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Report No. 237

Annuxur.- 2

Law Commission of India

Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code

1. Keeping in view the representations received from various quarters and observations made by the Supreme Court and the High Courts, the Home Ministry of the Government of India requested the Law Commission of India to consider whether any amendments to Section 498A of Indian Penal Code or other measures are necessary to check the alleged misuse of the said provision especially by way of over-implication.

2. Section 498-A was introduced in the year 1983 to protect married women from being subjected to cruelty by the husband or his relatives. A punishment extending to 3 years and fine has been prescribed. The expression 'cruelty' has been defined in wide terms so as to include inflicting physical or mental harm to the body or health of the woman and indulging in acts of harassment with a view to coerce her or her relations to meet any unlawful demand for any property or valuable security. Harassment for dowry falls within the sweep of latter limb of the section. Creating a situation driving the woman to commit suicide is also one of the ingredients of 'cruelty'. The offence under Section 498A is cognizable, non-compoundable and non-bailable.

3. In a recent case of Preeti Gupta v. State of Jharkhand, the Supreme Court observed that a serious relook of the provision is warranted by the Legislature. "It is a matter of common knowledge that exaggerated versions of the incidents are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases". The Court took note of the common tendency to implicate husband and all his immediate relations.

In an earlier case als.- Sushil Kumar Sharma v. UOI (2005), the Supreme Court lamented that in many instances, complaints under Section 498A were being filed with an oblique motive to wreck personal vendetta. "It may therefore become necessary for the Legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with", it was observed. It was also observed that "by misuse of the provision, a new legal terrorism can be unleashed".

4. The factum of over-implication is borne out by the statistical data of the cases under Section 498A. Such implication of the relatives of husband was found to be unjustified in a large number of decided cases. While so, it appears that the women especially from the poor strata of the society living in rural areas rarely take resort to the provision.

5. The conviction rate in respect of the cases under Section 498A is quite low. It is learnt that on account of subsequent events such as amicable settlement, the complainant women do not evince interest in taking the prosecution to its logical conclusion.

6. The arguments for relieving the rigour of Section 498A by suitable amendments (which find support from the observations in the Court judgments and Justice Malimath Committee's report on Reforms of Criminal Justice System) are: Once a complaint (FIR) is lodged with the Police under Section 498A/406 IPC, it becomes an easy tool in the hands of the Police to arrest or threaten to arrest the husband and other relatives named in the FIR without even considering the intrinsic worth of the allegations and making a preliminary investigation.

When the members of a family are arrested and sent to jail without even the immediate prospect of bail, the chances of amicable re-conciliation or salvaging the marriage, will be lost once and for all. The possibility of reconciliation, it is pointed out, cannot be ruled out and it should be fully explored. The imminent arrest by the Police will thus be counter-productive. The long and protracted criminal trials lead to acrimony and bitterness in the relationship among the kith and kin of the family.

Pragmatic realities have to be taken into consideration while dealing with matrimonial matters with due regard to the fact that it is a sensitive family problem which shall not be allowed to be aggravated by over-zealous/callous actions on the part of the Police by taking advantage of the harsh provisions of Section 498A of IPC together with its related provisions in CrPC. It is pointed out that the sting is not in Section 498A as such, but in the provisions of CrPC making the offence non-compoundable and non-bailable.

7. The arguments, on the other hand, in support of maintaining the status quo are briefly: Section 498A and other legislations like Protection of Women from Domestic Violence Act have been specifically enacted to protect a vulnerable section of the society who have been the victims of cruelty and harassment. The social purpose behind it will be lost if the rigour of the provision is diluted. The abuse or misuse of law is not peculiar to this provision.

The misuse can however be curtailed within the existing framework of law. For instance, the Ministry of Home Affairs can issue 'advisories' to State Governments to avoid unnecessary arrests and to strictly observe the procedures laid down in the law governing arrests. The power to arrest should only be exercised after a reasonable satisfaction is reached as to the bona fides of a complaint and the complicity of those against whom accusations are made.

Further, the first recourse should be to effect conciliation and mediation between the warring spouses and the recourse to filing of a chargesheet under Section 498A shall be had only in cases where such efforts fail and there appears to be a prima facie case. Counselling of parties should be done by professionally qualified counsellors and not by the Police.

7.1 These views have been echoed among others by the Ministry of Women and Child Development.

7.2 Further, it is pointed out that a married woman ventures to go to the Police station to make a complaint against her husband and other close relations only out of despair and being left with no other remedy against cruelty and harassment. In such a situation, the existing law should be allowed to take its own course rather than over-reacting to the misuse in some cases.

7.3 There is also a view expressed that when once the offending family members get the scent of the complaint, there may be further torture of the complainant and her life and liberty may be endangered if the Police do not act swiftly and sternly. It is contended that in the wake of ever increasing crimes leading to unnatural deaths of women in marital homes, any dilution of Section 498-A is not warranted. Secondly, during the long- drawn process of mediation also, she is vulnerable to threats and torture. Such situations too need to be taken care of.

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