“Every dowry demand is a death threat.”
According to the National Crime Records Bureau’s report (2021data), 13554 incidences of dowry deaths were reported under Section 304 B of the Indian Penal Code (IPC) and 428278 incidences of cruelty by husband or his relatives under Section 498 A of IPC. It is evident that it will take too long to cure the malady of crime against women in India and the insertion of Section 498A of Indian Penal Code, 1860, and the Protection of Women from Domestic Violence Act, 2005, is an attempt towards safeguarding and providing protection to the women from violence of all kinds. It is one of the major anti-dowry laws in India.
Section 498A was introduced in the year 1983 after seeing the rampant nature and prevalence of reported cases for cruelty against women. The insertion of Section 498A IPC is a penal provision together with allied provisions in the Code of Civil Procedure are so designed as to impart an element of deterrence. However, instances of false and exaggerated allegations and implication of several relatives of the husband and his family have been pouring in a rampant manner leading to a widespread acknowledgment of these beneficiary laws as a means to exact revenge by disgruntled wives.
It 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”.
Section 498-A: Husband or relative of husband of a woman subjecting her to cruelty — Whoever, being the husband or the 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 and shall also be liable to fine.
Explanation. — For the purposes of this section, “cruelty” means—
(a) “Cruelty” means wilful conduct under certain circumstances, viz.
when It Is:-
(i) Likely to drive the woman to commit suicide, or
(ii) Cause grave injury or danger to life, limb or health (including “physical” as well as “mental” health).
(b) “Harassment” whether physical or mental relating to any unlawful demand for any property or valuable security-‘dowry’ in common parlance.
(c) “Mental Cruelty: There is no elaboration of the term “mental cruelty under the section itself but over the period of time some understanding of the same has been developed through case law as propounded by the Apex Court and various High Courts, which are as under:-
- “Repetitive” taunting of the bride by calling her ‘ugly’.
- Forcing to leave the matrimonial home.
- Refusal to send her to parent house.
- Non return/deprive of stridhan. Besides, act of non-return of stridhan by bridegroom and his relatives is also covered by Sec. 406 IPC.
Cruelty can be done for anything and at any time.
A complaint in dowry case of cruelty to a married women can made by women herself, her father, mother, brother, sister or any other relation by blood (Sec. 198-A Cr. P.C.)
Ingredients of 498A
- The woman must be married
- She must be subjected to cruelty or harassment and
- Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband
In the case of Rosamma Kurian vs State of Kerala 2014 the court held that the usual and common discord in any matrimonial home cannot amount to cruelty within the meaning of section 498A of IPC.
In another case of Pachipala Laxmaiah vs State of Andhra Pradesh 2001, In which a married woman committed suicide by burning herself after pouring kerosene. In her dying declaration she said that her husband used to beat her after taking liquor and he used to borrow money from the villagers for the purpose. The court said that this amounted to cruelty within the section making the accused liable to be punished.
Meaning of cruelty and difference between 304B and 498A of IPC
Cruelty is a common essential in offences under both the sections 304B and 498A of IPC held in Kaliyaperumal v. State of Tamil Nadu[1]case. The two sections are distinct offences and persons acquitted under section 304B for the offence of dowry death can be convicted of an offence under sec.498A of IPC. The meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well. Under section 498-A of IPC cruelty by itself amounts to an offence whereas under section 304-B the offence is of dowry death and the death must have occurred during the course of seven years of marriage. But no such period is mentioned in section 498-A (Goyal, 2011).
- In the case of Inder Raj Malik v. Sunita Malik[2], it was held that the word ‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a view to coerce her or any related persons to meet any unlawful demand for any property or any valuable security is cruelty.
Kinds of cruelty covered under this section include following:
(a) Cruelty by vexatious litigation
(b) Cruelty by deprivation and wasteful habits
(c) Cruelty by persistent demand
(d) Cruelty by extra-marital relations
(e) Harassment for non-dowry demand
(f) Cruelty by non-acceptance of baby girl
(g) Cruelty by false attacks on chastity
(h) Taking away children
The presumption of cruelty within the meaning of section 113-A, Evidence Act,1872 also arose making the husband guilty of abetment of suicide within the meaning of section 306 where the husband had illicit relationship with another woman and used to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of section 498-A.
Mens rea: The requirement of proving that soon before her death the woman was subjected to cruelty or harassment by her husband or any relation of her husband for or in connection with any demand of dowry clearly shows that the legislation has imbibed the necessary mens rea for the offence of dowry death.
Actus reus : The Supreme Court has observed that in-laws of a deceased cannot be roped in only on the ground of being the close relatives of the husband of the deceased. Some overt act must be attributed to them in the incident and the same should also be proved beyond reasonable doubt.
In the case of Ram Saran Varshney vs State of UP 2016 : The allegation was that the husband, parents-in-laws and sisters-in-laws were involved in committing the offence. It was informed to the Court that the sisters are married, and living independently in different places and they had no concern with the relationship of the complainant and the other accused. In view of this and the fact that they had visited the matrimonial house only on some occasions, the case against them was quashed.
Non-explanation by the husband of the injuries on the victim -The Supreme Court endorsed the view of the High Court that the absence of the explanation by the husband for the ante-mortem injuries found on the victim was due to his harassment for meeting the unlawful demand from the wife, although he slept with her in the same room before she consumed poison. Therefore, the accused was found guilty for an offence u/s 498A.
Burden of proof- The onus is on the prosecution to show the ingredients of the offence. In this case, while the ingredients were not proved, the explanation offered by the accused and his wife was short tempered and was not happy due to poor financial condition. Conviction was set aside.
Cruelty by deprivation and wasteful habits- The husband disregarded his dury to provide his wife and infant child the elementary means of sustenance. He deliberately and irresponsibly squandered his earnings on gambling and other vices and thereby starved his wife and infant child to death. This was held to be amounting to cruelty u/s. 498 A. held in the case of state of Karnataka vs Moorthy 2002.
Calling wife “barren woman”– It was alleged that, as the deceased did not beget children for a period of three years after the marriage, accused harassed the deceased by calling her “barren woman” It was held that mere commenting that deceased was not begetting children, dose not amount to subjecting the deceased to cruelty within the meaning of s. 498A IPC as held in the case of State of AP vs Kalidindi 2012
Cruelty by persistent demand : Cruelty or harassment need not be physical. Mental torture may amount to cruelty in a given situation. The bride, in this case, was repeatedly taunted, maltreated and mentally tortured right from the next day of marriage. There was a quarrel between her and the husband only a day before her death. This led the bride to commit suicide. Presumption as to dowry death u/s. 113B, Evidence Act became applicable. There was no rebuttal from the side of the accused husband.
Cognizance on Police Report : Section 198A of Code of Criminal procedure permits a Court to take cognizance of offence punishable us. 498A upon a police report of facts which constitute offence. Explanation to s. 2(d) makes it clear that a report made by a police officer after investigation of a non-cognizable offence is to be treated as a complaint and the officer by whom such a report is made is to be deemed to be the complainant. Thus if a complaint contains allegations about commission of offence u/s. 498A of the IPC which is a cognizable offence, apart from allegations about the commission of offence u/s. 494 of the IPC, the Court can take cognizance thereof even on a police report. No fetters can be put on the police preventing them from investigating the complaint which alleges offence us. 498A of the IPC and also offence u/s. 494 of the IPC.
Section 113-A: Presumption as to abetment of suicide by a married woman — When the question is whether the commission of suicide by a woman 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 had 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 498-A of the Indian Penal Code (45 of 1860).
Cruelty by extra marital affairs : Case Laxman Ram Mane vs State of Maharashtra 2010 – it is held that an illicit relationship of a married man with another woman would clearly amount to cruelty within the meaning of section 498 A . Even assuming for a moment that this did not amount to cruelty within the meaning of section 498 A , it could still be used as a piece of evidence of harassment and misbehaviour of the appellant towards the deceased.
In the case of Suman vs Puran Chand 2013-The act of the husband in bringing a concubine to his house, living with her as husband and wife , and having sexual relations in the presence of his wife , amounts to cruelty within the meaning of section 498 A of IPC.
Explanation. Clause (a).- -In R.P. Bidlan v. State of Maharashtra it was held that us. 498A, Explanation (a), for proof of cruelty it is necessary to show a reasonable nexus between 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.
Meaning of the term ‘relative of the husband’-whether include a ‘girlfriend’ or “concubine’?
An offence in terms of section 498A is committed by the persons specified therein. They have to be the ‘husband’ or his ‘relative. Either the husband of the woman or his relative must be subjected to her to cruelty within the aforementioned provision. 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. It principally includes a person related by blood, marriage or adoption. By no stretch of imagination, a girlfriend 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 by either blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise. Same was held in the case of Ranjana Gopal Rao Tharot vs. State of Maharashtra 2008.
Is S. 498A applicable to cruelty against “legally wedded wife” only ?
A person who enters into marital arrangement cannot be allowed to take shelter behind the smoke screen of contention that since there was no valid marriage the question of dowry does not arise. The word “husband” would apply to a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerces her in any manner or for any purposes enumerated in ss, 304B and 498A, whatever be the legitimacy of the marriage itself. A person contracting second marriage during the subsistence of the earlier marriage can be charged uss. 304B and 498A. The Court pressed into service the Heyden’s rule of construction which means purposive construction and mischief rule.
In the case of Vasant Bhagwat Patil vs State of Maharashtra 2012, it was held that Section 498A of the Indian Penal Code refers to word ‘woman’ and not to ‘wife and by the said section protection was contemplated to married woman and not to the legally wedded wife only. Where accused and deceased 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, cannot be accepted.”
Explanation Clause (b):-Where the deceased bride was subjected to cruelty and harassment and demand of dowry and she was burnt to death within two years of her marriage, her earlier statements about her state of affairs to her father and neighbours and her sister were held to be admissible under Cl. (b) of the Explanation to s. 498A and conviction of the accused u/s. 498A was held to be proper.
Whether Section 498-A creates double jeopardy?
In Inder Raj Malik and others v. Mrs. Sumita Malik[3], it was contended that this section is ultra vires Article 14 and Article 20 (2) of the Constitution. There is the Dowry Prohibition Act which also deals with similar types of cases; therefore, both statutes together create a situation commonly known as double jeopardy. But Delhi High Court negatives this contention and held that this section does not create a situation for double jeopardy. Section 498-A is distinguishable from section 4 of the Dowry Prohibition Act because in the latter mere demand of dowry is punishable and the existence of an element of cruelty is not necessary, whereas section 498-A deals with aggravated form of the offence. It 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 prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and this section.
Misuse of Section 498-A
Though all the provisions discussed above are made for the protection of the women against matrimonial cruelty but gradually in some cases these are being grossly misused by some estranged wives for their personal interest who have used it as an instrument to humiliate and disgrace their husbands and his relatives in some cases.
Section 498-A is non-bailable, non-compoundable and cognizable offence, due to which there is the direct arrest of a husband and his relative by the police on the report of a wife without any investigation. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.
There are many cases in which Court after observing the misuse of these provisions has intervened affirmatively and redressed the grievance of the victimized husband and his relatives.
In Jasbir Kaur v. State of Haryana[4], the Court observed, “It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”
In Kanaraj v. State of Punjab[5], the apex court observed, “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 and they cannot be held responsible for mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”
Karnataka High Court, in the case of State v. Srikanth[6], observed, “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 not right on the part of the police to include the whole of the family as accused”
Supreme Court, In Mohd. Hoshan v. State of A.P.[7] observed, “Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”
[1] 2004 (9) SCC 157; 2004 SCC(Cr) 1417; 2003 AIR(SC) 3828.
[2] 1986 (2) Crimes 435; 1986 (92) CRLJ 1510; 1986 RLR 220
[3] Ibid.
[4] (1990)2 Rec Cri R 243
[5] 2000 CriLJ 2993
[6] 2002 CriLJ 3605
[7] 2002 CriLJ 4124
