Report No. 243
[refer para 1.1of the Report]
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 498-A 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 498-A 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 498-A 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 498-A. 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 498-A 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 498-A 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 498-A/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 498-A of IPC together with its related provisions in CrPC. It is pointed out that the sting is not in Section 498-A as such, but in the provisions of CrPC making the offence non-compoundable and non- bailable.