’s death within a period of seven years of marriage).
This is a departure from the normal principle of criminal jurisprudence as, according to settled notions of law, the burden of proof is always on the prosecution to establish beyond a reasonable doubt that the accused committed the offence. But, the offence in a marital home pertains to a terrain intractable (unruly) to others. Therefore, the law makers felt the need for presumptive evidence in favour of the prosecution. However, this does not relieve the prosecution of the need to prove the case beyond a reasonable doubt and the presumption can be rebutted by the husband. While the Andhra Pradesh High Court in its judgment upheld the validity of Section 498A, IPC, the judgment of the Calcutta High Court reported in Indian Express,94 in a similar situation shows its pitfalls. In this case, 15-year-old Rina was married to Bijay. After six months of alleged Cruelty and demands for dowry of Rupees two thousand and a tape recorder, she committed suicide. Several relatives led evidence to show that Rina was subjected to cruelty, but the Court ruled that the uncorroborated evidence of relatives could not be accepted. There were no physical signs of cruelty. Mental torture by forcing her to do domestic work, after turning out (dismissing) all the servants in the affluent home, was not established. Besides, it is also very much doubtful if doing domestic duties in the absence of servants may be considered torture enough to make a housewife prefer death to get away from it all, says the judgment. The girl had told her mother and her aunt that they would not be able to see her unless the demands of the husband were met. But the Court could not relate these demands with the suicide as there were only three weeks between the two, and it was too short a span during which cruel treatment was allegedly meted out to Rina. The Court also found the girl sentiment and imaginative from her letters. Therefore, the mother-in-law and the husband, who were charged with abetting her to commit suicide, were let-off. Those who know the social situation which dowry deaths take place will find it difficult to agree with the reasoning of the High Court. The range of mental cruelty is a vast and intractable terrain, as the High Court of Andhra Pradesh observed, and being forced to do domestic work in the early weeks of marriage after dismissal of servants would amount to both physical and mental cruelty. If the girl is sentimental and imaginative, such treatment is all the more bound to hurt the teenage psyche. Thus, Section 498A, IPC includes both physical and mental torture which is explained as wilful conduct in the explanation (a) to Section 498A, IPC, can be inferred from direct and indirect evidence.
In Girija Shankar v. State of Madhya Pradesh ,95 and Bala Krishna Panduranga Moghe v. State of Maharashtra, 96 similar question was put to test; where, it was declared that the impugned provision was constantly valid and not violative of Article 14.
In State of Karnataka v. H.S. Srinivasa 97 the Court said: “the expression cruelty postulates such a treatment as to cause reasonable apprehension in the mind of the wife that her living with the husband will be harmful and injurious to her life. To decide the question of cruelty the relevant factors are the matrimonial relationship between the husband and the wife, their cultural and temperamental state of life, state of health and their inter-action in daily life.
In Shobha Rani v. Madhukar Reddy ,98 the Supreme Court had an occasion to observe that, Section 498A, IPC introduces an entirely new offence hitherto unknown to the criminal jurisprudence. A new dimension has been given to the concept of cruelty for the purposes of matrimonial remedies and that the type of conduct described here would be relevant for proving cruelty.
The Supreme Court in B.S.Joshi v. State of Haryana ,99 discussed the object of Section 498A, IPC wherein it remarked that ‘the object of introducing Chapter XXA containing Section 498A in the Penal Code was to prevent torture to a woman by her husband or relatives of her husband in connection with demand of dowry. This section has added with a view to punishing a husband and the relatives who harass or torture the wife to coerce her or relatives to satisfy unlawful demand of dowry. The hyper technical view would be counter-productive and would act against interests of women and against the object for which this provision was added.
In Sushil Kumar Sharma v. Union of India and Others 100 a petition have been filed under Article 32 of the Constitution of India, prayer is to declare Section 498A, IPC to be unconstitutional and ultra vires in the alternative to formulate guidelines so that innocent persons are not victimised by the unscrupulous persons making false accusations. Further prayer is made that whenever, any Court comes to the conclusion that the allegations made regarding commission of the offence under Section 498A, IPC is unfounded, stringent action should be taken against person making the allegations. According to the petitioner, this would discourage persons from coming to the Court with clean hands and ulterior motives. Several instances have been highlighted to show as to how commission of the offence punishable under Section 498A, IPC has been made with oblique motives and to harass the husbands, in-laws and relatives. It was observed by the Supreme Court through Judges Arijit Pasayat and H.K. Sema, JJ in Para 9 that the object for which Section 498A, IPC was introduced are amply reflected in the statement of objects and reasons while enacting the Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983). As clearly stated therein, an increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the joint committee of the Houses to examine the work of the Dowry Prohibition Act of 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend the Criminal Law suitably to deal effectively, not only with the cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty. The Supreme Court in this case further held that, a mere possibility of misuse cannot per se make valid legislation unreasonable and arbitrary, and the impugned provision is constitutional and valid. It must be presumed, unless contrary is proved that administration and application of a particular law would be done “not with an evil eye and unequal hand”. The Court concluded that the provision of Section 498A, IPC is not unconstitutional and ultra-vires. In such case, ‘ action ’ and not the ‘section’ may be vulnerable.101
However, recently the Supreme Court came across a case namely Preeti Gupta v. State of Jharkhand 102 relating to dowry harassment under Section 498A, IPC where the Court, highlighting the importance of social responsibility and obligation to maintain social fibre of family life, urged the legislature to have a serious relook at Section 498A of IPC.
2.2.2.9 Relationship between Section 498A, IPC and the Dowry Prohibition Act, 1961
The purpose and object of the legislature to enact Dowry Prohibition Act, 1961 and related provisions (Sections 498A and 304B under Indian Penal Code) is to prohibit the giving and taking dowry in any form and its demand is punishable under Section 4 of the Dowry Prohibition Act.
The Act of 1961 lays down number of preventive and punitive provisions to eradicate the evil practice of dowry and its related offences. Under Section 2, Dowry has been defined as any valuable asset, property or gift that is given or received by either party of the marriage, or the parents of either party of the marriage, to either each other or to any other person, in connection with the or consideration of the marriage. These assets or gifts may have been given before, at or any time after the marriage,103 but these must be in connection with it, to qualify as dowry. The third occasion i.e. at any time after the marriage may appear to be an unending period, but the crucial words are ‘in connection with the marriage of the said parties’. Hence, customary payments e.g. given at the time of birth of a child or other ceremonies as are prevalent in different societies are not covered with ‘dowry’.[104] The exceptions to this are also the dower or Mahr that is the right of Muslim women. Under Shariat law also it accepts presents made to either the bride or the groom, provided that lists of such presents are maintained and the gift remains the exclusive property of the receiver, and provided that the value of the gifts is not excessive of considering the financial status of the giver. Such gifts must also be voluntary.
The Courts are expected to assume a greater role and take a realistic approach of the problem so as to further the object of the legislation without endangering the application of the principle of natural justice to the accused and victim alike. The practice of dowry in any form must be checked with stern hands and not by showing undue favour and adopting soft attitude towards culprits of these barbarous and heinous crimes.
In the early nineties, the Courts have generally taken the dowry-related offences seriously and ensured that no husband who committed cruelty or harassed his wife to extort dowry or abetted her to commit suicide escaped the jail sentence. [105] This principal was followed in a number of cases. [106] There are landmark judgments of the Supreme Court that flashed the message to the Courts and the public that dowry-related offences are unpardonable. To this effect in the case of State of Punjab v. Iqbal Singh, [107] Justice Ahmadi unambiguously guided the judiciary to be on the alert so as not to allow an earring husband to go scot-free in dowry-related offences. He candidly observed that the legislative intent behind incorporation of Section 113A of the Evidence Act and Section 304B, IPC was to strengthen the hands of the prosecution in a crime generally committed within privacy of matrimonial or residential houses. [108] There are nevertheless cases of dowry-related offences when the Courts have reflected gender bias. The Courts are expected to take an aggregate view of dowry-related offences because any act puts the health of the woman (physical or mental) in jeopardy, which would tantamount to cruelty. In one case, notwithstanding the appreciation that the evidence was both compulsive and told the Supreme Court did not appropriately punish the accused. It is not known why the sentence of four years was reduced to mere ten months i.e. the period, which the accused had already served, on the ground that the accused was leading a settled life and the gap between the final judgment was about ten years.104 In this regard one might like to enquire that what reasons weighed on the mind of the Apex Court to take such a soft view, which cannot be anything less than gender bias or a consideration of professional affinity. It shared sympathy with the accused because he was a brother, in the same profession. In more case the Court failed to interpret accused’s confession that he had received the meagre dowry to be sufficient to prosecute him for any dowry-related offence or to allege that the husband had treated the wife unfairly.105
In Tapanlal v. State of West Bengal 106 the Court failed to reflect upon what kind ill-will and estrangement led to the refusal, of a newly wedded wife, to give jewellery to her in-laws, despite the fact that mere demand is punishable under the Dowry Prohibition Act. It was observed that, where economic disparity between her parent’s family and that of her in-laws created uneasiness the fact that she was asked to give her jewellery and valuables for the marriage of her sister-in-law which demand was not further pressed upon her refusal, was not regarded as sufficient to constitute cruelty under Section 498A, IPC. Therefore, the Court did not mind absolving the husband and those related with him for any offence.
The facts relied in G. A Mohammed Maideen v. State 107 is: the wife died due to hanging, and the husband took the plea of suicide, which was rejected both by the lower Court, as well as the high Court in appeal. The husband was sentenced to seven years of rigorous imprisonment. In a revision petition before the High Court, an interesting plea was put forward by the accused that his wife wanted him set up a separate home and for that he demanded Rs. 50,000 from the father-in-law for taking up a shop. It was alleged that the non-payment of this amount led the torture of the wife and death. Allowing the revision petition, the Madras High Court held that the demand of money for leasing up the shop was not so grave as to be inferred as ‘dowry’ and acquitted the husband. Perhaps the Court failed to realize the purpose and object of the legislature to enact.
2.2.2.10 Section 498A, IPC and Section 4 of the Dowry Prohibition Act, 1961, do not attract “Double jeopardy”
The Delhi High Court was seized of the question of constitutionality of Section 498A, IPC in Inder Raj Malik v. Sunitha Malik .108 It was contended that Section 498A, IPC was violative of Article 14 of the Constitution of India in as much as it gave an arbitrary power to the Police as well to the Court, that the word ‘harassment’ used in part (b) of the Explanation was vague and thus any person could be arbitrarily arrested for harassment. It was further contended that Section 498A acted against the principle of ‘double jeopardy’ guaranteed by Article 20 (2) of the Constitution in view of the fact that demand of dowry or any property was punishable under this Section as well as under Section 4 of the Dowry Prohibition Act.
Rejecting the arguments the Court through G.R. Luthra, J. held that this section does not create situation for double jeopardy. Section 498A, IPC provision is distinguishable from Section 4 of the Dowry Prohibition Act, because in the latter mere demand of dowry is punishable and the existence of element of cruelty is not necessary, whereas Section 498A, IPC deals with aggravated form of offence. Section 498A, IPC punishes an act of cruelty, caused to the newly married women. It inter alia punishes such demands of property or valuable security from the wife or her relatives as are coupled with cruelty to her. Hence, a person can be persecuted in respect of both the offences punishable under Section 4 of the Dowry Prohibition Act and also Section 498A, IPC and can also be punished for one and not the other. Both the provisions are similar to Section 5 (2) of the Prevention of the Corruption Act, and Section 409, IPC.
In Krishnan Lal v. Union of India 109 the Punjab and Haryana High Court held that the words ‘having regard to all the other circumstances of the case’ in Section 113A of the Indian Evidence Act, give wide powers to Court to appraise evidence and come to conclusion whether there was some extraneous cause for a woman to commit suicide. These in-built safeguards do not violate right to life and fair procedure provided under Articles 20 (3) and 21 of the Constitution.
The words ‘intentionally aids’ in Section 107 (iii), IPC are wide enough to cover ‘treating a married woman with cruelty’. The provisions of Section 113A, Indian Evidence Act, are not contradictory to Section 107 of the Code. For dowry death within seven years of marriage, the presumption against the husband or his relatives is valid. This provision under Section 113B of the Indian Evidence Act, is not ultra vires the Articles 14, 20 (3) and 21 of the Constitution. The requirement of proving that soon before her death the woman was subjected to cruelty or harassment by her husband or his relatives for or in connection with any demand of dowry clearly shows that the legislature had imbibed the necessary mens rea for the offence of dowry death.110 Sections 498A, 304B, and 306 of the Code are not offensive to the mandate of Article 20 (2) as all the provisions create specific offences although cruelty or harassment of wife is one of the essential ingredients thereof.
2.2.2.11 Distinction between Section 498A, IPC and Section 4 of Dowry Prohibition Act,1961
Under Section 4 of the Dowry Prohibition Act ‘ a mere demand of dowry is punishable’. Existence of cruelty is not necessary, which is an essential ingredient of Section 498A, IPC. Section 498A punishes an act of cruelty, caused to the newly married woman. Therefore, a person can be convicted in respect of both the offences punishable under Section 4 of the Dowry Prohibition Act, and Section 498A, IPC and can also be punished for one and not the other. In Inder Raj Malik v. Sunitha Malik 111 the Court observed that- ‘a person can be convicted both under Section 4 of the Dowry Prohibition Act, as well as under Section 498A, IPC, because it does not create any situation for double jeopardy. In other words Section 498A, IPC and Section 4, Dowry Prohibition Act, do not attract ‘double jeopardy’. From a plain reading of Section 498A, IPC it appears that the harassment or every type of cruelty is not per se sufficient to bring such cases within the ambit of the impugned provision. Moreover, the complainant has to establish clearly that the beating or harassment in question was with a view to forcing a wife to commit suicide or to fulfill the illegal demand of dowry. It has also been recognised that in connection with dowry demands, many women are harassed, brutalized, murdered, or induced to commit suicide.
2.2.3 Dowry Death
The law underwent a further change with the insertion of Section 304B in the Penal Code. A new offence known as ‘Dowry death’ has been inserted as Section 304B, under Chapter XVI, under the heading of ‘Dowry death’, by the Dowry Prohibition (Amendment) Act 1986 (Act 43 of 1986). This amendment Act has also Section 113B to the Indian Evidence Act.
The provisions under Section 304B, IPC are more stringent than that provided under Section 498A, IPC. The addition of Section 304B, IPC points out at three specific trends. First, the insertion of Sections 498A, in IPC, 198A in CrPC and 113A in the Evidence Act did not help to discourage dowry-related offences. Second, that cruelty to extort dowry did not only increase, but the same had assumed a different and gruesome shape. The cruelty reached an extent causing death through burning of the bride, strangulation, killing, poisoning or gagging as may be gathered from the reported cases. It caused threat to the life of the bride because unscrupulous in-laws did not mind to take her in a gruesome manner. It was seriously felt that there was an immediate need to sharpen the teeth of the law so that deterrent punishment generates emotive forces against taking the toll of brides. Lastly, it awakened the women organizations which demanded the change of mindset of the legislators and judiciary to rise to the occasion and shun gender bias thus pointing at the need to legislate on the subject.
- Section 304B, IPC Dowry Death
Section 304B, IPC deals with ‘dowry death’ and it reads as---
(1) Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of marriage and it is shown that soon before her death she was subjected to cruelty by her husband or any relative of her husband for, or in connection with any demand for dowry, such death shall be called ‘dowry-death’, and such husband or relative shall be deemed to have caused her death.
Explanation: - For the purpose of this Sub-section, ‘Dowry’ shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961(Act 28 of 61).
(2) Whoever commits dowry death shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
The first part of the Section 304B, IPC defines the offence of ‘dowry death’.
According to clause (1) of Section 304B, the death of a woman, will be designated as “dowry death’ when it is caused:
(i) Firstly, by any burns or bodily injury or occurs otherwise than under normal circumstances,
(ii) Secondly, the death should have occurred within seven years of her marriage,
(iii) Thirdly, soon before the death of the woman, she was subjected to cruelty or harassment by her husband or any relative of husband, and
(iv) Fourthly, such cruelty or harassment should be for or in connection with demand for dowry.
When these conditions exist in relation to the death of a woman, it would constitute a dowry death, and the husband and relatives shall be deemed to have caused her death. Even unnatural death of a wife within seven years of marriage is considered to be having enough evidence of dowry demand and the accused is liable to be prosecuted.
The second part of the Section 304B, IPC prescribes for the punishment.
According to Clause (2) of Section 304B, whoever causes the dowry death shall be punished with imprisonment for a term not less than seven years, but which may be extended up to imprisonment for life.
The offence under Section 304B, IPC is Cognizable, Non-Bailable and Non- Compoundable and triable by the Court of Session.
• Presumption as to dowry death - Section 113B Indian Evidence Act,1872
To make the amendments in the IPC more effective, amendments in the Indian Evidence Act was considered to be necessary. Thus, Section 113B, which raised presumption as to dowry death was added. Section 113B reads as:
113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.
Explanation - For the purposes of this section, "dowry death" shall have the same meaning as in Section 304B of the Indian Penal Code112.
The Section 304B, IPC provides definition and punishment for dowry death. It states that a woman must have died within seven years of her marriage. She must have died of burns or bodily injury or otherwise than under normal circumstances. It must also be proved that soon before her death her husband or any relative of her husband had subjected her to cruelty or harassment for or in connection with any demand for dowry. Such an offence has been named as ‘dowry death’. In other words, in case of death of woman caused under the above circumstances, the husband and the husband’s relatives will be presumed to have caused a dowry death and be liable for the offence, unless it is proved otherwise. That is to say; the burden of proof shifts on the part of the accused to prove his innocence unlike other offences where in the accused is presumed innocent.
The addition of Section 113B to the Indian Evidence Act through the Amendment Act 43 of 1986 further strengthened the hands of the prosecutors. As it laid down that on proof the woman being subjected to cruelty “soon before her death” (as the same being emphasized in Section 304B IPC) and the accused had caused the harassment it would raise the presumption of dowry death. As such, it appears that “cruelty before death” is one of the most essential ingredients of the offence. The expression “soon before her death” used in the substantive Section 304B, IPC and Section 113B of the Evidence Act is graved with the idea of proximity test. The importance of proximity test shall lies both for the proof of the offence of dowry death as well as for raising a presumption under Section 113B of the Evidence Act. It can be said that there should be an approximate and live link between the effect of cruelty based on dowry demand and death concerned. If the alleged incident of cruelty is remote in time and has become prosaic enough not to disturb mental equilibrium of the woman concerned; it would be of no consequence. In the course of disposal of dowry-related cases “soon before” appears to be an escape route for the accused and a presiding officer of the Court under masculine influence would easily tread down this route to favour an accused. It is easy for a criminal-minded husband to persistently beat a hapless docile wife with intermittent gaps only to avoid the snare of law.
The presumption shall be raised only on proof of the following conditions:
(a) The question before the Court must be whether the accused has committed the dowry death of the woman (this means that the presumption can be raised only if the accused being tried for the offence under Section 304B, IPC),
(b) The woman was subjected to cruelty or harassment by her husband or his relative, such cruelty or harassment was for or in connection with any demand for dowry, such cruelty or harassment was soon before her death.
• Post-mortem in case of the death of woman - Section 174, CrPC
The Criminal Law (Second Amendment) Act of 1983 has introduced a Sub-section of 174 of the Code. This Amendment was felt necessary as the number of dowry deaths or cases of cruelty on married women culminating in the suicide was increasing day by day. Section 174 CrPC specially empowers police officers to make investigation into cases of suicides and other unnatural or suspicious deaths. The object of the proceeding is merely to ascertain whether a person has died under suspicious circumstances or unnatural death and if so what apparent cause of the death is. Post-mortem in all cases is necessary where a married woman has made the request in this behalf.113 Section 174 (3) gives discretion to a police officer not to send a body for post-mortem examination only in one case, namely, where there can be no doubt as to the cause of death.
Section 176 CrPC provides for inquiry by Magistrate into cause of death in police custody and other cases of unnatural or suspicious deaths. The 1983 amendment similarly empowered the Magistrate to have an inquiry into the cause of death, in all cases where a woman has within seven years of her marriage, committed suicide or died in circumstances raising a reasonable suspicion that some other person has committed an offence, either instead of or in addition to the investigation held by the police officer.
During the 1980’s the feminist groups by their demonstrations through-out the country showed that many official suicides were in fact murders or forced suicides. Sudha Geol Case 114 is the first case in which the Supreme Court in 1985 sentenced the husband and the mother-inlaw of the deceased to life imprisonment for the bride burning.
2.2.3.1 Essentials of Section 304B, IPC
In Smt. Shanti v. State of Haryana 115 the Supreme Court had the occasion to analyse the ingredients of Section 304B of IPC. It was observed that Section 304B, IPC has the following essentials:
(a) The death of a married woman should be caused by burns or bodily injury or otherwise than under normal circumstances.
(b) Such death should have occurred within seven years of her marriage.
(c) She must have been subjected to cruelty or harassment by her husband or any relative of her husband,
(d) Such cruelty or harassment should be for or in connection with the demand for dowry,
(e) Such cruelty or harassment should have been noted out to the woman soon before her death.
A careful analysis of Section 304B, IPC shows that unless the following ingredients are established, it is not possible to hold the accused guilty of an offence under the same:
(a) Death of a woman;
(b) Such death was caused by any burns or bodily injuries;
(c) It must occur, otherwise than under normal circumstances;
(d) It must occur, within seven years of the marriage of the victim;
(e) Soon before her death she should have been subjected to cruelty or harassment;
(f) It must be caused by the husband of the victim or relatives of the husband;
(g) It must be in connection with any demand for dowry.
A case of dowry death is usually, registered under Sections 304B, 306 and 498A, IPC. The prosecution side is required to prove all the above ingredients for an offence committed under Section 304B, IPC. The burden of proof in the absence of the presumption of law never goes to the accused because the burden of proof continues to lie on the prosecution all the time like any other criminal case.
As held in the case of State of Karnataka v. M.V. Manjunatha Gouda 116 by the Supreme Court: “To establish the offence under Section 304B, IPC the prosecution is obliged to prove that the death of a woman is caused by any burns or bodily injuries or occurs otherwise than under normal circumstances and such death occurs within seven years of her marriage and if it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband. Such harassment and cruelty must be in connection with any demand for dowry. If the prosecution is able to prove these circumstances then, the presumption under Section 113B, Evidence Act will operate. It is a rebuttable presumption and the onus to rebut shifts on the accused. The defence of the accused was a total denial. Therefore, the presumption as to dowry death envisaged under Section 113B, Evidence Act remains unrebutted.”117 Thus, as stated by the Supreme Court in Satbir Singh v. State of Haryana, 118 once the prosecution is able to establish the ingredients of dowry death under Section 304B, IPC the burden of proof of innocence shifts on defence.
In Premwathi v. State of Madhya Pradesh ,119 it was held that Section 304 (1) would be attracted not only when the death is caused by someone but also when the death occurs ‘unnaturally’. If occurrence of death is preceded by cruelty or harassment by in-laws for or in connection with a dowry demand and if the connection between the two is established, mere occurrence of death is enough though death may not have been caused by the in-laws.
In Wazir Chand v. State of Haryana, 120 is perhaps, the first Supreme Court decision regarding the conviction of the accused under this new provision, where clause (b) of the Explanation appended to that section has been resorted to. It was a case involving the death by burning of newly married woman. The circumstances did not establish either murder or an abetted suicide and the in-laws escaped the jaws of Sections 300 and 306, IPC. But, they were caught in the web of these newly enacted sections for the prevention of harassment for dowry. Not to speak of the things they were persistently, demanding from the girl’s side, the fact in this case that, a large number of articles were taken back by the father of the deceased after her death from her matrimonial house, showed that pressure was being exerted by the in-laws for money and articles which continued to be exerted till her death. There was ample evidence that, repeated demands were made interalia by the father-in-law and the husband on the newly married wife, and her parents. An amount of Rs 25, 000/- was also demanded setting the husband in business, and they were unable to satisfy these demands. There was also evidence that the wife made statements after her marriage and right up to the time she died that, she and her parents were being harassed by the husband and in-laws for dowry. The husband and father-in-law were convicted under Section 498A, IPC and sentenced to rigorous imprisonment for three years.
The Supreme Court in Shobha Rani v. Madhukar Reddy 121 observed that ‘this section has given a new dimension to the concept of cruelty for the purposes of matrimonial remedies and that the type of conduct described here would be relevant for proving cruelty. It was held that a demand for dowry entitles the wife to get a decree for dissolution of marriage.
In State of Punjab v. Iqbal Singh 122 the court while convicting the husband held that: “The legislative intent behind incorporation of Section 113A of the Indian Evidence Act, 1872 and Section 304B of the IPC was to strengthen the hands of the prosecution in a crime generally committed within the privacy of residential houses.”
In Kans Raj v. State of Punjab 123 a three judge bench of the court dealt with the presumption available in terms of Section 113B of the Evidence Act, and its effect on finding persons guilty in terms of Section 304B, IPC. It was laid, “The law as it exists now provides that where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative for or in connection with demand of dowry, such death shall be punishable under Section 304B, IPC. Thus, in order to seek conviction against a person for offence of dowry death, the prosecution is obliged to prove that:
(a) The death of a woman was caused by burns or bodily injuries or had occurred otherwise than under normal circumstances,
(b) Such death should have occurred within seven years of her marriage,
(c) the deceased was subjected to cruelty or harassment by her husband or by any relative of her husband,
(d) Such cruelty or harassment should be for or in connection with demand of dowry, and (e) To such cruelty or harassment the deceased should have been subjected soon before death.
2.2.3.2 “Cruelty” under Section 304B, IPC - Meaning and Scope
The meaning of ‘cruelty’ for the purpose of Section 304B, IPC has to be gathered from the language as found in Section 498A, IPC and as per Explanation Clause of that Section. The Explanation appended to the Section 498A, IPC defines ‘cruelty’ to mean
(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 her life, limb or health (whether mental or physical) of the woman; or
(b) Causing harassment of the woman 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. Thus, under this newly added provision, if a woman is subjected to cruelty by her husband or his relative it is a penal offence.
• Wilful Conduct: meaning of
Probably, the expression ‘wilful’ is not capable of any precise definition. It may be from crude physical injury or harm to subtle device of causing cruelty or harassment to a married woman. What amounts to ‘wilful conduct’ causing cruelty will differ from case to case. A ‘wilful conduct’ cannot be an accidental happening or an inadvertent act. A ‘wilful conduct’ implies an intentional act.
Where husband abused and beat his wife, forced her to have a common kitchen with a harijan family, accused her of adultery and pressurized her to agree for an abortion and such other acts. It amounted to a ‘wilful conduct’ of cruelty towards wife.129
• Harassment: meaning of
Under Clause (b) of Explanation to Section 498A, IPC, it is required that there should be a nexus between harassment and unlawful demand for dowry. The word ‘unlawful demand for any property or valuable security’ means demand of dowry. Clause (b) lays down that when harassment of a married woman takes place by her husband or any of his relatives with a view to getting fulfilled any unlawful demand of dowry, it amounts to cruelty. The term ‘harassment’ is of wide amplitude. ‘Harassment’ according to Webster Dictionary is “to subject someone to continue attacks questions, demands or as another unpleasantness.” However, harassment simplicities are not covered under this clause.
The following are the ingredients to constitute ‘harassment’:
(i) Women should be tormented i.e. tortured either physically or mentally through constant interference or intimidation;
(ii) Such act should be with a view to persuade or compel her to do something which she is legally otherwise not expected to do by using force or threats;
(iii) Intention to subject the woman should be to compel or force her or relatives to fulfill unlawful demands for any property or valuable security.130
Cruelty and harassment in connection with dowry demand, as stated by the Supreme Court in Pawan Kumar Case [130]131 is proved when demand for scooter and a fridge, made soon after the marriage by the husband. The facts and detailed description of the case discussed here: the deceased and the appellant were married in 1985. After a few days of the marriage, there was a demand for scooter and fridge. On account of not satisfying the demand of the aforesaid goods, right from the next day, the deceased was repeatedly taunted and maltreated. In the meanwhile, her maternal uncle died, and she, along with her husband, went there and the deceased instead of returning to her husband’s place, came to her sister’s house. She remained there for a few days. Both her sister and brother-in-law deposed that she told them that her husband was ill-treating her due to dowry demands, and that on not being satisfied, was harassing her. When her husband, came to take her back, she was reluctant, but her sister brought her down and sent her with the husband. On the very next day, the deceased committed suicide.
The ingredients necessary for the application of Section 304B, IPC are:
(a) when the death of a woman is caused by burns or bodily injury, or
(b) occurs otherwise than under normal circumstances,
(c) and the aforesaid two facts spring within seven years of the girls marriage,
(d) and soon before her death, she was subjected to cruelty or harassment by her husband or his relatives, and
(e) This cruelty is in connection with the demand of dowry.
If these conditions exist, it would constitute a dowry death. It is not disputed that the deceased died of burn injuries, that she died otherwise than under normal circumstances, and that the death was within a period of seven years of marriage. The only consideration has to be, whether she was subjected to any cruelty or harassment by the appellant soon before her death, and whether the same was for or in connection with any demand of dowry.
It is true that in criminal jurisprudence, the benefit of doubt is extendable to the accused. But the benefit of doubt would arise in the context of the application of penal law, and in the facts and circumstances of a case. The concept of benefit of doubt has an important role to play, but within the confines of the stringency of laws. Since the cause of death of the married woman occurred in unnatural circumstances as a ‘dowry death’ for which evidence is not so easily available, as it is mostly confined within the four walls of a house, namely the husband’s house, where all accused likely reside. The amendments by the Criminal Law (Second Amendment) Act brought in the concept of ‘deemed dowry death’ caused b y the husband or the relatives, as the case may be. This deeming clause has a role to play and cannot be taken lightly and ignored to shield the accused, otherwise, the very purpose of the amendment will be lost. Of course, the prosecution has to prove the ultimate essential ingredients beyond all reasonable doubt after raising the initial presumption of ‘deemed dowry death’. In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of such evidence. That could be either direct or indirect.
Demand of dowry neither conceives nor would conceive of any agreement. The word ‘agreement’ referred to in Section 2 of Dowry Prohibition Act has to be inferred on the facts and circumstances of each case. The interpretation that conviction can only be if there is an agreement for dowry, is misconceived. This would be contrary to the mandate and object of the Act. ‘Dowry’ definition is to be interpreted with the other provisions of the Act including Section e, which refers to giving or taking dowry and Section 4 which deals with penalty for demanding dowry, under the Dowry Prohibition Act and the Indian Penal Code. This makes it clear that even demand of dowry and other ingredients being satisfied is punishable. This leads to the inference, that when persistent demands for Television and scooter are made from the bride after marriage or from her parents, it would construe to be in connection with the marriage and it would be a case of demand of dowry falling within the definition of ‘dowry’ under Section 2 of Dowry Prohibition Act, and within the meaning of Section 304B, IPC. It is not always necessary that there be any agreement for dowry. After a few days of the marriage, there was demand of scooter and fridge, which when not met led to repetitive taunts and maltreatment. Such demands cannot be said to be not in connection with the marriage. Hence, the evidence qualifies to be demand for dowry in connection with the marriage and in the circumstances of the case falling within the definition of ‘dowry’ under Section 2 of the Dowry Prohibition Act, and Section 304B, IPC.
Cruelty or harassment need not be physical. Even mental torture in a given case would be a case of cruelty and harassment within the meaning of Sections 304B, and 498A of IPC. Explanation (a) to Section 498A, IPC itself refers to both mental and physical cruelty. Again, wilful conduct means, conduct wilfully done, this may be inferred by direct or indirect evidence, which could be construed to be such. A girl dreams of great days ahead with and aspiration when entering into a marriage, and if from the very next day, the husband starts taunting her for not bringing dowry and calling her ugly, there cannot be greater mental torture, harassment or cruelty for any bride. They had quarreled a day before her death. This by itself would constitute, to be a wilful act to be a cruelty, both within the meaning of Sections 498A, and 304B, IPC.
The Court must adopt that construction which ‘ suppresses the mischief and advances the remedy ’. The earlier law was not sufficient to check dowry deaths. Hence, aforesaid stringent provisions were brought in by shifting the burden to the accused, by bringing in the deemed clause. It is that interpretation, which suppresses the mischief, sub-serves the objective and advances the remedy, which would be acceptable. According to Section 4 of the Dowry Prohibition Act, which when was amended by Act 63 of 1954 for taking or abetting any dowry, the burden to explain is placed on such person against whom the allegation of committing an offence is made. Similarly, under Explanation to Section 113B of the Indian Evidence Act, there is presumption that such death is on account of dowry death. Thus, the burden, if at all, was on the accused to prove otherwise. The evidence would, on the facts and circumstances of the present case, bring to an inescapable conclusion that the quarrel between the deceased and her husband, a day before the actual death of the deceased, cumulatively with other evidence, constitutes cruelty and harassment in connection with marriage and that too at her own sister’s place, which has direct correlation with the proceeding evidence of repeated demand of dowry, to be a case covered both under Sections 304B and 498A, IPC. However, it was open to the accused to prove otherwise or dispel by means of evidence to destroy that deeming clause. But he has not been able to do so. Such burden is placed on the accused with a purpose. Evidence also includes harassment to the deceased within the meaning of Section 498A, Explanation (b), as she was repeatedly abused for not meeting the demands, leading to her mental torture and agony which ultimately led her to commit suicide.
Accordingly, the appellant is sentenced to seven years rigorous imprisonment with a fine of Rs.500/- under Section 304B, IPC and for two years rigorous imprisonment and fine of Rs.200/- under Section 498A, IPC.
In this context, it is relevant to note that the ‘cruelty’ under Section 304B, IPC is preferable to dowry harassment and not any other type of cruelty. Thus, if a death is caused to women due to harassment by the husband and in-laws for other than dowry related issues like suspecting her fidelity or giving birth only to female children, this provision is not attracted. Consequently the case is to be dealt with Section 302 of IPC (where the burden of proof lies with the prosecution, to show the ingredients of the offence, while the burden of proof under Section 304B of IPC is one the accused).
2.2.3.3 Distinction between Dowry death, under Section 304B, IPC and Cruelty, under Section 498A, IPC
The Indian Criminal Laws were comprehensively amended to include dowry as a punishable offence.132 Section 304B was added to the Penal Code, which made dowry death a specific offence punishable with imprisonment for seven years and a maximum imprisonment for life. The meaning of the term ‘cruelty’ in Section 304B, IPC has been held to be the same as defined in Explanation to Section 498A, IPC.
Now the question is what should be the result, where the accused is charged under both the Sections and is acquitted under one. For example, whether the acquittal of the accused persons of the offence punishable under Section 498A, IPC will make any difference for their conviction under Section 304B, IPC? In order to prove dowry death under Section 304B, IPC; it is necessary to establish that death of the woman was caused in concordance with contours of Section 304B, IPC in the background of Section 498A, IPC. Sometimes a sentence can be sustained under Section 498A, IPC though it is not the subject-matter of the charge. In the case of Akula Ravinder v. State of Andhra Pradesh 133 there was no proof of harassment soon before death, conviction under Section 304B, IPC was set aside, and was converted to one under Section 498A, IPC. On the contrary in Prakash Chander v. State 134 the Delhi High Court convicted a husband under Section 304B, IPC for burning of his wife because all the ingredients were proved. His mother was convicted under Section 498A, IPC only which meant her acquittal under Section 304B, IPC. In an appeal against this acquittal it was held that the High Court had no power to convict her under Section 304B, IPC. In Ramesh Chand v. State of Uttar Pradesh 135 it is a case of suicide by wife of accused within seven years of marriage. Prior to this, there was a demand for dowry that was settled and normal life relations resumed. Hence, no conviction was held under Section 304B, IPC. Whatever cruelty was committed by the husband subsequently which was unrelated with dowry was considered to be relevant circumstances for maintaining his conviction under Section 498A, IPC. The accused husband was convicted under Section 498A, IPC, but not under Section 304B, IPC.
In Madhuri Martand Chitnis v. Mukund M. Chitnis 136 it was held that the meaning and definition of cruelty given in Section 498A, IPC is not vague. The ordinary dictionary meaning cruelty does not apply to Section 498A which has been inserted in the statute with the purpose of meeting a social challenge to save the married woman from ill-treatment and ensure that women live with dignity in their matrimonial homes. The sole constituent, the court held, of an offence under Section 498A, IPC is wilful conduct. Wilful contemplates obstinate and deliberate behaviour on the part of the offender for it to amount to cruelty. Thus, mens rea is an essential ingredient of the offence, where a married woman was subjected to a series of malicious and vexatious litigation wherein she was humiliated and tortured through the execution of search warrants and seizure of personal property, it amounts cruelty and harassment punishable under Section 498A, IPC.
To bring home the charge against the husband under Sections 304B and 498A, IPC, the prosecution has to prove that the husband subjected the wife to cruelty or harassment for or in connection with a demand for dowry. The distinction between ‘Dowry death’, under Section 304B, IPC and ‘Cruelty’, under Section 498A, IPC was discussed by the Supreme Court in Smt. Shanti v. State of Haryana .[137] The Supreme Court observed:
“Therefore, the mere acquittal of appellants under Section 498A, IPC, in these circumstances makes no difference for the purpose of this case. However, we want to point out that this view of the High Court is not correct and Sections 304B and 498A, IPC cannot be held to be mutually exclusive. These provisions deal with two different and distinct offences, it is true that ‘cruelty’ is a common essential to both the sections, and that has to be proved. The Explanation to Section 498A, IPC gives the meaning of ‘cruelty’. In Section 304B, IPC, there is no such explanation about the meaning of ‘cruelty’ but having regard to the common background to these offences we have to take that the meaning of ‘cruelty or harassment’ will be the same as we find in the Explanation to Section 498A, IPC under which ‘cruelty’ by itself amounts to an offence and is punishable. Under Section 304B, IPC, as already noted, it is the ‘dowry death’ that is punishable and such death should have occurred within seven years of the marriage. No such period is mentioned in Section 498A, IPC and the husband, and his relatives would be liable for subjecting the woman to ‘cruelty’ any time after the marriage. Further, it must also be borne in mind that a person charged and acquitted under Section 304B, IPC can be convicted for lesser offence under Section 498A, IPC without any charge being there, if such a case is made-out.[138] But from the point of view of practice and procedure and to avoid technical defects, it is necessary in such cases to frame charges under both the sections and if the case is established they can be convicted under both the sections but no separate sentence need be awarded for the major offence under Section 498A, IPC in view of the substantive sentences being awarded for the major offence under Section 304B, IPC. Therefore, sentence of seven years rigorous imprisonment was awarded under Section 304B, IPC.
It is no impediment to a conviction under the section that the accused has been acquitted of the larger offence of murder under Section 302, IPC, where the charge was that of murdering wife for dowry and no evidence was available except this that the accused projected the theory of intruders killing her (which the court did not believe) and did not immediately made police report or to get medical help for his injured wife, this was held to be not sufficient to convict him —
137 Supra Note 161. (Also reiterated in Kaliya Perumal v. State of Tamilnadu; 2004 (9) SCC 157; AIR 2003 SC 3828).
138 Arun Garg v. State of Punjab, (2004) 8 SCC 251.
for murder. The harassment for dowry was established forms his own conduct in deserting her and also through the mouth of the witnesses. That was held to be sufficient to convict him under Section 498A, IPC. [139] Where after a spell of cruelty, the husband and wife reconciled and resumed joint life, it was found that the husband left the wife back with her parents for a short spell and then took her back and within two days informed her parents of her death, the wife made no complaint of cruelty, etc. during her short stay with parents, the section could not come into play because there was no complaint after reconciliation[140]. The court also added that sections 498A and 304B create distinct offences. ‘Cruelty’ is common element to both. A person charged under Section 304B, IPC can be convicted under Section 498A, IPC without any charge under that section.
Where the wife committed suicide due to torture, in Pawan Kumar v. State of Haryana [141] and harassment for non-fulfillment of dowry demand was proved, it was held that conviction under Sections 304B and 498A was sustainable.
Thus, the scope of the Sections 304B and 498A, IPC is different, and the same is illustrated below.
1. Section 498A, IPC deals with the Cruelty to a woman by her husband or his relatives which drives her to commit suicide or physical or mental injury whereas Section 304B, IPC deals with dowry deaths. Thus, Section 498A, IPC relates to cruelty alone while Section 304B, IPC deals with actual death.[142]
2. Under Section 304B, IPC it is the “dowry death” that is punishable and such death should have occurred within a period of seven years of the marriage, whereas under Section 498A, IPC “Cruelty” by husband or relative of husband is punishable and there is noperiod of limitation of seven years provided for prosecution in such cases. The husband or his relative would be liable for subjecting the women to cruelty any time after the marriage.
3. Under Section 498A, IPC “Cruelty” as such is punishable but “Cruelty or harassment” of a married woman when it results in the death of the woman, (for or in connection with any demand of dowry or valuable security) it would attract Section 304B, IPC. Cruelty is a common essential to both the offences, and that has to be proved before a person is convicted.
4. Section 498A, IPC imposes the punishment for a term, which may extend up to three years of imprisonment and fine only, whereas under Section 304B, IPC punishment may extend up to imprisonment for life with a minimum of seven years of imprisonment. The nature of the offence showed in Section 304B, IPC is grave and severe than the nature of the offence showed in Section 498A IPC. In fact, if the case is established there can be conviction under both the Sections. Further, a person charged and acquitted under Section 304B, IPC can be convicted for the lesser offence under Section 498A, IPC without charge being there, if such a case is made out. But, from the point of view of practice and procedure and to avoid technical defects, it is necessary in such cases to frame charges under both the Sections, but no separate sentence need be awarded under Section 498A, IPC in view of the substantive sentence being awarded for the major offence under Section 304B IPC.137 Merely because the deceased was a young woman and the death was neither due to the natural cause nor due to the accident can’t it be surmised that the death was due to unnatural circumstances. The Court held that the prosecution had failed to prove that the death of the woman was unnatural and hence the in-laws could not be charged for dowry death. However, since it was proved that the woman had been subjected to cruelty, the in-laws were convicted under Section 498A, IPC and sentenced to two years rigorous imprisonment.138
5. The Explanation Clause to Section 498A, IPC gives the meaning of ‘cruelty’. There is no such explanation about the meaning of ‘cruelty’ under Section 304B, IPC.
6. Having regard to the common background to these offences, it has taken that the meaning of cruelty or harassment will be the same as in the explanation to Section 498A, IPC under which “Cruelty” by itself amounts to an offence and is punishable.
Thus, the offence being of the common background a person charged and acquitted Under Section 304B, IPC can be convicted under Section 498A, IPC for a lesser offence without charge being there, if such a case is made out. However to avoid technical defect it is proper to frame charges under both the Sections. If the case is established under both the Sections, convictions should be made under both. Separate sentence need not be awarded under Section 498A, IPC and Under Section 304B, IPC.139
7. Section 498A, IPC explains only the grounds of cruelty on the part of the husband or relatives of her husband. Further, if such a cruelty is in connection with a demanding of a dowry and to fulfill such demand, forced her to commit suicide, it is abetment of suicide. For this Section 306 read with Section 498A, IPC applied. Section 113A, Indian Evidence Act raises a presumption as the abetment of suicide by a married woman, within seven years of her marriage; otherwise, if the death of a wife has been occurred it is not of abetment of suicide but treated as ‘Dowry Death’ under Section 304B, IPC. Section 306, IPC is common to abetment of all suicides and is a penalty provision. Section 113A, Indian Evidence Act is an adjective legal provision especially stressing upon the abetment of suicide of a married woman within seven years of her marriage.
8. Sections 498A 306, and 304B IPC and Sections 113A and 113B, Indian Evidence Act are covered by the framers, having connection with each other. The object of these Sections is, to prevent the matrimonial cruelty, against the married women.
9. A person can be convicted simultaneously or alternatively under Section 304B (Dowry Death) 306 (Abetment to suicide) 302 (Murder) 498A (Cruelty) of IPC, and Section 4 of Dowry Prohibition Act.
2.2.4 Abetment of (cruelty leading to) suicide by a married woman
Suicide is self-murder, and the person committing suicide is beyond the reach of the law. But it does not follow that abatement of suicide is not forbidden by the Code. A man is encouraging and abetting another to commit suicide certainly criminal, and his act is punishable under Section 306, IPC.140
The Criminal Law (Second Amendment) Act, 1983 added Section 113A to the Indian Evidence Act to raise presumption regarding abetment of cruelty leading to suicide by a married woman. The 1983 Amendment Act has provided that where a married girl commits suicide within seven years of her marriage, the Court may presume that her husband and relatives of her husband had abetted her to commit suicide by virtue of insertion of Section 113A, Evidence Act. Section 113A lays down the circumstances or the happening of which a court may presume the abatement of suicide. It may be pertinent to mention here that the presumption in such cases is retrospective because the provisions of this section do not create any new offence and as such it does not create any substantial right but it is merely a matter of evidence.
Under Section 498A, IPC, if wilful conduct of the husband or in-laws is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to her life or limb or health, it will constitute an offence.
Under Section 309, IPC an attempt to commit suicide is an offence under the Penal Code so is the abetment to commit suicide under Section 306, IPC.
Here we are concerned with abetment to suicide.
In many cases of dowry deaths, a defence is put up that the married woman died by committing suicide and her husband or in-laws are not guilty of murder. Sometime a married woman commits suicide and unless it is proved that her husband and in-laws abetted her to suicide, they cannot be punished for abetment to suicide.
For the offence of abetment to commit suicide, Section 498A, Explanation (a) alongwith Sections 306 and 107, IPC should be read.
Section 306, IPC deals with ‘abetment of suicide’ and it runs:
‘If any person commits suicide, whoever abets the commission of such suicide shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.’
The offence under Section 306, IPC is Cognizable, Non-bailable, and Non- Compoundable and triable by the Court of Session.
This section requires that an act of suicide must be committed as a result of abetment. The commission of suicide by a married woman is said to have been abetted by her husband/in- laws when:
- She commits suicide,
- Her husband/ in-laws abetted/assisted her commission of suicide, or by helping her to do so, or by not doing anything to prevent her from doing so. This may be done by harassing the woman or subjecting her to cruelty to such an extent that she commits suicide.
The offence of ‘abetment’ must conform to the definition of ‘abetment’ given in Section 107, IPC i.e., there must be instigation, or engaging in conspiracy, or assistance in the commission of the offence. However, the instigation must be intentional to bring a case within the purview of Section 306, IPC.[147]
It should be noticed that maximum punishment under Section 306, IPC is ten years imprisonment while for an offence under Section 498A, IPC the maximum punishment is three years imprisonment. Under both the Sections fine may also be imposed. In most of the dowrydeath cases, the main defence is that the deceased committed suicide. There are numerous cases falling in this category. The word ‘abetment’ necessarily means some active suggestion to the commission of offence. The word ‘instigate’ means to goad, urge, provoke, incite or encourage in the commission of the offence.[148]
In short, a person is said to instigate another when he actively suggests or stimulates another to act in a particular manner by means of language, direct or indirect. When a result in caused by words with the contemplation of the user of the words, then it amounts to abetment to suicide.
If both Sections 306 and 107 are read together, it means that
1. When a person instigates the other to commit suicide,
2. As a result of such instigation the other person commit suicide, and
3. Then, the person causing such instigation commits the offence and is liable to be punished under Section 306, IPC.
Some of the cases falling in these categories are being reviewed here. In Wazir Chand v. State of Haryana 141 (reviewed earlier) the prosecution case was that not being satisfied with the dowry she brought, her husband and in-laws were making demands for further articles of dowry and were harassing, humiliating and insulting the deceased and ultimately she was driven to commit suicide by setting herself on fire. The defence taken by the accused was that the deceased did not commit suicide but her clothes accidentally caught fire when she was preparing tea. The Additional Session Judge acquitted the mother-in-law, but convicted the father-in-law and the husband. The husband was sentenced to undergo rigorous imprisonment for a period of three years under Section 306, IPC and was further sentenced to rigorous imprisonment for one year under Section 498A, IPC. On appeal, the High Court confirmed the sentence but reduced the sentence of the father-in-law under Section 306, IPC to three years. The Supreme Court confirmed the decision of the High Court, and observed: What are the most telling circumstances is that after the death of the deceased a large number of dowry articles seem to have been taken by the parents which are admittedly given as dowry. There is also substantial evidence to show that an amount of Rs. 25,000 was demanded from the brother and mother of the deceased for setting up the husband in business and they were unable to satisfy these demands. We, therefore, agree with the conclusion reached by the Session Judge and confirmed by the High Court in this connection and confirm the conviction and sentence imposed on the accused under Section 498A, IPC.
• Relationship between Sections 304B and 306, IPC
Prior to the enactment of Section 304B, IPC abetment of suicide of newly married woman was governed by Section 306, IPC. The relationship between Section 304B and Section 306 IPC is a peculiar relationship.142
The Andhra Pradesh High Court incisively dealt with the distinction between Sections 304B and 306 IPC in Public Prosecutor v. T. Punnaiah 143 and stated that in the instant case cruelty was proved beyond doubt since the victim had died of asphyxia being subjected to strangulation by the three accused, namely, the husband, the father and the mother. The same was made to appear to be a case of suicide by hanging. The Additional Sessions Judge held that the death had been by suicide, and the accused was held guilty of abetment to suicide under Section 306, IPC. On appeal the Court countered the argument made by the council of the accused about the non-applicability of Section 304B, IPC to a case where a person commits suicide. To this effect the Court observed in the instant case, since: the deceased died on account of the hanging, the death occurred otherwise than under normal circumstances. We are therefore, of the view even if she had committed suicide by hanging still the death comes within the scope of Section 304B, IPC if it is shown that she was subjected to cruelty or harassment by her husband or any relative of her husband in connection with any demand for dowry.144 The accused husband was sentenced to seven years rigorous imprisonment under Section 304B, IPC and three years rigorous imprisonment under Section 498A, IPC. In order to prove dowry death under Section 304B, IPC it is necessary to establish that death of the woman was caused in concordance with contours of Section 304B, IPC in the background of Section 498A IPC. Sometimes a sentence can be sustained under Section 498A, IPC though it is not the subjectmatter of the charge.145 The Courts have meticulously been holding to a dividing line between Sections 304B and 306, IPC in the course of deciding whether a person would be charged with one or the other offence. In Samir Samantha v. State 146 the abate of suicide through dowry demand was ruled out though there was sufficient harassment of the wife for the outstanding items of dowry, which demand was met and the matter got settled one and half months before the wife set herself ablaze in the kitchen. There was no evidence of further demand of dowry or any kind of fortune of the deceased. It was held that in view of such circumstances, it would be unsafe and unjust to invoke the presumption of guilt against the accused. The conviction of the accused under Section 306, IPC was set aside but, that under Section 498A, IPC was upheld.147
Again in State of Maharashtra v. Vasantha Shankar Mahasane [156] where the facts and circumstances of the case did not clearly help to establish whether the case was one of accident or suicide because there was a long history of continuous harassment, assault and torture by the husband and mother in law of the deceased wife which impelled her to take the extreme step of committing suicide. The deceased died of burn injuries, and the Court confirmed the acquittal of the accused husband from the offence under Section 306, IPC but, the sentence under Section 498A, IPC was confirmed.
In Hiralal v. State (Government of NCT) Delhi [157] it was held that the expression ‘soon before’ in Section 304B, IPC and in Section 113B Indian Evidence Act does not indicate any fixed period but the proximate test is applicable. The existence of proximate and link between the effect of cruelty and the death is necessary. An acquittal under Section 304B IPC does not necessarily mean acquittal under Sections 498A and 306, IPC though no charge to that effect was framed. In the case of Harijit Singh v. State of Punjab [158] the wife of the appellant was died of poisoning within seven years of her marriage. No evidence was shown that deceased wife was subjecting to cruelty or harassment by appellant husband or any of his relative for or in connection with any demand of dowry. Following the principles laid down in the case of Hiralal [159], the Supreme Court held that the appellant husband could not be convicted under Section 306, IPC merely because he was not found guilty of offence under Section 304B, IPC.
In Giridhar Shankar Tawade v. State of Maharashtra [160] the Supreme Court interpreted the provision of Section 498A, IPC. In this case the accused was charged under Sections 498A and 306 IPC for the burning of his wife. The Court held that happening of an event sometime back cannot be a fact to be taken note of in the matter of a charge under Section 498A, IPC. The legislative intent is clear enough to indicate in particular reference to Explanation (b) that there shall have to be a series of acts in order to be a harassment within the meaning of Explanation (b) to Section 498A, IPC the letters by itself though may depict a reprehensible conduct, would not, however bring home to charge of Section 498A against the accused. It was further held that acquittal of a charge under Section 306, IPC as noticed though not be itself a ground for acquittal under Section 498A, but some cogent evidence is required to bring home the charge of Section — [156] Supra Note 87. [1993 Cri LJ 1134 (Bom).] [157] 2003 Crilj 3711 (SC).
498A as well, without which the charge cannot be said to be maintained. However, there was no such evidence available on record. Therefore, the accused would be required to be acquitted of the charge under Section 498A, IPC.
• Sections 498A and 306, IPC are independent of each other
The charges under Sections 306 and 498A, IPC are independent of each other and acquittal of the one does not lead to an acquittal on the other. But, in order to justify the conviction under later provision, there must be available on record some material cogent evidence without which the charge could not be said to be maintained. In the instant case, there was no such evidence available on record; therefore, the accused would be entitled to be acquitted of the charge under Section 498A, IPC.148 The basic difference that lies between the two sections is that of ‘intention’. Under Section 498A, IPC cruelty committed by the husband or his relatives drags the woman concerned to commit suicide, while Section 306, IPC suicide is abetted and intended.149
2.2.5 Provision for Stridhan under Criminal Law (Sections 405 & 406, IPC)
There is a prevailing confusion between stridhan and dowry which are two distinct concepts. It is the dowry which should be criticized and prohibited, but not the stridhan. It is true that border line between the two is thin, but that does not mean that we should make the confusion worst confounded. That presents made to the bride and bridegrooms are recognised even by the amended Dowry Prohibition Act with some safe guards, though time will show how effect these safeguards would be.150
Stridhan is, generally speaking, what a woman can claim as her property, within a marital household. It may include her jewelry, gifts presented to her at the time of marriage or later (by her family or in-laws), and the dowry articles given be her family. Gifts given by the parents of the bride are considered ‘Stridhan’, i.e. the property of the woman, traditionally representing her share of her parent’s wealth.
Section 405, IPC defines ‘Criminal breach of Trust’ and Section 406, IPC prescribes punishment in case of a breach of trust. Section 406, IPC is usually applied investigation of stridhan recovery from the husband and his family. [164] It cannot be said that upon a woman entering her mother-in-laws home, the ownership of ‘Stridhan’ becomes joint with her husband. The husband and his parents should be deemed to be trustees and bound to return the same, when demanded by her.
The Supreme Court examined the entire concept of stridhan in the light of old textual law as well as existing provisions under the Hindu Succession Act, 1956 in its famous pronouncement made in the case of Pratibha Rani v. Suraj Kumar [165]. Prior to Pratibha Rani [166] the Punjab and Haryana High Court in Vinod Kumar Sethi v. State of Punjab [167] (earlier reviewed) in the context of criminal breach of trust held that: “the inevitable presumption during the existence or imminent breakup of the matrimonial home, therefore, is one of the joint possession of the spouses which might be dislodged by the special terms of a written contract. However, to be precise, this presumption of joint possession of properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate breakup thereof. It would be equally untenable to hold that either desertion or expulsion of one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit of Section 405 of the Penal Code i.e., Criminal Breach of Trust.”
The court further observed: “ that it’s a pure figment of the High Court’s imagination as a
result of which the High Court simply shut their eyes to this fact that the husband could be guilty of criminal breach of trust under Sections 405 or 406, IPC, in view of the clear allegations made in the complaint. In other words, the High Court’s simply refuses to believe that there can be any such entrustment and even if it is so, no offence is committed. Such an approach amounts to a serious distortion of the Criminal Law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. We cannot countenance such a wrong and perverse approach. The court added: ‘All the gifts, including jewellery and clothes; furniture and utensils, given to the bride constitute her stridhan. By no stretch of imagination could it be said the ornaments and sarees and other articles given to the bride for her use would belong to her husband too’.151
Overruling the above decision in Pratibha Rani v. Suraj Kumar 152 the Fazal Ali, J., observed that if, despite demands, the husband and his parents refused to return to the wife the articles given in marriage, it amounts to an offence of criminal breach of trust. Where the allegation of entrustment and misappropriation of Stridhan property was made out by the married woman in her complaint and the allegations were clear, specific and unambiguous, all the facts stated in the complaint constitute an offence under Sections 405 and 406 IPC.153
2.2.6 The Protection of Women from Domestic Violence Act, 2005
Domestic violence connotes when harsh, inhuman and atrocious acts of violence is being committed to a woman at home i.e. by the persons to whom she is related to marriage, consanguinity, adoption and with whom she is living in a home or we can say that behind the closed doors. In other words, it can be defined as the maltreatment by one person to a woman living in the same home. Domestic violence or domestic abuse typically occurs between people who are in an intimate relationship. Most often abusers are husbands, ex-husbands, mother-inlaws, father-in-laws, brothers-in-laws, sisters-in-laws and other near relatives.
The phenomenon of domestic violence in India is widely prevalent but has remained invisible in the public domain. The civil law does not address this phenomenon in its entirety. Prior to the enactment on this subject, a woman, who is subjected to cruelty by her husband or his relatives, it is an offence under Section 498A, IPC which eventually proved out to be insufficient.
In India, domestic violence was recognised as a crime in the early 1980s, after a sustained campaign by feminist groups and women activists all over the country which resulted in the enactment of Sections 498A, and 304B, IPC in 1983 and 1986 respectively and corresponding provisions in the Indian Evidence Act. Admittedly, women could earlier approach the Courts only under the Indian Penal Code in cases of domestic violence under the provisions of cruelty against married women and all other kinds of domestic violence could be dealt under the general provisions of Penal Code such as hurt154, grievous hurt155, rape156 and outraging of modesty157 etc.
The drawbacks with Section 498A, IPC are firstly, once a woman file a complaint she has to presumably move out of her matrimonial home to ensure her safety or face further violence as retaliation; secondly, victim facing the actions of cruelty from her husband wants to end the violence and not the marriage and as far as possible wants to stay in her matrimonial home; thirdly, it is only designed to punish the offender and does not provide civil remedy; fourthly, protection under these Criminal Laws is only provided for the married women from the violence at the hands of their husbands or their relatives, neglecting the everyday violence committed on the married women at the hands of the other relatives and on unmarried women and children in their homes; and lastly, the definition of ‘cruelty’ under Section 498A, IPC is vague and limited and does not include all forms of domestic violence like verbal, psychological, sexual and economic abuse etc. In this way, significant lacunae existed in our criminal legal system to protect women from the evils of domestic violence.
It was therefore, to safeguard the rights guaranteed under Articles 14, 15 and 21 of the Constitution, to provide for a remedy under the civil law which is intended to protect women from being the victims of domestic violence and to prevent the occurrence of domestic violence in the society the Protection of Women from Domestic Violence Bill was introduced in the Parliament. There were long discussions to have consensus, number of changes were made and serious lacunae which exited filled. Finally the much awaited Act has been received the assent of the President of India on 13th September, 2005 and came on the Statute Book as “The Protection of Women from Domestic Violence Act, 2005” (Act 43 of 2005), but came into force on October 26, 2006 as detailed consultations were required with the State and other agencies for framing the rules. The new Act contains 5 Chapters and 37 Sections.
The Protection of Women from Domestic Violence Act, 2005 (hereinafter called ‘ the Domestic Violence Act’) has been enacted to provide more effective protection of rights of women guaranteed under Articles 14, 15 and 21 of the Constitution of India and to curb the barbarous acts of violence of any kind occurring within the family and for incidental matters. The Act, 2005 was important to prevent women who were ostracized by their ‘own’ people in their ‘own’ homes.
2.2.6.1 Different Forms of Domestic Violence
Violence can never be one thing. It is defined in many ways and takes many forms. Violence inflicted on women and children usually, occurs within the private sphere- the home or familial or intimate relationships. Domestic violence may involve different means such as hitting, kicking, biting, throwing objects, shoving, and restraining. In broad terms it includes threats, sexual abuse, controlling or domineering, intimidation, stalking, passive/ covert abuse and economic deprivation.
Explanation-I to this Section describes the different forms of domestic violence.
Those are:
(i) Physical abuse means any act or conduct which is of such a nature as to cause bodily pain , harm, or danger to life, limb or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;
(ii) Sexual abuse includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of a woman.
(iii)Verbal and Emotional abuse includes -
(a) Insults, ridicule, humiliation, name calling and insults or ridicule specifically with regard to not having a child or a male child; and
(b) Repeated threats to cause physical pain to any person in whom the aggrieved person is interested.
(iv)Economic abuse includes-
(c) Deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a Court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any , Stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;
(d) Disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her Stridhan or any other property jointly or separately held by the aggrieved person; and
(e) Prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.
2.2.6.2 Jurisdiction and Procedure
i) The Domestic Violence Act has devised an elaborate machinery to safeguard the interests of the women subjected to domestic violence. The Domestic Violence Act enjoins the appointment of Protection Officers who will be under the control and supervision of a Judicial Magistrate of First Class. The Protection officers are required to effectively assist and guide the complainant victim and provide shelter, medical facilities, legal aid etc. and also act on her behalf to present an application to the Magistrate for one or more reliefs under the Domestic Violence Act.
ii) The nodal officer is the Protection Officer, the first point of contact for the victim/woman. The said officer shall prepare a Domestic Incident Report and forwarded it to the Local Magistrate with an application seeking interim relief and the Magistrate is required to hear the application ordinarily within 3 days from the date of its report.
iii) At the first hearing, the Magistrate, after giving an opportunity of hearing to the respondent and on being prima facie satisfied that domestic violence has taken place or is likely to take place, is empowered to pass a protection order prohibiting the respondent from committing any act of domestic violence and/or aiding or abetting all acts of domestic violence. In case, there is a violation of protection orders or other interim orders, it amounts to an offence leading to imprisonment and fine. The breach of protection orders by the respondent is regarded as an offence which is cognizable and non-bailable and punishable with imprisonment extending to one year or fine of 20,000 or both (vide Section 31).
iv) There are other powers vested in the Magistrate including granting residence orders and monetary reliefs towards the Child’s education fees, compensation for the torture and distress and an order restraining the accused/husband from selling the couple’s house and other articles in the absence of the victim/wife. The Magistrate also empowers to pass any interim order as he deems just and proper including an ex-parte order.
v) The Magistrate may at any stage of the proceedings direct the respondent and the aggrieved person to undergo counseling with a service provider. ‘Service providers’ are those who conform to the requirements of Section 10 of the Domestic Violence Act. The Magistrate can also secure the services of a welfare expert preferably a woman for the purpose of assisting him.
2.2.6.3 Relevancy between Section 498A, IPC and Domestic Violence Act, 2005
i) Prior to the enactment of the Domestic Violence Act domestic violence was recognised as a criminal offence; chargeable under Section 498A, IPC which deals with an act of cruelty by the husband and his relatives towards his wife. Earlier, it was the only weapon which women have for fighting cruelty against her and is found wanting. It does not include all aspects of domestic violence. Section 304B, IPC (dowry death) provides that a person punishable only for dowry death. Thus, there was no separate civil law addressing the specific complexities associated with domestic violence.
ii) Section 3 of the Domestic Violence Act, defines the expression ‘Domestic Violence’, according to which “ any act, omission, commission or conduct of the respondent shall constitute domestic violence ” in case it - harms or injures or endangers the health, safety, life, limb or well being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse.
Section 3 of the Domestic Violence Act, defines ‘domestic violence’ in very wide terms. It encompasses the situations set out in the definition of ‘Cruelty’ under Section 498A, IPC. Under the Domestic Violence Act, the expression ‘Domestic Violence’ to include actual abuse of threat or abuse that is physical, sexual, verbal, emotional or economic. Harassment by way of unlawful dowry demands to the woman or her relatives would also be covered under this definition.
iii) By the same section, the Magistrate is also empowered to frame charges under Section 498A, IPC and/or the Dowry Prohibition Act.
iv) The provisions of the Domestic Violence Act are supplemental to the provisions of any other law in force. It is also an allied and complementary law. The Domestic Violence Act provides a comprehensive remedy under which a victim can approach a police officer, or protection officer, service provider or a Magistrate for relief. It is still open to the victim to file a complaint under Section 498A, IPC. The right to file a complaint under Section 498A, IPC is specifically preserved under Section 5 (e) of the Domestic Violence Act. [175] The Act of 2005 is another addition to a woman tormented by domestic violence.
v) Section 31(3) of the Domestic Violence Act, also empowers the Magistrate to frame charges under Section 498A, IPC or any other relevant provision of that Code, or the Dowry Prohibition Act as the case may be, if facts disclose commission of any offence under these Acts.[176]
vi) An interplay of the provisions of this Act and the proceedings under Section 498A, IPC assumes some relevance on two aspects: (1) seeking Magistrate’s expeditious intervention by way of passing a protective interim order to prevent secondary victimisation of a complaint who has lodged FIR under Section 498A, IPC. (2) Paving the way for the purpose of counseling under the supervision of Magistrate at the earliest opportunity.[177]
2.2.6.4 Application of Domestic Violence Act, 2005 instead of 498A, IPC
Sections 498A, IPC and 125 CrPC and the provisions of the Domestic Violence Act: are interlinked and women generally used it against their husband. Husband has to run from one Court to another to defend himself innocent for the same set of allegations. Since the allegations in all cases are similar hence, both the domestic violence case, and 498A, IPC may be combined so that a lot of harassment in the form of running around the Courts can be reduced.
It is important to remember that Section 498A, IPC and the provisions of the Domestic Violence Act, are complementary in nature. The former provides punishment for domestic violence once proved, while the latter provides civil remedies to the aggrieved woman. The nature of remedies provided under this law is temporary; the permanent solution still remains within the framework of matrimonial laws. A victim of domestic violence may choose to use both the laws or one or the other.
The Domestic Violence Act was enacted with a view to providing more effective protection of rights of women who are victims of violence of any kind occurring within the family. An important feature envisaged under this Act is that a woman who is the victim of domestic violence has the right to take the services of the Police, shelter homes and medical establishments and simultaneously she also has the right to file her own complaint under Section 498A, IPC. Section 31(3) of the Act, 2005 also empowers the Magistrate to frame charges under Section 498A, IPC or any other relevant provision of that Code, or the Dowry Prohibition Act, 1961, as the case may be, if facts disclose commission of any offence under these Acts.158 The right to file a complaint under Section 498A, IPC is specifically provided under Section 5 (e) of the Act, 2005.159
2.2.6.5 Significance of the Domestic Violence Act, 2005
The Domestic Violence Act, 2005 is a comprehensive law and exhaustively includes all kinds of violence related to women and for the first time that an Act has been made to include all kinds of women’s violence in such detail. The salient features of the Act of 2005 are:
a. The Domestic Violence Act was enacted with a view to providing for more effective protection of rights of women who are victims of violence of any kind occurring within the family. The provisions of the Act are supplemental to the provisions of any other law in force.
b. The Act of 2005 provides a comprehensive definition of ‘domestic violence’ which includes not only physical violence by the husband, such as beating or physically hurting his wife, or sexual assault like forced intercourse, but also verbal or also emotional violence such as insulting the wife. Harassment by way of unlawful dowry demands to the women or her relatives would also be covered under this definition. (vide Section 3)
c. The Act of 2005 defines the expression ‘domestic relationship’ that is any relationship between two persons who live, or at any point of time lived together in the shared household (vide Section 2 (f)).
d. The Act of 2005 covers all those women who are or have been in a relationship with the abuser where both parties have lived together by consanguinity, marriage or through a relationship in the nature of adoption. In addition, relationships, with family members living together as a joint family is also covered under the Act. Even those women who are sisters, widows, mothers or single woman living with the abuser are entitled to legal protection under this enactment.
e. The Act of 2005 is hailed as the first significant attempt to recognise domestic abuse as a punishable, to extend its provisions to those in live-in relations and to provide for emergency relief for victims. Thus, the primary beneficiaries of the Act are women and children, who are tormented or tortured physically, mentally or economically.
f. The Act of 2005 covers within its ambit not only relationships existing through
marriages but also relationships in the nature of live in relationships. Relationships in the nature of live in relationships means that ‘there is no marriage in the eye of law but the parties through their actions represent to the world at large that they are a married couple and they are seen in society as husband and wife’.
g. Complaint of domestic violence can be filled by neighbours social workers, or even the relatives on behalf of the victim.
h. The Act of 2005 provides civil remedies for a woman who is subjected to physical, emotional, economic or sexual violence. It organises shelter homes as well as medical, legal and Police aid and the victim/woman, also kept temporarily in a shelter home.
i. The Act of 2005 has also recognized child sexual abuse as an offence and in a way recognizes Childs right to be free from violence in the home.
j. The rights guaranteed under this Act are essentially of the civil nature with a mix of penal provisions. The remedies available are civil in nature and in the form of protection orders, residence orders (the right to residence in the matrimonial home), return of articles, monetary or custody orders and compensation.
k. Another, important feature envisaged under the Act of 2005 is the woman’s right to secure housing. The Act provides for the woman’s right to reside in matrimonial or shared household, whether or not she has any title or rights in the household. This right is secured by residence order, which is passed by a court and cannot be passed against a woman, (vide Section 17). In certain cases if she has to be provided alternate accommodation, her maintenance was to be paid by her husband.
l. The Act of 2005 provides right of residence to divorced wives in their former husband’s or former girl friend’s in their partner’s home.
m. The Act of 2005 has devised elaborate machinery to safeguards the interests of women subjected to violence. The Act enjoins the appointment of Protection Officers (Section 8). These officers are to be appointed by the State Governments will be under the jurisdiction and control of the court and are responsible for monitoring the cases of domestic abuse. The Protection officers are required to effectively assist the court in making a Domestic Incident Report (DIR) or an application for a protection order on behalf of the aggrieved woman and/or child. The Protection Officers will ensure that aggrieved people are provided legal aid, medical services, and safe shelter and also act on her behalf to present an application to the Magistrate for one or more reliefs under the Act. The Protection Officers will ensure that necessary information on service providers is provided to the aggrieved woman and that orders for monetary relief are complied with. The Protection Officer can be penalised for failing/refusing to discharge his duties however, prior sanction of the state is required.
h. Service Providers are a vital role in the implementation of the Act. The Act, 2005 provides for registration of Non-Governmental Organisations as service provides for providing assistance to the aggrieved person with respect to her medical examination, obtaining legal aid, safe shelter, etc. Service Providers as defined by the law are private organisation recognised under the Companies Act, 1956 or the Societies Registration Act, 1860.
o. Magistrate under the Act, 2005 have been given broad powers including issuing protection and injunction orders, providing monetary relief or payment of maintenance.
p. The Magistrate may, at any stage of the proceedings under this Act, direct the respondent or the aggrieved person, either singly or jointly, to undergo counseling with any member of a service provider. (vide Section 14 (1).
q. The Magistrate while framing charges regarding breach of order may also frame charges under Section 498A, IPC or any other provision of the Penal Code or the Dowry Prohibition Act, as the case may be, in case the facts disclose the commission of any offence under those provisions. (vide Section 31 (3)).
r. Proceedings under the Act are not akin to criminal proceedings. Similarly seeking remedy under this law is also, unlike initiating divorce proceedings.
s. Proceedings can be initiated against any adult male in a domestic relationship with the complaint such as husband, father-in-law, male partners or female relations of the husband or male partner such as father, mother or sister.
t. At the time of submitting an application before the Magistrate, it is important to submit all prescribed forms that detail the instances of abuse and seek comprehensive remedies.
u. If there is an on-going proceeding before the Magistrate of Family Courts or other Courts, relief under this law can still be claimed without initiating a fresh proceeding.
v. Importantly, the law says that the Magistrate’s order should be made available immediately, and free of cost to the complainant and the entire proceeding should be completed within 60 days.
In a nutshell, if one talks about the rights of a woman recognised under the Act, 2005 they are160:
- Woman right to reside in shared household,
- Right to alternate accommodation if required,
- Right to services of Protection Officers and Service Providers, and
- She can get reliefs, namely, Protection Orders, Residence Orders, Monetary reliefs, Custody of Children, Compensation Orders, and Interim/Exparte Orders.
- The Domestic Violence Act, 2005 : Judicial response
Why another law is required when there are enough of criminal laws for protection of women from domestic violence? Does the existing law actually protect women?
The answer is there are not enough laws which can address the grievance of woman in its entirety. Though civil remedies such as divorce was available to women even prior to 2005 but it is very time consuming and at the same time fails to provide any kind of immediate relief to the woman , besides adding to costs and delays in litigation. Section 498A of the Indian Penal Code provided with relief for protection of woman but women are reluctant to approach the criminal justice system. There was no law which provided right to reside in a household. In order to provide with immediate relief the Domestic Violence Act, was very much required. This law is aimed at providing immediate relief to basic problems of women. All this is in addition to other reliefs available in criminal law. Altogether with domestic violence a wife can file a complaint under Section 498A IPC and Section 125, CrPC. Simply speaking the law is civil in nature but if a man violates and disobeys any order of court then it takes the shape of a criminal law. Even a divorced wife has the right to claim relief under this Act from her ex husband except in cases where she has expressly waived such right.
Taking into account the quantum and magnitude of the problem of domestic violence in India and emerging international human rights standards with regard to the elimination and discrimination against women at the global level, the Indian Parliament has enacted the Domestic Violence Act, after many years of debates inside and outside the parliament. The main purpose of the Act of 2005 is to provide instant relief to women subjected to domestic violence being perpetrated against them by male members of the household also of female members related to males.
The Domestic Violence Act is different and unique in the sense that it marks a departure from the conventional Penal Laws or codes which were mainly based on deterrent punishments. The Act, 2005 provides for punishment, positive civil rights of protection and injunction, monetary support and residence. It is a special penal statute, civil law, welfare legislation, beneficial legislation and proactive.
The Domestic Violence Act is a significant attempt in India, to recognise domestic abuse as a punishable offence. But there are some protests too as it can be misused to harass the husband. Certain provisions from the Act came up for interpretation before the Supreme Court. The huge number of cases has been decided under the Act, 2005. Some of the following observations are worth mentioning.
In S.R. Batra v. Smt. Tarun Batra ,161 the respondent Smt. Tarun Batra was married to Amit Batra, son of the appellant. After the marriage the couple was living in a house owned by the husband's mother. The husband filed a divorce petition against the wife. As a counter blast the wife filed a FIR under Sections 406, 506, 498A/34 IPC and got her in laws arrested. They were granted bail after 3 days. In between wife Smt. Taruna Batra moved to her parent's house because of the dispute. Later when she tried to enter the house she was prohibited to enter it. Therefore, mandatory injunction had been filed by her to enter the house. She filed a case invoking Section 17(1) of Domestic Violence Act, which reads as - ‘not withstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.’
Another Section 19 (1) (f) of the Domestic Violence Act, deals with the right to alternate accommodation directing the respondent to secure the same level of alternate accommodation for the aggrieved person as enjoyed by the wife in a shared household or to pay rent for the same. If the circumstances so require. It was held by the court that claim for alternate accommodation can only be made against the husband and not against in - laws or any other relatives. In the mean while her husband (Anil Batra) shifted to Ghaziabad in a rented house. The Trial judge granted temporary injunction restraining appellants from interfering with possession of the respondent. When appeal was filed against the order of the Trial Court, the Senior Civil Judge held that the house was not the matrimonial home and therefore she had no right to properties other than that of husband. Aggrieved respondent preferred appeal wherein the High Court held that she was entitled to continue to reside since it was her matrimonial home. The learned single judge of the High Court was of a view that the second floor of the property in question was the matrimonial home of Smt. Taruna Batra and even if her husband is shifted to Ghaziabad in a rented house- it would not make a matrimonial home. Mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar to Ghaziabad. So the high court held that Smt. Taruna Batra can reside on the second floor of the Ashok Vihar house as her matrimonial home.
While delivering the judgment the Supreme Court observed that the definition of ‘ shared household’ used in Section 2 (s) of the Domestic Violence Act is not very happily worded and appears to be the result of clumsy drafting.
The Supreme Court said that, the claim for alternative accommodation can only be made against the husband and not against the husband’s in-laws or other relatives. The wife is only entitled to claim a right to residence in a shared household and a ‘shared household’ would only mean house belonging to or taken on rent by husband or house which belongs to joint family of which husband is a member.
However, from the language it seems that - the house in question can be said to be a shared household within the meaning of the Domestic Violence Act. Section 2 (5) of the Act states; shared household means, a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right title interest equality and includes such a household which may belong to a joint family of which respondent is a member of irrespective of whether the person has any right, title or interest in the shared household.
The Supreme Court referring to B.R. Mehta v. Atma Devi 162 agreed that whereas in England rights of the spouses to the matrimonial home are governed by the Matrimonial Home Act, 1967, no such right exists in India. The rights which may be available under any law can only be against the husband and not the in-laws. Here, the house in question belongs to motherin-law of the respondent and therefore she cannot claim any right to live in the said house.
Coming into the interpretation of the ‘shared household’ within the meaning of Section 2 (s) of the Act, 2005 the court did not agree with the interpretation advanced by the respondent that it includes a household where the person aggrieved lives or at any stage had lived in domestic relationship. The court said that if this interpretation is accepted it will mean wherever husband and wife lived together in past it becomes a ‘shared household’. Such a view would lead to chaos and would be absurd. Thus, ‘shared household’ would only mean house belong to or taken on rent by husband or house which belongs to joint family of which husband is a member.
Thus, this case was considered important to interpret ‘matrimonial home’ and ‘shared household’ as given under the provisions of the Domestic Violence Act, 2005.
In Vandana v. Srikkanth ,163 it was held by the Madras High Court that a wife during the subsistence of marriage has a legal right to live in shared household.
In Gajendra Singh v. Smt. Minakshi Yadav and Anr, 164 the issues before the Jaipur Bench of Rajasthan High Court are that
1. Reference to International Conventions and the salient features of the Domestic Violence Act, 2005 and
2. Continuing acts of violence/ Retrospective operation.
The Court observed as regards the issue no.1 that the Domestic Violence Act, 2005 is a beneficial piece of legislation, which is an outcome of the Vienna Accord of 1994, and the Beijing Declaration and the Platform for Action (1995). It is also a result of United Nations Committee on Convention on Elimination of All Forms of Discrimination against Women (CEDAW). Undoubtedly domestic violence is being committed in India on an epidemic scale. Although the criminal law deals with domestic violence in the form of Section 498A IPC, it was felt that there is no remedy under the civil law. Therefore, in order to get rid of the mischief of domestic violence, the Parliament, in its wisdom, enacted the Act, which came into force on 26 October, 2006. Undoubtedly the Act is meant to protect the women from domestic violence committed against them by the husband and his family members. The Act has recognised the fact that domestic violence is limited not only to physical and mental cruelty, but can also extend to verbal and emotional abuse, and even to economic abuse. The Act has recognised the fact that mental cruelty can take the form of verbal and emotional abuse; such an abuse would include threat to causing physical abuse to any person in whom the aggrieved person is interested. Moreover, the Act has recognised that aggrieved person has a right to economic resources of the husband and his family members, has a right to “stridhan”, and has a right to be maintained. In case her economic rights are violated by the husband or his family members, then according to Section 3 of the Act, domestic violence is committed. Since the Act is a social beneficial piece of legislation, Section 3 of the Act must be given a liberal interpretation.
As regards the issue no.2, the Court observed that ‘moreover, the respondent has been denied her stridhan, she has been denied maintenance; she had been denied access to shared household even after October 26, 2006. Hence, civil wrongs are continuing even after the date when the Act has come into force. Therefore the question of retrospective application of the Act does not arise in the present case. After all as long as the civil wrongs are continued to be committed after 2006, the Act, 2005 will control such acts of domestic violence.
The retrospective operation of the Domestic Violence Act, 2005 was challenged in V.D Bhanot v. Savita Bhanot [185] . The petitioner sought a restraint order under Section 12 of the Act, 2005 alleging that she was forced to leave her shared household through an eviction order filed by her husband. The trial court refused to grant relief on the ground that since the petitioner had left the matrimonial home before the Protection of Women from Domestic Violence Act, 2005 came into operation, the claim of a women living in domestic relationship or living together prior — [185] AIR 2012 SC 965, (2012) 3 SCC 183.
to 2006 was not maintainable and the court need not adjudicate upon the case. The important question which came up for determination by the Court was whether a petition under the provisions of the Act is maintainable by a woman, who had stopped living with the respondent, or by a woman, who alleges to have been subjected to any act of domestic violence, prior to coming into force of the Domestic Violence Act. Considering the legislative intention to grant reliefs to the victims of domestic violence, the Delhi High Court held that the retrospective operation cannot be advanced to deny reliefs to a woman under the Domestic Violence Act, and clarified that neither the dates on which the act of violence was committed nor the fact that parties were not living together when the Act, 2005 came into force is relevant for the purpose of granting reliefs. while declining to interfere with the order of the High Court, the Supreme Court held that the instance comes within the ambit of Section 3 of the Act, 2005 which defines ‘domestic violence’ in wide terms, and modified the order passed by the High Court by directing the respondent to provide residential accommodation to the petitioner along with a monthly maintenance of Rs. 10, 000/- for day-to-day expenses. Even after the existence of plethora of legislation on women’s rights, violence against women in different forms is rampant across the country. The Domestic Violence Act is a path-breaking legislation, which provided various civil law remedies to the victims of domestic violence. Time and again the proactive approach of the Indian judiciary provided effective protection to the rights of the women guaranteed under the legislation, who are victims of domestic violence.
In Nand Kishore v. State of Rajasthan, 165 Jaipur Bench of Rajasthan High Court observed that, Section 2(q) and its proviso if read together nowhere suggests that relative of husband or male partner has to be a male. A wife can file a complaint against any male or female relative of the husband as the word used in the said provision is “relative,” and this does not mean male relative only.
In Kaniz Fatima v. State of Rajasthan & Anr., [166] The issue before the Jaipur Bench of Rajasthan High Court is that ‘women as respondents’. The Supreme Court in Sandhya Manoj Wankhade V. Manoj Bhimrao Wankhade And Others, [167] considering the definition of ‘respondent’ defined under Section 2(q) of the Act of 2005, and held that “although Section 2(q) defines a respondent to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of the said definition by including a relative of the husband or male partner within the scope of a complaint. The Supreme Court further held that legislature never intended to exclude female relatives of the husband or male partner from the ambit of complaint that can be made under the provisions of 2005 Act. It is true that expression ‘female’ has not been used in the proviso to Section 2(q) also, but, no restrictive meaning can be given to expression “relative” nor has said expression been defined to make it specific to males only.
In Eveneet Singh v. Prashant Chaudhury & Others , [189] the Delhi High Court, very effectively examines the Domestic Violence Act, and the right to residence succinctly yet very effectively thereby possibly ending any controversy that could arise due to any earlier mentioned judgments such as the judgments delivered in S.R. Batra case [190] and Sandhya Manoj Wankhade v. Manoj Bhimrao Wankhade and Others.[191] The Court in this instant case said that ‘right to reside in the shared household ceases when option of alternate accommodation becomes available as said in the judgment’. The Court clarifies that ‘in the event of alternative accommodation being offered ‘made available’ to the petitioner before the concerned Court, her right to continue in the premises would cease.
The Supreme Court analysed the definition of “Respondent” as provided in Sections 2 of the Domestic Violence Act, in view of that High Court had directed Appellant to vacate her matrimonial house and confirmed order of Sessions Judge deleting names of the other Respondents from proceedings. The question, Whether Courts below erred in holding that no female could be made party to petition under the Domestic Violence Act, since expression “female” had not been included in definition of “Respondent” in the said Act. The Court held, although Section 2(q) defines ‘Respondent’ to mean any adult male person, who is or has been in a domestic relationship with the aggrieved person, the proviso widens the scope of said definition by including relative of husband or male partner within the scope of complaint, which may be filed by an aggrieved wife or female living in relationship in nature of marriage. If the Legislature intended to exclude females from ambit of complaint, which can be filed by an — [189]CS (OS) 1307/2010 Del.
190 Supra note 222.
191 (2011) 3 SCC 650.
aggrieved wife, the females would have been specifically excluded, instead of it being provided in proviso that a complaint could also be filed against relative of husband or male partner .No restrictive meaning had been given to expression “relative”, nor had the said expression been specifically defined in the Domestic Violence Act, to make it specific to males only. Therefore, legislature never intended to exclude female relatives of husband or male partner from ambit of complaint that could be made under provisions of the Domestic Violence Act. Both Sessions Judge and High Court went wrong in holding otherwise .The Supreme Court set aside the impugned order. Appeal accordingly allowed.
The importance of the judgment is not confined to the two acts of kicking and threatening and divorce being taken out of the purview of cruelty, under Section 498A, IPC in the present case. Following the precedent set by the Supreme Court, numerous other acts and conduct thought ‘akin’ or similar to kicking and threats of divorce may be taken out of the ambit of the offence of cruelty to a married woman by her husband or his relatives by the courts.
In Mr. Ishpal Singh Kahai v. Mrs. Ramanjeet Kahai168 , the Bombay High Court held that a wife can restrain a husband, who creates nuisance, from entering their home, irrespective of who owns the house, The court said that every woman has right to live peacefully in her matrimonial home. The right to reside contains within itself the right to reside peaceably and to the exclusion of the violator (husband), by restraining the husband from entering his own flat. The interim arrangement had been made to protect the woman and her children from the violent behaviour of the husband, an alcoholic, who would lose his temper and become aggressive under the influence of alcohol. The husband had approached the High Court challenging the eviction order, and contended that he and his mother jointly owned the flat, and had ownership rights over the flat; the Court could not have ordered his eviction. However the High Court dismissed the contention, observing that the Domestic Violence Act puts the woman's personal rights over proprietary interest.
In A. Sreenivasa Rao and Others v. State of Andhra Pradesh 169 the issues dealt with this are those
One, domestic violence is quasi criminal proceeding,
Second, no Jural relationship; the case under the Domestic Violence Act is not maintainable.
The first issue is that ‘domestic violence is quasi criminal proceeding’ and it may be noticed that the application of domestic violence (D.V.A.No.18 of 2007), itself was filed after the 1st petitioner obtained divorce from the 2nd respondent/husband. It was contended that lying of the application is tantamount to double jeopardy as the petitioners were acquitted on identical allegations in C.C.No.226 of 2003 and that the petitioners cannot be proceeded against again in D.V.A.No.18 of 2007. Rejecting the contention the court observed: ‘ we do not agree with this contention of the petitioners for the reason that the protection envisaged by the Article 20(2) of the Constitution of India as well as by Section 300, CrPC which is a protection against the double jeopardy would apply if both the proceedings are criminal in nature, whereas the proceedings in the application cannot be considered to be criminal proceedings. Like proceedings under Section 125, CrPC perhaps the proceedings under Domestic Violence Act are quasi-criminal proceedings. However, they are not criminal proceedings as such to fall within the mischief of Article 20(2) of the Indian Constitution or under Section 300 CrPC.’
As regards the issue no.2 ‘no jural relationship of husband and his wife existed in this case; and therefore the case is not maintainable’ the court observed that “at the same time, by the time the application was laid in 2007, the marriage between the 1st petitioner and the 2nd respondent already stood dissolved by the Family Court, Hyderabad through a decree in O.P.No.366 of 2004. When there was no jural relationship of man and his wife between the 1st petitioner and the 2nd respondent by the date of filing of application, the case in D.V.A.No.18 of 2007 prima facie is not maintainable. Added to it, the 2nd respondent is silent as to the dates when the alleged violations under the Domestic Violence Act have occurred. Viewed in this angle, the 2nd respondent is not entitled to proceed against the petitioner under the provisions of the Domestic Violence Act’.
In B.P. Achala Anand v. S. Appi Reddy 170 the Court emphasized that the Domestic Violence Act is not limited to matrimonial relationships. In a case where a young girl went against her father who was forcing her into marriage, the Court restrained this marriage without her consent to take place. The Court in this case also held that ‘though cases of cruelty of wife towards the husband have been recorded and are prevalent, the Domestic Violence Act is aimed at providing relief to women only.’
In S. Prabhakaran v. State of Kerala ,[195] the Court held that wife has a right to live in the household whether it be the joint family house of the husband or the residential building of parents-in-law, if the wife lives or has at any stage lived in a domestic relationship either singly or along with the husband.
In Vishal Damodar Patil v. Visakha Vishal Patil ,[196] the Bombay High Court held that a Magistrate can order interim maintenance and no separate application is necessary for the same. However, opportunity of hearing has to be afforded to the respondent before granting interim relief.
In Arun Pramod Shah v. Union of India , [197] the petitioner challenged the constitutionality of the Domestic Violence Act, 2005 on two grounds: One, the gender-specific nature of the Act, by excluding men, is arbitrary and, hence, violates Article 14 of the Constitution. Second, the definition of ‘domestic relationship’ contained in Section 2(f) of the Act, 2005 is objectionable. The petitioner contended that the placing of ‘near or like marriage’ status (relationship in the nature of marriage) at par with ‘married’ status leads to the derogation of the rights of the legally-wedded wife.
As regards the first contention, it was observed that ‘there is a difference class and legislation and reasonable classification.’ If the legislature reasonably classifies persons for legislative purpose so as to bring them under a well defined class, it is open to challenge on the ground of denial of equal treatment that the law does not apply to other persons. The genderspecific nature of the Domestic Violence Act was held to be reasonable classification in view of the object that the Act seeks to achieve and, hence, was held to be constitutionally valid.
As regards the second contention, it was observed that ‘there is no reason why equal treatment should not be accorded to a wife as well as woman who has been living with a man as his ‘common law’ wife or even as a mistress.’ It was also observed that ‘like treatment to both does not, in any manner, derogate from the sanctity of marriage since an assumption can fairly be drawn that a ‘live-in-relationship’ is invariably initiated and perpetuated by the male.’
The Delhi High Court obviously held that it is perfectly constitutional for the Parliament to provide protection to a woman in a relationship akin to marriage, along with and juxtaposed to the protection given to wives and legitimate children. Also, it was held that, it is possibility of men becoming victims of domestic violence, but such cases would be few and far between and thus, cannot be challenged on the ground that it provides protection only to women and not to men. The Court appears to acknowledge the vulnerability of women and their lack of negotiating the capacity within such a relationship. The Court also noted that the social stigma in such cases is usually faced by women although both partners are parties to the relationship.
The Constitutional validity of the Domestic Violence Act also challenged in Dennison Paulraj v. Mayavinola [198] , as it gives special right to women to file the case, and it is discriminatory piece of legislation because it does not permit the husband to file a complaint under the Act and hence is in violation of Articles 14 and 21 of the Constitution. The Madras High Court held that the Constitution itself provides special rights for women and children, and thus the contention that there could be no special treatment for women is totally untenable. The State has thought it fit enact a special legislation for women in tune with Article 15 (3) of the Constitution, and thus the Domestic Violence Act came into force.
Upholding the Madras High Court decision the Supreme Court [199] said: “giving certain preferential treatment to the wife and treating them as a special category cannot be termed as violation of either Article 14 or Article 16 of the Constitution”. Though Article 15 of the Constitution prohibits discrimination on grounds of religion, race, caste, sex or place of birth, however, Article 15(3) states “nothing in this Article shall prevent the State from making any special provision for women and children”. Thus, the Constitution itself provides special provision for women and children. It has been widely resorted to and the Courts have upheld the validity of the special measures in legislation and executive orders favouring women. Thus, when the Constitution itself provides for making special provision for women and children, the contention on the side of the petitioners that there could be no special treatment for women is totally untenable.
In Chameli Singh v. State of Uttar Pradesh, 171 it was held that the right to life would include the right to shelter; Sections 6 and 17 of the Act, 2005 reinforce this right. Under Section 6, it is the duty of a protection officer to provide an aggrieved party accommodation where the party has no place of accommodation, on request by such party or otherwise. Under Section 17, the party’s right to continue staying in a shared household is protected. These provisions thereby enable women to use the various protections given to them without any fear of being left homeless.
In Anil Kumar v. Sindhu ,172 the Kerala High Court has held that Chapter XIII, CrPC is applicable to the proceedings under the Domestic Violence Act, 2005.
2.2.7 Conclusion
Violence on women by the women in the family is an important area of research. Domestic violence assumes more importance now than what it was earlier. It is a universal phenomenon and has been recognised globally as an important issue of women’s rights. The Global campaign of elimination of violence against women recent years indicates the seriousness in the atrocities committed against women. Rapid development on account of industrialization, urbanization has progressive changes in the individual’s style, living, standard values, social ethos thereby contributing to violent attitude and the tendencies towards women; and the final outcome being the increasing rate of crimes against women.
The movement for ‘Women empowerment’ expanded universally under the protective umbrella of United Nation. The Universal Declaration of Human Rights reaffirms faith in the dignity and worth of human person and guarantees human rights and fundamental freedoms in the equal rights of men and women. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR), include provisions advancing the right to equality of both men and women. Article 5 of the UDHR and Article 7 of the ICCPR (International Covenant on Civil and political Rights) both state “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.173 The World Conference on Human Rights at Vienna in 1993 had declared the human rights of women and the girl child to be "inalienable, integral and indivisible part of universal human rights" The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979 becomes an important legal instrument for the protection of the equal rights of women within the structure of the United Nations174. It is also called ‘the International Bill of Rights for Women’.
At the international level, the UN Charter, the Universal Declaration of Human Rights, two human rights covenants, Convention on Elimination of All Forms of Discrimination against Women (CEDAW), four world conferences, the Commission on Human Rights, the Commission on the Status of Women secured better legal protection to women. However, despite the enactment of many laws on various aspects at national and international level, the condition of women remains unaffected.
Women in India constitute a vulnerable section of society; this truth is accepted and recognised by the highest law of the land. The Constitution of India has taken the primary responsibility to uplift the status of women since independence. Part II of the Constitution (Fundamental Rights) makes specific provision for special provisions for women. In addition, Part IV (Directive Principles of State Policy) makes specific reference about women’s social status and health; this is directed to the future Governments in India to initiate measures for social, economical and political well being of women in India. The intention of the legislature is incorporating the special provisions in the Constitution is very clear as the main object was to improve the status of the women in the society. The Constitution also permits for the enactment of special laws for women. To fulfill the constitutional mandate, our legislature has been enacting many special laws to deal with the women issue specifically like Dowry Prohibition Act in 1961, the Medical Termination of Pregnancy Act, 1971, the Immoral Traffic (Prevention) Act, 1956, the Maternity Benefit Act of 1961, and Indecent Representation of Women (Prohibition) Act, 1986 and the Dowry Prohibition Act, 1961 (Amended in 1986), and the Commission of Sati (Prevention) Act, 1987 etc.
The Government has come out with legislations from time to time to protect such women, and to punish those found guilty with severe punishments. Inspite of the medley of laws, women are still continued to live under the stress and strain of societies domination that manifests itself in the form of various kinds of cruelties. Realizing the legislative intent behind making such provisions, it has been rightly said that: the degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy husbands and their parents resulting in an alarming number of suicidal and dowry deaths by women have shocked the legislative conscience to such an extent that the legislature has deemed it necessary to provide additional provisions of law, procedural as well as substantial, and has consequently introduced Sections 498A and 304B into the Penal Code and Sections 113A and 113B into the Indian Evidence Act.
In the last century, India has made many gains for the protection and preservation of its female citizens. Most notably, is the latest enactment of the Domestic Violence Act drafted and created under the auspices of Article 15 (3) to explicitly provide civil remedies combat violence within the walls of intimate and family relationships. However, the problem which hangs this Act in air is the problem of implementation. In India, a large country having more than 120 Cores of population, the implementation of rules and regulation is not an easy task. Moreover, more than 75 percent of them are living in villages, and most of them are ignorant about the laws, their problems and remedies. In India, we have not learnt to design our laws judiciously because we have no experience of their honest implementation. Yet every time a law shows signs of dismissal failure, the Government responds by passing another new law or amendment and then pretending it has handed over a new magic wand for empowerment. In the process, the Government makes a mockery of its own intentions as well as its ability to deliver justice. Thus, proper implementation and eradicating of the social problems like illiteracy, ignorance towards the laws, and making the women as well as the men well aware about their rights will lead to a better remedial upshot for the welfare of the society.175
Inspite of several legislations enacted to protect the interests of the women, there are still large number of women who suffer untold miseries due to lack of knowledge of their rights, illiteracy, oppressive practices and customs. The provision of law relating to women has been reviewed periodically and amendments are affected at regular intervals to keep pace with the emerging needs.
All these laws bear ample testimony to the fact that there is no inadequacy of laws in general and that due to lack of awareness and sensitisation, the laws available are not providing the desired results. Hence, the unending trauma of the women continues unabated. Despite hectic activities on the part of the legislature to eradicate all these social evils, the practice of dowry and dowry related deaths are growing at an alarming rate posing a challenge to all. Such deaths have become a daily feature and every day we come across reports of torture and domestic violence incidences relating to dowry and leading to dowry deaths. So, now a question is being raised whether by brining legislation and incorporating penal provisions, who will be able to curb the evil? The answer is certainly in ‘no’. At the outset it is submitted that, framing of laws for the benefit of all citizens is the basic responsibility of the State. However, laws alone cannot combat such evils that have pervaded the society. We have to go beyond the law and the legal process and find out other ways and means to fight against the corrupt practices. Crimes against women can be controlled temporarily and can never be eliminated. As such, it is unlikely that legal measures alone will be able to curb them. By giving teeth to the existing laws or enacting newer and more stringent legislations to safeguard the interest of women, the problem can be controlled in a limited way. Probably, one has to simultaneously think in terms of creating public awareness about the issue and plan in terms of initiating social measures.
Here, it is pertinent to quote ‘ Jawaharlal Nehru ”, the first Prime Minister of India who in the following words emphasized the role of legislation in dealing with social evils[205]:
“ Legislation cannot by itself, normally solve deep-rooted social problems. One has to approach them on other ways too, but legislation is necessary and essential, so that it may give that push and have that adduce factor as well as legal sanctions behind it, which help public opinion to be given a certain shape”.
A legislation addressing the needs of women behind the closed doors of their homes had been long needed. In a country such as ours, especially with our patriarchal system of family law and social mindset, the protection of women from the dominance and oppression becomes staggeringly important. It is true that if in our efforts to abolish the system, we get success; it will certainly be a landmark in our effort in bringing social reforms. We are ourselves responsible for permitting the evils to grow. So, the solution lies in our own hands. Therefore, it can be concluded with the words of Prof. Ram Ahuja 176, the noted social scientist, who says: “the time has come for it to be scraped root and branch. Unless we become more progressive in our outlook, less orthodox in our ways, and more revolutionary in our ideas, dowry will remain the bane of our society. It is only on the wheels of understanding and a sense of cooperation that the chariot of society can move smoothly. The sooner the dowry becomes the thing of the past, the better for our society”.
Acceptance of dowry is a disgrace for the young man who accepts it as well as perhaps a dishonor for the woman folk - Mahatma Gandhi
CHAPTER-III CONCEPT OF CRUELTY
3.1 Introduction
Cruelty in human behavior is as old as the civilization itself. Human by nature is cruel. As and when, one gets an opportunity, be it male or female one, perpetuate cruelty upon another. In the ancient days, the human beings practice cruelty towards animals. After some development of the human race, the subject of cruelty was changed from animal to other human beings. The perpetrator of cruelty always remains to be a powerful one and the one upon whom cruelty was always perpetuated remains to be the weaker one. With the development in civilization and with coming into existence of the institution of marriage, the subject of cruelty changed drastically and one spouse, be it male or female, started perpetuating cruelty upon the other spouse. It is a general notion that in matrimonial disputes, the perpetrator of cruelty is always to be a husband, being the strongest one, and the subject is always the fairer sex i.e. the wife. It believed that perpetuating cruelty is only the domain of men folk, but time since immemorial the women folk are also causing cruelty towards their men counterpart, but it differ in its shape and concept. Today, the wife is equal with her husband in the matter of perpetuating cruelty upon the other spouse. The concept of perpetrator always being the husband had gone under carpet, and the concept of being equal in this field to came into existence. Thus, came to the necessity of becoming aware of the instances of cruelty having been perpetuated by wife. Earlier instances of cruelty having been practiced by wife were not highlighted because it is generally felt that the husband is always very shy to expose the ill-treatment meted-out to him, at the hands of his wife but still the number of cases reported, shows that lot many husbands had gathered courage to come forward and complain about the misconduct meted-out to them by their wives.[1]
3.2 Cruelty under English Law
The 1897 formulation of cruelty in the House of Lords in Russell v. Russell [2] is still a good starting point in any discussion of cruelty. In English law, the nature of cruelty in matrimonial law has been defined in this case , and in the words of Lopez L.J, “Cruelty is a —
1 A.S Arora: Laws on Cruelty against husband, Lawmann’s Kamal Publishers, Edition (August), 2008), p.3.
2 (1897) AC 395. (Note: It is the earliest formulation of cruelty and to a great extent that is still valid). conduct of such a character as to have caused danger to life or injury to health, bodily or mental, gives rise to the reasonable apprehension of such danger.” No conduct, however, reprehensible married person amounts to legal cruelty unless it has caused actual injury or reasonable fear of injury to the victim’s physical or mental health. The formulation contains the basic element of cruelty and includes both physical and mental cruelty; though it embodies the typical nineteenth century emphasis upon the necessity of protecting the petitioner and the belief that no conduct can amount to cruelty in law unless it has the effect of producing the actual or apprehended injury to the petitioner’s physical or mental health. It also emphasizes that injury need not be suffered; a reasonable apprehension of injury is enough. But, where there is no probability of injury, offence is not committed. The difficulty of applying this test arises on account of the fact that respondent’s conduct may not cause any injury to a normal person, but it may cause injury to a hypersensitive petitioner.
The judicial observation in Russell’s case177 is treated to be starting point of the definition of cruelty. In order that there may be legal cruelty there must be actual violence of such a character as to endanger personal health, bodily as well as mental, or safety; there must be a reasonable apprehension of it. This is only safe and practical criterion of cruelty which guides the English Courts and Lord Stowell pointed out in Evans v. Evans 178 that the court has never been driven off this ground It had also been held that cruelty in the legal sense need not necessarily be physical violence either to the husband or to the wife. It may even consist in a pursued by the husband towards his wife and for their children, and also vice versa by the wife Even a single act of gross cruelty may be enough to constitute legal cruelty, if it is cruelty towards the aggrieved party.
Before proceedings with a detailed discussion of all the aspects of cruelty, the following preliminary matters should be clearly understood:
(a) Is intention to be cruel an essential element of cruelty?
(b) Should acts or conduct constituting cruelty be aimed at the petitioner?
(c) Should the acts or conduct constituting cruelty emanate from the respondent?
• Intention to be cruel
At one time when English law was wedded to the notion that the objective of good law of divorce was to punish the guilty party, it took the view that intention was an essential element of cruelty. When in 1937 under the Matrimonial Causes Act, 1937 ‘Cruelty’ was recognised as a ground for divorce, the English Courts took the view that conduct would be cruelty only if the respondent intended to hurt or cause injury to the petitioner or if his acts were aimed at the other. If the conduct of the respondent was not the result of any intention to harm or injure, but of pure selfishness or indifference, he could not be said to be guilty of cruelty. This resulted in injustice, and the Courts were driven back to the presumption that a person might be taken to intend the mutual and probable consequences of his acts and tries to mitigate the harshness of the rule.
Gradually the English Courts started receding from this doctrine position. In 1952, in Jamieson v. Jamieson, [5] the House of Lords, through Lord Norman observed that “actual intention to injure is not an essential element and unintentional acts may amount to cruelty. The conduct alleged must be judged up to a point by reference to the victim’s capacity for endurance, in so far as that capacity is or ought to be known to the other spouse that leaves it open
to find, after evidence that the petitioner was the victim of his or her own abnormal hypersensitive and not of cruelty inflicted by the respondent”.
In the modern law, test seems to be that if the conduct or act causes an injury or a reasonable apprehension thereof to the petitioner, it will amount to cruelty. In 1963 the law relating to ‘Cruelty’ was liberalized in England by the House of Lords by modifying the test as to ‘legal cruelty’. Finally, in Gollins v. Gollins [6] and Williams v. Williams [7] where the House of Lords have discussed the entire case law on cruelty, the intention as an element of cruelty was rejected. In other words, the intention of the respondent was not treated as a relevant element or cruelty. Lord Evershed stressed that in such intention of protection to suffering spouse must be the prime concern of the court.
In the former case, it was laid down by Lord Reid that to establish cruelty is not necessary to show that there was an intention to cause hurt to the spouse. In that case, the husband did not pay his debts nor was he seeking employment to earn money for the upkeep of the family. His wife had to face his creditors and the bailiff. This was due to his laziness and there was no intention on his part to hurt his wife. He was a mild man and was not guilty of violent conduct. At no time did he do any physical harm to her but the strain of his debts finally began to tell upon her health. Rejecting the test that cruelty necessarily connotes an intention on defendant’s part to be cruel; it did not matter whether it sprang from a desire to hurt or from selfishness or sheer indifference. What is important is the conduct of the respondent and not the state of his mind. Still, it was held that there was legal cruelty for his conduct was telling on his wife.
In the words of Lord Reid: It is impossible to give a comprehensive definition of cruelty but when reprehensible conduct or departure from the normal standards of conjugal kindness causes injury to health or an apprehension of it, it is a cruelty. Where a blow speaks for itself, insults humiliations, deprivations and the life may need the interpretation of underlying intention for an assessment of their fullest significance.
This view as to legal cruelty was reiterated by the House of Lords in Williams v. Williams, 179 in that case the husband was having insane delusions. He imagined voice telling him that his wife was committing adultery. Believing these voices he accused her of adultery. The husband did not know that his accusations were wrong. Still, it was held that legal cruelty was made out on these facts.
Observing that the main concern of the Court was to give protection to the suffering spouse, Lord Pearce said: The argument for holding that a man should not be held to have treated his wife with cruelty, if he did not know what he was doing is an attractive simplicity. But so to hold would create a dividing line which in practice is not easy to draw (even with medical help), which will at time make the Court powerless to help when help is most needed and which will cause more hardship than it alleviates.
The learned judge further said that: “there are nevertheless certain principles which must be held in deciding whether a particular defendant has been guilty of cruelty to a complaint”.
Prior to the Gollins Case 180 the Courts in England had been taking the view that unless cruelty was aimed at by either of the parties the same would not amount to cruelty. But that is no longer a correct view, and therefore, subsequently the Courts have proceeded on the basis that it is not necessary to prove the culpability of the respondent in order to hold him guilty of cruelty. What has to be found in each case is whether the act is such which the complaining partner should not be asked to endure.181
Motive, malignity or malevolent intention had never been considered as an ingredient of cruelty under English Law. As early as 1810, in Holden v. Holden, 182 the Court observed that it is not necessary for determining this point to inquire from what motive such treatment proceeds. It may be from turbulent passion or sometimes from causes which are indeed often consistent with it, as the passion of jealousy. If, bitter waters are flowing, it is not necessary to inquire from what source they spring.183
The Court of Appeal in Sheldon v. Sheldon, 184 granted a decree to the wife on the finding that the husband’s persistent refusal of sexual intercourse over a long period without excuse caused a grave injury to the wife’s health and amounted to cruelty on his part. Hon’ble Judges Lord Denning M.R, Davis L.J and Salmon L.J decided: “the categories of cruelty are not closed. The persistent refusal of sexual intercourse is not excluded”. We deal with conduct of human beings who are not similar. Among the human beings, there is no limit to the kind of conduct which may constitute cruelty. New type of cruelty may crop up in any case depending upon the human behaviour, capacity or incapability to tolerate the conduct complained. Such is the wonderful realm of cruelty. It was particularly maintained by Lord Denning M.R that the Court in matrimonial cases is not considered with the ideals in family life. The Court has only to understand the spouses concerned as nature made them and consider their particular grievance.
Lord Thankerton has conceived in the case of Thomas v. Thomas 185 that in assessing the evidence of cruelty, the physique, temperament, standard of culture, habits of verbal expression and of action and the interaction between the spouses in their daily life must be adequately judged. Lord Simon has extended the conception of cruelty in Young v. Young 186 to such a grave and weighty matter as renders the continuance of the matrimonial cohabitation virtually impossible.
• Act or conduct aimed at the petitioner
After 1937, the English Courts took the view that the act constituting cruelty should aim at the petitioner. If an act is directly aimed at the petitioner, even in the absence of a desire to injure or to inflict misery, it will amount to cruelty. Thus, a display of temper, emotion or perversion, giving went to one’s feelings may amount to cruelty, if it would be shown plainly and distinctly to have caused injury or apprehension thereof, to health, life or limb. On the other hand, when act or conduct, not directly aimed at the petitioner such as drunkenness, gambling, crime or sexual offences against third person, done generally for the gratification of one’s selfish desire, then it cannot ordinarily said to be aimed at the other.187 Sexual offences directly relevant to the husband’s conjugal obligations may amount to ill-treatment of the wife. Thus, a criminal and indecent assault by a husband on his step-daughter amounts to cruelty to wife, although there may be no intention to hurt or injure the wife.188
• Act or conduct must be that of the respondent
The English Courts take the view that act or conduct aimed at the respondent must be those of the respondent or at his instance. In Buchler v. Buchler [189] it was held by Lord Asquith that, to constitute cruelty in the side of the petitioner, he should prove that the facts are such as that is more serious than ordinary wear and tear of the matrimonial life.
• Act or conduct constituting cruelty
Which acts and conduct will constitute cruelty? In reference to conduct the English Courts have used several expressions. The conduct should be such which is “inexcusable”, “unpardonable”, “unforgivable”, or “grossly excessive”. The shortest expression is “ grave and weighty ”. In short, conduct should be such that no reasonable person would tolerate it or consider that the complainant should be called upon to endure it. In Jamieson v. Jamieson, 190 the House of Lords observed that every act or conduct must be judged on relation to the spouse’s temperament. Acts which appear on the face to be unpardonable may in particular circumstances be if not justified, at least excused by the petitioner’s conduct and the amount of provocation he has offered to the respondent. In King vs. King, 191 it was observed by the House of Lords such questions are always questions of degree and the Court must bear in mind the intensity and degree of the respondent’s conduct whilst making allowance for the intensity and degree of provocation offered by the petitioner and all other relevant facts. Any conduct of one spouse which causes disgrace to the other spouse or subjects him or her to a course of annoyance and indignity amounts to cruelty. Harm may be bodily injury or mental suffering.
The legal concept of cruelty is not rigid but has varied from time to time and from society to society and also has been influenced by the change in socio-economic conditions. In the early English law, intention was considered to be relevant element of the cruelty, now in modern times in modern law. The object of modern law at one time was to punish the guilty rather than to protect the interest of innocent while now modern law takes the view that the objective is to accord protection to innocent party.
Contemporary interpretation of cruelty in England and United States amounts to acceptance of breakdown theory. Before the acceptance of the “irretrievable breakdown of marriage” as a ground, for that if a marriage has broken down by any act or conduct of the respondent, it was considered to be covered under ‘cruelty’. The obvious result is that nagging, scolding and even incompatibility of temperament have held to be included in the scope of cruelty despite Denning’s L.T warning:
“ if the doors of cruelty were opened too wide, we should soon find ourselves
granting divorce for incompatibility of temperament”.
The learned judge alarmed further that:
“The temperament must be resisted lest we sleep into a state of affairs where the institution of marriage itself is imperiled”.[21]
The English Courts by 1960’s virtually accepted “incompatibility of temperament” as being covered under cruelty. In 1969, in Masarati v. Masarati [22] Sachs, LJ observed that, “today we are perhaps faced with a new situation as regards the weight to be attached to one particular factor - that is the breakdown of marriage. It was added that if it was evident the marriage would break; no public interest would be served by keeping the couple together.
3.3 Cruelty under Indian Law
It cannot be said that India is an exception to the habit of perpetuating cruelty upon the other spouse in an established matrimonial relationship. During pre-independence days, there was no proper forum for Indian subject, and they were so not much educated, therefore only little cases and instances for coming into public view. But the same were settled by the Panchayat, so the same remained unnoticed. The Indian subjects being under the Governance of British rulers never dared to approach the ruler for redress of their grievance for the fear of being misused by the ruler. With the enactment of the Hindu Marriage Act proper forum had been provided by the Indian Government and with the creation of same the cases of cruelty and other matrimonial started coming before Courts of law. The Courts in India have also given fairly wide meaning to the term “Cruelty”.
3.3.1 Elements of Cruelty
- Intention need not be the essential ingredient of cruelty
In India, there is hardly any case under the Indian Divorce Act, 1869 or the Parsi Marriage and Divorce Act, 1936, on the aspect that “intention is an essential ingredient of cruelty”. But, in cases, particularly under the Hindu Marriage Act, 1955 the Courts held that intention is not an essential ingredient of cruelty. In the case of P.L. Sayal v. Sarla 192 the parties were married in 1948 and had two children of marriage. But, the wife was crazy to get the love and affection of her husband and with that in view she consulted a Fakir who gave her some powder/poison to be administered to the husband. The wife administered the same to the husband which resulted in his getting seriously ill. He became ill with a slow fever, giddiness and ultimately got a nervous breakdown with vomiting, loss of weight, abdominal burning, backache and various other complications. The husband had to be admitted to the hospital where he remained for some time. During the entire period of husband’s illness the wife was in attendance on him, day and night, like a dutiful Hindu wife. She was repentant of her conduct, and her eyes were constantly wet with tears. On discharge from the hospital, the husband petitioned for judicial separation on the ground of wife’s cruelty (cruelty was not a ground for divorce under the Hindu Law at that time). The Court granted the decree. Shamsher Bahadur, J. observed that considering the state of mind of parties and the prevailing notion of the strata of society to which the parties belonged, the conclusion appeared to be irresistible that a state of tension existed with his wife lest such a thing might happen again. The learned judge after reviewing some leading English cases said that the intention to injure was not an essential element of cruelty; if act or conduct caused injury or a reasonable apprehension thereof, it was enough to constitute cruelty.
The Bombay High Court held the same view, in V.Bhagat v. D.Bhagat 193 where the husband, who was insane, tried to strangulate wife’s brother on one occasion and her son on another. Naik, J., granting wife’s petition for judicial separation, observed that the conduct of the husband in this case is such as to amount to cruelty even in the absence of an intention to be cruel. Insanity, therefore, should not bar to relief claimed by the wife The SCHIZOPHRENIA from which the husband has a predilection to suffer periodically is no good defence to the plea of cruelty put forward on behalf of the wife.
Although the intention is not an essential ingredient of cruelty, yet an act or conduct which has the intention to injure, will certainly constitute cruelty. There cannot be graver matrimonial offence than to set out on a course of conduct with the deliberate intention of wounding or humiliating the other spouse and making his or her life miserable and then to continue in that course of conduct with the knowledge that it is seriously affecting his or her physical or mental health. But, in those cases, where respondent’s act or conduct could amount to cruelty only if he intends to injure the petitioner, then there cannot be cruelty, if he is incapable of forming an intention. On the other hand, in these cases where acts and conduct amount to cruelty in any event, it is immaterial that the respondent did not intend to be cruel. It has now been held that in cruelty mens rea is not important.
- Act or conduct need not aimed at the petitioner
In Trimbak Narayan Bhagawat v. Kumudini Trimbak Bhagawat [194] the husband’s acts were aimed at wife’s brother and her son, but the Court observed that the conduct of the husband in this case is such as to amount to cruelty to wife even the act or conduct of the respondent need not be aimed at the petitioner.
- Act or conduct must be that of the respondent
In India, most couples live in joint families and many a time wives were subjected to cruel acts of the in-laws in which husband may play no part. In Shyamsundar v. Santhadevi 195 wife was, soon after the marriage locked up, kept without food, ill-treated by her-in-laws, while the husband stood there ideally, taking no part in it, but also not doing anything to protect his wife. The Court took the view that intentional omission to protect his wife from the ill-treatment of the members of the joint family amounts to cruelty on the part of the husband. But, in Gopal v. Mithelish 196 the Court held that husband’s stand of neutrality between his mother and his wife thereby allowing his wife to be nagged by his mother did not amount to cruelty to the wife. The Court was of the view that the words” treated with cruelty” imply some conscious act on the part of the respondent. Considering all facts and circumstances of the case, entire matrimonial relations between the spouses, surrounding circumstances, character and personality of the husband with all his limitations, the Court said that he could not be held responsible for the acts or conduct of his parents.
3.3.2 Types of Cruelty
Cruelty is usually classified under the following two heads:
a. Physical Cruelty, and
b. Mental Cruelty
• Physical Cruelty
Acts of physical violence of one spouse against the other resulting in injury to body, life, limb or health or causing reasonable apprehension thereof have been traditionally considered to amount to physical cruelty. However, what acts of physical violence may amount to cruelty; will differ from case to case, depending upon the gravity of acts and susceptibility and sensibility or responsibility of the petitioner.
The physical violence of such nature which would be harmful for the petitioner to live with other party constitutes legal cruelty. Sometimes even single act of physical violence may be so dangerous as to create a reasonable apprehension of subsequent violence will itself constitute cruelty197. Neglect, insult and coldness where by the petitioner’s health was injured and according to medical report have produced melancholia were held to constitute legal cruelty.198
In Savitri v. Mulchand 199 where the husband would refuse to do the bidding of the wife the son, at the instance of the wife, would squeeze the testicles of the husband resulting in great physical pain and agony. Holding the act of the son as cruelty to the husband, the court observed that when one of the children so identifies himself with one of the parents, and that parent collaborates with the child to perpetrate cruelty, the conduct of the child would amount to cruelty on the part of the respondent.
In Kaushalya v. Wasikaran 200 husband ill-treated the wife; beat her so much so that she had to go to the police station to lodge a complaint against her husband. The Court held that according to the standards of all civilized world, these acts would constitute cruelty, even though injuries might not be so serious as to require medical treatment. In Saptami v. Jagadeesh 201 where the husband constantly abused and insulted the wife and ultimately on one day, in her father’s house, pushed her against the wall, was also a clear case of physical cruelty. A single act of violence may amount to cruelty or it may be series acts which together constitute cruelty.
In A.P.Mary v. K.G. Raghavan 202 it was held that ‘even a single act of physical violence is sufficient, it is of a ‘grievous and inexcusable nature’, to afford matrimonial relief. Similarly, series of small acts of violence may cumulatively amount to cruelty.203 In physical cruelty, actual danger to need not be proved; one or two acts of physical violence are sufficient to constitute cruelty.204
These are obviously cases of physical cruelty.
• Threats with violence or without it205
When a spouse threatens or menaces the other with acts of physical violence, it amount to cruelty. Obviously in such a case there should be an apparent apprehension of physical violence. In an early 19th Century case Oliver v. Oliver 206 the English Court observed:
(1) Of words it is sufficient to say that, if they are words of mere present irritation, however reproachful, they will not enable this court to pronounce a sentence of separation,
(2) Words of menace, importing the actual danger of bodily harm, will justify the interpretation of the Court, as the law ought not to wait till the mischief is actually done. But the most innocent and deserving woman will sue in vain, for its interference for words of mere insult, however, galling, and still less that interference for words of mere insult, however, galling, and still less that interference be given if the wife has taken upon herself to avenue her own wrongs of that kind to maintain a contest of retaliation.
Britt v. Britt 207 is a modern English case of physical cruelty. In this case, the husband who had left his wife in 1950, visited the matrimonial home two years later and struck the wife a blow on the face which gave her a black eye. Again, in the same year, he met her in a bus and hit her. It was obviously a case of physical cruelty. A single act of cruelty of an inflamed nature and gross to excite terror is sufficient to constitute cruelty.208
• Mental Cruelty
In modern matrimonial law, mental cruelty is a very important aspect of legal cruelty. Although, intention is no longer an essential ingredient of cruelty but the mental state of the respondent cannot be altogether ignored. It is on the matters to be taken into consideration, in the same way as temperaments, and other circumstances are to be taken into consideration. The legal concept of cruelty in matrimonial cases is not confined to positive acts of causing physical injury by one spouse to the other. Without there being a physical injury, there can be a cruelty of even greater magnitude. The term cruelty in its ordinary sense of the term has no esoteric or artificial meaning. There may be cruelty without there being intention to injure. Mental cruelty is a state of mind and feeling with one of the spouses due to the behaviour or behavioral pattern by the other.209 Unlike the case of physical cruelty, mental cruelty is difficult to establish by direct evidence. It is necessarily a matter of inference to be drawn from the facts and circumstances of the case. A feeling of anguish, disappointment and frustration in one spouse caused by the conduct of the other can only be appreciated on assessing the attending facts and circumstances taken cumulatively. In the case of mental cruelty it will not be the correct approach to take an instance of misbehavior in isolation and then pose the question whether such behaviour is sufficient by itself to cause mental cruelty. The approach should be to take cumulative effect of the facts and circumstances emerging from the evidence on record and then draw a fair inference whether the petitioner (in the divorce petition) has been subjected to mental cruelty, due to conduct of the other.210
In Crawford v. Crawford 211 the following principles have been culled out regarding mental cruelty:
(i) Cruelty must be inferred from the whole facts and atmosphere disclosed by the evidence,
(ii) Actual intention to injure the other spouse is an important but not an essential factor, (iii) It is impossible to create categories of acts or conduct which do not amount to cruelty,
(iv) Sexual offences directly relevant to the husband’s conjugal obligations may constitute
ill-treatment of the wife,
(v) Mental ill-treatment may be coupled with physical ill-treatment in order to find a charge of persistent cruelty, and
(vi) Even different forms of mental treatment may be taken together in order to find a charge of persistent cruelty.
English Courts in some of the earlier decisions had attempted to define “Cruelty” as an act which involves a conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger.212 But, in India we don’t think that such a degree of cruelty is required to be proved by the petitioner for obtaining a decree for divorce. Cruelty can be said to be an act committed, with the intention to cause suffering to the opposing party. Austerity of temper, rudeness of language, and the occasional outburst of anger may not amount to cruelty, though it may amount to misconduct. Any man with reasonable self-respect and power of endurance will find it difficult to live with a taunting wife, when such taunts are in fact insult and indignities. Human nature being what it is a reasonable man’s reaction to the conduct of the offending spouse is the test, and unending accusations and imputations can cause more pain and misery than physical beating.213
The Indian Courts have also given fairly wide meaning to legal cruelty. Two Indian cases provide excellent illustrations of mental cruelty.
The Mysore High Court in N. Sreedharacharya v. Vasantha [45] observed that ‘wife quarreled with, and hurled with vilest abuses at her husband over trivial matter, on account of which the husband had to spend many sleepless nights, constituted mental cruelty. If the conduct prompts reasonable apprehension in the mind of the petitioner and establishes that the same would be harmful to live with the respondent, it is sufficient that conduct complained of would amount to cruelty. If a spouse is subjected to insult, humiliation and immoral conduct, such are bound to make married life unhappy and miserable and in the opinion of the Madras High Court, this type of cruelty is worst than physical violence[46]. It is, now well-settled proposition of the law that false accusations of adultery or unchastity amount to mental cruelty.[47]
It is only for the first time in the history of legal system, the case of cruelty having been perpetuated by wife come before the Supreme Court for decision in the case of Dr. Narayan Ganesh Dastane v. Sucheta Dastane. [48] It is a high watermark case on mental cruelty. Earlier to the said decision, “cruelty to be a ground for matrimonial dispute” was considered to be only physical cruelty. But, while rendering landmark judgment in this case the Supreme Court observed that the act of cruelty is two types, one is mental cruelty and the other is physical cruelty. Cruelty need not be physical; it may be mental also. The concept of proof beyond the shadow of a doubt is to be applied to the criminal cases and trails and not to civil matters of such delicate personal relationship as those of husband and wife. Therefore, one has to see what the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse because of the acts or omissions of the other. In physical cruelty, there can be direct tangible and direct evidence, but in the case of mental cruelty there may not at the same time be direct evidence. Courts are required to probe into the mental process and mental effect of such incidents that are brought in evidence. It might be true that, physical cruelty is being perpetuated by the husband being a strong one, but at the same time this can’t be said to be universally true. It is also vice versa in the case of mental cruelty. But in the majority of the cases of mental cruelty it is almost the wife, who causes mental cruelty to the husband. Sometimes they cause cruelty to the men folk by giving beatings to the infant child for no-fault of him, which indirectly causes mental agony to the husband. The Supreme Court further observed that the standard of proving cruelty is not ‘beyond reasonable doubt’ as per the principles of English law. It was held that behavior of the respondent which would cause a reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for him to live with the respondent would constitute ‘mental cruelty’. The Supreme Court warned that the Courts are not dealing with ‘ideal’ couples but with a particular man and a particular woman before it. Their social context is a relevant factor while determining the extent of cruelty that is inflicted by one spouse upon the other.214
The Marriage Laws (Amendment) Act, 1976 (68 of 1976) widened the scope of the Hindu Marriage Act, 1955 and the expression “Cruelty” as envisaged under Section 13 of the Act, 1955 clearly admits in its ambit and scope such acts which may even cause mental agony to aggrieved party. After the Amendment Act of 1976, the petitioner need only establishes that the respondent treated him with cruelty. He need not show that cruelty must be such as to cause reasonable apprehension that it would be harmful or injurious to the appellant. Cruelty should be of the type, which will satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without any mental agony. From ‘proof beyond reasonable doubt’, to behavior which would be ‘harmful or injurious’, the legal concept of cruelty has been diluted to ‘behaviour which would cause agony, torture of distress’. However, it is pertinent to note that in none of the legislations relating to the marriage, the term “cruelty” has been defined.
3.3.3 Quantum of proof in matrimonial cases
• Whether a matrimonial lapse or wrong is an offence?
The question may arise in matrimonial matters whether a matrimonial lapse is a civil wrong, which may in certain circumstances be corrected or reconciled or it is an offence which if committed must be punished according to the standards provided by penal law?
A matrimonial lapse or wrong is certainly a civil wrong only and not an offence in all cases, which may fall under the definition of an offence under the Penal Code which is very exhaustive relating to description and illustrations of offence. As such to call, every matrimonial wrong an offence is a misnomer in terms.
• Lies upon the person who alleges the cruelty (i.e. the Petitioner)
Ordinarily, the burden of proof in matrimonial disputes lies on the party who affirms the facts, constituting the grounds for the grant of relief prayer for and not on the party who denies the same. The burden must lie on the petitioner to establish his or her case for. It is therefore, the spouse who has approached the Court for relief to prove that, the other spouse has treated him/her with cruelty within the meaning of Section 13 (1) (ia) of the Hindu Marriage Act. This principle accords with commonsense as it is so much easier to prove a positive than a negative. Therefore, the petitioner must prove that, the respondent has treated him with cruelty.[50]
In Polavarapu Satyanarayana v. Soundaravalli ,[51] the Petitioner challenged the related amendment to the Evidence Act vide Section 113A[52] which states that, if it is shown that a woman committed suicide within seven years of her marriage and her husband or in-laws had subjected her to cruelty, the Court may presume that such suicide has been abetted by her husband or relatives of husband. It is for the husband and the in-laws to prove their innocence. No doubt, this is a departure from the normal principle of criminal jurisprudence as according to settled notions of law the burden of proof is always on the prosecution to establish beyond a reasonable doubt that the accused committed the offence. But the offence in a marital home pertains to a terrain intractable (unruly), to others. Therefore, the lawmakers felt the need for presumptive evidence in favour of the prosecution. However, this does not relieve the prosecution of the need to prove the case beyond reasonable doubt and the presumption can be rebutted by the husband.
• Not required to be beyond reasonable doubt
The proceedings under the Hindu Marriage Act are of a civil nature, the relevant facts essential for grant of a decree of divorce must be established by preponderance of probabilities. The existence of a fact may be founded on a balance of probabilities.[53] In the Supreme Court declared that, neither Section 10 nor Section 23 of the Hindu Marriage Act required the petitioner to prove his/her case beyond reasonable doubt.[54]
The cruelty need not be beyond all reasonable doubts. Cruelty may be proved on the balance of probabilities. Relying onwards “satisfied” in Section 23 of Hindu Marriage Act the learned judge in Dr. Narayan Ganesh Dastane v. Sucheta Dastane [55] said that “satisfied” means “satisfied on preponderance on probabilities” and satisfied beyond reasonable doubts. It is a welcome departure from the rigid test of “beyond all reasonable doubts” particularly when in modern law, adultery, desertion and cruelty are not so much regarded as matrimonial offences but, more or less as instances leading to breakdown of marriage. It is also observed that “ proof beyond reasonable doubt ” is proof by a higher standard which generally governs criminal trials. A criminal trial involves the liberty of the subject, which may not be taken away on a mere preponderance of probabilities . If the probabilities are so nicely balanced that a reasonable, not a vacillating mind cannot find, where the preponderance lies, a doubt arises regarding the existence of the fact to be proved and the benefit of such reasonable doubt goes to the accused. It is wrong to import such considerations in trials of a purely civil nature.[56]
In Radhesham v. Kusum Sharma [57] the Court opined that, the burden on the petitioner for the purpose of grant of decree on the ground of cruelty and desertion is not beyond any reasonable doubt but, would be depending on the preponderance of probabilities as occurring in the evidence on record. In the instant case, the petitioner examined himself and has on oath stated that the respondent left the petitioner five days after marriage and denied sexual intercourse to him. These facts go un-rebutted.
It is highly improbable that the couple has not indulged into sexual intimacy, during the long period of more than three years. Therefore, on the “Doctrine of preponderance of probabilities”, the appellant’s claim that he did not have any sexual relationship with his wife, during the above said period, does not inspire confidence and does not seem to be natural. The respondent wife in her testimony has clearly indicated that they led a natural sexual life during that period. She has very clearly stated that it is wrong to suggest there has been no-sexual intimacy between her and her husband. The testimony of the respondent wife seems to be more natural and probable on the doctrine of preponderance of probabilities.[58]
• Evidence as to prove “Cruelty”
In Sarla Prabhakar Waghmare v. State of Maharashtra [59] it was observed that, to bring home an offence under Section 498A, IPC the prosecution is to prove that
(i) That the woman is or was married;
(ii) That she has been subjected to cruelty as contemplated in clause (a) or (b) to the Explanation of Section 498A; and
(iii) That the Cruelty has been practised by her husband or his relatives.
The sole constituent of an offence under Section 498A, IPC, is cruelty which in view of clause (a) to Explanation to this Section means ‘wilful conduct’. The word ‘wilful’ contemplates obstinate and deliberate behaviour on part of the offender for it amount to cruelty. This, mens rea is an essential ingredient of the offence .
- Standard of Proof of Cruelty (Difference of ‘Cruelty’ in Criminal and Civil law)
In C . Veerudu & another v. State of Andhra Pradesh [60] the provisions of cruelty under Section 498A, IPC are compared with the provisions of cruelty of matrimonial courses of civil law as given below:
The Principles are that:
- The standard of proof of cruelty is higher in degree in criminal law than in civil law under the matrimonial causes. In a criminal trial however, intriguing may be facts and circumstances of the case, the charges made against the accused must be proved beyond all reasonable doubts and the requirements of proof cannot lie in the realm of surmises and conjectures,
- The intention on the part of one spouse to injure the other is not necessary element of cruelty in civil law for matrimonial causes while it is an essential element in criminal law,
- It is enough if the cruelty is proved by preponderance of probabilities in civil law whereas the conduct of cruelty has to be proved beyond all reasonable doubt in criminal trials,
- It is immaterial in civil law whether the respondent’s conduct was aimed at the other spouse or due to unwarranted indifference attributable, perhaps, to selfishness or laziness while it is very much material in criminal proceedings, and
- For the relief of matrimonial causes in civil law the conduct of the spouse need not necessarily result in danger of life, limb or health, but a reasonable apprehension of such a danger is enough, whereas Section 498A contemplates such a conduct besides being “wilful” to result in the likelihood of driving the woman to commit suicide or to cause grave injury or danger to life, limb or health.
3.3.4 Instances of cruelty
“ No one has ever attempted to give comprehensive definition of cruelty. It is a question of fact and degree and no legal formula can resolve its peculiar problems”.215
Section 498A, IPC comes into action, when the conduct of the husband or in-laws is wilful, deliberate, consensual and such conduct should cause an impulse in the woman to commit suicide is likely to cause grave injury or danger to life, limb or health. However, what constitutes cruelty or harassment is not covered under this clause. Of all the matrimonial offences, cruelty is probably the most difficult to define. The legislature deliberately avoided formulating any definition of cruelty because acts of cruelty are infinitely variable and no attempt at drawing a complete list as to what constitutes cruelty can ever succeed. It is not possible for the legislature to enumerate all acts amounting to cruelty or to put cruel conduct into, any straight jacket formula. Therefore, this is left to the Courts to draw or adopt the meaning to suit changing societal values. The social standing and background of parties, their economic situation and other relevant factors will have to be taken into consideration by the Courts in each and individual case to decide whether an act will amount to cruelty.
The human mind is extremely complex, and human behavior is equally complicated. Similarly, human ingenuity has no bound; therefore, to assimilate the entire human behavior in one definition is almost impossible; also that the concept of mental cruelty cannot remain static. It is bound to change with the passage of time, impact of modern culture; through print and electronic media and value system etc. what may be mental cruelty may not remain a mental cruelty after a passage of time or vice versa. There can’t be any straight jacket formula or fixed parameters for determining mental cruelty in matrimonial matters.216 The prudent and appropriate way to adjudicate the case would evaluate it, on its peculiar acts and circumstances while taking aforementioned facts in consideration.217 Although there cannot be a straight jacket formula to describe the instances of mental cruelty, but by and large certain instances with the passage of time and as gathered from various decisions of Court of law, which could hardly be said to be conducive to congenial married life. In this case,218 the Supreme Court took recourse to various definitions of cruelty as well as mental cruelty as defined in authoritative dictionaries,219 and also reviewed various Indian, English, American, Canadian, as well as Australian cases. The Supreme Court came to the conclusion that it was trite law in each of the said countries that no general proposition whatsoever must be laid down to define the purview of mental cruelty precisely.220
The Supreme Court quoted with authority, the observation of Lord Tucker in Jamieson v. Jamieson 221 that “judges have always carefully refrained from attempting a comprehensive definition of cruelty for the purposes of the matrimonial suits and experience has shown the wisdom of this course.” Further, the Supreme Court observed that on proper analysis and scrutiny of the judgments of this Court and other Courts, we have come to the definite conclusion that there cannot be any comprehensive definition of the concept of mental cruelty within which all kinds of cases of mental cruelty can be covered. There may, however be cases where the conduct complained of itself is bad enough and per se unlawful or illegal. Then the impact or injurious effect on the other spouse need not be enquired into or considered in such cases.[68]
The Supreme Court in Samar Ghosh v. Jaya Ghosh [69] stated that no uniform standard can ever be laid down for guidance, yet the Supreme Court deemed it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty, which were laid down as follows [70]:
(i) On consideration of complete matrimonial life of the parties, acute mental pain, agony and suffering as would not make possible for the parties to live with each other could come within the broad parameters of mental cruelty,
(ii) On comprehensive appraisal of the entire matrimonial life of the parties, it becomes abundantly clear that the situation is such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party,
(iii) Mere coldness and lack of affection cannot amount to cruelty, frequent rudeness of language, petulance of manner, indifference and neglect may reach such a degree that it makes married life for the other spouse absolutely intolerable,
(iv) Mental cruelty is a state of mind. The feeling of deep anguish, disappointment, frustration in one spouse caused by the conduct of other for a long time may lead to mental cruelty,
(v) A sustained course of abuse and humiliating treatment calculated to torture, discommode or render miserable life of the spouse,
(vi) Sustained unjustifiable conduct and behaviour of one spouse are actually affecting physical and mental health of the other spouse. The treatment complained of and resultant danger, or apprehension must be very grave, substantial and weighty.
(vii) Sustained reprehensible conduct, studded neglect, indifference or total departure from the normal standard of conjugal kindness causing injury to mental health or deriving sadistic pleasure can also amount to mental cruelty,
(viii) The conduct must be more than jealousy, selfishness, possessiveness which causes unhappiness and emotional upset, may not be a ground of divorce on the ground of mental cruelty,
(ix) Mere trivial irritations, quarrels, normal wear and tear of the married life which happens in a day to day life would not be adequate for grant of divorce on the ground of mental cruelty,
(x) The married life should be reviewed as a whole, and a few isolated instances cover for a period of years will not amount to cruelty. The conduct must be persistent for a fairly lengthy period, where the relationship has deteriorated to an extent that because of the acts and behaviour of a spouse, the wronged party finds it extremely difficult to live with the other party any longer, may amount to mental cruelty,
(xi) If a husband submits himself for an operation of sterilization without medical reasons and similarly if the wife undergoes vasectomy or the abortion without medical reason or without the consent or knowledge of her husband, such an act of the spouse may lead to mental cruelty,
(xii) Unilateral decision of refusal to have intercourse for a considerable period without there being any physical incapacity or valid reason may amount to cruelty,
(xiii) Unilateral decision of either husband or wife after marriage not to have a child from the marriage may amount to cruelty, and
(xiv) Where there has been a long period of continuous operation, it may fairly be concluded that that the matrimonial bond is beyond repair. The marriage becomes a fiction though separated by a legal tie. By refusing to sever that tie, the law in such cases does not serve the sanctity of marriage; on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
By laying down specific instances, the Supreme Court has made the conduct which can be tagged as cruelty somewhat tangible and real. The interpretation of the said term has received a certain structure which will enable the judiciary in India at all levels to adjudicate certain
matrimonial disputes with greater certainty. On the otherhand, it may also be argued that while most of the above illustrations are ‘general’ in nature, illustrations xi, xii, and xiii are ‘specific’ in nature. The said illustrations prima facie appear innocuous but a thorough scrutiny of the same would reveal that the said illustrations do not espouse the cause of ‘gender equality’, especially keeping in mind the existing conditions in a country like ours. Laying down a principle in illustrations xi, xii, and xiii may affect women adversely in a patriarchal society like ours. The adverse repercussions of such a general principle may be glaring especially for the women of the lower economic group where they are financially dependent on men. In such conditions, sex discrimination manifests itself into each and every form of life and the ‘consent or knowledge’ of the woman remains a mere formality or ritual.
With reference to the illustration (xi) it is also imperative to note that ‘a law requiring a woman to obtain her husband’s consent prior to an abortion is wholly unconstitutional.’ The argument that the husband has the potential interest in the life of the child and therefore his consent is necessary; before the wife can abort the child.222 In this regard an excerpt from the majority opinion of the Court in the case of Planned Parenthood of Southeastern Pennsylvania et al v. Robert P. Casey et al 223 is worth reproducing:
“The husband’s interest in the life of the child of his wife is carrying does not permit the State to empower him this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the state could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in the line would be a statute requiring pregnant married women to notify their husband’s before engaging in conduct causing risks to the fetus safety is a sufficient predicate for state regulation, the state could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husband’s before using contraceptives or before undergoing ant type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And, if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Dan forth Court held it did not justify - a requirement of the husband’s consent as well. A state may not give to a man the kind of dominion over his wife that parents exercise over their children.”
But at the same time, a follow-up of the Indian law discloses the fact that the benefit of the said specific illustrations has been enjoyed by women as much as it is by men.[73]
Cruelty in matrimonial law may be of unbounded variety, which can be subtle or brutal. It may be physical or mental. It may be by words, gestures or mere silence, violent or non- violent.[74] Wild allegations in some cases which affect adversely the health physical or mental, of the spouse also amount to cruelty. That is the reason the Courts have tried to give an exclusive definition of cruelty, as understood in matrimonial law. However, no uniform standards can ever be laid down for guidance, yet we deem it appropriate to enumerate some instances of human behaviour which may be relevant in dealing with the cases of mental cruelty.
3.3.4.1 Allegations of Cruelty by husband upheld- Some illustrative cases
Cruelty is a common ground of divorce under all matrimonial laws, though it is worded differently, and its legal requirements differ from law to law. Physical cruelty is usually directed at the petitioner (aggrieved person) while mental cruelty can be directed at the petitioner or someone close to the petitioner such as son, daughter or some other. The meaning of cruelty is explained through judgments of Courts of law.
In the following cases, the wife’s allegations of cruelty against the husband were upheld.
• Cruelty by false charges of adultery
There is a long line of decisions in India as well as abroad which hold that false accusation of adultery or unchastity by one spouse against the other amount to mental cruelty. In Kusumlata v. Kampta Prasad [75] false accusations of adultery were made orally in lawyer’s notice and pleadings. Beg, J. observed that false accusations of adultery or unchastity have special dimension in Hindu society where a woman cherishes her chastity more than anything else. In Saptami v. Jagadeesh 224 the husband constantly called the wife a prostitute, a girl on the street and the like. The Court said: for the husband to call his wife a prostitute, a girl on the street and the like though she was nothing of the kind is to give such a shock as the incapacitate her to discharge the duties of the wife remembering the families spouses come from respectable and educated, the sort of cruelty we see here is worse than physical violence. It shakes the foundations of the conjugal life.225 In Puran Singh v. Shanti Devi 226 it was held that false charges of adultery levelled against the wife by the husband amounts to cruelty. A decree of divorce granted by the Family Court and maintenance of Rs.400 per month awarded to her was upheld by the High Court.
• Cruelty by drunkenness
It is well established rule of English matrimonial law that drunkenness per se does not amount to cruelty. This has been followed in India. But, it seems in the context of Indian culture; there may be certain circumstances in which drunkenness may amount to cruelty.
In Rita v. Brij Kishore227 M.L.Jain, J. rightly observed that the habit of excessive drinking is a vice and cannot be considered to be reasonable wear and tear of married life. If a spouse indulges in excessive drinking and continues to do so in spite of remonstrance’s by the others, it may amount to cruelty, since it may cause great anguish and distress to the other spouse who may find living together not merely miserable but unbearable. If it was so, she may leave him and may apart from cruelty even complain of constructive desertion.228
Under modern English law persistent drunken behaviour is now considered a behaviour which the other spouse is not expected to endure, so is violent, drunken and alcoholic behaviour.229
• Cruelty by verbal abuses and insults
It is now well established that verbal abuses and insults and use of filthy language amounts to cruelty.230 The continual use of abusive and insulting words indulged in to bring shame, and mental agony to the other spouse may amount to legal cruelty. Insulting conduct indulged in by the husband in public against the husband would cause mental torture and pain and therefore it amounts to cruelty.
• Wife staying away from the matrimonial home for a short period
In Pran Nath v. Pushpa Devi, 231 and also in Sukhwinder Kaur v. Jatinderbir Singh, 232 it was held that the wife staying away from the matrimonial home for a few days cannot be construed as cruelty. It was held that divorce cannot be granted based on general pleadings without citing specific incidents. In Binapani Bhattacharjee v. Pratap Bhattacharjee, 233 the wife came to her parent’s house for the delivery of her child and stayed back to appear in her M.A Examinations. Later, when she returned along with her brother to the matrimonial home, the husband misbehaved with her. Subsequently, he filed for divorce using this incident to prove cruelty. Dismissing the allegations of cruelty, the Court held that, the husband cannot take objection to his wife’s decision to study further. The Court commented that the appearance in an exam cannot be termed as cruelty under any circumstances.
• Ordinary wear and tear of matrimonial life
Even though a very wide meaning has given to legal cruelty, yet it is evident that every act or conduct of one party which makes the other unhappy or miserable cannot amount to cruelty. Lord Denning said: “Temptation to open the door of cruelty too wide must be resisted lest we may slip into a state of affairs where the institution of marriage itself is imperiled.”234 Thus, the fact that the respondent is moody, whimsical, mean, stingy, selfish, boorish, irritable, inconsiderate or irascible, will not be sufficient to amount to cruelty. Similarly, mere neglect or want of affection, disavowal of love, wounding of the feeling or even expression of hatred will not be a conduct constituting cruelty. Just because the respondent is in the habit of using vulgar, obscene or rude language or of making offensive remarks, or lack manners may not amount to a conduct constituting cruelty.
That ordinary wear and tear of matrimonial life does not amount to cruelty is now well established proposition. In Neelam v. Vinod Kumar [235] Midha, S.S. Sodhi J., of the Punjab and Haryana High Court observed: “Marriage is a very close and intimate relationship between a man and a woman and when two persons almost strangers to each other are suddenly thrown together into such a relationship, it is inherent in the situation that they must go through a period of adjustment, which may be rough or smooth, depending upon the parties concerned. What happens during this period has, therefore, to be seen in this context. In other words, if courts are to help preserve marriages too much should not be made of petty instances of things said or done, until parties have had time to know each other and settle down. There can, of course, be no hard and fast rule for this as each case has to be considered in its own set of circumstances”.
In C.R. Chenthil Kumar v. K. Sudha 236 the husband’s allegation that the wife refused to cook food and to have sexual intercourse, that she was mentally abnormal and she deserted the matrimonial home were not supported by appropriate evidence. The Court commented that the allegations amount to ordinary wear and tear of matrimonial life and cannot be construed as cruelty.
• Taking advantage of one’s own wrong
If the husband is himself guilty of matrimonial misconduct, he cannot take advantage of his own wrong and obtain a decree of divorce. In S. K. Garg v. Chanchal Kumari, 237 the Punjab and Haryana High Court held that baseless allegations of cruelty constitute mental cruelty of the gravest kind. Merely a claim that the wife used to beat the children cannot be construed as cruelty against the husband. On the other hand, it was proved that the husband caused injurious to the wife, resulting in a fracture of her arm for which she had to be operated. The Court commented that it was the husband who had treated the wife with cruelty.
In K.R Manjunatha v. Veena, 238 the appellant continued to visit the house of friend Indira, even after the death of her husband. It was objected by his wife Veena. On going through the entire deposition of the appellant, it shows that he was more interested in the affairs of the house of Indira rather than his family. When such being the case, it is natural conduct of a wife, where in the wife do not tolerate that her husband having an affair with another lady. It is in this connection, even without considering the welfare of his family or children, the appellant has restored in filing a petition for dissolution of the marriage on the ground of cruelty. From the facts of the case, it clearly goes to show that, it is on account of the conduct of the appellant, it has led the wife in a disturbed mind.239 Under such circumstances, that the wife subjected the appellant to any sort of mental cruelty as defined under Section 13 (1) of the Hindu Marriage Act of 1955. When a duty cost on the appellant to look after the welfare of the children and his wife, which is the paramount consideration, has not acted as a dutiful husband which he expects the same from the wife. Further the material evidence, placed on record, by the appellant-husband, is not with sound reasoning to come to the conclusion that he was subjected to mental cruelty that renders him so harmful for his life.
In Chiranjeevi v. Lavanya @ Sujatha, 240 the Andhra Pradesh High Court held that mere acquittal in a criminal case filed by the wife against her husband and in-laws cannot be treated as an incident in favour of the husband entitling him to seek divorce on ground of cruelty. The Court explained that the cruelty has to be such as to cause reasonable apprehension in the petitioner’s mind that it will be harmful or injurious for him/her to live with the other spouse. It was stated by the wife that harassment meted out at the hands of her husband, and his parents became intolerable that it drove her to attempt suicide by pouring kerosene on herself. The Court saw no merit in the contention of the husband that it was not safe to continue the marital relationship with a wife who has the tendency to commit suicide. The conduct of the husband in disputing the paternity of the child goes against him, and he cannot be allowed to take advantage of his misconduct. The High Court upheld the Trial Court’s order of dismissal of the husband failed to make out a case of cruelty against the wife.
• Persistent refusal to have marital intercourse
Persistent refusal to have marital intercourse without any reasonable cause is also cruelty. In the leading English case, Sheldon v. Sheldon ,[93] a comparatively young and apparently healthy and virile husband had refused to have sexual intercourse with his wife for about six years, though they continued to share the same bed. The wife became depressed and frustrated, but the husband refused to change his attitude even when the results were made to clear to him by the wife and the doctor. Eventually, she left him and petitioned for divorce on the ground of his cruelty. It was an obvious case, and the Court granted the decree of divorce.
Lord Denning M.R. J. observed: It should be clear that it is not mere refusal to have marital intercourse, but its persistence that amounts to cruelty. If one of the parties insists on using contraceptives and thus denies the legitimate desire to have offspring to the other party, it may amount to cruelty.
In Shankuntala v. Om Prakash, [94] Leila Seth, J. observed that “a normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. If this is not possible due to ill-health on the part of the one of the spouses, it may or may not amount to cruelty depending upon the circumstances of the case. But wilful denial of sexual relationship by a spouse when the other spouse is anxious for it, would amount to mental cruelty, especially when the parties are young and newly married”.[95]
• Bringing a second wife to his house by the husband
In State of Maharashtra v. Sanjiv Bhimrao Kamble [96], the issue before the court is whether bringing second wife to his house by the husband amounts to cruelty on first wife within meaning of Section 498A, IPC? The Bombay High Court held that ‘it is not every type of misconduct that has been made punishable under Section 498A, IPC. Cruelty has been defined in Section 498A to mean any willful conduct 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 physical or mental health of the woman or harassment of the woman made with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security. So, it is clear that only those acts committed willfully and which are in the nature of degrading treatment which qualify to be termed as cruelty in law. In other words, cruelty is a conduct designed to produce definite result in relation to physical or mental condition of a woman. In order that the conduct is called willful, it must have been such as could be said to be indulged in by the accused with an intention to cause or with the knowledge that it is likely to cause degrading or humiliating or injurious effect on the mind or conduct of the woman’. It involves acts the result of which causes hurt and oftentimes agony to the opposite party be it mental or physical, which in turn has further damaging consequences, the most serious of which is an ultimate suicide, as held in the case of Madhuri Mukund Chitnis v. Mukund Martand Chitnis .241 Thus, the condemned act called cruelty must be accompanied by mens rea. Having said so, it has to be seen whether the allegation that the accused had brought one stranger lady to his house and announced not only to the complainant but also to her father and uncle that the stranger was his second wife was reasonably established or not. Even if this allegation is proved, the matter would not end there, as it cannot be presumed in every case that such conduct of husband would create such an adverse impact on the mind of the wife as is sufficient to drive her to commit suicide or cause grave injury to herself and hence a willful conduct. There are instance where a second wife has been accepted by first wife willingly or unwillingly but surely without losing balance of mind by causing any injury to herself. So, all depends on the facts and circumstances of each case. The evidence as regards the said allegation, therefore, needs to be assessed in the light of the law so discussed.
In Shivcharan Lal Verma v. State of M.P 242 it was held by the Supreme Court that when marriage of the accused with the deceased was during subsistence of valid marriage between the accused and his first wife, was null and void, conviction of the accused for offence punishable under Section 498A, IPC for harassing the deceased who committed suicide is not sustainable in law.
3.3.4.2 Allegations of Cruelty by wife upheld- Some illustrative cases
Cruelty, either in English law or Indian law, has not been defined by statute. Thus, all the law on cruelty is judge-made law and must be extracted from the precedents.[99] There are judicial pronouncements where the wife, knowingly or unknowingly starts eroding the mental peace of the husband. Lodging false complaints and making scandalous- malicious-baseless and unproven allegations, writing false letters to superiors of husband as a result his entire career is ruined; slapping the husband in presence of the friends, relatives and others, purposeful neglect to domestic life, threatening to commit to suicide, coldness and habitually doing the insult of the husband, ill-treating the parents of the husband with intent that the parents may go away and live separately, unreasonable denial to have sexual intercourse with the husband, refusal to have a child, forced abortion or abortion without consent, false allegations of adultery, leading adulterous life, extra-marital affairs, birth of illegitimate child, use of drugs and alcohol, unfounded resort to matrimonial laws etc. are few of the instances which are invariable, held by the Courts of law, to be instances of husband having been treated with cruelty by wife.
• Abnormal behaviour of wife
The husband averred that before marriage, it was not disclosed to him that the wife is of unsound mind. Only after marriage, he came to know of her mental disorder which is incurable. From the very first day of matrimonial life, the wife behaved in a peculiar way; she was not obedient and declined to cohabit. She does not understand the responsibilities of a housewife. She has no sense of living like a wife in a matrimonial home. After taking bath sometimes, she does not put on clothes properly. She urinates even outside the house. When she was advised not to behave in this manner, she would start crying and tearing of clothes. She is quarreled some by nature. Sometimes she became violent. Her behaviour is intolerable to the husband. When the child became ill, she had left the child and went to the parental home. The child expired due to her negligence and carelessness. The day-to-day behaviour of the wife was such as to disturb the mental peace and harmony of the respondent which definitely amounted to legal cruelty. She may not be of an unsound mind, but her peculiar ways of behaviour proved by the respondent are sufficient to constitute that legal cruelty. The husband could not live with peace in the company of the wife.243
• Filing criminal complainants against the husband and his family
A recurring theme within the ambit of ‘cruelty’ is whether filing a criminal complaint against the husband and his family amounts to cruelty. There are two aspects to this issue. The first is, whether acquittal of the accused would entitle him to file for divorce on this ground and second, whether the complaint was false and the husband and his family were subjected to undue harassment and mental trauma on account of it. In a leading case, Sobharani v. Madhukar Reddy 244 the Supreme Court laid down that acquittal in a criminal case filed by the wife is itself cannot be construed as cruelty to the husband. In this instant case, the wife had filed for divorce on the ground of cruelty, and the Trial Court and the High Court dismissed her plea on the ground that she could not prove the allegations. Reversing the judgment, the Supreme Court held that the demand for dowry is prohibited under the law. It constituted cruelty, and a decree for dissolution of marriage was passed. The Court explained the difference between cruelty under criminal law and matrimonial law and held that the degree of the offence is not the same under them. While, in a criminal case, cruelty has to be proved ‘beyond reasonable doubt’ in matrimonial litigation, allegations have to be proved by ‘preponderance of probabilities’.
• Initiation of criminal proceedings against the husband and his family members
There is catena of cases having that, false, scandalous, malicious, baseless and unproven allegations made by one spouse whether in letters or plaint or written statement or even in appeal or by any other mode amounts to cruelty. Such allegations may result in maligning either of the spouse or his/her near relations. Such allegations do cause great mental agony either to the husband or the wife as the case may be. A false criminal case to harass the husband and his parents would be an act of cruelty depending on the circumstances of a case.
In Chandan Aggarwal v. Mukesh Kumar Aggarwal ,245 it was held that, the lodging of a false criminal case by the wife against her husband and his family members leading to the arrest of the husband and harassment to his family members and refusal by the wife to fulfill matrimonial obligations amounts to cruelty the husband. In the case of Narendra Kumar Gupta v. Indu, 246 the wife instituted a false case with the police under Section 498A, IPC against the husband, who was humiliated, harassed and released on bail. On investigation, it was found that no such case could be made out against the husband. All such allegations made by the wife were found to be false. The wife-respondent received all the household goods in the garb of the instituting criminal case and submitted receipts, which have placed on record by the appellant. In this connection the Court is of the view that, the respondent has treated the petitioner with cruelty, and it was held that such acts and conduct of the wife constituted mental cruelty to the husband.
If a criminal complaint filed by the wife against her husband is found to be false, it will amount to cruelty. In P.Mohanarao v. Vijayalakshmi ,247 where the wife in her criminal complaint implicated not only her husband but also his parents, brothers and sisters due to which they had to suffer imprisonment for a considerable time, the Andhra Pradesh High Court held that she was guilty of cruelty.
In Pinky Jain v. Sanjay Jain 248 ‘where the parties make wild allegations against each other no implicit faith in the testimony of either of them and wife file false allegations of cruelty under Sections 147/149/498A/323/504/506 IPC and harassment for dowry under Sections 3 and 4 of the Dowry Prohibition Act and going back on agreement for mutual divorce even after receiving agreed amount would amounts to mental cruelty by the wife towards the husband and the husband therefore entitled to decree of divorce.
The wife after signing divorce deed on the same date she lodged a false report against the husband, and consequently husband was prosecuted and punished. Wife caused grave cruelty to husband, and the cruelty has never been condoned by the husband, and therefore the only remedy remains, is to dissolve the marriage.[106]
• Wife’s refusal to reside in the joint family/demand to live separately
Since the joint family system still prevails among many rural and even urban communities, a woman’s desire to set up a separate nuclear family often leads to matrimonial conflicts leading to divorce. Within a traditional set up, this demand may be construed as cruelty. But there are several judgments which have acknowledged the changing social scenario and the needs of a modern, educated woman to break away from the traditional joint family set up. In Rakesh Goyal v. Deepika Goyal, [107] it was held that repeated demands of the wife for a separate residence do not amount to cruelty. The High Court commented that the Courts cannot be obvious to present-day trends in the society wherein most newly-wed women want their privacy and want to live separately from their in-laws. In Ratna Banerjee v. Chandra Madhab Banerjee, [108] the wife from the very beginning tried to estrange the husband from his parents, brother and sister and insisted on staying separately. It was held that if the husband is in a transferable job and stays at different places away from the parental house, the demand of the wife to stay with him would not amount to cruelty. In Ramesh Jangid v. Sunitha ,[109] the Rajasthan High Court took a contrary view and held that the Indian society expects a son to look after his aged parents and casts a duty upon him not only to provide for them financially but also to maintain a joint habitation with them so that he can accord them proper care. In such cases, if the wife insists that he should maintain a separate residence, it amounts to cruelty. Since the husband was the sole earning member, it was not possible for him to abandon his aged parents. At this point, the wife became abusive and refused to have physical relations with him. There was also a separation of fourteen years. In this context, the husband was awarded a decree of divorce on the ground of wife’s cruelty and desertion. In Om Prakash v. Rajni [110], the Delhi High Court observed that ‘in case where the husband is the only son of his parents or whose parents are ill, wife’s demand to live separately may amount to cruelty. But not in every case can be so. It will depend on facts and circumstances of the case.’
• Constant taunts, insults, nags and even physical assaults may amount to cruelty
Constant quarreling of wife with the husband and use of abusive language with his family members, throwing cup of tea at husband many times on return of husband from his office and non-permitting to husband to come in house, compelling husband to stay with his friends at night, amounts to legal cruelty on part of the wife towards husband.249
The wife used to insult the husband by saying that even her father’s servants had a better standard of living. The wife refused to clean the dining table and insisting on the husband to clean the table himself and prepare tea. She refused to cook with the result that the husband had to go hungry to his office. Wife would not open the door of the house, and the husband had to keep standing for about half an hour. The wife would not permit the husband to sleep with her saying that he was not worthy of even picking up her chappals. Wife ordered the husband to wash the dishes in the presence of his friends, showed disrespect to the family members, to the extent of slapping the husband. They cannot be brushed aside as mere trifles. The totality is so called trifles, constitutes cruelty to the husband.250
• Depriving husband pleasure of sex
A normal and healthy sexual relationship is one of the basic ingredients of a happy and harmonious marriage. Marriage without sex is an anathema. Sex is the foundation of the marriage and without vigorous and harmonious activity, it would be impossible for any marriage to continue for long. If a married woman refuses neglects or is reluctant to sexual intercourse without any sufficient reason, it may amount to cruelty in the legal sense. Non-consummation of marriage, denying sexual access, and incapacity to perform sexual acts are matrimonial offences which will entitle the other spouse to either dissolve or annul the marriage. While the obligation is mutual, more often than not, it is the women who are called upon to fulfill this obligation. Hence, the withdrawal from sexual contract becomes a ground for divorce.
In Dr. Srikkanth Raghavacharya Adya v. Anuradha, 251 a Division Bench of the Karnataka High Court observed that, the wife may refuse sexual intercourse with her husband lawfully in the following circumstances:
When she is sick and her health does not allow sexual intercourse,
In menstruation period,
When she has pregnant,
When the husband suffers from sexual weakness and is unable to satisfy the sex of the wife,
When the husband attends prostitutes and has sexual intercourse with them, and
When the husband is in a drunken state having lost his mind in the state of intoxication.
In Radhey Shyam Sharma v. Kusum Sharma, 252 by the High Court of Madhya Pradesh held that that the denial of sexual intercourse to the husband by the wife amounts to cruelty within the meaning of Section 13 (1) (ia) of the Hindu Marriage Act of 1955.
• False charge of impotency
If one spouse levels false charge of impotency against the other it amount to cruelty. Impotency of a spouse may also amount to cruelty. In Rita Nijhawan s. Bal Krishnan Nijhawan 253 the Delhi High Court observed, “ the law is well settled that if either of the
parties to marriage being of a healthy physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other party to a decree. However, the allegations of the petitioner that the husband is impotent in the form of abuse in the house cannot be lightly ignored as in a matrimonial matter it is serious stigma, on the manhood and is bound to cause great mental agony and pain resulting in cruelty to the husband.254 In Susarla Subrahmanya Sastry v. S. Padmakshi 255 the allegations made by the wife against the husband that he was unable to perform sexual intercourse could not be proved. Hence, it was held that these allegations amount to cruelty. It was stated that because of non-cooperation and hostile attitude of the wife, the husband was subjected to serious traumatic experience which can be termed as cruelty. Further, the Court commented that when a marriage has irretrievably broken down, the question whether it was consummated or not loses its importance.
• False complaint to the employer of the husband
It seems to be now an established proposition of law that false, malicious, baseless allegations made by one spouse against the other in letters addressed to the employer of spouse or to any person in authority amounts to cruelty against the other. The wife started demanding transfer of the house in her name and sending all types of signed or unsigned letters or pseudonymous letters to his employers, friends, relatives and officers including the Prime Minister, maligning his character. That is the worse type of cruelty that the wife had inflicted upon her husband which he is not prepared to bear with and condone. In Lajwanthi Chgndhok v. O. N. Chgndhok ,[118] it was held that wife’s writing false anonymous complaint to the employer of the husband amounts to cruelty. In Kiran v. Surendra, [119] wild allegations were made by the wife against her husband who is a Class-I employer in the Ministry of External Affairs to the Superior officer. These letters were damaging to the reputation of the husband. It was held that this amounted to cruelty to the husband.
• News item was published by the wife against the husband
The facts in the case of Naveen Kohli v. Neelu Kohli [120] have been very unusual. The wife got the business and property of the husband transferred in her name; she had withdrawn Rs.9,50,000/- from the bank account of the husband and transferred to her account; filed number of criminal cases and police complaints against the husband made false allegations, in the affidavit filed before the Company Law Board, called the husband a criminal, infidel or a forger, choices abuses made against the husband; caused arrest of the husband in non-bailable cases filed against him and by opposing the bail at every stage. Moreover, a news item was published alleging that the husband was only an employee in the company of which she is the owner, he was acting against the spirit of the company causing immense loss of business and goodwill, he had stealthily removed the producers of the company, besides diverting orders of foreign buyers to his own firm, opened bank account with forged signatures, all business associates were cautioned to avoid dealing with him alone. It was found that the marriage between the parties is only in the name, and they were living separately since 1994. The marriage between them has been wrecked beyond the hope of the salvage. Therefore, it was observed that not to grant a decree of divorce would be disastrous for the parties.
• Hostile attitude of the wife
In the case of G.V.N Kameswara Rao v. G. Jabilli, [121] the husband is double doctorate holder, one from the Andhra University and another from the University of United States of America. The wife is a post-graduate and working as a lecturer. Both of them did not live for a longer period, together, as happily married couple. The husband has successfully proved that the attitude of the wife was not cordial and cooperative; their married life was never happy and cheerful. The husband was on many occasions subjected to humiliation and even filed a complaint case against him. The allegation of the wife that she was physically assaulted was not convincing. There was bleeding injury in her hand, but the question is, in such circumstances will an ordinary prudent person rush to the police station and file a complaint to see that her husband and his mother be kept in police custody for unduly long hours. These incidents threw an insight into her past conduct when she was staying with her husband. The mental cruelty is to be assessed having regard to his status in life, educational background, the environment in which he lived. The husband would have suffered traumatic experience because of the police complaint and consequent loss of the reputation and prestige in the society which can safely be termed as “Cruelty” within purview of Section 13 of the Hindu Marriage Act, 1955. Married life between them was never happy. The marriage was irretrievably broken because of the conduct of the wife and her hostile attitude towards the husband, and therefore, held that the husband was entitled to decree of divorce.
• Reprehensible conduct
Mental cruelty is reprehensible act and conduct on the part of the respondent. In Krishna v. Alok Ranjan [122], it was established that wife’s frequent departure from the matrimonial home to her father’s house without husband’s permission and staying there for a long time caused undue mental hardship to the husband which necessitated medical treatment. It was also established that the wife was highly impulsive, emotional and suspicious of others. She used to lose her temper often and misbehaved with her husband and in-laws. Once she lodged a false complaint against him to police, leading to the entry of the police in the matrimonial home. Even after she left matrimonial home for good, she was offensive to her husband making various false allegations. On these facts the Calcutta High Court found the wife guilty of mental cruelty, and dissolved the marriage.
• Long separation or act of desertion
Once the parties have separated, and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has breakdown. In Samar Ghosh v. Jaya Ghosh 256 it was held that where there has been a long period of continuous separation, it may fairly be concluded that the matrimonial bond is beyond repair. The marriage becomes a fiction though supported by a legal tie. By refusing to sever that tie, the law in such cases, does not serve the sanctity of marriage, on the contrary, it shows scant regard for the feelings and emotions of the parties. In such like situations, it may lead to mental cruelty.
In Badri Narayan v. Savitri-II, 257 the wife has been living mostly in her parent’s home and she come to the matrimonial home for short intervals. Even during such short periods when the respondent lived with the appellant/husband, she created trouble, causing tension, harassment and apprehension to the appellant and his family members. Parties lodged complaints against each other, which resulted in the initiation of criminal proceedings. Not only the mental cruelty inflicted by the respondent stands established but it also appears that the marriage between the parties has irretrievably broken without any chance of repair and restoration of relations between them. In the circumstances, the appellant is entitled to a decree of divorce under Section 13 of the Hindu Marriage Act, 1955.
• Mere demand of money, will not constitute dowry demand
There are many instances for payment of money or giving property as between the spouses; for example, some customary payments in connection with the birth of a child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry.258 In the case of Aftab Alam Hamid Ansari v. State of Maharashtra 259 what the husband wanted was some money to set himself up a business, which had nothing to do with dowry. Hence the conviction of the husband under Sections 302, 304B, and 498A, IPC was set aside. As appearing in the case of Kakumanu Jaya Prasada Rao v. State of Andhra Pradesh 260 the husband was in acute financial distress and was insisting for some financial help for his business and nothing more and nothing beyond it. Hence, held that it did not come within the purview of cruelty and no offence under Section 498A, IPC was committed.
• Where death of wife was natural
In Smt.Begum v. State of Uttar Pradesh 261 the deceased died of prolonged illness and it was a natural death, the accused husband was held not to be liable under Sections 498A, 304B and 201, IPC and the proceedings against him were quashed.
Merely because the wife died within seven years of her marriage cruelty cannot be inferred:
Different persons react differently to different situations. If the wife is very sentimental, even slight insinuation or incident may instigate her to commit suicide. But that will not amount to cruelty as defined under Section 498A, IPC. Cruelty should be such that in the given circumstances it would drive a normal lady to commit suicide. It was held in the case of State of Punjab v. Kirpal Singh, 262 the mere fact that the deceased wife committed suicide within few months of her marriage; no inference of abetment could be drawn against the husband, especially when there was no reliable evidence of torture or cruelty for bringing insufficient dowry.
• Wife suffering from deadly disease/auditory hallucinations and persecutory delusions
It appeared in the case of Gokuldas Vaingankar Naik v. State of Goa [130] that it was suppressed from the husband that the wife was suffering from SCHIZOPHRENIA, and she was under treatment since 1991. The real reasons of her going to her sister’s house appear to be for her treatment. When a SCHIZOPHRENIA patient suffers from auditory hallucinations and persecutory delusions, it is quite possible that the deceased in this condition may have been imagining the harassment she was suffering. Her behaviour in house was also abnormal, as was not doing any work and sleeping all the while. A doubt arose as to whether she was treated with cruelty or whether she has narrated the instances of cruelty because she was hallucinating. It was held that, the husband could not be convicted under Sections 498A and 304B, IPC.
Sometimes it may amount to cruelty, even though the respondent has no conscious and unconscious part to play in an act or event that which has happened. In Rupe Lal v. Kartaro Devi [131] the wife suffers from a deadly disease (arlo rhinitis), as a result of which fleshy portion of her nose got putrefied and emitted a very foul smell. This made it impossible for the husband to enjoy her company or to have marital intercourse with her. It amounts to a case of legal cruelty to the husband. The Court gave the finding of cruelty, though the wife was in no way responsible for it. It is submitted that this view needs reconsideration, otherwise any prolonged or serious or chronic ailment with which a spouse suffers may be considered as cruelty, if the other spouse can show it caused anxiety and suffering to him, which it would be in every normal case.
• Wife in the habit of writing suicidal notes
In the case of Rishiram v. State of Madhya Pradesh [132] the marriage between the husband and wife was one dissolved by mutual consent but they again renewed and started living as husband and wife. It appeared from the documents that she had made up her mind to commit suicide, and she was in the habit of writing suicidal notes. There was no evidence of any dowry demands or that the wife was subjected to cruelty or harassment and hence held that the accused husband could not be convicted under Sections 498A, 306 and 304B, IPC.
• Attempted to commit suicide or threat to commit suicide
A few instances indicating short temper and somewhat erratic behaviour on part of the spouse may not amount to his/her suffering continuously or intermittently from the mental disorder. The Court, however, indisputably is empowered to satisfy itself as to whether a party before it suffers from mental illness or not. In matrimonial disputes, the Court has also a conciliatory role to play. The primary duty of the Court is to see that ‘ the truth is arrives’. It is only in extreme circumstances that the Court may use this ground for dissolving a marriage. When a spouse threatens the other to commit suicide with a view to coercing the other to do something, it amounts to suicide. In Purushottam Dass v. Purnima ,263 due to depression, the wife has once attempted to commit suicide as she has herself admitted in her statement that she poured kerosene on her body and tried to commit suicide. However, such incident falls short of the required degree of mental disorder which may be considered as ground for divorce.
Where the wife attempted to commit suicide several times by consuming bug poison, glass pieces and on account of such various attempts to commit suicide the intention of which could not be known, nor disclosed by the wife, the husband was put to extreme mental agony. The High Court decided that the decree for dissolution of marriage is allowed.264 Similarly, where there were threats to commit suicide due to false charge of adultery against the husband, in the case of Indubai v. Koutik, 265 the Madhya Pradesh High Court held that, the threats of the wife to the husband that she would someday commit suicide, her behaviour in breaking her own head, her nagging tendencies, her insistence to the husband to separate from his parents and her leveling false charges of adultery and immoral character of the husband, fully establish infliction of mental cruelty to the husband entitling him to a decree of divorce.
In Dr. Narayan Ganesh Dastane v. Sucheta Dastane 266 the Supreme Court opined threats given by the wife to her husband that she would put an end to her life if husband would not behave in certain manner would amount to cruelty.
In Meera v. Vijay [137], wife consumed three tablets of CROCIN thinking that she would die. The Court held that this action did not amount to cruelty. In our submission, were though the Supreme Court had held that attempt to commit suicide is not a crime[138], in our submission, it will still amount to cruelty.
• Adultery and pregnancy by some other person
Assuming that was no physical cruelty by the wife, the act of living together or sharing the bed with another man itself is a cruelty. In Praveen Singh v. Kanchan Devi, [139] before the Himachal Pradesh High Court, the problem arose, whether a decree of divorce or decree for dissolution of marriage should be passed where the wife was pregnant from some other person, within seven months after the time of marriage.
Where the spouses were married on 1st March 1978 and when the wife came to the husband’s house in October 1978 she was pregnant, even though there was no cohabitation between them. The husband filed a divorce petition on the ground of cruelty. Since, pre-marriage lapses are condoned under law; the Trial Court did not favour with the husband and dismissed the petition. In an appeal, before the High Court, it was held
That, the conduct on the part of the wife amounted to legal cruelty and the acts of the wife were neither condoned nor conceived by the husband,
There, being no evidence of cohabitation between the spouses and it appears from the evidence that the wife virtually often remained-away from the company of the husband.
In the said case, the act of adultery was established during the course of the wedlock of the spouses and therefore the appeal was allowed and consequently the marriage was dissolved.
• Birth of an illegitimate child
In Madan Lal v. Sudesh Kumar, [140] the birth of a child within six months of marriage would certainly cause great annoyance to the husband who would in turn started hating the wife and all this is the reaction of the several mental torture that the husband receives in the hands of such child and which becomes intolerable to him and in the result the wife does receive harsh treatment at the hands of the husband. This behaviour of hatred and beatings on the part of the husband on the question of illegitimacy of the child towards the wife was the direct outcome of the frustration and thereby it becomes obvious that the wife had treated the husband with cruelty.[141]
• Wilful or Systematic neglect
Neglect by the spouse in the discharge of her duties of attention and company to the other and forcing the latter to leave the home on account of such conduct would in the circumstances of any particular case constitute neglect justifying judicial separation or divorce on the ground of cruelty. In Rajinder Sigh v. Taramati, 267 the husband was admitted in the hospital after having been badly wounded in an accident. He was lying in the hospital for about eight months. The wife did not use to go to see him despite the information of his conditions. The conduct was such that it can properly and rationally be stigmatized by the ‘Cruelty’ in its ordinary acceptation. The wife’s callous indifference and neglect is inexcusable and unforgivable. The Court held that, the conduct of the wife was so neglectful that it amounts to cruelty, and the husband is entitled to get a decree of divorce.
• Neglect of Children
In Gopal Lal Bolya v. Gayathri Devi, 268 where the wife left the matrimonial home leaving minor children of tender ages, and did not care to see them, shows the cruel attitude of the wife, not only towards her husband but also to her minor sons of 2 years and of 11 months. It was the duty of the wife to give motherly love to the children and to bring them up in their infancy. She for the reasons best known to her declined to discharge the said duties and inflicted mental agony to the husband. This acts amounts to cruelty within the meaning of Section 13 (1) (ia) of the Hindu Marriage Act, 1955, entitling the husband to a decree of divorce.
• Beating the ailing child
Rubbing chilies powder on the tongue of an infant child and beating mercilessly who is in high-fever, and switching on the light at night and sitting by the bedside of the husband merely to nag him are acts which lend to destroy the legitimate ends and objects of matrimony. Assuming that there was some justification for occasional sallies or show of temper, the pattern of behaviour which respondent generally adopted was grossly excessive.269
• Cruelty by a child, acting in consort with the mother
Savitri s. Mulchand 270 (reviewed earlier), a peculiar case of physical cruelty. It relates to cruelty committed by a child on his parent, whenever the father would refuse to do anything at the behest of the mother, the son, acting in consort with the mother, would grab the testicles of the father and squeeze them. It would obviously be an act of extreme physical violence and cruelty to any man to be grabbed and squeezed by his testicles, such act causes extreme physical agony and pain. In this case, holding the act of the son as cruelty to the husband, the Court observed that when one of the children so identifies himself with one of the parents, and that parent collaborates with the child to perpetrate cruelty, the cruel conduct of the child would amount to cruelty on the part of the respondent. However, the Court added a word of caution by saying that normally the cruelty by any of the children of the marriage would not be relevant.
• Wife killed her three children
In Mayadevi s. Jagadeesh Prasad, 271 it was proved that the wife used to demand money from the husband for her father and would quarrel with him if it was not paid. She would often not provide food to her husband, threaten to kill her children and implicate him in a false dowry case, mercilessly beat up the children and often tie them with ropes. While she was pregnant with a fourth child, she pushed her three children into a well and jumped in after them. She was rescued, but the three children died. A case of murder of children was registered against her under Section 302 of Indian Penal Code. All the facts were taken as res gestae cruelty to her husband. Thereafter, being released from the jail she filed a false prosecution for dowry harassment against the husband.
When the judgment was pronounced by the Trial Court in her favour, the wife hurled abuses on the husband and thereafter threatened him to kill and to throw acid on him. The High Court after re-appreciating the entire evidence on record came to the finding that the wife was guilty of cruelty and decree of divorce in favour of the husband. On Appeal, the Supreme Court held that the wife’s conduct amounted to cruelty and confirmed the decree of divorce granted by the High Court. “Cruelty is the res gestae that adverse effects on the mental and physical health, social status and lifestyle of the other party.” The wife was ultimately convicted and sentenced to life having committed murder of her three children.
• Wife imputing act of sodomy to husband
In the case of Swarna Kumari v. M.B Chowdary ,272 there was age disparity of 20 years between the spouses. The parties were Christians. The wife claimed divorce on various grounds of cruelty, making serious allegations against the husband, that she was treated with cruelty even going to the extent of forcing her to have sex with others, beating her now and then and locking her up in a room and forcing her to have unnatural sex. Act of sodomy was attributed to the husband. But in evidence, she could not spell out activities of sodomy alleged to have been forced upon her, though she was examined in the Court in camera. The evidence of the wife did not inspire confidence even if judged from the standpoint of probabilities. The High Court observed that the wife must have been driven to indulge in such vicious allegations having been left with no other way to get the divorce.
• Abortion without husband’s consent or refusal to have children
It is important to bear in mind that, it is no more the requirement of law that cruelty must be of such kind that it should be a cause of danger to the life and limb. The old provision which existed in Section 12 of the Hindu Marriage Act was taken- out from that Section and re-enacted as a part of Section 13 by virtue of the Amendment made by the Marriage Laws (Amendment) Act, 1976. Since, the Marriage Laws (Amendment) Act, 1976, Section 13 (1) (ia) only requires that the other party has treated the petitioner with cruelty. Where the wife got her pregnancy terminated without consulting her husband and for no valid reason, it was held to amount to cruelty.
In Sushil Kumar Verma v. Usha, [148] that aborting of the foetus in the very first pregnancy by a deliberate act without the consent of the husband would amount to cruelty. It was found that the respondent was found guilty of cruelty towards the appellant and the appellant held to be entitled to a decree of divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955. In Satya v. Siri Ram, [149] the husband and his parents were crazy to have a child but the wife always dashed their hopes by resorting to termination of pregnancy. This conduct of the wife, it was, held, amounted to cruelty to husband.
• Accusing husband as womanizer
Wife throughout her evidence has willfully persisted in her stand that the husband is a womanizer and a drunkard. The wife’s evidence before the Court lends credence to the husband’s case that the wife insulted and humiliated him before the relations by false accusations and injurious reproaches. The wife has made it insufferable for the husband to live with her. Any man with reasonable self-respect and power of endurance will find it difficult to live with a taunting wife when such taunts are in fact insults and indignities human nature being what it is, a reasonable man’s motion to the conduct of the offending spouse is the test and that the Court cannot accede to her request to allow her to withdraw her allegations against the husband as it will not do any good to their matrimonial relations.[150]
• Wife destroying thesis written by the husband
The thesis prepared by a scholar who intended to do Ph.D is precious and treasured document. The entire study and knowledge is poured in the thesis which is prepared after a great research and study for years together. Several books are read, and several journals and papers are gone through and the notes are taken by the scholar for making the thesis comprehensive. The value of the thesis is undoubtedly great to a scholar who works on the subject and any damage done to it is bound to upset him and it caused irreparable mental agony and torture to the scholar. In Shanthi Devi v. Raghav Prakash, [151] the husband was a lecturer who prepared a thesis to do Ph.D and the wife burnt it. Held, that such behaviour of the wife cannot be ignored, and it is bound to be treated as an act of cruelty to the husband.
• Wife concealing earlier marriage
In the case of Prithpal Kaur v. Jagrup Singh, 273 after the marriage, the parties cohabited and stayed together as husband and wife and a female child was born. Sometime later, the husband came to know that the wife was already married and that she had contracted a second marriage by concealing the fact of the earlier marriage. She has not divorced the earlier husband. In her written statement also the wife admitted the fact of her earlier marriage and that writing was executed by which she had divorced him. In her statement before the Court also, she admitted to having married earlier but stated to have executed a writing of divorce. In any view of the matter it was established that, the wife was married earlier, and that married was never annulled in accordance with law. Thus, the second marriage was performed while the first one was still subsisting and hence the second was annulled.
• Constant influence of parents
In Suman Khanna v. Mannish Khanna ,274 the wife was a constant influence of her parents, and she used to leave the matrimonial house time and again at the instance of her parents. In para 22, Justice Kailash Gambhir has held that “Parents should not become uninvited judges of the problems of their daughters.” Further, it has been held that in this case, the parents, instead of putting out the fire have fuelled and fanned it. All the matters were treated as cruelty, and therefore, divorce was allowed. The appeal of the wife not allowed.
3.5 Conclusion
• Impossible to give a comprehensive definition of the term “Cruelty” in matrimonial Cases
The term ‘Cruelty’ has been derived from the Latin word ‘ crudus’ which when translated in English means ‘bloodshed’. The said definition is fairly inadequate and does not describe the term ‘Cruelty’ the way we understand it today. Of all the matrimonial offences ‘Cruelty’ is probably the most difficult to define. ‘Cruelty’ in a matrimonial relationship is easy to perceive but difficult to define.[154] No precise and comprehensive definition of cruelty has so far been attempted, and the legislature has purposely left cruelty undefined. The legislature deliberately avoided formulating any definition of cruelty, because acts of cruelty are infinitely variable and no attempt at drawing a complete list as to what constitutes cruelty can ever succeed. Further, act of conduct which may be regarded as cruel in one case, may not be regarded cruel in another. Thus, no case may be a precedent for another. A prior definition of the term cruelty is not possible and that explains the general legislative policy, to avoid such definition and leave to the Courts to interpret, analyze and define what would constitute cruelty in a given case, depends upon the facts and circumstances of each case, while determining them the Court has to take into consideration many factors such as status of the parties, background, customs, caste and community and the traditions by which they are governed as also the public opinion, which prevails in the locality etc.
According to the judicial pronouncements, the term ‘Cruelty’ has some specific meaning under different set of circumstances. It is a matrimonial wrong, which may be committed by a husband against his wife or by a wife against her husband. For the purposes of matrimonial causes, the term ‘Cruelty’ means where one spouse has treated the other in such a way or to such an extent that the feelings of the other have been badly affected or damaged or a spouse has inflicted some bodily injury to the other spouse or has caused the fear or apprehension of endangering the life, limb or health or safety of the other on his body or mind in the case of aggrieved party.
Cruelty may also amount to matrimonial offence by a wife against her husband, if the act of the wife has caused danger to the life, limb or health, bodily or mental or a reasonable apprehension of it to the husband. Causing mental suffering or fear in the mind of the husband by some act of the wife would be an act of cruelty. The term cruelty as understood in matrimonial matters does not merely convey the idea of physical harm, which one spouse may receive from the other. It admits in its ambit and scope of such acts which might even cause mental agony to the aggrieved party. What acts do constitute mental agony will obviously depend upon the circumstances of the each case. Several factors have to be taken into account, such as environment, status in society, education, cultural development, local custom, social condition, physical and mental condition of the parties. In deciding, whether the act, conduct or attitude or behavior of one spouse towards the other amounts to cruel treatment has to be measured by the resultant danger or apprehension of the victim. Physical temperament, standard of living and culture of the spouses, social ideas and other relevant circumstances have bearing on the question whether the acts and conduct complained of amount to the matrimonial offence of cruelty. The conduct must be judged from the point of view of victim’s capacity or incapacity for endurance in so far as that is or ought to be known to the offending spouse. Intentional acts may amount to cruelty even though the one who perpetuated the same had no intention of being cruel. In doubtful cases, the state of mind of the offending spouse would be material and crucial.
• Cumulative acts and conducts amounting to cruelty
A question has come before higher judiciary as to whether each act or conduct complaint of by the petitioner should by itself amounts to cruelty or whether it is the cumulative effect of all acts and conduct (or in other words, over-all effects of all the acts and conduct) which should be taken into consideration. The predominant authority is in favour of the latter view. It is noteworthy that ‘no hard and fast rule’ can be laid down as to what acts or conduct will amount to cruelty in one case, may not amount to cruelty in another case. In deciding whether or not a particular state of affairs amounts to legal cruelty, the Court has to consider the social status, the environment, the education, the mental and physical conditions, and the susceptibilities of the innocent spouse as also the custom and manners of the parties. Whether acts and conducts complained of constitute cruelty have to be construed in reference to the whole matrimonial relationship.275
It may be that various acts or conduct complained of, by itself and in isolation to each other, do not amount to cruelty but in their overall effect, they may amount to cruelty276. In general, cruelty is, in its character, a cumulative charge. Cruelty may consist of a single act or conduct of the respondent or it may consist of a series of acts, none of which by itself can be said to constitute cruelty, but in their totality they may amount to cruelty.
The general rule is that the matrimonial relations must be considered as a whole and this rule is of special value when cruelty consists of not violent acts but of injurious reproaches, complaints, accusations and taunts.277
• What does not amount to cruelty?
Cruelty has been a ground of divorce in matrimonial law of almost all countries. It is so under Indian matrimonial laws. Cruelty may be physical or mental. Acts of physical violence have always been considered to amount to cruelty. Unusually callous, reprehensible conduct, false charge of impotency, false complaints to the employer of the spouse, false criminal charges refusal marital intercourse without any reason, refusal to consummate the marriage, and getting pregnancy, terminated without consent of her spouse, etc. have all been held to constitute cruelty and provide a ground for divorce for the other spouse. It has been also held that outburst, temper without rancor, merely writing love letters to a third person, non-payment of interim maintenance, of desertion per se or mere filtration does not constitute cruelty or where violence or assault is used in self-defence, it does not amount to cruelty. Acquiescence to the acts or conduct of the defendant is also a god defence to a charge of cruelty, but submission to acts must be voluntary.
• Cruelty as changing concept
Human mind is extremely complex, and human behaviour is equally complicated. Similarly, human ingenuity has no bound; therefore to assimilate the entire human behaviour in one definition is almost impossible. The meaning and concept of cruelty varies from place to place, time to time, individual to individual, couple to couple, not in theory but its application as a social and economic conditions change. Each case depends on its facts and must be judged on their facts. One instance of cruelty for one spouse and the same can be of no use for the other. They are varying degrees from the house to house or a person to person. A set of facts stigmatized as cruelty in one case, may not be the cruelty in another case. The concept of cruelty is differ from person to person, depending upon his upbringing level of sensitivity, educational, family and cultural background, financial position, social status, customs traditions, religious belief, human values and their value system.[158] In the leading case, V. Bhagat v. D. Bhagat, [159] the Supreme Court explained the concept of mental cruelty as conduct which inflicts upon the other party such mental pain and suffering as would make it impossible for that party to live with the other. It must be of such a nature that he parties cannot reasonably be expected to live together. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner.
Expanding further the guidelines laid down in Dastane case ,[160] the Court held that while deciding the issue of cruelty, regard must be had to the social status and educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together. It is stated that what is cruelty in one case may not be cruelty in another. If it is a case of accusations and allegations, regard must have to be made to the context in which they were made. There may be instances of cruelty by unintentional but inexcusable conduct of any party. It may also result from the cultural conflict between the parties.
Petty squabbles and minor temperamental differences do not amount to cruelty. In Savitri Pandey v. Prem Chandra Pandey, [161] it was stated that cruelty has to be distinguished from the ordinary tear and wear of family life. It cannot be decided on the sensitivity of one party, rather to be adjudged on the basis of the course of conduct which would, in general, be dangerous for a spouse to live with the other. The cruelty alleged may largely depend upon the types of the life; the parties are accustomed to or to their economic and social conditions. It may also depend on their culture and human values to which they attach importance. In the case of Ganapath Patnaik v. State of Orissa, [162] it was stated that the concept of cruelty under Section 498A, IPC and its effect under Section 306, IPC varies from individual to individual, also depending upon the social and economic status to which such person belongs. The Supreme Court held that cruelty for the purpose of offence and the said action need not be physical. Even mental torture or abnormal behaviour may amount to cruelty or harassment in a given case. It was further, held that the categories of cruelty are not closed. New types of cruelty may always crop up.
Therefore, when a spouse makes a complaint about the treatment of cruelty by the partaker in life or relations, the Court should not search for standard in life. It has been interpreted by Courts in different circumstances in matrimonial causes. Mental cruelty, of course, varies from person to person, depending upon the intensity and the degree of endurance, some may meet with courage and some others suffer in silence, to some it may be unbearable and a weak person may think of ending one’s life.278
The Madras High Court in A. Viswanathan v. G. Lakshmi 279 explained that the concept of cruelty is deeply influenced by socio-cultural values and stereotypes regarding the roles of husband and wife in a marriage. As the perception of the parties, their standing in the eyes of the society and the emerging compulsions of modern life change, the definition of cruelty also would change. For example, in 1985, the Allahabad High Court, in Kalpana Srivastava v. Surendranath Srivastava, 280 held that the refusal to serve tea to visitors and husband’s friend amounts to cruelty. In this case the Supreme Court has observed: “The finding of the High Court that the respondent’s refusal to cook food for the appellant could not amount to mental cruelty as she had to go to office, is not sustainable. The High Court did not appreciate the evidence and findings of the learned Additional District Judge in the correct perspective. The question was not of cooking food, but wife’s cooking food only for herself and not for the husband would be a clear instance of causing annoyance which may lead to mental cruelty.” It has also been observed that the said judgment does not take into consideration the newly enacted domestic violence law.281 But in 2007, the Delhi High Court, in Narinder Singh v. Rekha, 282 ruled that refusal to serve tea to the visitors does not amount to cruelty. At the outset, it is concluded that ‘cruelty’ has been a changing concept and today it has been broken beyond possibilities of repair, whatever had led to its breakdown is considered cruelty.
CHAPTER-IV CRUELTY UNDER PERSONAL LAWS
4.1 Introduction: Applicability of Personal Laws
India is a country with rich heritage and culture. It is the abode of many religions and philosophies. Secularism has been one of the features of Indian life from the time immemorial. India is a country which abounds in personal laws. India is the only country in the world which permits persons belonging to different religions to follow their personal laws. This gave rise to different marriage laws, succession laws, and divorce laws applicable to different religions like Hinduism, Islam, and Christianity.283 Each community has its personal law. The Hindus, the majority community, have their separate family law; so have the Muslims, the biggest minority community. Smaller minority communities, the Christians, Parsis and the Jews, whose number, in the context of the total population in India, is not very significant, too have their separate family laws. Marriage is a holy sanskar (sacrament) for Hindus, a sacred contract for Muslims and sacred knot for Christians. Although each of these communities is a religious community, yet it is not necessary that their personal law is essentially a religious law. It is also not necessary for the application of the personal law that members of the community should be ardent believers or followers of that religion. In most of the cases, if he is a member of the community by birth or conversion that will suffice, even though in actual persuasion he may be atheist, non-religious, non-conformist, anti-religious or even decry his faith. So long as he does not give up his faith and embrace another religion, he will continue to be governed by the personal law of the community to which he belongs.284 There has been continuous development of personal law by amendment and judicial interpretation which had made them far more egalitarian. In essence personal law determines the qualification for being entitled to get married, the manner in which the marriage is to be solemnised, and the number of spouses (wives/husbands) that a person is entitled to marry.
Despite being a constitutionally secular country, most marriages and its dissolution in India are governed by laws formulated on the participant’s religion, but the Child Marriage Restraint Act, 1929 supercedes personal laws. For example, originally according to the Hindu Marriage Act,
1955 the legal age to marry in India as provided for the bridegroom was eighteen years and for the bride was fifteen years.[3] The Child Marriage Restraint Act was enacted with a view to restraining solemnisation of child marriages. [4] The solemnisation of child marriage is prohibited by the Government and punished by imprisonment under the Child Marriage Restraint Act. However, the Act of 1929 has often been criticized as a toothless tiger, as a dog that barks but not bites. The Act, though restrains solemnisation of child marriages yet it does not declare them to be void or invalid. The Act of 1929 was subsequently amended in 1949 and 1978 in order, inter alia, to raise the age limit of the male and female persons for the purpose of marriage. The Child Marriage Restraint (Amendment) Act, 1978 has risen the minimum age fixed for a marriage to twenty-one years[5] in case of bridegroom and eighteen years[6] in case of bride. There has been a growing demand for making the provisions of Act more effective and the punishment thereunder more stringent so as to eradicate or effectively prevent the evil practice of soleminisation of child marriages in the country. This will enhance the health of children and the status of women. The Prohibition of Child Marriage Bill has been passed by the Parliament, and came on the Statute book as ‘the Prohibition of Child Marriage Act, 2006’ (6 of 2007). The Prohibition of Child Marriage Act, 2006 has repealed the Child Marriage Restraint Act, 1929.
Another significant feature is that, the marriages must be registered to be granted civil recognition by the Government but failure to do so does not make the marriage invalid. For example, for the purpose of facilitating proof of Hindu marriage provision for registration may be made by the State Government, under the Hindu Marriage Act, 1955. The particulars relating to marriage may be entered in a marriage register maintained under the rules made by the State Government. It is open to the States to make the registration of marriage compulsory. The State of Andhra Pradesh has passed the A.P. Compulsory Registration of marriages Act, 2002 (Act 15 of 2002). Omission to register the marriage does not affect the validity of the Hindu marriage.[7]
The Courts in India should not entertain a complaint under Section 498A, IPC if the marriage is not registered. However, the second wife will get protection under Domestic Violence Act, even though their marriage was not performed as per rituals. The status of second wife under Section 498A, IPC is a question of fact and not of law. To decide a 498A, case, the Court must observe whether there is a cruelty alleged to be attracted the intended provision. In Seema vs. Ashwani Kumar [8] the Supreme Court has reiterated the need of getting marriages of all citizens of India belonging to a various religions compulsorily registrable for two reasons. First, that it falls within the expression ‘vital statistics’ as provided in Entry 30, List 3, Schedule 7 of the Constitution of India and secondly, it is the only method to curb child marriages.
4.2 Dissolution of Marriage
The institution of marriage has been conceived differently by different social scientists. The most popular concept is that the marriage is a union between man and woman. This union has been held by Hindus to be eternal i.e., a union not merely in this life but also for all lives to come. It was considered as a religious and sacramental union therefore, indissoluble a ‘ janm janmanter sambandh’, so much so that, even after death the indissolubility of the union continued. Marriage is being performed for ‘ Dharma ’ (fulfillment of religious duties) and it is also considered to be a social duty towards the family and the community; where as all other marriages are regarded as contracts, although marriage as a social institution is regarded as solemn. However, with the change of time and progress of the society the traditional concept of marriage has also undergone a sea change in this modern age. Like every institution, the marriage also breaks as all marriages could not succeed. Earlier divorce was not allowed, even till the mid 1950s divorce was not permitted by Hindu law. The concept of divorce was unimaginable and did not exist. There was no scope of dissolving marriage by decree of divorce.[9] But, during these days the dissolution of marriage of various religious groups has come out and divorce has been recognised amongst Muslims as well as Christians.
In Colonial India, divorce was introduced for two categories of persons - the ones who converted to Christianity and consequently their spouses refused to live with them and those who were Christians and performed Christian marriages. Indian Divorce Act, 1869 which applies only to the Christians is perhaps the first Indian law on dissolution of marriage. Then in the year 1936 a separate law for the Parsis was enacted namely “the Parsi Marriage and Divorce Act, 1936” and three years later “the Dissolution of Muslim Marriage Act, 1939” was passed for the Muslims. Till then no such Act was there for Hindus except certain State laws (presidency states) relating to divorce. First the Kolhapur State enacted its own law on divorce for Hindus in the year 1920 followed by Baroda State in 1942, Bombay presidency285 in 1947 and Madras in 1949 and Saurashtra in 1952.286
After independence two national laws were enacted to govern the divorce or the dissolution of marriage. These laws are the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955. With the adoption of the Hindu Marriage Act, 1955 divorce has been legalised. Further, certain Amendments were also brought up these two enactments relating to the grounds of divorce by ‘the Marriage Laws (Amendment) Act, 1976’ and along with the Child Marriage Restraint Act, 1978. Certain other changes were also brought by the ‘Marriage Laws (Amendment) Act, 2001’287.
In India, every marriage comes with certain rights and duties that are applicable to both the parties, the most basic of which are cohabitation and conjugal rights and the failure to partake in any of these rights and duties may provide grounds for dissolution of marriage. Marriages may be ended either by annulment or divorce. An annulment is a procedure that declares a marriage completely null and void, as if it never happened in the first place. The criteria for seeking an annulment are quite specific. They include the non-commitment of either spouse’s marital duties (such as willfully not consummating the marriage, committing fraud by not-disclosing a major pre-existing physical or mental health condition to the other spouse before marriage, coercing the marriage etc.) Annulling a marriage takes away the label of ‘divorce’, but it is common for couples to seek a divorce. Some divorces are amicable and mutually agreed. Those do not require a reason to be filed. However, most are not. Most divorces are granted upon petition of either spouse for various reasons. Divorce put an end to married life. The object of divorce is to settle dispute relating to marriage between the parties for all times to come and release the spouses from marital bondage.
‘Cruelty’ is one of the common ground in all the personal laws, on which a decree for judicial separation and divorce can be obtained.288 It is also a ground for separate residence and maintenance (for the wife), and it is a valid defence for defeating a claim for restitution of conjugal rights. In India, tracing the history, Moonshee Buzloor Case,289 of Privy Council can be said to have laid the foundation of the rule that ‘cruelty as a ground for judicial separation’. Later it became a guide and precedent. In Binda v. Kausilia, 290 the defendant argued ‘Cruelty’ as a defence in a case for restitution of conjugal rights and it was accepted. The trend shows that in past, Indian judiciary followed the same standard about cruelty like that of English during the colonial period.291
4.3 Remedies against Cruelty
Statutory law or Codified law chooses certain remedies against the acts of cruelty and these can be classified into three categories.
1. Constitutional remedies,
2. Civil remedies, and
3. Criminal remedies
In our country, under the Constitution of India, man and woman are equal in status. The old conception of textual Hindu law that female is half part of male or the conception under Mohammedan law that a woman has no independent personality or that a woman’s testimony amounts to a half than that of the male that is two women’s testimony is equal to that of one male person or any such other conception discriminating the woman from has become out of date and antiquarian remembrance only. If some fundamental rights of a spouse are violated by the other spouse the aggrieved person may approach the Supreme Court or the concerned High Court for protection of those fundamental rights under Articles 32 or 226 of the Constitution.292
Under criminal law, there are few provisions available which can be used to address the issue of domestic violence. An aggrieved spouse has criminal remedy by way of filing a complaint against the spouse committing or having committed a wrong or wrong which falls under the Penal laws. For instance, if a husband commits bigamy the wife has the right to prosecute and get him punished by a criminal court. Some precautionary remedies may also be haunted before the Executive Magistrates under the Code of Criminal Procedure, 1973. The introduction of Section 498A in 1983 was significant in bringing domestic violence out of the closet, but this section with its specificity to dowry demands ignores other factors of violence. Other offences of assault, hurt, grievous hurt, dowry death, murder, rape etc are also often used against the perpetrators of violence. These criminal offences, however, are not enough to deal with the complexities of domestic violence because the violence inflicted is not by a stranger, but by an intimate partner of the victim. More importantly, a criminal remedy will only serve to punish the abuser and is not sufficient to address the needs of victims of violence. A man can quite simply throw his wife out from the home and wait for her to make her long-winding way through the courts for whatever little relief she can get, or he can instill in her the fear of losing custody of her children. Therefore, one of the most important consequences of domestic violence is the homelessness of the abused women, and the criminal law remedies do not succeed in providing immediate or emergency protection to the victims of domestic violence.293
An aggrieved spouse may choose his or her remedy, according to the nature of the cruel act. If it is merely relating to the matrimonial tie which is affected or damaged by such cruel treatment then the spouse should seek the remedy of civil nature such as restitution of conjugal rights, judicial separation or divorce. The civil remedies under matrimonial laws are concerned only with restitution of conjugal rights, judicial separation and divorce along with interim maintenance and permanent alimony. The aggrieved person may file a suit for compensation against the wrongdoer spouse under the general civil law. No right of compensation or injunction against the wrongdoer spouse is provided in matrimonial laws. If compensation is not the proper remedy, then a suit for injunction may also be filed in a civil court against the spouse committing or apt to commit some wrong.
All these are representative of an irretrievable breakdown of family ties. However, it is important to note that in many situations of domestic violence, women might not opt for a divorce, and often wish to remain in the marital relationship. In such circumstances the civil law is silent. It is relevant to note that domestic violence is not an occurrence only among married partners, but also to children, aged parents, co-habitants and in-laws among other relationships. Therefore, when it comes to issues which occur 'within' marriage such as family violence, marital rape or child sexual abuse, there is a huge gap; between the practical social scenario and the existing law. The law has not been proactive where family violence is concerned. The issues have not been addressed by our legal system, leaving a void which has yet to be filled by suitable legislation. Within our family law framework, there is a large gaping hole that needs to be covered by suitable laws. This is exactly where the need for a law providing protection to women and children from domestic violence within the existing legal framework arises.294 The Domestic Violence Act, 2005 makes an intervention in the family or domestic set-up, which is traditionally understood to be immune from state intervention. Our legal system has always made a clear distinction between the public and the private sphere with the family as 'private' and outside the purview of the state. This false divide that pervades the entire legal system ignores the reality that the 'family' or 'marriage' is based on notions of systematic inequality, and a large number of crimes are committed upon women within the privacy of the home. The Domestic Violence Act, is a big step forward in shattering this discriminatory public or private divide.
4.4 Statutory Laws concerning ‘Cruelty’ as a matrimonial wrong
Personal Laws are set of laws which govern and regulate relations arising out of certain factors connecting two persons or more than two persons. ‘Personal laws’ as laws governing or regulating ‘marriage’, ‘maintenance’, ‘succession’, and other family relations and subjects. Personal law, is a distinct set of laws that reflect different religious laws, customs and traditions of the community to which the law in question applies. In a larger perspective Personal Law relates to family matters. These laws may be codified or un-codified and govern all family relationships such as marriage, divorce, maintenance, guardianship, adoption, custody of children, inheritance and succession. Till today, marriage is regulated by customs and traditions to a large extent.
In India different religions like Hindus, Muslims, Christians and Parsis are governed by their personal law as Hindu law (enactments of 1955-56), Muslim law (Muslim personal laws (Shariat) Application Act, 1937), Christian law, Parsi law (Parsi Marriage and Divorce Act 1936), respectively. Every religion follows their personal laws in the family matters pertaining to marriage and divorce, maintenance and adoption, minority and guardianship, succession and inheritance etc. The Hindu Marriage Act, 1955 is an Act to amend and codify the law relating to marriage among Hindus. Besides this, the Special Marriage Act, 1954 is an Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. The Dissolution of Muslim Marriage Act, 1939 govern the laws for the Muslims, and the ‘Parsi Marriage and Divorce Act, 1936’ for the Parsis and Indian Divorce Act, 1869 for dissolution of marriage of the Christians.
4.4.1 ‘Cruelty’ as a ground for divorce under Hindu Marriage Act, 1955
It is for the first time, the Hindu personal law has been codified in the form of Hindu Marriage Act, 1955 (in short ‘the HMA’) and it is applicable to Hindus, Buddhists, Jains or Sikhs, any person who is born to Hindu parents and any person who is not governed by any other law. The HMA has made elaborate provisions as to the conditions for a Hindu marriage, ceremonies of registration, legitimacy of children, nullity of marriage and divorce. The HMA has introduced radical and progressive changes which go a long way in rendering gender justice. They also provide certain special rights and privileges to Hindu woman apart from conferring equal rights on par with the Hindu men. Section 13 of the HMA provides several grounds for obtaining the divorce presented by either party to the marriage whether solemnised before or after the commencement of the Hindu Marriage Act. It has introduced the concept of divorce under certain circumstances viz., adultery, conversion into other religion, insanity, virulent or incurable form of leprosy, venereal disease, and renunciation of world, presumed death of husband, who has not been heard of as being alive for a period of seven years or more. It may be noted that, these grounds are available to the husband as well as wife. This resolve under ‘ Fault or Guilt theory of divorce ’ which is based on the hypothesis that one party is guilty of matrimonial offence and the other is innocent.
Prior to the Amendment Act, 1976 ‘Cruelty’ was not a ground for claiming divorce under the Hindu Marriage Act, 1955 and it was only a ground for claiming judicial separation.295 The Amendment made in 1976 of the Hindu Marriage Act, ‘Cruelty’ was made the ground of divorce by adding Section 13 (1) (ia) to the said Act which provides for the dissolution of the marriage in cases where the other party has after the solemnization of the marriage treated the petitioner with cruelty.
The change of law brought by the Marriage Laws (Amendment) Act, 1976 deserves notice. Now, the definition has been changed and is worded thus: ‘ the respondent has after the soleminisation of marriage treated the petitioner with cruelty’. Thus , the term ‘Cruelty’ was defined in terms of its result on the petitioner i.e. it would be injurious or harmful to the petitioner to continue to live with the respondent. The petitioner needs only to establish that the respondent treated him with cruelty. He need not show that cruelty must be such as to cause reasonable apprehension that it would be harmful or injurious to him. Now, the only requirement was that the conduct complained of should have been ‘grave and weighty’ or ‘grave and substantial’ to warrant the description of being cruel. Cruelty should be of the type which will satisfy the conscience of the Court that the relationship between the parties has deteriorated to such an extent that it has become impossible for them to live together without any mental agony.
The scope and definition of these provisions have been defined and redefined by various judicial pronouncements. For instance, the concept of cruelty has explained over the years from being merely physical cruelty by a spouse to mental cruelty. The Courts would take into account the whole matrimonial relationship particularly when cruelty consists of not violent acts but of injurious reproaches, complaints, accusations or taunts. Thus, any conduct of one spouse which causes disgrace to the other or subjects him/her to a course of annoyance and indignity will amount to cruelty; the harm apprehended may be mental suffering as distinct from bodily harm, for pain of mind may be even severer than bodily pain and spouse disposed to evil may create more misery in a sensitive and affectionate spouse by a course of conduct addressed only to the mind than in fits of anger, when he/she was to inflict occasional blow upon her person.
While defining the scope and intensity of cruelty, the Court also has in many instances taken into account the educational and social status of the women. In successive judgments wherein it has been held that a party cannot take advantage of its own conduct and where it is found that either party to a marriage conducted itself in a manner resulting in marital misconduct by the other party such party was not entitled to any relief. This reflects social and legal acceptance of the fact that marriage is not eternal and individual happiness of the spouses out weights the social significance of continuing a marriage.
What is cruel treatment must to a large extent be a question of fact or a mixed question of law and fact to be determined within the ambit of the rule and the accepted criterion. No dogmatic answer can be expected to the variety of problems, which must continue to arise before the Court in this sort of cases and the law has no-foot rule by which to measure the nature and degree of cruel treatment which may satisfy the test of apprehended harm or injury. The conduct alleged must be judged up to a point by reference to the victim’s capacity or incapacity for endurance in so far as that ought to be known to the offending spouse. It is said that, physique impermanent, standard of living and culture of the spouse and the interaction between them in their life and all other relevant circumstances must have a bearing on the question whether the acts or conduct complained of amount to the matrimonial offences which entitles a spouse to relief under clause (ia) of Sub-Section (1) of Section 13 of the Hindu Marriage Act. Moreover, cruelty within the meaning of Section 13 is not confined to physical violence. It includes matrimonial torture caused by one spouse to the other.
In Dr. N.G. Dastane vs. S. Dastane 296 the marriage took place in 1956. The husband filed the petition for judicial separation on the ground of cruelty. The allegation was that the wife was threatening to put an end to her own life or to set fire to the house, and she will make him lose his job and have the matter published in news-papers. It was held that ‘the persistent abuses and insults hurled at the instance of husband would clearly amount to cruelty’.
The Bombay High Court framed ‘five tests’ essential in determining whether a given conduct amounts to legal cruelty. They are the following:
(i) the alleged acts constituting cruelty should be proved according to the law of evidence,
(ii) there should be an apprehension in the petitioner’s mind of real injury or harm from such conduct,
(iii) the apprehension should be reasonable having regard to the socio-economic and psycho-physical condition of the parties,
(iv) the petitioner should not have taken advantage of his position, and
(v) The petitioner should not by his or her conduct have condoned the acts of cruelty.
It is said that the view was taken by the Bombay High Court that ‘Cruelty’ under unamended/old Section 10 (1) (b) meant legal cruelty as understood in English law, i.e., injury causing danger to life or limb or health or reasonable apprehension of such injury.
Reversing the view of the Bombay High Court on this point, the Supreme Court felt that the English decisions on ‘Cruelty’ may not always be a safe guide. They require ‘ danger to life, limb or health’ but Section 10 (1) (b) laid down a lower requirement namely, ‘reasonable apprehension’ that it is harmful or injurious for one spouse to live with the other. The requirement is satisfied in this case. In this case, the parties continued to cohabit and three children were born. The Supreme Court held that this conduct amounts to ‘condonation of cruelty’ (or any other matrimonial offence). But ‘condonation’ is only conditional forgiveness, the implied condition being that no further matrimonial offence may be committed; but in this case there was no such conduct meriting revival of the original matrimonial offence. In the result, the Supreme Court dismissed the petition.297
The Supreme Court laid down the following general prepositions, -
(1) The fact that the parties are Hindus does not lead to any special assumptions, e.g., that the wife is the oppressed party. The evidence ought to bear a secular examination.
(2) A matrimonial offence need not be proved beyond reasonable doubt (as offences are required to be proved in criminal law). The decision can be based on a preponderance of probabilities. Section 10 (1) (b) of the Hindu Marriage Act, requires only the standard of proof which is required in other civil cases.
The Supreme Court toned down the concept of ‘Cruelty’ to mean ‘ reasonable apprehension that it will be harmful or injurious for the spouse to live with other ’. This is a less stringent requirement than the English law concept. This was what was envisaged in old Section 10 (1) (b).
It was argued before the Full Bench of the Bombay High Court that the effect of 1976 Amendment is to supersede the Supreme Court decision in Dr. N.G. Dastane v. S. Dastane 298 and equate cruelty with the English law concept as laid down in Dastane case 299 . This argument was rejected. The old concept of ‘cruelty’ as endangering life, limb, or health has now been abandoned even in English law300. No doubt the legislative standard of cruelty embodied in old Section 10 (1) (b) has now been omitted. The Court observed that the decisions rendered by the High Courts and the Supreme Court including that of Dastane case 301 are no longer good law after the amending Act of 1976. It further said that “Cruelty as a ground for divorce under Section 13 (1) (ia) of the Hindu Marriage Act, 1955 is conduct of such type that the petitioner cannot reasonably be expected to live with the respondent’. Now the act or omission or commission or conduct which constitutes cruelty need not cause any sort of apprehension in the mind of the petitioner. Some of the cases decided under the original Act laid emphasis on the reasonable apprehension aspect of cruelty, without considering the nature of act, omission or conduct.
In our submission, now act, omission or conduct constituting cruelty would of significance in considering that cruelty has resulted from such act, omission, or conduct. Obviously the effect of such acts, and conducts on the health, mental or physical, or otherwise in still important and determining factor.
In Ashwini Kumar Sehgal v. Swatanter Sehgal 302 the Court observed: “Cruelty in such cases has to be the type which should satisfy the conscience of the Courts to believe that the relations between the parties had deteriorated to such an extent due to the conduct of one of the spouses that it has become impossible for them to live together without mental agony, torture or distress”.
A Full Bench of the Bombay High Court in Dr. Keshaorao Krishnaji Londhe v. Nisha Londhe 303 has approved this passage. The nature of ‘cruelty’ in matrimonial law has been clarified in this case.
• S.13, HMA not identical to that of S.498A, IPC
The concept of cruelty for the purpose of divorce under Section 13 of the HMA, 1955 which is not identical to that concept as an offence under Section 498A, IPC; a demand for dowry by itself amounts to cruelty entitling the wife to get a decree for dissolution of marriage, it may be unintentional to, harassment is also necessary which is essential under Section 498A, IPC.
• The Fountain of Love and Affection Test
Section 23 (2) of the Hindu Marriage Act, 1955 casts a duty on the Court to decide whether the fountain of love and affection between the parties has been dried up or not. If the Court does not feel so, then the Court cannot grant the petition304. However, it is difficult to know the same. By this way, it can be said that the word “cruelty” under the Hindu Marriage Act, 1955, has been a difficult task.
The notion of ‘Cruelty’ as a ground of divorce has gone through substantial expansion over the last four decades. In contemporary legal discourse, a wide range of issues of matrimonial conflicts can be brought within its purview. This has led to cruelty being the most widely used ground of matrimonial misconduct. Prior to the Amendment Act, 1976 “Cruelty” was defined within the narrow confines of conduct which would be harmful or injurious to the petitioner. This Act attempts to trace the changing notion of cruelty in judicial discourse.
The term ‘mental cruelty’ was expanded further by several judicial pronouncements. In order to obtain a decree of divorce, the allegations have to be grave and weighty, and the petitioner should be able to prove them.
4.4.2 Dissolution of Marriage under Muslim Personal Law
Broadly the Muslims are divided into two classes: Shias and Sunnis. Dr. Nishi Purohit says ‘marriage among Muslims is not a sacrament but purely a civil contract.’305 The Mohammedan marriage (Nikah) is a civil contract made between two persons of opposite sexes with the object of legislating sexual intercourse, the procreation and legitimization of children, and preservation of the human race. The marriage confers the status of wife and husband on the parties to the marriage.
Islam considers marriage as one of the most virtuous and approved institution. According to the Holy Quran marriage is a contract between two sane consenting persons. The Quran accords a special solemnity and status to this contract. However, it grants complete freedom to the parties to settle their own terms including restricting each other from such actions which Islam permits but does not make obligatory including the freedom of a man to contract a second marriage. The unique feature of Muslim Personal Law is that consent is a prerequisite for marriage. The marriage of a girl without her consent is invalid and is voidable at her instance.
The Shariat prescribes the rules to regulate the functioning of the family so that both the spouses can live together in love, security and tranquility. Marriage in Islam has aspects of both “ibadah” (worship) of Allah and ‘mu’amalah (transactions between human beings).
The union of marriage is never meant to be broken under any personal law. Firm union of a husband and wife is a necessary condition for a happy family life. Islam, therefore, insists upon the subsistence of a marriage and prescribes that breach of the marriage contract should be avoided. Initially, no marriage is contracted to be dissolved in future, but in unfortunate cases, the dissolution takes place, and the matrimonial contract is broken.
Before passing of the Dissolution of Muslim Marriage Act, a Muslim woman could apply for dissolution of marriage on three grounds: i) impotency of the husband; ii) lian (false charge of adultery), iii) repudiation of marriage by the wife. But under the Shafii and Maliki laws, a wife was entitled to get a decree from the court for dissolution of her marriage on the grounds of husband’s failure to maintain her, desertion, cruelty etc. Therefore there were conflicting provisions in the various Schools of Muslim law in respect of divorce by a wife through judicial intervention.306 The Dissolution of Muslim Marriages Act, 1939 made revolutionary changes in the existing law and provided six more grounds on which the wife may apply to the court for the dissolution of marriage. Thus, under the Act, 9 grounds have been provided under which a Muslim wife may obtain a decree for dissolution of her marriage.
Before 1939, the classical Hanafi law of divorce was causing hardships as it consisted no provision whereby a Hanafi wife could seek divorce on such grounds as disappearance of the husband, his long imprisonment, his neglect of matrimonial obligations, etc., finding no other way to get rid of undesired marital bonds, many Muslim women felt compelled by their circumstances to renounce their faith. Before 1939, the court, following the Hanafi interpretation of the law, had denied to Muslim women, the rights of dissolution available to them under the Shariat.
After a great deal of public agitation, Qazi Muhammad Ahmad Kazmi introduced a bill in the central legislature on 17th April 1936. Ultimately, the bill was passed by the Assembly with suitable modifications and became law on 17th March 1939, and ever since, it has been hailed as one of the most progressive enactments passed by the legislature within recent years. It achieved two objects: it restored to Muslim wives, an important right accorded to them by the Shariat, and it treated all Muslims alike.307
Section 2 of the Dissolution of Muslim Marriage Act lays down the grounds on which a Muslim wife may seek a divorce. Such grounds take in cruelty and desertion as independent grounds among several other grounds. The object and reasons for the enactment of the Act of 1939, is: there is no proviso in the Hanna Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India.308
Under the Muslim law, the dissolution of marriage takes place in two ways. The dissolution may be effect as per ‘the Dissolution of Muslim Marriage Act, 1939’ or through an act of repudiation known as ‘ talaq’ by the husband in exercise of his power, conferred on him. Even the dissolution of marriage can take place by mutual consent of husband and wife known as ‘ Khula ’ or ‘ Khul or Mubaraat ’. Muslim law does not recognise nullity of marriage, judicial separation and restitution of conjugal rights as forms of matrimonial reliefs except divorce.
Under Muslim law we witness two types of divorce i.e., non-judicial divorce and judicial divorce.
1. Non-judicial divorce, and
2. Judicial divorce (Faskh)
Muslim law provides for dissolution of marriage without the intervention of the Court and judicial process. Here, the husband has privilege of imposing unilateral divorce on his wife by virtue of sweeping powers conferred on him. Thus, by ‘using his uncontrolled option’ the husband puts an end to the marriage, by making a declaration to that effect in appropriate words which is called ‘talaq’ usually translated to mean repudiation, divorce.
The exercise of the right of pronouncing unilateral divorce on the wife by the husband, arbitrarily without any cause, at any time during the subsistence of a valid marriage including the period of iddat, is known as ‘ talaq ’. As per the Quran men pronouncing talaq may follow the model code of conduct. A man may pronounce talaq three times at the gap of three menstrual cycles; this is the preferable form of talaq and is known as talaq - e - sunnat. A man may also pronounce talaq three times in one sitting. However this is denounced and such conduct is known as improper form of talaq.
Simultaneously, a Muslim women have a parallel right of divorce by Khula, in which she is entitled to dissolution of marriage at her instance without the consent of her husband. The only difference between Khula and talaq is that a woman seeking Khula may at the instance of her husband forsake her right to Mahr (dower). The word ‘ Khul ’ literally means ‘to put off’. In this case it means ‘laying down by a husband of his right and authority over his wife for an exchange’. In other words, a divorce by ‘ Khula ’ is a kind of divorce initiated by the wife where the wife is required to give some consideration to the husband in order to get his consent. Thus when a woman wants to get rid of his husband she can get herself divorced from her husband by paying something to him. In other words the wife purchases the divorce from the husband.
• Cruelty as a Matrimonial offence under Muslim Personal Law
Instances of cruelty given in the provision of the Dissolution of Muslim Marriage Act 1939, include habitually assaulting the wife, making her life miserable by physical ill-treatment or by a conduct short of that, associating with woman of evil repute or leading an infamous life or preventing her from exercising her rights therein, obstructing her in the observance of her religious profession or practice and in case of bigamy treating her inequitably contrary to the Koranic injunction.
In Islamic law, the concept of cruelty (zirar) is not limited. The cruelty provision is to be interpreted in the light of the Prophet’s exhortations that women are as tender as glasses (qawarir) and he is the best man who is kind to his wife. It is worth mentioned here that under Muslim law cruel nature is a disqualification for eligibility to marry.
Haram (absolutely prohibited) for a man who is sure due to his temperament that he will be guilty of cruelty and excesses towards would be wife. If he is not sure but has a reasonable apprehension of meting out of cruelty to her, getting married is makruh-e-tahrini (to be essentially avoided).309
The concept - ‘Cruelty’ constitutes a pompous ground for dissolution of marriage under Muslim Personal law. Muslim Personal Law unlike other Personal Laws always recognised the right to divorce unilaterally by either party, consensually by both the parties and by operation of the guilt theory. The divorce can also be obtained at the instance of the wife by judicial decree from the court under the Dissolution of Muslim Marriage Act, 1939. The whole of the Muslim Law in India has been codified in three statutes viz., the Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriage Act, 1939 and the Muslim Women (Protection of Rights on Divorce) Act, 1986. Among them the Dissolution of Muslim Marriage Act, 1939 may be considered as a landmark in respect of matrimonial relief to a Muslim wife.
The Dissolution of Muslim Marriage Act, 1939 is an Act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under Muslim law. An interesting feature of the Act, 1939 is that it is only Act of personal law in which ‘Cruelty’ is recognised as a marital offence, though not defined, but given six specific illustrations of cruelty.
A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the grounds of cruelty mentioned in Clause (viii) of Section 2 of the Dissolution of Muslim Marriage Act, 1939.
The grounds are as under:
That the husband treats her with cruelty, that is to say ...
(a) Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment, or
(b) Associates with women of evil repute or leads an immoral life, or
(c) Attempts to force her to lead immoral life, or
(d) disposes of her property or prevents her exercising her legal right over it, or
(e) Obstructs her in observance of her religious profession or practice, or
(f) If he has more wives than one, does not treat her equitably in accordance with the injunction of the Quran.
The first case is that ‘if the husband assaults his wife habitually or makes her life miserable by his conduct even if such conduct does not amount to physical ill-treatment, it is a cruelty. It should be noticed that the words ‘habitually assaults the wife’ means that, ‘a single act of assault will not amount to cruelty.’ Section 2(viii) (a) of the Dissolution of Muslim Marriage Act 1939 uses the words by cruel conduct even if such conduct does not amount to physical ill-treatment. The language used in this clause would cover all types of misconduct or misbehaviour, serious and not very serious on the part of the husband, and thus, goes much beyond the legal cruelty as the term is understood under English Law and the Indian matrimonial statutes.310 In Abdul Aziz v. Bashiran Bibi 311, a Pakistan case, it was held that a course of conduct pursued by the husband calculated to break spirit of the wife by physical or moral force which was systemically exerted on her to such a degree and to such a length of time resulting in undermining her health, it will amount to cruelty.
The following have been held to constitute cruelty.
a. where wife is turned out of the matrimonial home, or where the breach between the marital relationship is irreparable or where parties have been on bad terms for a considerable time or where the husband sued the wife in a criminal court on a false charge, it would amount to cruelty.312
b. Where the wife is coerced to live separately from the matrimonial home on account of misconduct of the husband and she is allowed to come back only on humiliating 38 terms.313
c. Where husband did not fetch back wife who had gone to her parent’s home with is consent and refuses to pay maintenance.314
d. Harsh and irritating conduct of the husband whether by use of foul language or conduct, habitual use of filthy and abusive and insulting language.315
e. Imputation of immorality and then prosecuting her under section 498A, IPC.316 Wife’s dislike or desertion of the husband317 and incompatibility of temperament318, have been held not to amount to cruelty.
In Saba Siddiqui v. Amina Siddiqui [319] it was established that, husband had administered his wife with some drug causing miscarriage. He also physically tortured her. The court held that, it amounts to cruelty.
Regarding cruelty of conduct the general test should apply, since the conduct that is cruel for one woman cannot be civilized enough for another just because of the religion of the parties. The point lies in the statutory words ‘makes her life miserable’ and the social status and standard of self-respect of the wife should be decisive to ascertain if the man’s conduct amounts to cruelty. A simple allegation of the wife, unsupported by independent testimony, is not sufficient in law to establish any charges mentioned in the law. In Begum Subanu v. A.M. Abdul Gafoor [320] the Supreme Court held that, sharing the matrimonial bed with the second wife of the husband constituted ‘matrimonial injury’ affording her, a ground to live separately from the husband.
The second case, ‘if the husband leads an infamous life with an association of a woman of evil repute’ is an obvious case and constitutes cruelty in all jurisdictions. Section 2 (viii) (b) of the Act of 1939 confers on a Muslim wife, a judicial divorce, if her husband associates with woman of evil repute or leads an infamous life. It appears that, if the husband associates with a woman of evil repute, the clause will not apply. Association should be with women (more than one). This is something like living in adultery, and that too, not with ordinary women; it should be with prostitutes. One or two lapses from virtue will not be enough.321 The bringing of a second wife or keeping a mistress will definitely adversely affect on the mind of the wife and it amounts to cruelty. In such cases, the wife can refuse to live along with her husband.322
The Allahabad High Court in Itwari v. Smt. Asghani 323 observed that a Muslim has the legal right to take a second wife even during the subsistence of the first marriage, but if he does so, and then seeks the assistance of the Civil Court to compel the first wife live with him against her wishes on pain of severe penalties including attachment of properties, she is entitled to ask whether the court, as a court of equity, ought to compel her to submit to co-habitation with such a husband. In that case the circumstances in which his second marriage took place are relevant and material in deciding whether his conduct in taking a second wife was in itself an act of cruelty to the first.
The onus in these days would be on the husband who takes a second wife to explain his action and prove that his taking a second wife involved no insult or cruelty to the first. For example, he may refute the presumption of cruelty by proving that his second marriage solemnized at the suggestion of the first wife or in order to gain some financial benefit ( may be through contract) the first wife may indulge or insist her husband or reveal some other relevant circumstances will prove cruelty. But in the absence of a strong and proper explanation the Court will presume, under modern prevailing systems, that the action of the husband in taking a second wife involved cruelty to the first and that it would be inequitable for the Court to compel her against her wishes to live with such a husband under the altered circumstances and share his consortium with another woman.
It will amount to cruelty if the husband disposes of his wife’s property or prevents her from exercising her legal rights over it. In one occasion324 the view expressed by Abdul Rahman J., that, ‘it is not always easy to determine for what purpose; husband sells or assigns his wife’s property of any value’. Property may be used for the treatment of wife, for the benefit of the family members, for the education of children, for the maintenance of any other liabilities. If the property disposed of not for the selfish ends of the husband, not with the object of meeting a pressing needs but more in the sense of waste and this done to deprive the wife of her properly and without the consent of wife then it shall constitute the offence of cruelty.
There is a large volume of case laws on cruelty in India and abroad. Since human nature and conduct are infinitely diverse. No hard and fast rules can be laid down as to what acts or conducts will amount to cruelty in any given case. However, there is a sea change in the attitudes of the courts. There is no difficulty in holding when physical violence amounts to cruelty. However deciding some clear cases, questions do arise in the sphere of mental cruelty or not. The reason is that mental cruelty may be of any kind or of infinite variety, new concept of mental cruelty may reveal. It may be subtle or brutal. It may be by words, gestures or even by mere silence.
In deciding whether or not a particular state of affairs amount to legal cruelty, the court has to consider the social status, the environment, the education, the mental and physical conditions and the susceptibilities of the innocent spouse and also the custom and manners of the parties. Whether acts or conduct complained of, constitutes cruelty has to be construed in reference to the whole conjugal relationship.
The third case ‘if the husband attempts to force her to lead an immoral life obvious case and constitute cruelty in all jurisdictions’. Mere attempt of the husband to force his wife lead an immoral life is sufficient to ask the court for the dissolution of her marriage. It would be a great mental torture for a chaste and pious wife if she is compelled by her husband to live in corruption and immorality against her wishes. Where a husband compels his wife to lead an immoral life, his conduct is obviously a mental cruelty against his wife.325
The fourth case, ‘if the husband disposes of her property or prevents her from exercising her legal rights over it’ which hurts her sentiments or causes emotional or mental strain on her, it is a cruelty. In other words, under Muslim law, a wife continues to maintain her separate legal entity. The property in the name of the wife is separate from the property of her husband. The husband has no right to dispose of his wife’s property. In case, the husband has disposed of his wife’s property, the wife acquires a right to ask the court for the dissolution of her marriage under the Act of 1939.326 In Umat ul Hafiz v. Tabib Husain [327] it was held that, the disposal of the property must be for getting rid of that property not for the benefit of the wife, but with the object or intention of preventing the wife from exercising her rights in the property for the selfish aims of the husband himself. The disposal of the wife’s property does not become lawful even if it is necessary for a pressing need of the husband. The disposal must be without her consent. She would also be entitled to dissolution of her marriage if she was prevented from exercising her legal rights over the property.328 But in Zubaidaa v. Sardar Shah 329 Abdul Rahman, J. said that the disposal of property should be without consent (it is obvious) of a substantial portion of property for his own selfish ends and not for her benefit, in a wasteful manner, and with the intention of depriving the wife of the property, disposed of. The court opined that this narrows down the scope of the clause and is not a correct formulation. In Badrunnisa v. Md. Yusuf 330 the wife left goods at husband’s house and did neither took them back nor asked her husband for their return. This did not amount to deprivation of property.
The fifth case ‘if the husband obstructs her in the observance of her religious profession or practice, it is a cruelty’. The special feature of the fifth clause is that it will apply ‘even where wife is a non-Muslim.’ Islam guarantees the personal faith of the ladies. They are allowed to observe religious practice or profession according to their faith. Under the Act of 1939, a wife can approach the court for her dissolution of marriage if her husband obstructs her in the observance of her religious duties.[56] But under this clause, the husband’s restrictions on wife’s religious practice must be of such a nature, which affects the fundamental religious belief of the wife. This clause came for interpretation before the Kerala High Court in Abu baker Haji v. Manu Koya [57] and the facts in brief is that the husband used to compel his wife to put on a Sari and see pictures in cinema halls. The wife refused to do so because according to her beliefs, this was against the Islamic way of life. She sought a divorce under Section 2 (viii) (e) of the Act, saying that since the husband compels her to do something which is against her religious profession and practice, it is mental cruelty by the husband. The Kerala High Court held that, the conduct of the husband cannot be regarded as cruelty because; mere departure from standards of suffocating orthodoxy does not constitute un-Islamic behaviour. In the words of Krishna Iyer, J. ‘ it will be cruel to the concept of cruelty and outraging the modesty of the statute to case the net of guilt so wide as to catch within it such pleasurable pleasures as persuasion to see a cinema or don a dainty saree on her young figure’.[58]
The last case of cruelty is typical Islamic situation arising out of recognition of polygamy by Muslim Law and the Quranic injunction to treat all wives equitably. A Muslim is permitted to marry four wives provided he is able to treat them equitably. If he is apprehensive that, he will not be able to do justice between them, he is enjoined to marry one wife only. In other words, if a man cannot treat his two wives with perfect equality, he is enjoined to marry only one wife.[59] If a husband having two wives, favours one and ignores the other, the wife so ignored may sue for divorce on the ground of mental cruelty.
In an early case, where one of the two wives left the matrimonial home on account of ill- treatment of the husband and the husband did not make any effort to bring her back. The Court held it was inequitable. However, the Court observed that only very gross failure to render to the wife her just right could be covered under this clause.331 It is submitted that this is not a correct view and not in accordance with the modern thought and contemporary social conditions. The Quran enjoins that a man should take more than one wife only when he can treat them all equitably otherwise; he should be satisfied with one. Thus, it is submitted if the husband fails to treat his wife equitably then any one of them may sue for divorce under this clause. It is immaterial that his inequitable treatment is gross or mild.
In case of inequitable treatment between the co-wives which amounts to cruelty, the courts earlier are providing maintenance to one wife only and ill-treatment forcing co-wife to leave the husband as instances of unequal treatment. In Umat-ul-Hafiz v. Talib Hussein 332 a husband went abroad leaving behind two wives; he made a provision for the maintenance of one wife but ignored the other. On the suit of ignored wife for divorce under this clause, the Court had no difficulty in granting decree of dissolution of marriage. But, if a wife leaves the husband just because he has married another wife, providing no opportunity to the husband to treat them equitably, it cannot be said that he did not treat her equitably.333
In Md. Abdul Zalil Ahmed v. Marina Begum 334 a wife filed an application for divorce on the ground of cruelty and non-performance of marital obligations by the husband. Thereafter both the husband and wife filed a joint application for divorce by mutual consent. It was held that: grounds for divorce under Section 2 of the Act, 1939 were already met out, so decree of divorce can be passed in terms of the compromise between the parties even in the absence of a provision of divorce by consent under the Act, more so when the husband has already married and the wife’s marriage was also fixed up.
In Aziz Hussain v. State of J&K 335 the husband had already pronounced talaq to his wife and thereafter she ceased to be the wife of the accused/husband. Hence, it was held that the FIR in question alleging offence under Section 498A, IPC was liable to be quashed. In the case of Syed
Hyder Hussain v. State of Andhra Pradesh [65] the parties were covered by Shia Laws and the husband divorced his wife by pronouncing talaq and the same was communicated to the wife. It was held that the husband could not be convicted under Section 498A, IPC. In Gul Mohammed v. Emperor [66] it was held that the conversion of a Hindu wife to Islam did not ipso facto dissolve the marriage with her Hindu husband. She could not, during her life time, enter into a valid contract of marriage with another person.
There are many other instances for payment of money or giving property as between the spouses. For example, some customary payments in connection with birth of child or other ceremonies are prevalent in different societies. Such payments are not enveloped within the ambit of dowry. Thus, ‘ every demand of money will not constitute dowry demand.’ In the case of Aftab Alam Hamid Ansari v. State of Maharashtra [67] what the husband wanted was some money required to set him up a business, which had nothing to do with dowry. Hence, the conviction of the husband under Sections 302, 304B and 498A, IPC was set-aside. There was no other evidence for conviction for such offences.
In Parakkattil Abu v. Pachiyath Beekkutty [68] the wife filed a suit for dissolution of marriage on the ground of cruelty and inequitable treatment. She complains about the conduct of her husband remarrying after 25 years of matrimonial life with 2 children born in the wedlock. Such re-marriage was without the consent or approval of the wife. She felt that she was being treated inequitably after the second marriage of the husband. The court held that wife’s assertion regarding inequitable treatment only matters in such cases. Non-repetition of details of specific allegations of matrimonial cruelty in affidavit sworn by her before court does not make it defective and unacceptable and it confirmed the order of dissolution of marriage passed by lower court.
• Irretrievable Breakdown of marriage as a ground for divorce under Muslim Law
Divorce on the basis of irretrievable breakdown of marriage has come into existence in Muslim Law through the judicial interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din [69] it was argued that the wife hated her husband so much that she could not possibly live with him and there was total incompatibility of temperaments. On these grounds the court refused to grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux [70] again an attempt was made to grant divorce on the ground of irretrievable breakdown of marriage. This time the court granted the divorce. Thus, in Muslim law of modern India, there are two breakdown grounds for divorce: (a) nonpayment of maintenance by the husband even if the failure has resulted due to the conduct of the wife, (b) where there is total irreconcilability between the spouses.
In Abu Baker Haji v. Manu Koya [71] Justice Krishna Iyer said: ‘trivial differences get dissolved in course of time and may be treated as teething troubles of early matrimonial adjustment. The stream of life lived in married mutuality washes away smaller pebbles, but that is not the case when the incompatibility of minds breaks up the flow of stream. In such cases breakdown of marriage is evident. So we recognize fact and accord divorce.’
4.4.3 Christian Laws on Marriage and its dissolution
A Christian marriage is treated as a contract, and can be made and also dissolved by mere offer and acceptance. Christians all over India have a uniform law for marriage and divorce. As the Christians do not have a personal law, the law of marriage with special exceptions is codified in two central laws i.e. the Indian Christian Marriage Act, 1872 and the Divorce Act, 1869.
The Indian Christian Marriage Act was enacted to consolidate and amend the law relating to the solemnisation of the marriages of persons professing Christian religion in India. This Act lays down various provisions dealing with the persons by whom marriages may be solemnised, time and place at which marriages may be solemnised, registration of marriages and the grant of marriage certificates etc.
The Indian Christian Marriage Act does not contain the provisions for the matrimonial reliefs. For this purpose a separate Act i.e., ‘the Indian Divorce Act, was enacted. The Indian Divorce Act regulates the law relating to the divorce of persons professing the Christian religion and to confer upon certain court’s jurisdiction in matrimonial matters including dissolution of marriage, alimony, custody of children and related issues. The Indian Divorce Act imposed a condition that both the petitioner and the respondent should be Christians to avail the provisions of the Act. This condition was omitted by the Indian Divorce (Second Amendment), 1927, and now the Act of 1869 applies, if one of the parties to the marriage may be a Christian.
In 1937, the Government of India (Adaptation of Indian Laws) Orders, 1937 added desertion, insanity and cruelty as grounds for divorce. The Divorce Act, again amended in the year 2001 (51 of 2001), which specifically meant for the ‘dissolution of Christian marriage’. Under the Act, a decree of judicial separation as provided in Section 22 may be obtained on the ground of adultery or cruelty or desertion for two years or upwards. By this amendment ‘ Cruelty, adultery and desertion’ have also been made into independent grounds of divorce’.
• Cruelty as a ground for divorce Under Christian Laws
Section 10 the Divorce Act gives various grounds on which a husband or wife may file a petition for dissolution of marriage. A new provision i.e. Section 10 is substituted by the Indian Divorce (Amendment) Act, 2001 for the old provision, which had created dissensions. Section 10 (1) (x)336 provides that ‘an aggrieved may file a petition presented to the District Court praying that his/her marriage may be dissolved on the ground that the respondent has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.’ However, Section 10 (2) provides that ‘a’ wife may also present a petition for the dissolution of her marriage on the ground that the husband has, also since the solemnisation of marriage, been guilty of rape, sodomy or bestiality.337
While the earlier position mainly dealt with various forms of adultery338 as the grounds for dissolution of marriage, the amended provision to a large extent has come closer to the Hindu Marriage Act. The grounds of divorce are expanded on the similar lines as that of Hindu Marriage Act and the Special Marriage Act. Same grounds of divorce are recognised for husband and wife. Adultery, conversion, unsound mind, virulent and incurable leprosy, suffering from venereal disease in a communicable form, not heard of for seven years, willful refusal to consummate the marriage, failure to comply with the decree of restitution of conjugal rights, desertion and cruelty are recognised as the grounds of divorce.
The Indian Divorce (Amendment) Act, 2001 has been omitted Section 3 (6) and (7) which explains the terms ‘incestuous adultery’ and ‘bigamy with adultery’ as these expression do not occur in the amended Act in the changed Section 10.
Despite the amendments, the Divorce Act, 1869 continued to be the substantive law for Christians in the country.
• Discrimination between grounds available to wife and husband in the Act
As regards persons governed by the Divorce Act, law has adopted a double standard with respect to matrimonial infidelity. Amongst the several discriminatory provisions of their personal laws, the narrow and constrained ground of divorce has caused the greatest hardships to Christian women. Cruelty and desertion do not constitute independent grounds of divorce . Under Section 10 of the Divorce Act, the husband’s ground of divorce is also constrained but he can obtain a divorce on the ground of adultery simpliciter, whereas the wife has to prove additional ground either of cruelty or desertion . Since adultery is extremely difficult to prove and not all husband’s who treat their wives with cruelty or desert them also commit adultery, Christian women face great hardships and are discriminated against both vis-a-vis Christian men and vis-a-vis women governed by other matrimonial statutes. Though subsequently, cruelty to wives has become an offence under Section 498A, IPC such cruelty does not entail the Christian wife to a divorce.
According to Clause (1) of Section 10, any marriage solemnized, whether before or after the commencement of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent has committed adultery. But, Clause (2) gives additional right to the wife for dissolution of marriage on the grounds that the husband has since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. Both clauses collectively explain that, a Christian husband can get the divorce on proof of adultery of his wife.
But, in case of a Christian wife, proving of adultery is not sufficient. Besides proving adultery, she has to prove cruelty or desertion or bigamy. In simple, adultery on the part of the wife gives ground for divorce to the husband under Section 10 of the Divorce Act. However, adultery on the part of the husband coupled with bigamy, rape, bestiality, cruelty etc., alone will entitle the wife to seek divorce. Thus, the Divorce Act shows too much discrepancy between husband and wife. Such discrepancy is not shown in the Hindu Marriage Act. Comparing with Hindu law, the Christian law should be more advance. In fact, the ancient Hindu law does not know the divorce either by custom or sastras. The modern Hindu divorce law has been adopted from the English law, but developed still more. Now, under the provisions of the Hindu marriage Act ‘a Hindu wife has more rights pertaining to divorce than a Christian wife’. Even the Muslim (Protection of Rights on Divorce) Act, 1986 also gives the right to the Muslim wife to file a petition for divorce with the sole ground of ‘Cruelty’.
The Parliament should remove such anomalies and note the discrimination between husband and wife in a petition for divorce. There appears to be no reasonableness in such discrimination or any justification. If there is an increase in the offences against women, cruelty against husband is also on the rise. The Courts cannot do much about it because they have to follow the rules of law. It is for the Parliament or the State Governments to remove such discrimination339 as the subject matter fell under Entry 5 of the Concurrent List in the 7th Schedule of the Constitution.
• Section 10 of the Divorce Act held to be Sex discriminatory
Discriminatory aspects of the Divorce Act have been a matter of consideration before several judicial pronouncements. The discriminatory provision contained in Section 10 of the Divorce Act had been struck down by the High Courts of Bombay, Kerala and Andhra Pradesh. Directions were issued by Courts to the legislature to bring about suitable amendments to the discriminatory provisions in the Divorce Act. In Jessy Disslva vs. State 340 (1955), the petitioner challenged the constitutional validity of Section 10 of the Divorce Act, before Kerala High Court alleging that this Section showed discrimination between male and female, and denied to give equal rights Under the Constitution of India. The grounds for divorce as available to the wife and the husband under Section 10 of the Divorce Act are different and appear to be set discrimination. It was also argued that the provision does not survive the test of equality between the wife and husband, woman and man. The test of reasonableness is that both husband and wife should be provided with similar grounds of divorce, except that which is unique for either the wife or the husband. Some of the grounds of divorce are not available to the husband but made available to the wife. A husband can apply for dissolution of marriage only on the ground of adultery of wife, whereas the grounds of incestuous adultery, bigamy with adultery, marriage with another woman with adultery, rape, sodomy or bestiality, of adultery coupled with such cruelty as without adultery would have entitled her to a divorce a mensa et toro or of adultery, coupled with desertion, without reasonable excuse for two years or upwards. In the case of Solomon Devasahayam v. Chandrirah Mary, 341 it was held that the Divorce Act is wholly out of date. Under in this Act, it is enough for the husband to get a divorce from wife on the ground of adultery while it was not enough for the wife. It was suggested that the Divorce Act be brought in line with the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954.
In Swapna Ghosh vs. Sadananda Ghosh 342, it was argued that if the husband is entitled to dissolution on the ground of adultery simpliciter on the part of the wife, but the wife is not so entitled unless some other matrimonial fault is also found to be superadded, then it is difficult to understand as to why this provision should not be held to be discriminatory on the ground of sex alone. Christian spouses are not entitled to dissolution of marriage on the ground of cruelty or desertion, but are only entitled to judicial separation. Under the Special Marriage Act, 1954 however, Hindu, Buddhist, Sikh and Jain spouses under the Hindu Marriage Act, 1955; Zoroastrian spouses governed by the Parsi Marriage and Divorce Act, 1936: Muslim wives under dissolution of Muslim Marriage Act are entitled to dissolution of marriage under such grounds, apart from judicial separation. Here is discrimination glaring at large so far the Christian spouses are concerned.
In Mary Sonia Zachariah v. Union of India, 343 the Supreme Court pointed out to the Government that the 90th Report of Law Commission of India recommended for making amendments to Section 10 of the Divorce Act, which have been ignored by the Government. In the case of Pragati Varghese v. Cyril George Varghese, 344 the reasons to amend Section 10 of the Divorce Act were narrated and it was held that the provision of Section 10 is violative of Article 14 of the Constitution. Moreover, the provision was held to be violative of Article 15 as well as the discrimination was on the basis of sex alone. Since the position of Christian women has been rendered most demeaning as compared to Christian husbands, the provision was also held to be violative of Article 21 of the Constitution. However, instead of striking down the whole provision, which would have resulted in Christian women having no ground for divorce, the Court applied the doctrine of severability and struck down only the unconstitutional part. The Court further held that, any question of discrimination against the husband in such a position was held to be protected by Article 15(3) of the Constitution. Moreover, the Court declared that in case a challenge is raised by the husband at a later stage, the same will be considered and dealt with separately. The Court also held Sections 17 and 20 of the Divorce Act, procedurally unreasonable and arbitrary in nature as the same do not achieve any useful object or purpose.
In the case of Adedabi v. Sikandar Akbar Muzawar, 345 the need to introduce ‘mutual consent’ as a ground for divorce was emphasized. In Reynold Rajamani v. Union of India, 346 the Supreme Court also emphasized that divorce by mutual consent should be available to every married couple, whatever religion they may profess and however they are married. Mutual consent has been statutorily recognised for dissolution of marriage but not irretrievable breakdown of the marriage as yet. And also nothing could stimulate the legislature in bringing about the amendments in the divorce Act. For the sake of women amendments were carried out in the Indian Penal Code by introducing Section 498A armored with Sections 304B and 306, IPC and 113A and 113B in the Evidence Act and lastly the Domestic Violence Act, 2005. But, for the Christian wife ‘Cruelty’ is still, not a ground for divorce.
4.4.4 The Parsi Personal Law on Marriage and Divorce
A group of Zoroastrians came and settled down in India as a result of their religious persecution in their native land Persia (now Iran). The Parsi matrimonial law before its codification was based on the Hindu customs and English Common Law, conceding to the demand of the Parsi Community for the reform of their matrimonial law, the Parsi Marriage and Divorce Act, was passed in the year 1865. Since then, the circumstances have been greatly altered and to some extent there has also been a change in the sentiments of the Parsi community. Hence, a necessity for some change in the law has been felt for the years. On the basis of a report of the sub-committee ‘the Parsi Marriage and Divorce Act, 1936’ has been enacted and it came into force 22 June 1936. Now, ‘the law relating to solemnisation of marriage and the dissolution thereof among Parsis in India’ is governed by the Act of 1936. The Parsi Personal Law is one of the most comprehensive and modern laws. The Act prescribes certain special features including ‘marriage between Parsis’ ‘procedure for registration and certification of marriages’ ‘constitution of special courts’ ‘matrimonial suits’ and ‘custody of children’ etc.
The Act of 1936 was amended in 1988 by the Parsi Marriage and Divorce (Amended) Act, 1988 and in the year 2001 by the Marriage Laws (Amendment) Act, 2001 and in now almost at par with Hindu matrimonial law.
4.4.4.1 ‘Cruelty’ as a ground for divorce under Parsi Marriage Laws
Like the Hindu and Muslim Laws, the Parsi law also recognises ‘judicial separation’ ‘restitution of conjugal rights’ and ‘divorce’347 are important matrimonial reliefs. These reliefs granted when the consummation of marriage is impossible owing to natural causes. The law of divorce for the Parsis has been reformed by the Parsi Marriage and Divorce (Amended) Act, 1988 (Act 5 of 1988). The amended Act of 1988 has added one, ‘post-marriage unsoundness’ and second ‘cruelty’ are new grounds for divorce for persons belongs Parsi community.
Section 32 (b) of the Parsi Marriage and Divorce Act, 1936 seems to lay down that unsoundness of mind of the defendant at the time of marriage constitutes legal disability though the party suffering from it may have been healthy and normal before the date of the marriage. The Parsi Marriage and Divorce (Amendment) Act, 1988 is added Clause (bb) to Section 32 of the Act 1936 after clause (b). Now for divorce, the plaintiff is under obligation to prove that the defendant has been incurable of the unsound mind for a period of two years or upwards immediately preceding the filing of the suit or has been suffering continuously or intermittently from mental disorder of such kind and to such an extent that the plaintiff cannot reasonably be expected to live with the defendant.
The Parsi Marriage and Divorce (Amendment) Act, 1988 is added Clause (dd) to Section 32 of the Act 1936 after Clause (d). Clause (dd) of Section 32 lays down that the defendant has since the soleminisation of marriage treated the plaintiff with cruelty or has behaved in such a way as to render it in its judgment improper to compel the plaintiff to live with the defendant provided that in every suit for divorce on this ground it shall be in the discretion of the Court whether, it should grant a decree for divorce or for judicial separation only.
• Mental cruelty under Parsi Law
‘Grievous hurt’ is obviously an extreme case of physical cruelty. The fact of the matter is that the Parsi Marriage Divorce Act, 1936 does not use the expression ‘Cruelty’ but uses ‘Grievous hurt’ which have been defined in Section 2(4) of the Act.348 Thus, ‘Cruelty’ is defined purely in terms of physical violence under Section 32 (e) of the Parsi Marriage Divorce Act, 1936.
The new Clause (dd) of Section 32 of the Parsi Marriage and Divorce Act, 1936 brings the concept of cruelty is at par with that under the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954. But, the old Clause has been retained under Clause (e) of Section 32, it amounts to
cruelty, if the defendant has infected the petitioner with venerable disease or the defendant has compelled her to prostitution or has caused voluntarily grievous hurt to the petitioner.349
Under Section 34 of the Parsi Marriage Divorce Act, 1936 ‘Cruelty’ is a ground for judicial separation. Section 34 provides that ‘any married woman person may sue for judicial separation on any of the grounds specified for which such person could have filed a suit for divorce.’
The expression ‘Cruelty’ has not been defined in the Act, but there is no doubt that it means legal cruelty as it is understood in English Matrimonial Jurisprudence, ‘Cruelty’ may be physical or mental. It may as well be by the words, gestures or mere silence350.
Cruelty as a ground of matrimonial relief (judicial separation) has been defined as ‘act or conduct of such nature as to have caused danger to life, limb or health, bodily or mental’.
In this connection, the observation of the Delhi High Court in Rita Nijhawan v. Balkrishan Nijhawan 351 is pertinent to quoted on the issue of impotency of a spouse:
“ the law is well settled that if either of the parties to a marriage being of a healthy
physical capacity refuses to have sexual intercourse, the same would amount to cruelty entitling the other party to a decree. In our opinion it would not make a difference in law whether denial of intercourse is result of sexual weakness of the respondent disabling him from having a sexual union with the appellant, or it is because of any wilful refusal by the respondent”
The Supreme Court is of the view that cruelty must be such a nature as to cause danger to life, limb or health or as to give rise to reasonable apprehension of such danger352. Therefore, what the court must determine is not whether the petitioner has proved the charge of cruelty having regard to the principle of English Law, but whether the petitioner proves that the respondent has treated him with cruelty as to cause a reasonable apprehension in his mind and it will be harmful or injurious for him to live with the respondent.
The principles of English law as to what constituted cruelty in law apply to Parsis subject to their special customs, if any353. The expression ‘Cruelty’ in Section 34 of the Parsi Marriage and Divorce Act means ‘legal cruelty’, namely injury causing danger to life or limb or health, or reasonable apprehension of such injury. Cruelty in the legal framework need not necessarily be physical violence either to the husband or to the wife. The safest criterion to ascertain whether there has been behaviour which would render it proper to compel one party to live with the other under Section 34 is to consider the course of the conduct of the parties towards each other during their matrimonial life.
The Bombay High Court in P.K. Bharucha vs. Aloo 354 cautioned that it was wrong to import the notions of cruelty under the Hindu Marriage Act, into the Parsi Marriage and Divorce Act, for two reasons. Firstly, that this court had held that ‘Cruelty’ as stated in Section 34 of the Parsi Marriage and Divorce Act, was other legal ground as understood under English Law meaning thereby such cruelty as was likely to cause danger to life, or limb, or health or reasonable apprehension thereof. On the otherhand, the concept of cruelty under the Hindu Marriage Act, 1955 was not such stringent particularly after the amendment to Sections 10 and 13 of the Hindu Marriage Act, 1955.355
4.4.5 Cruelty in Secular Laws
The introduction about “Cruelty” as a ground for dissolution of marriage would be incomplete without mentioning that though in India we don’t yet have a Uniform Civil Code, but the Special Marriage Act was enacted by the legislature in 1954 and provides a uniform law for any citizen of India and by all Indian nationals in foreign countries and that of the Foreign Marriage Act, 1969.
4.4.5.1 The Special Marriage Act, 1954
Couples of separate religions (and who otherwise wish to marry in a non-religious way) may be married under the secular Special Marriage Act, 1954. It replaces Special Marriage Act, 1872 so as to provide a special form of marriage which can be taken advantage by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnization of the marriage, but certain formalities are prescribed before marriage officers can register the marriage. A marriage under this Act is a civil marriage by registration. Even marriages not solemnised under this Act may be registered under this Act. Marriage under this Act is a secular one. Any two persons irrespective of their faith in religion can marry under this Act. There is no bar on religion or caste under this Act. Non-age and lack of consent renders a marriage void.
• Cruelty is a ground for divorce under Special Marriage Act
The Special Marriage Act is an Act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce. Like the Hindu and Muslim Laws, the Special Marriage Act, also recognises ‘judicial separation’ ‘restitution of conjugal rights’ and ‘divorce’356 are important matrimonial reliefs. Section 27 of the Special Marriage Act specifies various grounds for divorce. Sub-Clause (d) of Clause (1) of Section 27 provides that ‘a petition for divorce may be presented to the District Court by the husband or the wife on the ground that the respondent has since the solemnisation of marriage treated the petitioner with cruelty.’
• Law of divorce after the Marriage Laws (Amendment) Act, 1976
The Marriage Laws (Amendment) Act of 1976 has introduced profound changes both in the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955.
1. The grounds for judicial separation as well as divorce for both husband and wife as provided under the Hindu Marriage Act and the Special Marriage Act are identical with each other.357 Now, Hindus can avail themselves of the relief of divorce under the Hindu Marriage Act or under the Special Marriage Act. The provisions of the Special Marriage Act are applicable only if the parties solemnize or register their marriage under that Act. In other cases Hindus are governed by the Hindu Marriage Act.
2. The provisions of the Special Marriage Act are akin to the provisions of the Hindu Marriage Act with the exception that the solemnization of marriage is performed before a Registrar after giving 30 days prior notice of the intended marriage in the presence of two witnesses.
3. Prior to the Marriage Laws (Amendment) Act, 1976 the provisions for divorce under these two Acts displayed considerable dissimilarities. The amending legislation of 1976 removed the divergences and assimilated these provisions. Thus, divorce by mutual consent previously available only under the Special Marriage Act has been applied also to the Hindu Marriage Act.
4. To both Acts new grounds are added which are specifically available to the wife, e.g. noncohabitation for one year after decree for separate maintenance under Hindu Adoption and Maintenance Act, 1956 or order for maintenance under the Code of Criminal Procedure, 1973, repudiation of child marriage on attaining 15 and before attaining 18.
In all these ways the provisions of the two Acts have been brought into line so far as the matrimonial relief to divorce is concerned.
4.4.5.2 The Foreign Marriage Act, 1969
The law relating to the marriages of citizens of India outside India is governed by the provisions of the Foreign Marriage Act, 1969. Section 18 (1) of the Act, 1969 provides that ‘subject to the provisions contained in this section, the provisions of Chapters IV, V, VI and VII of the Special Marriage Act shall apply in relation to the marriages solemnised under the provisions of the Act, 1969 and to any other marriage solemnised in a foreign country between parties of whom one at least is a citizen of India.’358
The provision (Section 18 (3) (a)) does not require that the petitioner should have been residing in India continuously for a period of three years immediately preceding the presentation of petition. Thus, where a petitioner born and brought up in India was away only for a temporary period on a tourist visa, she cannot be disentitled from seeking relief under this provision. Had the intention of the legislature been that the period of residence for three years should be without break, they would have added words ‘continuous’ or ‘unbroken’. Held, the trial court ‘ought not to have disqualified the petitioner on the hyper-technical ground of jurisdiction’. The wife was accordingly granted divorce on ground of cruelty under Section 27 (1) (d) of the Special Marriage Act.359
4.5 Conflicting areas in cases of matters relating to Divorce
‘Cruelty’ in a matrimonial relationship considered as a wrong which may be committed by a husband against his wife or by a wife against his husband. But, it is pertinent to note that even though cruelty is a ground for judicial separation and divorce by either spouse against the other, yet the term ‘cruelty’ has not been defined in any of the Marriage Acts that is to say, the Hindu Marriage Act, the Special Marriage Act, the Indian Christian Marriage Act or even in the Muslim Personal Law, or any other Act relating to marriage or divorce. The legislature has left the conundrum to be solved by Courts to do justice to the parties, and the balance may fall on either side.
The important areas that create inconsistency, while deciding the matters relating to Divorce are discussed below.
4.5.1 Definition of Cruelty
The definition of cruelty or what all actions constitute cruelty has not been specified in the Hindu Marriage Act or the Divorce Act or the Indian Christian Marriage Act. (Thus,) In Hindu law as well as in Christian law, the Courts have wide powers and discretion to decide what constitute cruelty. Section 13(1) (ia) of the Hindu Marriage Act, can be used as a defence of cruelty against a petition for restitution of conjugal rights. While in Muslim law, Section 2 (viii) of the Dissolution of Muslim Marriage Act, both physical cruelty as well as legal cruelty together with all instances of cruelty is included under the definition of cruelty. The relief of restitution of conjugal rights can be denied to the husband if any of the instances of cruelty as given under the section are proved against him.
4.5.2 Defenses for Restitution Petition
The defenses for the restitution petition under the Hindu Marriage Act and the Indian Divorce Act is very broad and it puts down that if the withdrawal of the respondent from the society of the petitioner is “without reasonable excuse”, it is in defence of restitution petition.
Under the Hindu Marriage Act, anything which constitutes a ground for nullity, dissolution of marriage or judicial separation is a defence against a petition for restitution of conjugal rights. Accordingly, under Section 33 of the Divorce Act, (applicable for Christians) nothing can be pleaded as defence against a petition for restitution of conjugal rights which would not be a ground for judicial separation or for a decree of nullity of marriage.
Under Muslim Law the defenses available against the petition for restitution of conjugal rights are that the grounds of batil (void) and fasid (irregular marriages) and any other provisions under the Dissolution of Marriage Act, for example while in Muslim Law under Section 2 (vii) of the Dissolution of Muslim Marriage Act, when the marriage has been avoided in the exercise of option of puberty the suit for restitution of conjugal rights fails.
4.5.3 Existence of a Second wife
As far as the Hindus and Christians are concerned the existence of a co-wife is a sufficient cause entitling the wife to withdraw herself from the society of her husband which can be taken as a defence by the wife against a restitution petition. While in the Muslim Personal Law controlled polygamy is allowed. So, a Muslim wife cannot refuse to comfort or consortium to husband because of the husband’s taking a second wife. But, in certain circumstances, a husband’s second marriage may involve cruelty to living with him.
In Itwari v. Asghari ,360 a restitution petition filed by the Muslim husband against his wife, the Court had held that it cannot compel the wife to live with the husband and can refuse the relief, if the Court feels it would not be just and reasonable to do or it would be inequitable to pass decree.
In India, bigamous marriages are now, to a great extent disapproved by the Courts. Some High Courts have considered it as cruelty by the husband and denied on that ground the relief of restitution of conjugal rights.
4.5.4 Adultery
Section 11 of the (Indian) Divorce Act, gives the right to the Christian husband to file a petition for dissolution of marriage on the ground of ‘adultery’. But, the same Section gives three exceptions to him, exempting him from the burden of proof of ‘adulterer’ or at least revealing his name. It gives a way to the husband to file a petition with false allegation of ‘adultery’ against his wife.361 The term ‘adultery’ has not been defined in the Divorce Act. ‘Adultery’ is an offence defined in Section 497, IPC362. Adultery is an invasion on the right of the husband over his wife. In other words, it is an offence against the sanctity of the matrimonial home and an act which is committed by a man. This section provides punishment for adultery. The scope of the offence under the section is limited to adultery committed with a married woman, and the male offender alone has been made liable to be punished with imprisonment which may extend up to five years, or fine or with both. The consent or the willingness of the woman is no excuse to the crime of adultery. Thus, adultery is an offence committed by a man against a husband in respect of his wife. It is not committed by a man who has sexual intercourse with an unmarried or a prostitute woman, or with a widow, or even with a married woman whose husband consents to it or with his connivance.
4.5.5 Irretrievable breakdown of marriage as a ground for divorce
All over the world theories of divorce have undergone a sea change. More importantly, ‘offence/fault theory’ has been replaced with ‘mutual consent and irretrievable breakdown of marriage theories.’ In contemporary world ‘the fault theory’ definitely seems anachronistic. It is nothing but washing ones dirty linen in public, whereas, in the present submission, in family law matters, conciliation is a better serving method than adversarial type of litigation.363
While deciding a divorce petition filed by the husband on irretrievable breakdown of marriage, Justice P.B. Majumdar observed that ‘marriage between a man and woman is considered to be a sacred ceremony. It is a social contract between two individuals that unites their lives legally, economically and emotionally. The husband and the wife performs the marriage ceremony with a fond hope that they will stay together for the rest of their life and both of them will have love and affection amongst each other and if any children are born-out of the said wed-lock they will be looked after by them. With this pious objective, the marriage under the Hindu Marriage Act, 1955 takes place in the presence of a priest. Therefore, the said ceremony is a sacred ceremony which is not required to be treated lightly by either spouse as a child’s play.364
In Jorden Diengdeh vs. Swaran Singh Chopra 365, the wife wanted nullity of marriage due to impotency of her husband and the Supreme Court has made judicial recommendation for a complete reform of law of marriage by introducing inter alia irretrievable breakdown of marriage as a ground for divorce. Although, the High Court rejected to nullify the marriage on the basis of impotency, the Supreme Court held that there is no point or purpose to be served by the continuance of a marriage which has so completely and signally broken down. The court pointed out that though the Penal Code was amended inserting Section 498A which makes cruelty to wives an offence ironically the same is not made a ground for divorce for the Christian women.
The Supreme Court has med the following suggestions
a) The law relating to the judicial separation, divorce and nullity of marriage are not uniform;
b) Complete reform of the law of marriage and making of a uniform law applicable to all people, irrespective of religion or caste;
c) Irretrievable breakdown of marriage and mutual consent be made grounds for divorce in all cases.
In Naveen Kohli vs. Neelu Kohli 366, the husband in his petition has made several allegations, including criminal complaints against the wife. The Family Court granted decree; against this decree the wife filed an appeal before the High Court which set aside the same, there upon the husband filed a Special Leave Petition under Article 136 of the Constitution. The Supreme Court analysed in great detail the facts and circumstances of the case, various judgments on cruelty decided by the Courts in India and other countries, as also the law on this issue, and dissolved the marriage.
The Supreme Court in this instant case has exhorted law to add a ground of irretrievable breakdown of marriage. The Supreme Court quoted: “ The marriage becomes a fiction though supported by a legal tie. By effusing to sever that tie the law in such cases does not serve the sanctity of marriage. On the contrary it shows scant regard for the feelings and emotions of the parties.” The court observed that once the marriage has broken down beyond repair, it would be unrealistic for the law not to take notice of that fact, and it would be harmful to society and injurious to the interests of the parties. Where there has been a long period of continuation of separation, it may fairly be surmised that the matrimonial bond is beyond repair. The Court further observed that the marriage has been wrecked beyond salvage, public interest of all concerned lies in the recognition of the fact and to declare defunct dejure what is already defunct defacto. In such circumstances, therefore, marriage was dissolved. The decree of divorce on the ground that the marriage has been irretrievably broken down can be granted in those cases where both the parties have leveled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.
The Supreme Court recommended Union Government to consider seriously bringing an amendment in the Hindu Marriage Act to incorporate irretrievable breakdown of marriage as a ground for divorce.
In Samar Ghosh vs, Jaya Ghosh 367 the Supreme Court was of the view that once the parties have separated and the separation has continued for a sufficient length of time and one of them has presented a petition for divorce, it can well be presumed that the marriage has broken down. The Court, no doubt, should seriously make an endeavour to reconcile the parties; yet, if it is found that the breakdown is irreparable, and then divorce should not be withheld. The consequences of preservation in law of the unworkable marriage which has long ceased to be effective are bound to be source of greater misery for the parties.
The Supreme Court has given seal of approval to the new trend discernible in various High Courts whereby divorce is being granted on the ground of cruelty if there has been long protracted litigation. In Poonam Gupta v. Ganashyam Gupta 368 there were allegations and counter allegations of misbehavior, physical and mental torture by both the parties. The Allahabad High Court observed that under the scheme of Hindu Marriage Act, 1955 dissolution of a marriage is normally the last option which the Court should exercise. But when a situation comes up, where living together for the two of them is no longer possible or practical, directing the parties to live together as husband and wife would be totally meaningless. The purpose of continuance of such a marriage, only for namesake would be futile. The Court granted decree of divorce.
The Supreme Court in Satish Sitole v. Ganga 369 has sort of given its seal of approval to this trend. In this case the husband could not make any ground. Parties were living separate since 14 years and were leveling acrimonious charges against each other. Reconciliation was tried and proved futile. In these circumstances, divorce was granted with adequate alimony. Along with it the Supreme Court has sounded its concern on phenomenal increase of breakdown of marriages and has exhorted that efforts should be made at various levels to strengthen the institution of marriage.370
• Legislative action
The Marriage Laws (Amendment) Bill, 2010 seeks to amend the Hindu Marriage Act, and the Special Marriage Act, and provides for ‘irretrievable breakdown of marriage’ as a ground for divorce as well as grants women the right to share in the property of their husbands. In the Hindu Marriage Act, the following sections have been added i.e. Section 13A, 13B, 13C, 13D, 13E, 13F, 21A and 23 and in the Special Marriage Act, 1954 Sections 28A, 28B, 28C and 28D have been added.
Under the new bill, Section 13C of the Hindu Marriage Act, and Section 28A of the Special Marriage Act, have been made to restrict the grant of decree of divorce on the ground of irretrievable breakdown of marriage, if the court is satisfied that adequate provision for the maintenance of children born out of the marriage has not been made consistently with the financial capacities of the parties. The bill also has provision that the court shall not hold marriage to have broken down irretrievably unless it is satisfied that the parties to the marriage have lived apart for a continuous period of not less than three years before filing petition for divorce or the parties failing to comply to the decree of the court for restitution of conjugal rights or judicial separation after one year can take this as a basis for irretrievable breakdown of marriage.
• Remarks on Marriages Law (Amendment) Bill, 2013107
The Bill, 2013 has introduced a number of amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. The Marriages Law (Amendment) Bill, 2013 allows divorce on grounds of ‘irretrievable breakdown of marriage’ if the spouses have lived separately for three years. The incorporation of this additional ground for divorce in the Hindu Marriage Act, 1955 (under Section 13C) and the Special Marriage Act, 1954 (under Section 28A), would, for the first time, allow a spouse to unilaterally seek dissolution of an unhappy marriage on the ground that it cannot be salvaged.
The Bill has introduced a number of amendments to the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954.
The Bill, 2013 proposes that a woman should get up to 50% share in husband's property, including inheritance. It also says that while the husband cannot oppose the divorce, the wife can, claiming financial hardships. It will speed up the divorce process, thus avoiding years of litigation. However, divorces have slowed down especially after talks of inclusion of the property clause in the Bill surfaced around December 2012. It is observed that there are 23% drop in divorce cases as women direct their lawyers to go slow on proceedings. Women are playing the waiting game when it comes to getting divorced. Women have directed their lawyers to slow down proceedings till the Marriages Law (Amendment) Bill is passed in the Lok Sabha.
Also, experts believe there could be a massive jump in divorces once the Bill becomes an Act. According to a Save India Family Foundation survey, divorce cases increased in countries such as Australia and China after similar laws were passed. Men seeking divorce are finding themselves in a fix. Men’s rights groups have termed the Bill ‘biased’ and ‘anti-men’. However, women’s rights groups across the country have welcomed the Bill. Men fear that just like the antidowry law, the proposed law might also be misused by women. Lawyers, too, believe many women might misuse this Bill for financial gains.
However, women organisations in the country argue that the insertion of irretrievable breakdown of marriage might harm the institution of marriage and lead to victimization of women. It empowers a Court to allow an application for dissolution of a broken marriage if the parties had been living apart for three or more years. It is indeed traumatic for a spouse to be forced to continue in a practically non-existent marriage but dissolving such a relationship without the consent of the other spouse, who might not be at fault, could amount to injustice.
Irretrievable breakdown of marriage is not yet a mandate of law and cannot be taken as a ground for divorce at first instance. It remains as a basis for divorce and has not been recognised as a valid ground for divorce. According to the Cabinet note, a wife can oppose a husband’s plea for divorce under the new ground stating that the divorce would cause grave financial hardship. The husband however, cannot oppose a wife’s plea for divorce under this ground. Yet, many disagree with the introduction of this new ground as according to Article 14 of the Constitution of India, every person is equal in the eyes of the law. There is no discrimination on the basis of religion, race, caste, colour, sex or place of birth and so woman should not be given any special consideration for opposing to husband’s plea for divorce371.
• Present position of the bill
In India however, ‘irretrievable breakdown of marriage’ had not been accepted as a ground for divorce. It is under consideration. On 26th August 2013 Rajya Sabha passed the Marriage Laws (Amendment) Bill, 2010 to amend the Hindu Marriage Act, 1955 and the Special Marriage Act, 1955 that provide for ‘irretrievable breakdown of marriage’ as a ground for divorce as well as grants women the right to share in the property of their husbands. The Bill, 2010 will of course also have to be passed by Lok Sabha before it can become law. At present, ‘no court in country except the Supreme Court can grant divorce on the ground of irretrievable breakdown of matrimonial relationship’. The doctrine of irretrievable breakdown of marriage is not available even to the High Court’s which do not have powers similar to those exercised by the Supreme Court under Article 142 of the Constitution.
4.6 Conclusion
In India, Personal Laws have evolved through a long history of regulation and codification, spanning at least 150 years. The Constitution of India defining itself as secular has had a troubled relationship with the existence of personal law because their basis is the ‘religious community’. As such, the four major religious communities in this country are governed by their respective personal laws. Family law is a fascinating subject, particularly in India, where family law differs from community to community.
The Indian legal system is basically a common law system. The Indian Parliament has enacted the following family laws which are applicable to the religious communities defined in the respective enactments themselves. India is a land of diversities with several religions. The oldest part of the Indian legal system is the personal laws governing the Hindus and the Muslims. The Hindus, majority community, has its own personal law, so have the Muslims, the largest minority community. The other minority communities such as Christians, Parsis, and Jews have their matrimonial laws. What today we have come to designate, as ‘Hindus’ compromise of the followers of four religions - Hinduism, Jainism, Buddhism, and Sikhism. Each one of these is a separate religious denomination but the law has been integrated so as to be uniformly applicable to the followers of these religions.
The Indian Parliament also enacted the Special Marriage Act, 1954, to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorces under this act. This enactment for solemnizing marriage by registration is resorted to by Hindus, non-Hindus and foreigners marrying in India who opt out of the ceremonial marriage under their respective personal laws. Registration is compulsory under this enactment. Divorce can also be obtained by non-Hindus under this Act. This legislation governs people of all religions and communities in India, irrespective of their personal faith. Likewise, under the Foreign Marriage Act, 1969, a person has only to be a citizen of India to have a marriage solemnized under this act outside the territorial limits of India.
The Parsi Marriage and Divorce Act, 1936 as amended in 1988, is an act to amend the law relating to marriage and divorce among the Parsis in India.
The Indian Christian Marriage Act, 1872, was enacted as an act to consolidate and amend the law relating to the solemnization of the marriages of Christians in India and the Divorce Act, 1869 as amended in 2001 is an Act to amend the law relating to divorce and matrimonial causes relating to Christians in India.
The Muslim Personal Law has been comparatively left untouched by legislations. The Muslim Personal Law (Shariat) Application Act, 1937, the Dissolution of Muslim Marriages Act, 1939, the Muslim Women (Protection of Rights on Divorce) Act, 1986 and the Muslim Women (Protection of Rights on Divorce) Rules, 1986, applies to Muslims living in India.
In India, for enforcement and adjudication of all matrimonial and other related disputes of any person in any of the different religious or non-religious communities under the respective legislations mentioned above, the designated judicial forum or court where such petition is to be lodged is prescribed in the respective enactments themselves. There is an organized system of designated civil and criminal judicial courts within every state in India which works under the overall jurisdiction of the respective High Court in the state. It is in the hierarchy of these courts that all family and matrimonial causes are lodged and decided.
Cruelty in a matrimonial relationship considered as a wrong which may be committed by either spouse against the other. It is generally described as act or conduct of such a nature as to have caused to life, limb or health- physical or mental, or as to make a reasonable apprehension of such danger. But, it is pertinent to note that even though cruelty is a ground for matrimonial relief under various personal laws, yet the term ‘cruelty’ has not been defined in any of the personal laws or matrimonial laws or any other Act relating to marriage or divorce. The legislature has left this difficult question to be solved by Courts. The Indian Parliament with a view to stall and prevent increasing violence and cruel treatment of the wife by her husband and in-laws has inserted a new provision i.e. Section 498A to the Penal Code.
Statutory Law or Codified Law chooses certain remedies against the acts of cruelty. An aggrieved spouse may choose his/her remedy according to the nature of the cruel act. If it is merely relating to the matrimonial tie which is affected or damaged by such cruel treatment then, the spouse should seek the remedy of a civil nature such as restitution of conjugal rights, judicial separation or divorce along with interim maintenance and permanent alimony. No right of compensation or injunction against the wrongdoer spouse is provided in matrimonial laws. An aggrieved person may file a suit for compensation against the wrongdoer/ spouse under the general civil law.
A rightful aggrieved spouse has criminal remedy also by way of filing a complaint against the spouse committing or having committed a wrong or wrong which falls under the Penal laws. For instance, if a husband commits bigamy the wife has the right to prosecute and get him punished by the Criminal Court. Some precautionary remedies may also be haunted before the Executive Magistrates under the Code of Criminal Procedure.
If we analyse the various matrimonial reliefs leading either to restitution of conjugal rights, judicial separation and divorce, one thing is clear that the courts while interpreting the provisions have come-out in awarding the decree to arrive at a logical end and to save grave miscarriage of justice. The Courts while interpreting the various grounds for divorce as provided in our laws have also interpreted each of the grounds depending upon the facts and circumstances of the case. The Courts also hold the view that the factor may vary from time to time, place to place, individual to individual depending upon the socio-economic conditions and prevailing marital relationship between the parties and each case must be considered in the context of its own facts and circumstances. After the Court is satisfied that the decree in favour of the divorce will solve the purpose in the best interest of the parties and the society, then it can grant such a decree.
CHAPTER-V LEGAL TERRORISM IN PRACTICE - INSTITUTIONAL RESPONSE
5.1 Introduction
The marriage between two individuals may be considered as a private affair, but when there is an existence of act of violence in that relationship, in which mostly woman is victim, then the state has power to interfere in order to protect woman and the Penal Code of the country is applied. There are numerous provisions in the Indian Penal Code, which provide punishment for violent acts against women.
The Indian social and legal systems take for granted that most of cruelty is done by husband and his family members. It is not fair to pre-establish that domestic violence happens to the wife only in the family. In a typical situation, the wife could act cruel to her husband physically, mentally or by her anti-social behaviour. But, there are no provisions for crime against the husband and his family members. It is the predicament of husbands when they are continuously tortured by cruel wives, who get favour from everyone including Courts and the society.
5.2 Misuse of Section 498A, IPC - Blood Cancer in Indian Society
The Provision 498A is inserted to the Penal Code with a sole object to protect the married woman from being subjected to cruelty by her husband and his relatives, in connection with the demand of dowry. But, within the short span of time, this provision has become a tool in the hands of the bridal side either to blackmail the husband or other in-laws. It has been grossly misused by some section of people for their ulterior motives. Time and again, the Judges, Police Personnel and Lawyers have raised their voice against this provision, and it has been referred as “Blood Cancer in Indian Society” that damages institution of marriage. This provision has been a life-saver for women who have faced harassment or torture in the hands of their husband or his family. But, it has become a nightmare for many husbands.
5.3 Remedies available under Criminal Law for the affected person and the action taken against persons making false complaints
There are certain existing provisions in the Criminal Law for misuse of any law and if 498A, IPC is misused these provisions or sanctions can be invoked. Misuse of Section 498A, IPC can be checked by the following Sections of the Penal Code that are Sections 182, 203367, 209368 and 211 and also by the Code of Criminal Procedure, that are Sections 203, 250 and 358 and also by the Section 41A. However, it is pertinent to note that a person aggrieved by a false charge under Section 498A, IPC may, if he chooses, sue in a Civil Court for damages for malicious prosecution, instead of taking criminal proceedings under Section 211, CrPC.
5.3.1 Section 182, IPC: False information with intent to cause public servant, to use his lawful power to the injury of another person
Section 182, IPC makes giving false information to a public servant with intent to cause injury to another person punishable with imprisonment which may extend to six months or with fine which may extend to one thousand rupees or with both. The offence under Section 182 is non-cognizable, bailable and non-compoundable and triable by a Magistrate of First class.369
Section 182 relates to false information given to a public servant which the informer knows or believes to be false, with the intention to cause a public servant to use his lawful power to the injury of another person. The object of this provision is that a public servant should not be given false information by a person, who knew the information to be false and intended to mislead him. Thus, it is an offence to give false information which misleads a public servant into doing what he ought not to do, whether that can be shown to be intended for the purpose of injury any particular person or not. This provision does not require that action must always be taken. It is enough for the completion of the offence that the person who moves the public servant knows or has reason to believe that action would be taken on the false information given by him.370
• Condition Precedent for Prosecution
Section 182 has to be read in conjunction with Section 195(1) (a), CrPC which requires a complaint for offences under Sections 172 to 188, IPC to be filed by the public servant concerned or by some other public servant to whom he is administratively sub-ordinate.371
5.3.2 Section 211, IPC: False charge of the offence made with intent to injure
Section 211, IPC provides that making false charge of offence in Court with intent to cause injury to another person punishable with imprisonment for a term which may extend to two years or with fine or with both and if, such criminal proceeding be instituted on a false charge of offence punishable with death, imprisonment for life or imprisonment for seven years or upwards, shall be punishable with imprisonment which may extend to seven years and shall also be liable to fine.372
Section 211 includes two distinct offences
(1) Instituting or causing to be instituted false criminal proceeding against a person,373 and
(2) Preferring a false charge against a person.
The first assumes the second, but the second may be committed where no criminal proceedings follow. The mere making of a false charge is punishable under the first part of the
Section. If the case gets no further than a Police inquiry, it falls within that part. But, under the second part there should be an actual institution of criminal proceedings on a false charge. Two conditions are necessary before the enhanced punishment provided in the second paragraph could be inflicted: (1) proceedings on the false charge should have been actually instituted, and (2) the false charge must be in respect of an offence punishable death, imprisonment for life, or imprisonment for seven years or upwards.
In brief, Section 211 deals with the offence of making a false charge of an offence with intent to cause injury. It provides that it shall be an offence if a person with the intent to cause injury to any person, either
(i) Institutes any criminal proceedings against him, or
(ii) Falsely charges him with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person.
In Haridas v. State of West Bengal ,374 the Supreme Court held that the scope of Section 211, IPC, is wide enough to include not only the offence committed by instituting any criminal proceeding, but also by falsely charging any person with the commission of an offence. For instance, though a proceeding for committal for contempt is not criminal proceeding, it does amount to the false charge, if based on allegations later provided to be false. Thus, when a person makes an application to the High Court under the Contempt of Courts Act, 1971, praying for action against an alleged contempt, if the allegations contained in the application are false, he can be prosecuted under Section 211, IPC.
The expression ‘false charge’ does not mean giving false evidence as a prosecution witness against an accused person during the course of a criminal trial. False charge must refer to a criminal accusation putting or seeking to put in motion the machinery of criminal investigation and not seeking to prove a false charge by making deposition in support of the charge framed in the trial. The words ‘falsely charges’ have to be read along with the expression of criminal proceeding.375
• Distinctions between Sections 182 and 211
Section 211, like Section 182, IPC punishes a false charge of the offence made with the intent to injure some person. However, there is a clear distinction between a false charge which falls under Section 211 and false information given to the Police, in which latter case the offence falls under Section 182.
For instance
(i) Section 182 deals with giving to any public servant any information which he knows or believes to be false;
Whereas Section 211 deals with-
(a) Instituting or causing to be instituted any criminal proceeding in the Court of law against any person, or
(b) Falsely charging any person with having committed an offence with no lawful justification for the same.
(ii) To invoke Section 182 malice or want of reasonable and probable cause is not required, whereas this is an essential ingredient under Section 211, IPC.
(iii) Similarly, the offences contemplated by Sections 193 and 195, IPC on the one hand and Section 211, IPC on the other, were not intended by the legislature to overlap so as to make proceedings under one or the other Section optional.376
When a resolution was passed in the public meeting condemning Police action in regard to an assault case and copies of the same was sent various authorities including the superintendent of the Police and the officer-in-charge of the Police station, and the officer-in- charge took exception to it and filed a complaint in the Court under Sections 182 and 211, IPC. It was held that forwarding of the resolution did not amount to the institution of criminal proceeding and no offence either under Section 182 or 211, IPC was committed. It was further observed that Police should not be so sensitive to public criticism.377
• Institution of the proceedings against false charges
There is a divergence of views between the High Courts in India. On the question whether the latter part of the Section 211 applies to such cases of complaints to the Police which are disposed of without a formal magisterial inquiry. On the one hand, it was held that the latter part would apply to such cases where the charge related to the more serious offence that is the false charge must be in respect of an offence punishable death, imprisonment for life, or imprisonment for seven years or upwards. The test to apply is - did the person who made the charge intend to set the criminal law into motion against the person against whom the charge is made. [12] On the otherhand, it was observed that, to constitute the offence defined in the second paragraph of Section 211, it is necessary that criminal proceedings should be instituted, where the offence committed does not go further than the making of false charge to the Police , the making of such charge does not amount to institution of criminal proceedings and the offence committed will fall within the first paragraph, not withstanding that the offence so falsely charged may be one of those referred in the second paragraph.
• Complaint by Court: When?
When an offence under Section 211, IPC is committed in relation to Court proceedings, cognizance without Court’s complaint is barred by Section 195(1) (b) (i), CrPC. [1314] Since an order of a Magistrate discharging an accused on submission of a Police report under Section 173[15], CrPC., is a judicial and not administrative order, a complaint by the Magistrate or his superior Court under Section 195(1) (b) (i), CrPC., would be necessary to take cognizance of an offence under Section 211, IPC.[16] Similarly, remand and bail proceedings to have been held to be Court proceedings and as such a complaint by the Court would be necessary to take cognizance of an offence under Section 211, IPC.[17] This view of the law has now been affirmed by the Supreme Court as well.[18]
Further, the Code of Criminal Procedure empowers the Magistrate under Section 203[19] for dismissal of a complaint and under Section 250[20] for awarding compensation for accusation without reasonable cause and under Section 358 for awarding compensation to persons groundlessly arrested. Moreover, Section 41A, of the Code imposes certain restrictions on Police before affecting an arrest of a person accused of cognizable offence. The misuse of matrimonial provisions can be curtailed if these laws are harmonized and effectively implemented.
Under Section 203, CrPC a Magistrate may summarily dismiss a complaint if, after considering the statement on oath of the complainant and of the witnesses and the result of the investigation under Section 202, he is of opinion that there is no sufficient ground for proceeding. This Section enables the Magistrate to dismiss a complaint if there is no sufficient ground for proceeding. Where a private complaint under Sections 304B and 498A, IPC was dismissed by the Magistrate mainly on the ground of unexplained delay of 8 months, it was held that the delay costs serious doubts on the credibility and bonafide of the complainant; hence, there was no infirmity in the dismissal order.378 Dismissal of complaint under this provision does not entitle the accused to compensation under Section 250, CrPC.379 But he can prosecute the complainant for making false charge under Section 211, IPC.380
The wife can file a complaint against husband under Section 498A, IPC, or the Hindu Marriage Act, and the Domestic Violence Act. However, there were instances where a wife instituted a false complaint against her husband. In such cases, the husband had no remedy since the laws of India are tilted towards in favour of women. But recently, the verdict given by the High Court of Bombay in the case of Mangesh Balkrushna Bhoir v. Leena Mangesh Bhoir 381 decided on 23rd December, 2015 provided some relief to the husband in such cases of false complaints. The Court held that whenever a wife institutes a false complaint against her husband and his family members and the husband and his family members get acquitted, and no case is made out against them, then such an act of wife would constitute cruelty. It was said that on such a ground, the husband is entitled to file a petition for divorce from her wife. Justice R.D. Dhanuka observed: the Penal Code does not define the term ‘Cruelty’. The Courts in India have regarded ‘Cruelty’ as an inhuman act that causes mental sufferings and threatens the health and life of another person. There can be mental as well as physical cruelty either by husband or wife. Section 13(1) (i-a) of the Hindu Marriage Act, provides ‘Cruelty’ as one of the grounds for divorce and party seeking divorce must prove that it has become impossible for husband and wife to live together.
The Court referred to the case of K.Srinivas v. K. Sunita [25] ‘where the Supreme Court held that it is a settled point of law that if either spouse lodges a false complaint, it would invariably amount to cruelty and would enable the other spouse to file a petition for divorce. The Court said that whenever a complaint filed by the wife against her husband under Section 498A, IPC is rejected, and the husband and his family members are subsequently acquitted; then it can be said that the complaint filed by the wife is fraudulent. This is contrary to the judgment of the Patna High Court in Bhola Kumar v. Seema Devi [26] ‘ where the court said any criminal complaint filed by the wife would not constitute cruelty as a ground for seeking a divorce.’ The Court made a distinction holding that in the said case, the petition by the wife against her husband was still pending before the Criminal Court when the petition for divorce was heard by the Family Court. However in instant case, the husband and his family members were acquitted. .
The Supreme Court after receiving a lot of false complaints by the wives against their husbands has settled the law related to cruelty against the Husband. Very recently, the Supreme Court bench comprising of Justice Vikramjit Sen and Justice P.C.Pant in K.Srinivas v. K.Sunita [27] held that a false criminal complaint can be construed to be a ground for dissolution of marriage. The court opined: the respondent/wife had filed a false criminal complaint, and even one such complaint is sufficient to constitute matrimonial cruelty. Accordingly the court dissolves the marriage of the parties.
In Deepalakshmi Saehia Zingade v. Sachi Rameshrao Zingade [28] the wife filed a false case against her husband on the ground of ‘husband having girl friend’ which is proved as false in a court of law, so it can be considered as cruelty against husband. In this instant case, the petitioner, Deepalakshmi had filed a petition challenging the Family Court’s order, which had dissolved her marriage acting on her husband Sachin Zingade’s petition. Zingade had accused his wife of picking up quarrels with him, suspecting him of having an extramarital affair and insulting his parents and friends whenever they visited his home. The Family Court had accepted his contention on the point of suspicion and termed it as ‘cruelty’. The High Court, however, clarified that the spouses are entitled to point out their legitimate grievances against each other. “If the circumstances so warrant, the wife may have some suspicion about the act and behaviour of her husband,” observed the High Court. The Family Court has also treated Deeplakshmi’s complaint under the Protection of Women from Domestic Violence Act, 2005 against her husband and in-laws as an act of cruelty. It had concluded that it was a false case as there was no independent evidence or police complaint. The High Court, again, reversed this and said: ‘Filing of the complaint itself can never be considered as an act of cruelty, unless it is found by positive evidence that it was a false complaint.’
5.3.3 Section 358 and CrPC (Amendment) Act, 2005 - Clause 30
This clause seeks to amend Section 358, CrPC to enhance the limit of fine of one hundred rupees to one thousand rupees so as to make this provision more effective. There must be a direct and proximate nexus between the complaint and the arrest for the award of compensation under Section 358. Before making an order for compensation, an opportunity to show cause against the order must be given to the complainant. Principles of natural justice have to be read in Section 358. The show cause notice must be given to the informant before directing him to pay compensation to the accused of the latter’s groundless arrest under Section 358.383 There must be some objective basis for the satisfaction of the Magistrate to come to the conclusion that the informant caused the arrest of the accused, and there was no sufficient ground for causing such 31 arrest.382384
Section 41385 CrPC which provides that Police may arrest without warrant on commission of a cognizable offence or on the basis of a reasonable complaint or reasonable suspicion has now been amended by the Criminal Law (Amendment) Act, 2009 to restrict this discretionary power of the Police may also be instrumental in a putting a check on the misuse of Section 498A.
Section 41A,386 has been inserted to the Code of Criminal Procedure, through the Act, 2009 according to which the Police instead of arresting the accused, will be obliged to issue him a notice of appearance for any offence punishable with imprisonment up to seven years. Moreover, the Police should carry-out a proper investigation, in the cases which are punishable with imprisonment up to seven years before arresting a person. It also states that ordinarily noarrest will be made, if the accused co-operates with the Police and does not tamper with the evidence.
With the intention of curbing irresponsible and illegal arrests a circular was issued from the Police Commissioner of the State of Andhra Pradesh, directing that arrest under Section 498A, IPC should be affected only with the prior permission of the Deputy Commissioner of Police. The circle Inspector of the women’s Police station has no longer any independent powers to arrest the accused.
5.4 Legal Terrorism in practice - Judicial Perspective
Section 498A, IPC was enacted after long debates within the legal community in Parliament and following agitation by Women Parliamentarians and Women Organisations in the country. However, many women’s rights groups justify the abuse of this provision as being a common feature with all other laws and that also the ratio of false cases to that of true ones as being very low. But, this still does not change the truth that there is slowly a rise in the abuse of Section 498A, IPC and allied provisions.
There are number of cases coming to light, where Section 498A, IPC and other matrimonial provisions are have been used mainly as an instrument of blackmail. It lends itself to easy misuse as a tool for wreaking vengeance on entire families, because under this section, it is available to the Police to arrest anyone that a married woman names as tormentor in a complaint as ‘cruelty’ in marriage which has been made non-bailable offence. Thereafter, bail in such cases has been denied as a basic right. Although, a preliminary investigation is required after the registration of the FIR, in practice such complaints are registered, whether the charges are proved valid or not, and arrest are made without determining whether the concerned family is actually abusive or they have been falsely implicated.
Lawyers have cited several cases, where judges have refused bail, unless the accused family deposits a certain sum of money in the complainant’s name as a pre-condition to the grant of bail. Scared by these developments, many apply for anticipatory bail, at the slightest likelihood of a wife lodging a complaint with the Police and in some cases the lawyers advised his clients to pre-empt his wife from registering a case of cruelty against him, by filing a divorce petition before the wife could reach the Police. Husbands could then reasonably argue that the charges of cruelty were mala fide retaliation against the husband’s petition for divorce. Thus, insisted of finding ends up fighting a defensive divorce case.387
The Supreme Court and various High Courts time and again examined Section 498A, IPC. There had been countless instances, even reported by the different High Courts where without any investigation, the Police arrests elderly parents, unmarried sisters, pregnant woman in husband’s family and even distant relations, whereby the family members of the husband had to go through lot of mental torture and harassment. There is a demand to scrap Section 498A, IPC. Instances do exist whereby protective legal provisions for the benefit of women have been subjected to distortion and misuse to wreck petty vengeance and to settle scores.
“ Laws are not instruments of oppression but to safeguard and protect the victim.”
In Kanaraj v. State of Punjab ,388 the Supreme Court observed as: “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. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. The tendency to rope in relatives of the husband as accused has to be curbed. The Court added: ‘Such a massive involvement of large number of members takes place because in the aftermath of the incident, tempers are extremely high, the parties do not have a cool mind and the aggrieved party at that stage only wants to seek recompense by sending other party to jail. It is only with the help of mediators that wisdom may drawn and the complaining party may consider the advisability of exploring other options such as either to resolve their differences and to come together or to mutually agree to part on acceptable terms.’389
In the case of State v. Srikkanth ,390 the Karnataka High Court observed that: “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 part of the Police to include the whole of the family as accused.”
In Mukesh Rani v. State of Haryana ,[38] the Punjab and Haryana High Court observed that: “Whenever there is a matrimonial dispute between the husband and wife for the fault of husband, other relations of the husband that is brothers, sisters, parents are also roped in the litigation on the allegations of the demand of dowry, whether they are living jointly or separately and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”
In Sanjeev Kumar and Others v. State of Uttar Pradesh and Others ,[39] the Allahabad High Court observed that: “the other reason why this Court often interferes in such cases, is that when the atmosphere between the husband and his family has become sour, there is a tendency to rope in as many as the relations of the husband as possible, even though they may not be directly involved in the crime. The Delhi High Court in Savitri Devi v. Ramesh Chand and Others, [40] have examined the Section 498A, IPC and through Judge J.D.Kapoor, observed that
21 The misuse of Sections 498A/406 IPC to such an extent it is hitting at the foundation of the 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 lower functionaries of Police like Sub-Inspectors or Inspectors, 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 matters.
23 These provisions were though made with good intention, but the implementation
has left a very awful taste, and the move has been counterproductive. These provisions are exploited by some section of the women and their relatives and also by the investigating and prosecuting agencies. There is a growing tendency amongst the women, which is further perpetuated by the parents and relatives to rope in each and every relative, including minors and even school going kids, aged persons, nearer or distinct relatives, and in some cases against every person of the family or the husband whether living away or in other town or abroad and married, unmarried sisters, sister-in-laws, brothers-in-law, married uncles ,and in some cases grandparents or as many as ten to fifteen or even more relatives of the husband . Once a complaint is lodged under Sections 498A/406 IPC whether are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or damage to life or limb or health, it comes as an easy tool in the hands of the Police and the agencies like Crime against Women Cell (CWC) to hound the accused with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizance and non-bailable. Thousands of such cases and complaints are pending in the Courts all over the country and are being lodged day-in and day-out.
24 These provisions have resulted into large number of divorce cases as when one member of the family is arrested and sent to the jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and marriage for all practical purposes becomes dead. The aftermath of this is burdensome, insupportable and miserable more for the women. Remarriage is not so easy. Once bitten is twice sacred. Woman lacking in economic independence starts feeling as burden over their parents and brothers. Result is that, the major bulk of the marriages die in their infancy, several others in few years. The marriage ends as soon as a complaint is taken by the Police.
In Sarita v. R. Ramachandra ,391 B.S.A Swamy and G.Yethirajulu, JJ reported that “the Court would like to go on record that for nothing the educated women are approaching the Courts for divorce and resorting to proceedings against in-laws under Section 498A, IPC implicating not only the husbands but also their family members whether in India or abroad. In some cases, this kind of actions are coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the Courts and the sanctity attached to the marriage in Hindu religion and the statutory mandate that the Courts try to save the marriage thorough conciliatory efforts till last are being buried neck-deep. It is for the Law Commission of India and the Parliament either to continue that provision (Section 498A, IPC) in the same form or to make that offence non-cognizable and bailable so that ill-educated of women of this country do not misuse the provision to harass innocent for the sin of contracting marriage with egoistic women.”
In Kamireddy Mangamma and Ors v. State of Andhra Pradesh, 392 Justice P. Swaroop Reddy, felt that there is rampant misuse of Section 498A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands; unmarried sisters and brothers and married brothers and their wives. There are instances where even young children, aged below ten years, were also implicated in the offences of this nature. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc. Section 498A, IPC is incorporated by the Legislature in the interest of women and to safeguards them from harassment. But, it has become somewhat counter-productive. In several cases, women are harassed, arrested and humiliated on the complaints given under Section 498A, IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. It was revealed that several families are ruined; marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin.
The Supreme Court in Som Mittal v. Government of Karnataka, 393 in Para 33, observed that often false FIRs were filed e.g. under Section 498A, IPC, Sections 3 and 4 of the Dowry Prohibition Act, 1961. Often aged grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage, and the difficulty can be overcome by restoring the provision for anticipatory bail.
• Recent guidelines
Prior to 2010, the general impression was that the police had an automatic right to arrest a person whenever a case is registered against him. Though the Supreme Court laid down the law in the year 1994[44] that the police should not arrest a person just because it would be lawful to do so unless the police officer is satisfied that arrest is necessary for proper investigation to be carried out, there was no practical impact of the said decision.
Over the years, the misuse of the dowry law became so deeply ingrained in the society that it became a custom to convert every failed marriage into dowry harassment and get the husband and his family arrested. It has become a routine practice for police and Magistrates to use the arrest as negotiation tool to pressurize the accused to pay huge sums of money to wife in order to end the marriage.
In L.S. Arnesh Kumar vs State of Bihar & Anr[45] ; the allegations leveled by the wife against the appellant are that a demand of Rupees Eight lacs, and a maruti car, an air-conditioner, television set etc. was made by her mother-in-law and father-in-law and when this fact was brought to the appellant’s notice, he supported his mother and threatened to marry another woman. She also alleged that she was driven out of the matrimonial home due to non-fulfillment of the demand of dowry. Denying these allegations, the appellant/petitioner preferred an application for anticipatory bail which was earlier rejected by the Sessions Judge and thereafter by the High Court. The petitioner has challenged the registration of FIR against him and his family members for alleged dowry harassment in the Supreme Court.
The question comes before the higher judiciary is: whether Section 41 CrPC will encourage criminal to commit more crimes? It must be remembered that the law has dispensed with automatic arrests, as in most cases the allegation would be that the offences were already committed. Mere arrest by the police will not undo the crime already committed. No doubt, the offender has to be punished but only after the offence is proved beyond reasonable doubt. There cannot be any interim punishment in the form of arrests because a person who is wrongfully arrested cannot be truly compensated for the suffering undergone by him even if he is ultimately found not guilty by the Court. However, under Section 41 (1) (b) (a) of CrPC, a police officer continues to enjoy powers to arrest to prevent such person from committing any further offence. Again, if a police officer actually witnesses a crime committed in his presence, he can arrest the offender under Section 41 (1) (a) of CrPC. Therefore, the law prohibiting automatic arrests is an exceptional instrument to strike the balance between the need to prosecute the offenders on the one hand and the need to preserve the dignity and freedom of the individual who is innocent on the other.
In a bid to prevent casual and mechanical detention of the accused, the court directed the State Governments to instruct the police officers, not to make any arrests in dowry harassment offences without ascertaining the viability under parameters laid down in Section 41 CrPC.
The court laid down new directions making police officers and Judicial Magistrates liable for departmental action and contempt proceedings for making ‘scurrilous’ arrests and ordering ‘routine’ detention under Section 498A, IPC or under Section 4 of the Dowry Prohibition Act, 1961. The court said ‘the institution of the marriage is greatly revered in this country. Section 498A, IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The court also said: the fact that 498A is a cognizable and non-bailable offence has lent it, a dubious place of pride amongst the provisions that are used as weapon rather than shield by disgruntled wives.
The court pointed to a “phenomenal increase in matrimonial disputes in recent years” even as the “institution of marriage is greatly revered in this country”. The simplest way to harass is to get the husband and his relatives arrested under this provision.’ In a quite number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested,” the verdict observed. Presenting government crime statistics to show that 1.97 lakh people were arrested in 2012 for dowry harassment, nearly a quarter of those being women, the verdict said: “This depicts that mothers and sisters of the husbands were liberally included in their arrest net.”
Relied on the ‘Crime in India’ 2012 statistics published by the National Crime Records Bureau of the Ministry for Home Affairs, the court pointed out: there were 9.4 per cent increase in the number of cases registered under Section 498A, IPC for the year 2012 over 2011; 6 per cent (197762) of total arrests those arresting being women. This provision accounted for 4.5 percent of crimes - surpassing all offences other than theft and hurt. Moreover, the conviction rate of 15 percent as opposed to charge sheets being filed in 93.6 percent of cases, and out of the 3,72,706 cases pending trial 3,17,000 are likely to result in acquittal.
The court said that the reason for these statistics was the abuse of the power to arrest by the police and the improper exercise of the power to detain by the Magistrates. Under Section 41 of CrPC the police can only arrest if satisfied that such arrest is needed to conduct proper investigation or to prevent evidence and witness tampering, or to prevent the accused from absconding. The police are required to record facts which fulfill either of these conditions under Section 41 and forward to the Magistrate who has to satisfy himself that the arrest made is legal. But police presently arrest on a mere complaint being made and mechanically reproduce Section 41 clauses as ‘reasons and conclusions for arrest’, while the Magistrate authorizes such detention ‘in a routine, casual and cavalier manner’, said the court.
More statistics were shared to show Section 498A made up 4.5 per cent of the total crimes charged under different provisions of IPC — “more than any other crimes excepting theft and hurt”. Noting that “arrest brings humiliation, curtails freedom and cast scars forever”, the Supreme Court had directed the police not to arrest unnecessarily and Magistrates not to authorise detention casually and mechanically. Highlighting that the “power of arrest is one of the lucrative sources of police corruption”, the court had warned police officers of contempt action unless they prepare and hand over a duly-filled checklist giving reasons for the arrest to the Magistrate, who would authorise detention only after recording his satisfaction in a reasoned order.
The Court in this case clearly lays down guidelines for the police and the Magistrates about the procedure they should follow while arresting a person accused of an offence punishable less than seven years of imprisonment - cruelty being one such offence.
The Bench led by Justice Chandramauli Kumar Prasad lamented that courts were filled with mothers-in-law, sisters-in-law and fathers-in-law and husbands facing prosecution under Section 498 A (dowry harassment) of IPC.
Chandramauli Kr. Prasad, and Pinaki Chandra Ghose, JJ., allowing the petitioner Arnesh Kumar’s criminal appeal for anticipatory bail under Section 498A, IPC said that the new directions will apply not just to arrests and detention under Section 498A IPC and Section 4, of the Dowry Prohibition Act, 1961 but also to any other penal provision for imprisonment up to seven years.
The Court therefore laid down the following directions:
1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A, IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid-down above flowing from Section 41, CrPC
2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1) (b)(ii),
3. The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention,
4. The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention,
5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the District (DSP) for the reasons to be recorded in writing,
6. Notice of appearance in terms of Section 41A, CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing,
7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
8. Authorizing detention without recording the reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.
The court also says that if the police and the Magistrates fail to comply with the guidelines and a person is wrongly arrested or detained, he can approach the High Court with an application of contempt of court against the police and/or the Magistrate as the case may be. The Court made Police Officers and Judicial Magistrates liable for departmental action and contempt proceedings for making ‘scurrilous’ arrests and ordering ‘routine’ detention under Section 498A, IPC or under Section 4, the Dowry Prohibition Act, 1961.
Interestingly, the judgment does not say any new thing. It simply reiterates Section 41 CrPC, and reminds the police and the Magistrates of their duty and the due process they are obliged to follow, as laid down by a law passed by the legislature in the amended Criminal Procedure, 2010. This observation is completely maintainable in law and order as it seeks to prevent arrests of innocent people without trial or investigation .
The Supreme Court also dismissed the review petition filed by the National Commission for Women against the judgment.
The Supreme Court also dismissed the review petition filed by the National Commission for Women against the judgment. Irking with the decision, the National Commission for Women (NCW), filed a curative petition.
Very recently, (on 22nd August 2016) the curative bench of the Supreme Court found nofault with the verdict passed in 2014 that the dowry harassment law had become a menace often used as weapons rather than shields by disgruntled wives.394
The bench led by Chief Justice of India T.S. Thakur has upheld the Arnesh Kumar [395] verdict that men cannot be automatically arrested on dowry harassment complaints filed by their wives. Upholding the Supreme Court’s 2014 verdict in case related to dowry harassment or death the bench held that the police should not arrest the husband and his close relations until it is satisfied that the complaint is genuine disturbs its reputation for effectively aiding those in need of justice
In CRL.M.C.7262/2006, [48] before the Delhi High Court, Justice Shiv Narayan Dhingra commented that ‘now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases, claims are made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. Time has come that Courts should insist upon disclosing the source of such funds and verification of income from tax returns and Police should insist upon the compliance of the Rules under the Dowry Prohibition Act, 1961 and should not entertain any complaint, if the rules have not been complied with.’
In Sushil Kumar Sharma v. Union of India and Ors ,[49] a petition have been filed Under Article 32 of the Constitution of India, 1950 prayer is to declare Section 498A of the INDIAN PENAL CODE, 1860 to be unconstitutional and ultra virus in the alternative to FORMULATE GUIDELINES so that INNOCENT PERSONS ARE NOT VICTIMISED by the unscrupulous persons making false accusations. Further prayer is made that whenever, any Court comes to the conclusion that the allegations made regarding the commission of offence Under Section 498A, IPC are unfounded, stringent action should be taken against person making the allegations. This, according to the petitioner, would discourage persons from coming to the Court with clean hands and ulterior motives. Several instances have been highlighted to show as to how commission of offence punishable under Section 498A, IPC has been made with oblique motives and to harass the husbands, in-laws and relatives. According to the petitioner, there is no prosecution in these cases but persecution. It was pointed out that accused are more at fault than the accused. Persons try to take undue advantage of the sympathies exhibited by the Courts in the matters relating to alleged dowry torture.
The Supreme Court through Judges Arijit Pasayat and H.K. Sema , JJ in Para 9 of this judgment, it was observed that the object for which Section 498A IPC, 1860 was introduced are amply reflected in the statement of objects and reasons while enacting Criminal Law (Second Amendment) Act (46 of 1983). As clearly stated therein, an increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act of 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend THE INDIAN PENAL CODE, THE CRIMINAL PROCEDURE, and THE INDIAN EVIDENCE ACT suitably to deal effectively, not only with the cases of dowry deaths but also cases of cruelty to married women by the husband, in-law and relatives. The avowed object is to combat the menace of dowry death and cruelty.
The Supreme Court in this case further held that, “mere possibility of misuse cannot per se make valid legislation unreasonable and arbitrary, and the impugned provision is constitutional and valid.”
In Para 18 of this judgment it was observed that the object of the provision of Section 498A is prevention of dowry menace. But, as has been rightly contended by the petitioner many instances have come to the 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 virus, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become for the legislature to find out the ways how the makers of frivolous complaints or allegations can be appropriately dealt with it. Till then the Courts have to take care of this situation within the existing framework.
As noted above the object is to strike at the roots of dowry menace, but by the 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 the cry of “wolf” is made too often as a frank 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 the dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate object of every legal system is to ARRIVE AT TRUTH, PUNISH THE GUILTY AND PROTECT THE INNOCENT. It is to be noted that the role of the investigating agencies and Courts is that of 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.
The Supreme Court on one hand observed that - it is a matter of common knowledge that, unfortunately, the matrimonial litigations are rapidly increasing in our country. All the Courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. But there is discontent in society, then how is the woman who is a victim of the rising avarice and frustration of an abusive partner to be blamed, and why should the law be amended to facilitate the abuse. On the contrary, endeavour should be made to provide more effective protection to the woman, additional tools of law enforcement and stringent punishment to the abuser. Courts are very well aware that often advocates in their zeal make false allegations and exaggerated claims on behalf of their clients. But to rectify this situation, the lawyers need to be disciplined and not the law amended.
The Supreme Court in this case concluded that, it is well-settled that ‘mere possibility of abuse of the provision of a law does not per se invalidate legislation’. It must be presumed, unless contrary is proved, that administration and application of a particular law would be done, ‘not with an evil eye and unequal hand’. In such cases , action and not the section may be vulnerable. However, it was also ruled that merely because of the provision is declared constitutional; it does not give license to unscrupulous persons to wreck personal vendetta.
In Preeti Gupta v. State of Jharkhand, 396 the Supreme Court their lordships J. Dalveer Bhandari & K.S.Radha Krishnan, JJ observed that:
30. It is a matter of common experience that most of these complaints under Section 498A, IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motives. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.
32. Unfortunately, at the time of filing of the complaint the implications and
consequences are not properly visualised by the complainant that such a complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
33. the allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancor, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband’s relations had to remain in jail even for a few days, it would ruin the amicable settlement altogether. The process of suffering is extremely long and painful.
5.5 Institutional response
Since causes of the problem have been diagnosed to the extent possible, it is necessary to discuss, what measures have been taken to minimize or mitigate the process of abuse of the impugned provision by the three principal organs of the democratic state.
5.5.1 Executive Measures
No major steps has been taken by the executive or the Police system to prevent false implication of cases of harassment of innocent persons, except, some meager steps, like Mediation Cells have been opened in Mahila Police Stations to settle matrimonial disputes. Circulars have been issued to Police officers to ensure protections availability to the accused persons under the Constitution and under Code of Criminal Procedure while making Citizens Charter[51] on 04-11-2011, to ensure that women and children are not harassed.
Taking into the consideration, in the light of the directions/orders issued by the Supreme Court and various High Courts from time to time regarding the misuse of Section 498A, IPC and also on the report given by Justice V.S Malimath Committee on Reforms of Criminal System (2003), that the remedial measures to reduce the misuse of Section 498A, IPC, the Ministry of Home Affairs have issued ‘advisories’ to all the State Governments and Union Territory Administrations on 20th October 2009 for taking effecting measures for prevention of misuse of Section 498A, IPC. It is laying down that in cases of matrimonial disputes, the first recourse should be to effect conciliation and mediation between the warring spouses and their families and recourse to filing charges under Section 498A, IPC may be resorted to only when such conciliation fails and where there appears a prima facie case under Section 498A, IPC and other laws. But, merely an advisory is not enough for Police who hound arrests of all accused named in the complaint. Nevertheless, a 2007 Standing Order by the Police Commissioner, Delhi[52] mandating the arrests in all such cases, is made with prior written approval of DCP, merits emulation by other states.
5.5.1.1 Directions issued to the Police Agency to check indiscriminate and unwarranted arrests by the Ministry of Home Affairs
To put an effective check on the misuse of Section 498A, IPC, the guidelines issued by the Ministry of Home Affairs that have been emphasized below:
(a) Power of arrest without warrant should be exercised only after reasonable satisfaction as to bona fides of a complaint,
(b) In matrimonial disputes, it may not be necessary to exercise immediate power of arrest but to attempt the recourse to other dispute settlement mechanisms,
(c) The recourse to conciliation between warring spouses and their families may be taken in any case of matrimonial dispute before filing the First Information Report (FIR) under Section 498A, IPC,
(d) Recourse to filing FIR under Section 498A, IPC may be resorted to where conciliation fails to and where there appears a prima facie case under the said provision or other laws,
(e) The Police should not be allowed to summon randomly a husband and his family members to the Police station in the name of counselling or questioning in case marital disputes,
(f) Police involvement in the counselling should be banned,
(g) Counselling should be conducted by professionally trained counsellors and not the Police.
The mechanism instituted under the Protection of Women from Domestic Violence Act, 2005 may be used for this purpose. The Committee has been appraised by the Protection of Women from Domestic Violence Act, 2005 provides for a comprehensive mechanism for counselling between the parties to arrive at a settlement (under Section 14 r/w Rule 14 of PWDVA). Increasing the use of Protection of Women from Domestic Violence Act, 2005 and its provisions on counselling would lead to a decrease in the number of complaints filed under Section 498A, IPC. There is also need for sensitization of the Police so that they can encourage women approaching them to use the Protection of Women from Domestic Violence Act, 2005.
(h) In this context, the committee appreciates that the States of Andhra Pradesh and the National Capital Territory of Delhi have issued orders to regulate and restrict the power to arrest under Section 498A, IPC by prescribing that such arrests can be done only with the prior written approval of the DCP/DSP. The committee finds merit in this action and recommends that other State Governments and Union Territory Administrations should follow suite and arrests under Section 498A, IPC should be done only with the written order of the Police officer of the level of the DCP or equivalent and for acceptable reasons. The Committee recommends that the State Governments and Union Territory Administrations may issue necessary directions in this regard.
5.5.1.2 Bhagat Sigh Koshyari Committee[53]
In response to the massive demands from all the communities of the society, a ten- member committee on Section 498A, IPC was established by the Chairman Rajya Sabha under the Chairmanship of Bhagat Sigh Koshyari . A gist of all responses from all the stakeholders like the representatives of National Commission for Women (NCW) and National Commission for the Protection of Child Rights (NCPCR) including suggestions from individuals/ organisations, and it has been suitably incorporated in its 140th Report and presented it to the Chairman, Rajya Sabha on 30th August 2011.
Having gone through the evidence produced before it by different stakeholders, the committee finds it difficult to give a straight answer to the request made in the petition in terms of yes or no. The stakeholders vehemently protested against the misuse of the provision of Section 498A, IPC. The fact that these provisions of the IPC are being misused stands corroborated through several sources. In the first place, the Ministry of Home Affairs had come out with some formal proposals to amend Section 320 of the Code of Criminal Procedure, 1973 in the year 2003 so as to make the offence under Section 498A, IPC compoundable. However, the proposed amendments were withdrawn after intense pressure from various women’s organisations.
Next, there are recommendations of Justice V.S. Malimath Committee of Reforms of Criminal System (2003), which considered the implementation of Section 498A, IPC and recommended that the offence in this Section may be made bailable and compoundable , to give chance to the parties in the marriage to come together. Further, the Committee finds several pronouncements of the Supreme Court as well as various High Courts from time to time highlighting in strong terms of the instances of misuse of provisions of Section 498A, IPC and recommending remedial action. All these inputs received by the committee strongly advocate modifications in the provisions of the existing law in order to prevent its misuse. The committee thus, is deeply moved by the serious concern; it has come across from different quarters calling for modifications in Section 498A, IPC. But, the Committee is unable to oversee the inputs; it has received from the Ministry of Women and Child Development (MWCD), the National Commission for Women (NCW), The National Commission for Protection of Child Rights (NCPCR) and other agencies that have pleaded before the Committee against the petition.
5.5.1.3 Justice V.S. Malimath Committee
The rapid and alarming increase of violent and organised crimes, criminalization of politics, hijacking, terrorism, mass murders, trafficking and low rate of convictions particularly in cases of serious offences, inordinate delay in disposal of criminal cases leading to huge pendency of cases all over the country, led the Government of India, Ministry of Home Affairs, in March 2003 to appoint a Committee on Reforms of the Criminal System, headed by Justice V.S.Malimath, to consider means for revamping Criminal System, with broad and comprehensive terms of references. The Committee after going through the various aspects of Criminal System has given 158 recommendations of far-reaching significance. In Part IV, under the Chapter ‘Crime and Punishment’, the committee discusses about the heartless provision of Sec 498A IPC in Paras 16.4.1, 16.4.2, 16.4.3, 16.4.4 and 16.4.5.397
The recommendations of the Committee on the implementation of Section 498A, being relevant, are given below.
16.4.1 Section 498A, IPC is intended to protect the wife from being subjected by the husband or his relatives to cruelty. Cruelty for the purpose of this Section means willful conduct that is likely to drive a woman to commit suicide or cause grave injury or damage to life, limb or health, mental or physical. It also includes harassment by coercing to meet unlawful demands. This is a very welcome measure. But what have bothered the committee are the provisions which make this offence non-bailable and non-compoundable.
16.4.2 The woman who lives with the husband and his family after marriage is expected to receive affection and caring and not cruelty and harassment. True to the Indian tradition the woman quietly suffers without complaining, many inconveniences, hardships and even insults with the sole object of making the marriage a success. She even tolerates a husband with bad habits. But then, when her suffering crosses the limit of tolerance she may even commit suicide. For the Indian woman, marriage is a sacred bond, and she tries her best not to break it. As this offence is made non-bailable and not-compoundable it make reconciliation and returning to the marital home almost impossible.
16.4.3 If the woman victim lodges an FIR alleging the commission of the offence under Section 498A, IPC her husband, in-laws and other relatives of the husband would be arrested immediately. If she has no independent source o income she has to return to her natal family were also support may not be forthcoming. Her claim for claim for maintenance would be honoured more in default than in payment especially if the husband has lost his job or suspend from his job due to the arrest. Where maintenance is given, it is often a paltry sum. Even when there is a divorce or reconciliation, the criminal case continues as Section 498A, IPC is non- compoundable.
16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family be immediately arrested, and there may be a suspicion or loss of job. The offence alleged being non-bailable, innocent person languish custody. There may be a claim for maintenance adding fuel to the fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realise the mistake committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if, she wishes to make amend by withdrawing the complaint, she cannot do so as the offence is non- compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.
16.4.5 This Section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non-compoundable makes an innocent person under stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is, therefore, necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together.
There is a general complaint that Section 498A, of the IPC regarding cruelty by the husband and his relatives, is subjected to gross misuse and many times operates against the interest of the wife herself. This offence is non-bailable and non-compoundable. Hence, husband and other members of the family are arrested and can be behind the bars which may result in husband losing his job. Even if the wife is willing to condone and forgive the lapse of the husband and live in matrimony, this provision comes in the way of spouses returning to the matrimonial home. This hardship can be avoided by making the offence bailable and compoundable.
Acceptance or implementation of the recommendations made by Justice V.S. Malimath Committee would require amendments to the Indian Penal Code and the Code of Criminal Procedure thorough an Amendment Bill. Since, the Criminal Law is in the concurrent list of the Seventh Schedule to the Constitution of India and these laws are administered by the State governments and amendment to them requires consultation with the State Governments. The Committee’s Report is being processed in consultation with the State Governments, and no-time frame can be fixed. Moreover, it appears that the recommendations of the committee some of which are of great significance, like previous committees will find a place in archives and libraries only.
5.5.1.4: Law Commission of India Reports
The Law Commission of India in its 154th Report (1996)398 suggested suitable amendments to Section 498A of the Indian Penal Code, which was reiterated later, in its 177th Report (2001)399 and 237th Report (2011).400
Prior to this, the Law Commission in its Forty-First Report (September, 1969) on the Code of Criminal Procedure, 1898, came to the conclusion that it was not feasible to formulate any general rule for determining compoundable offence. The suggestion to evolve a general rule to determine compounding of the offence by relating it to the punishment provided for the offence was not accepted. The broad principle that forms the basis of the present scheme is that where the offence is essentially of a private nature and relatively not serious, it is compoundable. The commission observed that a rule to the effect that an offence will be compounded if the maximum punishment provided is not more than three years imprisonment will, no doubt, be definite but will not, in its opinion, be suitable.
The Law Commission has undertaken a comprehensive review of the Code of Criminal Procedure in its 154th Report and its recommendations have been found very appropriate, particularly those relating to provisions concerning arrest, custody and remand, procedure for summons and warrant cases, compounding of offences, victimology, special protection in respect of women and inquiry and trial of persons of unsound mind. The Commission in its Report recommended that Section 498A, IPC be inserted in the Table under sub-section (2) of Section 320, CrPC where it can be compounded with the permission of the Court. Certain safeguards have been suggested to dispel the apprehension that the wife will be coerced to enter into a compromise. The proposed provision will ensure that the offer to compound the offence is voluntary and free from pressures, and the wife has not been subjected to ill-treatment subsequent to the offer of compounding.401
According to its 177th Report which deals with ‘arrest’ the Commission has been found necessary to revise the law to maintain a balance between the liberty of the citizens and the society’s interest in maintenance of peace as well as law and order.
The Law Commission of India, in its 237th Report (2011) recommended that the offence under Section 498A, IPC should be made compoundable with the permission of the Court. Certain precautions to be taken before granting permission are suggested. Certain safeguards have been suggested to dispel the apprehension that the wife will be coerced to enter into a compromise.
In the year 2012, in the wake of controversies sprouting up against Section 498A, IPC and a certain Civil Society Groups/Men’s Rights activists raising their voices of dissent against Section 498A which they allege is being used as a weapon of arrest on demand by disgruntled wives against their husbands and in-laws, and also repeated observations made by the Supreme Court and the High Court’s; the Home Secretary, Government of India requested the Law Commission of India to consider suggesting amendment, if any to Section 498A, IPC or other measures to check the alleged misuse of the said provision.
The Commission in its 243rd Report (2012)402, has pointed out that proper observance of the statutory guidelines regarding arrest and initial investigation to verify the genuineness of the allegations and resorting to arrest only in cases of serious magnitude such as violence coupled with the steps taken for effecting conciliation through the media of professional counselors, trained mediators, local respected persons etc., would go a long way in improving the situation.
The summary of recommendations of Law Commission of India has been reproduced below403:
19.1 Misuse of Section 498A, IPC in many cases has been judicially noticed by the Apex Court as well as various High Courts. This has also been taken note of by Parliamentary Committee on Petitions (Rajya Sabha). However, misuse (the extent of which is not established by any empirical study) by itself is not a ground to abolish Section 498A, IPC or to denude the Section of its teeth. The social objective behind the Section and the need for deterrence should be kept in view while at the same time ensuring that the complaints filed with false or exaggerated allegations out of ulterior motives or in a fit of emotion should be curbed.
19.2 The need to spread awareness of the provision and available remedies especially in rural areas both among women and men is necessary and in this regard the District and Taluka Legal Services Authorities, the media, the NGOs and law students can play a meaningful role.
19.3 All endeavours shall be made for effecting reconciliation at the earliest with the help of professional counsellors, mediation and legal aid centres, retired officials/medical and legal professionals or friends and relations in whom the parties have faith. An action plan has to be drawn up for forming the panels in every district as well as extending necessary help to the aggrieved women. The Investigation Officer should refrain from participating in the conciliation process.
19.4 The law on the question whether registration of FIR could be postponed for a reasonable time is in a state of uncertainty. Some High Courts have been directing that FIR shall not be registered under Section 498A, IPC (except in cases of visible violence, and the like) till the preliminary investigation is done and reconciliation process is completed. The issue has been referred to a larger Bench of Supreme Court recently. In this regard, the police have to follow the law laid down by the jurisdictional High Court until the Supreme Court decides the matter.
19.5 The offence under Section 498A, IPC shall be made compoundable, with the permission of Court and subject to cooling off period of 3 months, as already recommended by this Commission in 237th Report. The preponderance of view is to make it compoundable.
19.6 The offence should remain non-bailable. However, the safeguard against arbitrary and unwarranted arrests lies in strictly observing the letter and spirit of the conditions laid down in Sections 41 and 41A, Cr.P.C relating to power of arrest and sensitizing the Police on the modalities to be observed in cases of this nature. The need for custodial interrogation should be carefully assessed. Over-reaction and inaction are equally wrong. Police should take necessary steps to ensure safety of the complainant and to prevent further acts of harassment.
19.7 The Home Ministry’s Advisory dated 20th October 2009 on the subject of ‘misuse of Section 498A, IPC’ as well as the guidelines /additional precautions set out in para 14 of this Report should be compiled and at a conference of DGPs specially convened for this purpose by the Home Secretary, they must be apprised of the need to follow the said principles and guidelines and to issue circulars/standing orders accordingly. There should be a monitoring mechanism in the Police Department to keep track of Section 498A cases and the observance of guidelines.
19.8 Without prejudice to the above suggestions, it has been recommended that sub-section (3) shall be added to Section 41, CrPC to prevent arbitrary and unnecessary arrests. The legislative mandate which is not materially different from the spirit underlying Sections 41 and 157 CrPC should be put in place in the interests of uniformity and clarity.
19.9 The compensation amount in Section 358, CrPC shall be increased from one thousand rupees to fifteen thousand rupees and this proposed change is not merely confined to the Section under consideration.
19.10 The women police stations (under the nomenclature of Crimes against Women Cell) should be strengthened both quantitatively and qualitatively. Well trained and educated lady police officers of the rank of Inspector or above shall head such police stations. CWCs should be established in every district with adequate trained personnel. Panels of competent professional counsellors and respected elders / professionals who can counsel and conciliate should be maintained by SP/SSP for every district. There shall be separate room in the police stations for women complainants and the accused women in S, 498A related cases.
19.11 Hostels or shelter homes for the benefit of women who would not like to go back to marital homes should be maintained in cities and District headquarters with necessary facilities. The assistance given to them shall be treated as a part of social welfare measure which is an obligation of the welfare State.
19.12 The passport of non-resident Indians involved in Section 498A, IPC cases should not be impounded mechanically and instead of that, bonds and sureties for heavy amounts can be insisted upon.
19.13 Above all, the need for expeditious disposal of cases under Section 498A, IPC should be given special attention by the prosecution and Judiciary.
5.5.2 Legislative Measures
Except the State of Andhra Pradesh, no State Government has taken steps to make the offence under Section 498A, IPC to be compoundable. The cap of Rs.2000/- has been removed from Section 406, IPC to be compoundable.404 Earlier the offence was compoundable only in those cases, where the value of the property involved in the offence does not exceed Rs.2000/-. However, legislature has been conscious enough to the fact that conciliation is the best way to settle family and matrimonial disputes. Provisions have been made in this regard.405
• Legislative action (subsequent to Arnesh Kumar decision):
The Code of Criminal Procedure (Amendment) Act, 2008 and the Code of Criminal Procedure (Amendment) Act, 2010406 were passed to amend Section 41, CrPC and incorporate Sections 41A, B, C and D. These provisions, inter alia, relate to the power of the police to arrest without warrant. Section 41A is the most important provision which mandates that police should not automatically arrest a person when a complaint is received against him. It provides that the police calling upon him to be present before the police officer for questioning. This is very similar to the summons issued by a Court of law directing a person to be present before the Court either as an accused in a criminal case or as a defendant in a civil matter or as a witness in any case. After receiving the said notice, if the person named in that notice complies with it by appearing before the police officer, the latter may question him and if he concludes that he has committed the offence, he shall be arrested him, provided that reasons to be recorded, the police officer is of the opinion that he ought to be arrested. This restriction for automatic arrest applies to all offences which are punishable with imprisonment for seven years or less.
• Code of Criminal Procedure (Amendment) Acts, 2008 & 2010 and its impact
1. Amendments relating to arrest - Amendments to Section 41- Power of police to arrest without warrant
Section 41A which was inserted by the Criminal Law (Amendment) Act of 2008 (5 of 2009) deals with amendments relating to power of police to arrest without warrant. In the light of objections from certain quarters to certain provisions of the Code of Criminal Procedure (Amendment) Act, 2008, the said Act could not be brought into force. So, Section 41A, CrPC was further amended by the Criminal Law (Amendment) Act of 2010 (41 of 2010). The need to amend the Code of Criminal Procedure, 1973 to ensure fair and speedy justice and to tone up the Criminal Justice System has been felt for quite some time.
The net effect of these amendments is summarized below for due attention of the police officers.
• This amendment stops the police from making arbitrary arrests. The very fact that reasons shall have to be recorded in writing fixes responsibility and makes the Police Officer accountable for justifying the arrest. Recording an arbitrary reason would be difficult, since it would need to be substantiated and will also be open to judicial scrutiny. As a matter of fact, to have power to make an arrest is one thing, but to justify that arrest is something completely different. And it is precisely this gap which the amendment seeks to bridge.
• The amendment lays considerable stress on the importance of investigation before an arrest is made or not made; which further means that the officer must be convinced about the bonafides of the case. A mere complaint would not be enough to exercise the power of arrest.
• Insertion of Section 41A, pertaining to issue of ‘Notice of Appearance’, is in line with the Right to Life and Liberty of Indian citizens. It would also help bring down the number of arrests, which in turn would decongest the crowded Indian jails. Simultaneously, the innocents too can feel secure in case they stand a chance of exposure to implication in false cases.
(a) It is now compulsory for the police to record the reasons both for making as well as for not making an arrest on the basis of a complaint or information or reasonable suspicion in respect of a cognizable offence for which the maximum punishment prescribed is 7 years or less. Henceforth, no person can be arrested for a complaint or suspicion of involvement in such an offence without a warrant unless:
1. Such person commits a cognizable offence in the presence of a police officer; or
2. When the cognizable offence is punishable with imprisonment for a term which is less than 7 years or may extend up to 7 years, the police officer has reason to believe that such person has committed the offence and is satisfied that such arrest is necessary,
3. To prevent such person from committing any further offence; or
4. For proper investigation of the offence; or
5. To prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or
6. To prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case; or
7. To ensure his presence before the court as and when required.
(b) In all cases where the arrest of a person is not required under the provisions of Sub section (1) of Section 41, the police officer shall, issue a notice directing the person to appear before him and to comply with the terms of notice. He can be arrested if such person fails to comply with such direction.
(c) The police officer while making arrest shall (a) bear an accurate, visible and clear identification, (b) prepare a memorandum of arrest which shall be attested by at least one witness and countersigned by the person arrested, (c) inform the person that he has a right to have a relative or friend informed of his arrest.
(d) When any person is arrested for any offence and interrogated by the police, he shall be entitled to meet an advocate of his choice during interrogation, though not throughout the interrogation.
(e) Section 46 has been amended by adding proviso to sub section 1 which prescribes that the “where a women is to be arrested, unless the circumstances indicate to the contrary, her submission to custody on an oral intimation of arrest is presumed” and “unless the circumstances otherwise require or unless the police officer is a female, the police officer shall not touch the person of the woman for making her arrest.”
(f) Section 54 in the pre-amended Cr PC required examination of arrested person by a medical practitioner at the request of arrested person on production before a Magistrate. The amended Section 54 mandates compulsory medical inspection in all cases of arrest by the police. A copy of the medical report is to be provided to the arrested person or his nominee.
(g) Section 55A has been incorporated which bestows upon the person having custody of the accused, the duty to take reasonable care of the health and safety of the accused. Thus the police are duty bound to take all reasonable care of the health and safety of the accused in custody.
• Protests by the Advocates
Surprisingly, when the aforesaid law (i.e., Section 41A) was enacted a majority of the advocates practicing on the criminal side in various courts in the country raised a hue and cry mainly because it would deprive them of chances to file bail applications which are a substantial source of income for such advocates. This provision of law was misinterpreted by the Advocates to the effect that the provision authorised the police to arrest the suspects and grant bail, referred to as ‘station bail’, that the police are prone to misuse this supposed power, that this abuse could be prevented if the police are made to produce every arrestee before the Courts (so that the advocates could continue to file bail applications by taxing their clients. However, the Government did not yield to such protests and the aforesaid enactments were brought into effect. Unfortunately, as the legal profession itself was averse to the said well meaning law, its implementation was forgotten.
• Latest Position
Relying upon the recommendations of the Law Commission in its 243rd Report and the Malimath Committee, the Government proposes to make two significant changes to Section 498A, IPC which at present makes dowry harassment and torture a non-bailable offence. One is to make the offence a compoundable one, that is the complainant and the accused can enter into a compromise and charges shall be dropped once the court stamps its approval. The other is to enhance the penalty for misusing the law - that is, filing false and malicious complaints, from Rs.1000 to 15000.
5.5.2 Judicial Measures
The Supreme Court and various High Courts, time and again have laid down several guidelines, through judicial pronouncements to protect the liberty of the citizens and harassment of innocent persons of the cases of 498A, IPC and other matrimonial provisions.
5.5.3.1 Declared matters u/S.498A, IPC are essentially civil in nature
When a criminal case is instituted either on complaint or on Police charge sheet, summons are issued for the appearance of accused or if accused does not appear, processes to compel his appearance are taken as provided under the Code. However, due to the fault on the part of the Police, most of the times, summons is not served properly, and Courts are bound to issue coercive processes against accused. The High Courts have stressed on the duty of the Trial Courts while issuing processes. The Supreme Court said that a matter under Section 498A, IPC is essentially civil in nature,[64] therefore, in such matters it is the duty and obligation of the Criminal Court to exercise a great deal of caution in issuing the process.[65] Personal liberty and reputation of a person is most cherished property, and it should not be interfered with in a routine manner. Coercive processes against accused should be issued as a last resort. While making remand, Judge should not act as a ‘rubber stamp’ and must apply his judicial mind.[66]
5.5.3.2 Arrests should be made in exceptional cases
Arrest of a person is deprivation of personal liberty and protection life. Therefore, arrest of the person/s accused in 498A, IPC cases should be made in exceptional cases only. In this sense, the Allahabad High Court issued directions to the Police authorities to make the arrest only after complying with newly amended provisions of Sections 41 and 41A, CrPC. Further, it is directed the Magistrates to exercise great caution and care while granting remand in cases of matrimonial disputes. Remand has to be refused where arrest is made without complying with newly amended provisions of Sections 41 and 41A, of the Code and accused has to be released on bail.
The Delhi High Court in the case of Court on its own motion v. C.B.I, 407 observed that in
23 In offences under Sections 498A/406, IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz., being of the highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature, and highest magnitude arrest should always be avoided.
24. In this Court every day ten to twenty matters for quashing the FIRs under Sections 498A/406, IPC are taken up as all marriages end in divorce where relatives of the husband or other are sent to jail. Unfortunately, sufferers are young girls between the ages 20 to 28 years. Very few cases end up in full trial and conviction. These are the offences whose deterrence has proved worse than the remedy.
25. It was in view of this malady that this Court had strongly recommended for making the offence under Section 498A, IPC bailable and compoundable if society wants to salvage and save the institution of marriage.
26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be tolerated by any civilized society.
Arrest of accused should be an exception and not a rule from the allegations set out on FIR and other subsequent allegations or material collected during the investigation, if necessary, only the prime/main accused whose primary role on commission of the offence has been established should be arrested and that too after the prior written approval of the DCP. The investigation officer s/Station House Officers shall mandatory comply the above directions in dealing with cases under Sections 498A/406 directed by the Court.
The Madras High Court in Tr.Romaiah v. State, Inspector of Police, Tamilnadu ,[68] through Justice R.Regupathi, has issued the following observations to be followed for filing of the cases registered under Dowry death/Suicide in All Women Police Stations.
i. Except in cases of Dowry Death/suicide and offences of a serious nature, the Station House Officers of the All Women Police Stations are to register FIR. Only on approval of the Dowry Prohibition Officer concerned.
ii. Social workers/mediators with experience may be nominated and housed in the same premises of All Women Police Stations along with Dowry Prohibition Officers.
iii. Arrest in matrimonial disputes, in the particular arrest of aged, infirm, sick persons and minors, shall not be made by the Station House Officers of the All Women Police Stations.
iv. If arrest is necessary during the investigation, sanction must be obtained from the Superintendent of Police concerned by forwarding the reasons recorded in writing.
v. Arrest can be made after filing of the final report before the Magistrate concerned if there is non-cooperation and abscondence of accused persons, and after receipt of the appropriate order (Non-Bailable Warrant).
vi. Charge sheet must be filed within a period of 30 days from the date of registration of the FIR and in case of failure; extension of time shall be sought for from the jurisdiction Magistrate indicating the reasons for the failure.
vii. No weapon including Lathis/physical force is used while handling cases at the All Women Police Stations.
viii. Complainants/victims should be provided with adequate security/accommodation at Government Home and interest of the children must be taken in consideration.
ix. Stridhana properties/movables and immovable to be restored at the earliest to the victims/complainants and legal aid may be arranged for them through Legal Services Authority for immediate redress of their grievances.
Though suitable directions have been given to the Police, in particular to the Station House Officers, still there may be scope for misuse of power. The directions/instructions are only illustrative and not exhaustive.
The Delhi High Court in Chander Bhan & Anr. v. State, [69] through Justice Kailash Gambhir has passed the following guidelines to be strictly followed by the Police authorities for arresting the persons accused of the cases registered under Sections 498A/406 IPC.
“(A) (i) No case under Sections 498A/406 IPC should be registered without the prior approval of DCP/Addl.DCP.
(ii) Arrest of main accused should be made only after thorough investigation has been conducted and with prior approval of the ACO/DCP.
(iii) Arrest of the collateral accused such as father-in-law, mother-in-law, brother-in-law or sister-in-law should only be made after prior approval of DCP on file.
(B) Police should also depute a well trained and a well behaved staff in all the crime against women cells especially the lady officers, all well equipped with the abilities of perseverance, persuasion, patience and forbearance.
(C) FIR in such cases should not be registered in a routine manner.
(D) The endeavour of the Police should be scrutinize complaints very carefully and then register FIR.
(E) The FIR should be registered only against those persons against whom there are strong allegations of causing any kind of physical or mental cruelty, as well as breach of trust.
(F) All possible efforts should be made, before recommending registration of any FIR, for reconciliation and in case it is found that there is no possibility of settlement, and then necessary steps in the first instance is taken to ensure return of Streedhan, and dowry articles etc. by the accused party to the complainant”.
In compliance of orders of the Delhi High Court, the DGPs of the state Police, in consultation with the Government have issued circular orders addressed to all the regional IGs/DIGs/SSPs/SPs in-charge of all Districts and Departmental Heads of other Police units to strictly enforce the newly introduced amendments, viz. sub-Section 41(1) (b)408 and 41A,409 Code of Criminal Procedure, 1973. The provisions of Sections 41 (1) (b) and Section 41A of the Code, refrain the Police Officer from routinely arresting persons wanted in cases punishable by imprisonment up to seven years, unless in particular cases, the exceptional circumstances enumerated in Section 41(1) (b) of the Code, exist, after recording the reasons for arrest.
5.5.3.3 The Case Flow Management in Subordinate Courts Rules, 2012
On 15th June 2016, the High Court of Judicature of Hyderabad inserted a new Chapter as Chapter XXI in Civil Rules of Practice and Circular Orders 1980 under the provisions of Sections 122, 126 and 89 of Civil Procedure Code, 1908. These Rules shall be called ‘ the Case Flow Management in Subordinate Courts Rules, 2012 ’ and apply to the suits and other civil proceedings instituted or pending before the Civil Courts or Tribunals subordinate to the High Court. The rationale of inserting this Chapter is to bring down the unnecessary delays in the Civil Courts and Tribunals.
Rule 3 deals with ‘ Categorization of suits and other proceedings ’.
Clause (1) of the Rule 3, provides that the Presiding officer of the Court is empowered to categorize the suits and proceedings in his Court into four tracks, viz. Track-I, II, III and IV.
Track-I comprises with the cases pertaining to maintenance, child custody, appointment of guardian and wards, and visiting rights.
Track-II comprises with the cases pertaining to divorce, execution and eviction.
Track-III comprises with the cases pertaining to partition, easements, trademarks, copy rights, patents and intellectual property rights, and
Track-IV such other matters as are not included in Tracks I to III.
Clause 2 provides that the Presiding officer shall endeavour to dispose of the cases in Track-I within 9 months, the cases in Track-II within 12 months, and the cases in Track-III and IV within 24 months from the date appearance or deemed appearance of defendant-respondent, in the proceedings. However, Clause 3 is an exception to Clause 2, according to which the Presiding officer, at the request of the parties and for valid reason may dispose of the case earlier than the time stipulated above, irrespective of the Track norms prescribed.
Rule 9 deals with ‘ Reference of cases to Mediation, Conciliation and Lok Adalat’.
Clause (1) of the Rule 9 provides that ‘the Presiding officer, after written statement or counter is filed, shall explore the possibility of a settlement between the parties, and if he finds that there exists such possibility, he shall proceed under Section 89 of the Civil Procedure Code for reference to the Alternative Dispute Resolution’ in the manner prescribed in the Andhra Pradesh (Alternative Dispute Resolution) Rules, 2005.
Clause (2) provides that where a matter is referred to for ‘Arbitration or Conciliation or Lok Adalat or for Judicial Settlement, it shall be dealt with in accordance with the provisions of the Arbitration and Conciliation Act, 1996 and the Legal Services Authority Act, 1987 as the case may be.
Clause (3) provides that ‘when a matter is referred for mediation and the mediator submits the terms of settlement entered into between the parties, in writing’ in accordance with the Andhra Pradesh Civil Procedure (Mediation) Rules, 2005 the Court shall render judgment in terms of the settlement, provided that the terms of settlement shall not be opposed to law.
In this connection, it is important to mention the response of the High Court of the State of Andhra Pradesh. Very recently, the High Court of Judicature of Hyderabad inserted a new Chapter as Chapter XXI in Civil Rules of Practice and Circular Orders 1980 under the title ‘ the Case Flow Management in Subordinate Courts Rules, 2012 ’ with an object to bring down the cases that are instituted or pending before the Civil Courts or Tribunals subordinate to the it.
5.5.3.4. Role of Judicial Magistrates, while dealing with the matrimonial matters
The Madras High Court in Tr.Romaiah v. State, Inspector of Police, Tamilnadu ,410 has issued the following outlines about the role of the Judicial Magistrates and their effective functioning in deriving a positive outcome.
(i) When the investigating officers seek remand of the accused, the Magistrates must examine the necessity for the same and only where there are valid grounds for believing that accusation or information is well-founded and it appears that investigation cannot be completed within a period of 24 hours, remand may be ordered.
(ii) Violation of human rights and infringement of personal liberties must be viewed seriously.
(iii) Except in cases of grave nature viz., dowry death, murder, suicide, hurt, etc., in other matters like matrimonial disputes between spouses where it may not take much time for the Police Officer to interrogate/investigate, remand should not be ordered mechanically, for, remand of an accused by a Magistrate is not automatic one on mere request of the investigating officer and sufficient grounds must exist for the Magistrate to exercise the power of remand. To put it clear, a requisition of remand by the Police must accompany the Case Diary, whereupon, the Magistrate must satisfy himself as to the adequacy and genuineness of the grounds necessitating judicial custody and while passing orders for remand or extension of remand, he must be alert to see that the liberty of the citizen is not violated by the Police due to arbitrary exercise of power. Though a detailed speaking order is not required for remand, application of the judicial mind is absolutely necessary.
(iv) Further, it is provided in the Code that remand should not exceed 15 days at a time, but, it does not mean that in all cases, remand for 15 days should be ordered invariably. At the time of production of accused before the Magistrates, they should examine the necessity and even at the time of initial remand, if it appears that remand is not necessary, bail application can be entertained PROVIDED the accused is prepared to furnish necessary surety or security as may be directed by the Court.
(v) Likewise, in cases where remand is required to be ordered, the period must be circumscribed depending upon the nature of the case, the materials produced by the prosecution and the actual requirement.
(vi) Though the law is manifestly clear, plain and patent, in many cases, it is witnessed that, on the mere request of the investigating officers, remand is ordered mechanically without application of mind and such illegal practice must be avoided.
(vii) It must also be borne in mind that the object behind the enactment of Section 498A IPC and the Dowry Prohibition Act is to check and curb the menace of dowry and at the same time, to save the matrimonial homes from destruction. Our experience shows that, apart from the husband, all family members are implicated and dragged to the Police stations. Though arrest of those persons is not at all necessary, in a number of cases, such harassment is made simply to satisfy the ego and anger of the complainant. By suitably dealing with such matters, the injury to innocents could be avoided to a considerable extent by the Magistrates, but, if the Magistrates themselves accede to the bare requests of the Police without examining the actual state of affairs, it would create negative effects thereby, the very purpose of the legislation would be defeated and the doors of conciliation would be closed forever. The husband and his family members may have a difference of opinion in the dispute, for which, arrest and judicial remand are not the answers. The ultimate object of every legal system is to punish the guilty and protect the innocents.
(viii) It is only before the jurisdiction of the Magistrate concerned, on conclusion of investigation, final report is filed, whereupon, trial of a case is taken up and, in matters relating to serious offences, and committal proceedings are initiated. It is the learned Magistrates who are empowered to order maintenance under Section 125 CrPC and award compensation in appropriate cases. Pending investigation, for grant of instant relief viz., to award interim maintenance, interim compensation, entrust custody of minor, forward the victims to Govt. Homes, issue search warrant, order bailable or non-bailable warrant, restore Stridhan properties, send the injured to the hospital, provide security, etc., to the complainant/wife/victim, the learned Magistrates can be approached and at such point of time, the Magistrates must see to it that orders are passed without any delay.
(ix) The preliminary job of an Investigating Officer including that of the Officers posted at the All Women Police Stations is only to collect the materials in respect of the dispute they are investigating and place the same before the Court/Magistrate.
(x) For adjudicating any issue, the dispute must be forwarded only to the learned Magistrate or the Family Court. In this type of fragile matters, in the name of ‘petition enquiry’ or investigation after registration of FIR. The Police should not be allowed to conduct lengthy Panchayats in Police stations. If the dispute could not be resolved within a period of one week, the conclusion must be reached one way or the other and the matter must be forwarded to the learned Magistrate concerned. Therefore, while considering such cases, the learned Magistrates are directed to apply their judicial mind having regard to the propounded principles and procedure and the various aspects pointed out in the course of this order and also to monitor scrupulous adherence to the instructions referred to above by the Police Officers concerned.
5.5.3.5 Cognizance of the offence under Section 498A, after expiry of a period of limitation
The question that arises in number of cases is that, whether the learned Magistrate could take cognizance of offence under Sections 498A and 406 IPC read with Sections 4 and 6 of the Dowry Prohibition Act, 1961 after expiry of three years?
In State of Punjab v. Sarwan Singh, 411 the Supreme Court noted that the object of Section 468 CrPC is to create a bar against belated prosecutions and to prevent abuse of the process of the Court and observed that this is in consonance with the concept of fairness of trial enshrined in Article 21 of the Constitution.412
The question of bar of taking cognizance after lapse of period of limitation in cases involving matrimonial offences came up before Supreme Court in Vanka Radha Manohari v.
Vanka Venkata Reddy, 413 the Supreme Court considered the applicability of Section 468 to the cases involving matrimonial offences, referred to the judgment in Sarwan Singh's Case, 414 and observed: "the object of introducing Section 468 was to put a bar of limitation on prosecutions and to prevent the parties from filing cases after a long time, as it was thought proper that after a long lapse of time, launching of prosecution may be vexatious, because by that time even the evidence may disappear. But, that consideration cannot be extended to matrimonial offences, where the allegations are of cruelty, torture and assault by a husband or other members of the family to the complainant. It is a matter of common experience that the victim is subjected to such cruelty repeatedly, and it is more or less like a continuing offence. It is only as a last resort that a wife openly comes before a Court to unfold and relate the day-to-day torture and cruelty faced by her, inside the house, which many of such victims do not like to be made public. As such, Courts while considering the question of limitation for an offence under Section 498A, IPC i.e. subjecting a woman to cruelty by her husband or the relative of her husband, should judge that question, in the light of Section 473 of the Code, which requires the Court, not only to examine as to whether the delay has been properly explained, but as to whether "it is necessary to do so in the interests of justice".
• Applicability of Section 473, CrPC
While examining the question as to whether it is necessary to condone the delay in the interest of justice, the Court has to take note of the nature of offence, the class to which the victim belongs, including the background of the victim. If the power under Section 473 of the Code is to be exercised in the interests of justice, then while considering the grievance by a lady, of torture, cruelty and inhuman treatment, by the husband and the relatives of the husband, the interest of justice requires a deeper examination of such grievances, instead of applying the rule of limitation and saying that with lapse of time the cause of action itself has come to an end. The general rule of limitation is based on the Latin maxim: v igilantibus, et non, dormentibus, jura subveniunt (i.e. the vigilant, and not the sleepy, are assisted by the laws). This maxim cannot be applied in connection with offences relating to cruelty against women.
For the offence of cruelty under Section 498A, IPC cognizance can be taken even after the expiry of period of limitation by virtue of the provisions of Section 473, CrPC since the offence is continuing nature. In Arun Vyas v. Anitha Vyas, 415 and it was held that the essence of the offence in Section 498A, IPC is cruelty as defined in the explanation appended to the section. It is a continuing offence and on each occasion on which the respondent wife was subjected to cruelty, she would have a new starting point of limitation under Section 472, CrPC. In cases of cruelty falling under Section 498A, IPC the Courts, should take cognizance of the offence even after the expiry of period of limitation, if the facts so warrant by placing reliance on Section 473, CrPC, which provides that Courts may take cognizance of an offence even beyond the limitation period in the interests of justice. The Supreme Court held that the women are oppressed, and interest of the demand that the Court protect the oppressed and punish the oppressor. It is also observed that Courts should construe liberally Section 473, CrPC, in favour of a wife, who is subjected to cruelty.416
5.5.3.6 Cruelty, a continuing offence
In Balakrishna Savalram Pujari Waghmare v. Shree Dhyaneswar Maharaj Sansthan ,417 Justice P.B Gajendragadkar observed that “it is the very essence of a continuing wrong that is an act which creates of a continuing source of injury and renders the doer of the act responsible and liable for continuance of the said injury. If, the wrongful act causes an injury which is complete, there is no continuing wrong, even though the damage resulting from the act may continuance. If, however, a wrongful act is of such a character that the injury caused by it, itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.
A similar question came before the Supreme Court in Bhagirath Kanoria v. State of Madhya Pradesh, 418 in which provisions of the Employee’s provident Funds and Family Pension Fund adopted the reasoning in the decision reported in State of Bihar v. Deokaran Nenshi, [419] . The question agitated in the Trial Court, in the High Court and also in the Supreme Court is that the complaint was barred by limitation; it having been filed more than a year after the default. It was held that non-payment of the employee’s contribution to the provident fund before the duedate is a continuing offence and therefore, the period of limitation fixed by Section 468 of the Code of Criminal Procedure, cannot have any application. The offence will be governed by Section 472 of the Code, according to which, a fresh period of limitation begins to run at every moment of time, during which the offence continues.
It was also held that “a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all.” It is one of those offences which arise out of a failure to obey or comply with a rule or its requirement and which involves a penalty, the liability for which continues until the rule or its requirement is obeyed or complied with. On every occasion that such disobedience or non-compliance, occurs and recurs, there is the offence committed. The distinction between the two kinds of offences is between an act or omission which constitutes an offence once and for all and an act or omission which continues and therefore, constitutes a fresh offence every time or occasion on which it continues. In the case of a continuing offence, there is thus the ingredient of continuance of the offence which is absent in the case of an offence which takes place when an act or omission is committed once and for all. Therefore, the offence under Section 498A, IPC is a continuing offence, right from the date of marriage till her filing such complaint to proper authorities together with its due trials.420
5.5.3.7 Territorial jurisdiction of cases under Section 498A, IPC vis-à-vis applicability of Section 472, CrPC
The victim has to run from pillar to post, when she decides and chooses to take legal course of action under Section 498A, IPC before appropriate authorities i.e. the Police or the Judiciary, who are also in a fix, while determining the exact territorial jurisdiction of such cases. As stated in V.S. Sharma v. State of Uttar Pradesh, [83] an example - wife married in “A” place, suffered cruelty inflicted on her by the husband in “B” place, came back to her parental place at “C” place, carrying the residue and trauma of such painful and bitter experience. It was said that cruelty continued at place “C”. Thus, the Courts at all places have territorial jurisdiction.
In Bhaskar Mitra V. State of Bihar and Ors, [84] the accused persons used to treat the complainant with cruelty and they used to torture her by various means and accordingly, the complainant having put to mental harassment and danger shifted to her brother’s place Giridih, where she started residing and filed the complaint petition for the ill-treatment meted out to her in the matrimonial home at Allahabad.
It was observed that the complainant could not have left her matrimonial house if she would not have been subjected to ill-treatment and torture at the hands of the accused persons and its consequences had ensued the complainant was residing with her brother, within the jurisdiction of the learned Chief Judicial Magistrate, Giridih and in that view of the matter, the Court at Giridih had jurisdiction to entertain and try such nature of offences as provided under Section 179 and Section 182 (2) of the Code of Criminal Procedure.[85]
In Arun Khanna v. State of Bihar and another, [86] it was said that, “the term ‘Cruelty’ in Section 498A, IPC has to give an extended meaning. If, the woman continued to suffer the mental agony or torture as a result of the acts done to her by the husband or his relatives forcing her to leave the matrimonial home, it must be said that the cruelty is continuing”. While construing the question of jurisdiction with respect to the offence under Section 498A one should not forget the social background and the object for which the said offence has been created. This penal provision is intended to provide benefit and relief to the females who constitute the weaker section of the society, the destitute who have been turned out of the husband's home. If they are to be compelled to file the complaint only at the place where the act was committed, that is, at the place where the husband/in-laws reside, she may not be able to prosecute the complaint properly which will not serve the desired object.
5.5.3.8 Transfer of a case under Section 498A, IPC
In Smt. Sujatha Mukherjee v. Prashanth Kumar Mukherjee ,421 the Supreme Court considering the prayer of accused persons to transfer a case under Section 498A, IPC from one Court to another on the ground that the alleged offence was not committed in the Court of learned CJM, Raipur, where the case was filed. Their Lordships have held that the offence of maltreatment and humiliation to the victim of mental and physical torture is a continuing offence and, as such, restored the jurisdiction of the Court where the complaint was filed.
5.5.3.9 Law of Compromise vs. Quashing of Criminal Proceedings
• Quashing of Criminal Proceedings involving non-compoundable offences in view of compromise
Section 320, CrPC prescribes which offences can be compromised by the parties themselves and which offences can be compromised by them with the permission of the Court. The remaining offences which do not find mention in Section 320, CrPC cannot be compromised even with the permission of the Court. It is not necessary to state that non-compoundable offences cannot be compounded by a Court. Since the offences involved in Section 498A, IPC and Section 4, the Dowry Prohibition Act, 1961 are non-compoundable. Quite often cases are registered under these provisions get sorted out and compromised out of court with the intervention of respectable people and well wishers and parties to the marital dispute. However, the trial court cannot grant permission to compound such an office in view of the specific provision contained in Section 320 (9), CrPC. the parties may have amicably settled their dispute and may wish to proceed no further in the matter. Unless and until prosecutions are dropped/quashed, an accused will continue to suffer prosecution and compromise arrived at between parties outside the court will not come to rescue him. In all such cases, under Section 482, CrPC inherent powers of the High Court are invoked in order to do complete justice between parties and to put a stop to abuse of criminal proceedings.422
At present parties have to approach High Court under Section 482, CrPC for quashing the proceedings after the parties have mutually sorted out their differences either by way of reunion or divorce. If the High Court forms an opinion that it is necessary to quash the proceedings to prevent abuse of the process of any court or to secure ends of justice, the High Court can do so.
In this situation, the question is that whether the inherent power of the High Court is subject to the limitations of Section 320, CrPC. In B.S.Joshi v. State of Haryana, 423 the question that arose before the Court was as to whether the proceedings could be quashed by the High Court by invoking its inherent power under Section 482, CrPC on accepting the compromise reached between the parties.
The Supreme Court in paragraphs 14 and 15 has held as follows:
"14 There is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper technical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of the Indian Penal Code.
15 In view of the above discussion, we hold that the High Court in exercise of its inherent powers can quash criminal proceedings or FIR or complaint and Section 320 of the Code does not limit or affect the powers under Section 482 of the Code."
The judgment of the Supreme Court in B.S.Joshi Case 424 came to be followed subsequently in Nikhil Merchant v. Central Bureau of Investigation .425 The Supreme Court in Manoj Sharma v. State, 426 by following the principles stated in the above cases has held in paragraph 23 as follows:
"23 There can be no doubt that a case under Section 302, IPC or other serious offences like those under Sections 395, 307 or 304B, IPC cannot be compounded and hence proceedings in those provisions cannot be quashed by the High Court in exercise of its power under Section 482 CrPC or in writ jurisdiction on the basis of compromise. However, in some other cases (like those akin to a civil nature), the proceedings can be quashed by the High Court if the parties have come to an amicable settlement even though the provisions are not compoundable. Where a line is to be drawn will have to be decided in some later decisions of this Court, preferably by a larger Bench (so as to make it more authoritative). Some guidelines will have to be evolved in this connection and the matter cannot be left at the sole unguided discretion of Judges, otherwise there may be conflicting decisions and judicial anarchy. A judicial discretion has to be exercised on some objective guiding principles and criteria, and not on the whims and fancies of individual Judges. Discretion, after all, cannot be the Chancellor's foot."
After the above three judgments, there were number of petitions filed before the Supreme Court on several occasions seeking to quash the proceedings involving non-bailable offences on the ground of compromise reached between the parties. While dealing with such petitioners, the Court also consistently has taken the view that the power of this Court under Section 482, CrPC could be invoked to quash the proceedings on the ground of compromise. However, it all depends upon the gravity and nature of the offence involved.
In Gian Singh v. State of Punjab ,427 a Bench of two Judges of the Supreme Court doubted the correctness of the aforesaid three decisions. The Bench, therefore, referred the matter for decision by a larger Bench. That was also a case where the offences involved were under Sections 420 and 120B, IPC Since 120B, IPC is a separate offence and non-compoundable, the Supreme Court did not permit it to be compounded.
In paragraphs 6 & 7 of the said Judgment, the Supreme Court referred the matter to a larger Bench by observing as follows:
6.. The Court cannot amend the statute and must maintain judicial restraint in this connection. The Courts should not try to take over the function of the Parliament or executive. It is the legislature alone which can amend Section 320, CrPC.
7.. We are of the opinion that the above three decisions require to be re-considered as, in our opinion, something which cannot be done directly cannot be done indirectly. In our prima facie, opinion, non-compoundable offences cannot be permitted to be compounded by the Court, whether directly or indirectly. Hence, the above three decisions do not appear to us to be correctly decided.
After the matter was referred to the larger Bench in Gian Singh Case [94], a similar petition seeking to quash the proceedings by invoking the inherent power under Section 482, CrPC on the ground of compromise in respect of a case involving offences punishable under Sections 406, 420, 385 and 506-II came to be considered by this Court in Hans Raj Saxena v. State. [95]
The learned Judge has preferred to follow B.S.Joshi case, Nikhil Merchant case and Manoj Sharma case by holding that though there is reference pending in Gian Singh case, the judgments in the cases referred have not been overruled so far. Therefore, according to the learned Judge, so long as the judgments are not overruled by a larger Bench on the reference made in Gian Singh case , the power under Section 482, CrPC could be invoked by the High Court to quash the proceedings on the ground of compromise reached between the disputing parties.
In paragraph 11, the learned Judge has held as follows:
11 Though the Supreme Court has referred the point to a larger bench whether the Court has power to permit the non-compoundable offences to be compounded, as on date, the judgments cited by the learned counsel for the petitioner being not overruled, this Court is of the view that the power under Section 482, CrPC could be exercised with care and caution in appropriate cases permitting the compounding of non-compoundable offences.
The High Court can exercise its inherent power not being limited or affected by any of the provisions of the Code, including Section 320, CrPC. But at the same time, as it has been well settled, the said inherent power cannot be exercised when there is a specific provision in the Code governing the field.428 The inherent power of the High Court under Section 482, CrPC is not inhibited by Section 320, CrPC.
5.5.3.10 Disparity in registration of FIRs by Police Officers
FIR is a pertinent document in the criminal law procedure and its main object from the point of view of the informant is to set the criminal law in motion and from the point of view of the investigating authorities is to obtain information about the alleged criminal activity so as to be able to take suitable steps to trace and to bring to book the guilty.
In State of Haryana and Others v. Bhajan Lal, 429 it has been laid down that
i) At the stage of registration of crime or case on the basis of information disclosing a cognizable offence in compliance with the mandate of Section 154 (1) of the Code, the Police Officer cannot embark upon an inquiry to ascertain as to whether the information is reliable or genuine or otherwise and refuse to register the case on that ground the information is not reliable or credible
ii) ‘Reasonableness’ or ‘Credibility’ of the information is not a condition precedent for registration of a case; and
iii) The condition which is sine qua non for recording an FIR is that
a) There must be an information, and
b) That information must disclose a cognizable offence.
The need to record an FIR with utmost dispatch has been emphasised by the Supreme Court. If it not done so, the following consequences result, as observed by the Court in Lalita Kumari v. Government of Uttar Pradesh and Others [98]
i) That there would be a great temptation to incorporate the details or circumstances advantageous to the prosecution; what may be lacking in the earlier information,
ii) It may benefit the evidence would be obliterated or destroyed, and thereby justice would be denied to the victim of the offence; and
iii) Power is given to the Police under the CrPC to make a seizure in the course of investigation not during the inquiry.
This would result in disappearance of the evidence. Further, the Court[99] pointed out, that “if the Police are given handle to hold preliminary inquiry, the offender will get a scope to fabricate evidence, and ultimately the Police will deny registration of an FIR on the ground that preliminary inquiry does not reveal any such offence having been committed at all”.
In spite of the weighty reason, the statutory duty to register an FIR when a complaint is received in respect of a cognizable offence, that the duty so cast is mandatory and gives no option to the Police Officer except to register the case. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The categories of cases in which preliminary inquiry may be made are as under: (a) Matrimonial disputes/family disputes, (b) Commercial offences, (c) Medical negligence cases, and (d) Corruption cases, and (e) cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over three months delay in reporting the matter without satisfactory explaining the reasons for delay.
There are several decisions to support the view that the mandatory duty to register is conditioned by several factors and circumstances.
The officer in charge of the Police Station is statutorily obliged to register a case and then to proceed with the investigation, if he even has reason to suspect the commission of the offence. The proviso (b) to Section 157 (1) CrPC permits a Police Officer to satisfy himself about the sufficiency of the grounds even before entering on an investigation. However, at that stage, the satisfaction that on the allegations, a cognizable offence warranting investigation is disclosed has only to be based on the FIR and other materials appended to it, which are placed before the Police Officer. Therefore, if it appears to the Police Officer that the matrimonial dispute between the spouses is either not of a grave nature or is the result of a conflict of egos or contains an exaggerated version, or where the complainant wife has not received any injury or has not been medically examined, he may even desist or defer the investigation in such a case. Historical experience has thrown up cases from both the sides where the grievance of the victim/informant of non-registration of valid FIRs [100] as well as that of the accused of being unnecessarily harassed and investigated upon false charges[101] have been found to be correct. Recently a single judge of the Allahabad High Court took serious note of Police in registering FIRs and issued certain guidelines to the Police and the Magistrates regarding registration of FIR and investigation into the matter. The Court even recommended for disciplinary action against Police Officers who do not register a genuine FIR.[102]
5.5.3.11 Application of Dowry laws to live-in relations
Section 498A, IPC makes cruelty against women by their husbands and in-laws as a criminal offence. So far, it has been possible for a man to avoid being brought under the ambit of this section by simply not marrying the woman in question. The literal interpretation of the section requires a wife to be treated cruelty for an offence to have been committed, and the logic was; where there is no wife, there can be no cruelty under the ambit of this section of the law.
In the case of Koppisetty Subbarao v. State of Andhra Pradesh, [103] before the Apex Court, a legal proposition comes up that whether dowry laws will apply to live-in relationships? Where in Koppisetty Subbarao had been accused of harassing his live-in partner for dowry. He defended himself saying that Section 498A of the Penal Code, did not apply to him since (a) he was not married to his live-in partner and (b) he was married to someone else. It was held that the word ‘husband’ in definition of Section 498A, IPC is not limited to cover only those persons who have entered into legally valid marriage. The thrust of the offence under Section 498A, IPC is subjecting of the woman to cruelty. Likewise the thrust of the offence under Section 304B, IPC is also ‘dowry death’. Consequently the evils sought to be curbed are distinct and separate from the persons committing the offending acts and there could be no impediment in law to liberally construe the words or expressions relating to the persons committing the offence so as to rope in not only those validity married but also anyone who has undergone some or other form of marriage and thereby assumed for himself the position of husband to live, co-habit and exercise authority as such husband over another woman. It was further held that having regarded to the facts of the case, though the prosecution failed to establish the offence under Section 306, IPC the evidence on record justified the conviction of the accused under Section 498A, IPC. The Supreme Court made it clear that the Court would not let a narrow interpretation of dowry come in the way of women’s rights. The nomenclature “dowry” does not have any magic written over it, and it is just a label given to demand of money in relation to the marital relationship.
5.5.3.12 Liberal and humane approach towards accused in granting anticipatory bail
The Higher Courts of the country are alive to the changing needs and pragmatic realities of the society. Recent judgments of the Supreme Court reflected that the Court has adopted humane approach towards accused persons, who are falsely implicated. It was held that ‘girlfriend’ or ‘concubine’ of the husband is not covered within the term “relative of the husband.”430 It may be a ground of judicial separation but not cruelty under Section 498A, IPC. Similarly, it has been held that ‘petty quarrels’ does not amount to cruelty under Section 498A IPC.431
In the case of Abdul Hamid Salat v. State of Chhattisgarh, 432 case was registered under Section 498A of the Penal Code and Sections 3 and 4 of the Dowry Prohibition Act, the parties had comprised and were living happily, it was held that, it is a fit case to grant anticipatory bail. In the case of M.P.Lohia v. State of West Bengal ,433 the offences charged under Sections 304B, 406, 498A, IPC and anticipatory bail was granted on the conditions of statutorily imposed under Section 438 (2), CrPC.
In the case of Anil Jain v. State,[108] the alleged offences were under Sections 498A and 406 of the Penal Code. The bail of the husband was resisted on the ground that Streedhan and jewellery weighing 35 tolas of gold were yet to be recovered. Anticipatory bail was granted to the husband subjecting to his depositing a sum of two lakhs in FDR in the name of the wife. As held in the case of B.P Mittal v. State, [109] while granting anticipatory bail no vexatious or oppressive conditions could be imposed.
5.5.3.13 Compromise and Compounding of the offence
Compounding an offence is settling or condoning the matter. Compounding an offence will have the effect of an acquittal in a case. Section 320, CrPC provides for compounding of certain offences by the parties directly and compounding of some offences with the permission of the Court. But, the offence of Cruelty under Section 498A, IPC is not compoundable under Section 320, CrPC. Quite often, cases which are registered under Sections 498A and 406, IPC get sorted out and compromised out of Court with the intervention of respectable people and well wishers and parties to the dispute, as result of compromise; do not want to prosecute such matters further. However, Trial Court cannot grant permission to compound such offences in view of the specific provision contained in Section 320 (9), CrPC. [110] The parties may have amicably settled their dispute and may wish to proceed no further in the matter. Unless and until prosecutions are dropped/quashed, an accused will continue to suffer prosecution and a compromise arrived at between parties outside Court will not come to the rescue of an accused who will continue to face trial till end. In all such cases, inherent powers of High Court under Section 482, CrPC are invoked in order to do complete justice between parties and to put a stop to abuse of criminal proceedings.
At present, parties have to approach High Court under Section 482, CrPC, for quashing the proceedings after the parties have mutually sorted out their differences either by way of a divorce or reunion. However, approaching High Court is quite expensive as it entails a fresh round of litigation. Secondly, quashing takes its own time, and procedural formalities have to be complied with it. Thirdly, High Court may at times get hyper-technical and decline either permission to compound non-compoundable offences or quashing the proceedings on the ground that the trial will decide the fate of the parties. And in case of some High Courts, a Single Bench will be precedent-bound by its Division Bench and Full-Bench judgments, taking contrary view to the effect that a non-compoundable offence cannot be compounded even by exercise of inherent powers by High Court.434
However, Section 498A, IPC being a very serious offence, is not included in Section 320, CrPC. However, there seems to be no agreement among different High Courts about Compounding of the offence under Section 498A, IPC despite the clear provision in Section 320(9), CrPC that ‘no offence shall be compounded except as provided by that section’. Several High Courts have held that ‘if the parties are willing to reconcile their differences adopting a “forget and forgive” approach, and if the husband and wife are living together, there should be no hesitation in allowing them to compromise in exercise of the inherent powers of the High Court under Section 482, CrPC to secure the ends of justice.’435 The Court in Mahesh Chand v. State of Rajasthan, 436 allows parties to compound even non-compoundable offences considering the relationship between the parties, the back ground of the case, the effect of reunion of the spouses on themselves and children and the like matters. Non-compoundability of an offence should not be made a dogma. The social purpose and need of justice should be kept in view. However, caution should be exercised in compounding non-compoundable offences.
Where the wife had condoned the matrimonial cruelty of which she was the victim and had resumed consortium with her husband, the Court found no obstraction in the provisions of the Section in permitting them to compound the complaint and therefore, ordered accordingly.437 In Daggupati Jayalakshmi v. State of Andhra Pradesh, 438 it was held that in a complaint under Section 498A, IPC a compromise between husband and wife was permissible even though the offence is non-compoundable. It added that the High Court can permit compounding of a non- compoundable offence in exceptional circumstances under its inherent powers.
The Supreme Court, in B.S.Joshi v. State of Haryana, 439 has set the judicial ambivalence at rest. Developing into the judicial propriety of High Court’s refusal, in the exercise of its inherent powers under Section 482, CrPC read with Article 226 of the Constitution, to compound criminal proceedings or quash FIR or complaint relating to Section 498A, IPC on the ground that Section 320, CrPC does not allow it to do so, the Supreme Court ruled that Section 320, CrPC does not neither limit or affect the inherent powers of a High Court for quashing criminal proceedings initiated under Section 498A, IPC. The Apex Court accordingly held that a High Court, when approached by the both the parties and jointly prayed for quashing of the criminal proceedings filed by the wife under Section 498A, IPC is, for securing the ends of justice, empowered to quash the criminal proceedings even though Section 498A, IPC is not made compoundable Under Section 320, CrPC.
In Ram Gopal v. State of Madhya Pradesh, 440, the Supreme Court has suggested the Legislature to make suitable amendments in this regard and a copy of the judgment has been send to Law Commission of India to consider the matter. The High Court of Allahabad has also issued the same directions to Government of Uttar Pradesh and Law Commission of the State441 ; it has suggested that offences under Section 498A, IPC should be made compoundable with the permission of the Court.
While a few High Courts, in the light of mandatory language of Section 320, CrPC have declined to allow the parties to compound the offence.442 The Bombay High Court, placing reliance on Section 320, CrPC, has not only doubted the judicial propriety of orders permitting parties to compound the offence under Section 498A, IPC but also held that an order passed for compounding of a non-compoundable offence is illegal.443 The offence under the Section cannot be compounded by invoking inherent powers and by praying for quashing of proceedings on the ground of amicable settlement. The remedy of the parties is to take recourse to Section 321 or 257, CrPC and seek withdrawal of the case. The Court in the exercise of its inherent powers under Section 482, CrPC quashed a complaint which was filed after the parties had already obtained a regular divorce under a settlement which provided that criminal action would not be proceeded with. The Court said that the exercise of the power was necessary to help save the institution of marriage. The Doctrine of Promissory Estoppel444 would not apply to the cases where a non-compoundable offence is settled by parties under the agreement. The proceedings under Section 498A, IPC would still be maintainable and not liable to be quashed.445
A Division Bench of the Supreme Court in Bankat & Anr vs. State of Maharashtra, 446 in the light of the legislative mandate of Section 320, CrPC ruled that only the offences which are covered by Section 320 CrPC can be compounded and rest of the offences punishable under the IPC cannot be compounded. Further, relying upon the ruling of the Bankat Case, 447 the Karnataka High Court in Nazimunnisa v. State of Karnataka, 448 showed its reluctance to quash the criminal proceedings relating to Section 498A, IPC. It is humbly submitted that the pragmatic approach adopted by the Supreme Court in its decision in B.S.Joshi v. State of Haryana, 449 case appears to be more appropriate in furtherance of justice. Perhaps the Court may this issue in some subsequent judgments.
Very recently, the Supreme Court in Yogendra Yadav v. State of Jharkhand 450 has ruled that a High Court under Section 482, CrPC can compound the non-compoundable offences of personal nature but offences which involve moral turpitude, grave offences like rape; murder etc. cannot be compounded and quashed on compromise by the parties. Such offences cannot be said to be restricted to two individuals or two groups. If such offences are quashed, it may send wrong signal to the society. However, when the High Court is convinced that the offences are entirely personal in nature and, therefore, do not affect public peace or tranquility and where it feels that quashing of such proceedings on account of compromise would bring about peace and would secure ends of justice, it should not hesitate to quash them. In such cases, the prosecution becomes a lame prosecution. Pursuing such a lame prosecution would be waste of time and energy. That will also unsettle the compromise and obstruct restoration of peace.
In Narinder Singh v. State of Punjab ,451 the question before the Supreme Court is whether the court can compound the offences under Sections 326 and 307, IPC which are non- compoundable. The Court by its order compounded the non-compoundable offences; set aside the High Court’s order and quashed the proceedings in view of the compromise. The Court relied on its earlier judgment in Gian Singh Case 452 wherein it had held that ‘where the High Court quashes a criminal proceeding in exercise of its power under Section 482, CrPC having regard to the fact that the dispute between the offender and the victim has been settled their disputes and the victim has no objection, even though the offences are non-compoundable. The High Court does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor.’
Recently, the Supreme Court in Manohar Singh v. State of Madhya Pradesh 453 observed that ‘where the parties enter into a compromise after the conviction has been recorded after trial; the non-compoundable offences cannot be compounded. However, in such a situation if the court feels that the parties have a real desire to bury the hatchet in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone.’ The facts of the said case in brief are: the appellant and his parents are convicted and sentenced to undergo six months imprisonment under Section 498A, IPC. He was also convicted under Section 4, the Dowry Prohibition Act, 1961 and sentenced to undergo six months imprisonment. Though the Madhya Pradesh High Court acquitted his parents, it upheld the conviction of the husband. However, the court reduced the sentence of the husband to six months imprisonment from two years sentence imposed by the trial court. During his appeal in Supreme Court, he made a statement that he was willing to give monetary compensation to his wife in lieu of substantive sentence of imprisonment. The couple reached a compromise with the husband agreeing to pay Rs 2.5 lakh in addition to bearing the cost of litigation. The woman pleaded for quashing of the case against her estranged husband. The standing counsel for Madhya Pradesh opposed quashing the case.
Now, the question before the court was whether the Supreme Court could reduce the sentence in a case where the conviction has been upheld by the trial court and the High Court.
The Supreme Court found that though Section 498A IPC did not prescribe a minimum sentence. Section 4, the Dowry Prohibition Act, 1961 provided a minimum six-month sentence, but proviso thereto states that the Court may, for adequate or special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term which may be less than six months. Therefore, sentence of the appellant can be reduced to sentence already undergone by him. The Supreme Court, while maintaining the conviction, reduced the sentence to the sentence already undergone by the husband subject to his paying Rs.2.50 lakhs to the wife, as compensation.
5.5.3.13.1 Recommendation for a re-look
Since the Courts are seriously concerned with larger public interest, the Supreme Court has observed that there is serious re-look of entire provisions.454 Merely because the provision is Constitutional, does not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out the ways how the makers of frivolous complaints or allegations can be appropriately dealt with it.455 The Court directed the Law Commission of India to consider proper steps and suitable legislative amendments.
5.5.3.13.2 The A.P. State Amendment
In the state of the Andhra Pradesh, the offence under Section 498A is made compoundable by the Criminal Law (Amendment) Act of 2003. It amended Section 320 (2) of the Code of Criminal Procedure, 1973 which deals with the offences punishable under the provisions of Indian Penal Code may with the permission of the Court before which any prosecution for such offence is pending be compounded by the person against whom the offence was committed. The amendment provides that Section 498A, IPC, is made compoundable, with the consent of women, subjected to cruelty provided that a minimum period of three months shall be elapsed from the date of request or application for compromise before a Court and the Court can accept that request for compounding the offence under Section 498A, IPC provided none of the parties, withdraw the case in the intervening period.
5.12 Conclusion
The institution of marriage is an oldest social institution and provides a foundation on which whole superstructure of civilization and prosperity is built. Stability i.e. a happy, cordial and harmonious relationship between couples has been considered as one of the most important condition for this institution in civilized societies-ancient as well as modern. However due to emergence of industrialized societies and result of social awareness amongst people, especially in females about their right of equality and personal liberty, the meaning of stability in the context of marriage has been changing gradually in different span of times.456
Although women protective laws have been justified with respect to status of women in olden times, but as we all know the world has changed and so on the behavior of women. Those women who are used to be subjected to house keeper now are taking steps ahead along with men. The law on the other hand has not changed proportionately. The society has progressed to such an extent that criminality amongst women have achieved a higher stand in society and certainly have become influential but with respect to law is still where it was in olden times. The repeatedly misuse of legal protection can lead to new legal terrorism. So there is need to change law relating to women. It is not fair to pre-establish that domestic violence happens to wife only.457
Basically anti-dowry laws and other laws relating to women protection are made to protect them from greedy in laws and husbands. But there is also another section of women who often abuse the authority of law. They snuff-out vengeance with the liberty of protection of law and find enough room to misuse the instruments of law at their pleasure. The husband is victimized most, so also the members of his family. While making special laws for women, the legislators must think of victimized sect of the society in male line also. The effect of Section 498A, IPC is unjustified power in the hands of women for blackmail and extortion in domestic disputes which irreparably damages the life of husbands and their relatives and sometimes also becomes the reasons for their death.458
Until recently, there was a general belief that woman by nature are more tolerant and accommodative and they seldom come out openly against their husband or his relatives unless situation exhausts their patience when they reluctantly complain against the in-laws. But, today in the millennium the very concept of matrimonial relationship is gradually disintegrating and it is assuming a form of a mere companion relationship which has shattered the sanctity of marriage and married girls are out to drag their husband or in-laws into criminal litigation on slightest pretext. And perhaps this is one of the reasons for the enormous rise in the number of divorce petitions, charges of cruelty and dowry deaths. The situation is tense in urban cities among the elites. This is one of the reasons why judges are required to ensure that no in is caused to in any of the two parties while adjudicating cases involving ‘Cruelty’ under Section 498A, IPC.[136]
Now-a-days the reason for most marital disputes is couple’s mental incompatibility and their rigid, taunting and inflexible behaviour towards each other. Most of the time, such couples are conflicting on worthless topics, when their views and ideas don’t match. It increases misunderstanding in between the couple as neither they like each other’s way nor they want to live together. It results in unnecessary tension that affects the lives and behaviour of both the spouse. Often, it is experienced that on trivial family and conjugal matters or disputes and differences of opinions and sentiments, matters are rolled up to the door steps of Courts. Dozens of cases are filed every day by the aggrieved or defacto-complainant wives against their husband and his relatives. Instead, these matters could easily and quickly be solved by counseling on both the sides. Also, peaceful and amicable settlements could be reached through the intervention of parents, relatives, friends, and locality neighbours. Thus, bitterness between the litigant’s spouses and their respective in-laws could be easily nipped in the bud.
Recently, the Supreme Court in Preeti Gupta v. State of Jharkhand ,459 has observed that ‘unfortunately, a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.’ It is also observed that, it is highly unfair to suggest that a serious re-look of the entire provision is warranted by the legislation just because the Courts express their inability in some cases to ascertain the truth. There is a strong lobby to water down laws pertaining to dowry, but the solution does not lie in dismissing the law or taking away its teeth, but steps need to be taken towards harmonizing laws that protect women. Any intelligent mind should ask the question that would a woman make a false complaint if she had a happy married life and was not abused. When for one reason or the other a woman is deprived of her basic needs and necessitates, made to suffer humiliation, harassment and abuse, on small and petty issues is driven out of her matrimonial home, then in that situation what should be her recourse specially when there is a vacuum in the law ? Should she batter and suffered silently? Should she be thrown out with her children and voicelessly refrain from any action? Remember, violence against women within the family is directly proportionate to her status, degree of autonomy or capacity to make decisions both inside and outside her household. Hence, there is a dire need to resolve in sues and need to make the civil process speedier lay down guidelines and norms on the basis of which interim maintenance for the wife can be awarded so that recourse of unnecessary criminal action is avoided.
In other words, a strong parallel civil provision entire legislation is in place, judicial observations can play a large role in minimizing the harassment of women. The law intends to protect the woman from a greedy husband and his kin, but admitting as with all other laws, there may have been misuse of this provision also. Unfortunately, rather than attempting to providing guidelines for better implementation of the law, there are some misguided elements who want it to be weakened- made bailable and necessarily compoundable, thereby nullifying the intention of the statute.
CHAPTER -VI OPERATION OF SECTION 498A, IPC - A REALITY CHECK
(Parts I & II)
6.1 Introduction:
The Criminal Law (Second Amendment) Act, 1983 (Act 46 of 1983) inserted Section 498A to the Penal Code with an object to protect the women in a marital relationship from being subjected to cruelty by husband and his relatives. This Amendment has been considered a necessary amendment in the milieu of increasing incidences of violence against married women. This provision brought some relief to women, whose life has become miserable because of torture and violence perpetrated by her husband or his relatives. At the same time, the objectives with which this provision is added in the statute books may be regarded as noble. But, this provision has been misused over the years by some section of people to serve their oblique motives and personal vendetta. Indian Courts now and then, in their observations and remarks have looked into the matter of misuse of Section 498A, IPC and expressed deep anguish over this law. Most of the cases, where Section 498A is invoked, turn-out to be as they were mere attempts of blackmail by the wife or her close relatives when faced with strained marital relations. In most cases of 498A, IPC complaints are followed by the demand of huge amount of money (extortion) to settle the case out of the Court.
The Supreme Court in its 2005 judgment[1] commented, the law which is meant for the protection of the married women had become a ‘weapon in the hands of disgruntled women’ in recent times. It had also described the misuse of these laws as weapon in marital disputes as ‘ legal terrorism’ and has requested that the Government considers changing the laws. The Supreme Court, again in 2010 directed that ‘serious re-look of the entire provision is warranted by the legislature’. Expressing the serious concern over misuse of dowry-law, very recently, the Supreme Court in the case of L.S. Arnesh Kumar v. State of Bihar [2], had directed the State Governments to instruct police not to automatically arrest when a case under Section 498A, IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41 of the CrPC (when Police may arrest without warrant).
The Law Commission in its 243rd report (2012) on ‘Section 498A, IPC’ highly recommended that the offence under Section 498A, IPC should be made compoundable with the permission of the court. The commission reiterated the recommendation made in its 237th report (2011) on ‘Compounding of IPC offences’. The same recommendation was also made earlier in its 177th report (2001) on ‘Law of Arrest’ and 154th report (1996) on ‘Code of Criminal Procedure’.
The Committee on Reforms of the Criminal Justice System headed by Justice V.S. Malimath made disturbing recommendations for amendments to Section 498A, IPC i.e. it should be made compoundable as well as bailable.
Opposing the move to dilute the anti-dowry provision of the law, women welfare organisations in the country said ‘it is the only provision in criminal law which gives relief and protection to the aggrieved women in the marital home and it should be continued. In support of maintaining the status quo of the existing provision, they strongly argued that any amendment to the intended provision would weaken the existing protection for abused women. Violence against women is a violation of human rights. So, there is no compromise in that line of thinking and they would disagree with the Government’s move.
Research on how the law is used and implemented in India is vital task for understanding the kinds of problems that marginalised groups including women, face when they try to protect their rights and interests. Presently, the formal legal system is adapted to accommodate a set of laws and procedures to protect women from violence. Several pitfalls, systematic constraints and restraints within the system operate against elimination of violence against women. These lacunae existed in spite of the process of law reform initiated by several stakeholders in the justice delivery system as well as the civil society. Despite advances in laws addressing the issues relating to violence against women, a tremendous difference may be observed between the laws as they exist on paper and their implementation. Therefore, it is imperative to conduct a study in order to explore, the existing ground realities. The present study aims to conduct an empirical study on the use and alleged misuse of the matrimonial provisions in the light of accusations that are levelled by the Men’s Rights Organisations and to propose practical solutions to the problems associated with the law. It is also intends to influence the legislature to introduce suitable amendments to the impugned provision, if the said accusations are true.
6.2 Method and Limitations of the Study
The method utilized by the researcher in this empirical part of the study is ‘questionnaire’ method. On the basis of objectives of the study and to test the hypotheses, the Researcher prepared two separate questionnaires for interviewing the respondents. For the purpose of present study, the empirical study of research is divided into two parts.
The first questionnaire (Part-I) specifically addressed to the litigants of matrimonial offences, who face trial from different jurisdictions of the Courts in the State of Andhra Pradesh. A simple and relatively short questionnaire, consisting of 22 questions was prepared, and the respondents were personally approached and requested to answer the questions. Each question carried with it a few choices, indicative of the respondent’s perceptions and opinions on the research problem. This part is intended to assess the attitude of the litigants in general affected by the implications of 498A, IPC i.e. the victims/wives, the accused/husbands, and the relatives of the husbands who are became parties to the case.
The first questionnaire titled: “ Questionnaire for Litigants of Matrimonial Offences under Section 498A, IPC 1860 & allied Sections and also the Provisions of PWDV Act, 2005. ” It consists of 22 questions. It is pertinent to mention that in this questionnaire, Questions 1 to 5 meant for victims/wives only and Questions 6 to 22 common to all the litigants of matrimonial offences. This questionnaire intends to assess the perspective and attitude of the respondents regarding ‘the operation of law relating to matrimonial cruelty.’ The study aims to understand incidences of violence, consequences of violence, knowledge about law, and initiation of complaint and to assess impact of law on the lives of the victims as well as the accused. Additional information also sought regarding socio-economic profile of the litigants such as gender, age, date of birth, religion, education level and occupation, place of residence, family position, marital status, and date of marriage, marital duration, standard of living or source of income etc in order to find out the socio-economic status of the family for marital violence. Further, to understand the relationship of respondent’s autonomy with matrimonial offences, suit particulars such as nature of the complaint, date of filing, area of police station, case status, result and date of disposal, mode of settlement etc. also computed by the researcher.
Since the area of study is closely connected with the Criminal Justice System, it aims to collect relevant information from different stakeholders, like Judicial Officers, Police Personnel, Public Prosecutors, Advocates including Defence Counsels and Law Officers, Lecturers of Law, Students of Law and representatives from various Non-Governmental (Voluntary) Organisations as well as Family Counseling Centres that are working in connection with services of women who face domestic violence in any form. For this purpose a separate questionnaire (Part-II) has been prepared. The second questionnaire titled: “Consultation paper-cum-Questionnaire regarding Section 498A of Indian Penal Code; 1860 . ” It consists of 25 questions. This questionnaire intends to assess the perspective and attitude of different stakeholders on ‘ Law concerning cruelty on women in the marital home ’. It aims to check the prevailing situation in the light of accusations levelled by the Civil Society Groups regarding the misuse of matrimonial provisions, and to assess the need for the provision of Section 498A, IPC.
Both the questionnaires are structured or closed form that poses definite, concrete and pre-oriented questions. The questions are prepared in advance and not constructed on the spot during the question period. It aims at precision and contains definite subject-matter. The data also so collected is codified, classified and tabulated and analysed, so as to prepare final draft of the thesis. All these methodologies helped the researcher in great deal in processing the data and writing up of the report.
PART-I: Opinions of the Litigants of Matrimonial Offences
• Classification of ‘Litigants for matrimonial offences’
(i) As per Gender
Table 0.1: Gender of the respondents
Illustrations are not included in the reading sample
Data Analysis:
The data given in Table 0.1 shows the gender of the respondents to the questionnaire. It is known that maximum number of respondents are female 180 (60 percent), followed by male (40 percent).
(ii) As per Relation
Table 0.2: Existence of Relationship among the Litigants
Illustrations are not included in the reading sample
Graphical Presentation: Figure 0.2
Classification of the respondents as per Occupation
Illustrations are not included in the reading sample
Note: Figures in brackets shows the number of respondents
Data analysis:
The data given in Table 0.2 shows the relationship among them in the family. The study has conducted an opinion survey consisting of 300 respondents from litigants of matrimonial offences. From the above tables it is known that maximum number of respondents are female 180 (60 percent), among them 126 persons (42 percent) are victims/wives, followed by mothers- in-law 36 (12 percent), and sisters-in-law 18 (6 percent), while 120 respondents (40 percent) are male, out of them the husband/accused are 68 (23 percent), followed by fathers-in-law 28 (9 percent) and brothers-in-law 24 (8 percent).
6.3 Perceptions on Operation of Section 498A, IPC
The important perceptions on operation of Section 498A, IPC contained in the First Questionnaire are as follows:
• Demands for dowry,
• Nature and modus operand of crime,
• Awareness of the law,
• Allegations on misuse of matrimonial provisions,
• Allegations on persuasive role played by the authorities,
• Victim compensation in matrimonial offences, and
• Conciliation and Mediation.
6.3.1 Demands for dowry
Dowry is the payment of money or any kind by the bride’s family to the bridegroom’s family along with the giving away of the bride (Kanyadan) in Indian marriage. The practice of giving dowry was meant to help their marriage expenses and also to assist a newlywed couple to start their life together with ease. However, it has become a commercial transaction in which monetary considerations receive priority over the person’s merits of the couple. Although, the practice of dowry was legally prohibited in 1961, it continues to be highly institutionalised. Dowry continues to be given and taken. Even among the educated sections of society dowry continues to form an essential part of the negotiations that take place in an arranged marriage. A number of marriage negotiations breakdown if there is no consensus between the brides and grooms families. Dowry related deaths of a newly married bride are regular happening.
In this backdrop, Question 1 is framed to assess whether ‘dowry’ is the main reason for harassment in majority of the matrimonial disputes?
Question number 1 in the questionnaire reads as follows:
1. Is there any harassment for dowry or valuable security from your husband and other in-laws in your marital life?
The overall impression of the respondents to this question is summarized below in the Table 1.1 and Figure 1.1.
Table 1.1
Harassment for dowry or any valuable security, and its percentage (Survivors only)
Illustrations are not included in the reading sample
Graphical Presentation: Figure 1.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis:
The data given in the Table 1.1 and Figure 1.1 shows that more than 98 percent of the victims/survivors of the present study opined that they are harassed for dowry and other valuables by their husbands and other in-laws. Only 2 percent of the respondents opined that they are victims of harassment other than a demand for dowry.
In order to test the substance of the responses given in Table 1.1, the following table (Table 1.2) has been drawn.
Table 1.2
Matrimonial cases instituted under various provisions and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 1.2
Illustrations are not included in the reading sample
Data Analysis:
According to the above Table, 52 percent of cases of present study registered under Section 498A r/w Sections 3/4 Dowry Prohibition Act, 1961 and 19 percent of cases under Section 498A alone and 13 percent cases under Section 498A r/w Sections 306/309 IPC and 12 percent cases under Section 498A r/w Sections 323/506, IPC. Only 4 percent cases under Section 498A r/w Sections 304B, IPC.
The data shown in the above table reveals that most of the women are subjected to cruelty in connection with harassment for dowry in their marital life, in one day or the other. The above data also reveals that there is no parity between the number of cases filed under Section 498A, IPC alone, and cases under Section 498A, IPC r/w cases under Sections 3/4 of the Dowry Prohibition Act, 1961, and cases filed under Section 498A, IPC r/w Section 304B, of IPC. However, it is surprising to say that the NCRB data during the year 2014 shows an invert trend on the issue, whether ‘dowry’ is real cause for filing cases under Section 498A, IPC?
In order to check the substance of the opinions of the respondents, Table 1.3 has been drawn from the data given in the NCRB - Crime in India 2014. The annual report of Ministry of Human Affairs, Government of India gives a very dismal picture regarding crime against married women.
Table 1.3
IPC 498A cases against Dowry Prohibition and Dowry deaths
Illustrations are not included in the reading sample
Source: NCRB - Crime in India 2014
According to the statistics published by NCRB data in 2014, a total of 122877 cases of cruelty by husband or his relatives were reported in the country, showing an increase of 3.4% over 2013 (118866 cases) and an increase of 20.9% over the average of last 5 years (2009 - 2013). A total of 8455 cases of dowry deaths were reported in 2014, showing an increase of 4.6% over 2013 (8083 cases) and an increase of 20.3% over quinquennial average of 2009 - 2013. A total of 10050 cases of dowry prohibition were reported in 2014, showing decrease of 6.2% over 2013 (10709 cases) and an increase of 35.1% over quinquennial average of 2009 - 2013.
According to the majority opinion, it is to be stated that ‘dowry’ is one of the main reason for harassment in majority of the matrimonial disputes and also for filing cases under Section 498A, IPC.
Comment:
The evil of dowry system is a matter of serious concern to everyone in view of its ever increasing and disturbing proportions. The dowry related harassments and deaths are increasing day-by-day due to the prevailing socio-economic lifestyle. Dowry is accepted as a part of custom by every community, class or caste. No demands are made, but there is fact that the amount of dowry increases or decreases, depending upon the status of the bridegroom. In such a situation, it is difficult to prove that a person has given or taken dowry. No law/laws will eradicate this evil as long as women are viewed as “property” of the men that can be bought and sold . The views and attitudes of the society in general must change, and women should be treated with dignity.
6.3.2 Nature and modus operand of crime
Violence against women can be in many forms such as female foeticide, infanticide, child abuse, child marriage, wife battering, bride burning, sati, dowry death, torture and harassment, abuse of widows, and the list is endless. Some studies on domestic violence in India indicate that violence against women in general and domestic violence in particular, is intricately linked to real or perceived fulfillment of masculinities. It appears that men are more likely to use violence against women, if they are unable to fulfill hegemonic masculinity.
In this backdrop, Questions 2 to 5 are framed to assess the nature and modus operandi of the crime, under Section 498A, IPC. This part is intended for the wife/victim respondents only where domestic violence is affirmed. This part includes the questions on harassment and conduct of domestic violence that is witnessed against the wives in their marital homes, and prevalence of such violence, chief perpetrators of the crime, reporting of the violence, and reasons for unreported etc.
Question 2 reads as follows:
2. Is there any conduct of domestic violence, caused by your in-laws including husband in your matrimonial home?
The overall impression of the respondents to this question is summarized below in the Table 2.1 and Figure 2.1.
Table 2.1
Domestic violence and its percentage (Victims/wives only)
Illustrations are not included in the reading sample
Graphical Presentation: Figure 2.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis:
The data given in the Table 2.1 and Figure 2.1 shows that all the 126 victim/survivors of the present study (100 percent) are opinioned they are victims of domestic violence, in one day or the other that is caused by their husbands and his relatives.
• If your answer is ‘ Yes ’ nature of violence is
In order to assess most established form of domestic violence, it is further analysed the answers (i.e., Yes) given by the 126 respondents. Table 2.2 has been drawn for this purpose.
Table 2.2
Nature of Domestic Violence reported, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 2.2
Nature of domestic violence reported
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis:
The data given in the Table 2.2 shows the different forms of violence that are occurred in a marital relationship, during the study. Approximately 38 percent of the victims/survivors experienced emotional violence in the hands of their in-laws in their marital home and it is followed by physical violence 19 percent. The economic violence and verbal abuse reported 18 and 14 percent respectively. The other forms of domestic violence viz. social violence, sexual assault and intellectual violence reported very fewer i.e. 8 percent, 3 percent and 2 percent respectively. According to the majority opinion, it is to be stated that emotional violence is predominant type of violence among the incidences of domestic violence, followed by the physical violence. The verbal abuse occupies third place. However, it is significant to note that the incidence of social violence, sexual assault and intellectual violence in this region is very low level. It may be deduced from the above figures that, by and large, emotional disturbances are the main cause of ruining the family fabric in the society. Hence, it is concluded that most of the women are subjected to violence in their matrimonial home, in the hands of their in-laws, for one reason or the other.
‘There is a high number of marital violence’ which is according to the hypothesis drawn. Comment:
Many studies on domestic violence found that violence against women as a problem that cuts across age, education, social class and religion in India. According to Sahoo Harihar and Pradhan Manas Ranjan (2009)460, ‘domestic violence’ is one of the crimes against women which are linked to their disadvantageous position in the society. It refers to violence against women especially in their matrimonial homes. Therefore ‘domestic violence’ is recognised as the significant barriers of the empowerment of women, with consequences of women’s health, their health-seeking behaviour and their adoption of small family norm.
The International Clinical Epidemiologists Network (INCLEN) (1997 and 1999) conducted a study in seven diverse and regional cities of India: Bhopal, Chennai, Delhi, Lucknow, Nagpur, Thiruvanthapuram and Vellore. According to this study the overall figure of domestic violence in India is 36.9 percent physical violence and 35.5 percent psychological violence. In the rural areas the overall figure is 51.7 percent of physical violence and 49.7 percent of psychological violence, while in urban 68.8 percent physical violence and 68.9 percent psychological violence. Another study by INCLEN (2000) - is of the view that 40 percent women had experienced at least one form of physical violence in their married life. Question 3 reads as follows:
3. When the harassment caused by your in-laws including husband became intolerable (from the date of solemnisation of marriage)?
The overall impression of the respondents to this question is summarized below in the Table 3.1 and Figure 3.1.
Table 3.1
Duration of domestic violence, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 3
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis:
The data given in the Table 3.1 and Figure 3.1 shows that approximately 48 percent of the victims/survivors opined that they are subjected to harassment in connection with demands for dowry and other valuables in the hands of their husbands and other in-laws, and it became intolerable within 1 year to 3 years from the date of solemnisation of their marriage. While 31 percent opined that they became victims of harassment within one year from the date of their marriage, and 16 percent within 3 to 7 years of their marriage. It is pertinent to note that 5 percent subjected to harassment even after 7 years of their marriage. Hence, it is concluded that almost all the victims/survivors subjected to harassment in their marital homes for one reason or the other.
In order to test the substance of the responses given in Table 3.1, the following Table (3.2) has been drawn which represents the present marital status of the victims/survivors.
Table 3.2
Marital status of the respondents and its percentage (Wives only)
Illustrations are not included in the reading sample
The data shown in the Table 3.2 shows that 75 percent of the victims/survivors currently living separately from their husbands, due to a marital dispute, and consequential effect of initiating a case under Section 498A, IPC. However, 25 percent of the respondents either opted divorce or separated from their husbands, as a result of matrimonial dispute.
According to the majority opinion, it is to be stated that in majority of cases, women are subjected to harassment either a demand for additional dowry or some other reason, at the initial stage of their marital life. Further, such harassment became intolerable for the victims/survivors, within three years of their marital life.
Comment:
Violence affects lives of millions of women worldwide, in all societies. India has by far the highest number of dowry related deaths in the world according to National Crime Record Bureau (NCRB). The overall cases of crime against women have increased to 2, 95,896 in 2013 from 2, 28,650 in 2011. The proportion of crimes committed against women towards total IPC crimes has increased continually and has reached 11.2 percent during 2013.
In India 22 women were killed each day in dowry related murders in 2007. Dowry issues caused 1.4 deaths per year per 1, 00,000 women in India. Dowry deaths have increased to 8083 in 2013 from 4648 in 2008. In merely three years the cases of cruelty by husband and relatives have increased to 1, 18,866 in 2013 from 99,135 in 2010. The NCRB figures reveal that the incidents of cruelty against a wife have continuously increased from 2002 to 2013 and accounted for a large share of the total crime against women. According to the NCRB records of 2013, in comparison to 28579 reported cases of cruelty by husband and relatives in 1995, the cases have increased to 1, 18,866 by 2013. This is, by any standard a significant increase. All this shows the deplorable condition of the women in our country.
Question 4 reads as follows:
4. From which member of the family you are being harassed or victimized?
The overall impression of the respondents to this question is summarized below in the Table 4.1 and Figure 4.1.
Table 4.1
Chief perpetrators of the violence, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 4
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis:
The data given in the Table 4.1 and Figure 4.1 shows that approximately 47 percent of the victims/survivors are subjected to domestic violence in their marital homes mostly in the hands of their husbands, while 24 percent victims in all the members. Further, 16 percent alleged the parents-in-law, 10 percent alleged brothers-in-law/sisters-in-law. Surprisingly 3 percent respondents noticed the involvement of cousins and other distant relations in their marital life.
In order to test the substance of the responses given in Table 4.1, family position of the respondents has been shown in the Table 4.2.
Table 4.2
Family position of the respondents, and its percentage (As per cases reported during the study)
Illustrations are not included in the reading sample
The data given in Table 4.2 shows that 70 percent of victims/survivors are once resided (i.e. prior to the initiation of a case under Section 498A, IPC) in joint families, along with their parents-in-law, brothers-in-laws, sisters-in-laws and in some cases grand-parents.
According to the majority opinion, it is to be stated that the chief perpetrators of the domestic violence are the husbands, and in most of the occasions it is followed by all the family members of the husband, who are close inmates to one each. Therefore, it is concluded that women who live in a joint family are mostly likelihood to face domestic violence in their marital home. However, it is pertinent to note here that ‘even persons resided in nuclear family are also subjected to domestic violence as the data indicates 30 percent of such cases.’
Comment:
One of the most common forms of violence against women is that perpetrated by a husband or an intimate male partner or by family members. As per World Report on Violence and Health, Intimate partners, often in the context of an abusive relationship, commit 40-70 percent of homicides of women worldwide.461 Intimate partner abuse is generally part of a pattern of abusive behaviour also known as ‘wife-beating’, ‘battering’, or ‘domestic violence’. Women face the threat of violence in various forms throughout their lives. As it is generally accepted that the wife being weaker physically, socially and in resources, might easily be physically and mentally tortured by husband, apart from physical assault, psychological abuse, such as constant intimidation, humiliation and coercive sex. Another form of abuse is isolating a woman from family and friends, monitoring her movements and restricting her access to resources and services.
Question 5 reads as follows:
5. Did you register any complaint against domestic violence in police station?
The overall impression of the respondents to this question is summarized in the Table 5.1 and Figure 5.1.
Table 5.1
Initiation of a complaint, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 5.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
The data given in the Table 5.1 and Figure 5.1 shows that approximately 89 percent of the victims/survivors are made complaints against their husbands and other in-laws on domestic violence, while 11 percent of victims/survivors not preferred complaints of domestic violence in police station because of variety of reasons.
The reasons for not registering the complaint by 14 victims/survivors, is further explained in the Table 5.2 and Figure 5.2.
Table 5.2
Reasons for not registering the complaint, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 5.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The reasons for not registering the incidents of domestic violence are not far to seek.
The data given in Table 5.2 shows that majority of the respondents (22 percent) are socially and financially dependents on their husbands. Another equally important cause for not approaching courts is for the welfare of the children (22 Percent). The other prominent reasons are: fear of living alone or retribution from husband and his relatives (14 percent), and lack of alternative support from natal family occupies the second place (14 percent). The reasons like seeking divorce, lowers the reputation of the family in the society, feel of embarrassment in disclosing the fact of ill-treatment, and lack of knowledge of availability of legal remedies, and the reluctant attitude on part of the victims to approach the Courts due to prolonged and complicated legal redressal (each one 7 percent) also justified for non-lodging of complaints. Only one percent of the respondents accepted the violence as a routine matter in their marital life.
In order to test the substance of the responses given in tables 5.1 and 5.2, the following Tables (tables 5.3 and 5.4) have been drawn with reference to occupation of the survivors and presence of children.
Table 5.3
Occupation of the victims/wives and its percentage
Illustrations are not included in the reading sample
The data given in the table 5.3 shows that 36 percent of the victims/survivors of the present study housewives, and 22 percent private employees working in various private schools, hotels, and restaurants, 17 percent had ancestral properties, 14 percent working in agriculture sector, and 11 percent are government officers.
Table 5.4
Percentage of victims/wives, who had children (Female)
Illustrations are not included in the reading sample
The data given in the Table 5.4 shows that 80 percent of the victims/survivors have children, and only 20 percent child less. It is not surprise in the Indian panorama that for the welfare of the children, many victims of domestic violence are reluctant to register complaints against their husbands. The following issues are deduced from the above data.
That, majority of the respondents of the present study registers complaint against domestic violence in police station,
That, majority of the respondents’ housewives,
That, most common reasons for not initiating any complaint of dowry harassment or torture are: social and financial dependency of the wives over their husbands, and also presence of children and their outlook.
However, it is to be stated that employed women are not immune from marital violence inspite of the fact that they provide additional income to the family. The figures thus pointed-out to the fact that domestic violence is prevalent more among those who are unemployed. Nevertheless, it does not exclude the others from this abrasive problem that dismantles the bonds of family life. The dominance of unemployed suffering from marital violence could be done to the reality that these cases come to light more prominently compared to those who are employed or those who are better off.
Comment:
The phenomenon of domestic violence is widely prevalent but has largely remained invisible to public domain. It plagues the lives of Indian women to such an extent that they appear to accept it as part of their lives. Traditionally, domestic violence is often viewed as a private family matter. Once, domestic violence was treated as purely a private matter, interference into domestic privacy have been seen as a greater evil than actual violence inflicted upon a wife. The victims are not able to raise their voice or protest against violence. They are reluctant to report that they have been beaten up. It is their feeling of guilt and shame that prevents them from discussing the issue and loyalty towards the husband prevents them from reporting the crime. They live in the grip of fear and horror. They fear that the husband will get annoyed and desert them or they will lose the economy support of their husband or else such complaints will harm their careers.
It is pertinent to note that many cases go unreported for lack of adequate help to the victims and their families. The statistics which have come-out in many studies do not show the exact, accurate data of the wife battering, since majority of the cases go unreported. Many studies on this aspect reveal that the attitude of Indian Women is ‘truly shocking’. Men are brought up being taught that beating up their wives isn’t wrong, while women are told that being assaulted by their husbands for disobedience. The National Family Healthy Survey (NFHS) - III (2005-06) thirty-seven percent of married women reported experiencing some form of domestic violence on at least one occasion during their marriage. According to the survey, fifty-one percent of seventy five thousand men surveyed believed hitting their wives is acceptable for various reasons including disrespect of their in-laws, refusing sex, and bad cooking, while fifty- five percent of women believed that spousal abuse at times may be warranted.[5]At the same time, a substantial 35 percent of women thought they deserved a brutal beating in the hands of their husbands, if they neglected doing the household chores or looking after their children. This social attitude has to change immediately. What is even more disconcerting, however, is the fact that these statistics do not include the vast majority of cases which are unreported. In addition, a large proportion of Indian men and women justify this abuse.
A CSR (Centre for Social Research) conducted on Section 498A, IPC by the Tata Institute of Social Sciences (TISS), Mumbai has noticed that the number cases registered under this provision are miniscule compared to the prevalence of matrimonial violence.[6] According to the study (which includes data relating to cases by eight women’s organisations in Mumbai), there is no doubt that a large number of cases go unreported or do not enter within the domain of the law. The study also noticed that few women’s organisations demanded recourse to Section 498A, IPC as first resort. The study has also stated that the minimum period for which a woman suffered domestic violence before she made a formal complaint was three years.
In this connection, it is pertinent to mention the observation made by the Punjab & Haryana High Court in Kaushalya vs. Baisakhi Ram [7] that ‘women in our society normally submit themselves, to their faith and bear ill-treatment at the hands of their husbands, unless a climax is reached, they usually do not make the desperate step of going to the police station, or lodge a complaint’. It was found that the most common reason for not reporting to the police/court is lack of awareness or tied up with fear societal stigma attached to divorce.
The finding from the above table was that ‘the most prevalent type of violence against married women is emotional (mental) and physical violence, and it is least reported crime in the society’. Though, a less percentage of respondents approach the Court to claim certain legal remedies, but discontinued their efforts as it was too expensive.
Question 6 reads as follows:
6. In your opinion, which of the following is most prevalent cause/s of violence matrimonial home?
a) To have more dowry (money and other valuables)
b) Wife’s inability to deliver a child (or) conceive a male descendent
c) Parental interference in conjugal life and thus ego satisfaction
d) Suppression of material facts before marriage (regarding ill-health, extra-marital relationships, suspect of puberty etc.)
e) Bad habits like alcoholic, drug addict
The overall impression of the respondents to this question is summarized in the Table 6 and Figure 6.
Table 6
Causes of violence in matrimonial home and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 6
Causes of domestic violence
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis:
The data given in the Table 6 and Figure 6 shows that approximately 33 percent of the respondents of the present study opined that the important cause for violence in matrimonial home is dowry harassment and the wife’s or her parent’s inability to meet the same. The other reasons are: suppression of material facts before their marriage regarding ill-health, extra-marital affairs of any of the parties, and suspect of puberty of the wife (25 percent), and parental interference in conjugal life of the couple (21 percent), and bad habits of the husband like alcoholism, drug-addicts (11 percent), and wife’s inability to deliver a child or conceive male descendent (10 percent).
The data shown in the above tables reveals that the prevalent cause for marital violence is demands for dowry, which is according to the hypothesis drawn.
Comment:
The data shown in the above tables reveals that ‘dowry’ is the important cause for violence in matrimonial home. A study of dowry gives rise to certain questions, one being, is the unfulfilled demand for dowry the only reason for dowry-related violence and death.
Madhu Kishwar, Editor, Manushi in her article ‘Rethinking dowry boycotts’ pointed out that the abuse of women over dowry was inexorably linked with the wider issue of marital violence and the general mistreatment of women and not dowry per se. Kishwar states that ‘to some extent it can be held that dowry is only one among many pretexts used by in-laws to legitimize abuse against the woman and her position as such. To lay the sole blame for all harassment and deaths of women at the door of dowry alone would be to run rough should over a very complex and deep-rooted social malady.462
Some of the respondents stated: “A woman can be targeted by individuals or close intimates within her family not only for dowry, but also for other matters, such as giving birth only to female children, suspecting her fidelity, and suppression of material facts regarding premarital relations, ill-health, before their marriage etc.
6.3.3 Awareness of the Law
Every person whose rights are infringed has a right to approach the court seeking legal protection or appropriate remedy from the wrongdoer. However, the law assists a person, who is aware of his rights, but not those who sleep over-their rights. Lack of legal awareness on specific rights that they are entitled is one of the major problems of the women, particularly in rural areas. Therefore, most number of cases of marital violence go unreported. Section 498A, IPC and the provisions under the Domestic Violence Act are gender specific, which guarantee justice to women who suffer violence in their marital homes and it recognises the fact that women are disproportionately affected by marital violence because of their socially ordained position of inequality. It draws its rationale from Article 15 (3) of the Constitution that allows the state to take special measures for women remedy decades of disadvantageous and inequality in all spheres of public life. But, majority of the victims are not aware of the existence of law, especially in rural India. Legal rights are effective only to the extent that individuals perceive themselves as entitled to demand these rights, and consider that contribution to the household to be good enough to merit receiving these rights, which does not seem to be happening in the case of women in the Indian socio-legal context.
In this background, Questions 7 to 13 are framed to know about awareness of laws in favour of married women including Section 498A, IPC and to find-out the impact of the complaint on the victims/survivors and also the husbands and their families.
Question 7 reads as follows:
7. Do you have any knowledge about ‘Laws-in favour of married women’ (viz. the Dowry Prohibition Act, 1961 and Section 498A, IPC, and the recent enactment of the Protection of Women from Domestic Violence Act, 2005) prior to IPC 498A case?
The overall impression of the respondents to this question is summarized in the Table 7 and Figure 7.
Table 7
Knowledge about laws in favour of married women, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 7
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis:
The data given in the Table 7 and Figure 7 shows that approximately 67 percent of the respondents opined that they have knowledge about existing protective laws in favour of married women viz. the Dowry Prohibition Act, 1961 and Section 498A, IPC, and also the latest enactment of the Domestic Violence Act, 2005, while 33 percent of respondents not aware of these laws, prior to initiation of a 498A case against them.
Comment:
Complaints being lodged in various police stations and cases pending before courts in different jurisdictions in the State of Andhra Pradesh, during the study showed the fact that: women have become more aware of their rights, in recent times than earlier. Access to Mahila courts legal cells and crime against women has also helped directly to encourage women to register their complaints.
Question 8 reads as follows:
8. Are you aware of the fact that ‘Cruelty towards a woman by her husband or his relatives’ is an offence and punishable under Section 498A, IPC?
The overall impression of the respondents to this question is summarized in the Table 8.1 and Figure 8.1.
Table 8.1
Knowledge about Section 498A, IPC and its percentage
Illustrations are not included in the reading sample
• If ‘ Yes ’ are you aware of the nature of the offence contained in section 498A,
IPC is cognizable, non-bailable and non-compoundable ?
The overall impression of the respondents to this question is summarized in the Table 8.2 and Figure 8.2.
Table 8.2
Nature of Section 498A, IPC and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 8.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Graphical Presentation: Figure 8.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 8.1 and Figure 8.1 shows that 70 percent of the respondents aware of the fact that ‘cruelty against married women’ is an offence and punishable under Section 498A of IPC, while 30 percent of the respondents are still not aware of this law, prior to lodging the complaint. They come to know about this law and its consequences through family members, friends and advocates.
The data given in Table 8.2 shows, approximately 54 percent of the respondents are aware of the nature of the offence contained in Section 498A, IPC (i.e. cognizable, non-bailable and non-compoundable). However, 46 percent of the respondents are not aware of the nature of this law.
The data shown in the above tables reveals that majority of the victims/wives as well as accused/husbands are aware of Section 498A, IPC which contradicts the hypothesis drawn.
Comment:
Though, majority of the respondents of the present study aware about laws in favour of women, unfortunately handful victims are still not aware of these laws, and thus there is a need for awareness programs. It will make the victims to seek help of authorities instead of keep silent and bear with the violence.
Studies conducted on ‘awareness of the laws among the people’ show that in India, more than 70 percent people live in villages, and most of them are ignorant about the laws, their problems and remedies.463 They suggested education and literacy camps should be conducted in spotlight to create legal awareness towards their rights.
Question 9 reads as follows:
9. Are you aware of the fact that (prior to incorporation of Section 41A into the CrPC), Section 498A, IPC directs arrests of the family members of husband on mere complaint of dowry harassment lodged by the wife without proper investigation’?
The overall impression of the respondents to this question is summarized in the Tables 9.1 & 9.2 and Figures 9.1 and 9.2.
Table 9.1
Immediate arrests u/Section 498A, IPC and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 9.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
• If ‘ Yes’ do you know that reconciliation is not possible (because of such arrests)?
Table 9.2
Possibility of reconciliation and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 9.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 9.1 and Figure 9.1 shows that approximately 69 percent of the respondents are aware of the fact that Section 498A, IPC directs arrests of the family members of the husband without proper investigation, on a mere complaint of dowry harassment by the wife or her relatives. However, 31 percent respondents opined that they are not fully aware of the consequential effects on lodging of a complaint of dowry harassment.
The data given in the Table 9.2 and Figure 9.2 shows that approximately 69 percent respondents knew: reconciliation is not possible, in case of an FIR is registered in a 498A case, and subsequent arrest of the family members. However 31 percent of the respondents are not aware of the above fact.
The data shown in the above tables together reveal that majority of the respondents are aware of the fact that (prior to incorporation of Section 41A into the CrPC), Section 498A, IPC directs arrests of the family members of husband on mere complaint of dowry harassment lodged by the wife without proper investigation’. Hence, it is to be stated that chances of reconciliation between the warring spouses have been spoiled on account of false complaints and the consequent arrests and judicial remand of the husbands and their family members.
Reference:
The Union Government brought an amendment to Section 41, CrPC and thus, reduced the gravity of the offence under Section 498A, IPC, in view of the directions given by the Supreme Court in a landmark judgment in L.S. Arnesh Kumar case . 464 Section 41A CrPC has been inserted by Criminal Law (Amendment) Act, 2008 (Act No. 5 of 2009) which provides that a Police Officer has no power to arrest a person accused of an offence where seven years imprisonment is provided (in Section 498A, IPC, it is three years)]
Question 10 reads as follows:
10. In your opinion, what is the predominant motive of the victim/wife, to initiate a 498A, case against her husband and his relatives?
a) As a prelude to seek divorce or judicial separation from husband
b) To demand maintenance/permanent alimony
c) To legally harass the husband and his relatives and thus appease her vengeance
d) To develop compulsions in the mind of husband to patch-up with her
e) To separate from the joint family
f) To genuinely avail the legal relief (and thus redress the matrimonial wrongs done to her) and to prevent further harassment
g) Other reasons (to return of streedhan/to seek custody of children/to reunite with the husband etc.)
The overall impression of the respondents to this question is summarized in the Table 10.1 and Figure 10.1
Table 10.1
Predominant motive of the victim/wife, to initiate a 498A, case and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 10.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
In order to test the substance of the responses given in Table 10.1 the following Table has been drawn.
Table 10.2
Type of reliefs by the victims/survivors and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 10.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 10.1 and Figure 10.1 shows that 30 percent of the respondents of the present study opined that the predominant motive of the women to initiate 498A case against their husbands is to seek maintenance or permanent alimony, and thus settle scores with the husbands. Separation from joint family occupies the second place (26 percent), and it is followed by legal harassment to the husband (11 percent), develop compulsions in the mind of husband to patch-up with her (10 percent) respectively, while genuine causes for legal relief and prevention of further harassment reported 9 percent each. The other reasons like return of streedhan, seeking custody of children, or reunion with the spouse etc. are reported 9 percent.
The data given in Table 10.2 and Figure 10.2 shows that approximately 28 percent of the victims/survivors (i.e. 35 of out of 126 respondents) of the present study sought ‘maintenance or permanent alimony’ alone besides a 498A, IPC case. It is followed by 17 percent sought ‘divorce’; 5 percent ‘streedhan’ and 3 percent ‘custody of children’ respectively. Interestingly, 14 percent victims/survivors sought ‘restitution of conjugal rights’ which reflects willing to live with their husbands, while 42 percent of the victims/survivors sought more than one relief, specified above besides a 498A, case.
According to the majority opinion, it is to be stated that the predominant motive of the victim/wife, to initiate a 498A, case against her husband and his relatives is to demand maintenance or permanent alimony.
Comment:
The most frequently articulated expectations of women who faced domestic violence in India are: safe shelter, a job and free legal aid at the individual level, apart from sympathetic police, social workers and lawyer’s etc. and the other articulated needs expected to be fulfilled by the institutions include, stopping domestic violence and more space in the family, in cases of breakdown of marriage maintenance, child custody, judicial separation, divorce, property rights and criminal prosecution of the marital family, perhaps in this order. The trickiest of these expectations is stopping of violence through a change of attitude in the husband by any means.
Question 11 reads as follows:
11. Do you agree that ‘it is extremely difficult for a wife and her parents to prove violence in matrimonial home due to the high-standard of proof’?
The overall impression of the respondents to this question is summarized in the Table 11 and Figure 11.
Table 11.1
Difficult to prove a 498A, case and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 11
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 11.1 and Figure 11.1 shows that approximately 53 percent of the respondents are agreed that it is extremely difficult to prove violence that is occurred in a matrimonial home, while 29 percent of the respondents disagreed and 18 percent did not comment.
To check the genuineness of the responses given in the above table 11.1, the following table (11.2) has been drawn.
Table 11.2
Number of cases disposed during the study and its percentage
Illustrations are not included in the reading sample
The data given in Table 11.2 and Figure 11.2 shows that 54 percent cases (i.e. 68 out of 126) of the present study are compromised during trial, while 36 percent acquitted, and only 5 percent cases found guilty and got conviction. Still 5 percent cases are pending in various courts in the State of Andhra Pradesh.
According to the majority opinion, it is to be stated that it is extremely difficult to prove violence that occurred in a matrimonial home for a wife, due to high standard of proof involved in a 498A case. Therefore, the respondents prefer to compromise the case for a sum in the form of maintenance or permanent alimony, instead of securing conviction of the accused.
Comment:
The difference between cruelty under Criminal Law and Civil/matrimonial Law lies in the nature of proof that one has to disposal to succeed in a claim; while proof has to be beyond reasonable doubt in Criminal Law, a test of balance of probabilities is applied in Civil Law. In other words, in a criminal case, cruelty has to be proved ‘ beyond reasonable doubt ’ while in matrimonial litigation, allegations have to be proved by ‘ preponderance of probabilities’. In our practice, we have found that while physical injuries are easy to prove in court, simply because they are visible, the same is not true in many cases that a woman has sustained emotional and psychological injury. There is no objective criterion or standard test that can be applied to determine the extent of the injuries sustained or even arrive at a finding of the relationship between mental health and the violence behaviour of the aggressor. It is impossible for women who alleged cruelty in matrimonial home to collect evidence and pursued witness to speak in their favour.
Question 12 reads as follows:
12. Do you agree that ‘in most of the cases of matrimonial offences particularly section 498A, IPC the general result is acquittal of the accused’?
The overall impression of the respondents to this question is summarized in the Table 12.1 and
Figure 12.1
Table 12.1
Most of the 498A cases are acquittals of the accused, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 12.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
• If ‘ Agree ’ as per your opinion, what are the most common reasons for less
rate of conviction in the courts of law for the offence under Section 498A, IPC?
Table 12.2
Reasons for less percentage of convictions, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 12.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 12.1 and Figure 12.1 shows that, 62 respondents (i.e. 186 out of 300) agreed with the statement that ‘in most of the cases of matrimonial offences particularly Section 498A, IPC the general result is acquittal of the accused after a full trial’, while 20 percent of the respondents disagreed and 18 percent did not comment.
The data given in the Table 12.2 and Figure 12.2 shows that approximately 28 percent of the respondents (i.e. 52 out of 186) who are agreed with the above statement and opined that the most common reason for less percentage of conviction in a 498A case is that frivolous complaints made by the wives and these complaints are unable to stand the test of the time. It is followed by allegations not proved beyond reasonable doubt (i.e. ineffectiveness of the prosecution) (12 percent), and improper and inefficient investigation conducted by the police (12 percent), and witnesses turning hostile during trial as the allegations are declared false (11 percent). However 37 percent of the respondents opined that the most common reason for less percentage of conviction in the courts of law for the offence under Section 498A, IPC is ‘cumulative effect of all the above factors’.
Comment:
A higher proportion of acquittals are often put forward as evidence to suggest that Section 498A, IPC has been continuously misused. The acquittals rate quoted is significant and it is hard to believe, all or most of them lacked proper investigation by police authorities or examination by judiciary and there was undue influence on complainant. According to the NCRB records of 2013, in comparison to 28579 reported cases of cruelty by husband and relatives in 1995, the cases have increased to 1, 18,866 by 2013. This is, by any standard a significant increase. However, the conviction rate in cases of cruelty by husband and relatives has gone down from 20.2 in 2011 to 16.0 in 2013. Unfortunately, the conviction rate is the least in cases of cruelty if this is compared with various crimes committed against women. The NCRB data for the year 2014 reveals the fate of most cases under Section 498A, where the conviction rate is merely 13 percent, and pendency remains as high as 89 percent. Cases are filed and remain pending in the court for years long. But, all the accused are to be arrested as soon as the case is filed, because this provision of law is non-bailable, and only a court can grant bail to them. Police arrests of family members in a matrimonial disputes are increased from 2, 22,091 to
225,648, strict directions given by the Supreme Court in 2013. Further, 44,218 women were arrested in these cases in 2014.
Question 13 reads as follows:
13. Do you agree that ‘most of the 498A, IPC cases results in settlements/end with monetary compensation or maintenance relief to the wife’?
The overall impression of the respondents to this question is summarized in the Table 13.1 and
Figure 13.1
Table 13.1
Most of the 498A cases are settlements, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 13.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 13.1 and Figure 13.1 shows that, 58 respondents of the present study agreed with the statement: ‘most of the 498A, IPC cases results in settlements/end with monetary compensation or maintenance relief to the wife’ while 24 percent disagreed with this statement and 18 percent did not comment.
In order to test the substance of the responses given in Table 13.1, the data given in Table 10.2 has been reproduced here.
Table Number 13.2
Type of reliefs sought by the victims/survivors (besides a 498A case), and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 13.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 13.2 and Figure 13.2 shows that approximately 28 percent of the victims/survivors (i.e. 35 of out of 126 respondents) of the present study sought ‘maintenance or permanent alimony’ alone besides a 498A, IPC case. It is followed by 17 percent sought ‘divorce’; 5 percent ‘streedhan’ and 3 percent ‘custody of children’ respectively. Interestingly, 14 percent victims/survivors sought ‘restitution of conjugal rights’ which reflects willing to live with their husbands, while 42 percent of the victims/survivors sought more than one relief, specified above besides a 498A, case.
The data in the above table, on one hand indicate that women in our society conscious about their rights and remedies against torture, while in other the provisions are being used to harass the husband and his relatives.
• Comments
In some (genuine) cases, the victims/survivors could not prefer any compromise with their husband to withdraw the case and the reason for such decision is:
a) Irreconcilable defenses against dowry harassment and other causes such as mental illness, extra-marital affairs,
b) Bad habits like alcoholism, drug addict, gambling etc.
c) Economic independence of the victim,
d) Parental support etc.
6.3.4 Allegations on misuse of Section 498A, IPC
One of the shameful and outrageous evils of our times is the practice of dowry. The Dowry Prohibition Act was enacted as early as 1961, with the intention of prohibiting giving and taking of dowry in India. Despite dowry being declared an offence by this statute, this practice continues to prevail in the country, with increasing incidence of dowry deaths, each day. However, recent trends reveal that matrimonial provisions which are intended to give legal protection to the women in their matrimonial home are now more used as sword than a shield. The wife or daughter-in-law whose demands are not met can make a false complaint of dowry harassment to the nearby police station which leads arrests of all the accused, without proper investigation. It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints. The tendency to over implication is also reflected in a very large number of cases. Most of the cases where 498A IPC is invoked finally turn out to be false. In most of the cases of 498A, IPC complaints are followed by the demand of huge amount of money (extortion) to settle the case out of the Court. The anti-dowry law is more often misused than used and caution should be exercised by the higher judiciary in dealing with such cases.
In this backdrop Questions 14 to 17 are framed to check the alleged misuse of Section 498A, IPC and to assess the genuineness of the cases.
Question 14 reads as follows:
14. Do you agree that ‘there is more number of cases under Section 498A, IPC reported in the urban areas than rural in our country’?
The overall impression of the respondents to this question is summarized in the Tables 14.1 & 14.2 and Figures 14.1 & 14.2.
Table 14.1
Most number of 498A cases are reported in urban areas, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 14.1
More number of 498A cases are reported in urban areas
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 14.1 and Figure 14.1 shows that 66 percent of the victims/survivors of the present study agreed with the statement that ‘more number of cases of cruelty are reported in urban areas than rural areas’ while 18 percent disagreed with the statement, and 16 percent did not comment.
In order to test the validity of the above statement, Table 14.2 and Figure 14.2 has been drawn regarding ‘place of residence’ of the victims/survivors of the present study.
Table 14.2
Place of residence of the victims/survivors and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 14.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 14.2 and Figure 14.2 shows that approximately 62 percent of the victims/survivors (i.e. 78 out of 126 cases) of the present study are reside in various cities and towns, while 38 percent are residing in villages in Andhra Pradesh.
Comment:
There are numerous reasons for the increasing incidence of domestic violence in India. The basic reason lies with the attitude of man towards woman especially in the rural areas where the social atmosphere is full of conservations, ignorance and poverty. The autocratic nature of male is responsible for violence with female members in the family. Even the educated urbanities are not an exception though considerable changes have been occurring in the past few decades.
In urban areas, though most of the women are educated and are conscious of their rights at least to some extent, many of them are still victims of violence within their families. They are subjected to both physical and psychological violence. Mega cities are facing increased criminal activities on account of a number of socioeconomic factors.
According to the NCRB data, on an average for every 9 minutes a case of cruelty against married women is committed. During the year 2014, a total of 19,687 cases of cruelty by husband or his relatives were reported of 5.3% as compared to the previous year (20,795 cases). A total of 749 cases of dowry deaths were reported during the year 2014, showing a decrease of 5.5% over the year 2013 (793 cases). The data also states that, since the year 2000, there has been an increase of 71.5 percent in the cases concerning violence and dowry deaths. However, a total of 1,235 cases under the Dowry Prohibition Act, 1961 were reported during the year 2014 showing a decrease of 23.5% as compared to the previous year (1,614 cases), and a total of 53 cases were reported under the Protection of Women from Domestic Violence Act, 2005 during 2014.
Question 15 reads as follows:
15. Do you think that ‘there are more number of cases under section 498A, IPC instituted by the educated and independent women than illiterate in our country’?
The overall impression of the respondents to this question is summarized in the Tables 15.1 & 15.2 and Figures 15.1 & 15.2.
Table 15.1
More number of 498A cases are instituted by educated women, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 15.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 15.1 and Figure 15.1 shows that 65 percent of the respondents agreed with the statement that ‘more number of cases of cruelty are instituted by the educated women (as more awareness about the law), than illiterate and less educate’ while 19 percent disagreed, and 16 percent did not comment.
In order to test the validity of the above statement, Table 15.2 has been drawn regarding ‘education level’ of the victims/wives to the present study.
Table 15.2
Education level of the victims/survivors and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 15.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 15.2 and Figure 15.2 shows that approximately 29 percent of the respondents of the present study have done graduation. 11 percent have post-graduation. 19 percent have done SSC and 6 percent intermediate education. So, totally 65 percent of the respondents are educated. On the otherhand 25 percent did not complete their primary education and only 10 percent respondents are illiterate. So, totally 35 percent of the respondents are considered less educated for the present study.
The education status of the respondents reveals that majority of them are literate. Almost all the victims/survivors received basic education and it can be inferred that crime against women or domestic violence occurred irrespective of the educational status, though more cases of violence are seen in the educated category.
According to the majority opinion, it is to be concluded that ‘more number of cases under section 498A, IPC instituted by the educated and independent women than illiterate in our country’.
• Comment:
Education can boost a married women’s confidence and teach life-skill, equipping her to make her own judgments. In the present study it is found that most of the victims/survivors as well as the accused/husbands are educated.
Inspite of the prevailing restrictions on women complaining about wife battering and other forms of domestic violence, the data put forth by different studies show that this problem exists at a very high and alarming the society. The UNICEF Report titled “Progress for Children’ surveyed beating wife under certain circumstances. According to report, approval of wife beating varied significantly depending on the level of education. Less educated women are more likely to feel that a husband is justified in hitting or beating his wife. As with the level of education, wealth quintile and area of residence appear to influence significantly women’s approval of wife beating. Overall, women from rural areas are women belonging to the poorest quintile of wealth distribution and are more likely to justify wife beating than women from urban areas and women of the richer households. In India, there has been an alarming rise in the atrocities committed against women, the report pointed-out.465
Increased literacy level plays a very important role in the life of the women, as now, more number of women are conscious of their rights. But, at the same time, it seems to be unjustified to give somebody a power by which they can misuse the government machineries (i.e. police and courts) for settling personal scores, by filing false cases.
It was seen that majority of the victims filed for maintenance, divorce or judicial separation petitions which indicate that the women are becoming more independent (economically).
Question 16 reads as follows:
16. Do you agree with the allegation that ‘Section 498A, IPC has been misused as a device to legally harass the husband and his relatives by some women to settle scores with her husband and his relatives’?
The overall impression of the respondents to this question is summarized in the Table 16 and Figure 16.
Table 16
Allegation of misuse of Section 498A, IPC, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 16
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 16 and figure 16 shows that 54 percent of the respondents of the present study agreed with the statement that ‘Section 498A, IPC has been misused as a device to legally harass the husband and his relatives by some women to settle scores with her husband and his relatives’ while 42 percent strongly disagreed, and only 4 percent did not comment.
The data shown in the above table reveals that majority of the victims/survivors tried to legally harass the husband and his relatives. This tendency also affects the genuine cases that are really suffered violence in the hands of their husbands and other in-laws and sought a legal relief to redress the matrimonial wrongs done to them.
It is to be stated that ‘laws which are originally meant for the protection of the women in their marital homes are generally abused by some arrogant women to satisfy their ulterior motives against their husbands and their relatives’. Hence, it is to be concluded that “the antidowry law is more often misused than used which is according to the hypothesis drawn”.
Comment:
The anti-dowry law is being used extraneously by some section of women and their parents, against the husbands and their relatives. It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints of IPC 498A. The tendency of over implication is also reflected in a very large number of cases. The Police, rushes to arrest without asserting the veracity of complaint since Section 498A, IPC is a cognizable offence. There are many judgments about the misuse of this section of the IPC. The Supreme Court in its 2013 judgment[12] had directed the state governments to instruct police not to automatically arrest when a case under Section 498A, IPC (dowry harassment) is registered but to satisfy themselves about the necessity for arrest under the parameters laid down flowing from Section 41, CrPC. But still, the same status has been continuing.
There are many cases, whereby the woman uses the strict provisions of Section 498A in the hope of enhancing her bargaining position vis-à-vis her husband and in-laws. Her advocates often encourage her in the misguided belief that her husband would be so intimidated that he will be ready to concede to all her demands. However, once a family has been sent to jail even for a shorter period, they are so paranoid that they refuse to consider a reconciliation under any circumstances, pushing instead for divorce. Thus, many a woman ends up with a divorce she did not want and when with weaker, rather than strengthened, terms of bargaining.[13] They lend themselves easily this way as a tool for wrecking vengeance on entire families, since it makes it possible t have police arrest anyone the wife names as a tormentor in her complaint. There are many cases where the problem is a mutual maladjustment of a couple, rather than abuse by the entire family, who are not even be involved in any way, are arrested and put in jail, before the trial has begun. Further, judges have refused bail unless the accused deposits a certain sum of money on the name of complainant as a precondition to grant the bail.
In most cases, criminal proceedings are quashed as a result of settlement or compromise by presenting with mutual consent, a joint petition in the High Court under Section 482, CrPC. It is true that in many instances, out of court settlements are made using new laws in a bargaining advantage. However, because many of the facts are so exaggerated, most of these cases do not go — [12] Supra Note 469.
[13] Madhu Purnima Kishwar: Zealous Reformers, deadly laws, battering stereotypes, ‘EBSCO Publishing, SAGE publications Private Limited, New Delhi, 2008), p.213.
far before they fall through. These and other factors may be contributing to an abysmally low conviction rate. It is pointed-out that more than 90 percent of the cases under Section 498A, IPC are based on questionable grounds. It is also pointed-out that on any given day 75 percent of the cases listed for hearing criminal courts are registered under Section 498A, IPC, and of these more than 90 percent cases are mala fide. It is true that very few people have actually been given sentences under Section 498A, IPC.
Question 17 reads as follows:
17. Do you agree that ‘most of the complaints are based on trivial matters without any substantial evidence’ (i.e., not directly relating to dowry demands)?
The overall impression of the respondents to this question is summarized in the Table 17 and Figure 17.
Table 17
Opinion on most number of 498A cases are instituted on trivial matters, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 17
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 17 and Figure 17 shows that 56 of the respondents are agreed with the statement that ‘most of the complaints based on trivial matters without any substantial evidence’ while 42 percent disagreed, only 2 percent did not comment.
Comment:
Most of the cases under Section 498A, IPC arise out of misunderstanding or ego clashes at home, and are filed to settle personal scores. The entire family of the husband is made accused in the case to 'teach them a lesson' on grounds of cruelty. The higher judiciary in India has time and again observed that petty quibbles, trifling differences should not be exaggerated and magnified as cruelty. To constitute cruelty, the conduct complained of should be "grave and weighty". It must be something more serious than "ordinary wear and tear of married life". However most of the so called cruelty does not pass this test. The Police rushes to arrest without asserting the veracity of complaint, because IPC 498A is a cognizable offence. If fact to prevent a few stray cases of alleged Dowry deaths, the whole criminal justice system has criminalized marriage and has allowed itself to be manipulated by some arrogant women. Hence, less conviction rate is reported in the courts of law for the offence under Section 498A, IPC.
6.3.5 Allegations on persuasive role played by the authorities
There are many laws to protect women from domestic/marital violence, but these laws seem not adequate when the protective agencies are not serious about them. As regards the problem of domestic violence, the police are often blamed for not giving proper attention, as they do not consider ‘it’ as a ‘crime’ unless it takes bizarre turn. Generally the complaints are registered only after an offence has been committed but in situation of domestic violence a woman needs protection even before the crime is committed, as she apprehends danger to her life from the preparatory/assaulter on whom she is dependent and the threat is constant.
Domestic violence is not seen as a crime or seen as a ‘private matter’ and no any other person than the family members have right to interfere into theses’ matters, is the presumption. The term ‘any other person’ includes police too. They themselves decide these matters as ‘other members’ not as crimes. Even if the matter of domestic violence is committed to the notice of the enforcement machineries, the police and other agencies tend to be somewhat non-responsive, treating the matter as ‘family affair’ where outsiders have no effective role to play. It has been found that very often in dowry death cases, police investigation tend to be sloppy and full of loopholes.
The police as well as the advocates were found to be encouraging the female complainants to use this law as a necessary ploy to implicate their marital families, making them believe that their complaints would not be taken seriously otherwise. With the enactment of Section 498A, this tendency has received a further fillip. Mentioning dowry demands seems to have become a common ritual in virtually all cases registered with the police or filed in court.[14] There are many cases, where the police using the threat of arrest to extort a lot of money from the husband’s family. Likewise, people allege that the police threatened to oppose or delay granting of bail unless the accused family coughed up fairly a certain amount as bribe. Further, in most of the cases, some wives have made exaggerated claims and demand the return of more than was originally given as dowry. — [14]Id. p.210.
Since, marital violence mostly took place in the privacy of the home, behind closed doors, a woman could not call upon independent witness to testify in her favour and prove her case beyond doubt as was required by law. Therefore, amendments were brought, which shifted the burden of proof away from the accused and punishments against the accused. But all these amendments placed more powers in the hands of the police, without adequate safeguards against the irresponsibility of the enforcement machinery. For years after the amended laws come into existence, the police would refuse to register cases under Section 498A, IPC unless specific allegations of dowry harassment were made.
There are allegations that many Advocates encourage complainants to exaggerate the amounts due to them as stridhan, assuring them that they will procure for them hefty settlements from the husbands, provided they get a certain percentage as commission for their services in coercing the husband’s family. The wives are also encouraged by their parents to overstate their cases and to demand an enhanced settlement as a precondition to get divorce by mutual consent. A large number of such cases are subsequently withdrawn, though not necessarily because they are false.
Question 18 reads as follows:
18. Do you agree that ‘there is a growing and widespread feeling that Section 498A, IPC is being used by (most of the) police officers and lawyers to advocate/advise (unscrupulous) daughters-in-law hold their in-laws to ransom’?
The overall impression of the respondents to this question is summarized in the Table 18 and Figure 18.
Table 18
Police and Advocates are also misused 498A, IPC and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 18
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 18 and Figure 18 shows that 48 of the respondents agreed with the statement that there is a growing and widespread feeling that Section 498A, IPC is being used by (most of the) police officers and lawyers to advocate/advise (unscrupulous) daughters- in-law hold their in-laws to ransom, while 22 percent are disagreed and 20 percent did not comment.
Comment:
The attitude of police show indifference while dealing with the cases of 498A, IPC is one of the major factors that prevent women to seek legal redress initially. Usually the trend of the police has been to discourage a woman from filing an FIR for any case of domestic violence on the contrary the police advice the woman to adjust with the husband and his family. The police on the other hand often do not take the cases of domestic violence seriously and thus women were left at the mercy of compromises despite the law being very strict. Very often writ petitions have been filled to direct the police to investigate the matter or demonstrations are held to force the police to register a case. Another limiting factor under this law is that the court can take cognizance of this offence only upon a police report or upon a complaint made by the aggrieved woman or her relatives. In practice, the Police are reluctant to intervene in a family dispute. Very often they resist registering a case under Section 498A, IPC either adopting a patronizing attitude or terrorizing the woman or merely registering a non-cognizable complaint.
Question 19 reads as follows:
19. Do you feel that ‘judicial officers, police and other authorities are insensitive or reluctant towards the cases relating to married women’?
The overall impression of the respondents to this question is summarized in the Table 19 and
Figure 19.
Table 19
Reluctant attitude of the judicial officers and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 19
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 19 and Figure 19 shows that 6 percent of the respondents are agreed with the statement that judicial officers, police and other authorities are insensitive or reluctant towards the cases relating to matrimonial offences while 47 percent disagreed and 47 percent did not comment.
Comment:
The judiciary and the police are supposed to be the protectors of the victims of violence or sentinels constitutional rights. Every citizen has a belief that if any unwanted situation arises then the police and the judiciary stand as a protective wall to protect the victims. Many times the judges are not willing to see the occurrences of domestic violence as special violence but they are stick-up to the straight jacket formula of criminal justice system and hence the occurrence of domestic violence goes unreported. The approach of courts in interpreting laws is conservative, rigid and traditional. The attitude of the judges in most of the domestic violence cases is highly ambivalent and is guided by the patriarchal ideology.
The Court has to play a significant role to prevent crime against women in their marital homes by considering such cases in a more practical manner and should not allow the criminals to escape by taking the help of procedural technicalities or lacunae in the existing laws. To some extent Court is trying to fulfill its task, but its working is not up to the mark. The court is expected to be more responsive regarding crime against women. But, unfortunately most of the criminals in dowry death cases are released on the ground of benefit of doubt due to lack of evidences. It creates reluctance in the mind of the victims not to approach the Court. The trial Courts in these cases are not sensitive enough to deal with the cases with proper caution and unnoticed the essential issues of the case without even correctly arguing the same. The ineffective enforcement of the legal provisions especially in case of dowry related violence contributes to a large number of acquittals. The long process of Justice delivery system, insensitivity of the police, advocates and judges, improper investigation of the police lead to the acquittal of the husband and in-laws in most of the cases. Thus, to them there is no utility of such protective laws for women.
A report by an NGO Sakshi makes a startling revelation about the attitude of judges towards domestic violence. About 74 percent of the judges felt that preservation of family should be a preliminary concern even if there is violence in marriage. About 90 percent of the judges did not opt for legal redress in the eventually of domestic violence involving their daughter or family members. The punishments awarded, are always less serious for males convicted of domestic violence than other forms of violence. The range of sanctions for offenders has been limited and there, deterrent effects are mitigated by social and contextual factors.
Aspects of mental cruelty are generally determined by the individual judge before whom the case is filed. Courts in India have defined ‘cruelty’ as necessarily involving a subjective element. This implies that the judge takes into account the facts of the situation and the surrounding circumstances to arrive at a rational conclusion or finding of mental cruelty i.e. whether a woman is subjected to alleged cruelty in the particular circumstances. A perusal of the judgments in this context shows that instead of basing judgments on the perception of the woman while dealing/deciding with the case the judge applies his own perceptions. This leads to the introduction of bias, often a male chauvinistic nature off the decision.
The modern cases provide many instances of the judge’s reluctance to stand upon the letter of the law. It is to be stated that there exists a bias amongst judges in concluding whether a woman is believed as far as the existence of violence is concerned. The only way to eliminate such biases is through demolition of myths that women lie about violence that they tend to misuse the law. For instance, Justice J.D Kapoor of Delhi High Court, while delivering the judgment in Savitri Devi v. Ramesh Chandra and Others 466 commented that a trend in legal thought gender specific laws is being misused by women. Therefore, offences such as Section 498A, IPC should be made bailable and non-cognizable or better, be removed from the statute book. Justice Kapoor in his obiter dicta opined: the anti-dowry laws should be scrapped immediately or trials under these laws must be completed within three months by special courts. These laws are preventing reapproachment among belligerent couple and are leading to breakdown of family.
6.3.6 Victim Compensation
Crimes often entail substantive harm to people and not merely symbolic harm to the social order. Consequently, the needs and rights of victims of crime should receive priority and attention in the total response to crime. One recognised method of protection of victim is compensation to victims of crime. Victim Compensation has now become an important aspect of rendering justice to victims. Along with traditional notion of punishment, compensation to victim has reduced the accused oriented approach in the criminal justice system.
In this backdrop, Question 20 is framed to test the accessibility of compensation to the victim in criminal cases.
Question 20 reads as follows:
20. Do you agree with the statement that ‘the victim could not get any specific relief except arresting her husband and his relatives by lodging a complaint/case under Section 498A, IPC and other matrimonial provisions’?
The overall impression of the respondents to this question is summarized in the Table 20 and Figure 20.
Table 20
‘No special compensation to the victims in a 498A case’ and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 20
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 20 and Figure 20 shows that 78 of the respondents agreed with the statement that the victim could not get any specific relief except arresting her husband and his relatives by lodging a complaint/case under Section 498A, IPC and other matrimonial provisions, while 16 percent disagreed, and 6 percent did not comment.
6.3.7 Significance of mediation in matrimonial disputes
Family and matrimonial mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by bringing the participant's to a voluntary agreement. Family mediation includes the disputes in actions for divorce, separation, annulment, establishment, establishment of paternity, probate and estate disputes, child custody or visitation, or child or spousal support. A matrimonial dispute involves several factors which are not available in an ordinary commercial dispute. The mediator, therefore, has to be fully equipped to meet the situations. The inputs that a matrimonial counsellor is required to have includes the knowledge of social customs, knowledge of religious sentiments, an insight into the psychology of the estranged people; the rights and liabilities of the parties in the socio-economic context, so on and on forth. The counsellor, therefore, should have knowledge as well as sensitivity. Undoubtedly one who has traits of maturity, wit, humour, creative intelligence and diffusibility (ability to diffuse tension) can be more successful than others in matrimonial mediation.
The matrimonial disputes such as cases of 498A, IPC has necessarily to be handled differently. The accused in these cases cannot be dealt with like accused in the other offences like theft or dacoity or cheating. The accused are not criminals in the traditional sense of the term. If the investigating officer is able to decipher how much of the complaint is true and how much is exaggeration he may play an important role in preventing increase in the litigation. On the other hand, if he wields the same rod that is given to him for handling other criminals, on the parties to a matrimonial dispute he may create a tremendous mess. It is here the parties should be told to be more patient with pursuing their cases without, however, undermining their respective claims.
Question 21 reads as follows:
21. Do you think that ‘in the case of matrimonial discards, conciliation and mediation between the spouse/s is the first step before affecting arrest’?
The overall impression of the respondents to this question is summarized in the Table 21.
Table 21
Role of conciliation and mediation in matrimonial disputes, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 21
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 21 and Figure 21 shows that approximately 89 of the respondents of the present study agreed with the statement that ‘in the case of matrimonial discards, conciliation and mediation between the spouse/s is the first step before affecting arrest of family members including husband, while 9 percent disagreed. Only 2 percent did not comment.
Comment:
The offence under Section 498A, IPC is both cognizable and non-bailable. When husband and his relatives are taken into custody, reapproachment between spouses becomes a remote possibility. The purpose of the provision is to curb domestic violence but the remedy should not be worse than disease. For the welfare of the society, institution of family has been strengthened. Even at late stage of proceedings, if a family disruption could be saved, it will be beneficial to family in particular and society in general.
Question 22 reads as follows:
22. In your opinion, who will be ideally suited to act as Mediators/Conciliators between the warring spouses?
a) Mandatory Counseling by the Police agency
b) Elders including parents, friends known to both the Parties
c) Male and Female Advocates who volunteer to act in such matters
d) Professional counselors like Trained Mediators or Qualified
Psychologists/Sociologists or Social Workers (who may be part of NGOs) under the supervision of Legal Service Authority of the District.
The overall impression of the respondents to this question is summarized in the Table 22 and Figure 22.
Table 22
Ideal persons to be acted as Mediators/Conciliators in matrimonial discards and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 22
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 22 and Figure 22 shows that approximately 70 of the respondents of the present study opined that professional counselors like trained mediators or qualified psychologists/sociologists or social workers under the supervision of Legal Service Authority of the district, will be ideally suited to act as mediators/conciliators between the warring spouses, and followed by family elders including parents, friends known to both the parties (26 percent) and male and female advocates (3 percent). However, only 1 percent respondents favored counseling by police.
Comment:
A women who faces domestic violence would approach some public institution, if encouraged to do so which then would help them to put an end to it. The first institution that comes up in this list is the family, friends and neighbourhood, local strongmen, local self-help groups, local women’s organisations either autonomous or affiliated to various caste associations, and village Panchayats --- followed or accompanied by police stations, counselling centres and courts. The role of family has been a highly contested issue. Many reports have consistently mentioned that the natal family’s support has been crucial in making women seek help from others in stopping domestic violence or at least that many women approach the agencies only from their natal family-homes. Since the problem arises from family, family is the first and perhaps best place to solve the matrimonial issues. It is suggested that every effort must be made to solve the problem at the family level. Second is the process of mediation and conciliation. Ultimately if, solution could not be found out, the matter may be sent to the regular Courts for adjudication. Thus, Judiciary comes as last resort.
Therefore, every stake holder in the system, that is the Police, Advocates on defence and Prosecutors and the Judiciary must make sincere efforts for it and the provisions existing must be implemented not only in letters but in its true spirit. The duty is more on Police and members of Bar because they are first approached in respect of a matrimonial discord.
PART-II: Opinions of the Different Stakeholders
• Classification of respondents (as per occupation)
The study has covered an opinion survey consisting of 200 respondents from different stakeholders of criminal justice system and also academicians on the subject.
The occupation-wise distribution of respondents has been shown in table 0.1 and figure 0.1.
Table 0.1: Occupation of the respondents and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 0.1
Illustrations are not included in the reading sample
Note: Figures in brackets shows the number of respondents
Data analysis:
The data given in Table 0.1 and Figure 0.1 shows the occupation-wise distribution of respondents. It reveals that maximum number of respondents of this part of study (25 percent) is advocates including defence councils and law officers, followed by lecturers of law and students of law (20 percent) each, and police personnel, public prosecutors and judicial officers (10 percent) each, while the representatives of the non-governmental organisations are only 5 percent.
6.4 Perceptions on Operation of Section 498A, IPC (Part-II)
The important perceptions on operation of Section 498A, IPC contained in the Second Questionnaire are as follows:
• Response of the Police in matrimonial discards,
• Areas of misuse,
• Suicide of men in matrimonial disputes,
• Punishments for women in frivolous cases,
• Nature of the offence and amendments sought,
• Victim Compensation,
• Engagement of Private Council,
• Establishment of Fast Track Courts and Crime against Women Cell,
• Appointment of Women Judicial Officers,
• Attitude of the Legal enforcement agencies,
• Role of Legal Service Authorities,
• Mediation and Conciliation,
• Domino effect on society, and
• Assessment of the provision
64.8 Response of the Police in matrimonial discards
Police play an important role in executing the law. If, approach of the Police agency is able to enthusiastic and build up confidence in the society, people would trust them for their protection. The general impression in regard to the role of police in matrimonial offences is that they do precious little to contain the menace and book the guilty for their just deserts.
In this backdrop, Questions 1 to 3 are framed to assess the response of the police in cases of matrimonial offences, and also to assess the genuineness of the cases of 498A, IPC.
Question 1 in the questionnaire reads as follows:
Do you think that, in respect of the cases of matrimonial discords, the agency of Police at the gross-root level is performing its duties efficiently and honestly?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 1.
Table 1
Response of the Police agency in matrimonial offences, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure: 1
Performance of the Police agency in matrimonial offences
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis
The data given in the Table 1 shows that 39 percent of the respondents of the present study are not satisfied with the functioning of police agency and opined that they wittingly neglected their duties during the period of lodging the complaint and investigation of the case. In support, 50 percent of the respondents opined that the agency of police needs certain reforms for performing their duties honestly and efficiently. Only 11 percent expressed satisfaction regarding the services of the police agency. [
• Comment
The complainants of dowry deaths are seldom able to propel the police to immediately swing into action. There is a lot of delay in filing the First Information Report (FIR), mainly because of the complainant’s disadvantaged situation. A recent study report reveals that investigations are carried out extremely casual and unscientific manner in the cases of matrimonial offences. The FIRs reflect the incompleteness of the information furnished. The time taken by the police in filing the charge sheet is long and that is easy for the offenders to make the reliable evidence disappear, wholly or partially.
Question 2 reads as follows:
What according to you are ideally expected duties of police, on receiving a complaint alleging an offence under Section 498A, IPC, 1860?
a) Making of arrest, if prima facie case has been shown, (i.e. after conducting a preliminary investigation)
b) arrest or threaten to arrest the husband and his relatives
c) Immediate arrest and custodial interrogation of the husband and his relatives, so that justice should be meted-out to the aggrieved person
d) Recourse to counselling between the warring spouses, irrespective of its cognizance.
The over-all impression of the respondents from all the categories to this question is summarized in Table 2 and Figure 2.
Table 2
Ideal expectation from the police on lodging of a complaint of matrimonial discord, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 2
Illustrations are not included in the reading sample
Note: 1 .Figures in brackets show the number of respondents for that option
2. Percentages obtained in decimal points were summarized to the nearest value in graphical presentation
Data analysis:
The data given in the Table 2 and Figure 2 shows that 58 percent of the respondents of the present study opined that on receiving a complaint alleging an offence under Section 498A, IPC ‘counselling between the warring spouses is to be conducted at first irrespective of cognizance of the complaint’, while 21 percent of the respondents opined that if prima facie case has been found against the husband and other in-laws, the police are expected to arrest the accused ; and 7 percent of the respondents opined that the police should arrest or threaten to arrest and 8 percent stressed for immediate arrest and custodial interrogation, so that justice should be meted-out to the aggrieved person. Only, 6 percent of the respondents did not comment.
Comment:
The Police need to keep in mind that a complaint which is matrimonial in nature is a dispute pertaining to husband and wife. Therefore, it is suggested that as soon as a complaint is received at the first instance, the Police must send the couple to a Counseling or Mediation Centre to explore the possibility of reconciliation even though it is categorized as a non- compoundable offence in CrPC. This action protects the innocent people from unwarranted arrests.
In order to assess the genuineness of these cases of 498A, IPC question 3 has been framed. Question 3 reads as follows:
What according to you is the main reason for less percentage of conviction in the courts of law for the offence under Section 498A, IPC, 1860?
a) Ineffectiveness of the prosecution in bringing forth evidence to prove that harassment had taken place
b) Inefficient investigation conducted by the Police agency
c) Frivolous complaints and exaggerated version of the incidences are unable to stand the test of time
d) Complainants including Parents and witnesses turning hostile at the time of trial
e) Cumulative effect of all the above factors
The over-all impression of the respondents from all the categories to this question is summarized in the Table 3 and Figure 3.
Table 3
Reasons for less percentage of conviction in 498A, IPC cases, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 3
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents for that option
Data analysis
The data given in the Table 3 and Figure 3 shows that approximately 20 percent of the respondents opined that frivolous complaints and exaggerated version of the incidences, are one of the main reason for less percentage of conviction in 498A, IPC cases, and it is followed by complainants turning hostile during trial (13 percent), and ineffectiveness of the prosecution in bringing forth the evidence to prove that harassment had taken place even though there is a prima facie evidence available in majority cases against the accused and his relatives and charge sheets are framed by the police accordingly, and inefficient investigation (7 percent each). Besides this, most of the respondents (45 percent) opined that it is the cumulative effect of all the above factors. Only 8 percent are did not comment.
Comment:
There is a large difference in the number of persons arrested under Section 498A, IPC and convicted. It is the general opinion that in the cases of 498A, IPC the overall acquittal rate is high as compared to conviction under the same provision. Though the charge sheeting rate in respect of the cases of cruelty by the husband and his relatives is more than 94.4 percent in 2014, the conviction rate is 20.2 percent for the same year. This clearly proves that although the reported cases after being investigated by the police, to reach the concerned courts, perhaps owing to prevalence of certain intricacies in the present laws coupled with adoption of unwise, though of course, professional tactics by seasoned defence counsels who during the trial proceedings explore various lacunae/loopholes both in law as well as in evidence tendered by the prosecution, they do not result in conviction. For instance, IPC 498A applies to acts of ‘extreme cruelty’ against women that are likely to drive a woman to commit suicide or cause ‘grave injury’, as well as acts of cruelty in response to ‘dowry demands’. Due to this limited characterization, perpetrators of domestic violence unrelated to dowry demands have escaped prosecution. The use of word ‘grave’ in the section precludes everyday violence suffered by a large number of women and that is why police do not register complaint unless dowry harassment is specifically mentioned. Vague allegations added on to a genuine complaint of wife beating could not stand through the legal scrutiny in a court of law and generally resulted in acquittal of husband. It is to be stated that the definition contained in Section 498A, of IPC is not very satisfactory.
Similarly, the convictions under Section 498A, IPC are less when compared with the conviction rates under all the IPC crimes. It is estimated that about 25,000 cases of cruelty in connection with demand of dowry are filed in India every year, 65 percent of the cases are dismissed by the Courts because they are blatantly false and the rest are settled out of Court after the wife or her parent’s monetary demands have been met.
6.4.9 Areas of misuse
It is seen that most cases of misuse of dowry laws are reported by urban families. They keep threatening to go police and courts on the grounds of a false charge. They discover several loopholes in the existing judicial system and using the dowry laws as a weapon to unleash personnel vendetta against their husbands to extort large amounts of money and become rich thorough unlawful means. Such wives are well capable of earning their living, but still they demand heavy maintenance amount from their husbands on separation.
The abuse of these provisions is, increasing rapidly. Especially, in Metropolitan cities, thousands of divorce cases arising from the cases under Section 498A, IPC are pending in Courts for years together. In recent years, there has been a virtual surge in cases of cruelty by the husband and his relatives, both in urban as well as rural India.
In this backdrop, Questions 4 to 6 are framed to examine the statement “more number of cases of cruelty are reported in urban areas by learned families than rural in our country’.
Question 4 reads as follows:
Do you agree that there are more number of cases under Section 498A, IPC reported in the urban areas by learned families than rural in our country?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 4.1 and Figure 4.1.
Table Number 4.1
More number of cases of cruelty are reported in urban areas, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 4.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 4.1 and Figure 4.1 shows that 70 percent of the respondents agreed with the statement that more number of cases of cruelty are reported in urban areas and from learned families than from rural areas in our country, while 18 percent disagreed, and 12 percent did not comment.
In order to test the substance of the responses given in Table 4.1, the data given in Table 14.2 of Part-I (First questionnaire) has been reproduced as 4.2.
Table 4.2
Place of residence of the victims/survivors and its percentage
Illustrations are not included in the reading sample
Data analysis:
The data given in Table 4.2 and Figure 4.2 show that approximately 62 percent of the victims/survivors are residing in various cities and towns, while 38 percent residing in villages in Andhra Pradesh.
Comment:
There are many women who are the real suffers of the evil of dowry, and actually beaten and harassed by their husbands and in-laws rarely file 498A, or resort to other dowry-related laws. Majority of them living in rural areas is unaware of the law, or they have not been sensitised about their rights and thus have failed to make use of these laws. It appears that the women especially from the poor strata of the society living in rural areas, rarely take resort to the provision. In rural areas, mostly the community leaders having great influence over the communal issues and therefore settle all the disputes accordingly at that level only. The cases do not even enter into the scope/ arena of Police and the Judiciary. In the rural areas, factors like family pressure, community pressure, possibility of stigmatization etc. prevent most of the women from lodging complaints against maternal family. The women in rural areas will be pressurized to enter into an unfair compromise and further the deterrent effect of the provision will be lost. The true reason for dowry deaths in rural areas is poverty (and underdeveloped civilization). Dowry deaths still flourishing in the rural areas and misuse of 498A, IPC is high in the urban areas.
Question 5 reads as follows:
Do you think that there are more number of cases under Section 498A, IPC instituted by the Educated and independent women than illiterate in our country?
The over-all impression of the respondents from all the categories to this question is summarized in Table 5 and Figure 5.
Table 5
More number of cases of matrimonial cruelty are instituted by the educated women, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure 5
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis
The data given in the Table 5 and Figure 5 shows that 65 percent of the respondents agreed with the statement that more number of cases of cruelty are filed by the educated and independent women than illiterate while 19 percent disagreed, 16 percent did not comment.
Comment:
The abuse of matrimonial provisions is increasing rapidly and the women often well- educated know that this section is both cognizable and non-bailable and impromptu works on the complaint of the woman and placing the man behind bars.
Question number 6 reads as follows:
Do you agree with the statement that ‘the very wording of Section 498A, IPC appears to be intended to give legal protection only to the daughter-in-law in her matrimonial home, and thus acts/violates the rights of other women in the same family’?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 6.1 and Figure 6.1.
Table 6.1
Section 498A, IPC violates the rights of other women and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure 6
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data Analysis
The data given in Table 6.1 and Figure 6.1 shows that 54 percent of the respondents agreed with the statement that the ‘the very wording of Section 498A, IPC appears to be intended to give legal protection only to the daughter-in-law in her matrimonial home, and thus acts/violates the rights of other women in the same family’ while 38 percent disagreed, 8 percent did not comment.
In order to test the validity of the above statement the following table has been drawn regarding classification of female litigants of the present study.
Table 6.2: Relation among the female respondents
Illustrations are not included in the reading sample
The data given Table 6.2 shows that maximum number of respondents of the present study are female 180 (60 percent), among them 126 persons (42 percent) wives/survivors, followed by mothers-in-law 36 (12 percent), and sisters-in-law 18 (6 percent). On the otherhand, the male respondents are (40 percent), among them 68 persons (23 percent) husbands, followed by fathers-in-law 28 (9 percent), and brothers-in-law 24 (8 percent).
According to the majority opinion, it is to be stated that there are 42 percent of the victims/survivors initiated complaints under this provision, against 58 percent of the accused/family members, among them 18 percent mothers-in-law (12 percent) and sisters-in-law (6 percent). Section 498A, IPC appears to be intended to give legal protection only to the daughter-in-law in her matrimonial home, and thus acts/violates the rights of other women in the same family.
Comment:
The law framers at the time of enacting this provision did not envisage that it is actually doing injustice to two sets of people:
1. The real victims of the dowry harassment are now being criticized to make false claims and accusations.
2. The mothers, sisters of the husband who are either harassed by the police or send to the police custody without even considering their age, health and marital status.
6.4.10 Suicide of men due to marital distress
It is not fair to pre-establish that domestic violence happens to a wife only in the Indian family. In a typical situation a wife can act cruel to her husband physically, mentally or by her anti-social behavior. As in most Indian families, husband’s parents live with him, so wife can be also cruel to them. In such circumstance, many husbands and their old parents committed suicide after being neglected by everyone including the police, courts and civil societies.
Section 498A, IPC provides the victims/wives to initiate immediate attention of criminal justice system and to cause the imprisonment of the husband and his relatives without investigation. The husband and his parents are looked upon as culprits by the neighbours, as well as the society, when the police visit their home and take them into custody. The accused undergo stigmatization and hardship even before the trial in the court of law, which leads to immense emotional, physical and financial trauma. Unable to bear the harassment or loss of job or reputation and the social consequences of being implicated in false criminal case forced them to commit suicide. Many others live their marital life under constant fear of being falsely implicated in 498A, cases.
In this backdrop Questions 7 and 8 are framed to test genuineness of the cases of suicide by men in matrimonial discards.
Question 7 reads as follows:
Do you think that more number of suicides of men than women are reported every year due to the harassment caused by the wife and her parents by lodging frivolous complaints and vexatious litigations against him and his family members?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 7.1 and Figure 7.1.
Table 7.1
Suicide by men are reported due to harassment by wife, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 7.1
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis
The data given in the Table 7.1 and figure 7.1 shows that 45 percent of the respondents strongly disagreed with the statement that more number of suicide of men are reported every year due to the harassment caused by the wife and her parents by lodging frivolous complaints and vexatious litigations against him and his family members, while 22 percent agreed, and 33 percent did not comment.
In order to assess the truth of the above statement, Tables 7.2 and 7.3 have been drawn from the data given in the NCRB. Table 7.2 shows: ‘Incidence of suicides categorized-2011’ (All India level) while 2014 shows the social status of the suicide victims.
• Incidence of suicide and their share by causes
The important causes that generally lead to commit suicide among the people in the society, compared separately for both male and female, with the total suicide and percentage of each such causes were taken into consideration for this study.
Table 7.2
Incidence of suicide and their share by causes
Illustrations are not included in the reading sample
Graphical Presentation - Figure 7.2
Illustrations are not included in the reading sample
Note: figures in columns show number of incidences during the year 2011
Data analysis
The data given in the Table 7.2 and Figure 7.2 shows that as many as 1, 35,585 people in the country lost their lives by committing suicide during the year 2011. Family Problems and illness are the major causes of suicide among other causes. Of the total, suicide because of family problems are reported 24.3 percent and illness 19.6 percent, altogether accounted for 43.9 percent. Love affairs reported 3.4 percent, drug abuse/addiction 2.7 percent, dowry dispute 2.4 percent, bankruptcy 2.2 percent and poverty 1.7 percent the other causes of suicide 56.6 percent. Family problems accounted for 84 cases of suicide in a day on an average.
The NCRB figures show that social and economic causes have led most of the men to commit suicide whereas emotional and personal causes have mainly driven women to end their lives. The percentage of suicide by married men was 71.6 percent and married women 67.9 percent.
It is to be observed from the Table 7.2 that, there are 20,345 males committed suicide (61.8 percent of total incidences of suicide) due to family problems as compared to 12,564 females (38.2 percent). It was also observed that 70.1 percent (95,015) of the suicide victims are married while 22.6 percent (30,663) unmarried. Divorcees and separated have account for about 3.7 percent (1283+3704 = 4,987) of the total suicide victims. The proportion of widowed and widower victims are around 3.6 percent (4,920). Importantly, 70.1 percent of the suicide victims are married while 29.9 percent others. The overall male: female ratio of suicide victims in the year 2011 was 65:35 approximately.
According to the NCRB data, during the year 2014, as many as 131666 people in the country committed suicide. Family problems other than marriage related problems and illness were the major causes of suicides among the specified causes, accounting for 21.7 percent and 18.0 percent respectively of total suicides. Marriage related issues (5.1 percent), love affairs (3.2 percent), drug abuse/addiction (2.8 percent), bankruptcy or indebtedness and failure in examination both accounted for 1.8 percent each, unemployment (1.7 percent), poverty (1.3 percent), property dispute (0.8 percent), death of dear person (0.7 percent) were other causes of suicides. The overall male: female ratio of suicide victims for the year 2014 was 67.7:32.3, (i.e. 89533: 42133) showing a marginal increase of male and marginal decrease of female ratio as compared to year 2013 (67.2:32.8). Nearly 67 per cent male victims were married while 63.6 percent of female victims were married.
• Social Status of Suicide Victims
Social Status of victims is classified in seven categories namely ‘Married’, ‘Un-married’, ‘Widowed/Widower’, ‘Divorcee’, ‘Separated’, ‘Others’ and ‘Status not known’. The information on the social status of suicide victims is presented in Table 7.3.
Table Number 7.3
Distribution of Suicide victims by social status during 2014
Illustrations are not included in the reading sample
Source: NCRB Accidental deaths and Suicides in India, 2014 (MHA).
Data analysis:
It was observed that 65.9 percent of the suicide victims were married while 21.1percent were un-married. Divorcees and separated have accounted for about 1.4 percent of the total suicide victims. The proportion of widowed and widower victims was around 2.2 percent.
• Comment:
Studies on this concern show that nearly 44.7% of the suicide victims were males while only 25% were married females.467 Suicide rates of married men in India are higher than females and their proportion increases with their age. As figures from Indiasata.com show that for men in the age-group of 30 to 44, the suicide rate is a whopping 508 per 100000 persons, for women it is 220. The suicide rates among men in the age-group of 45 to 59 are shocking 1812 per 100000 persons and among women nearly 550. However, among divorced men the suicide rate is 164 per 100000 persons but, even in these cases, among females the rate is only 63 per 100000. While the suicide rate for separated men is about 167, for females it is only 41 per 100000 persons. These figures clearly show that more husbands are compelling to suicide after their distrust in social and legal system. It is due to unbearable harassment, mental torture, disturbed family life, male bashing, financial pressures, marital problems and family pressures.
Question 8 reads as follows:
Which of the following are most common reasons for committing suicide by a spouse in any matrimonial discards?
a) Marriage forced by parents
b) Pre-marital or Extra-marital relations
c) Dowry harassment
d) Economic inter-dependence (Poverty)
e) Ill-health/Undiagnosed medical conditions
f) Bad habits like alcoholism, drug addiction
g) Matrimonial Litigations (Maintenance/Divorce petitions)
The over-all impression of the respondents from all the categories to this question is summarized in the Table 8.1 and Figure 8.
Table 8.1
Reasons for committing suicide by a spouse, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 8
Illustrations are not included in the reading sample
Note: figures in columns show number of incidences during the year 2011
Data analysis:
The data given in the Table 8.1 and Figure 8 shows that, 24 percent of the respondents opined that matrimonial litigations pertaining to maintenance or divorce that are pending in various courts is the most common reason for committing suicide by a spouse in any matrimonial discards, followed by harassment for dowry (19 percent) and pre-marital or extra-marital relations that either spouse, or ill-health/undiagnosed medical conditions (14 percent) each. Poverty or Economic inter-dependence (12 percent), marriage forced by parents (10 percent) and bad habits like alcoholism, drug addiction (7 percent) reported less importance for committing suicide by a spouse.
In order to test the substance of the responses given above, Table 8.2 has been drawn.
Table 8.2
Relief claimed by the wives/survivors and its percentage
Illustrations are not included in the reading sample
The data given in the Table 8.2 shows that, approximately 28 percent of the victims (i.e. 35 out of 126 cases) of the present study claimed maintenance or permanent alimony alone besides a 498A, IPC case, followed by 17 percent divorce; 5 percent streedhan and 3 percent custody of children respectively. Interestingly, 14 percent wives/survivors sought restitution of conjugal rights which reflects willing to live with their husbands. However, 42 percent of the victims claimed more than one relief, specified above besides a 498A, case.
Though, the data shown in the above tables altogether reveals that ‘matrimonial litigations instituted by the victim/wife, and thus sought a relief of maintenance or permanent alimony from the husbands’ is most common reason for committing suicide by a spouse in any matrimonial discards, one should not conclude that those litigation leads to committing suicide.
Comment:
In addition to the above, some of the respondents referred the following reasons for committing suicide by a spouse in any matrimonial discards viz. Domestic violence faced at matrimonial home, sexual displeasure, Intolerance and incompatible personalities, lack of cohesion and solidarity among all the family members.
6.4.11 Punishment for wife in frivolous complaints
There is persistent anxiety with Section 498A, IPC that, it allows the women unlimited scope to fabricate lies with no penalty of perjury, and they are encouraged to keep filing false cases. There is no penalty for misuse of the provision and after a full trial, on acquittal of the accused, the Courts are reluctant to entertain defamation and perjury cases against the falsely testifying witnesses. The cases that are filed under this provision in Police Stations or Courts are the basis for the official statistics of dowry harassment. The statistics of dowry harassment are bound to rise while the problem of false cases is left unchecked.
In this context, Questions 9 and 10 are framed to seek general opinion from the respondents on imposition of stricter punishment, in case of identification of falsely instituted proceedings under Section 498A, IPC and in the absence of specific provision whether a new provision needs to be incorporated to Section 498A, IPC by an amendment.
Question 9 reads as follows:
Do you suggest “Stricter Punishment” for a woman and her parents, in case of identification of falsely instituted criminal proceedings against the husband and his relatives, after a full trial?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 9 and Figure 9.
Table 9
Stricter punishment for women in case of identification of false cases under Section 498A, IPC, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 9
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 9 shows that 59 percent of the respondents are agreed with the suggestion that providing punishment for woman in case of false criminal proceedings against the husband and his relatives, while 27 percent disagreed and 14 percent did not comment.
Comment:
The laws dealing with marital abuse should be made balanced considering both husband and wife circumstances, with a provision for very stringent punishment for its misuse to act as deterrent. The threatening, abusing, maltreatment, conspiring, inflicting physical violence against the husband and in-laws as well as subjecting them to cruelty-physical, mental or emotional should be duly recognised and considered under criminal law.
It is not correct to say that, a complaint which is not proved in court does not necessarily mean that the allegations are false, and the complainant should be punished. In fact, in a number of criminal cases because of lackadaisical investigation and non-collection of relevant facts or statements, documents etc., the case does not get proved. In such cases, it would be absurd and highly unjust to say that these cases are false. The Criminal Law of our country provides the manner in which action can be taken against false cases. It needs to be mentioned that ‘misuse of Section 498A, IPC can be checked by the following Sections that are Sections 182, 203, 209 and 211 and also by the CrPC that are Sections 203, 250 and 358 and also by the Section 41A.’ Whenever any court comes to the conclusion that the allegations made regarding commission of offence under Section 498A of IPC are found, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Making it a compoundable offence is one such option, but we should also have provisions that act as a strong deterrent against misuse. It could be stipulated, for instance, where a complaint is proved beyond doubt to be false and motive, the accuser/complainant must face a jail term.
Question Number 10 reads as follows:
Do you suggest that a new provision should be incorporated (i.e. Section 498B), to the Indian Penal Code, making the wife punishable, if she is cruel to her counterpart?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 10 and Figure 10.
Table 10
Insertion of a new Section, making the wife punishable, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 8
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 10 and Figure 10 shows that 60 percent of the respondents of the present study agreed with the suggestion: ‘insertion of a new Section to the Penal Code making a wife punishable, if she is cruel to her husband and his relatives by implicating frivolous complaints and vexatious litigations’ while 25 percent disagreed and 15 percent did not comment.
Comment:
There is a strong plea for incorporation of Section 498B, corresponding to the Section 498A, IPC to deal with cruel wives. The women’s groups on the otherhand argued that the offence of cruelty is committed mainly against married women and the only reason Section 498A IPC was introduced to combat the same and afford battered women some protection under the law. The high crime rate with respect to the offences against women is indicated from the data published by the NCRB, wherein it is stated that, “not less than 7.1 percent of all crimes reported in the year 2011 were committed with high recurrence rates against a particular gender only, the law is required to address such behaviour and criminalise the same. That is all that Section 498A, IPC seeks to do, address a social problem with criminal law ramifications.468
Question 11 reads as follows:
6.4.12 Nature of the offence under Section 498A, IPC
The offence under Section 498A, IPC is cognizable, non-bailable and non- compoundable. The offence is cognizable, and therefore, arrest can be made without investigation or warrants on a complaint by the victim or designated relatives. It is non-bailable, the accused have to appear in Court and get bail from the Judge. It is non-compoundable; a complaint cannot be withdrawn by the complainant. Hence, once a complaint is lodged under Section 498A, the accused has to bear a lot of agony before he is given a clean-chit.
Questions 11, 12 and 13 are designated to examine the nature, extent and effect of the offence under Section 498A, IPC.
Question 11 reads as follows:
Do you think that making the offence non-cognizable is the right solution against to the problem of illegal and unwarranted arrests?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 11 and Figure 11.
Table 11
Making the offence under Section 498A, IPC as non-cognizable, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation- Figure 11
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 11 and Figure 11 shows that 45 percent of the respondents are disagreed with recommendation and stressed, not to make any amendment to the existing provision. Since the incidents of crime against women are increasing, most of the respondents are not in favour of making the provision non-cognizable. In contrast, 39 percent of the respondents opined that making the provision non-cognizable may reduce the problem of illegal and unwarranted arrests, while 16 percent did not comment.
Comment:
Section 498A, IPC provides an apt remedy to a woman in distress in her matrimonial home. It can be used as a preventive measure to curb domestic violence and save lives of women. If, Section 498A be made non-cognizable and bailable, women and their families would have to go to a Judicial Magistrate to file an initial complaint or register a case, against the perpetrators of torture, thereby putting a barrier to access to justice. It will place a huge and enormous burden on women to take recourse of law. Making the offence cognizable would dilute its deterrent effect and would be detrimental to the interest of the women with bona fide allegations of cruelty.
In the words of Indira Jaising in her article ‘ Concern for the dead, condemnation for the living’ that the cruelty by husband or his relatives was made an offence punishable with imprisonment for a period of upto three years, and the offence was made cognizable. A cognizable offence is one for which an arrest can be made without a warrant from a Magistrate. Ordinarily offences punishable with imprisonment of less than seven years are non-cognizable, but if the legislature feels that an offence is sufficiently significant to curb a social evil, such offence is made cognizable even though punishable imprisonment of less than seven years. Offences against women fall into this category. Outraging the modesty of women, using obscene words and gestures, and now, after the amendment to the criminal law in 2013, voyeurism, stalking, acid attacks and sexual harassment are all cognizable offences, though punishable with less than seven years imprisonment.469
The National Crime Records Bureau (NCRB) figures state that 8,455 dowry deaths were reported in 2014. The number of deaths under this category of crime against women was 8,618 in 2013 showing a decrease of 5.5 percent. But the overall conviction rate was 33 per cent, slightly above the 32 per cent conviction rate recorded in the latest data for 2014. The number of dowry deaths in the country has seen a steady growth during the period between 2010 and 2015. While in 2010, 8391 such deaths were reported, the numbers rose to 8618 and 8233 in 2011 and 2012 respectively. In 2012, 8,391 such deaths were reported.
Question 12 in the questionnaire reads as follows:
Do you think that making the offence bailable would address the problem of allegedly unwarranted arrests, while also safeguarding the complainant’s interests?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 12.
Table 12
Making the offence under Section 498A, IPC as bailable, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure: 12
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 12 and Figure 12 show that 48 percent of the respondents opined: in the light of possibility of arrest of the accused under this provision, innocent persons may be taken into custody even before the trial. Therefore, making the offence bailable would address the problem of unwarranted arrests. In contrast, 31 percent of the respondents disagreed with the recommendation and stressed not to make any amendment, while 21 percent did not comment.
Comment:
So far as the offence under Section 498A, IPC is concerned, the practical experience presents the sad spectacle. It has been found that some of the wives and their parents resort to misuse this provision against their in-laws with allegations of making false dowry demands. Not often, it is experienced that a wife ropes in all and sundry members of the family of her husband including those who have been living separately from the family of the husband. Viewed in this context, it is essential and imperative that the legislature must hasten to correct the malady. A careful examination of recent cases presents a rather horrifying picture. The researcher has attempted to draw a difference between the existing law and the actual practice in relation to the 498A cases.
Illustrations are not included in the reading sample
Thus, it is transparent from here that the provision itself is hosting bulk of loopholes and possibly can threaten the institution of marriage.470
Question 13 (a) and (b) in the questionnaire read as follows:
(a) Do you think that the offence under Section 498A, IPC; 1860 should be made compoundable (with the permission of the Court), in the light of amicable settlement between the parties?
(b) If ‘yes’, will it be counter-productive?
The over-all impression of the respondents from all the categories to these questions is summarized in the Tables 13.1 & 13.2 and Figures 13.1 & 13.2.
Table No 13.1
Making the offence under Section 498A, IPC as compoundable, and its percentage
Illustrations are not included in the reading sample
Table No 13.2
Compounding of the offence u/s. 498A, IPC leads to counter-productive, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure: 13.1
Making the offence under Section 498A, IPC
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Graphical Presentation: Figure: 13.2
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis: (Both Tables 13.1 & 13.2)
The data given in the Table 13.1 and Figure 13.1 show that 83 percent of the respondents thought that the offence under Section 498A, should be made compoundable with the permission of the Court, in the light of amicable settlement between the parties, while 6 percent stressed not to make any amendment, and 11 percent did not comment.
In support, majority of them (i.e. 166 respondents) who again opined that (shown in Table 13.2) such an amendment would not be counter-productive. Out of the 166 respondents 83 (50 percent) disagreed with the statement that compounding of the offence u/s. 498A, IPC leads to counter-productive, while 39 (23 percent) are opinioned that such an amendment will lead to settle of scores between the warring spouses, and 44 (27) percent did not comment.
In order to test the substance of the responses given to the questions 11, 12 & 13, a new table (i.e. Table 13.3) has been drawn.
Table 13.3
Comparison of arrests by Police in ‘Torture Cases’ for the years 2012-13 & 2013-14
Illustrations are not included in the reading sample
The data shown in the above table reveals the following facts.
1. Police don’t keep more than around 30 percent of these cases pending with them, and charge sheet 92 percent of them every year, approximately.
2. But, arrests made by the Police are increased from 2, 22,091 to 2, 25,648, for the period 2013 to 2014 in spite of the Supreme Court directions in a 2013 case. Out of 2, 25,648 total numbers of arrests 44,218 women were arrested in these cases, at the end of 2014.
3. A disposal rate of 30 percent at the police level means that a case takes about three years, on an average, to pass this stage. Around 10percent disposal rate at courts means that a case takes about 10 years to pass through the courts.
4. In total, it would take longer than 13 years to clear the present number of cases.
• Present Status - Government mulls amendments to anti-dowry law
The Ministry of Home Affairs in compliance to the Arnesh Kumar decision, issued third advisories dated 11 June 2014, to the Chief Secretaries, to implement the guidelines for compliance of Section 41 CrPC and curbing arbitrarily arrests in 498A IPC related cases but no steps has been made for conducting empirical study for obtaining reliable data for its misuse of 498A of IPC.
In a major step to end rampant misuse of the anti-dowry harassment law, the BJP lead NDA Government recently said in the Parliament, it is planning to make the offence compoundable, which will permit compromise and settlement between both the parties i.e., the victim/wife and the accused/husband at the Trial Court stage itself, after arriving at a mutually acceptable-agreement. This will be done by amending the specific provision 498A of IPC. This step will also reduce a lot of pendency in the Trial Courts.
On April 19, 2015, the Government of India sought to introduce a bill to amend Section 498A IPC based on the suggestions of the Law Commission of India and Justice Malimath Committee.471 News reports indicate that the proposed amendment will make the offence compoundable and this would facilitate couples to settle their disputes.472
There was ‘a proposal to link certain provisions of the Domestic Violence Act, 2005 to the Dowry Prohibition Act, 1961 to provide quick relief’. Notifying the list of gifts exchanged during the wedding may also be made a mandatory and failure to do so could invite heavy penalties including a three-year jail term not only to the bride and the groom but also to their parents. ‘Notification of the gifts during the wedding will help in checking any claim from being made later that they were part of dowry,’ the officials said. In addition to this, a new clause may be incorporated which will provide an aggrieved woman the opportunity to file her case either at the place where the offence was committed or where she permanently or temporarily resides, they said.
Comment:
The popularity of Section 498A, IPC is counterproductive in a number of ways. Its low conviction rate for officially filed cases means that it can effectively offer little to no protection to survivors of violence (the number of women seeking redress under it is much higher, but most cases drop out through mediation). Charges of cruelty are regarded (by lawyers, and litigants), as a platform for negotiating the economic issues of divorce (alimony, custody and residence).
6.4.13 Victim Compensation
Crimes often entail substantive harm to people and not merely symbolic harm to the social order. Consequently, the needs and rights of victims of crime should receive priority and attention in the total response to crime. Victim compensation has now become an important aspect of rendering justice to victims. Along with traditional notion of punishment, compensation to victim has reduced the accused oriented approach in the criminal justice system.
In this backdrop, Question 14 is framed to test the accessibility of compensation to the victim in matrimonial offences.
Question 14 reads as follows:
Do you agree with the statement that ‘the victim could not get any specific relief except arresting her husband and his relatives by lodging a complaint/case under Section 498A, IPC and other matrimonial provisions’?
The overall impression of the respondents to this question is summarized in the Table 14 and Figure 14.
Table 14
Compensation to the victims in a 498A case and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure: 14
Compensation tothe victims in a 498A, IPC
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 14 and Figure 14 shows that 58 of the respondents are agreed with the statement that ‘the victim could not get any specific relief except arresting her husband and his relatives by lodging a complaint under Section 498A, IPC and other matrimonial provisions’ while 24 percent disagreed, and 18 percent did not comment.
Comment:
At present, the victims are the worst suffers in a crime and they don’t have much role in the Court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the Criminal Justice System. Section 498A, IPC should not address the specific complexities associated with domestic relationship. The latest legislation, the Domestic Violence Act, 2005 provides for a series of civil remedies for the aggrieved woman. The Act, 2005 protects women from violence not just by the husband but also the extended family, and gives a woman protection to reside in the matrimonial home despite violence. A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to concurrently file her own complaint under Section498A, IPC. The Domestic Violence Act provides a large number of options for legal redressal. She can claim through the Courts protection orders, residence orders, monetary relief, custody order for her children, compensation order and interim/ex-party orders. If a husband violates any of the above rights of the aggrieved woman, it will be deemed a punishable offence. Charges under Section 498A can be framed by the Magistrate, in addition to the charges under this Act. It is a good option for providing compensation to the survivors of torture under the provisions of the Domestic Violence Act, 2005.
6.4.14 Engagement of Private Council
Section 301 (2), CrPC requires the consent of the Public Prosecutor to conduct the prosecution through private advocate of the aggrieved party. The victim should be permitted to engage her own counsel, with the permission of the court to aid and assist the prosecution officer. At present, there is no provision to meddle with the prosecution case, and there is no scope for engaging a private lawyer by the victim to prosecute the case directly and address the Court orally. Therefore, the aggrieved becomes helpless. So, there needs some provision to enable the aggrieved on the prosecution side to come to the Court and tell what he wants to say and what is the truth of the case. It is corrective force to the Police and the Prosecution against the allegations of less conviction in respect of cases of cruelty.
In this backdrop, Question 15 is framed to assess the opinions of the respondents on the above statement.
Question 15 reads as follows:
Do you suggest the idea to engage a private council to prosecute the case in court of law, as an alternative to the public prosecutor in IPC, 498A case?
The overall impression of the respondents to this question is summarized in the Table 15 and
Figure 15.
Table 15
Engagement of Private Lawyer in a 498A case and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure: 15
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 15 and Figure 15 shows that 42 percent of the respondents are agreed with the suggestion that engagement of a private council to prosecute the case, as an alternative to the prosecution in a 498A case, while 28 percent disagreed with the suggestion, and 30 percent did not comment.
• Comment:
In cases under Section 498A, the aggrieved women are always represented by the Public Prosecutors, whilst the accused are represented by the senior criminal lawyers, who are usually more competent than the public prosecutor. The ineffectiveness of the prosecution bringing forth the evidence to prove that harassment had taken place, witnesses including parents turning hostile and the judiciary’s interpretation of dowry and dowry related cruelty. The prosecution in matrimonial cases remains handicapped for want of proper police investigation, cooperation of complainants and witnesses, including the police and prosecutor. The proceedings that are conducted by the prosecution with so much of lethargy that witnesses lose trail, turn hostile or simply refuse to cooperate on the face of threats of reprisal from the accused or their henchmen. Quite often, the prosecution bases its arguments on the information bereft of solid evidence, which is clinching and convincing in nature. Inconsistencies in the investigation reports prove to be the defence lawyer’s paradise. The perfunctory handling of prosecution story is another serious road black. The result is an extremely low rate of conviction and all the accused of the cases of cruelty go scot-free.
As regards ‘ disposal of crimes reported under crime against women ’, a total of 26,660 cases were convicted during the year 2014, showing a conviction rate of 21.3. Highest conviction rate was observed under the Immoral Traffic (Prevention) Act (48.6) followed by the Indecent Representation of Women (Prevention) Act (46.7) whereas low conviction rate was observed in case under the Dowry Prohibition Act (10.2) and cruelty by husband or relatives (13.7). A total of 9, 82,516 cases remained pending for trial at the end of the year 2014.
6.4.15 Establishment of Fast Track Courts and Crime against Women Cells
A trial under Section 498A takes a minimum of five to eight years in the Trial Court and if the matter is appealed to the Sessions Court, High Court and the Supreme Court it can take around fifteen to twenty years. The accused are spent a significant portion of their life running around the corridors of the Court, Police Stations and lawyer’s offices. It is suggested that a strong chain of Lok Adalats, Fast Track Courts, Mobile Courts, and Speedy Trial Courts are require to be established at a vast level, so that justice not to be delayed and the victims, their families and witnesses do not face harassment and suffer further trauma. It should also be mandatory for these Courts to give their judgment in these cases within a period of six months this includes investigation by the Police.
Question 16 and 17 are designed to assess the recommendations of setting up of Fast Track Courts and Crime against Women Cells (CWC), in every District to deal exclusively with all the offences that affected women.
Question 16 reads as follows:
Do you think that a new provision should be appropriately incorporated to the Code of Criminal Procedure, so that the offence under Section 498A, Indian Penal Code, may be tried in the Fast Track Courts with a mandate to deliver judgment in time bound period?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 16 and Figure 16.
Table 16
Time bound trial through Fast Track Courts in cases of offences affecting women, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure: 16
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 16 and Figure 16 shows that 80 percent of the respondents supported the recommendation that it is desirable to setup Fast Track Courts in every district to deal exclusively with crime against women including the cases of 498A, IPC with an obligation on the Magistrate to deliver the judgment within a period of six months and for this purpose a new provision should be appropriately incorporated to the Code of Criminal Procedure, while 18 percent disagreed and 2 percent did not comment.
Comment:
The question has evoked a mixed reaction among lawyers. While one opinion is that there is a need for speedy trial, which is a fundamental right of the accused, and also in the interest of victims; another is that the accused should be given full opportunity to prove his innocence and the cases should not be rushed through. There is yet another view that it is impossible to lay down a deadline to conclude criminal proceedings, though higher courts at times issue time limits in various cases when aggrieved parties approach them. Even the law says that cases should be disposed of as expeditiously as possible. Several problems come in the way of quick disposal and they include lack of adequate number of judges in trial courts and no timely appointment of public prosecutors proportionate to the pending cases, serving of summons, frequent and long adjournments, leave and vacancy by presiding officers and advocates etc.
It is the public expectation that for the greater social good, criminal cases particularly those relating to grave crimes are concluded within a reasonable time and the guilty should be punished. Delays in disposing criminal cases have adversely affected society and the damage is immeasurable. There has been an irretrievable fear of law and faith in the criminal justice delivery system. In this connection, it is important to mention the institutional response of the High Court of the State of Andhra Pradesh. Very recently, the High Court of Judicature of Hyderabad inserted a new Chapter as Chapter XXI in Civil Rules of Practice and Circular Orders 1980 under the title ‘ the Case Flow Management in Subordinate Courts Rules, 2012 ’ with an object to bring down the cases that are instituted or pending before the Civil Courts or Tribunals subordinate to the it. It is suggested that these rules should be adopted by all the High Courts in the country.
Question 17 in the questionnaire reads as follows:
Is it desirable to have a Crime against Women Cell (CWC) in every District to deal exclusively with the offences against the married women with reference to the cases under Sections 498A, or 304B, or 375 of IPC, 1860 etc.?
The over-all impression of the respondents from all the categories is summarized in the Table Number 17 and Figure 17.
Table Number17
Establishment of Crime against the Women Cells in every District, and is percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure: 17
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 17 and Figure 17 shows that 83 percent of the respondents supported the recommendation for establishment of ‘Crime against Women Cells’ (CWC) in every District to deal exclusively with the offences affecting the women, while 8 percent of them did not favour it, and 9 percent did not comment.
Comment:
It is desirable to have a Crime against Women Cell (CWC) in every district to deal exclusively with the offences affecting women. The CWC should in such situation act as an intermediary between the parties and the jurisdictional Police Station. The CWC should act under the control and supervision of the Police. Their role should be to mediate and assist the Police, with regard to the investigation, collection of evidence and preparation of a report. Initially, the complaint in respect of matrimonial discord should be lodged with the Police, and they have to mandatorily send to CWC and wait for a preliminary report. They should be asked to collect evidence in matrimonial cases by holding informal discussions with relatives of the warring spouses, friends and neighbours to prepare a report. If there is any evidence available against the family of the husband, the same can be forwarded to the Magistrate, who can decide an appropriate course of action. The CWC should not be vested with any powers, except conducting a preliminary investigation and counselling between the warring spouses as it will lead to further complications between the CWC and the Police. The CWC helps the aggrieved women to find temporary shelters and to counsel her. The CWC should be made to act as a social agent.
6.4.16 Offences against women shall be tried by Women Judicial Officers
In order to protect the dignity of women and to provide equal protection and security which is a human and fundamental right, offences against women should be tried only by Women Judicial Officers in the Fast Track Courts on a day-to-day process. Question 18 is framed to assess the recommendation that offences against women shall exclusively be tried by women Judicial Officers.
Question 18 reads as follows:
Do you recommend that the offences under sections 498A, and 304B, IPC r/w the provisions of Dowry Prohibition Act, 1961 and Protection of Women from Domestic Violence Act, 2005 shall be tried by a Court only presided by a Woman Judicial Officer?
The over-all impression of the respondents from all the categories is summarized in the Table 18 and Figure 18.
Table 18
Proposal to appointment of women Judicial Officers, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure 18
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 18 and Figure 18 shows that 56 percent of respondents opined that it is not desirable to conduct trial of offences under Sections 498A, IPC and allied provisions by a Court presided only by a woman judicial officer, while 26 percent agreed with the recommendation and 18 percent did not comment.
Comment:
Female Advocates and Women Organisations welcomed setting up of Mahila Courts presided by women judicial officers. They argued that sensitivity of the judges on gender issues would be of greater significance; the conviction rate would surely improve considerably so as to act as a deterrent on those who often dare to commit such heinous crimes partly owing to our indifferent justice delivery system. However, this proposal has received strong opposition from male lawyers. They argued that employment of female staff in Mahila Courts implies that the scales of justice are tilted in favour of women. They charged that such courts discriminate against male judges and create fear in the mind of the accused.
6.4.17 Attitude of the law enforcement agencies
Question 19 is framed to examine the attitude of the law enforcement agencies i.e. Judicial Officers, Police and other authorities towards the cases relating to women.
Question 19 in the questionnaire reads as follows:
Do you say that Judicial Officers, Police and other authorities are insensitive or reluctant towards the cases relating to women?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 19 and Figure 19.
Table 19
Attitude of the State agencies towards cases relating to women is insensitive, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure: 19
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in Table 19 and Figure 19 shows that 49 percent of the respondents are partially agreed with the statement that the state agencies are reluctant to deal with the cases relating to matrimonial offences including 498A, IPC while 9 percent agreed absolutely and 42 percent did not comment.
Comment:
• Attitude of the judges
The Justice delivery system operates depending upon the mindset, attitude and conviction of the individual judicial officers. There are some judicial officers conducting the trial with preconceived view that women are misusing IPC 498A. Many others view that the cases of molestation or cruelty by husband and his relatives or rape cases, generally initiated as the fault of the wife and therefore treat her like an abuser, rather than protect the genuine victims of harassment.
Most of the cases against women go unreported because of insensitive trial procedure. The victim women are subject to rigorous cross examinations during and after the incident at the police station and in the court, which is quite embarrassing and uncomfortable. The poor rates of conviction discourage many victims not to seek legal remedy. In the absence of adequate protective laws for the victims of harassment, torture, marital rape and sexual molestations, criminal justice system fails to provide relief to the genuine sufferers. The poor rates of conviction also discourage many victims to seek legal remedy. In the absence of adequate protective laws for the victims of harassment, torture and sexual molestations, criminal justice system fails to provide relief to the genuine sufferers.
It was found that often Mahila Courts are considered as substandard forums where judges are least interested to work. Also, assessment of their work in these forums is based on the success in the number of cases they have been able to get compromised or settled. Thus, it may be said that in practice, matrimonial litigation, besides legal rules and principles is shaped by cultural constructions and social practices.
• Attitude of the Police
The attitude of the police is one of major causes that prevent women from initiating the legal procedure in matrimonial disputes. The cases pertaining to domestic violence are treated as private matter by the police. Therefore, even in cases of drastic assault, the complaints are not seriously taken. The process of law, far from conducting trial of husbands as criminals, often normalizes the husband’s violent actions as reasonable behaviour. Often, the police authorities compel the women to compromise with their opponents. They are reluctant to register the complaints, delay in recording the complaints and are extremely insensitive to the victims.
The experiences of women’s organisations clearly show that the police are extremely hesitant to proceed with the cases under Section 498A, IPC and arrests take place in a miniscule number of cases. Even in heinous cases of 498A, in which violence has taken place; no arrests will be made leaving the husband and members of his family free. So, it is said that any complaint pertaining to the incidences of cruelty must be treated with the utmost seriousness and investigated without delay. Therefore, reasonable measures must be taken to ensure that the criminal justice system considers Section 498A, IPC as a serious crime comparatively with other crimes against women.
6.4.18 Importance of Legal Services Authorities (LSAs) in matrimonial disputes
Section 89 (1) of the Code of Civil Procedure, 1908 provides an option for the settlement of disputes outside the Court, according to which the Court shall formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement including Lok Adalat.473
Question 20 is framed to understand the importance of Legal Service Authorities in matrimonial disputes, and it reads as follows:
Do you envisage a better and more extensive role to be played by the Legal Services Authorities (LSAs), at Mandal/Taluka and District levels in relation to matrimonial disputes for facilitating the amicable settlement?
The over-all impression of the respondents to this question from all the categories is summarized in the Table 20 and Figure 20.
Table 20
Role of Legal Services Authorities (LSAs) in matrimonial disputes, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure: 20
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 20 and Figure 20 shows that 71 percent of the respondents absolutely agreed with the statement that the Legal Services Authorities (LSAs) have played a more extensive role in relation to matrimonial disputes by facilitating amicable settlements, while 16 percent partially agreed and 13 percent did not comment.
• Comment
Reconciliation and Mediation are the most effective forms of ADR mechanism to initiate reasonable human effort for settlement of disputes. Such measures facilitate the parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. The process has the advantage of providing the parties an opportunity to reduce hostility, regain a sense of control, resolve conflict in a peaceful manner and achieve a greater sense of justice in each individual case. In criminal matters also, process of Mediation would be of much assistance to the parties in the amicable settlement of disputes. For example, in cases under Sections 498A, and 406 of IPC resort can be made to this process of mediation. In such cases, if one party may agree to return the streedhan or money received at the time of marriage or agree to live together peacefully, so as to amicably settle the matter. All at once, we need to understand that the meaning of reconciliation and settlement are different and Section 498A, IPC should not be used as a settlement tool to extract money for illegal and unethical demands of the complainant.
6.4.19 Mediation and Conciliation
Our judicial system has been embroiled in fierce criticism for its huge backlog, rigidity of procedure, exorbitant costs and interminable delays in adjudication of disputes. The adversarial character of litigation in conjunction with the formality of procedure renders the judiciary inept to address the longstanding problem of court congestion. Alternative method of dispute resolution presents itself as a panacea for most of the ills embossed in the traditional litigation mechanism.
The Alternative Dispute Resolution (ADR) facilitates early settlement of disputes. Early settlement can be both financially and emotionally advantageous to the disputant. It is true that lawyers often engage in negotiation and settlement. A successful negotiation often depends on the strength of the legal rights-based arguments, which can only be fully developed following expensive and time consuming processes such as discovery. This legalistic approach often overlooks other avenues of settlement opportunity, which may better address a client‘s underlying interests and needs.
Questions 21, 22 and 23 are designed to seek general opinion of respondents about the importance of “Counseling or Mediation” in Matrimonial disputes between the warring spouses before registering a case under Section 498A, IPC.
Question 21 reads as follows:
To prevent immediate arrests on a complaint, do you feel that a new clause needs to be inserted in Section 498A, Indian Penal Code to make the process of counselling compulsory? (As per Mediation and Conciliation is concerned).
The over-all impression of the respondents from all the categories to this question is summarized in the Table 21 and Figure 21.
Table 21
Mandatory Counseling in matrimonial disputes
Illustrations are not included in the reading sample
Graphical Presentation - Figure 21:
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis
The data given in the Table 21 and Figure 21 shows that 82 percent of the respondents of the present study agreed with the suggestion that to prevent immediate or illegal arrests in respect of the cases of matrimonial disputes, make the process of counseling compulsory by inserting a new clause to Section 498A, IPC. In contrast, 10 percent disagreed with the suggestion, and 8 percent did not comment.
There are certain counter views against this suggestion; even in cases of persistent or extreme violence the women is often counselled and pressurized to return to the marital home or to withdraw or settle the case unfavourable to her. If such a provision is added, it will result in intimidating even tortured women from taking recourse to law. During the long drawn process of mediation also, she is vulnerable to threats and torture.
Comment:
Police officials being the first in point of contact where complaints are lodged by the aggrieved wife or her family, and in pursuant to that complaint, before initiation of proceeding under Section 498A, IPC, an effort should first be made for bringing about reconciliation between the parties by Conciliation, Counselling or Mediation and only after failure of the reconciliation proceedings, where it appears to be a prima facie case under Section 498A, IPC or another provision is made out on the facts of the case, then only legal proceedings should be initiated.
It may succeed in nipping the problem at the initial stage of a case, especially where there are no injuries on the victim and the crime complained about is not so grave, and it is not a repeated offence. Finally, if, solution could not be found, the matter may be sent to the regular Court for adjudication.
It is relevant to mention here that some of the respondents/advocates to the present study opined Section 14 (1) of PWDV Act, 2005 concerning mandatory counseling is against the accepted principles of counseling, according to which, counseling is a voluntary act and not a forced one.
Question 22 in the questionnaire reads as follows:
Do you feel that, “Counseling by the Police agency” is justifiable in the light of amicable settlement between the warring spouses?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 22 and Figure 22.
Table 22
Counseling by the police agency in matrimonial disputes, and its percentage
Illustrations are not included in the reading sample
Graphical Presentation - Figure 22
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 22 and Figure 22 shows that 60 percent of the respondents are opposed the process of counselling by the Police agency in respect of matrimonial disputes, while 29 percent agreed with the suggestion and 11 percent did not comment.
Comment:
The police has first and foremost role in the prevention of crime and also in the process of social reform. But the rigorous approach of police officials sometimes makes the situation worse. Counselling the warring parties should be done by professionally qualified counsellors and not by the police. Counselling should not take place at the police stations, which lack the proper atmosphere for mediation else the matter should be referred to the agencies for mediation and conciliation in courts. The help of volunteer lawyers or lawyers appointed by Legal Services Authority, and reputed NGO's, social organizations and individuals working on women and family issues, preferably who have received training in mediation, conciliation or counselling could be utilized for this purpose. It was also suggested that the police officers above the rank of a Circle Inspector should be permitted to facilitate mediation.
In the process, the Government makes a mockery of its own intention as well as ability to deliver justice. Unless the task of introducing far-reaching police and judicial reforms is undertaken with urgency, attempts at new legislation are not likely to yield much good.474 The basic problem with all of the present laws dealing with marital discards is that instead of providing effective remedies through civil law, the whole matter has been put under the jurisdiction of criminal law.
Question 23 reads as follows:
Who will be ideally suited to act as Mediators/Conciliators between the warring spouses?
a) Mandatory Counseling by the Police agency
b) Elders including parents, friends known to both the parties
c) Male and Female Advocates who volunteer to act in such matters
d) Professional counselors like Trained Mediators or Qualified Psychologists /Sociologists or Social Workers (who may be part of NGOs) under the supervision of Legal Service Authority of the District.
e) Spouses only
The over-all impression of the respondents from all the categories to this question is summarized in the Table 23 and Figure 23.
Table 23
Ideal persons to act as mediators in matrimonial disputes
Illustrations are not included in the reading sample
Graphical Presentation - Figure 23
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 23 and Figure 23 shows that 65 percent of respondents stressed in favour of professional counseling through trained mediators or qualified Psychologists/Sociologists or social workers under the supervision of Legal Service Authority of the district and 20 percent opted for elders including parents, friends known to both the parties; 7 percent choose counselling by the police agency and only 3 percent suggested for counseling by the advocates and 5 percent chose that counseling should be conducted only between warring spouses and no-third party intervention is needed to settle differences between them.
From the responses to the questions 20 to 23, it is to be concluded that ‘mediation is the best measure to resolve the matrimonial discards between the spouses ’ which is according to the hypothesis drawn.
Comment:
Since, the problem arises between the spouse/s in the family; it is suggested that family is the first and perhaps the best place to solve that issue. Every effort ought to be made first at the family level. Second to family settlement, is the process of Mediation and Conciliation.
6.4.20 Domino effect on society - Irreparable harm to institution of marriage
The advent of the institution of marriage was to regulate the social system and promote natural growth of the human society. It was one of the most effective tools to bind the human being in a system, and it was an institution which always contributed to integrate and organise the human groups. But with the growth of the human society and emergence of urban and industrial social structure, the attitude towards marriage is rapidly changing. The great media exposure and the cosmopolitan culture is highly inflicting the behaviour of men and women and so the marital relationship.
In India, more and more married couples are walking-out their marriages in recent years. The data from various sources reveal that over the past decade, divorce rates have doubled and in some cities even trebled. This trend is evident not only in cities but also in towns and rural villages. However, it is to be stated that any single causal factor is not responsible for marital discard and divorce. The causes of divorce are different for every marriage. A careful scrutiny of cases of divorce also reveals that the common reasons for divorce in many cases are: lack of commitment towards marriage, lack of communication between spouses, differences in personal and career goals, different expectations about household tasks and financial problems, violence in domestic relationship, involvement of parents in the conjugal life of the spouse, inability to manage or resolve conflict, sexual incompatibility and infidelity, abandonment, abnormal diseases, and alcohol addiction, and religious beliefs, cultural and modern life style etc.
Question 24 reads as follows:
Do you feel that ‘Section 498A, IPC has caused irrevocable harm to the institution of marriage itself’?
The over-all impression of the respondents from all the categories to this question is summarized in Table 24 and Figure 24.
Table 24
Opinion on Section 498A, IPC caused irreparable harm to the institution of marriage and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 24
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 24 and Figure 24 shows that 68 percent of the respondents of the present study are agreed with the statement that Section 498A, IPC caused irreparable harm to the institution of marriage, while 20 percent disagreed, and 12 percent did not comment.
Comment:
The institution of marriage is no longer considered a sacred union of two hearts but has rather become more of a civil contract between two individuals in literal sense of the term where one is obligated to another to perform conjugal rights. Section 498A was primarily incorporated to combat the evil practices of dowry and dowry related deaths. At the time of introduction of the section it instilled some hope and optimism in the hearts of the woman and her family as it was seen as an ‘armour’ to combat the heinous act of cruelty. But, with the passage of time it became transparent that the provision of law left a host of loopholes which seemed to become a powerful ‘weapon’ if it falls into evil hands. Recent studies show that over the years it has changed its colour and has become a weapon of notoriety. It has been found that matrimonial disputes unconnected with dowry demands are often given the colour of dowry by some section of the women to get away with their husbands.
• Adverse impact of misusing of matrimonial provisions
Every person who is falsely implicated in criminal complaints or FIR is sufferer. A false complaint has a far reaching impact on social and economic prospects of accused. Following are the few points of ill effects of misuse of this provision
1. Many times, a complainant herself is sufferer, mostly in those cases where complaining wife has no independent source of livelihood.
2. Because, arrest of the relatives of the husband resulted into divorce between the wife and the husband in majority cases. Once the members of the husband’s family are arrested, chances of surviving the marriage became remote and marriage comes to an end.
3. A woman who is not economically independent gets dented with break chances of remarriage and by becoming dependent upon parents and brothers again.
4. Minor children to marriage are innocent victims, who don’t face legal action but they do face social problem like, single parenting, and criminogenic atmosphere of upbringing which results in ‘broken personality’.
5. The future of unmarried girls of the husband’s family gets adversely affected by the false implication and prosecution.
6. The criminal trial lead to immense sufferings for both the wife and the husband and their families. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. A large number of these complaints have led to enormous social unrest affecting peace, harmony and happiness of the society.475
7. Many advocates in lieu of getting commission on the maintenance and other payments received by women by mis/using this provision encourage the complaints to exaggerate the amount due to them as streedhan. It causing dishonor to noble profession of advocacy.
8. World Health Organization report on Elder Abuse finds misuse of dowry laws by daughter-in-law as the main reason for the elder abuse in India.
9. The divorced mothers generally do not allow fathers to see the child. It has ill-impact on the physical and mental development of the child.
According to National Crime Reports Bureau data, about 75000 dowry harassment cases are filed every year in India. More than 80 percent people arrested under dowry law cases have turned out to be innocent. Suicide rates of married men in India are higher than females and their proportion increases with their age. For males in the age group of 30 to 40 suicide rate is 508 per 100000 persons; for women it is 220. The suicide rates among men in the age group of 45 to 59 are 1812 per 100000 persons and among women, it is 550. It shows that more husbands are compelled to commit suicide because of unbearable harassment, mental torture, disturbed family life, financial pressure etc.476
Hence, it is to be concluded that Section 498A, IPC has had impact on the lives of both the wives/survivors as well as accused/husbands and his relatives, which is according to the hypothesis drawn.
6.4.21 Assessment of the Provision:
Several enactments and provisions have been brought on the statute book during the last three decades to address the concerns of liberty, dignity and equal respect for women founded on the community perception that women suffer violence or deprived of their constitutional rights owing to several social and cultural factors. Meaningful debates and persuasions have led to these enactments. The insertion of Section 498A, IPC is one such move and it penalizes offensive conduct of the husband and his relatives towards the married woman. The provision together with allied provisions in CrPC and the Evidence Act is so designed as to impart an element of deterrence. In course of time, a spate of reports of misuse of the section by means of false/exaggerated allegations and implication of several relatives of the husband has been pouring in. Though there are widespread complaints and even the judiciary has taken cognizance of large scale misuse, there is no reliable data based on empirical study as regards the extent of the alleged misuse. There are different versions about it and the percentage of misuse given by them is based on their experience or ipse dixit, rather than ground level study.
The Law Commission, in the absence of reliable data based on empirical study, could not pass any substantiated recommendations for the abuse of 498A, IPC. Due to rise of FIR/complaints, high rate of filing charge sheets, high pendency of the cases in courts for trial, it’s now equal essential that reliable data based on empirical study, also needs to be required for serving the purpose of criminal jurisprudence as well as for the protection of the fundamental rights of the individuals, and their relatives who has falsely been roped in cases, and languished in courts for years at distance place from their home town.
Question 25 reads as follows:
Do you consider that ‘the well intended Section 498A of IPC (enacted in 1983) did not achieve the desired result’?
The over-all impression of the respondents from all the categories to this question is summarized in the Table 25 and Figure 25.
Table 25
Opinion on Section 498A, IPC did not achieve the desired result and its percentage
Illustrations are not included in the reading sample
Graphical Presentation: Figure 25
Illustrations are not included in the reading sample
Note: Figures in brackets show the number of respondents
Data analysis:
The data given in the Table 25 and Figure 25 shows that 68 percent of the respondents of the present study are agreed with the statement that Section 498A IPC did not achieve the desired result, while 20 percent disagreed and 12 percent did not comment.
Comment:
Introduction to Penal provisions such as Sections 498A, and 304B have proved to be insufficient to check the increasing cases of cruelty against women in their marital homes. Dowry death and cruelty against married women became new features of domestic violence during the last few decades. It is time to acknowledge the observation made by the Supreme Court in Bhagwant Singh v. Commissioner of Police, Delhi. 477 It is evident that legislative measures such as Dowry Prohibition Act, 1961 have not met with the success for which they were designed, perhaps legislation in itself cannot succeed in stamping-out such an evil and the solution must ultimately be found in the conscience and will of social community.
• Crime against women - an increasing trend
The IPC crime rate has increased by 35.8 percent during the decade 2004-2014 from 168.8 in the year 2004 to 229.2 in the year 2014. It has increased by 17.6 percent during the year 2014 as compared to quinquennial average (during 2009-2013). According to the NCRB data, during the year 2014, as many as 1, 22,877 cases of cruelty by husband or his relatives were reported in the country during the year 2014 showing an increase of 3.4 percent over 2013 (1, 18,866 cases) and an increase of 20.9 percent over the average of last 5 years (2009 - 2013). The cases registered under the Dowry Prohibition Act, 1961 have shown an increase of 179.8 percent over 2004, an increase of 35.1 percent over the quinquennial average of 2009 - 2013 and a decrease of 6.2 percent over the year 2013 (10,709 cases).
In recent years the criminal law of the land has undergone radical changes to provide protection to the women in their marital homes. More teeth have been provided to the existing laws (Dowry Prohibition Act, 1961 and 498A and 406 of IPC) and new enactments have been made (i.e. the Protection of Women from Domestic Violence Act, 2005), but unfortunately the remedy is becoming worse than the ailment, which is now a well known fact as the stringent dowry laws have failed to prevent the gruesome crimes for dowry deaths.
6.5 Testing of Hypotheses
Chapter VI aims to test the hypotheses that are formulated under study and to suggest the measures to be adopted and amendments to be made to the existing laws, in the light of deficiencies labeled against Section 498A, IPC. Now, on the basis of foregoing discussion the hypotheses formulated in introductory part are to be tested and summarized as follows.
• That, ‘there is a high number of marital violence ’ stands PROVED.
• That, ‘the prevalent cause for such violence is demands for dowry ’ stands PROVED.
• That, ‘he majority of the victims are not aware of the law’ stands DISPROVED.
• That, ‘he anti-dowry law is being misused’ stands PARTIALLY PROVED.
• That, the law has had impact on the lives of victim as well as accused and his is family ’ stands PROVED.
• That, ‘ mediation is the best measure to resolve the matrimonial discards between the spouses ’ stands PROVED.
On testing of hypotheses the following five general statements are deduced:[27]
1. There is a substantial misuse of Section 498A, IPC by some section of the women and their parents. But, instances of such cases are fewer (i.e. around 2 percent).
2. It is true that some of the educated and independent minded women are misusing Section 498A, IPC.
3. Most of the cases of cruelty are reported by learned families in urban areas than in rural areas,
4. Cases pertaining to suicide by men due to harassment caused by wife and her parents leave unreported. However, some cases are registered as suicide by men due to family problems, and
5. The Government neither creates public awareness about the true intention of the legislature behind this enactment nor initiates the campaigns to correct the attitude of the society at large.
6.6 Findings of the Study
Any research work, whether theoretical or empirical, always leads to formulating certain fruitful conclusions. The present empirical research on the operation of Section 498A, IPC draws the following conclusions.
These findings are classified into three categories viz.
• Findings on Socio-Economic Profile of the Litigants
• Findings on the Questionnaires
• General Findings
6.6.1 Findings on Socio-Economic Profile of the Litigants
1. That, majority of the respondents of the present study are female, and also victims/survivors of a domestic relationship,
2. That, majority of the respondents are in the age-group of 30 to 39 years,
3. That, majority of the respondents are Hindus followed by Muslims and Christians,
4. That, majority of the respondents are graduates,
5. That, majority of the respondent’s occupation is Government service,
6. That, majority of the respondents living in nuclear families,
7. That, majority of the victims/survivors got married in the traditional arranged way,
8. The prevalent economic group for domestic violence is the middle-income group,
9. That, the practice of dowry is present in all religions, in all types of marriage (Love/arranged/Love-cum-arranged) and in all types of families (nuclear/joint or joint extended),
10. That, in majority of the cases of harassment violence became intolerable within three years of marriage of the victim,
11. That, women with children are somewhat experienced less violence than women with no child,
12. That, in majority of the cases, ‘emotional disturbances’ are the main cause of ruining the family fabric in the society,
13. That, the most prevalent form of violence against married women is emotional (mental) followed by physical violence, verbal violence, economic, social, sexual assault, and intellectual violence.
14. That, the prosecution always fails to establish the cases under 498A and also in matters of demand of dowry and dowry death, as revealed from review of judicial decisions and orders it is recommended that a proper system must be brought in place to oversee the exact reasons for failure to establish the case.
15. Even though the courts always observed on various occasion that the Section 498A of IPC is not ambiguous, on the contrary the research reveals that the provisions is ambiguous and the ingredient to satisfy for establishment of a case is not clear not only to the investigating agencies but also to the prosecution lawyers and the Trial Court. In order to overcome it, there is a need for capacity building and also contemplation of a guideline to be followed by the functionaries in the criminal justice system.
16. The provision envisaged under 498A has a special position as it addresses a deep rooted historical problem of cruelty on women. However, in course of delivery of justice in the process of law, due to incapacity or failure of enforcement agencies, prosecution and the other institutions of criminal justice system the alleged offence on women could not withstand the test of merit of the case in judicial scrutiny at higher court; it is indispensable upon the State to build effectiveness of its institutions and structures below.
6.6.2 Findings on the Questionnaires
According to the majority opinion of the study, the following concluding remarks have been drawn.
1. That, majority of the victims/survivors of the present study subjected to violence in their matrimonial home, in the hands of their in-laws,
2. That, ‘dowry’ is one of the main reasons for harassment in majority of the matrimonial disputes and a significant factor for filing cases under Section 498A, IPC. It suggests a link between domestic violence and dowry demands,
3. That, in majority of the cases, women are subjected to harassment either a demand for additional dowry or some other reason, at the initial stage of their marital life. Further, such harassment became intolerable for the victims/survivors, within three years of their marital life,
4. That, the chief perpetrators of the domestic violence are the husbands, and in most of the occasions it is followed by mothers-in-law and siblings of the husband. It is found that in a majority of the cases the husband and the mother-in-law of the victim played a leading role in planning and execution of the violence against the wife,
5. That, in majority of the cases the dowry demands were made before or soon after the marriage or first 12 months of the marriage,
6. That, in majority of the cases it was husband by whom dowry demand was made, followed by mother-in-law and rest of the family.
7. That, the main reason to make such demand is to meet the expenses of marriage, education of the husband or marriage of a sister-in-law. The next reason is purchase of a motor vehicle or other household items like refrigerator, air-conditioner, and television etc. The other prominent reasons are: expansion of family business or air-fare for going abroad of husband and unemployment of husband.
8. That, women who live in a joint family are mostly likelihood to face domestic violence in their marital home than nuclear family,
9. That, in majority of the cases, victims/survivors are fully dependent on their husbands for their livelihood,
10. That, majority of the respondents complained of domestic violence, which manifested itself in physical, emotional and economic forms. Most of the victims turned to their parental families for help against this violence, and only less percentage approached the police, and even fewer approached NGOs,
11. That, most common reasons for not initiating any complaint of dowry harassment or torture are: social and financial dependency of the wives over their husbands, and also concern for the children and their outlook,
12. That, the most common reason for not reporting to the police or the Court is lack of awareness or tied up with fear societal stigma attached to divorce; though, a less percentage of respondents approached the court to claim certain legal remedies, but discontinued their efforts as it was too expensive,
13. That, majority of the respondents aware about the laws in favour of married women even before their marriage,
14. That, majority of the victims/wives as well as accused/husbands are fully aware of Section 498A, IPC and the nature of the offence,
15. That, majority of the respondents aware of the fact that Section 498A, IPC directs arrests of the family members of husband; unfortunately most of such respondents are not aware about impossibility of reconciliation because of such arrests,
16. That, most of the respondents are aware about Section 498A, IPC and its nature and consequential effects of initiating a complaint through family friends and neighbours,
17. That, the predominant motive of the victim/wife, to initiate a 498A, case against her husband and his relatives is to demand maintenance or permanent alimony, and thus settle scores with the husbands,
18. That, in majority of the cases chances of reconciliation of spouses has been spoiled on account of complaints and the consequent arrests and remand of the husbands and their family members,
19. That, in majority of the cases to the present study, there is no parity has been observed between the number of cases filed under Section 498A, IPC alone, and cases under Section 498A, IPC r/w cases under Sections 3/4 of the Dowry Prohibition Act, 1961, and cases filed under Section 498A, IPC r/w Section 304B, of IPC,
20. That, it is extremely difficult to prove violence occurred in a matrimonial home for a wife, due to high standard of proof involved in a 498A case. Therefore, the respondents prefer to compromise the case for a sum in the form of maintenance or permanent alimony, instead of securing conviction of the accused,
21. That, in most of the cases of matrimonial offences particularly Section 498A, IPC the general result is acquittal of the accused’,
22. That, most of the 498A, IPC cases results in settlements/end with monetary compensation or maintenance relief to the wife and children,
23. That, more number of cases of torture reported in mega cities,
24. That, ‘more number of cases under Section 498A, IPC instituted by the educated and independent women than illiterate in our country’,
25. That, ‘laws which are originally meant for the protection of the women in their marital homes are generally abused by some section of the women to satisfy their ulterior motives against their husbands and their relatives’.
26. That, most of the complaints are based on trivial matters without any substantial evidence’ (i.e., not directly relating to dowry demands).
27. That, majority of the 498A, IPC cases are instituted on the grounds of harassment for dowry or valuable security by the husband and his relatives,
28. That, the police and advocates play persuasive role in number of cases, and thus alleged of misuse of matrimonial provisions,
29. That, the judicial officers are insensitive towards the cases of matrimonial discards,
30. That, laws exist presently in India that prohibit dowry, and punish dowry murder and torture are either ignored, unknown by law enforcement or not enforced by some higher authorities,
31. That, in majority of the IPC 498A cases, the victims/survivors could not get any specific relief,
32. That, in the case of matrimonial discards, conciliation and mediation between the spouse/s is the best step before affecting arrest of family members,
33. That, professional counselors will be ideally suited to act as Mediators/Conciliators between the warring spouses,
34. That, majority of the respondents of the present study not satisfied with the functioning of Police agency and felt that the agency of Police purposely neglected their duties in respect to the cases of marital discards. It is also suggested that the agency of the police should need certain reforms for performing its duties honestly and efficiently,
35. That, the promising reasons for low percentage of convictions for the offence under Section 498A, IPC are: frivolous complaints and exaggerated versions of the incidences, followed by complainants including parents and witnesses turning hostile at the time of trial, ineffectiveness of the prosecution. Besides this, most of the respondents opined that it is the cumulative effect of all the above factors,
36. That, more number of suicide of men is reported every year due to the harassment caused by the wife and her parents by lodging frivolous complaints and vexatious litigations against him and his family members,
37. That, more number of cases of cruelty is reported in urban areas by learned families than rural in our country,
38. That, more number of cases of cruelty are instituted by the educated and independent women than illiterate in our country,
39. That, majority of the respondents suggested punishment for woman in case of identification of falsely instituted criminal proceedings against the husband and his relatives, after a full trial for the offence under Section 498A, IPC,
40. That, majority of the respondents suggested insertion of a new section to the Penal Code making a wife punishable, if she is cruel to her husband and his relatives by implicating frivolous complaints and vexatious litigations leading innocent persons are jailed,
41. That, majority of the respondents agreed that to prevent immediate or illegal arrests in respect of the cases of matrimonial disputes, the warring couple should first take recourse to counseling and to make the process of counseling compulsory a new clause should be inserted to Section 498A, IPC,
42. That, majority of the respondents from all the categories is strongly against the process of counselling that is conducted by the Police in respect of matrimonial disputes,
43. That, majority of the respondents from all the categories strongly stressed for Professional Counseling through Trained Mediators under the supervision of Legal Service Authority of the District between the warring spouses,
44. That, majority of the respondents disagreed with recommendation and stressed, not to make any amendment and maintain status-quo of the existing provision keeping in view of the social aspect of the provision to deal with such crime which is a deep rooted societal malady. Since the incidences of cruelty are on increase most of the respondents are not in favour of making the provision non-cognizable,
45. That, majority of the respondents opined in the light of possibility of making arrest of all the family members under this provision, innocent persons may be taken into custody even before trial. Therefore, making the offence bailable would address the problem of allegedly unwarranted arrests,
46. That, majority of the respondents opined making 498A of IPC ‘ compoundable ’ is right solution to the problem of illegal arrests,
47. That, majority of the respondents supported the recommendation that it is desirable to setup Fast Track Courts in every district to deal exclusively with crimes against women including the cases of 498A, IPC with an obligation to the Magistrate to deliver the judgment within a period of six months and for this purpose a new provision should be appropriately incorporated to the Code of Criminal Procedure, 1973,
48. That, majority of the respondents supported the recommendation that it is desirable to setup “Crime Against Women Cells” (CWC) in every District to deal exclusively with the offences affecting the women such as Section 498A 304B, 375, 376, 376A to D, of IPC,
49. That, majority of the respondents opined it is not desirable to conduct trial of offences under Sections 498A and/or 304B, IPC read with the provisions of the Dowry Prohibition Act, 1961 and Protection of Women from Domestic Violence Act, 2005 by a Court presided only by a Woman Judicial Officer,
50. That, majority of the respondents partially agreed with the statement: the state agencies are reluctant or lacking sensitiveness towards cases relating women including 498A, IPC.
51. That, majority of the respondents absolutely agreed with the statement: the Legal Services Authorities (LSAs) have played a more extensive role in relation to matrimonial disputes and facilitate amicable settlement,
52. That, the laws concerning cruelty in marital relationship have failed to prevent or reduce violence against married women, and
53. That, the law of 498A, IPC has both positive and negative impact on the lives of the victims in particular and the society in general.
6.6.3 General Findings
The findings of the present research are based on a thorough engagement with the litigants of matrimonial offences including victims/survivors of domestic violence and various stakeholders at different levels, in the process of delivery of justice. It is essential to point out that the findings are based on methodological interaction with women who have a case pending in the court of law under Section 498A of IPC and allied provisions including the Protection of Women from Domestic Violence Act, 2005 or disposed or settled through the process of mediation. The responses are further fortified with review of law on the subject, judicial decisions, and the NRCB data relating to the subject. In course of research study from original sources the findings are given a definite shape.
The present research on the subject of law concerning cruelty against women in their marital home has been conducted primarily for the reason that since women are subjected to cruelty by their husband and in-laws for which the State in India responded to the situation by bringing a provision in the criminal legal framework. However, what has been once conceived as a protective measure for women in their matrimonial home from cruelty has become a matter of serious judicial activities on the ground of the provision being misused. The perception and development on this aspect of law was the focus in course of the legal research as the subject has been dragged changing the original perception about the incidence of injustice. What is important to mention here that the incorporation of legal provision on cruelty in the framework of criminal and penal law in India is a special provision in order to protect the interest of women as the research reveals that in the absence of such a provision the cruelty on human being including women can be dealt with by the provisions of penal law. The significance of granting a special provision for protection of women has to be seen in the overall discourse concerning gender justice and equality.478 It was revealed from the research from analysis of data and statistics concerning crime especially crimes which are perpetrated exclusively on women that there has been an increase in the incidence of cruelty as envisaged in Section 498A, of IPC. The statistical analysis indicates that the reported incidence of cruelty against married women is the third major area of crime after rape and dowry deaths in India.
A critical study of the Section 498A of IPC made by researcher reveals the following propositions/statements:
1. The interaction with the women who complained of cruelty by their husband and relatives of husband for which cases are lodged under Section 498A recently between 2010 to 2015 brings to focus that they have experienced in their matrimonial homes various kinds of violence like denial of food, merciless beating, wrongful confinement, cruel behaviour desertion etc for which they had no option but to knock the doors of police or courts without even knowing what kind of protection they are going to receive, at the initial stage of the case and in course of time they have acquired some knowledge about the provision of 498A. Majority of them, at present knew that IPC 498A is a cognizable, non-bailable and non-compoundable provision.
2. The interaction with litigants of matrimonial offences including the victims/survivors provides an adequate amount of cruelty on them. Each case speaks for itself loud about the sufferings of women in various forms and magnitude. The evidences are wide enough to believe that ‘violence on women writ large in the society in spite of legal measures’.
3. The interaction with the husbands who are accused of an offence under Section 498A, IPC revealed that a provision which was originally designed to protect the bride from being harassed and physically tortured by the husbands or relatives unfortunately has been abused to hassle the husband and his family.
4. The interaction with the mothers-in-law and sisters-in-law who are accused of an offence under Section 498A, IPC revealed that the provision provides protection only to women in the fight against husband and his relatives. A number of cases have been filed in the police station which forms the basis for the official statistics of dowry harassment, which otherwise implicates that only the woman are entitled to file harassment cases with an unlimited scope of fabricating stories and lies without even undergoing any penalty to pay compensation or any kind of damages.
5. It was also revealed that the level of understanding of a trial in court is demonstratively poor. On the general question as to what evidence they have with them to prove their case in course of trial and whom do they rely who can be the witness, the women by and large repeated their story of plight rather than being able to show the material or people who can be of help in making the decision go in their favour. Although they all have little faith either one or two person who are either the family member or the neighbour of the husband who helped them when they were undergoing any kind of physical or mental cruelty, the women during interaction expressed doubt about their support in the court.
6. The engagement with police personnel revealed that in India information about crimes against women in their marital homes is not projected properly as only a partial picture of these crimes is being presented under various heads in Crime in India. A number of cases have been filed in the police station which forms the basis for the official statistics of dowry harassment, which otherwise implicates that only the woman are entitled to file harassment cases with an unlimited scope of fabricating stories and lies without even undergoing any penalty to pay compensation or any kind of damages.
7. The engagement with police personnel also revealed that in majority of the cases are not being registered promptly and bail matters require proper and responsible handling.
8. The engagement with prosecutors revealed that there is a common perception about misuse of legal provision relating to cruelty on women. Though professionally, based on law and legal procedure, the advocates felt that without the support of police who finally decides the nature of case and the provision under which the complaint as mentioned in the FIR is going to be lodged it is impossible for women to misuse the process of law. The advocates also pointed out categorically that except for the initial steps like cognizance by the police and if it is a cognizable offence then arrest of the accused, the next step in a case goes through a series of judicial scrutiny like framing of charge etc.
9. The engagement with the prosecutors also revealed that a general perception has been built that the provision of penal law relating to cruelty on women is being largely misused. The reason for such widely accepted notion is that when a case is lodged there is a possibility of arrest of all family members along with husband of the wife since the provision is cognizable and non-bailable. In fact, in course of application of this particular provision there are instances where all the family members were roped in. It was admitted that without the involvement of law enforcement machinery it is not possible to misuse any provision of penal law as the institution for enforcement (i.e. police) is the final authority to decide the nature of case and the application of any particular provision of penal law. There is apparent evidences exist with regard to improper enquiry and ineffective investigation conducted by the police. The fault on the part of police cannot be held to be misuse of the process of law by women. If any particular provision of penal law can be misused then there is enough wide scope available for misuse of entire provisions of penal law.
10. The engagement with the advocates (including defence counsel having practised criminal law as well as experience in dealing with cases of matrimonial offences) revealed the fact that by and large the cases on 498A as an independent provision is almost negligent. Most of the time a case primarily on cruelty on women consequentially in course of police enquiry is also tagged with many other provisions of Indian Penal Code and especially the Dowry Prohibition Act, 1961. The dialogue with advocates therefore indicates the following issues:
Firstly, to the fact that the police and prosecution lawyers take the decision about the nature of case and how it is going to be presented in the trial,
Secondly, there are few cases where 498A has been only made applicable as an independent provision for dealing with cruelty on women and
Third, the nature of materials and witnesses are essential factors in determining the case to be established under the provision of 498A which is often relegated as focus goes to the fact as to whether dowry demand was made or not.
11. The engagement with the judicial officers established that the provision of law is harboring the possibility of massive social disturbance in large scale. Presently it is now a herculean task for the court to differentiate between the false accusations and defending the real victims since the provision of law aims at protecting the women from being tortured on the hands of their husbands or his relatives.
12. The engagement with the judicial officers revealed that the reason for acquittal of accused in majority of cases tends to indicate that the prosecution could not establish the cases with adequate material evidences and witnesses. There are instances where the High Court refers to the prosecution witnesses who were hostile in course of trial for which the cases came to judicial scrutiny. The incapacity of prosecution including the police to investigate and build a case with material evidences and strong witnesses which were the prime reason for acquittal, perhaps leaves an impression among advocates and judiciary that the provision of 498A is being misused.
13. The engagement with various stakeholders who are closely associated with criminal justice system at different levels convincingly established that the legal protection afforded to women in cases of cruelty by husbands or other in-laws have great impact the lives of the victims/survivors. Life and liberty of women in marital home is not yet secured in innumerable cases where women are subjected to many forms of violence and harassment. The state institutions have completely failed to protect the married women from being tortured and prevent the husbands and other in-laws harassed the weaker spouse for one reason or the other, due to lack of responsibility in the system.
14. The engagement with the lecturers of law to locate the position of the provision of 498A which was incorporated in the Penal Code to protect women in their matrimonial home clearly revealed that this aspect in the criminal justice system did not help women who suffered cruelty much and the failure of the police and prosecution is viewed and termed as misuse of process of law by women who sought assistance to protect their life and liberty as envisaged under different human rights instruments.
15. The engagement with various stakeholders also revealed that the law made for relief under the Penal Code is being partially misused. Along with it, many other problems are working as ancillary part of such misuse such as corruption among the policemen, and prosecution who usually accept bribes from one party to favour them, in spite of knowing that many complaints are false and to extort the husband and other in-laws, even the lower judiciary disposes of such cases without looking into the facts in hand carefully. However, some studies i.e., N.K. Singhal Committee on ‘Crimes against Women - Role of Section 498A of IPC ’ in States of Delhi and Haryana (2002) showed that there is a substantial misuse both by the victims/complainants and the police of Section 498A, IPC.
16. The study focused on study of judgments of various High Courts and the Supreme Court. In majority of such cases where the final judgment of the Trial Court was challenged in High Courts and the orders are reversed, due to insufficient evidence to prove the case and the witnesses are unable to stand the test of time.
17. It was noticed that in many cases the High Court had exercised its inherent power to allow the parties to the dispute to settle the matter amicably on being approached by the parties.
18. It is found that in majority of the cases the victim’s level of awareness about the law concerning cruelty against women in their marital homes is contained in Section 498A of IPC as well as the Protection of Women from Domestic Violence Act, 2005 is not so poor, though it is difficult to conclude that with a purpose of misuse the victims/survivors have approached the police or the courts.
19. The interaction with the ‘Men’s rights organizations’ revealed that urban well educated women are taking advantage of the Section 498A of IPC in order to reside independently, separated from the husband and his family right after the husband’s family submit to her demands which generally involves either cash or property and the provision of 498A is such that the husband cannot even file a complaint or even if they do they are not entertained solely on the reasons that the law is applied only for the protection of women and not men479. That’s why the section incurred the infamy of ‘legal terrorism’ since it has the peculiarity of tilting towards the woman and becomes an evil provision when fall into wrong hands.
20. The interaction with the ‘Men’s rights organizations’ also revealed that Section 498A IPC, sometimes said to be ‘ gender based’ or otherwise ‘g ender-bias law ’. The provision of law gives protection only to women in the fight against husband and his relatives and allows for innocent men to be arrested by police, even after the Supreme Court clear guidelines in many occasions.
6.7 Conclusion
Indian society form time to time talks about equality, dignity and respect for women. “ We the people of India ” speak proudly of the dignity of the women and cite epics to sustain our contention of the concept of ancient culture in India where women were highly respected. It goes to the extent of saying ‘ God reside where women are worshipped’. Contradictory statements about glorifying and condemning women are found in abundant. However, the society follows practices, which are quite contrary to its preaching. women are branded as weaker sex, and they have been subjected to exploitation, socially, economically, physically, psychologically and sexually with complete impunity being socially sanctioned and backed by religious scriptures interpreted to suit to the whims and fancies of male480.
The semantic meaning of ‘crime against women’ is direct or indirect, physical or mental. The kinds of violence perpetrated against women are eve-teasing, molestation, bigamy, adultery, abduction, and kidnapping and selling for prostitution, wife beating, dowry deaths and abuse of elderly female etc. the list is endless. Section 498A of IPC was introduced in 1983 and changes of the past three decades have not been satisfactorily appraised at all by the Government with respect to its goals, despite the institutionalization of law and policy to criminalise marital violence. The limited or almost insignificant study done by the authorities about the deterrent effect of legal sanctions for marital violence stands in high contrast with the extensive efforts of Advocates and Non-Governmental Organisations in mobilizing law and shaping policy to stop violence against married women. It is important to do these studies to correct the general misconceptions that women are misusing this well intended provision by filing false cases against their husband and his relatives in order to harass them and get them convicted on irrational grounds.
The spiral of violence against women is rising at an alarming rate. The National Crime Record Bureau (NCRB) statistics are testimony to a consistent increase in the number of dowry deaths, torture cases every year in India. Since 2006 there has been an increase of 6.2 percent in dowry deaths in the country. Inspite of the legislation to prevent dowry deaths the implementation proves not effective so as to control the increasing violence. [31] The fact that crime against women mostly in the form of rape, sexual harassment, matrimonial cruelty and domestic violence have been on the increase all over the country and the practices of bigamy, dowry demands and child marriages through outlawed are still rampant make it apparent that in reality there has been very little change in the attitude of the society towards the issues relating to crime against women.
Though the Constitution of India has give her equality of status (Articles 14 and 15) and there is a list of laws to provide women protection from the matrimonial violence, still the fact is that Indian women continue to suffer the atrocities of these abusive relations. It is not the legal mechanism alone can come to the rescue of these victims. The society, the family, and above all, the victim herself, needs to recognise her rights and to know that she has to say a ‘No’ to the violence at the very first time, when it is being inflicted against her.
While dealing with this topic, the researcher shall be dealing about its usefulness in the present society and then its disadvantages i.e. misuse done by the wife or their family members against the husband and his other family members to wreck personal vengeance. The modern woman, because of her opportunities for education, training and employment, and creative activity, has developed into a self-dependent and self-confident individual. This can lead to difficulties in adjustment in marriages, especially for women who have lived an independent and creative life before marriage. The scope for material prosperity has shifted social values from the spiritual and moral to the material. This change in values has encroached into the realm of marriage too. The wave of progressive liberalism and individualism has made insipid and outmoded the feelings of faithfulness and loyalty. The mass media has played an important role in changing such values. The influence of cinema, television and other media on the younger generation indirectly affects divorce rates. Besides social and cultural differences between the partners, infertility, and the social stigma attached to it, is also a cause for divorce.481
The question that falls to be considered is whether the laws in these sections are useful or not. The answer is that, had they been useful, the recurrence of such offences would not have taken place in such frequency. So the irresistible and fair conclusion is that the laws contained in these sections are not effective or useful since the offences mentioned in them are being committed in unabated form.
We all know that ‘ every coin has its two sides’ and so is the case with any law. It has its own importance and is criticized also in the same society. And when the law is for the sake of a particular section of the society, it is very much probable that the benefitting section of the people may misuse it, because no one is ideal in this world. The misuse of the law does not held it to be void but some amendments can be done to reduce its misuse. But the main responsibility lies on the women who have to understand that such a law is passed for them and like other women to protect them from harassment and torture. So they should not misuse it to derive wrong benefit from it. They have to retain the spirit of this law for the sake of those who really need it. Hence, it is entirely in the hands of the women to retain the advantage they have by proper use of these laws.
“ That Country and that Nation do not respect women have never become great, nor ever be in future ” - Swami Vivekananda
CHAPTER VII Matrimonial Mediation - Need for application of ADR Mechanism
I had learnt the practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realised that the true function of a lawyer was to unite parties given as under. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer occupied in bringing out private compromise of hundreds of cases. I lost nothing thereby - not even money; certainly not my soul.
- Mohandas Karamchand Gandhi[1]
7. Introduction
Our judicial system has been embroiled in fierce criticism for its tremendous backlog, rigidity of procedure, exorbitant costs and interminable delays in adjudication of disputes. The adversarial character of litigation in conjunction with the formality of procedure renders the judiciary inept to address the longstanding problem of court congestion.[2] The abysmal state of affairs as reflected in the statistics reveal that there are 43.4 lakh cases pending in 21 High Courts in the country. On the other hand, the subordinate courts are plagued with a backlog of over 2.5 crore cases for as long as 25 to 30 years. At the end of May 2016, there were 2.18 crore cases are pending, from the lowest chambers to the Apex Court.[3]
In recent times, there are strong allegations levelled by Mens Rights Organisations that courts in India are crowded with number of false cases more specifically with cases under Section 498A, IPC which result in a number of acquittals, due to compromise. The problem of arrears of cases and slow disposal of matrimonial disputes has brought the judicial administration into focus. According to the official statistics As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.[4]
The Constitution of India is the fundamental authority of law in India. The Preamble to the Constitution of India declares to secure to all its citizens, justice, social, economic and political; and equality of status and of opportunity. Article 39A of the Constitution directs the State to secure that the operation of the legal system promotes justice on a basis of equal opportunity, and ensure that the same is not denied to any citizen by reason of economic or other disabilities.482
In India, there is an organized system of designated civil and criminal courts within every state in India which works under the overall jurisdiction of the respective High Court in the state. It is in the hierarchy of these courts that all family and matrimonial causes are lodged and decided. In addition, the Indian Parliament has enacted the Family Courts Act, 1984 to provide for the establishment of family courts with a view to promote conciliation in and to secure speedy settlement of disputes relating to marriage and family affairs. But the poor performance of Family Courts in disposing the matrimonial cases depicts a sad picture, which had gradually looses the confidence of people in general and women in particular. Therefore, it is necessary to examine the potentiality of ‘Alternative Disputes Resolution’ mechanism (in short ADR) in matrimonial disputes for effective and speedy disposal of cases.
7.2 Need for ADR Mechanism
The philosophy of ‘Alternate Dispute Resolution’ system is well quoted by Abraham Lincoln’s famous words: “ discourage litigation, persuade your neighbours to compromise whenever you can. Point out to them how the normal winner is often a loser in fees, expense, cost and time. ” These words spell out grim realty and truth. The modern Alternative Dispute Resolution (ADR) movement has established a system aimed at avoiding litigation and giving disputants a measure of control over the outcome of disputes in a Gandhian spirit through the good offices of the mediator.483
Alternative Dispute Resolution is a process for settlement of disputes without going through the strict procedure of the court of law. ADR includes dispute resolution process and techniques that lay outside the state judicial process. ADR practices usually mean court annexed dispute resolution mechanisms by using informal methods. Courts in many countries now require ADR methods, usually mediation, before cross-examining the cases. It becomes popular because of the increasing caseload of traditional courts. ADR imposes fewer costs than litigation, maintains confidentiality, and the desire of some parties to have greater control over the selection of the individual or individuals who will decide their disputes.484
Today, a large number of disputes arise in the commercial areas, matrimonial matters and labour and employment areas. Due to extremely slow judicial process, there has been a big thrust on ADR mechanisms in India. The Law Commission has given varied recommendations in its earlier reports on the subject of judicial reforms485 that the present system of administration of justice is not suited to the needs of our people and the real remedy lies in reforming the existing judicial system by undertaking some interim steps immediately.
Our justice delivery system has come under great stress due to huge pendency of cases during last 2-3 decades. In such a situation there is an urgent demand to adopt ‘Alternative Disputes Resolution’ (ADR) mechanism to avoid the delays, reduce arrears and high cost of litigation. ADR mechanism would certainly supplement the existing adjudicatory machinery so as to develop the confidence of common man in the justice delivery system. In spite of all kind of legislative potentiality and judicial recognition to the ADR mechanism, little has been done and vast seem to be undone for making our judicial system more people friendly. Thus, there is an urgent need for devising a system, which enables the judges to appreciate the spirit of family laws to ensure efficient dispensation of gender justice.486
ADR today falls into two broad categories: court-annexed options and community-based dispute resolution mechanisms. Court-annexed ADR includes mediation/conciliation - the classic method where a neutral third party assists disputants in reaching a mutually acceptable solution - as well as variations of early neutral evaluation, a summary jury trail, a mini-trial, and other techniques. Supporters argue that such methods decrease the cost and time of litigation, improving access to justice and reducing court block log, while at the same time preserving important social relationships for disputants.
Community based ADR is often designed to be independent of a formal court system that may be biased, expensive, distant or otherwise inaccessible to a population. ADR actually operates within the legalistic model while at the same time being aware of its limitations. New initiatives sometimes build on traditional models of popular justice that relied on elders, religious leaders, or other community figures to help resolve conflict.[10]
7.3 Statutory Provisions for ADR System
In the legal arena a new mechanism was evolved and is being practiced worldwide that is to resolve the dispute without going to the regular courts, and that too without causing any hardship, harassment or pain to the persons involved. The sensitivity of the legislature to provide speedy and efficacious justice in India is mainly reflected in the following enactments:
a. Arbitration under the Arbitration and Conciliation Act, 1996
b. Settlement of disputes under the Code of Civil Procedure, 1908,
c. The incorporation of Section 89 in the Civil Procedure Code read with Order X Rules I
A, I-B, and I-C for Settlement of Disputes outside court,[11]
d. The establishment of Lok Adalat under the Legal Services Authority Act, 1987
e. Reconciliation under Sections 23 (2) and 23 (3) of the Hindu Marriage Act, 1955 and under Section 34 (3) of the Special Marriage Act, 1954, and
f. Family Court to make efforts for settlement under Section 9 of the Family Courts Act, 1984.
Section 89 (1), CPC provides an option for the settlement of disputes outside the court, according to which the court may formulate the terms of a possible settlement and refer the same for arbitration, conciliation, mediation or judicial settlement including Lok Adalats. While the Arbitration and Conciliation Act, 1996 is a fairly standard western approach towards ADR, the Lok Adalat system constituted under the Legal Services Act, 1987 is uniquely Indian approach.
7.3.1 Settlements of disputes under the Arbitration and Conciliation Act, 1996
India’s first enactment on arbitration was ‘the Indian Arbitration Act, 1899’ which was replaced by ‘the Arbitration Act, 1940’. Other supporting legislations were the Arbitration (Protocol and Convention) Act of 1937 and the Foreign Awards Act of 1961. Arbitration under these laws was never effective and led to further litigation as a result of rampant challenge of the awards. The Parliament of India thus enacted the Arbitration and Conciliation Act, 1996 to make arbitration, domestic as well as international, more effective in India. The Act of 1996 is based on the UNCITRAL (United Nations Commission on International Trade Law) Model Law. Under the Arbitration and Conciliation Act, an arbitral award can be challenged only in the manner prescribed and on limited grounds. The 1996 Act also restricts court intervention in arbitration proceedings to minimal interference. India is a party to the New York Convention of 1958 on the Recognition and Enforcement of Foreign Arbitral Awards. As the name of the Act suggests, it also covers conciliation, which is a form of mediation. Accordingly, arbitration is a popular mode of dispute resolution in civil disputes and commercial agreements invariably contain an arbitration clause.
Conciliation is statutory regulated by the Arbitration and Conciliation Act, 1996. Section 67 (1) of the Act, however, impliedly defines ‘conciliation’ as the assistance rendered by a conciliator to the parties to a dispute, in independent and impartial manner, in their attempt to reach an amicable settlement of their dispute. The 1996 Act does not contain any provision for reference by courts to arbitration, mediation and conciliation in the absence of the agreement between the parties to that effect. Thus, it is purely consensual and not compulsory.
7.3.2 Settlements of disputes under the Code of Civil Procedure, 1908
The Code of Civil Procedure (in short the ‘CPC’) did not incorporate any provision relating to the settlement of disputes outside the court in any civil suit. However, it was only by the Code of Civil Procedure (Amendment) Act of 1976 which encapsulated the ADR mechanism as a procedural device in matter concerning the family disputes. There are three important provisions in the CPC which provide for settlement of disputes outside the court.
• Section 89: Settlement of disputes outside the Court
• Order X: Examination of Parties by the Court.
• Order XXXIIA12: Suits relating to Matters Concerning the Family
7.3.2.1 Settlement of disputes outside the Court[13]
The Law Commission of India[14] had recommended the introduction of the conciliation court system and had underlined the importance of conciliation/mediation as a mode of ADR. The Malimath Committee[15] had also advocated the need of an amendment in law for introduction of ADR mechanisms. With a view to implementing the report of the Law Commission, Section 89 was inserted in the Code which provides for settlement of disputes outside the Court.
It has now become imperative that resort should be had to ADR mechanisms with a view to bring an end to litigation between the parties at an early date. With the introduction of this provision, a mandatory duty has been cast on the civil courts to make an endeavour for settlement of disputes by relegating the parties to an ADR process. Five ADR methods are referred to in Section 89. They are (a) Arbitration, (b) Conciliation, (c) Judicial Settlement (d) Settlement through Lok Adalat, and (e) Mediation. If the parties fail to settle their disputes through any of the alternative dispute resolution methods, the suit could proceed further in the court in which it was filed. The procedure to be followed in matters referred for different modes of settlement is spelt out in sub-section (2). Section 89 (2) empowers the government and the High Court to make rules to be followed in mediation proceedings to affect a compromise between parties.[16]
Section 89 affords an option for reference of sub judice matters to conciliation with the consent of parties for extra judicial resolution. It embodies the legislative mandate to the court to refer sub judice disputes to various ADR mechanisms enunciated therein where it finds it appropriate to do so, in order to enable the parties to finally resolve their pending cases through well established dispute resolution methods other than litigation. This section has therefore recognized the need and importance of ADR even at the post litigation stage. In order to understand the niceties of Section 89 CPC it is essential to refer to its text, which is as under:
• Section 89: Settlement of disputes outside the Court
(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observation of the parties, the court may reformulate the terms of a possible settlement and refer the same for-
(a) Arbitration,
(b) Conciliation,
(c) Judicial settlement including settlement through Lok Adalat, or
(d) Mediation.
(2) Where a dispute had been referred-
(a) For arbitration or conciliation, the provisions of the Arbitration and Conciliation Act, 1996 (26 of1996) shall apply as if the proceedings for arbitration or conciliation were referred for settlement under the provisions of that Act.
(b) To Lok Adalat, the court shall refer the same to the Lok Adalat in accordance with the provisions of subsection (1) of section 20 of the Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of that Act shall apply in respect of the dispute so referred to the Lok Adalat
(c) For judicial settlement, the court shall refer the same to a suitable institution or person and such institution or person shall be deemed to be a Lok Adalat and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if the dispute were referred to a Lok Adalat under the provisions of that Act,
(d) For mediation, the court shall affect a compromise between the parties and shall follow such procedure as may be prescribed.
Thus, the court can refer the parties to Arbitration, Conciliation, Mediation, Lok Adalat or Judicial settlement in terms of Section 89, CPC for resolution of their disputes at the post litigative stage.
7.3.2.2 Examination of Parties by the Court
Section 89, CPC specifies the statutory modes, machinery and procedure provided and stipulated for alternative modes of dispute redressal in all matters of civil litigation in India. This provision is procedurally supported by Order X, Rules 1A, 1B and 1C.
• Order X: Examination of Parties by the Court
Rules 1A, 1B and 1C were inserted in Order X by the CPC (Amendment) Act, 1999. This was consequential to the insertion of Section 89 (1) CPC, making it obligatory upon the courts to refer the dispute for settlement by way of arbitration, conciliation, judicial settlement including settlement through Lok Adalat or mediation.
A settlement can thus be made by adopting any of the said modes specified in the amended Section 89. In other words, as per the Order X, Rule 1A, the parties to the suit are given an option for settlement of the dispute outside court. If the parties exercise their option, it shall fix the date of appearance before such forum or authority as may be opted by the parties for settlement. As per the Rule 1B, the parties are required to appear before such forum or authority. Rule 1C provides that the presiding officer of the forum or authority has to refer the matter again to the court, in case if it feels that in the interest of justice, the forum or authority should not proceed with the matter.
7.3.2.3 Suits relating to matters concerning the family[17]
As regards, suits relating to family matters, it may be pertinent to mention that all proceedings under the Hindu Marriage Act and the Special Marriage Act in India are regulated by the provisions contained in the CPC. Accordingly, Order XXXIIA added to the Code of Civil Procedure by an amendment made in 1976, to provide for mandatory settlement procedures in all matrimonial proceedings specifically.[18]
In short, Order 32A, Rule 3 imposes a mandatory duty on the Court to make every effort for the settlement of disputes outside the Court by means of ADR. But, it is found that this provision was scarcely used in any family disputes. Further dwelling upon the scope of ADR in every civil suit or proceeding the Code of Civil Procedure (Amendment) Act of 2002 has substituted Clause 1 in Section 89 CPC; make it obligatory on part of the court to give a fair chance of settlement through conciliation or negotiation before adjudication is embarked upon. It is now made obligatory for the Court, with the consent of the parties to refer the suits relating to matters concerning a family, after issues are framed for settlement either by way of arbitration, conciliation, judicial settlement including settlement through Lok Adalat and mediation.
Mediation, conciliation and Lok Adalats are all basically non-adjudicatory dispute process. In such process a neutral third party renders assistance to the parties to the dispute to reach a satisfactory settlement.
Mediation is a non-binding, non-adjudicatory dispute resolution process, where a neutral third party renders assistance to parties in conflict to arrive at a mutually agreeable solution. Under Section 89, CPC where in pending suit the court is of the view that the parties should attempt a settlement by negotiations with the assistance of a neutral third party, and refer the matter to the third party for the purpose, then the resulting ADR process is also termed as mediation.
Lok Adalat, where the reference by the Court is to a forum consisting of the two or more members - a judge (serving or retired) and others (preferably an advocate or social worker) constituted under Section 19 of the Legal Services Authorities Act, 1987 to facilitate the parties to the proceeding to arrive at a compromise or settlement.
• Concepts of Conciliation and Mediation
Under the Code of Civil Procedure, express provisions are contained in the form of Order XXXII-A, Rule 3 where under a duty is cast upon the courts to make efforts for settlement in suits relating to matters concerning family. However, an elaborate codified recognition has been given to the two concepts only with the enactment of the Arbitration and Conciliation Act, 1996.
The concept of conciliation has now been given a statutory recognition under the Arbitration and Conciliation Act, 1996. But it is not very clear as to whether the two concepts of conciliation and mediation would have different connotation or they would refer to the same mode. According to most of the authorities they are overlapping. But the expression conciliation is not defined in the Act. It only states that conciliation could take place not only in contractual and commercial disputes but also in all disputes arising out of legal relationship.
This expression ‘conciliation’ is defined by the International Labour Organisation (ILO) which is adopted by the Advisory, Conciliation and Arbitration Service which reads as follows: “The practice by which the services of a neutral third party are used in a dispute as a means of helping the disputing parties to reduce the extent of their difference and to arrive at an amicable settlement or agreed solution. It is a process of orderly or rational discussion under the guidance of the conciliator.”
The difference between conciliation and mediation has also been outlined by ILO as follows: “Mediation may be regarded as a half way house between conciliation and arbitration. The role of the conciliator is to assist the parties to reach their own negotiated settlement and he may make suggestions as appropriate. The mediator proceeds by way of conciliation but in addition is prepared and expected to make his own formal proposals or recommendations which may be accepted.”
Conciliation and Mediation are recognised as the most effective forms of ADR mechanism to initiate reasonable human effort for settlement of disputes. Such measures facilitate parties to deal with the underlying issues in dispute in a more cost-effective manner and with increased efficacy. These processes have the advantage of providing parties with an opportunity to pacify the hostility, regain a sense of mutual trust, resolve conflict in a peaceful manner and achieve a greater sense of justice in each individual case. Mediation is alternative process for expeditious disposal of matter in dispute. In this process of settlement, the mediator assists the litigating parties to resolve their disputes. The matter is referred to the Mediator under order of the concerned Court. For reference to the mediator, the concerned parties should consent for resort to mediation. Since, it is a voluntary process; one cannot be compelled to go for
Mediation. In case, mediation does not succeed, the case will sent back to the concerned court for disposal in accordance with the procedure.487
In India, however, mediation does not have any statutory recognition as a means for settlement of disputes under the terms of the Arbitration and Conciliation Act and existence and, therefore, would not be bound and restricted to any rules and statutory restrictions and limitations, unless it is accepted that both the expressions are overlapping.
A conciliation proceeding could be initiated when one of the parties to the dispute arising out of legal relationship invites the other parties to get the dispute resolved through conciliation and the said request is accepted by the other party. If, the other party rejects the proposal for settlement through conciliation, no conciliation proceeding should commence. Even if no acceptance is sent within thirty days to the proposal, it would be deemed that the said request is rejected.
The number of conciliators generally appointed for a conciliation proceeding is one unless the parties agree and give mutual consent to have more conciliators than one. A statement of facts of the case is to be submitted by the parties to the conciliator in order to enable the conciliator to understand the case and to form an opinion. He can call for additional statement of facts and information in order to enable him to give his suggestion to the parties. Parties are also entitled to suggest terms of settlement which would be discussed by the parties wherein suggestions could be given by the conciliator on such terms for their observations but the conciliator cannot impose a settlement as conceived by him on the parties. In case the parties arrive at a settlement during the discussion and the proceeding, a settlement agreement is drawn up which would have the same effect and status as an arbitral award on agreed terms as envisaged under Section 30 of the Arbitration and Conciliation Act. The same thereafter could be enforced as a decree of court.
Conciliation proceedings could be of two types - facilitative conciliation and evaluative conciliation. In facilitative conciliation, the conciliator avoids opinion and judgments and he merely assists the parties to clarify their communications, interest and priorities. On the other hand, in evaluative conciliation, the conciliator expresses his opinion on the merit of the issues so as to enable the parties to approach settlement. His opinion is a third party view on the merit but such opinion would not be conclusive and binding. He must be seen as an independent and impartial person and he must gain confidence of both the parties. The parties should be able to repose trust and confidence on him so as to enable them to share their secrets.
A party desiring to avail of the remedy could take resort to the said procedure during prelitigation and even during the pendency of litigation. If the effort fails, the parties can always come back to litigation. However, during the pendency of conciliation preceding a party is not entitled to pursue the litigation.
7.3.3 Lok Adalat System
ADR methods are not new to India and have been in existence in some form or the other in the days before the modern justice delivery system was introduced by the colonial British rulers. There were various types of arbitral bodies, which led to the emergence of the celebrated Panchayat Raj system in India, especially in the rural locales. The decisions of the Panchayat were accepted and treated as binding. In 1982, in Junagarh in the State of Gujarat, a forum for Alternative Dispute Resolution was created in the form of Lok Adalat (People's Court). Keeping in view the usefulness of Lok Adalats, the Government of India set up in 1980 a Committee488 under the chairmanship of P. N. Bhagwati, former Chief Justice of India. Later, the Parliament enacted the Legal Services Authorities Act, 1987 in view of the direction given in Article 39A of the Constitution.
“ Access to Justice for all ” is the motto of the Legal Services Authorities. The Legal Services Authorities Act 1987 (Act 39 of 1987) was enacted to constitute Legal Services Authorities (in short LSAs) for providing free and competent legal services to weaker sections of the society to ensure that opportunities for securing justice were not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalat to ensure that the operation of the legal system promoted justice on a basis of equal opportunity.
The philosophy behind setting up of permanent and continuous Lok Adalats is that in our country, the litigant public has not so far been provided any statutory forum for counselling and as such, these Lok Adalats may take upon themselves the role of counsellors as well as conciliators. Experiment of Lok Adalat as an ADR mode has come to be accepted in India as a viable, economic, efficient and informal one. There are no court fees and rigid procedural requirements that are need to follow mandatory process laid down by the Civil Procedure Code or Evidence Act’, which makes the process very fast. Parties can directly interact with the Lok Adalat judges in vernacular language. Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties consent to it. A case can also be transferred to a Lok Adalat if one party applies to the court in writing where matter is pending. If the court sees some chance of settlement after giving the opportunity of being heard to the other party, the matter can be transferred to the Lok Adalat for settlement. Even matrimonial matters are settled in Lok Adalats and thereafter such negotiated settlements are affirmed by the respective matrimonial courts by appropriate orders or consent decrees/judgments so drawn up.
The main focus of Lok Adalats is on compromise and settlement. When no compromise is reached, the matter goes back to the regular court. However, if a compromise is reached, an award is made with consent and binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226, because it is a judgment with consent and orders are not appealable. All the proceedings of a Lok Adalat are deemed to be a judicial proceedings and every Lok Adalat is deemed to be a civil court under the Legal Services Authorities Act, 1987.
• Cognizance and jurisdiction of Lok Adalats
The provisions of the Legal Services Authorities Act, 1987 seek to reduce justice dispensation to an informal and casual process. Sub-section 3 of Section 20 of the Legal Services Act, 1987 provides that the Lok Adalat, where any case referred to in clauses (i) and (ii) of subsection 5 of Section 19, can dispose of a matter by way of a compromise or settlement between the parties, where as sub-section 5 of Section 20 provides that where no award is made by the Lok Adalat, on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) of Section 20 for disposal in accordance with law.489
The provisions relating to Lok Adalats are contained in Sections 19 to 22 of the Legal Services Authorities Act 1987. Section 19 (5) provides that ‘a Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to the dispute in respect of (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organised; provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law’.490
According to Section 19 (5) of the Act, it is clear that the LSAs have no jurisdiction, in respect of the cases or matters relating to an offence that are not compoundable under any law. Therefore, to give an effect to the orders of LSAs, it is suggested that the High Court may issue a specific directions to all its sub-ordinate courts to compound the cases of 498A, IPC under Section 482 CrPC, invoking the inherent powers of the court.
Section 22B of the Legal Services Authorities Act, 1987, as amended in 2002, enables establishment of permanent Lok Adalats and its sub-section (1) reads as follows:491 ‘Notwithstanding anything contained in Section 19, the Central Authority or, as the case may be, every State Authority shall, by notification, establish Permanent Lok Adalats at such places and for exercising such jurisdiction in respect of one or more public utility services and for such areas as may be specified in the notification.’
The disposal of disputes at pre-litigative stage by the permanent and continuous Lok Adalats provides expense-free justice to the citizens of this country. It also saves courts from additional and avoidable burden of petty cases, enabling them to divert their court-time to more contentious and old matters.
The Statement of Objects and Reasons appended to the Bill preceding the Legal Services Authorities (Amendment) Act 2002 points out that the system of Lok Adalat, which is an innovative mechanism for alternate dispute resolution, has proved effective for resolving disputes in a spirit of conciliation outside the courts.
It is pertinent to mention here that the Parliament has enacted the Gram Nyayalayas Act 2008. Justice to the poor at their doorstep as the common man’s dream is sought to be achieved through the setting up of Gram Nyayalayas which will travel from place to place to bring to the people of rural areas speedy, affordable and substantial justice.
7.3.4 Settlement of matrimonial disputes under Hindu Marriage Act and Special Marriage Act
The settlement of dispute by way of ADR mechanism was inherent in some enactments dealing with matrimonial disputes. Reconciliation is mandatory under the Hindu Marriage Act, 1955 (in short HMA) and the Special Marriage Act, 1954 (in short SMA).
The Hindu Marriage Act has been provided conciliation mechanism under Sub-section (2) of Section 23 which speaks that in any proceeding before granting any relief it is mandatory duty of the Court in first instance if it possible so to do consistently with the nature and circumstances of the case. The court shall make every endeavour to bring out conciliation between the parties. Further, Sub-section (3) of Section 23 is clearly manifest to bring about the settlement outside the court between the parties.
The words “before proceeding to grant relief” at one time a view was propounded that the reconciliation endeavour should be made towards the end of the proceedings when the court comes to a conclusion that it is going to grant “relief”. But the words “at the first instance” and these have been interpreted to mean that before the court takes up the case for hearing, it should make an effort at reconciliation. Presently, the latter is the prevalent view and hence reconciliation is to be attempted in the first instance.
Section 23 (2), HMA states that before proceeding to grant any relief under this provision there shall be a duty of the court in the first instance, in every case to make every endeavour to bring about reconciliation between parties where relief is sought on most of the fault grounds for divorce specified in Section 13 HMA. Section 23 (3), HMA empowers the court on the request of parties or if the court thinks it just and proper to adjourn the proceedings for a reasonable period not exceeding 15 days to bring about reconciliation. It must be borne in mind that a Hindu Marriage is a sacrament and not a contract. Even if divorce is sought by mutual consent, it is the
duty of the court to attempt reconciliation in the first instance. Accordingly, Hindu law advocates rapprochement and reconciliation before dissolving Hindu marriage.
The provisions of Sections 34 (2) and 34 (3) of the SMA are pari materia to the provisions contained in Sections 23 (2) and 23 (3) of the HMA. Even though the marriage contracted under the SMA does not have the same sacramental sanctity as marriage solemnized under the HMA, the Indian Parliament in its wisdom has retained the provisions for reconciliation of marriages in the same terms of the SMA as they exist in the HMA. The mandatory duty on the court is thus in similar terms. It may be noticed that the provisions under both the statutes are almost identical and accordingly every endeavour to bring about reconciliation is mandatory.
7.3.5 Settlement of matrimonial disputes under Family Courts Act, 1984
The Family Courts Act 1984 was enacted to provide for the establishment of Family Courts with a view to promote conciliation in, and secure speedy settlement of disputes relating to marriage and family affairs. The necessary provisions for reconciliations in the Family Courts Act, 1984 are dealt with under Sections 5, 6 and 9 of the Family Courts Act.
Section 5 enables the court to require the association of Social Welfare Organization to hold the Family Court to arrive at a settlement. Section 6 provides for appointment of permanent counsellors to effect settlement in the family matters. Similarly, Section 9 makes it obligatory on the Family Court to endeavour in the first instance to bring the husband and the wife to terms and negotiate an amicable settlement through the mediation of counselor appointed under the Act[24]. During this stage, the proceedings will be normal and rigid rules of procedure shall not apply, and simplify the rules of evidence and procedure so as to enable a family court to deal effectively with a dispute. To this extent the ADR has got much recognition in the matter of settlement of family disputes.
(1) In every suit or proceeding, endeavour shall be made by the Family Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist and persuade the parties in arriving at a settlement in respect of the subject-matter of the suit or proceeding and for this purpose a Family Court may, subject to any rules made by the High Court, follow such procedure as it may deem fit.
(2) If, in any suit or proceeding, at any stage, it appears to the Family Court that there is a reasonable possibility of a settlement between the parties, the Family Court may adjourn the proceedings for such period as it think fit to enable attempts to be made to effect such a settlement.
(3) The power conferred by sub-section (2) shall be in addition to, and not in derogation of any other power of the Family Court to adjourn the proceedings.
Similar provision is contained in Order XXXIIA CPC which deals with family matters. According to Section 4(4) (a) of the Act, in selecting persons for appointment as Judges for Family Courts, every endeavour shall be made to ensure that persons committed to the need to protect and preserve the institution of marriage and to promote the welfare of children and qualified by reason of their experience and expertise to promote the settlement of disputes by conciliation and counselling are selected.
7.4 Mediation in cases under Sections 498A, and 406 of IPC
In criminal matters also, for example cases under Sections 498A and 406 of IPC, the process of mediation would be of much helpful to the parties to settle the disputes amicably. In such cases, if one party may agree to return to the other or the articles required to be returned or agree to live together peacefully, so as to amicably settle the matter. Under such process, when litigating parties appear before the Mediator, the parties are free to express their own views and present their interests in respect of the dispute. Thereafter, the Mediator tries to bring the parties to agreed terms. Once agreement is arrived at between the litigating parties, they are directed to appear before the Court for adjudication of the matter in dispute keeping in view the settlement arrived at during mediation proceedings. All this goes to show that resort to the process of mediation shall not only avoid delay in the proceedings but also save the money and valuable time of the parties.
With the changing scenario, a number of matrimonial disputes are emerging. The number of petitions involving such disputes leads to judicial backlog. Alternative dispute resolution provides for a legal structure for resolving issues involving private parties. Matrimonial litigation is disproportionately burdensome to our courts. Marriage in India is considered as a sacrament and not a contract. Mediation is a mere facilitator that helps the parties to reach an agreeable settlement. Here parties get more flexibility because of the friendly environment, unlike in courts, which are not so friendly in nature. The process of mediation is free from complex procedures, easy to understand and, therefore, parties cooperate pleasantly. Mediation provides the best platform in divorce cases as it helps the parties to arrive at a settlement peacefully. Mediation serves as very helpful mechanism in the case where, divorce is due to cruelty, unsound mind; communicable or dangerous diseases etc. In these cases such matter can be communicated and confessed easily, because their confessions will not go outside the room. It is a private and confidential mechanism, unlike courts which are open to the public. The goal of meditation is to achieve lasting peace. The purpose of matrimonial mediation is to reach a consensus between parties towards a solution. As we know that mediation is a voluntary process, parties can simultaneously resort to litigation of civil or criminal nature.
• Peculiarity of matrimonial mediation
Justice Manju Goel High Court of Delhi in her speech ‘ Successful mediation in Matrimonial Disputes - Approaches, Resources, Strategies & Management’ said, ‘mediation in the context of matrimonial dispute is different in its form and content from that in the context of commercial and property disputes. [25] The matrimonial disputes are distinct from other types of disputes on account of presence of certain peculiar factors, such as factors like motivation, sentiments, social compulsions, personal liabilities and responsibilities of the parties. The views of the two parties regarding life in general and to the institution of marriage in particular, the security for the future life, so on and so forth.
According to Manju Goel, one must remember that in cases of matrimonial offences, the factors that weigh the decisions of the parties are not controlled simply by rational factors. Very often irrational and emotional factors also have dominant roles in creation of the dispute as well as in their settlement. In the context of matrimonial disputes the mediator cannot merely concentrate on the monetary or mundane aspects and overlook the emotional aspect. In fact he is concerned with happiness of the parties. Further his/her objective is to discover a solution with no damage or minimum damage to the parties. He cannot simply go a between the two sides telling him how the other party may take suggestions for a solution.[26]
The mediator has to prepare the two parties to look for a solution. Very often the parties more than looking for a solution look for their ways and means to wreck vengeance on the other party. The mediator here has to mould himself as a counsellor and a conciliator to help the parties, go beyond their personal egos, and lead the parties for an amicably acceptable solution that brings about lasting peace. The mediator may have to give advice to the two parties in order to make them acceptability of a proposed solution. The job of the mediator would be to continuously bridge the gaps in the proposals to arrive at consensus.
Mediation is a voluntary process and most people are attracted to the option of mediation because,
(1) It promotes the interest of the entire family including those of the children, and
(2) It reduces economic and emotional cost associated with the resolution of the family disputes.
7.5 Judicial response towards ADR
7.5.1 Impact of Section 89, CPC
The object of Section 89, CPC is that settlement should be attempted by adopting an appropriate Alternative Dispute Redressal process. Neither Section 89 not Order 10, Rule 1A of CPC is intended to supersede of modify the provisions of the Arbitration and Conciliation Act, 1996 or the Legal Services Authorities Act, 1987. Section 89, CPC makes it clear that two of the ADR processes (i.e., Arbitration and Conciliation) will be governed by the Act of 1996, two others i.e., Lok Adalats and Mediation by the Legal Services Authorities Act, 1987 and the last of the ADR process by judicial settlement.492
The Supreme Court in Salem Advocate Bar Association v. Union of India-I 493 held that ‘it is quite obvious that the reason why Section 89 has been inserted is to try and see that all the cases which are filed in court need not necessarily be decided by the court itself. It has now become imperative that resort should be had to alternative dispute resolution mechanism with a view to bring end litigation between the parties at an early date.’ Also in Salem Advocate Bar Association v. Union of India - II494 , the Supreme Court held, ‘the intention of the legislature behind enacting Section 89 is that where it appears to the Court that there exists element of a settlement which may be acceptable to the parties, they, at the instance of the court, shall be made to apply their mind so as to opt for one or the other of the four ADR methods mentioned in the Section and if the parties do not agree, the court shall refer them to one or other of the said modes.’
Section 89 which deals with settlement of disputes outside the court introduce the concept of what is known as ‘judicial mediation’, as opposed to ‘voluntary mediation’. A court can now identify cases where an amicable settlement is possible, formulate the terms of such a settlement and invite the observations thereon of the parties to resolve the dispute.
The legal position and the scope of Section 89 of the Code of Civil Procedure came up for consideration in the case of Afcon’s Infrastructure Ltd. & Anr. v. Cherian Varkey Construction Co. (P) Ltd. & Ors. 495
The first issue in this case was whether Section 89 of the Code empowers the court to refer the parties to a suit to arbitration without the consent of both parties?
In this case the Trial Court had heard the application under Section 89 by one of the parties. The Trial Court recorded that the plaintiff was agreeable for arbitration and the defendants were not agreeable for arbitration. The Trial Court allowed the said application under Section 89 by a reasoned order and held that as the claim of the plaintiff in the suit related to a work contract, it was appropriate that the dispute should be settled by arbitration. The revision application filed before Kerala High Court against the said decision was dismissed. The High Court held that in appropriate cases the even unwilling party can be referred to arbitration and the condition of preexisting arbitration agreement is not necessary to apply Section 89, CPC.
The second issue was: whether the reference to ADR Process is mandatory? The Court through J. Raveendran observed: “Section 89 appears to be non-starter with many courts, though the process under Section 89 appears to be lengthy and complicated, in practice, the process is simple - know the dispute, exclude unfit cases, ascertain consent for arbitration and conciliation, if there is no consent select Lok Adalat for simple cases and mediation for all other cases, reserving reference to judge assistance settlement only in exceptional or special cases.
The Supreme Court set aside both the orders passed by the Trial Court and High Court. The Supreme Court held that unwilling parties cannot be referred to arbitration or conciliation.
(i) The trial court did not adopt the proper procedure while enforcing Section 89 of the Code. Failure to invoke Section 89 suo moto after completion of pleadings and considering it only after an application under Section 89 was filed, is erroneous.
(ii) A civil court exercising power under Section 89 of the Code cannot refer a suit to arbitration unless all the parties to the suit agree for such reference.
The Supreme Court interpreted the scope of Section 89, CPC in the following words.
Section 89 has to be read with Rule 1-A of Order 10 which requires the court to direct the parties to opt for any of the five modes of alternative dispute resolution processes and on their option refer the matter. The said rule does not require the court to either formulate or reformulate the terms of settlement arrived at between the parties. Such recourse requires the court to only consider and record the nature of the dispute, and inform the parties about the five options available and take note of their preferences and then refer them to one of the alternative dispute resolution processes. Basically Section 89 was enacted with object that every dispute before court should be first referred to the alternate dispute resolution and only when the parties fail to get their disputes settled through any of the alternate dispute resolution methods that the suit could continue further.[31]
Section 89 starts with the words “ where it appears to the court that there exist elements of a settlement ” - This clearly shows that initial satisfaction about ‘elements of a settlement’, to the court, not to the parties. Therefore, it is to be stated that cases which are not suited for ADR process should not be referred under Section 89 of the Code. The court has to form an opinion that a case is one that is capable of being referred to and settled through ADR process. The decisions of the Supreme Court in earlier cases[32] were supportive of ADR. The decision of the Supreme Court in Afcon’s case is set back to the movement of ADR through assistance of the courts. A strained construction has been placed on a most important and salutary provision in the code.[33]
The juristic formulation has considerably strengthened the concept of ADR in family disputes by Indian Courts in the various pronouncements. To realise the anxiety and passion of the Courts towards ADR mechanism in matrimonial matters; an analysis of case law is worth investigating.
In Jagraj v. Bir Pal Kaur, [34] the Supreme Court held that the intention of the Parliament behind enacting Section 23 of HMA was to preserve the sanctity of marriage. Therefore, every step towards the reconciliation of parties has to be carried out by the courts.[35] Under the Hindu Marriage Act, Section 23 and Special Marriage Act, reconciliation proceedings are mandatory for parties. The Court in the said case observed that: a court is expected, nay, bound, to make all attempts and sub-section (2) of section 23 is a salutary provision expressing the intention of the Parliament requiring the court ‘in the first instance’ to make every endeavor to bring about a reconciliation between the parties. In the light of the above mentioned intention and paramount consideration of the legislature, an order is passed by the court asking a party to the proceeding (i.e. husband or wife) to remain personally present, it cannot successfully be contented that the court has no such power and in case a party to a proceeding does not remain present, at most, the court can proceed to decide the case ex parte against him/her. Upholding of such argument would virtually make the benevolent provision nugatory, ineffective and unworkable, defeating the laudable object of reconciliation in matrimonial disputes. The contention of the appellant therefore cannot be upheld. The Order of the Supreme Court upholding the directions of the High Court summoning the husband in the said case through non-bailable warrants clearly reflects the legislative intent of attempting mandatory reconciliation procedure. However, in Love Kumar v. Sunita Puri [36] the Punjab and Haryana High Court held that the matrimonial court had acted in haste to pass a decree of divorce against the husband for his non-appearance at the time of reconciliation proceedings. The High Court accordingly set aside the divorce decree and remanded the matter back to the matrimonial court to be decided on merits.
The object of Section 23(2) of the HMA was explained in Paras 19 and 21 of this judgment as follows:
In para 19, the court said: Under S. 23(2) of the Act it is incumbent on the matrimonial Court, to endeavour to bring about reconciliation between the parties, a great responsibility is cast on the Court. A Hindu marriage is not contractual but sacrosanct, it is not easy to create such ties but more difficult to break them; once annulled, it cannot be restored. A Judge should actively stimulate rapprochement process. It is fundamental that reconciliation of a ruptured marriage is the first duty of the Judge. The sanctity of marriage is the corner stone of civilization.
The object and purpose of this provision is obvious. The State is interested in the security and preservation of the institution of marriage and for this the Court is required to make attempt to bring about reconciliation between the parties. However, omission to make attempts at reconciliation will not take away the jurisdiction of the Court to pass any decree under the Act. This is not correct to say that in a divorce case reconciliation efforts have to be timed immediately preceding the grant of decree and not at any other stage of the proceedings of the trial. Such an attempt can be and should be made at any stage. The matrimonial Court is required to call parties and make a genuine effort for their reconciliation, there is not even a whisper in this provision that the matrimonial Court has the power to strike off the defence of that spouse, who after being given opportunities for reconciliation fails to appear.
In para 21, the court said: But under S. 23(2) of the Act neither such a liability is cast on the one spouse nor such a right given to the other spouse. Reconciliation is a mutual dialogue to bury their differences. A duty is cast on the Court to call the parties at the initial stage for reconciliation. Even before delivering judgment and decree, the Court can make effort for reconciliation. Thus, the stage of trial for calling the parties for reconciliation is left to the discretion of the Court.
In Bini v. K.V. Sundaran496 the issue came up for decision before the Kerala High Court that is whether conciliation is mandatory after the introduction of the Family Courts Act, 1984, even on the excepted grounds of conversion to another religion, renunciation of the world, mental disorder, venereal diseases and leprosy etc. Stating the Family Courts Act, 1984 a special statute, and its provisions to make attempt at reconciliation mandatory at the first instance, the High Court in Paras 3 and 7 of this judgment as follows:
In para 3, the court said: the parties can disagree on matters of faith and still lead a happy marital life if they could be convinced that matters of faith should not stand in the way of union of hearts. Thus though under the Hindu Marriage Act, no endeavor for reconciliation need be made in a petition for divorce on the ground of conversion to another religion, or other grounds excepted under Section 13 (1) of the Hindu Marriage Act, or on similar or other grounds available under any other law also, after the introduction of the Family Courts Act, the Family Court is bound to make an endeavor for reconciliation and settlement. The requirement is mandatory. That is the conceptual change brought out by the Family Courts Act.
In para 7, the court said: the primary object is to promote and preserve the sacred union of parties to marriage. Only if the attempts for reconciliation are not fruitful, the further attempt on agreement on disagreement may be made by way of settlement.
In Rajesh Kumar Saxena v. Nidhi Saxena [497] the Allahabad High Court held that it is the duty of the Family Court to make an attempt for conciliation before proceeding with the trial of the case.
To conclude, it is to be stated that there is a growing emphasis on the need for attempting mandatory reconciliatory measures and wherever matrimonial courts have been lacking in their duties to do so, the higher judiciary have stepped in, to set the records straight. Therefore, there is a growing jurisprudence to adapt to out of court settlement reconciliation rather than litigating in matrimonial courts. However, the performance of this mandatory exercise ought not to be reduced to an empty ritual or a meaningless exercise. Otherwise, the utility of the beneficial provision will be lost.
In addition to the above, it is pertinent to refer some recent observations made by the higher judiciary which has stressed the dire necessity of the beneficial provisions of legislation.
In Gaurav Nagpal v. Sumedha Nagpal 498, the Supreme Court observed: ‘ It is a very disturbing phenomenon that large numbers of cases are flooding the courts relating to divorce or judicial separation. The provisions relating to divorce in HMA categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to be adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings. People rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving of marriage and not breaking it. As noted above it is more important in cases where the children bear the brunt of dissolution of marriage.’
The Allahabad High Court in Sanjeev Kumar and Others v. State of U.P 499 directed all the lower courts to use the methods of mediation, conciliation and counselling in such matters to meet the ends of justice and preserve the institution of marriage and to protect the organs of the society. The Court directed to use these methods either by itself or by some other agency available at the District concerned.
The High Court directed: “ The Magistrate concerned may try and bring about
reconciliation between the parties either by himself, or in districts where some agency exists for bringing about mediation, conciliation or counselling, through the said agency. In cases where the Magistrate is not himself engaged in trying to bring about reconciliation between the parties, where Mediation/Conciliation or counselling of the couples and their family members has been undertaken by some other agency, the said agency must report the fact of failure or success of the mediation/ conciliation etc. within a week of the conclusion of the exercise. Only when the Magistrate comes to the conclusion that the efforts for mediation or conciliation between the parties has failed, he may pass orders on the bail plea of the various accused persons on merit. By complying with these general directions the undue pressure on the High Court requiring filing of individual writ petitions, in cases where reports under Section 498A IPC are filed against husbands or other family members, causing a huge backlog of arrears, leaving little time for the High Court to deal with murder appeals and other major matters, would be considerably reduced.”500
In B.S. Joshi v. State of Haryana [501] the Supreme Court held that in cases such as Section 498A, IPC and Section 125, CrPC, where after a settlement no evidence may be led, the High Court can quash the first information report or the proceedings.
The mediation is recommended in all such matters in which the relations between the parties have to survive beyond litigation. The Court should refer all such matters to mediation in which disputes relating to properties, partition, marriage and custody of children, commercial and business are involved. The mediation also succeeds in consumer disputes, suppliers, contractors, banking, insurance, labour matters, doctor and patients, landlord and tenant and in cases relating to intellectual property rights.
Mediation is not recommended, where questions of law are involved to be adjudicated by the Court, or in which offences of moral turpitude and fraud are involved. Mediation is also not recommended, when there is serious imbalance between the position of the parties, in which fair negotiation is not possible.
In the process of mediation after receiving brief summary of the case from the parties, the mediator gives an opening statement, explaining the entire structure including voluntariness of the mediation process. He commits parties to good behaviour and allows them to sign a form to abide by the terms of the mediation process. He actively listens without showing any sympathy, holds joint and separate sessions, to identify the issues of conflict. He thereafter, proceeds to discuss the strength and weaknesses of the case with the parties and sets up the agenda. He thereafter, opens channels of communication, brain storming the options, which the parties generate among themselves, while controlling the process. He allows the parties to focus on their long term interests, takes them out of impasse, if any such situation arises, and brings out underlying issues. The mediator uses dynamic process of negotiation and bargaining explaining the parties to the Best Alternative to Negotiated Settled Agreement (BATNA) and Worst Alternative to Negotiated Settled Agreement (WATNA).502
Parties may agree to resolve the dispute, which may also involve the issues, which are not involved in the case, and may arrive at an agreement, which is mutually beneficial and acceptable. The mediator, thereafter, holds, if the parties reach to a settlement in drafting realistic, legal, valid and effective settlement, which resolves all the issues between them and does not leave anything for any further dispute in future. The agreement then comes to the Court and may be accepted with or without modifications, which the Court may suggest and to which the parties may agree. On the acceptance of the agreement, it becomes binding on the parties under Order 23 Rule 1 CPC against which no appeal lies. The agreement may be vitiated only in case of mis-representation or fraud. The process is entirely confidential in which the mediator binds himself to the confidentiality and cannot be required to appear in court as a witness to the proceedings. The person in charge of Mediation Centre maintains the confidentiality and ethics amongst mediators and in the process of mediation.
The Allahabad High Court in a recent Public Interest Litigation - that of Re: In the Matter of Matrimonial Disputes, 503 issued specific directions to Magistrates on how to deal with dowry-related cases.
1. Dowry-related cases or offences under Section 498A of the IPC, which are of a minor nature involving no injuries or minor injuries, and where there has been no repetition of cruelty, and no other special features exist for denying the benefit, the Court concerned could consider releasing the accused persons on interim bail even on their personal bonds.
2. Thereafter, the Magistrate concerned may try and bring about reconciliation between the parties either on their own, or in districts where some agency exists for bringing about mediation, conciliation, or counselling, through the said agency. In cases where the Magistrate is not directly engaged in trying to bring about reconciliation between the parties, and where mediation or conciliation or counselling of the couples and their family members has been undertaken by some other agency, that agency must report the failure or success of their efforts within a week of the conclusion of the exercise.
3. Only when the Magistrate comes to the conclusion that the efforts for mediation or conciliation between the parties has failed, may the Magistrate pass orders on the bail plea of the various accused persons on merit.
In case the parties have settled their disputes and there is no prospect of conviction, the Investigating Officer may consider the appropriateness of initiating criminal proceedings, if it has not so far been initiated in a particular case, or of submitting a final report. The trying Magistrate may also consider passing appropriate orders at the trial accordingly.
The Court also noted that if these general directions were complied with, the undue pressure on the High Court caused by the filing of individual writ petitions in cases where reports under Section 498A , are filed would be considerably reduced, and this would enable the allocation of more time to other major cases.
In Sushil Kumar v. State of Bihar 504 prosecution had taken up against the husband Under Section 498A, 379 and 323 of the Penal Code and Sections 3 and 4 of the Dowry Prohibition Act of 1961. The High Court attempted reconciliation between the parties and succeeded. The parties are residing peacefully as husband and wife along with the family members of the husband. The differences were resolved, and they were basking in matrimonial bliss. It was held that the matter was settled and hence held that continuation of further proceeding would be an abuse of the process of Court.
7.5.2 Permission for settlement of IPC 498A Cases
The Supreme Court in K. Srinivasa Rao v. D.A.Deepa 505 permitted settling of cases under Section 498A, IPC lodged by wife for alleged cruelty in matrimonial home to prevent the criminal case create unbridgeable gap between spouses. In this particular case court also asked for referring the disputes filed under Section 498A, IPC for mediation with the consent of parties. The facts of the case were that the day after marriage, disputes arose between elders of families of the husband and wife. The couple started to live separately. The tension and aggression between families led to the filing of false complaints by wife including that of dowry under Section 498A, IPC. Though the offence under Section 498A, IPC is not compoundable, in appropriate cases if the parties are willing and it appears to the Criminal Court that there exist elements of settlement, it should direct the parties to explore the possibility of settlement through mediation. “During mediation, the parties can either decide to part-company on mutually agreed terms or they may decide to patch up and stay together. In either case for the settlement to come through, the complaint will have to be quashed. In that event, they can approach the High Court and get the complaint quashed. If however, they chose not to settle, they can proceed with the complaint. In this exercise, there is no loss to anyone”, the Bench said.506
Taking note of the increasing number of complaints of dowry harassment being filed against husbands and their families under Section 498A, IPC, the Bench said: the Criminal Courts dealing with the complaint under Section 498A, IPC should, at any stage, and particularly before they take up the complaint for hearing, refer the parties to mediation centres if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498A, IPC is not diluted.[48]
7.5.3 Directions to courts for implementation
Mediation is an alternative process of resolution of disputes by trained mediators. The Supreme Court in K. Srinivasa Rao case, [49] issued directions to all courts dealing with matrimonial disputes to settle all matrimonial disputes at first instance through the process of mediation. The Supreme Court directed Family Courts and Criminal Courts to refer parties to Mediation Centres to settle disputes through settlement under mediation. The Supreme Court has directed the Family Courts in view of Section 9 of the Family Court Act, 1984 to make all possible efforts to settle matrimonial disputes especially in relation to maintenance, child custody etc. through the process of mediation and to refer parties to mediation centres with the consent of parties.
In para 36 (a) of the judgment, the Supreme Court observed that the Family Courts should endeavor settlement of disputes through the process of mediation even after the filing of failure reports by counsellors. In such a case, however, the Family Court should set reasonable timelimit for the completion of the mediation process by the mediation centre so as to not cause any further delay in resolution of disputes by the family courts and observed that they may extend the time limit for mediation proceedings.
In para 36 (b), the Court also directed Criminal courts dealing with the complaint under Section 498A of IPC should, at any stage and particularly, before they take up the complaint for hearing, refer the parties to mediation centre, if they feel that there exist elements of settlement and both the parties are willing. However, they should take care to see that in this exercise, rigour, purport and efficacy of Section 498A, IPC is not diluted. The court added: ‘needless to say that the discretion to grant or not to grant bail is not in any way curtailed by this direction. It will be for the concerned court to work out the modalities taking into consideration the facts of each case’.
In para 35, the Court observed that this reference should only be done in case where parties to the disputes are willing to settle the dispute or facts support the existence of settlement. Offence under Section 498A, IPC is non-compoundable offences wherein compromise cannot be reached and hence the court issued this direction. Section 498A, IPC provides complaint of harassment, cruelty or demand of dowry filed by wife against husband and relatives of husband. The court observed that the rigour, purport and efficacy of this section should not be diluted in the said process of reference of parties to mediation and further observed that the courts discretion to grant bail or not to grant bail is also not curtailed with respect to the section. The Supreme Court also directed that all mediation centres to set up pre-litigation centre/desks to settle disputes at pre-litigation stage and to highly publicize them so as to encourage the process of mediation.
In para 33, the court observed: ‘ If all mediation centres set up pre-litigation desks/clinics by giving sufficient publicity and matrimonial disputes are taken up for pre-litigation settlement, many families will be saved of hardship if, at least, some of them are settled.’ Also, the court said that ‘at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation.’
In para 31, the Court considered the importance of matrimonial institution and noted it cannot be said that one spouse is entirely at fault. If parties were sent to mediation at an early stage, the tensions between the two might not have escalated beyond the point of repair. A proper strategy is required to promote pre-litigation mediation.
In para 32, the court said: Quite often, the cause of the misunderstanding in a matrimonial dispute is trivial and can be sorted. Mediation as a method of alternative dispute resolution has got legal recognition now. We have referred several matrimonial disputes to mediation centres. Our experience shows that about 10 to 15 percent of matrimonial disputes get settled in this Court through various mediation centres. We, therefore, feel that at the earliest stage i.e. when the dispute is taken up by the Family Court or by the court of first instance for hearing, it must be referred to mediation centres. Matrimonial disputes particularly those relating to custody of child, maintenance, etc. are preeminently fit for mediation. Section 9 of the Family Courts Act enjoins upon the Family Court to make efforts to settle the matrimonial disputes and in these efforts, Family Courts are assisted by Counsellors. Even if the Counsellors fail in their efforts, the Family Courts should direct the parties to mediation centres, where trained mediators are appointed to mediate between the parties. Being trained in the skill of mediation, they produce good results.
From the above observation, it is to be stated that ‘police complaints filed for maintenance or matrimonial disputes are to be handled with sensitivity, wisdom and patience’. The handling of the matrimonial disputes in the form of offence under Section 498A, IPC have necessarily to be handled differently. The accused in these cases cannot be dealt with like accused in the other offences like theft or dacoity or cheating. The accused are not guilty of a criminal offence and are not within the ambit of traditional definition of a criminal. If the investigating officer is able to decipher how much of the complaint is true and how much is exaggeration he may play an important role in preventing increase in the litigation. It is the job of the investigating officer to see through frivolous complaints. On the other hand, if he wields the same rod, which is given to him for handling other criminals, on the parties to a matrimonial dispute, he may create a tremendous mess. It is here when the parties should be told to be more patient with pursuing their cases without, however, undermining their respective claims. The Courts handling criminal cases under Section 498A, IPC make their own efforts for a consolidated settlement, so do the matrimonial courts. In view of the shortage of time in the hands of the judicial officer, a need is always felt that the work of counselling/mediation at different levels be taken over by a professional counsellor or mediator. The basic difference among the police, the judge and the mediator is that the police are trained to frame or prove a charge, a judge is to focus his attention on right or wrong doing but a mediator/counsellor is to focus on restoration of equilibrium and remain non-judgmental all through. The mediator remains on guard against his temptation to belittle or give lift to one or other party.
7.6 Conclusion
The conventional system of justice delivery is deeply flawed; as a result of which there is a backlog of pending cases in the Indian Courts. The legal principle of ‘Justice Delayed is
Justice Denied’ as quoted by William Gladstone clearly signifies the importance of timely fashion of redressal for a legal dispute.507
The principle forms the foundation for right to a speedy trial and articulates that if the existing system is unable to deliver first hand justice at a faster pace, then it is equivalent to having no remedy at all. Therefore the object of justice is twofold: firstly to provide for a remedy and secondly to provide it at faster pace. The modern slogan is ‘ justice must be speedy, less costly and non-cumbersome ’. In our society it has become a menace on the part of unscrupulous persons to rope in innocent citizens by using the weapon of litigation by falsely making frivolous complaints by misusing the provisions of law to foster a new legal terrorism with personal vendetta, the oblique object being to unleash harassment and to soil the unsoiled image and integrity of the innocuous human being in the eye of the people of the society508. The problem of arrears of cases and slow disposal of matrimonial disputes has brought the judicial administration into focus. Therefore, the hierarchical embedded judicial structure has to be broken down and an alternate mechanism to access procedural justice needs to be made available. As the dominance of commercial elements are increasing and service character diminishing, and the hierarchical system of law cannot meet the growing demands for justice, people are opting for alternatives. It has been observed since the previous decade ADR has been catching up and is viewed as a successful instrument in diminishing the load off the judiciary. The judicial infrastructure is inadequate and is on the verge of a collapse. It was imperative that an alternate innovative mechanism be provided to cater to the needs of the society. A unique system of Alternative Dispute Resolution has been introduced.
• Mediation vis-à-vis Litigation
It is crystal clear that for certain categories of litigation, non-adjudicatory dispute resolution process is better suited and beneficial to the parties. The question, therefore, is not whether mediation is better or litigation is better. The question should be: ‘whether process is more suited for a particular type of dispute?’
According to Madhusudan Saharay, criminal cases, cases involving public interest, cases affecting a large number of persons, matters relating to taxation and administrative law have to be decided by courts by adjudicatory process. Even among civil litigations, cases involving fraud, coercion, undue influence, cases where a judicial declaration is necessary as for example, grant of probate, letter of administrations, representative suits which require declaration against the world at large and election disputes have to be necessarily decided through adjudicatory process by courts and not by negotiations.509 On the otherhand, settlement by negotiations would be the appropriate method of dispute resolution in respect of all the cases arising from strained and personal relationships including disputes relating to matrimonial causes, maintenance, custody of children.etc. There is no doubt that if the parties are willing, then other categories of civil disputes may also be referred to mediation.
Family and matrimonial mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by bringing the participant's to voluntary agreement. Mediation is the very basis of every society to maintain harmony in the social fabric. In the context of matrimonial dispute the mediators are often performing the role of counsellors and conciliators. Even before mediation was talked about for solution of disputes in courts for reducing the pendency of cases in courts, mediation for matrimonial disputes was in existence. Initially such counsellors were benevolent elders and were available to the parties’ right in the families. Elders or others who commanded respect from disputing parties became the mediators.510
The power of enacting or amending laws is on the legislature but to interpret it to suit the needs and circumstances of the society is the call of the judiciary. Hence, unless and until the beneficial provisions of the matrimonial legislation promoting and advocating reconciliation in matrimonial disputes in India is favorably interpreted and strictly implemented by the courts, the letter of law may be an illusory mirage which remains on the statute book only. It is therefore the solemn duty of the matrimonial courts in India to ensure that the mandatory settlement efforts are actually put into practice and parties are encouraged to actually utilize them for out-of-court settlements. There is a heavy burden on the courts to discharge this solemn duty failing which it will neither be possible nor useful to enforce reconciliatory measure in matrimonial disputes.
In Jagraj v. Bir Pal Kaur, [54] the Supreme Court affirmed that the approach of a court of law in matrimonial matters is much more constructive, affirmative and productive rather than abstract, theoretical or doctrine. The Court also said that matrimonial matters must be considered by the courts with human angle and sensitivity and to make every endeavour to bring about reconciliation between the parties.
There are certain shortcomings have been pointed out by the Supreme Court in the text of Section 89, CPC. The judgment of the Supreme Court in Afcons case [55] has been considered by the Law Commission of India and the Law Commission65 has also opined that Section 89, CPC which provides for settlement of disputes outside the court is inappropriately worded and the language adopted has created difficulty in giving effect to the provision and therefore Section 89, CPC should be recast. There cannot be a more unequivocal assertion of the fact that Section 89 CPC needs to be amended. In fact, instead of amending the provision we may have a separate comprehensive legislation dealing with ADR in all respects.[56]
There is lot of flexibility in the use of ADR methods. The flexibility is available in the procedure as well as the way solutions are found to the dispute. The solutions can be problemspecific. The rigidity of precedent as used in adversarial method of dispute resolution will not come in the way of finding solutions to the disputes in a creative way. If the ADR method is successful, it brings about a satisfactory solution to the dispute and the parties will not only be satisfied, the ill-will that would have existed between them will also end. ADR methods, especially mediation and conciliation not only address the dispute, they also address the emotions underlying the dispute.
We are aware that the propositions contained in the present study are not new. Nevertheless, we feel that they need to be reemphasized and reaffirmed. There is an urgent need for justice dispensation through ADR mechanisms. The ADR movement needs to be carried forward with greater speed. Besides, many other suggestions, which may now be called hackneyed, need a fresh look. Undoubtedly, the concept and philosophy of Lok Adalats (Peoples’ Court) is an innovative of the Indian contribution to the world of jurisprudence. It has been proved very effective alternative to civil and criminal litigation.
CHAPTER - VIII RECOMMENDATIONS AND SUGGESTIONS
8. Epilogue
Infringement of women’s rights take place both in public domain as well as private spheres. A large number of violations of rights of women are perpetrated by private individuals. Since, these acts are not committed by the State, jurists argue that such type of violation constitute ordinary crimes that fall outside the ambit of State responsibility. However, it does not mean to suggest that State has no accountability in such cases where commission of offences occurs by private individuals. This is purportedly to be addressed by administration of justice through domestic legal measures. In this regard, the state has the obligation to contemplate appropriate legislative arrangement having potentiality to prohibit commission of such acts by private individuals; and where such offences still occurs in spite of the legal measure, the appropriate enforcement agencies of the state begin to intervene to assure the victim and the society that the perpetrator is found and tried in the criminal justice system of the country in accordance with the provision of domestic penal laws.511
Very often, women are subjected to cruelty within the family in a marital relationship mostly by husband and the in-laws. This has been seen as a form of infringement of rights of women by private individuals. In order to prevent cruelty on women in a marital relationship a special legal measure had been incorporated in the Penal Code under Section 498A, IPC. This provision provides that the husband or relative of husband of a woman subjecting her to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Thereby culpability in matters of wilful conduct whether mental or physical 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 of the woman or harassment of the woman where such harassment is done with a view to coercing her or any person related to her to meet any unlawful demand for property, valuable security or failure to meet such demand has been fixed under the criminal law and such act would constitute an offence under penal law.
In view of the above stated provision in the penal law there has always been a possibility that the husband and his relative might be roped in and put behind bar when a case is lodged against them by the wife. In fact there has been a series of cases where the husband and his relative approached the higher judiciary with the allegation that the provision is being grossly misused by woman. While deciding cases in many occasions, the High Courts and the Supreme Court have given obiter dicta that the provision is being misused. These developments in various quarter opens up the scope for reform in the penal law. It is in this backdrop that the present study has been undertaken to understand and build knowledge concerning the application of penal law in matters of cruelty on women in marital home.512
A desertion on Section 498A, IPC is critical because of the following reasons.
i) The issues of cruelty by the husband and his relatives towards the married women is an emergent, unique form of violence against women and it is not of recent origin,
ii) Though desertion of women has been an issue of the forum of women activists and NGOs for the past few decades, their concern is only for the deserted and destitute women belonging to the down-trodden and because of its sensitive nature and family influence ‘no concerted efforts have taken place’.
iii) Moreover these women do not speak about the violence/crimes they have been subjected to, because of the social stigma attached to the divorced/deserted women. Hence, the majority of the cases of cruelty were not exposed.
The problem is assuming such an enormous magnitude that it has become vital to study it in all its aspects and ramifications: social, cultural, economic as well as legal. The system itself requires a re-look to counter the evil. In this context the researcher undertook a study on ‘Section 498A, IPC’.
The present study is designed with the purpose of exploring the present position of protection of women from cruelty in a marital relationship with special reference to Section 498A of IPC primarily to understand the level of awareness among victims/survivors about the operation/implication of the well intended provision, its application by the victim, nature of support derived and the role of major stakeholders like the police, prosecution, defence counsels and judges along with the family of the victim and finally the magnitude of its use by women. The study aims at building evidence based knowledge concerning level of use of this particular provision by women.
8.1 Deficiencies in the Matrimonial Laws
The matrimonial provisions which are provided in the Penal Code with an object to protect the married women from the hands of husbands and other in-laws subjected to several drawbacks in respect of their application.
8.1.1 ‘Cruelty’ for the purpose of Section 498A, IPC
Section 498A is regarded as a shield to a woman, who is a victim of cruelty in the matrimonial home. But, the question is whether it is really a shield? The provision is neither preventive nor compensatory. It has several limitations. The following are some gross inconsistencies in the law that proves Section 498A IPC is not relevant in certain circumstances.
i. The term “Cruelty” is not defined either in Penal Code or any other legislation related to it. The legislature, while introducing Section 498A, IPC dealt with various aspects of cruelty committed against the married woman. However, the problem of matrimonial disputes arising due to the difficulty to adjust with each other has not been dealt with under this provision.
ii. Section 498A, IPC addresses the problem of cruelty only after the marriage. The very presumption under this provision conveys that as soon as the wife is subjected to cruelty then only Section 498A, IPC comes into the picture. Further, this provision is not applicable to a mistress or woman in live-in relation with a man.
iii. Section 498A, IPC does not take into account day-to-day violence in the household. Mental harassment is open to subjective interpretation, as far as physical cruelty is concerned, ‘visible’ evidence is called for. In the absence of burns, bruises, black and blue marks, it becomes impossible to lodge a complaint. For instance, a woman subjected to occasional beating not causing ‘grave’ injury is not entitled to any protection from the state.
iv. Section 498A, IPC is ineffective for unmarried daughters, widowed, separated or divorced or aged women who are subjected to cruelty by members of their natal family.
v. “Cruelty” for the purpose of Section 498A, IPC should be inferred by considering the conduct of the man, weighing gravity or seriousness of his act and it is to be established that the woman has been subject to cruelty continuously within a close proximity of time of lodging a complaint. There is no scale to measure the degree of “Cruelty” or the proximity test of cruelty.
vi. The Law considers no provision for husband and his relatives to state their grievances for the marital dispute. There is no clause to prove their innocence and for complaining against the wife and her family members. No right is given to the husband and his family to initiate the complaint of torture, abuse, blackmailing and harassment against the wife and in-laws,
vii. There is no prohibitive clause in Section 498A, IPC to prevent the women from misusing it. It is virtually impossible to file a case of defamation against the wife or any relative to her, and it would be hard to prove it,
viii. In addition to the above there are several supplementary reasons that create a lot of hardships in the application of Section 498A, IPC. Those are513
There is no remedial provision,
(a) To discourage the persons from filing false cases,
(b) To punish the persons for misusing this law,
(c) To compensate the persons who are proved innocent after being falsely implicated under this law,
(d) To compensate the persons who endured indelible stigma as an accused in a false case, and forced to live with a stigma for the rest of their lives,
(e) To compensate the persons for the immense financial loss borne by them,
(f) To resurrect the lives of falsely accused and maligned persons,
(g) To file counter-complaints by the husband against the wife, and
(h) To punish the guilty and corrupt law enforcement agencies, who connive and collude with complainants to harass the falsely accused.
8.1.2 Fallacies in the Protection of Women from Domestic Violence Act, 2005 have potentiality to misuse 498A, IPC
The Protection of Women from Domestic Violence Act, 2005 has been enacted to curb the barbarous acts of violence of any kind occurring within the family and for incidental matters. But, the law of domestic violence will result in the harassment of many more innocent women than it claims it will protect. The Act, 2005 assumes every man as a virtual torment and considers that only women are the victims of domestic violence.
(i) The Act of 2005 provides only a woman can file a complaint against her male counterpart and a man who is a victim of domestic violence has no rights. A simple complaint by (an estranged) woman will be treated prima facie as ‘true and genuine’ opens up a whole new realm of possibilities where innocent man will be accused and implicated in false cases, just because he refuses to give in to unreasonable demands.
Giving such sweeping legal powers to women, while withholding protection to male victims, is tantamount to the systematic legal victimisation of men. The upliftment of deprived and disadvantaged women is a noble goal but empowering women by victimizing men is the gross injustice.
(ii) The Act of 2005 lends itself to such easy misuse that many women will find it hard to resist the temptation to ‘teach a lesson’ to their male relatives and will file frivolous and false cases. A similar trend is already being observed in the cases of anti-dowry and cruelty law i.e. Section 498A, IPC. Unreasonable and easily misused laws like 498A, IPC and the Domestic Violence Act, are creating situations and mutual distrust and are adversely affecting interpersonal relationships between men and women in the society. This is resulting in more and more broken families and depriving children of a healthy childhood. As with Section 498A, IPC, the Domestic Violence Act, 2005 is replete with certain loopholes and is bound to be misused. On the face of it, the Act of 2005 appears to be a blessing for people in abusive or violent relationships. However, under the ploy of women welfare, this law granted women legal supremacy over men and thus created a society where men are deprived of their rights.
It is important for the Government to acknowledge the ground realities of the application of the matrimonial provisions like Section 498A, IPC and the Domestic Violence Act, 2005 that criminalise ordinary citizens and violate their fundamental rights. Unless amendments are made to prevent the misuse of these laws, women may not find the credibility in the society.
It is high time for lawmakers and Criminal Justice System
a. To pay heed and review these laws in the public interest,
b. To check the growing misuse of these laws to ensure impartial justice and
c. To protect the pious and sacred institution of marriage.
It is for the legislature to find-out the ways on how to deal with misuses of this law as well as on how to wipe out the ignominies suffered during and after the trial by the falsely accused. Today the time demands an equal law for men to protect them against the shadow of Section 498A, IPC. Equality is a dynamic concept which goes on changing with changing times and social contexts and must be understood in that sense. This misuse of provisions of law is on the increase and therefore termed as legal terrorism in the society. Such misuse of the Criminal Justice System has to be stopped, keeping in mind the growing instances of crimes against women.
8.2 Demand to amend the law
Misuse of Section 498A, IPC has been acknowledged or condemned by leading authorities.
• On 20th July 2005, the Supreme Court in Sushil Kumar Sharma v. Union of India 514 515 held that the object of Section 498A, IPC is to strike out the roots of the dowry menace. But by misuse of this provision of law amounts to unleashing legal terrorism. It acknowledges that there are growing instances of women filing false charge. The provision is intended to be used as a shield and not an assassin’s weapon.
• The Supreme Court in a scathing judgment delivered on 13th August, 20105 - ordered the Government to revisit the anti-dowry law i.e. Section 498A, IPC; saying it has been misused by women to lodge false and exaggerated complaints against their husbands and his relatives.
• In a study conducted by Help-Age India for World Health Organisation (WHO), which dealt with the issue of “Elder Abuse in India”, it was mentioned that there was use of Section 498A, IPC as a weapon for the elder abuse.[6]
• The Law Commission of India in its 154th Report (1996) and also in 237th Report (2011) is considering the grounds to recommend amendments to Section 498A, IPC.
• The 111th Report of the Parliamentary Standing Committee on Home Affairs has acknowledged that Section 498A, IPC is widely misused.
• The National Human Rights Commission (NHRC), on violation of Human Rights, while arresting the person accused of 498A, IPC stressed for safeguards that he is entitled, and those should be implemented sincerely.
• The Justice V.S. Malimath Committee Report on Reforms of Criminal Justice System, 2003 proposed making amendments to this provision although such amendments were opposed by Women’s groups.
• The Center for Social Research in a study on implications of Section 498A, IPC stated that 6.5 percent of the studied cases were falsified. They also state that many people believe the law has been abused by “educated and independent minded women.
8.3 How to prevent misuse?
The object of Section 498A, IPC is to strike at the roots of dowry menace. But by misuse of the said provision a new legal terrorism can be unleashed.
The question, therefore, is what remedial measures can be taken to prevent misuse of matrimonial provisions including Section 498A, IPC without diluting its deterrent effect? To answer this central issue, we need to remind ourselves that women seek defence inside the home only under duress, and the protective umbrella of Section 498A, IPC offers it. There are several measures by which a matrimonial discord between the husband and wife or wife and in-laws of the family can be mitigated. These measures may be taken at family level or Police Station or in Court of Law.
• Stages of a Matrimonial dispute and its Prevention- Study on Flow Chart[7] ( See Annexure for Flow Chart)
It has been explained in a flow chart titled: “ Different Stages of a Matrimonial dispute and it’s Prevention”. The flow chart contains a pyramid structure , divided into seven segments, each representing a formal stage during the process. At each stage of the problem, a possible solution has been shown in the box, which if applied produces a positive result between the parties to the matrimonial discord. If possible solution of the problem is not applied, gravity of the problem increases and the next stage in pyramidical structure arrives.
Stage 1: Mediation by elders of the family
Trivial disputes between the husband and wife or wife and in-laws of the family are common in every matrimonial life. These problems can be amicably settled at the family level at the instance of elders in the family. If these problems are settled down, normal matrimonial relations are resorted. But, where unilateral favour of husband is taken by in-laws and accusations are made on wife alone constantly and repeatedly and then wife leaves the matrimonial home.
Stage 2: Suit for restitution of conjugal rights
Where the wife leaves the matrimonial home, efforts are made to solve the problem lies on the elders of the family including parents both the parties to the dispute. At this stage, Mediation can be made by the elders or other relatives of the family or persons respectable in their locality in which either party to the dispute resides. If, these problems are settled down normal matrimonial relations are restored. Failure of Mediation often leads to filing of a suit by the husband for “Restitution of Conjugal relations” under Section 9 of the Hindu Marriage Act, 1955 or other personal laws of the parties concerned.
Stage 3: Effort by Mediation or Conciliation Cell
Where a suit by the husband for restitution of conjugal rights has been filed, the Court can refer the matter to a Mediation or Conciliation Cell or makes efforts themselves. The Advocates representing both the parties can also act as Mediator. If, at this stage, Mediation succeeds, suit by restitution of conjugal rights is withdrawn, and normal matrimonial life is also restored. But, if no Mediation takes place or Mediation fails and the suit for restitution of conjugal rights proceeds, wife files a case of 498A, IPC against the husband and his family in retaliation.
Stage 4: Arrest of husband and in-laws
Where a wife files a case of 498A, IPC the first effort is made to lodge the First Information Report at Police station. If not lodged, then effort is made to get an order of Police investigation by filing of an application under Section 156516 (3) of the CrPC. If, not succeeded, then criminal complaint is filed. If Mediation succeeds, cases of 498A, IPC filed by the wife and the suit for restitution of conjugal rights filed by the husband, both are withdrawn, and normal matrimonial life is also resorted with some efforts. The complaint case also withdrawn and the Police can submit a full report on the basis of compromise between the parties to the dispute. However, if no Mediation takes place or mediation fails, and cases proceed, then the husband and in-laws are arrested and sent to jail.
Stage 5: Suit for divorce or judicial separation or quashing of proceedings
Once the husband and in-laws are arrested and sent to jail, the husband files a suit for divorce in lieu of that action. At this stage also Mediation is possible by Mediation Cells in the Police station or Courts during the trial. Although fewer chances are there; however, in some cases, compromise is arrived on the condition that both parties shall withdraw their cases and live separately. Compromise at this stage prevents multiplicity of the cases. Mediation centres are working at the level of High Courts, where if Mediation succeeds, all the related cases are quashed by the High Court by exercising its inherent powers under Section 482517 CrPC. Failure of Mediation at this stage leads to stage 6.
Stage 6: Suit for maintenance
To create financial hardship on the husband, the wife files a suit for maintenance under Section 125, CrPC. The hidden motive behind this suit remains to pressurize the husband or to withdraw the suit for divorce. Like a ray of last hope, Mediation at this stage is possible. The agencies of Mediation and the benefits thereof are same as in stage 5. Failure of Mediation or cases of no Mediation till this stage opens from both the sides a tug of legal war, being stage 7.
Stage 7: Multiplicity of Cases
This stage ruins the life of both the parties to a matrimonial dispute including their children if any. The wife files again and again cases of domestic violence, seeking several reliefs like compensation for physical and mental torture, return of streedhan under Section 406, IPC, a suit for dowry to be for the benefit of the wife or her heirs under Section 6 of the Dowry Prohibition Act, and a petition for residence orders and other reliefs under the provisions of Protection of Women from Domestic Violence Act etc. The husband also files cases alleged of theft of property, cheating, hurt, etc. making false accusations against the wife and her parents. At this stage chances of compromise are nominal. This stage creates multiplicity of cases. Appeal after appeal is filed against every order or judgments passed by the Trial Court. Appeals to the higher Courts, i.e. District Court and/or High Court and/or Supreme Court have been preferred by the party aggrieved by the decision of the Trial Court and at the same time a petition for execution has been filed against to the order of the Trial Court by the party favoured by the decision.
8.4 Recommendations, Reforms and Remedial Measures
Law is to serve the society. Law is a means to social ends, and every part of it has to be constantly examined for its purposes and effects.518 The socio-economic conditions of the country have changed a lot during the 21st Century. A careful perusal of the provision discussed above would reveal that it is high time Section 498A, IPC and the allied provisions should be reexamined.
Some of the recommendations are addressed below after thoughtful consideration of precedents and existing legislation.
8.4.1 Recommendations relating to the nature of the offence
8.4.1.1 May continue to remain ‘cognizable’
The offence under Section 498A, IPC as ‘cognizable’ as any change in the existing provision, might go against the interests of the woman community. Any amendment in the present law might reverse the social protection of women in their matrimonial home that has been built up so far.
Though Section 498A, IPC is ‘Cognizable’ (arrest without warrant), if the arrest is not considered essential, there is virtually no need of making it ‘non-cognizable’.
8.4.1.2 Making the offence ‘bailable’
It is considered to give two alternatives, one is to follow the latest amendment of the Code of Criminal Procedure i.e. Section 41A, relating to arrest procedure, which might suffice as it provides that a Police Officer has no power to arrest a person accused of an offence where seven years imprisonment is provided (in Section 498A, IPC, it is three years) and in lieu of issue a notice of appearance to such person for joining/cooperating in investigation. Nevertheless, such Police Officer has to mandatorily record reasons for his decision of making/not making any arrest in such cases. Hence, arbitrary exercise of power to arrest under this law has been curtailed to a considerable extent.
The second alternative is that marital offences under Sections 498A/406 should be made ‘bailable’, if no grave physical injury is inflicted (and necessarily compoundable). If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual consent, they should be allowed to compound the offences. The criminal proceedings don’t chase the couple if, they want to start their marital life afresh or otherwise. A genuine endeavor must be made so that 498A cases are continued as bailable offence and not non-bailable to prevent the innocent ones from languishing in custody.
8.4.1.3 Make the offence ‘compoundable’
The offence under Section 498A, IPC needs to be made ‘Compoundable’ with the permission of the Court. It is worthy to note that the amendment to Section 498A, IPC made in the State of Andhra Pradesh by Act 11 of 2003 should be adopted substantially by the Parent Act through an amendment and it shall be made applicable to the entire country.
The proposal to amend Section 498A, IPC requires some consideration on the following points.519
After the compromise for the first time, under Section 320 (2), CrPC, if the accused/husband commits the same offence i.e. cruelty again towards wife,
i) Does such an act amounts to the offence based upon the fresh cause of action or whether it attracts the double jeopardy or res judicata,
ii) Whether the parties can be permitted to compromise again and again or not, iii) Whether cases registered under Sections 3 or 4 of the Dowry Prohibition Act, 1961 shall also be withdrawn or not.
Because, the offences under these two sections are not compoundable; however, Section 498A, IPC and Section 3 and 4 of the Dowry Prohibition Act, 1961 are complementary to each other, and one cannot be interpreted in the absence of the other.
8.4.1.4 Insert 498B, corresponding to Section 498A, IPC
To reduce the quantum of punishment for the offence under Section 498A, IPC, the under mentioned two circumstances should be considered and accordingly a new section namely, 498B shall be inserted corresponding to Section 498A, IPC by an amendment to the Criminal Law.
The two circumstances are as follows
i) In respect of the marriages, beyond seven years, the existing provision i.e. Section 498A, IPC should be continued or maintained status quo. At present, the nature of the offence under Section 498A, IPC is Cognizable, Non-Bailable and triable by a Metropolitan Magistrate/Judicial Magistrate of First Class, and it is also Non-Compoundable. The punishment is imprisonment for a term which may extend to three years and fine. It should be made a ‘warrant procedure’.
ii) In respect of the marriages up to seven years, a new provision namely Section 498B should be inserted, corresponding to the Section 498A, IPC. The newly inserted provision should be made cognizable, bailable and triable by a Metropolitan Magistrate/Judicial Magistrate of First Class, and it is also Compoundable with the permission of the Court. The punishment is imprisonment less than two years or fine or with both. It should be made a ‘summons procedure’.
8.4.2 Recommendations against indiscriminate and unwarranted arrests
8.4.2.1 To facilitate the case first under the PWDV Act, 2005
On receipt of a complaint under Section 498A, IPC immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the provisions of the Domestic Violence Act, so that the Magistrate can set in motion the process of counselling/conciliation between the warring spouses, instead of a criminal action against the accused. It is a good option for providing compensation to the maltreated women under the provisions of “the Domestic Violence Act,” that provides for a gamut of civil remedies for the aggrieved woman.
8.4.2.2 To check every complaint before registering the FIR
The accused in a typical dowry case/s are generally different vicinities of the family i.e. the husband, his parents, brothers and brothers-in-law, sisters-in-law, grandparents and cousins. Therefore, a complaint regarding the matrimonial dispute shall be properly checked for its authenticity to register the FIR, if a complaint discloses reasonable grounds of a cognizable offence to invoke Section 498A, IPC against the accused. Due consideration shall be given to the elders of the family, who are never involved in a criminal activity earlier in their lives.
Further, the Police should guide the complainant on the following:
- the need for documenting the facts of the incidences in their petitions,
- not to implicate more number of family members as accused with an evil intention in
their petitions,
- not to include dowry charge/s in their petitions in the absence of such a harassment, and
- Make clear that the approval of Dowry Prohibition Officer to file FIR is essential to attract the strict allegations of dowry harassment.
8.4.2.3 Police to act more discretely and cautiously
The police are expected to act more discretely and cautiously before taking the drastic step of arrest. The power of arrest without warrant ought not to be resorted to in a routine manner and that the Police officer should be reasonably satisfied about a person’s complicity as well as the need to effect arrest. The norms, standards and procedure relating to arrest decreed in Dilip Kumar Basu Case [12] and now incorporated in the Criminal Law Amendment Act should be scrupulously followed by every Police officer. Superior officers should also be made severally and jointly accountable if officers working under them violate the norms’. They also stressed for strict implementation of latest directions given by the Supreme Court in Arnesh Kumar Case .520
8.4.2.4 To conduct sound investigation
• It is essential to conduct sound investigation in the cases registered under Section 498A, IPC under the close supervision of a Police Officer, i.e., not below the rank of Sub-Divisional Police Officer (SDPO). They should be provided with the necessary infrastructure, adequate personnel and logistics to carry out their role.
• The Sub-Divisional Police Officers (SDPO) in the District should be issued strict guidelines, to review all the cases pending under Section 498A, IPC and guide the SubInspectors on correct lines as per rules in vogue to rescue the innocent victims.
• An effort must also be made so that the investigation regarding this 498A cases is operated only by civil authorities and only on the finding of reasonable evidence, enough to establish the individual’s crime, should the policeman take actions against him.
• The accused who actually involved in the offence must be arrested, if the FIR, prima facie discloses the commission of a cognizable offence under Section 498A, IPC.
8.4.2.5 To expedite the investigation by women investigating officers
The investigation of the cases of cruelty need to be done expeditiously, without loss or damage of any incriminating evidence and preferably by the women investigating officers as owing to their gender, they can better understand the trauma being felt by a victim and accordingly obtain her statement/s in a more humane manner. The investigating authorities should be equipped for evidence gathering. The agency shall complete every investigation in 498A, IPC case within three months. If gathering evidence becomes difficult, three more months can be given.
8.4.2.6 To set up Mahila Desks and Crime against Women Cell (CWC)
Establishing Mahila Desks at Police Station, and Crime against Women Cell, at least at the District level which would specifically deal with the complaints made by women is necessary. [14] The Legal Service Authorities of the States/Union Territories, National Commission for Women, NGO and social workers should set up a desk in CAW cell to provide conciliation services to the women so that before the state machinery is set in motion the matter is amicably settled at every stage.
8.4.3 Recommendations to deal with pending cases of 498A, IPC
In India, the Criminal Justice System is not working effectively. Inordinate delays , prohibitive expenditure, procedure orientations , harassment and exploitation of the victims, corrupted bureaucracy, etc. are some of the well-known maladies of this system. In this context, with the mounting backlog of cases in Courts and dearth of optimum judicial infrastructure, it become imperative on the part of the Government and the larger civil society that they engage themselves in the “Alternative Dispute Redressal Mechanism”. Giving this mechanism, a constitutional structure with a strong statutory backing is the desired need for making this mechanism acceptable in the legal world, with all the legality included.
8.4.3.1 To adopt Alternative Dispute Resolution (ADR) Mechanism
The Indian Legal System recognises the settlement of disputes through Arbitration, Conciliation, Mediation and Negotiation under various laws.521 When the reconciliation measure has legislative sanction behind it, this can be termed as ‘Law based Conciliation’. Through the ADR process, the resolution of disputes takes place usually in private and is more viable, economic and efficient. It facilitates the parties to deal with increased efficacy. In addition, these processes have the advantage of providing parties with the opportunity to reduce hostility, regain a sense of control, gain acceptance of the outcome, resolve conflict in a peaceful manner and achieve a greater sense of justice in each individual case.
For successful implementation of the ADR mechanism, the institutional frame work must be chalked-out in three different stages. The first stage is to bring awareness, the second acceptance or imparting training, and the third implementation. With a view to bring awareness, holding of seminars, workshops, symposiums, etc. would be imperative. A detailed ADR literacy programme has to be chalked-out. By spreading the message of ADR, the disputants can be made aware of its benefits. The awareness campaign must take in its stride a change in the attitude or the mindset of all concerned including the disputants, the advocates and the judicial officers. Their active participation in the process must be ensured. The members of the legal and judicial fraternity must accept ADR mechanism as an additional forum for resolution of the disputes. A qualified mediator must undergo 30 to 40 hours of general mediation of training which would include experience in mediation either as an observer or a co-mediator or participant in role-plays or mock practices. The judicial officers must also be trained to identify, cases which would be suitable for taking recourse to a particular form of ADR. They must be able to identify cases which are capable to being resolved through the ADR mechanism and that too which one of them would be suitable for the said purpose having regard to the facts and circumstances obtaining therein.
8.4.3.2 To set up more Family Courts
There is urgent necessity of establishment of more Family Courts under the Family Courts Act, 1984 in our country. This step will contribute to the resolution of family law disputes by ADR. The current handling of matrimonial litigation by traditional/conventional courts, in sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.
jurisdictions where there are no Family Courts are poignant reminder of the situation created by lack of Family Courts in such jurisdictions. The availability of trained counselors, mediators, professionally trained persons and above all specialist family law judges would all form part of a well organised team in a Family Court which in turn would itself create a mechanism and structure for alternative disputes resolution of family law disputes.
8.4.3.3 To setup of ‘Women Special Fast Track Courts, Mobile Courts, Gram Nyayalayas’
In cases of crime against women like cruelty by husband and his relatives, from the time of registering the case at the Police Station and to the administration of the justice, if women officials and judges are involved, the victims will get solace to a great extent. Along with allwomen Police Stations, if Special Fast Track Courts headed by Women Judicial Officers, are set up the support of the system to get justice may be ensured. Thereby, the victims will come out and co-operate with the authorities.
Mobile Courts that help in taking justice to the doorstep of the rural women would significantly help in fighting the backlog. These Courts would not only educate the rural folk about their rights and responsibilities and provide swift justice but also create a feeling of law and judiciary being very close to them.
The Government should set up Gram Nyayalayas with an objective to secure justice, both civil and criminal, at the gross root level to the citizens. It would be the lowest court of subordinate judiciary and shall provide easy access to justice to litigant through friendly procedure, use of the local language wherever necessary.
8.4.3.4 To deliver judgment on time bound manner
In India, the trial of 498A case continues for 8 to 10 years, if not more depending on the gravity of crime. To overcome this problem, a speedy trial is advisable so that the real victims of matrimonial cruelty get prompt redressal. A provision may be appropriately inserted under the Penal Code so that the cases under Section 498A, IPC may be tried in the Courts with a mandate to deliver judgments in time bound manner.[16] The cases under Section 498A, IPC may be tried in the Fast Track Courts with a mandate to deliver judgment in sixty days as is the case in the Domestic Violence Act. It is imperative that the judicial officers themselves fix their targets that “all the cases which are instituted in courts having original jurisdiction must be disposed of within 18 months and in court of appellate jurisdiction within 12 months ”. For the purpose of achieving this object, it is necessary to take recourse to judicial reform in justice delivery system.
8.4.4 Reforms in Civil Laws/Family Laws
8.4.4.1 To amend Sub-section 3 of the Family Courts Act, 1984
The Family Courts Act, 1984 should be amended by inserting Sub-Section 3 to Section 7 in the following manner. [17]
(3) Notwithstanding anything contained in the Act, or any other law, the Family Court or in case where Family Court is not established, than any other Court while dealing with the matrimonial cases, shall have jurisdiction and power to do the following
(a) To deal and separate and joint properties of the parties given at the time of marriage or acquired by the parties jointly or separately at any other time.
(b) To quash or set aside any Criminal Proceeding pending in any Court of law involving any offence (either compoundable or non-compoundable) involving the parties after giving an opportunity to the prosecuting agency,
(c) To decide any other dispute between the parties.
8.4.4.2 To try the cases of dowry, bigamy and cruelty in Family Courts only
The offences under Section/s 304B, 406, 494 and 498A, IPC and 3 or 4 Dowry Prohibition Act, 1961 deal with the concept that problems might also be tried by the Family Courts, with the association of social welfare agencies522. These mechanisms are able to undertake the marital disputes healthier than the Criminal Courts. The Family Courts Act, 1984 also brought civil and criminal jurisdiction under one roof. This was seen as a positive measure to centralize all litigation concerning women. Secondly, the very nature of Criminal Courts facilitated quicker disposal of applications to a Civil Court.
8.4.4.3 More authority should be given to the Family Courts
Matrimonial disputes such as divorce, partition of property, custody of children and maintenance should not be litigated in any court unless of an extraordinary grave nature, they should be amicably resolved. These disputes should not come into the higher judiciary and should be resolved mutually and conclusively in the Family Court itself. It would save the time of the superior courts where other matters could be resolved in the time which would have been consumed for settling these disputes.
8.4.4.4 To establish one Court for all Matrimonial Cases
In case the matter is pending in various Courts under different claims, it is proper that the stand taken by the parties in all the proceedings could be settled by one court at the same time; leaving a part of the dispute to be decided in future in another suit would prolong acrimony and agony. Keeping in mind, the Family Courts are already over-burdened. A norm should be fixed for 1000 cases in a Court is a good norm and establish more Family Courts proportionately.
8.4.4.5 To designate the Family Courts as the Court of first instance
Under the Family Courts Act, 1984 the Family Courts have been given jurisdiction over family matters only which do not include inter-spousal rape or cruelty against wives. It is also suggested that the Family Courts should be designed as the Court of first instance in cases of intra-familial violence including inter-spousal rape or cruelty against wives.
8.4.4.6 To transfer the case to Criminal Court
A provision may be inserted in the Family Courts Act, 1984 empowering the Family Courts to transfer any suit brought to them, to a Criminal Court (with or without the consent of one or both the parties), in case serious injurious have been caused to the wife. The decision to use the criminal process should be left to the Family Courts which should not prevent a petition being filed in a Criminal Court, if the party so wishes.
8.4.4.7 To provide immediate relief through Family Courts
The victims of domestic violence should be provided immediate relief prior to taking legal course of action under Section 498A, IPC against the husband and his relatives. The Family Courts Act, 1984, makes it possible for a victim of family violence, to seek matrimonial reliefs without delay as the Family Courts require a less formal and more active investigational and inquisitorial procedure. The concept of Family Courts implies an integrated broad-based service to families in trouble.
8.4.4.8 To designate the Sessions Court as immediate Appellate Court
The immediate Appellate Court for the prosecution should be designated as Sessions court, so that, in the event of failure of the prosecution, the aggrieved complainant herself could go for an appeal against the order passed by the Trial Court.
8.4.4.9 To sanction jurisdiction to Lok Adalats
According to Section 19 (5) of the Legal Services Authorities Act, 1987[19], it is clear that the Legal Service Authorities have no jurisdiction, in respect of the cases or matters relating to an offence that are not compoundable under any law. Therefore, to give an effect to the actions of LSAs, it is suggested that the High Court may issue a specific direction to all its Sub-ordinate Courts to compound the cases of 498A, IPC, invoking the inherent powers under Section 482, CrPC.
8.4.4.10 To empower the Trial Court to compound the case
There were some compoundable offences specified in Section 320 of the Code where the quantum of the sentence was much more than under Section 498A, IPC and in spite of that, the offence under Section 498A, IPC was not compoundable even with the permission of the Court of Magistrate before which any prosecution for such offence is pending. It will be worthwhile considering grant of such powers to Trial Courts as it will save a lot of valuable time of High Courts and also save parties from avoidable and unnecessary botheration, expense and anxiety. A Trial Court is always well-equipped to decide about voluntariness of settlement between parties, seized as it is of the matter during the trial. With a view to seeing that such powers granted to Trial Courts are not abused, High Court may issue instructions to send factual statement of each such case to High Court for latter’s appreciation. In any case, justice must be done to the parties who do not want them to be embroiled in further litigation after they have ironed out their differences.
8.4.4.11 To confer property rights on women
The issue to prohibit the evil practice of demanding, giving and taking of dowry has been engaging the attention of the Government for past some time, and one of the methods by which this problem, which is essentially a social one, was sought to be tackled was by conferment of improved property rights on women by an amendment to the Hindu Succession Act, 1956. The present-day dowry system in India symbolizes the disinheritance of women and the desperation of parents to push their daughters out of their homes after marrying them off, no matter how this affects their well-being. Failure to do so is considered a severe stigma on the family’s reputation. Since a woman is being sent as a disinherited dependent, the receiving family has to be compensated.[20] Once women become equal inheritors, parents will not be depended only on sons and daughters-in-law for old age security because daughters too responsible to take care of their parents. This will make families less male-centric and, therefore, less prone to violent tussles. We need to combat the culture disinheritance if we wish to effectively combat the growing hold of dowry culture.
For this the following steps are likely to work better than anti-dowry laws:523
- Encourage parents through widespread, high profile campaigns, to gift mainly incomegenerating forms of property to their daughters depending on the economic status of the family.
- Encourage those parents who can afford it to ensure that their daughter has a house in her own name so that she is never rendered homeless, can never thrown out of the house.
- Amend the Hindu Succession Act and the Indian Succession Act to make it illegal for fathers to routinely disinherit daughters through their wills unless they can provide strong extenuating circumstances for doing so.524
8.4.5 Reforms in Criminal Law
8.4.5.1 To bring Section 498A, IPC under Civil Law
Section 498A, IPC is presently under Criminal Law even though it deals with a dispute which is matrimonial in nature. The people accused under these laws are common people and not hardcore criminals or habitual offenders. This provision of law should be brought under Civil Law.
8.4.5.2 To determine clearly the territorial jurisdiction of cases under Section 498A, IPC
There is a dire need to determine the territorial jurisdiction of the cases under Section 498A, IPC categorically like the place where the marriage is solemnized or where the respondent resides permanently or where the petitioner resides or where they last resided together or the place where acts of cruelty inflicted on her or any other place to carry out the proceedings.525
8.4.5.3 Allegations must be made subject to proof before trial
It is suggested the truth or otherwise the allegations are subject to proof before going to trial. Since, a tendency has emerged to rope in all the family members of the husband in cases of cruelty concrete allegations with regard to the date, the place, the manner; the act of cruelty should be present in the evidence in order to frame the charge for offence under Section 498A, IPC.
8.4.5.4 Anticipatory bail should be granted liberally
A specific provision for conditional bail in cases concerning matrimonial offences should be considered. There are instances where false complaints are given against kith-and-kin of the husband, and it was revealed that several families are ruined; marriages were irretrievably broke and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands. To discourage these unhealthy practices, it is desirable that anticipatory bail is granted very liberally in cases of 498A, IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence. Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc. are available and where there is sufferance of serious injurious or death of the victim, it is desirable to refuse anticipatory bail.
8.4.5.5 Burden of Proof of 498A, case r/w 304B, IPC to lie on the prosecution
Section 498A, IPC is invoked in most of the cases of dowry deaths by the Police, leading to the presumption of harassment or cruelty to the woman by the husband or his relatives, and the burden of proving innocence shifted to the accused to rebut the said presumption of guilt. But, the charge of cruelty made against the accused persons has to be proved by the prosecution beyond all shadows of reasonable doubt by full proof evidence and such requirement of proof does not stand attacked under the realm of Section 498A, IPC and Section 113A, Indian Evidence Act. The burden of proof of the offence under Section 498A, r/w 304B, IPC must lie on the prosecution like other offences of the Penal Code.
8.4.5.6 To resort 498A, IPC anytime during the life
Section 498A, IPC could be resorted to anytime during the life period of husband by wife even to suppress her fault and further her own self interest. Therefore, some sort of time limit similar to the time (within seven years of marriage) provided under Section 304B, IPC for dowry death might be provided under Section 498A.
8.4.5.7 To amend Section 304B, IPC
It is true that the cruelty under Section 304B, IPC is preferable to dowry harassment and not to any other type of cruelty. Thus, if a death is caused to women due to harassment by the husband and in-laws for other than dowry related issues like suspecting her fidelity or giving birth only to female children, etc., this provision is not attracted. Consequently the case is to be dealt with Section 302 of IPC where the burden of proof lies with the prosecution. The burden of proof under Section 304B, IPC is on the accused. This benefit is not available to the victim due to the lacuna as discussed above. Section 304B, IPC is to be amended to enlarge its scope so as to cover all types of cruelty and not dowry related harassment alone.
8.4.5.8 To engage alternative counsel with the consent of prosecution
The victim should be permitted to engage her own counsel, with the permission of the Court to aid and assist the prosecution officer. At present, there is no scope for engaging a private lawyer by the victim in matrimonial offences to prosecute the case directly and address the Court orally526. Therefore, the aggrieved becomes hapless and helpless. So, there needs some provision to enable the aggrieved on the prosecution side to come to the Court and tell what he wants to say and what is the truth of the case. It is the corrective force to the Police and the Prosecution against the allegations of less conviction in respect of cases of cruelty.
8.4.5.9 To establish Family Counseling Organisations
In India, there is no proper formal organization who offers family counselling. Establishment of a recognized family counselling organization is essential so that the individuals can vent out their grief and can also take the advice of experts and practitioners.
8.4.5.10 Judgments should not be based solely on circumstantial evidence
In many cases no direct evidence is available due to the reason that the acts of cruelty in the family occur within the four walls of the home and the perpetrators of the acts are close relatives to each other and therefore, Courts have to act on circumstantial evidence. While dealing with cases of matrimonial disputes, the law laid down relating to circumstantial evidence has to be kept in view. The Court has to examine such evidence with great care and caution, and it should not be considered for all the way. Further, the evidence given by the natal family gets considered as “interested evidence” therefore unworthy of consideration.
8.4.5.11 Fixing minimum punishment and enhancing maximum punishment
Section 498A, IPC provides only a maximum sentence to the accused husband and others. Therefore, in the cases where no injuries are reported or where complaints are lodged on trivial issues, minimum punishment of fine or six months imprisonment should be awarded and the reasons should be mentioned in the order by the judge for that punishment.
Further, the maximum punishment for the offences under Section 498A, IPC should be prescribed and should be enhanced to five years and the Magistrate Court should be empowered to try all offences having punishment period of maximum five years.
Furthermore, considering the present situation, the fine amount limit of the Magistrate Court (Rs.5, 000/-) should be revised and enhanced.
8.4.5.12 Applicability of Section 306, IPC should be limited
Being a grave offence, abetment of suicide due to matrimonial cruelty should be categorized as a separate ‘crime head’ or as an alternative the applicability of Section 306, IPC should be limited to the cases of suicide by the wife only and for all other unnatural deaths, the action should be initiated under Section 498A, IPC.
8.4.5.13 To amend Section 406, IPC
The offence of cruelty was brought on the statute book almost a decade after the amendment of the Code in 1973. However, Section 320 of the Code remained un-amended in so far as the offence under Section 498A, IPC was concerned. The most common cases which come to Courts for quashing are those under Sections 498A and 406,527 IPC which result due to matrimonial disputes between spouses. Section 498A, IPC does not figure in the said Tables, so that it cannot be compounded between parties even with the permission of trial, appellate or revision courts. Since, value of dowry property is always much above Rs.2000/-, Section 406, IPC also requires further amendment as per the Table given in Section 320 (2) of the Code.
8.5 Suggestions
The following are the suggestions posed by the researcher towards the research problem:
8.5.1 To punish the dowry givers
If the complainant or her parents admit giving of dowry in the complaint, the Courts should take cognizance of the same and initiate the proceedings against them under the relevant provisions of the Dowry Prohibition Act, 1961.
8.5.2 To prosecute the woman for perjury and to recover costs
Those suitable clauses should be specifically inserted in Section 498A, IPC to make it punishable for whosoever misuses or abuses it. Whenever the Court comes to the conclusion that the allegations made regarding the commission of the offence under Section 498A/406 IPC, are unfound, stringent action should be taken against persons making the allegations. A woman misusing Section 498A and Domestic Violence Act, 2005 shall be (at the minimum) prosecuted for perjury and harassment, denied maintenance, lose custody of children, penalised, put under the Probation Act and grant divorce automatically. Those persons should be made liable to compensate the financial loss suffered by the falsely accused in the process of justice in all the cases of cruelty by the husband and his relatives. This would discourage the persons from coming to Courts with ulterior motives.
8.5.3 To impose fines on judges for frequent adjournments
It is suggested that the higher judiciary should consider imposing fines on judges for allowing frequent and too many adjournments. It has led to innocent people being embroiled in interminably long litigation in civil disputes. It is hopeful that the Supreme Court may take steps to ensure that the guidelines under the amended Section 309, CrPC are no longer disregarded by judges.528
8.5.4 To enlarge the scope of Section 309, CrPC
Section 309 (1) of CrPC stipulates that the inquiry or trial of the cases of heinous crimes like rape, under Sections 376, 376A to 376D of IPC should be completed within the period of two months. The same proviso should also be enlarged to include all cases of crimes against women including those under Section 498A, IPC. The amended Section 309 capped the adjournments permissible in the case as three and therefore suggested that the higher judiciary considers imposing fines on judges who breached the ceiling for allowing frequent and too many adjournments.
8.5.5 To prosecute/penalize the corrupt Investigation Officers
If it is apparent to the Court that, a fair investigation has not been conducted by the investigation officer and that the husband and his family have been charge sheeted without proper investigation, the investigation officer should be penalised for gross negligence of his duties. Strong actions must be taken against the dishonest, corrupted police officers; they must either be penalized or suspended from their posts if it becomes evident that there has been a gross negligence of duty on their part. Further, appearance of the investigation officer should be made compulsory during the trial proceedings to identify the lapses in the investigation process.
8.5.6 To give proper definitions of the following terms
• To redefine the term ‘Dowry’
The definition of dowry under Section 2 of the Dowry Prohibition Act, 1961 has not been carefully crafted. It defines dowry as any ‘property’ or ‘valuable security’ that is given prior to, at the time of or after the marriage in connection with the marriage. This has allowed certain judges with a patriarchal mindset to reason absurdly that what is given after the marriage on certain occasions and festivals cannot be construed as dowry unless direct connection to the marriage is shown. So, the definition of dowry under Section 2 of the Act, 1961 needs to be amended to cover all types of presents taken in the name of voluntary gifts.
It is suggested that, there should be a separate definition which has to be added to Section 304B, IPC defining ‘dowry’ clearly.
It is also suggested that the term ‘dowry demand’ should be substituted with the term ‘demand for money or other items’ estimable in monetary terms.
• To define the term ‘Relative’
The term ‘relative’ in Section 498A, IPC is not defined. Persons for the single reason of being related to the husband are harassed even though they are nowhere near the place of residence of a married woman, at the relevant point of time. It is, therefore, necessary to define the term ‘relative’ in Section 498A, IPC by adding explanation limiting to those who are living with the couple at the relevant point of time.
Provision should also be made to include ‘other relatives of the victim’ and any recognised welfare organisation among authorised informants for the purpose of taking cognizance under the section.
• To define ‘Cruelty’
The term ‘Cruelty’ should be redefined in more precise and effective terms. ‘Cruelty’ should be classified into ‘physical’ and ‘mental cruelty’ separately. The definitions of both the terms should be specified clearly, as it makes difficult to prove mental torture resulting in the acquittal of the accused of lack of evidence in many cases.
The terms ‘grave injury’ and ‘danger to mental health’ in Explanation (a) should be also be specified clearly to give the law more effective for preventing marital violence against women as well as its misuse.
• To interpret “harassment’ and ‘relatives of the husband of the women’
The terms ‘harassment’ and ‘relatives of the husband of the women’ have been interpreted to suit the complainant and investigating agency leading to enhance the suffering of innocent relatives of the husband, who are merely related by blood, adoption or marriage but might even not residing with the husband or even might not have visited the family in the near past. These terms need to be defined in the Code.
To make compulsory ‘registration of Streedhan and Gifts exchanged’
The Law under Section 406, IPC related to ‘ Streedhan ’ is usually used by wives for extortion. Sometimes the goal is reasonable-the woman wants the return of all items that legitimately belong to her, but she is encouraged to overstate her case and to demand an enhanced settlement as a pre-condition for divorce by mutual consent. To avoid this problem, a list of the items given to bride as streedhan as well as bridegroom which shall be prepared at the time of marriage according to the Dowry Prohibition (Maintenance of Lists of Presents to the Bride and Bridegroom) Rules, 1985529 read with Section 9 of the Dowry Prohibition Act, 1961 and registered before the Dowry Prohibition Officer of their residential area, who is empowered to act as such under Section 8B of the Act 1961. The couple should be directed to make a joint declaration regarding the gifts exchanged during the marriage.
8.5.7 To verify the capacity of the dowry givers
The daughter has an equal share in the self acquired property of her father, which needs to be secured for her development. In the case of strict allegations of dowry, the capacity of the dowry givers also needs to be verified.530
8.5.8 To return ‘streedhan of mother-in-law’
In some cases, when wife separates and leaves her matrimonial house, she takes-away all her belongings and jewellery of her mother-in-law also, which never belonged to her but later, denies their possession. So, the amended law should ensure that streedhan of mother-in-law be returned to her and whatever is given to a girl by her parents and her relatives in marriage shall only be returned.
8.5.9 To let an affidavit filed by the Dowry Prohibition officer
In most of the complaints, false claims are made that many articles are given to the husband and his relatives as dowry during the marriage without any proof or evidence. Dowry Prohibition Officer, appointed under the Dowry Prohibition (Amendment) Act, 1986 (Act 43 o f 1986) may file an affidavit to the court with proof and evidence of the claims of the wife regarding the dowry exchange. Section 498A, IPC may be amended in such a way that no arrest should be made till the Dowry Prohibition officer files an affidavit in the Court.
8.5.10 To make registration of marriage compulsory
The Marriages of all persons belonging to various religions should be made compulsory, and penalty for non-registration ought to follow, such as withholding of governmental benefits to the married. This would help in detecting the incidences of bigamy. It is in the interest of the society to that all the marriages must be registered for establishing the matrimonial cruelty.531
8.5.11 To rectify the lacuna in Section 10 of the Indian Divorce Act, 1869
The Indian Divorce Act of 1869 (Act 4 of 1869) is discriminatory on the ground of sex. Under Section 10 of the Act, the grounds for divorce as available to a wife or husband are different. Some of the grounds of divorce are not available to the husband but made available to the wife. It appears to set discrimination. The Parliament should remove such anomalies.
8.5.12 To limit the scope of the PWDV Act, 2005
The Domestic Violence Act, attempts to legalise live-in relationships, thereby violating laws against polygamy and also disregarding the rights of a legally wedded wife. A live-in relationship, unlike marriage, is not a legally binding contract. Women and men who enter live- in relationship implicitly accept the risk of a break-up, whatever the reasons for the break-up may be; forcing legal interference into a relationship that is legally invalid is simply ridiculous. Therefore, live-in relationships must be removed from the purview of the Domestic Violence Act.
8.5.13 To make matrimonial laws gender neutral
Every citizen of our country should have equal rights and responsibilities irrespective of their gender. But, the matrimonial laws in India do not recognise cruelty and domestic violence against men. That, the law be made gender neutral to protect the interests of many innocent, be it a man or woman or there may be similar laws to protect the harassed husbands and his family members from their wives.
8.5.14 To widen the list of compoundable offences
The list of compoundable offences might be widened, and more offences are included therein and made them compoundable. It too helps in making a dent in the mounting arrears and saving the time of the Courts.
8.5.15 To codify the laws relating to NRI Marriages
In India, the rules of private international law are not codified and are scattered in different enactments such as the Indian Contract Act, the Indian Divorce Act, the Special Marriage Act, and the Foreign Marriages Act, and Section 13, CPC. This usually leads to the conflict of laws. The Foreign Marriages Act is a specific legislation which is applicable to a marriage of an Indian citizen to a non-Indian, solemnized abroad. This Act is highly inadequate while addressing the wide range of issues which arise during matrimonial litigation. Marriage to a person living in a different country needs consideration on certain legal aspects. It is very important to know about current criminal laws related to Indian marriages such as Section 498A, IPC which deals with matrimonial cruelty to the wife by the husband and/or his relatives and other Criminal Sections viz., Ss 191,192, 323,406, 500 and 504 of IPC. Indian laws are applied strongly even in the case of marital discord outside India.
8.5.16 Pre-Marital and Post-Marital Counseling
Domestic violence emerges because of maladjustment and misconduct between the wife and husband. There must be pre-marital and post-marital counseling. The Government with the help of Non-Governmental Organisations should think seriously in adapting and establish the family counseling centres in every nook and corner of the country.
8.5.17 To strengthen the institution of marriage
The offence under Section 498A, IPC is both cognizable and non-bailable. When husband and his relatives are taken into custody, rapprochement between spouses becomes a remote possibility. The purpose of the provision is to curb domestic violence and therefore, the remedy should not be worse than disease. For the welfare of the society, institution of the family has been strengthened. Even at late stage of proceedings, if a family disruption could be saved, it will be beneficial to the family and if there are children, it will be a boon to them seeing their parents living together.
8.6 Suggestions for further research
This dissertation proposes to demonstrate the ‘Law concerning cruelty against women in their marital homes’. The review of literature clearly suggests that, there is an urgent need to build both capability and capacity in the legal research sector, in respect of cases of 498A, IPC.
The following areas are identified worthily of further research and development.
• Application of Section 498A, IPC to live in relations,
• Application of provisions of the Domestic Violence Act, 2005, to complaints under Section 498A, IPC directly at the first instance so as to understand the effect of civil remedies,
• Future of destitute children belonging to estranged families, because of 498A cases,
• Decriminalizing the process of justice in respect of the cases under Section 498A, IPC in the light of ‘reconciliation’,
• The role played by women both for committing offences against women and for preventing them, (i.e. domestic violence on women by women),
• The role of victim of matrimonial cruelty in the Indian Criminal Justice System,
• The role of Non-Government Organisations in resolving the cases pertaining to 498A, IPC,
• The basic objective of Women Cells to act as non-police institutional alternative to provide for initial intervention in matrimonial disputes is not being fulfilled. A more focused approach is required in this area.
• ‘The World Health Organization (WHO) report on Elder Abuse’ finds misuse of matrimonial provisions by daughters-in-law as the main reason for eider abuse in India. A methodical study on this subject should be promoted.
• In recent times, the cases of harassing NRI husbands by their wives are emerging. Several cases of the misuse of Section 498A, IPC have involved couples outside India especially USA. The USA state department has issued warning for foreigners for not travelling for marriage India. A critical investigation is necessitated on this subject.
• One of the main concerns made by the pro-abolition groups of Section 498A, IPC is that human rights of men are allegedly violated by said provision that allows for innocent men to be arrested and humiliated in Police custody by wives acting malafide. On the otherhand, the arguments of the Civil Society Groups for women are that Section 498A, should not be abolished on the ground that it applies only to men. The claim Section 498A, discriminates against men only is incorrect as the offenders under the same provision include both men and women. For example, a mother-in-law who has treated her daughter-in-law with cruelty can also be prosecuted under the said section. In this hullabaloo, a more focused research is required on the lines of violation of human rights against the wives and her parents.
8.7 Conclusion
• Do Women need more laws?
In almost all laws of the land, woman has been accorded great respect.532 The Constitution not only grants equality to women, it also empowers the State to adopt measures of positive discrimination in favour of women, for neutralizing the cumulative socio-economic, education and political disadvantages faced by them. The principle of gender equality is enshrined in the Constitution of India in its Preamble, Fundamental Rights, Fundamental Duties and Directive Principles . Articles 14, 15, 15(3), 16, 39(a), 39(b), 39(c) and 42 of the Constitution are of specific importance in this regard. Within the framework of a democratic polity, our laws, development policies, plans and programmes have aimed at women’s advancement in different spheres. Further, India has also ratified various International Conventions and Human Rights Instruments committing to secure equal rights for women.
To uphold the Constitutional mandate, the State has enacted various legislative measures intended to ensure equal rights, to counter social discrimination and various forms of violence and atrocities and to provide support services especially to working women. India has a number of laws ostensibly to end the discrimination against women and to prosecute and punish those who commit violence against women. These include Civil Laws that have been supposedly passed to give equal rights to the daughters and also some special laws that provide criminal and civil remedies. Like any Criminal Law, they punish the violators with imprisonment and fines and also provide for certain civil remedies. Apart from these laws, the Indian Penal Code criminalizes certain acts in relation to marriage. It has also been amended to introduce the provisions of ‘dowry death’ (which seeks to punish the dowry-related murder) and ‘Cruelty against the married woman’ (which defines cruelty as harassment for dowry and mental and physical violence of a grave nature).
Wherever and whenever some case against woman erupts, voices are raised to pass new laws. Though the number of laws favoring women rose over the time, the crimes against them could not be brought down. History shows that increase in the number of laws is not the answer to controlling crime. Laws should be dragged out from law books. Common people should know the laws. Attempts are needed to create a system, in which Executive and Judiciary could act promptly whatever, is expected from them in our laws. Framing of laws for women will be a burden on the Executive and the Judiciary.
Swami Vivekananda once said[31] “No country on earth has so many laws and in no country are they so less regarded.” He added “Too many laws are a sign of death and decay of society.” Thus, he thinks that “the great need of the hour is less law and more godly men and women.”
• Enacting tough law is easy, implementing them much tougher
For a law to be effective, however it has to be implemented and enforced. The Government has the poor record of implementing these laws. The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short the “PCPNDT Act”) is, in fact, a classic example of non-implementation of the law. This Act was passed in 1994, but it took the Government two years to bring it into force. It was not even notified in some states for several years. Similarly, under the Dowry Prohibition Act, 1961 the state has not often fulfilled its statutory obligation to appoint dowry prohibition officers to oversee the functioning of the Act and report cases. Even in cases where officers have been appointed, the appointees are often
Government Officers with other regular duties. The lack of implementation of the Act has also shown that the Central and the State Governments have, perhaps for a variety of reasons, not been serious about stemming the rising tide of dowry. Other instances of non-implementation include deliberate police inaction in several criminal cases relating to dowry and non-registration and non-prosecution of such cases by them. Criminal Laws continue to be honoured more in the breach than in the observance. It has been reported that the Police in charge of registering and investigating offences refuse to register cases or refuse to investigate them properly. The prosecution of the case in Court also leaves much to be desired. Corruption, inefficiency and gender bias among members of the Police force are factors that are reported in several cases involving ordinary women. Courts also deal with most of the criminal and civil cases in a casual or lackadaisical manner, and it takes women years to get justice in several cases. Increasing incidence of corruption in the Criminal Justice System is also being reported. This highlights the need for extensive reforms in the Criminal Justice System to make them more responsive and sensitive to women’s issues. The record in implementing the laws is so appalling that a number of activists working with women have opposed framing new laws, particularly Criminal Laws. They contend that the laws that exist do not get implemented and it would be better to make the Police and Judicial System more accountable in implementing them than enacting new laws by the legislature.
Though various laws are enacted for the protection of women, violence against them is still rampant. The women folk have been exploited for centuries together, and they have been denied their rightful and just place and position in society in a dignified manner. Cases of cruelty and torture against women are increasing in number as well as in magnitude and are causing serious concern for the ‘Executive, Legislature and the Judiciary ’. But, societal response appears to be destitute. It appears that people are not vigilant to expose the culprits before the society and to get him/them punished. One obvious reason appears to be that the shame and the social taboos that have shrouded our society do not allow a lady to go freely and lodge a complaint against the husband.
Law is well written, and it is in the statute books. But when it comes to implementation it does not deliver the desired result. It is highly important to create proper mechanism to enforce the law rather than only working to make or amend a set of laws or new laws. The execution of the laws is more important than enacting them. The Government should find strong machinery to implement laws in a stringent and effective manner that may call for deterrent punishment.
• Effective implementation of existing laws and overall reforms are necessary
A more stringent law alone will not prevent the recurrence of the crimes against women. Effective implementation of the law is necessary, which is not possible without good governance and promotion of respect and dignity of women. A change in the mindset is needed not only on the part of potential criminals, but also the police, the politicians in power, the bureaucrats and all sections of society.
• Balanced and Equitable Law
It is not a denying fact that ‘Cruelty towards a married woman’ has of late become a burning problem in our country and the insertion of the impugned provision was anything but imperative to eliminate the deep-rooted malady in our social order. But, at the same time, there ought to have been a safety device in the provision itself to save a husband from being unnecessarily harassed by his wife so as to ensure that nothing untoward happens in a family before they are being finally separated in a court of law.
Seldom one can deny that the smooth running of a conjugal life depends on the mental adjustment of both the husband and the wife, besides having love and respect for each other. But, a growing and stubborn attitude of some section of wives, particularly who are working and have been enjoying the financial freedom has made the life of many husbands quite miserable.
It has to be remembered that criminal prosecution cannot be allowed to become the personal vendetta of the complainant/wife. At the same time, it is also necessary that her right to seek grievance for the cruelty committed on her by her husband and in-laws is protected and a balance has to be maintained in this regard, so that the social equilibrium of the society is not disturbed. The society justifiably demands a balanced and equitable law by which the interests of a husband or relatives of the husband should be well protected so as to curb the vice of cruelty from the society for which the amendment of Section 498A, IPC is imperative to mitigate the sufferings of a husband.
Suitable amendment in Section 498A, IPC brooks no delay. Of course, the provision ought not to be so diluted as to defeat the basic purpose behind its enactment and inclusion in the Penal Code. After all, the menace of dowry harassment is still looming largely. Every other day numerous such cases from every nook and corner of the country are reported. What is needed is checking the framing of innocent and hapless persons by the woman for settling scores, with an ulterior motive and vested interests under the guise of dowry harassment and marital cruelty. Before carrying out any amendment in the text and consequential implementation of this provision, the prevalent police investigation methodology needs suitable overhaul so as to ensure that each reported incident is dealt meticulously with the quest for ascertaining truth and bringing the real culprits to light including those who have tried to misuse the law by making concocted, frivolous or vague complaint(s).
It is high time that ‘ THE PEOPLE OF INDIA’, both men and women realise especially after the violent Delhi gang rape incident that violence against women is not just a women’s issue and the responsibility of preventing violence against women lies with society as a whole, not with women alone. Therefore, the male counterpart should be gender sensitive enough to instill confidence in the female counterpart.
Swami Vivekananda
SELECTED BIBLIOGRAPHY
ORIGINAL SOURCES
I. Acts and Statutes
1. Personal Laws (Hindu, Muslim, Christian and Secular Laws)
1. The Indian Divorce Act, 1869
2. The Indian Christian Marriage Act, 1872
3. The Dissolution of Muslim Marriages Act, 1939
4. The Special Marriage Act, 1954
5. The Hindu Marriage Act, 1955
6. The Foreign Marriage Act, 1969
7. The Muslim Personal law (Shariat) Application Act, 1937
8. The Muslim Women (Protection of Rights on Divorce) Act, 1986
9. The Muslim Women (Protection of Rights on Divorce) Rules, 1986
2. Criminal Major and Minor Acts
1. The Dowry Prohibition Act, 1961
2. The Criminal Law (Second Amendment) Act, 1983
2.1 The Indian Penal Code, 1860 (relevant provisions)
2.2 The Code of Criminal Procedure, 1973 (relevant provisions)
2.3 The Indian Evidence Act, 1872 (relevant provisions)
3. The Criminal Law (Amendment) Act, 1986
1 .e. the Dowry Prohibition (Amendment) Act, 1986
4. The Dowry Prohibition (Maintenance of list of presents to the Bride and Bridegrooms) Rules, 1985
5. The Protection of Women from Domestic Violence Act, 2005
II. United Nations Documents - International Conventions and Declarations
1. Beijing Declaration on the Fourth World Conference on Women, 1995
2. Convention on Elimination of all Forms of Discrimination Against Women (CEDAW), 1979
3. Declaration on Elimination of Discrimination Against Women, 1967
4. Declaration on Elimination of Discrimination Against Women, 1993
5. Universal Declaration on Human Rights (UDHR) 1948
III. Other Documents and Reports
Law Commission of India
1. Law Commission of India, 42nd Report (1971) on revision of IPC, 1860.
2. Law Commission of India, 71st Report (1978) on Hindu Marriage Act, 1955-
“Irretrievable Breakdown of Marriage as a ground of divorce”.
3. Law Commission of India, 91st Report (1983) on Dowry deaths and Law Reform: Amending the Hindu Marriage Act, 1955 the Indian Penal Code 1860 and the Indian Evidence Act, 1872.
4. Law Commission of India, 98th Report (1984) on Sections 24 to 26 of Hindu Marriage Act, 1955 (Orders for interim maintenance and orders for the maintenance of children in matrimonial proceedings).
5. Law Commission of India, 156th Report (1997) on Indian Penal Code, 1860.
6. Law Commission of India, 177th Report (2001) on
7. Law Commission of India, 202nd Report (1997) on Proposal to amend Section 304B, IPC 1860.
8. Law Commission of India, 217th Report (2009) on “Irretrievable Breakdown of Marriage - another ground for divorce”.
9. Law Commission of India, 237th Report (2011) on “Compounding of (IPC) offences.
10. Law Commission of India, 243rd Report (2012) on Section 498A, IPC.
NCRB Reports
• “Crime in India”- An annual publication of National Crime Records Bureau (NCRB) of the years 2007, 2008, 2009, 2010 and 2011, Ministry of Home Affairs (MHAS), Government of India
• Accidental deaths and suicidal deaths in India - 2011, annual publication of National Crime Records Bureau (NCRB), Ministry of Home Affairs (MHAS), Government of India
Ministry of Home Affairs Reports
• Rajya Sabha Committee on Petition’s 140th Report on Petition (under the chairmanship of Bhagat Singh Koshyari) praying for amendments in Section 498A, IPC 1860 (Presented on 7 th September, 2011)
• Committee on Reforms of Criminal Justice System (2003), (under the Chairmanship of Js. V.S. Malimath) Government of India, Ministry of Home Affairs, New Delhi.
• A Research Study on the Use and Misuse of Section 498A of the Indian Penal Code - Study Summary (2005), conducted by the Centre for Social Research.
• Annual reports of Ministry of Home Affairs (MHAS) of the years 2007, 2008, 2009, 2010 and 2011
Ministry of Women and Child Development Reports
• Annual Report of Ministry of Women and Child Development (MWCD) of the years 2007 2008, 2009, 2010, and 2011
Ministry of Statistics and Programme Implementation Report
• Report of Women and Men in India - 2012, Central Statistics office, Ministry of Statistics and Programme Implementation (MSPI),
National Family Health Survey Reports
• Annual Report of National Family Health Survey (NFHS) of the years 2007, 2008, 2009, 2010 and 2011.
• A Manual prepared by, MGSIPAP, Chandigarh on “ Gender empowerment of women ”, Department of Personnel and Training, Government of India.
Personal Law Reports
• Compendium of Islamic Laws-2001, Part-1; All India Muslim Personal Law Board’s Urdu book, ‘Majmu a-e-Qawanin-e- Islami.
Study Reports and Speeches (by voluntary organisations)
• Violence by Intimate Partners, World Report on Violence and Health, 2002.
• Help-Age India, “Elder abuse in India”, available at www.who.int/ageing/projects/elder- abuse/alc-ea.ind.pdf last visited on April 14, 2011.
• “Shades of courage” women and IPC Section 498A: A study conducted by Tata Institute of Social Sciences (TISS), Mumbai, 1999.
• An investigative report by a NGO called Rakshak, The Silent Tears of Shattered Families: The Ugly Reality of Dowry Law.
• A Report on Protection of Women from Cruelty - A Critical Study on Enforcement of Section 498A of IPC’, conducted by Committee for Legal Aid to Poor (CLAP), Cuttack, Odisha.
• Joy Sarker: A Research Proposal for Doctrinal Research on ‘Cruelty against Married Women and the Legal Framework in India with special reference to Indian Penal Code, 1860: A Critical Analysis’, Submitted to Hidayatullah National Law University, Raipur, Chhattisgarh.
• Parnika Malhotra: ‘Alternate Dispute Resolution at the grass root level’ Centre for Public Policy Research, National conference on taking Alternate Dispute Resolutions to the commons, ADR Essay Competition 2008.
• Manju Goel, Successful mediation in Matrimonial Disputes - Ap proaches, Resources, Strategies & Management’, Part-I, Delhi Mediation Centre
• Sunil Ambwani: Speech on ‘Alternative Dispute Resolution’ (National Judicial Excellence Enhancement Programme (JEEP), National Judicial Academy India, Bhopal, September 2011).
• K.D.Gaur, (Statement of objects and reasons, Gazette of India, 1959, Extra.
• K.D.Gaur, Poor victim of uses and abuses of Criminal Law and process in India, 35:4 JILI,1993
• Lawyers Collective, Reports of Colloquium on Justice for Women Empowerment through Law 2000.
• Shinghal’s, N.K, Study report on Crime against women-Role of Section 498-A, IPC in the states of Delhi and Haryana, sponsored by Research Studies on Police and Prison issues [1970-2009]; Compendium of Bureau of Police research & Development (BPR&D) New Delhi; Ministry of Home affairs, Government of India, (Third revised edition-2009).
SECONDARY SOURCES
I. Books/Monographs
Illustrations are not included in the reading sample
II. Articles
Illustrations are not included in the reading sample
III. Magazines/News Papers
1. Frontline, Fortnightly Magazine, New Delhi.
2. Lawyers Update, Monthly Magazine.
3. Legal News and Views, Monthly Magazine.
4. The Hindu, Daily News, Visakhapatnam Edition.
5. Indian Express, Daily News, Visakhapatnam Edition.
6. Eenadu Daily News, (Telugu) Visakhapatnam Edition.
7. Saakshi, Daily News, (Telugu) Visakhapatnam Edition.
IV. Dictionaries and Encyclopedia
Chandrachud, Y.V. (2007), The Law Lexicon: Encyclopaedic Law Dictionary with Legal
Maxims, Latin Terms, Words & Phrases, Wadhwa, Nagpur.
V. Websites and Search Engines
1. http://apunkadesh.blogspot.com
2. http://judis.nic.in/supremecourt/grydisp.asp?tfnm
3. http://legalserviceindia.com/Articles/Familylaw/Section498(A)
4. http://manupatra.com
5. http://westlawindia/cases/
6. http://west.thompson.com/westlaw/guides
7. www.498a.org
8. www.airwebworld.com
9. www.anveshirc.com
10. www.findlaw.com
11. www.google.com
12. www.indiacourts.com
13. www:indiakanoon.org/doc/
14. www.indialaws.org
15. www.judicialcompetitiontimes.com
16. www.lawcommossionofindia.nic.in
17. www.lawprepindia.com
18. www.lawyerindia.co.in
19. www.legallyindia.com
20. www.ncrb.nic.in
21. www.ncw.org.in
22. www.prsindia.org
23. www.rakshakfoundation.org
24. www.saveindiafamilies.com
25. www.section498A.com
26. www.shareyouressays.com
27. www.supremecourtcases.com
28. supremecourtjudgments@www.stpl-india.in
29. www.vakilnumberone.com
30. www.westlawindia.com
31. www.wikipedia.com
[...]
1 Article 16 (3) and Article 25 (2) of the Universal Declaration of Human Rights (UDHR).
2 B. M. Gandhi: Family Law, (Eastern Book Company, Lucknow, Vol.1, First Edition, 2012), p.3. Cited in David M. Walker, ‘The Oxford Companion to Law’.
3 B. M. Gandhi: Family Law, (Eastern Book Company, Lucknow, Vol.1, First Edition, 2012), p.3. Chapter 7, “Family Law’, Cited in Wolfgang Gaston Friedmann, Law in a changing Society (University of California Press, 1959) 172-75.
4 Anuja.S: Rights of women against domestic violence – The Law and emerging challenge, p.1. Retrieved from http://www.shodhganga@INFLIBNET.com.
5 Willamette Law Review (1996) Vol.33, P.897.
6 http://Legalserviceindia.com/Articles/Familylaw/Section498(A):A Critical Analysis.htm, Last visited on 10/02/2011.
7 Al-beruni was a Persian Muslim Scholar, who visited Indian sub-continent in 1017 A.D. He accompanied Mohammed Ghazani, the Moghul Emperor and stayed there for many years. He composed about twenty books on India.
8 The ritual of sati, an obnoxious practice was banned by the British Government (Governor General Lord Bentinck) in 1829 consequent to the relentless efforts of Raja Ram Mohan Roy a Social reformer at that time. A large scale of social reform undertaken by Swami Dayanand Saraswathi and Mahatma Gandhi helped in actually putting a stop to the practice. However, the practice is still in vogue in some parts of Rajasthan and Madhya Pradesh. In light of these incidents, the Government of India enacted the Commission of Sati (Prevention) Act, 1987 (Act 3 of 1988).
9 Ibn Battuta was a Moroccan explorer of Berber descent. He is known for his extensive travels, accounts of which were published in the “Rihla” (lit. "Journey"); He became acquainted with the sultan, Muhammad bin Tughluq and served as a Qazi for 6 years during his reign.
10 As amended Dowry Prohibition Act, 1984 with the Dowry Prohibition Rules.
11 As amended by the Immoral Traffic Prevention (Amendment) Act, 2012.
12 The Commission of Sati Prevention Act, 1987 was added to the statute book under pressure from women’s organisations and other progressive activists, following Roop Kanwar’s Sati in Deorala village. Frontline, Vol. 21, Issue, 5thFeb.28 Mar 12, 2004). Retrieved from http://www.hinduonnet.com/fline/fl2105/stories/20040312002504600.htm. (The Practice of Sati still being reported in some of the villages of Rajasthan and Bihar. Three bail applications are being disposed in this case, namely Deena Lal v. State of Rajasthan S.B. Cr Misc. Bail Appl. No. 3181/87, Kalyan Singh and Ors v. State of Rajasthan S.B. Cr. Misc. Bail Appl. No 3247/87 and Madan Singh v. State of Rajasthan S.B. Cr Misc Bail Appl. No. 2878. All the aforesaid three bail applications relate to FIR No. 108/87 which were lodged in relation to one Roop Kanwar having committed sati along with her deceased husband Mal Singh on September 4, 1987.)
13 The recent debate on ‘sati’ following Charan Shah’s immolation on 11th November 1999 in Satpura village, located in Uttar Pradesh’s Mahoba district illustrates this attitude very well.
14 Universal’s Legal General Knowledge, (Universal Law Publishing Co, New Delhi, 3rd Edition, 2010), p.86 para 2.
15 Dr. Ramesh: ‘ Cruelty as Compoundable Offence - A Critique’, Cri.LJ 2006, p.205 para 3.
16 Dr. J.S. Singh: ‘ The Dowry Prohibition Act, 1961: Retrospect and Prospect’, Nyayadeep, Vol IX Issue 2 April 2008, p. 157.
17 A Research Study on the Use and Misuse of Section 498A of the Indian Penal Code - Study Summary (2005), conducted by the Centre for Social Research, p.2.
18 wwwJegalservicemdia.com/article/179-498-(A)-A-Critical-Analysis-html
19 Dr. Sobharam Sharma: ‘ Legal Terrorism in India: Need to change the Law’, Cri LJ 2011, p.373.
20 Sushil Kumar Sharma v. Union of India &Ors. A.I.R. 2005 SC 3100.
21 Daud Mohammad Aga v. State, 1995 Cri L.J. 2947 (Bom.)
22 The Universal Declaration of Human Rights (UDHR) opens with an accretion of the equal inalienable rights of all members of the human family to inherent dignity and the recognition of the aspiration of the common people for a world that is free from experiences of barbarious acts which have outraged the conscience human kinds.
23 The Convention on Elimination of All Forms of Discrimination against Women (CEDAW), which was adopted by the General Assembly of the United Nations in the year 1979, is the first international convention that comprehensively underscores rights of women. The significance of CEDAW is that it presents an opportunity and challenge to use the law to women’s advantage, to broaden the way in which we perceive the law and its possibilities in terms of gender violence. The CEDAW protects women from discriminatory practices against them. The main purpose is to treat woman first as ‘human being’ and then as ‘woman’.
24 It works closely with CEDAW and UDHR. It declares 25th November is celebrated as “International day for the Elimination of Violence Against women”.
25 Beijing Platform of Action, 1995 paragraph 124(a), (d), (l) and (p). The Beijing platform of Action on women-1995 commits the Governments around the world to take action to address violence against women. In its reports, it emphasized the importance of reliable statistical data in understanding violence against women and recommended that work be done to: Promote research, collect data and compile statistics, especially concerning domestic violence relating to the prevalence of different forms of violence against women and encourage research into the causes, nature, and seriousness and redress violence against women.
26 The Domestic Violence Act, 2005 was passed by the Parliament with recourse to Article 253 of the Constitution, which confers on the Parliament the power to make the Laws in pursuance of international treaties, conventions, etc. The Domestic Violence Act, 2005 is in conformity with the UN Model Legislation on domestic violence that provides comprehensive guidelines for State in drafting legislation on domestic violence.
27 A.I.R. 2010 SC 3363.
28 Joy Sarker: A Research Proposal for Doctrinal Research on ‘Cruelty against Married Women and the Legal Framework in India with special reference to Indian Penal Code, 1860: A Critical Analysis’, Submitted to Hidayatullah National Law University, Raipur, Chhattisgarh, p.1.
29 Derret, J.D.M: ‘ A critique on Modern Hindu Law’, (N.M Tripathi Private Limited, Bombay, 1970), p.287.
30 1991 SCC (Cri) 394; 1989 Supp (2) SCC 680.
31 K.D.Gaur, ‘ Text book on the Indian Penal Code’, (Universal Publishers, New Delhi, 4th Edition 2009), Pp.513514.
32 Dr. Paras Diwan: ‘ Law relating to Dowry, Dowry deaths, bride burning, Rape and related offences’, (Universal Law publishing Co Pvt. Ltd, 1997 Edition) p.13.
33 Supra.
34 (1946) Tra LR 224 (FB). (Travancore)
35 The Hindu Widows, Remarriage Act, 1856 was now repealed by the Another Act of 1856. [Prafulla C. Pant: Law of Marriage, Divorce and Other Matrimonial Disputes, Orient Publishing Company, 3rd Edition, 2004, at p.3.]
36 Earlier, Legislation was provided in Mysore in 1933 and the Sindh Province in 1946.
37 The Dowry Prohibition (Bihar Amendment) Act, 1975; the Dowry Prohibition (West Bengal Amendment) Act, 1975; the Dowry Prohibition (Orissa Amendment) Act, 1976; the Dowry Prohibition (Himachal Pradesh Amendment) Act, 1976; the Dowry Prohibition (Punjab Amendment) Act, 1976. Most of these statutes provide for enhanced punishment for dowry offences: one or two years imprisonment or fine of Rs. 5,000.
38 To be included in Section 6.
39 (1995) 6 SCC 219: 1995 SCC (Cri) 1090.
40 AIR 1982 P&H 372 (FB) at p.388.
41 Kunju Moideen v. Syed Mohammed; AIR 1986 Ker 48.
42 Dr. Paras Diwan: ‘Law relating to Dowry, Dowry deaths, bride burning, Rape and related offences’, (Universal Law publishing Co Pvt. Ltd, 1997 Edition) p.53.
43 S.6. Dowry to be for the benefit of the wife or her heirs - (1) Where any dowry is received by any person other than the woman in connection with whose marriage it is given, that person shall transfer it to the woman- (a) If the dowry was received before marriage, within three months after the date of marriage, or (b) If the dowry was received at the time of or after marriage, within three months after the date of its receipt, or (c) If the dowry was received when the woman was a minor, within three months after she has attained the age of eighteen years. And pending such transfer shall hold it in trust for the benefit of the woman. (2) If any person fails to transfer any property as required by sub-section (1) within the time limit specified therefor, or as required by sub-section (3), he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extended to two years or with fine which shall not be less than five thousand rupees, but which may extend to ten thousand rupees or with both. (3) Where the woman entitled to any property under sub-section (1) dies before receiving it, the heirs of the woman shall be entitled to claim it from the person holding it for the time being. Provided that where such woman dies within seven years of her marriage, otherwise than due to natural causes, such property shall, - (a) If she has no children, be transferred to her parents, or (b) If she has children, be transferred to such children and pending such transfer, be held in trust for such children. (3A) Where a person convicted under sub-section (2) for failure to transfer any property as required by sub-section (1) or sub-section (3) has not, before his conviction under that sub section, transferred such property to the woman entitled thereto or, as the case may be her heirs, parents or children] the court shall, in addition to awarding punishment under that sub section, direct , by order in writing that such person shall transfer the property to such woman or, as the case may be, her heirs, parents or children within such period as may be specified in the order, and if such person fails to comply with the direction within the period so specified, an amount equal to the value of the property may be recovered from him as if it were a fine imposed by such court and paid to such woman or, as the case may be, her heirs, parents or children. (4) Nothing contained in this section shall effect the provisions of Section 3 or Section 4.
44 S.5: Agreement for giving or taking dowry to be void. - Any agreement for the giving or taking dowry shall be void.
45 AIR 1985 SC 628; (1985) 2 SCC 370; 1985 SCC (Cri) 180.
46 Supra note 67.
47 Id.
48 Supra note 67.
49 Supra note 72.
50 Supra note 67.
51 Rule 2 (3).
52 Rule 2 (4).
53 Section 107 IPC.
54 (1992) 2 SCC 474.
55 Supra Note 65.
56 Supra Note 66.
57 AIR 1962 Pat 343.
58 AIR 1975 Ker 129.
59 1979 Crilj 493 (P&H).
60 Supra note 67.
61 Supra note 72.
62 Supra note 67.
63 1985 Crilj 888.
64 Section 8 of the Amending Act, 1984.
65 Section 42: Arrest on refusal to give name and residence.
66 Section 8A. Burden of proof in certain cases. This provision was added by the Dowry Prohibition (Amendment) Act, 1986.
67 The Dowry Prohibition Act, 1961 S.2, Explanation 1.
68 Mamta Rao, Law relating to women and children, (Eastern Book Company, Lucknow, 2nd Edition, 2008), P.116.
69 Id, Pp.125-126.
70 AIR 2005 SC 2375: (2005) 4 SCC 565: 2005 SCC (Cri) 1163.
71 Id.
72 Ratanlal and Dhirajlal: Indian Penal Code, Wadhwa & Co., Nagpur, 2002.
73 See Note: Only the High Court can permit Compounding of this offence under its inherent powers-S.482.
74 Schedule 1 of the CrPC, 1973.
75 Section 198A, CrPC. (S.198A, mandates a Court not to take cognizance of an offence punishable u/s.498A of the IPC except upon a Police report of facts that constitute the offence or upon a complaint made by the aggrieved wife or by her father, mother, brother, sister, her father’s or mother’s brother or sister, or, with the leave of the Court, by any other person related to herby blood, marriage, or adoption.)
76 Prof. T. Bhattacharya: The Indian Penal Code, 5th Edition, 2007, p. 724.
77 See Note: if hurt is caused to the woman, a case of causing hurt or grievous hurt can also be registered u/s 324 or 326 of the IPC respectively, depending on the gravity of the offence. If the woman is kept locked in her house, a case of wrongful confinement can also be registered u/s 342 of the IPC. If the woman is prevented from going out of her house, the case of wrongful restraint can also be registered u/s. 341 of the IPC. The case can be registered under these Sections in addition to Section 498A, IPC.
78 Prasana v. Dhanalakshmi 1981 Cri LJ 1829 Mad.
79 Vasantha Tulsiram Boyar v. State of Maharashtra, 1987 Cri LJ 901 (Bom.).
80 Narottam Singh v. State of Punjab, AIR 1978 SC 1542.
81 Charu Ualikhan & Jyothika Karla “ Married, but not legally wed ” 1st Edition, 2011, p.41.
82 O.P Mishra’s “Law relating to Women and Child” Second Edition 2003, p.11. 41 a) Wilful conduct of husband: The term ‘wilful conduct’ has not been defined in the Indian Penal Code. Webster’s Dictionary defines the ‘wilful’ as governed by one’s own will. Generally ‘wilful’ means: (a) Obstinate, (b) Refractory, (c) Way ward, (d) Intentional and (e) Self willed.
83 U. Sovetha v. State, AIR 2009 SC (Supp) 1451; (2009) 3 Cri LJ 2974 (SC); (2009) 6 SCC 757.
84 2002 Cri LJ 2818; AIR 2002 SC 2078; 2002 (1) HLR 685 (HP) (DB).
85 Reema Aggarwal v. Anupam & Others; AIR 2004 SC 1418, 2004 Crilj 892 (SC): (2004) 3SCC 199.
86 Supra note 116.
87 Supra note 116.
88 (2005) Cri LJ 2935 (Ker.).
89 2012 Crilj 65 (Bom).
90 Supra note 115.
91 (2009) 10 SCC 604: (2009) 161 DLT 739.
92 Article 20(2) of Constitution of India prohibits double jeopardy i.e. no person can be prosecuted and punished for the same offence more than once.
93 1994 Cri LJ 3472 (P&H).
94 AIR 1954 SC 321.
95 (1987) 3 Crimes (AP) 471.
96 Inserted by Act 46 of 1983 Section 7.
97 Indian Express, August 3, 1987. State v. Bijay, (Unreported Judgment).
98 1985 Cri.LJ 242 MP.
99 (1998) Cri.LJ 4496.
100 1996 CriLJ 3103.
101 AIR 1988 SC 121 Para 9; (1988) 1 SCC 105.
102 2003 Crilj 2028 (SC).
103 Supra Note 31.
104 Satish Kumar Sharma v. State of Haryana, AIR 2009 SC 2180; (2009) 12 SCC 191.
105 Supra note 38.
106 Supra note 66.
107 AIR 1989 SC 1661. Brij Lal v. Premchand and another.
108 Prem Dass v. State of H.P., 1993 Cri LJ 707 (H.P).
109 1992 Cri LJ 1017 (Cal).
110 2000 Cri LJ 4355 (Mad).
111 (1986 Crilj 1510 Del.).
112 Supra Note 131.
113 Supra note 131.
114 Supra note 129.
115 Inserted by Act 43 of 1986, S.12.
116 Through the Amendment in S.174, CrPC was added by Act 46 of 1983 sub-section (3) was substituted that reads: When (i) the case involves suicide by woman within seven years of her marriage; or (ii) the case relates to the death of a woman within seven years of her marriage in any circumstances raising a reasonable suspicion that some other person committed offence in relation to such woman; or (iii) the case relates to the death of woman within seven years of her marriage and any relative of the woman has made the request in this behalf; or (iv) there is any doubt regarding the cause of death; or (v) the Police officer for any other reason considers it expedient so to do, he shall, subject to such rules as state Government may prescribe in this behalf forward the body, with a view to its being examined, to the nearest civil surgeon, or other qualified medical man appointed in this behalf by the state Government, if the state of weather and distance admit of its being so forwarded without risk of such putrefaction on the road as would on the road as would render such examination useless.
117 AIR 1986 SC 250; [ State (Delhi Admn.) v. Laxman Kumar ].
118 AIR 1991 SC (1226) 1230.
119 AIR 2003 SC 809.
120 Section 113B, Evidence Act states that if it is shown that soon before the death of a woman such woman has been subjected to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person has caused the dowry death under Section 304B of the Indian Penal Code.
121 AIR 2005 SC 3546: 2005 Cri LJ 4137.
122 1991 Crilj 268 (MP).
123 AIR 1989 SC 378; 1989 Cri LJ 809.
124 Supra note 139.
125 (1991) 3 SCC 1: 1991 SCC (Cri) 513.
126 (2000) 5 SCC 207.
127 Rishi Kumar v. State of Haryana, 1997 Cri LJ 196.
128 Savitri Devi v. Ramesh Chand, 2003 (3) Crimes 100 (Delhi); II (2003) DMC 328.
129 Pawan Kumar v. State of Haryana, (1998) 3 SCC 309: 1998 SCC (Cri) 740: AIR 1998 SC 958.
130 Suman, Nalwa and Hari Dev Kohli: ‘ Law relating to Dowry, Dowry death, Cruelty to Women & Domestic Violence’, New Delhi: Universal Publishers Co. 2011 Edition, p.125.
131 AIR 1991 SC 1142; 1991 SCC (Cri) 990.
132 1995 Cri LJ 368 (Del).
133 1992 Cri LJ 1444 (All).
134 1992 Crilj 111 (Bom). Also see Krishnan Lal v. Union of India, 1994 Crilj 3472 (P&H); Balakrishna Panduranga Moghe v. State, 1998 Crilj 4496 (Bom.)
135 Padmaben Patil v. State of Gujarath (1991) 1 SCC 144.
136 Supra note 173.
137 The appellant husband was sentenced to 7 years rigorous imprisonment with a fine of Rs.500 for dowry death under Section 304B and for 2 years rigorous imprisonment and fine of Rs. 200, under Section 498A, IPC for cruelty.
138 See Commentary under Section 306, IPC of K.D. Gaur, ‘Text book on the Indian Penal Code’, Universal Publishers, New Delhi, 4th Edition 2009, p.528.
139 Supra note 166.
140 Nihar Bala Banerjee v. State of West Bengal, 1989 Crilj (NOC) (Cal).
141 1989 Cri LJ 2330 (AP).
142 Ibid, 2333.
143 Supra note 173.
144 1993 Cri LJ 134(Cal).
145 Ibid. [148] Supra note 115.
146 Satish Kumar Batra v. State of Haryana, 2009 SC 2180. (2009) 12 SCC 191).
147 Dr. Paras Diwan: ‘Law relating to Dowry, Dowry deaths, bride burning, Rape and related offences’1997 Edition, Universal Law publishing Co Pvt. Ltd, p.15.
148 Mamta Rao, ‘ Law relating to women and children’, 2nd Edition, 2008, P.105.
149 Supra note 72.
150 Supra.
151 Indian Penal Code, Section 323.
152 Ibid, Section 325, IPC.
153 Ibid, Section 376, IPC.
154 Ibid, Section 509, IPC.
155 Ibid.
156 Ibid.
157 Mamta Rao, ‘ Law relating to women and children’, (Eastern Book Company, Lucknow, 2nd Edition, 2008), P.170.
158 AIR 2007 SC 1118.
159 (1987) 4 SCC 183.
160 2008 (1) RCR (Civil) 366 (Madras).
161 2012 (1) CriLJ (Raj.) 839.
162 2009 (2) RCR (Criminal) 909 (Rajasthan).
163 2008 (104) RD 305.
164 (2011) 3 SCC 650.
165 II (2011) DMC 250.
166 2002 (4) ALD 881.
167 AIR 2005 SC 986.
168 1996 (2) SCC 549.
169 2009 (5) RCR (Criminal) 343 (Kerala).
170 International Covenant on Civil and Political Rights, adopted Dec. 19, 1966, 999 U.N.T.S. 171, 6 I.L.M. 171 (entered into force Mar. 23, 1976) UDHR.
171 India ratified this convention on July 9th 1993.
172 Shreyansh Chourasia: Domestic Violence: A Sheer purgatory for women, Nyayadeep, Vol. X, Issue 1, jan.2009, at p.112-113.
173 Ram Ahuja, “Indian Social System”, 2001, at p.216. (Originally retrieved from Dr. Sukanta K.Nanda “ Law relating to the Women and Children ”, the Law House Publishers, Bhubaneswar, Orissa.)
174 Id.
175 (1790), 1 Hag Con, 35.
176 Id.
177 Supra note 253.
178 The Indian High Courts have recently followed the decisions both in Collins case and William’s case and has upheld these views as to legal cruelty, (example case law: Dastane v. Dastane, AIR 1975 SC 1534, as will be discussed later part of the thesis).
179 (1810), 1 Hag Con, 453.
180 Dr. Paras Diwan: ‘ Family Law’, 9th Edition, 2009, p.163.
181 (1966) 2 All ER 257.
182 (1947) AC 484 (488).
183 (1964) P 152, 158.
184 Cooper v. Cooper, (1954) 2 All ER 415.
185 Ivens v. Ivens, (1954) 3 All ER 446.
186 (1947) 1 ALL E.R 319.
187 Supra Note 252.
188 (1952) AC 584.
189 AIR 1961 Punj 125.
190 AIR 1994 SC 710; (1994) 1 SCC 337.
191 AIR 1967 Bom. 80.
192 AIR 1962 Orissa 50.
193 AIR 1979 All 316.
194 Sulekha vs. Kamala kantha. AIR 1980 Cal 370.
195 Kamala Bhai vs. Ratnavelu, AIR 1965 Mad 88.
196 AIR 1987 Del 52.
197 AIR 1961 Punj 520.
198 (1969) 87 CWN 502.
199 AIR 1979 MP 40. (This case was decided under the Special Marriage Act, 1954).
200 Kaushalya vs. Masat Ram, AIR 1981 HP 63.
201 Laloo vs. Bachi, AIR 1986 Raj 49, Rani Devi vs. Hasan Lal, AIR 1988 (P&H).
202 Dr. Paras Diwan & Piyush Diwan, ‘ Hindu Law ’, pp.733-734.
203 (1801) 161 ER 581.
204 (1953) 3 All ER 769.
205 Id.
206 In Praveen Mehta vs. Inderjeet Mehta, reported in AIR 2002 SC 2582, the Supreme Court has observed that mental cruelty is a state of mind and feeling, therefore, a matter of inference and inference has to be drawn on the facts and circumstances taken cumulatively.
207 Lakshmi Maruthi Hara Gopal v. P. Seshu Kumari 2004 (2) HLR 498.
208 (1963) 2 All ER 994.
209 ‘Legal cruelty’ was explained in ‘Rayden on Divorce’ and referred to at length with approval in Sarvana Perumal vs. Sasikala Perumal (reported in ILR 1969 Mad 845), where it was held that the concept of legal cruelty involves a conduct of such a nature as to have caused damage to life, limb or health or to give rise to reasonable apprehension of such danger. (Retrieved from Mamta Rao: ‘ Law relating to women and children’, Eastern Book Company, Second Edition, 2008, p.212).
210 Kiran Mandal v. Mohini Mandal, AIR 1989 Punjab & Haryana 310.
211 Flavia Agens: ‘ Marriage, Divorce, and Matrimonial Litigation’; (Family Law Vol. II, Oxford University Press, New Delhi, 1st Edition, 2011), p.35.
212 Gollins vs. Gollins, (1963) 2 All ER 966 (HL).
213 V.K Dewan: ‘ Cruelty and offences against husbands’, (Asia Law House, Hyderabad, 2nd Edition, 2009), p.130.
214 Supra.
215 Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511.
216 The shorter Oxford Dictionary defines “Cruelty” as “the quality of being cruel”; disposition of inflicting suffering; delight in or indifference to another’s pain; mercilessness; hard-heartedness. The term “mental cruelty” has been defined in the Black’s Law Dictionary [8th Edition, 2004] as, “mental cruelty -as a ground for divorce, one spouse’s course of conduct (not involving actual violence) that crates such anguish that it endangers the life, physical health or mental health of the other spouse.
217 English Cases- Thomas v. Thomas,[(1947) 1 All E.R. 582 at p. 585], Le Brocq v. Le Brocq, [(1964) 3 All E.R. 464 at p. 465, 402], American cases- Hybertson v Hybertson, ,[(1998) 582 N.W. 2d 402, Donaldson v.Donaldson, ,[(1917) 31 Idaho 180, 170 at p. 94], Canadian cases- Chouinard v. Chouinard, 10 D.L.R. (3d) 263; Knoll v. Knoll, 10 D.L.R. (3d) 199, Luther v. Luther, [(19780 5 R.F.L (2d) 285, 26 N.S.R. (2d) 232, 40 A.P.R. Australian cases- La Ravere v. La Ravere, [4 FLR 1]
218 Supra note 252.
219 Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 67-72 (1976).
220 505 U.S. 833 (1992).
221 Supra Note. 279.
222 Ibid, p.256.
223 II (2002) DMC 279 Raj.
224 AIR 1984 Del 291.
225 It was held that ‘f drunkenness leads to harassment or mental torture of the other spouse, it may amount to cruelty.
226 Baker v. Baker, (1955) 1 WLR 1011 , Hall v. Hall, (1962) 1 WLR 1246.
227 Gangadharan vs. Madhukar, AIR 1988 Ker 244.
228 I (2007) DMC 211 Del.
229 I (2007) DMC 492 P&H.
230 I (2007) DMC 460 Gau.
231 Kaslefsky vs. Kaslefsky, (1950) All ER 398.
232 AIR 1986 P&H 253.
233 II (2008) DMC 278 Mad.
234 I (2005) DMC 96 P&H.
235 AIR 1999 Kntk 64.
236 Section 23 (1) (a) of the Hindu Marriage Act, 1955 forbids the petitioner in any way taking advantage of his own wrong, while seeking relief on the ground that his wife is guilty of cruelty etc.
237 II (2006) DMC 553 AP; AIR 1999 AP 316.
238 1992 Crilj 111.
239 2002(3) Supreme 168.
240 Umawanthi v. Arjun Dev; 1 (1996) DMC 519, AIR 1995 P&H 312.
241 Supra note 139.
242 1 (1996) DMC 598.
243 AIR 2002 Raj 169.
244 AIR 2007 NOC 2494 AP.
245 2005 (3) CCC 542 Delhi.
246 Monica v. Swaran; 2001 (2) HLR 136 (Gau.).
247 Harbhajan Singh Monga v. Amarjeet Kaur, AIR 1986 MP 41.
248 AIR 1980 Kant. 8.
249 1990 (1) DMC 290 (M.P).
250 AIR 1973 Del 200.
251 Shanthi Devi v, Raghav Prakash: 11 (1985) DMC 85; AIR 1986 Raj 13.
252 II (2005) DMC 707 AP.
253 Supra note 311.
254 (2000) DMC 552.
255 Satvir Singh v. State of Punjab; 2001 (8) SCC 633.
256 2006 (1) Crimes 172 (Bom.).
257 2005 (1) Crimes 478 (A.P).
258 2005 (3) Crimes 796 (All.).
259 1992 Cri LJ 2472.
260 2006 (4) CCC 750.
261 A.P Rangarao v. Vijayalakshmi; (1990) 1 DMC 367 (Mad).
262 (1982) 1 DMC 93 (MP).
263 Supra 299.
264 AIR 1980 Del. 213.
265 1989 (1) CCC 139 (Raj.).
266 Rulia Singh v. Kartarao; [1 (1990) DMC 521].
267 Supra note 277.
268 AIR 2007 SC 1426; I (2007) DMC 325 SC. Supra note.
269 1996 (3) CCC 238 (A.P).
270 AIR 1999 P&H 16.
271 ILR (2011) V DELHI 488; 2011 (122) DRJ 439; FAO 439/2003 & Cross Objections No.1788/2003 (Delhi High Court on 18/02/2011). Retrieved from http://indiankanoon.org/doc/71417016/.
272 Rup Lal vs. Kartaro, AIR 1970 J&K 158. Reliance was placed on Walsham v. Walsham, (1949) 1 All ER 774. and Jamieson (1952) 1 All ER 875.
273 Rajinder Bhardwaj vs. Anitha Sharma; AIR 1993 Delhi 135.
274 Seran v. Pyli, AIR 1959 Ker 75.
275 Pinakin Mahipatray Rawal vs. State of Gujarath, 2013 AIR (SCW) 619; 2013 (3) MLJ (Crilj) 700.
276 AIR 2007 Mad 462 (NOC).
277 AIR 1985 All 253. Supra Note.
278 The said decision was severely criticized by certain senior members of the bar including Senior Counsel, Mrs. Indira Jaising and Mrs. Flavia Agnes. The said decision was also criticized by several social activists including the likes of Dr. Ranjana Kumari, Director of the Centre for Social Research (CSR).
279 AIR 2007 Del 118.
280 Prof.G.B.Reddy: Women and the Law, (Gogia Law Agency, Hyderabad, 3rd Edition, 2000), p.10.
281 Dr. Paras Diwan: Family Law, (Allahabad Law Agency, Delhi, 9th Edition, 2009), p.2.
282 Bombay Prevention of the Hindu Bigamous Marriage Act, 1946 and Bombay Hindu Divorce Act, 1947.
283 However, this task proved so sensitive that reforms in Hindu Law actually took place in between 1955-56 in the form of four separate legislations Hindu Marriage Act, 1955; Hindu Succession Act, 1956; Hindu Minority and Guardianship Act, 1956; Hindu Adoptions and Maintenance Act, 1956.
284 Dr. Sukanta K. Nanda: ‘ Law relating to the women and children’; The Law House Publishers, Bhubaneswar, Orissa.
285 Sections 10 and 13 of the Hindu Marriage Act, 1955, Sections 23 and 27 of the Special Marriage Act, 1954, Section 34 of the Parsi Marriage and Divorce Act, 1936 and clause (x) of Section 10 the (Indian) Divorce Act, 1869.
286 (1867) 11 MIA 551 Moonshee Buzloor Ruheem v. Shumsoonissa Begum; of Dr. M.A. Quershi, “ Muslim Law ”, 2nd Edition, 2002, p.68.
287 (1890) ILR 13 ALL.120, (also in Tekait Manmohini Jemadai v. Basantha Kumar Singh 15 (1901) ILR 28 Cal. 750).
288 Yamuna Bhai and Narayan Jagannath Bhidle v. Narayan Moreswar Pendse; (1876) ILR 8 All 126 and Dular Koer v. Dwarakanath Misser; (1907) ILR 34 Cal 97).
289 O.P. Tewari: ‘Cruelty against husbands by wives and its remedies’ (Allahabad Law Agency, Faridabad (Haryana), 2007 Edition), p.98.
290 Jayna Kothari: “Domestic Violence: The need for a new law” from Lawyer’s Collective, March 2001, pp.25-26.
291 Mamta Rao: ‘ Law relating to women and children’, (Eastern Book Company, Second Edition, 2008), p.168.
292 U/s. 10(1) r/w Section 13(1) (ia) of the Hindu Marriage Act, 1955.
293 AIR 1970 Bom 312.
294 Supra note 299.
295 Supra 299.
296 Supra note 436. [300] Russell v. Russell (1897) AC 395.
297 Supra note 299.
298 1978 HLT 594.
299 AIR 1984 413 (FB).
300 S.23: Decree in Proceedings. S.23 (2) provides that ‘before proceeding to grant any relief under the HMA, it shall be the duty of the court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties.’
301 Dr. Nishi Purohit: ‘ The Principles of Mohammedan Law’, (Orient Publishing Company, Allahabad. 2nd edn 1998), p.105
302 Dr. R.K. Sinha- ‘ Muslim Law’, (Central Law Agency, Allahabad, 5th Edition. 2003), p.96.
303 Asaf A. Fyzee- ‘ Outlines of Muhammadan Law’, (Oxford University Press, New Delhi, 9th impression 2005), p.169.
304 Mary Sonia Zachariah v. Union of India, II (1995) DMC 27.
305 Compendium of Islamic Laws-2001, Part-1; All India Muslim Personal Law Board’s Urdu book, ‘Majmu a-e- Qawanin-e- Islami.
306 Abbas Ali v. Rabia Bibi, 1951 ALJ 346.
307 PLD 1958 Lah 59.
308 Hamid Hussain v. Kabra Begum, AIR 1952 All 145.
309 Ashmabai v. Umar, AIR 1941 Sind 23.
310 Fakhruddin v. Hamadan, AIR 1953 All 571.
311 Begum Zahra v. Md. Ishaq, PLD 1955 Sind 378.
312 Abbas Ali v. Rabia Bibi, 1951 ALJ 346.
313 Umat ul Hafiz v. Tabib Husain, AIR 1945 Lah 56.
314 Sofia v. Zaheer, AIR 1933 Oudh 15.
315 (Citation needed) suit no 161/05/1993, Delhi HC Retrieved from Dr. Paras Diwan- ‘ Muslim Law in Modern India’, Allahabad Law Agency, Faridabad (Haryana) 9th Edition. 2005, p.98.
316 AIR 1987 SC 1103.
317 Dr. Paras Diwan- ‘ Muslim Law in Modern India’, (Allahabad Law Agency, Faridabad (Haryana) 9th Edition. 2005), p.99.
318 Anis Begum v. I. Istafa AIR 1933 All 634; cf: Dr. M.A. Qureshi - ‘Muslim Law ’, (Central Law Publications, Allahabad, 3rd Edition. 2007), p.109.
319 AIR 1960 All 684.
320 Zubaidaa v. Sardar Shah, AIR 1943 Lah. 310.
321 Dr. R.K. Sinha- Muslim Law, (Central Law Agency, Allahabad. 5th edn. 2003), p.103,
322 Dr. M.A. Qureshi- Muslim Law, (Central Law Publications, Allahabad, 3rd edn. 2007), p.110.
323 AIR 1945 Lah 56; cf: Dr. M.A. Qureshi- Muslim Law, (Central Law Publications, Allahabad., 3rd edn. 2007), p.110,
324 Dr. M.A. Qureshi- Muslim Law, (Central Law Publications, Allahabad, 3rd edn. 2007), p.110.
325 AIR 1943 Lah 310.
326 AIR 1944 All 23.
327 Ashmabai v. Umer, AIR 1941 Sind 23.
328 AIR 1945 Lah 56.
329 Id 56.
330 AIR 1999 Gau 28.
331 2003 (3) Crimes 221 (J&k).
332 As Section 10 (1) (x) [The Indian Divorce Act, 1869, Section 10 (1), substituted by the Indian Divorce (Amendment) Act, 2001 vide Section 5.]
333 Section 10 (2).
334 The Provision of the earlier section of the Act said that a wife can seek divorce on the grounds (i) that the husband has changed his religion and has married again, (ii) that the husband has been guilty of ---- (a) incestuous adultery, or (b) bigamy with adultery, or (c) marriage with another woman with adultery, or (d) adultery coupled with cruelty, or (e) adultery coupled with desertion without reasonable cause for a period of at least two years, or (f) rape, sodomy or bestiality.
335 V.K.Dewan: Cruelty and Offences against husbands, (Asia Law house, Hyderabad, 2nd Edition, 2010-11), pp. 107-108.
336 Jessy Disslva vs. State (1955), Citation needed.
337 (1968) Mad Lj 289.
338 AIR 1989 Cal 1.
339 (1990) 1 Ker.LT 130.
340 AIR 1997 Bom 349.
341 1980 Bom.CR 240.
342 AIR 1982 SC 1261.
343 Section 34 of the Act deals with judicial separation and in that provision all the grounds of divorce are enumerated to be regarded as grounds of judicial separation. Section 36 of the Act provides for the restitution of conjugal rights.
344 Section 2(4) of the Act, 1936 defines “Grievous hurt” to mean - (a) Emasculation, (b) Permanent privation of the sight of either eye, (c) Permanent privation of hearing of either ear, (d) Privation of any member or joint (e) Destruction or permanent impairing of the powers of any member or joint, (f) Permanent disfiguration of the head or face, or (g) Any hurt which endangers life.
345 Clause (e) of Section 32 lays down that the defendant has since the marriage voluntarily caused grievous hurt to the plaintiff or has infected the plaintiff with venereal disease or where the defendant is the husband has compelled the wife to submit herself for prostitution; Provided that divorce shall not be granted on these grounds, if the suit has been filed more than two years: (i) After the infliction of the grievous hurt, or (ii) After the plaintiff came to know of the infection or (iii) After the last act of compulsory prostitution.
346 Supra note 299.
347 AIR 1973 Del. 200.
348 Id.
349 Cowasjee Nusserwanji v. Shehra Cowasjee, (1973) 39 Bom. L.R 1138.
350 AIR 1984 Bom 75, 80.
351 Supra note 299.
352 Sections 22 and 23 of the Act deals with judicial separation provides for the restitution of conjugal rights, respectively, while the relief of divorce is granted under the grounds specified in 27 of the Act.
353 The remedy for judicial separation as well as divorce is available to the persons married according to the provisions of the Special Marriage Act, 1954 under Sections 23 and 27 respectively of the said Act, 1954.
354 Section 18 of the Foreign Marriage Act, 1969 provides for ‘matrimonial relief in respect of foreign marriages’.
355 Maria Linda v. Ashley Joseph, AIR 1993 Bom 110.
356 Supra 472.
357 In Hindu Marriage Act, 1955 the petitioner should prove the adultery of the other spouse.
358 Section.497: Adultery: - whoever has sexual intercourse with a person who is whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty, of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such cases the wife shall not be punishable as an abettor.
359 Dr. Sukanta K. Nanda: ‘ Breakdown theory of divorce’ retrieved from ‘ Law relating to the women and Children ’, at p. 199. The Law House Publishers, Bhubaneswar, Orissa.
360 Anantha v. Ramchander, 2009 (2) HLR 259 (Cal.).
361 AIR 1985 SC 935.
362 Supra note 367.
363 Supra 311.
364 AIR 2003 All. 51.
365 AIR 2008 SC 3093.
366 Gaurav Nagpal v. Sumedha Nagpal, AIR 2009 SC 9.
367 Jessica Kaur: ‘Irretrievable breakdown of marriage in India as basis of divorce: Need for reformation in personal laws’ (Indian Journal of Legal Philosophy, Vol.2, Issue 3, September 2014), p.326.
368 Section 203, IPC provides that whoever knowing or having reason to believe that an offence has been committed, gives any information respecting that offence which he knows or believes to be false with imprisonment which may extend to two years or with fine or with both.
369 Section 209, IPC deals with dishonestly making false claim in Court is punishable with imprisonment which may extend to two years and shall also be liable to fine.
370 Section 182, IPC: False information with intent to cause public servant, to use his lawful power to the injury of another person Whoever gives to any public servant any information which he knows or believes to be false intending there by to cause or knowing it to be likely that he will thereby cause, such public servant- (a) To do or omit anything which such public servant ought not to do or omit, if the true state of facts respecting which such information is given were known by him, or (b) To use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
371 Daulat Ram v. State of Punjab, AIR 1962 SC 1206; 1962 Cri. LJ 286 (SC).
372 Manaharlal Singh v. Yogesh Kumar Kanhailal, (1998) India Judicial Reports 15 (Guj) 28.
373 Section 211, IPC: False charge of offence made with intent to injure Whoever, with intent to cause injury to any person, institutes or causes to be instituted any criminal proceeding against that person or falsely charges any person with having committed an offence, knowing that there is no just or lawful ground for such proceeding or charge against that person, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both; And if such criminal proceeding be instituted on a false charge of an offence punishable with death, imprisonment for life, or imprisonment for seven years or upwards, shall be punishable with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
374 Jitendra v. State of U.P, 2000 Cri. LJ 3087 (All); the accused was falsely implicated and convicted for offences under IPC. The Court directed the authorities to register a case against the prosecutrix and take necessary action. Rubin Roy Choudary v. State, 1998 Cri. LJ 1699 (Cal), order taking cognizance of offence was held to be proper. The office bearers of an institute hatched a plot to bring about expulsion of the complainant and his wife, prima facie on false basis.
375 AIR 1964 SC 1173.
376 Bala Prasad v. State of Rajasthan, AIR 1952 Raj.142.
377 Santhosh Singh v. Izhar Hussein, AIR 1973 SC 2190.
378 Shiv Kumar Prasad Singh v. State of Bihar, 1984 Cri. LJ 1417 (Pat).
379 Food Inspector v. Ch. Qadir Wani, 1996 Cri. LJ 1618 (J&K).
380 Bhagavan Singh v. Harmukh, (1906) 29 All 137.
381 Surjya Hariani, (1901) 6 CWN 295.
382 A.I.R 2016 (NOC) 364 Bom 1.
383 Whenever any person causes a Police officer to arrest another person, if it appears to the Magistrate by whom the case is heard that there was no sufficient ground for causing such arrest, the Magistrate may award such compensation, not exceeding one thousand rupees, to be paid by the person so causing the arrest to the person so arrested, for his loss of time and expenses in the matter, as the magistrate thinks fit. (1) In such cases, if more persons than one are arrested, the magistrate may, in like manner, award to each of them such compensation, not exceeding one thousand rupees as such Magistrate thinks fit. (2) All compensation awarded under this Section may be recovered as if it were a fine, and, if it cannot be so recovered the person by whom it is payable shall be sentenced to simple imprisonment for such term not exceeding thirty days as the Magistrate directs, unless such sum is sooner paid.
384 Shah Chandulal, 1980 Cri. LJ 514 (Guj.).
385 Pramodh Kumar Padhi v. Goleka, 1986 Cri. LJ 1634 (Ori.).
386 Section 41: When Police may arrest without warrant. (1) Any Police officer may without an order from a magistrate and without a warrant, arrest any person... (a) . (b) Against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied, namely- (i) The Police officer has reason to believe on the basis of such complaint, information or suspicion that such person has committed the said offence; (ii) The Police officer is satisfied that such arrest is necessary.. (a) To prevent such person from committing any further offence; or (b) For proper investigation of the offence; or (c) To prevent such person from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or (d) To prevent such person from making any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade him from disclosing such facts to the Court or to the Police officer; or (e) As unless such person is arrested, his presence in the Court, whenever required cannot be ensured, and the Police officer shall record while making such arrest, his reasons in writing. Provided that a Police officer shall in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.
387 Section 41A: Notice of appearance before Police officer (1) The Police officer shall in all cases, where the arrest of a person is not required under the provisions of the sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made or credible information has been received or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice. (2) Where such a notice is issued to any person, it shall be the duty of the person to comply with the terms of the notice. (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless for reasons to be recorded, the Police officer is of the opinion that he ought to be arrested. Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the Police officer, May, subject to such orders, as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.
388 http://www.indiatogether.org/Manushi/issue 120/dome stic.htm. 26-02-2012, 09:07:19 GMT (Criminal Law in India- Cruelty by husband).
389 Supra note 169.
390 Supra.
391 2002 Cri. LJ 3605.
392 (2003) DMC 37 (DB).
393 Criminal Petition No. 6642 of 2007 (Presented on 22-11-2007); retrieved from http://indiakanoon.org/doc/.
394 Criminal Appeal 206 of 2008; (2008) 3 SCC 574.
395 http://www.thehmdu.com/news/national/sc-upholds-bar-on-automatic-arrests-m-dowry-cases/article9014976.ece August 22, 2016 01:47 IST
396 Supra.
397 Supra Note 38.
398 Committee on Reforms of Criminal System (2003), (under the Chairmanship of Justice V.S. Malimath) Government of India, Ministry of Home Affairs, New Delhi.
399 Law Commission of India, 154th Report (1996); on ‘Code of Criminal Procedure, 1973’ retrieved from www.lawcommossionofindia.nic.in last visited on 10-03-2014, 14.27 A.M.
400 Law Commission of India, 177th Report (2001), on ‘Law relating to Arrest’ retrieved from www.lawcommossionofindia.nic.in last visited on 10-03-2014, 14.30 A.M.
401 Law Commission of India, 237th Report (2011) on “Compounding of (IPC) Offences”; Retrieved from www.lawcommossionofindia.nic.in last visited on 09-03-2013, 4.07 A.M.
402 The recommendation of the Law Commission of India in the 154th Report (regarding Section 498A, IPC) was reiterated in 177th Report (2001).
403 Law Commission of India, 243rd Report (2012) on Section 498A, IPC, para-9.1; Retrieved from www.lawcommossionofindia.nic.in last visited on 09-03-2013, 4.07 A.M.
404 Law Commission of India, 243rd Report (2012) on Section 498A, IPC, para-19.1 to 19.13, pp 43 to 46; Retrieved from www.lawcommossionofindia.nic.in
405 Vide Amendment Made by Act 5 of 2009, w.e.f 31-12-2009.
406 Section 23 (3) of the Hindu Marriage Act, 1955, as well as Section 14 (1) of the Protection of women from Domestic Violence Act, 2005 empower the Magistrate to direct at any stage of proceedings to undergo counselling.
407 In May 2015 the Parliament passed the Repealing and Amending (2nd) Amendment Act 2015 repealing 92 amending acts which were intended to carry out amendments to various major enactments. Two of the repealed amending Acts were the Code of Criminal Procedure (Amendment) Act, 2008 and 2010. In the said repealing Act, Section 4 specifically mentions that this repeal shall not affect any act in which such enactment has been applied, incorporated or referred to, what it means is that the various amendments to various major enactments including the Code of Criminal Procedure doing away with automatic arrests, will not be affected by this Repealing Act of 2015.
408 Crl.M (M) 3875/2003.
409 The newly introduced Section 41 (1) (b) provides that if some material or credible information exists of an accused being involved in a cognizable offence punishable with 7 years imprisonment or less with or without fine, the Police Officer has only to make an arrest, if he is satisfied that such arrest is necessary (i) to prevent such person from committing any further offence, (ii) for proper investigation of the offence; (iii) to prevent such person from causing the evidence of the offence to disappear or tampering with the evidence in any manner; (iv) for preventing such person from making any inducement, threat or promise to a witness to dissuade him from disclosing such facts to the Court or the Police Officer (v) or unless such a person is arrested, he may not appear in the Court when required. This new provision has forestalled any routine arrests simply because a person is said to be involved in a cognizable offence punishable with imprisonment up to 7 years. The arrest is only to be effected if any or all of the five conditions abovementioned are fulfilled. For making or for not making such arrest, the Police Officer has to record his reasons. In contrast to this provision, under Section 41 (1) (ba) such a limitation has not been provided for those cases, where credible information has been received that a person has committed an offence punishable with imprisonment of over 7 years.
410 a new provision, section 41a crpc has been inserted by section 6 of the code of criminal procedure (amendment) act, 2008 (act no. 5 of 2009) which gives powers to a Police Officer to issue a notice directing the person against whom a reasonable complainant has been made or credible information or reasonable suspicion exists to appear before him or at any place that he may specify in the notice where the Police officer is of the opinion that the arrest is not required under the provisions of Section 41 (1) CrPC, but the accused is to comply with the notice and he would not be arrested, if he continues to comply with the terms of the notice. However, where the person fails to comply with the notice, the Police have all powers to arrest him, unless there is some order of the Court granting him bail or staying his arrest.
411 Supra note 482.
412 1981(3) SCC 34.
413 Article 21 of the Constitution says that:” no person shall be deprived of his life or personal liberty except according to the procedure established by law.”
414 1993(3) SCC 4.
415 Supra note 483.
416 AIR 1999 SC 2071, (1994) 4 SCC 690; See also State of Himachal Pradesh v Tara Dutt (2000) 1 SCC 230.
417 Id, (and also in Ramesh v. State of Tamil Nadu, 2005(2) RCR (Criminal) 68: 2005(1) Apex Criminal 537: [2005(3) SCC 507]; Sanapareddy Maheedhar and Another vs. State of Andhra Pradesh and Another, 2008 AIR (SC) 787; 2008 Crilj 1375.
418 AIR 1959 SC 798.
419 AIR 1984 SC 1688; [1986] 68 FJR.98.
420 AIR 1973 SC 908.
421 Lawrence Gomes, “the re-awakening of social consciousness through the Indian Penal Code,” Cri.LJ 2002, p.379.
422 AIR 1997 SC 2465.
423 http://ipc498a.wordpress.com/2008/05/24/sc-explains-the-applicability-of-section-498a-in-a-judgment- 2002/
424 Supra note 140.
425 Supra.
426 (2008) 9 SCC 677; MANU/SC/7957/2008.
427 (2008) 16 SCC 1.
428 2010 (12) SCALE 461. MANU/SC/0973/2010; (2012) 8 SCC 303.
429 Hamida vs. Rashid 2008 1 SCC 474.
430 AIR 1992 SC P.604; 1992 Cri.LJ. 527; 1992 Suppl. (1) SCC 335.
431 Supra note 114.
432 Manju Ram Kalita v.State of Assam, AIR 2009 SC (Supp) 2056.
433 2006 (1) Crimes 738 Chhattisgarh.
434 2005 (10 Supreme 766.
435 The Division Bench of Karnataka High Court in State of Karnataka v. H.S. Ravanasiddappa, 1994 Cri. LJ 2928 held that; Sub-ordinate Criminal Courts of High Court has no power to compound a non-compoundable offence i.e. an offence which does not come within either of the two tables under Section 320 (1) and (2) of the Code. Further, a Division of Rajasthan High Court observed, while referring to the judgments of the Supreme Court in Mahesh Chand v. State of Rajasthan, (AIR 1988 SC 2111) that the powers of the Supreme Court under Article 142 of the Constitution o do complete justice in any matter pending before it, is not restricted by Sections 320, 321, 482 of the Code or all of them together. The said power under Article 142 was not subject to statutory prohibition and in particular, to Section 320 (9) of the Code. The decision in the said case by the Supreme Court, therefore, rested on the plenary jurisdiction under Article 142 of the Constitution.
436 State of Rajasthan v. Gopilal (1992) Cri. LJ 273 (Raj).
437 Supra Note 63.(Relying on this judgment, in J.P. Chourasia v. State, (1994 (3) Crimes 404); allowed the defacto complainant/wife to compound a case under Sections 498A, 406 of IPC, keeping in view of the offence and circumstances under which it was committed. But, it has to be kept in mind that such permission to compound a non-compoundable offence of Section 498A, IPC rests on the plenary power conferred under Article 142 of the Constitution and the sub-ordinate Courts has no such power in compounding under any circumstances).
438 The AP High Court in T. Venkata Lakshmi vs. State of A.P. 1991 Cri LJ 749; the Court pointing-out that the wife cannot be permitted to with-draw the charge-sheet if it is filed by the Police.
439 1993 Cri LJ 3162 (AP).
440 Supra note 140. [AIR 2003 SC 1386; 2003 Cri LJ 2028 (SC); followed in Rajeev Verma v. State of Uttar Pradesh (2004) Cri LJ 2956 (All). The Allahabad High Court also proposed, with convincing reasoning, that S. 498A, be, with a Court’s permission, made a compoundable offence u/s.320 of the CrPC. Similar proposal for reform was also made by the Allahabad High Court in Madhurima Bhargava v. State of Uttar Pradesh (1999) Cri LJ 685 (All). The Delhi High Court also pleaded for such a reform. See, Savitri Devi v. Ramesh Chand & Ors. (2003) Cri LJ 2759 (Del).]
441 2010 SCALE 711.
442 In re: Matter of Matrimonial Disputes, 2011 (102) AIC 9 (All.).
443 Manoj Kumar v.State of Rajasthan (1999) Cri LJ 10 (Raj).
444 Neeta Sanjay Tagade v. Smt.Vimal Sadhasiv Tagade (1999), Cri LJ 3263 (Bom.).
445 Promissory Estoppel, that which arises when there is a promise which promiser should reasonably expect to induce or forbearance of a definite and substantial character on part of the promise, and which does include such action or forbearance and such promise is biding, if injustice can be avoided only by enforcement of promise (Retrieved from P.Ramnatha Ayer’s the Law Lexicon, Concise law Dictionary, 2nd edition, 1997, pgs. 298-299).
446 Madumuri Suryanarayana Raja v. State, 2003 Cri LJ NOC 75 (Kant.); AIR 2002 Kant HCR 3196.
447 (2005) 1 SCC 343, (2005) Cri LJ 646 (SC).
448 Supra.
449 (2006) 1 Kant LJ 577.
450 Supra note 140.
451 AIR 2014 SC 3055; 2014 Indlaw SC 465; 2014 STPL (Web) 481 SC, retrieved from supreme court judgments @www.stpl-india.in
452 [JT 2014 (4) SC 573]; This Court was dealing with a situation where the accused was charged for offence punishable under Section 307, IPC, which is a non- compoundable offence. The parties arrived at a compromise at the stage of recording of evidence. A petition was filed under Section 482 of the Code for quashing of the proceedings in view of the compromise. The High Court refused to quash the proceedings. This Court set aside the High Court’s order and quashed the proceedings in view of the compromise. While doing so, this Court laid down certain guidelines. In Guideline No. (VII), this Court considered a situation where a conviction is recorded by the trial court for offence punishable under Section 307, IPC and the matter is at appellate stage. This Court observed that in such cases, a mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. This Court observed that in such cases where charge is proved under Section 307, IPC and conviction is already recorded of a heinous crime; there was no question of sparing a convict found guilty of such a crime. The observation of this Court must be read obviously in the context of a non-compoundable offence under Section 307, IPC.
453 Supra Note 507.
454 CRL. M.C. 1952/2009, Pronounced on: April 10, 2013 [Criminal Appeal No.1498 of 2014 [Arising out of Special Leave Petition (Crl.) No.8795 of 2012]
455 Supra note 38.
456 Supra note 31.
457 Prof. Ajay Kumar, “ Institution Of Marriage-Judicial Approach ”, All India Reporter, January, p.6,( 2010)
458 Ajay Kumar Singh, “ Dowry Problem In India: Rethinking Anti-Dowry Laws ” Cri. LJ, September p. 256, (2009)
459 http:// www.498a org/legaltorture. html, 20 November 2010.
460 Supra Note 38.
461 Sahoo. H & Pradhan M.R. (2009), Domestic Violence in India: An Empirical analysis, Man in India, 89 (3), pp.303-321. ‘Violence by Intimate Partners’, World Report on Violence and Health, 2002, p.93-101.
462 Kishwar, Madhu (1988), ‘ Rethinking dowry boycotts,’ (In No, 48 (Sep-Oct.1988), Manushi), pp.10-13.
463 The Hindu, English Daily, 06-08-2007, p.10. available at http://www.thehindu.com/news/national/sc-upholds-bar- on-automatic-an'ests-m-dowry-cases/article9014976.ece August 22, 2016 01:47 IST
464 Supra note 469.
465 http://news.rediff.com/report/2009/sep/07/indian-women-okay-with-wife-beating.unicef.htm
466 Supra note 151.
467 Source: http://ncrb.nic.in/ADSI-03.pdf
468 Source: “Shades of courage” women and IPC Section 498A: A study conducted by Tata Institute of Social Sciences (TISS), Mumbai, 1999, p.81, para 1.
469 Indira Jaising: Concern for the dead, condemnation for the living, Workshop on ‘Protection of women from Domestic violence retrieved from ? Retreived from http://www.lawyerscollective.org/updates/8572.html
470 An investigative report by a NGO called Rakshak, The Silent Tears of Shattered Families: The Ugly Reality of Dowry Law. Retrieved from https://www.google.co.in/7gws rd=sslsailent%20tears%20of%20shattered%20families%20rakshak
471 http7/www.timesofindia.mdiatimes.com/India/"Anti-dowry-law-likely-to-be-amended- soon/articleshow/46973943.cms
472 "Centre set to prevent misuse of anti-dowry harassment law" retrieved from http://indiatoday/intoday. in/story/do wry-law-section 498-a-ipc-centre-narendra-modi-nda/1/423362.html last visited on 12-03-2105.
473 Jurisdiction of the Lok Adalats A Lok Adalat shall have jurisdiction to determine and to arrive at a compromise or settlement between the parties to the dispute in respect of (i) any case pending before; or (ii) any matter which is falling within the jurisdiction of and is not brought before, any court for which the Lok Adalat is organised; Provided that the Lok Adalat shall have no jurisdiction in respect of any case or matter relating to an offence not compoundable under any law (Section 19 (5) of the Legal Services Authorities Act, 1987). Cognizance of cases by Lok Adalats Sub-section 3 of Section 20 of the Act, 1987 provides that the Lok Adalat, where in any case referred to in clauses (i) and (ii) of sub-section 5 of Section 19, can dispose of a matter by way of a compromise or settlement between the parties, where as subsection 5 of Section 20 provides that where no award is made by the Lok Adalat, on the ground that no compromise or settlement could be arrived at between the parties, the record of the case shall be returned by it to the court, from which the reference has been received under sub-section (1) of Section 20 for disposal in accordance with law. Compound a non-compoundable offence under Section 482 of the Code According to Section 19 (5) of the Act, it is clear that the LSAs have no jurisdiction, in respect of the cases or matters relating to an offence that are not compoundable under any law. Therefore, to give an effect to the actions of LSAs, it is suggested that the High Court may issue a specific directions to all its sub-ordinate courts to compound the cases of 498A, IPC under Section 482 of the CrPC, invoking the inherent powers of the Court.
474 Madhu Purnima Kishwar: Zealous Reformers, deadly laws, battering stereotypes: (EBSCO Publishing, SAGE publications Private limited, New Delhi, 2008), p.231.
475 Supra 38. www.indiastate.com. Last visited on 7.10.2012.
476 AIR 1983 SC 826.
477 A Report on Protection of Women from Cruelty - A Critical Study on Enforcement of Section 498A of IPC, conducted by Committee for Legal Aid to Poor (CLAP), Cuttack, Odisha, p.54-56.
478 Source: An investigative report by a NGO called Rakshak, The Silent Tears of Shattered Families: The Ugly Reality of Dowry Law. Citation needed.
479 Dr. A. Padmavati: ‘ Rising graph of violence against women - A Dangerous Trend’; [AUJL (5&6) 2012] pp. 78 - 82.
480 S. Nambi: ‘ Marriage, Mental Health and the Indian Legislation’, Indian Journal of Psychiatry, 2005 Jan-Mar; 47(1): p.7.
481 “Need for Justice-dispensation through ADR etc” 18th Law Commission of India; Report No. 222, April 2009 p.10.
482 Supra note 698, p.519.
483. Id. p.520.
484 Law Commission of India; Report No. 222: “Need for Justice-dispensation through ADR etc” (April 2009), p.7.
485 Prof. Badruddin & Anis Ahmed: ‘ Matrimonial Disputes and Role of Family Courts: Need for Application of ADR Mechanism’, NYAYADEEP (NALSA), Vol XI, Issue 2, April 2010, p. 84.
486 Manju Goel: ‘ Successful mediation in Matrimonial Disputes -Approaches, Resources, Strategies & Management’, Part-I, Delhi Mediation Centre http://www.delhimediationcentre.gov.m/articles.htm#partI (Last visited: July 8, 2016).
487 The Bhagavati Committee on National Juridicature (1980) recommended retention and invigoration of Nyaya Panchayats.
488 Section 20 of the Act, 1987 deals with ‘Cognizance of cases by Lok Adalats’.
489 Section 19 of the Act, 1987 deals with ‘Organisation of Lok Adalats’.
490 Inserted by the Legal Services Authorities (Amendment) Act, 2002. (S.22B provides ‘Establishment of Permanent Lok Adalats).
491 Madhusudan Saharay: Text book on Arbitration and Conciliation with ADR, (Universal Law Publishing Co, New Delhi, 3rd Edition, 2015), p.251.
492 2003(1) SCC 49.
493 AIR 2005 SC 3353. 2005(6) SCC 344.
494 (2010) 8 SCC 24.
495 AIR 2008 Kerala 84.
496 1995(1) HLR 472.
497 A.I.R 2009 SC 557.
498 2011(2) JIC 481: 2011 (73) ACC 613.
499 Supra.
500 Supra note 140.
501 Justice Sunil Ambwani, Judge, Allahabad High Court: Speech on ‘ Alternative Dispute Resolution’ (National Judicial Excellence Enhancement Programme (JEEP), National Judicial Academy India, Bhopal, September 2011), p.10.
502 2011 (102) AIC 9 (All.).
503 2006(4) Crimes 43 (Patna).
504 2013 STPL (Web) 152 SC.
505 id.
506 Ojas Gole: ‘ Reducing the burden on Indian Judiciary: Turning to Alternative Dispute resolution’, (International Journal of Scientific Research (IJSR) Volume 3, Issue 3: March 2014), pp.161-162.
507 id.
508 Supra note 729, p.252-253.
509 Supra note 727.
510 ‘ A Report on Protection of Women from Cruelty - A Critical Study on Enforcement of Section 498A of IPC’, conducted by Committee for Legal Aid to Poor (CLAP), Cuttack, Odisha, p.10.
511 Id. at p.6.
512 Dr. Sobharam Sharma: Legal Terrorism in India: Need to change the law, Cri.LJ, Dec.2011, p.374.
513 Supra Note 31.
514 Supra Note 38.
515 Section 156, CrPC provides for Police officer’s power to investigate cognizable case.
516 Section 482 CrPC provides for ‘Saving of inherent powers of High Court’.
517 Kiran Singh: Protection of Innocent Victims of Matrimonial Offences; Cri.LJ (2012), p.248.
518 Dr. Ramesh: Cruelty as Compoundable Offence - A Critique, Cri.LJ (2006), p.208.
519 Supra Note 469.
520 See Section 9 of the Family Courts Act, 1984 and Section 89 and Order 32A of the Code of Civil Procedure, 1908. Further, Section 23 of the Hindu Marriage Act, 1955 focuses on judge’s role in attempting reconciliation. Furthermore, the Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonization mandates of UNCITRAL Model. In order to achieve the objective enshrined in Article 39A of the Constitution of India, the Legal Services Authority Act, 1987 was enacted to provide free and competent legal service to the weaker
521 Section 5 of the Family Courts Act envisages association of social welfare agency and counsellor with the Family Courts.
522 id.
523 The Hindu Succession Act, 1956 recognises some women as female Class-I heirs (Section 6). Further, the Amendment Act, 2005 has placed women an equal footing with men to inherit. In practice, however, women are often prevented from exercising the inheritance rights recognised by statutory law, and customary law remains widely applied in rural areas. In many cases, women give-up their statutory rights to their male family members, pressured by socio-cultural factors, and by their dependence on their kin. Factors like early marriages, and patriarchal residence i.e. the wife is moving into her husband’s family house and denial of property rights in the natal family, due to reason that dowry has been given at the time of marriage etc. make a woman vulnerable to ill- treatment by her husband and his parents. Socio-cultural factors include the idea that it would be ‘shameful’ for woman to claim her rights. Legal rights are effective only to the extent that individuals perceive themselves as entitled to demand these rights, and consider that contribution to the household to be good enough to merit receiving these rights, which does not seem to be happening in the case of women in the Indian socio-legal context.
524 Under the existing law, the matrimonial case can be filed only where the marriage is solemnized or where the respondent resides or where they last resided together. It is pertinent to note that after dispute the wife usually goes to her parental place or if she is a working woman, she may stay at the place where she works and file a 498A, case there which is far away from the accused. This might result in jurisdiction based hardship to the husband. The legislature shall bring an amendment to the Criminal Law, keeping in view the inconsistency caused to the accused in many cases. The Court of justice also must be alert while determining the territorial jurisdiction of the cases pertaining to matrimonial disputes, so that the process of law is not thwarted or stifled and justice is done to the victim of such circumstances.
525 Because, Section 301 (2) CrPC speaks about the consent of the Public Prosecutor to conduct the case through private advocate of the aggrieved at the prosecution side.
526 Section 406, IPC was amended by the Code of Criminal Procedure, 1973 (Act 25 of 2005) by substituting “for two hundred and fifty rupees” as rupees “two thousand rupees”.
527 The amended Section 309, CrPC capped the adjournments permissible in a case at three and therefore suggested that the violators who breached the ceiling should be fined.
528 Rule 2 of the Dowry Prohibition (Maintenance of List of Presents to the Bride and Bridegroom) Rules, 1985 reads as under: 2. Rules in accordance with which lists of presents are to be maintained - (1) The list of presents which are given at the time of the marriage to the bride shall be maintained by the bride. (2) The list of presents which are given at the time of the marriage to the bridegroom shall be maintained by the bridegroom. (3) Every list of presents referred to in Sub-rule (2) (a) shall be prepared at the time of the marriage or as soon as possible after the marriage; (b) shall be in writing; (c) shall contain: (i) a brief description of each present; (ii) the approximate value of the present; (iii) the name of the person who has given the present; and (iv) where the person giving the present is related to the bride or bridegroom, a description of such relationship; (d) shall be signed by both the brides and the bridegroom.
529 Drawn from the observation made by Justice Shiv Narayan Dhingra in Smt. Neera Singh vs. State & Ors ., (2007) DMC 542 - 545; 138 (2007) DLT 152 that ‘in some cases, claims are made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. Time has come that Courts should insist upon disclosing the source of such funds and verification of income from tax returns and Police should insist upon the compliance of the Rules under the Dowry Prohibition Act, 1961 and should not entertain any complaint, if the rules have not been complied with.’
530 This rule is operating successfully in the State of Maharashtra.
531 Dr.Md. Qutubuddin - ‘ Do women need more laws ?’; (Law Profile, Vol..3, Issue 8, August 2012) p.8.
532 Dr.Md. Qutubuddin - ‘ Do women need more laws ?’; (Law Profile, Vol..3, Issue 8, August 2012) p.8.
Comprar ahora
- Citar trabajo
- Bendalam Lavaraju (Autor), 2018, Cruelty against Married Women. A Critical Study, Múnich, GRIN Verlag, https://www.grin.com/document/1654520
