- Government of India - Law Commission498a Legal Terrorism
Reconsider IPC 498a - Legal Terrorism
To oppose rampant misuse of 498a (Dowry Law misuse) by unscrupulous women to extort money and harass their husband's entire extended family. The victims of gender-biased laws of India (498a and domestic violence against women law) and to save your family from this law which has been termed as 'legal terrorism' by Honorable Supreme Court of India.
These are the observations from Law Commission and questionaire is given in the same page below. If you can put your views it would be better, if not you can take from the petition letter.
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 s.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. S.498A 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 s.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 also - Sushil Kumar Sharma v. UOI (2005), the Supreme Court lamented that in many instances, complaints under s.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 s.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 s.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 s.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 s.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 s.498A of IPC together with its related provisions in CrPC. It is pointed out that the sting is not in s.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:
S.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 s.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.
8. There is preponderance of opinion in favour of making the said offence compoundable with the permission of the court. Some States, for e.g., Andhra Pradesh have already made it compoundable. The Supreme Court, in a recent case of --*---, observed that it should be made compoundable. However, there is sharp divergence of views on the point whether it should be made a bailable offence. It is pleaded by some that the offence under s.498A should be made bailable at least with regard to husband’s relations.*Ramgopal v. State of M. P. in SLP (Crl.) No. 6494 of 2010 (Order dt. July 30, 2010.
8.1 Those against compoundability contend that the women especially from the rural areas will be pressurized to enter into an unfair compromise and further the deterrent effect of the provision will be lost.
9. The Commission is of the view that the Section together with its allied CrPC provisions shall not act as an instrument of oppression and counter-harassment and become a tool of indiscreet and arbitrary actions on the part of the Police. The fact that s.498A deals with a family problem and a situation of marital discord unlike the other crimes against society at large, cannot be forgotten. It does not however mean that the Police should not appreciate the grievance of the complainant woman with empathy and understanding or that the Police should play a passive role.
10. S.498A has a lofty social purpose and it should remain on the Statute book to intervene whenever the occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality for abuse or misuse. Misuse by itself cannot be a ground to repeal it or to take away its teeth wholesale.
11. While the Commission is appreciative of the need to discourage unjustified and frivolous complaints and the scourge of over-implication, it is not inclined to take a view that dilutes the efficacy of s.498A to the extent of defeating its purpose especially having regard to the fact that atrocities against women are on the increase. A balanced and holistic view has to be taken on weighing the pros and cons. There is no doubt a need to address the misuse situations and arrive at a rational solution – legislative or otherwise.
12. There is also a need to create awareness of the provisions especially among the poor and illiterate living in rural areas who face quite often the problems of drunken misbehavior and harassment of women folk. More than the women, the men should be apprised of the penal provisions of law protecting the women against harassment at home. The easy access of aggrieved women to the Taluka and District level Legal Service Authorities and/or credible NGOs with professional counsellors should be ensured by appropriate measures. There should be an extensive and well-planned campaign to spread awareness. Presently, the endeavour in this direction is quite minimal. Visits to few villages once in a way by the representatives of LSAs, law students and social workers is the present scenario.
13. There is an all-round view that the lawyers whom the aggrieved women or their relations approach in the first instance should act with a clear sense of responsibility and objectivity and give suitable advice consistent with the real problem diagnosed. Exaggerated and tutored versions and unnecessary implication of husband’s relations should be scrupulously avoided. The correct advice of the legal professionals and the sensitivity of the Police officials dealing with the cases are very important, and if these are in place, undoubtedly, the law will not take a devious course. Unfortunately, there is a strong feeling that some lawyers and police personnel have failed to act and approach the problem in a manner morally and legally expected of them.
14. Thus, the triple problems that have cropped up in the course of implementation of the provision are:(a) the police straightaway rushing to arrest the husband and even his other family members (named in the FIR), (b) tendency to implicate, with little or no justification, the in-laws and other relations residing in the marital home and even outside the home, overtaken by feelings of emotion and vengeance or on account of wrong advice, and (c) lack of professional, sensitive and empathetic approach on the part of the police to the problem of woman under distress.
15. In the context of the issue under consideration, a reference to the provisions of Protection of Women from Domestic Violence Act, 2005 (for short PDV Act) which is an allied and complementary law, is quite apposite. The said Act was enacted with a view to provide for more effective protection of rights of women who are victims of violence of any kind occurring within the family. Those rights are essentially of civil nature with a mix of penal provisions. Section 3 of the Act defines domestic violence in very wide terms. It encompasses the situations set out in the definition of ‘cruelty’ under Section 498A. The Act has devised an elaborate machinery to safeguard the interests of women subjected to domestic violence. The Act enjoins the appointment of Protection Officers who will be under the control and supervision of a Judicial Magistrate of First Class. The said officer shall send a domestic incident report to the Magistrate, the police station and service providers. The Protections 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 Act. The Magistrate is required to hear the application ordinarily within 3 days from the date of its receipt. The Magistrate may at any stage of the proceedings direct the respondent and/or the aggrieved person to undergo counseling with a service provider. ‘Service Providers’ are those who conform to the requirements of Section 10 of the Act. The Magistrate can also secure the services of a welfare expert preferably a woman for the purpose of assisting him. Under Section 18, 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. There are other powers vested in the Magistrate including granting residence orders and monetary reliefs. Section 23 further empowers the Magistrate to pass such interim order as he deems just and proper including an ex-parte order. The breach of protection order by the respondent is regarded as an offence which is cognizable and non-bailable and punishable with imprisonment extending to one year (vide Section 31). By the same Section, the Magistrate is also empowered to frame charges under Section 498A of IPC and/or Dowry Prohibition Act. A Protection Officer who fails or neglects to discharge his duty as per the protection order is liable to be punished with imprisonment (vide Section 33). The provisions of the Act are supplemental to the provisions of any other law in force. A right to file a complaint under Section 498A is specifically preserved under Section 5 of the Act.
15.1 An interplay of the provisions of this Act and the proceedings under s.498A assumes some relevance on two aspects: (1) Seeking Magistrate’s expeditious intervention by way of passing a protective interim order to prevent secondary victimization of a complainant who has lodged FIR under s.498A. (2) Paving the way for the process of counselling under the supervision of Magistrate at the earliest opportunity.
16. With the above analysis and the broad outline of the approach indicated supra, the Commission invites the views of the public/NGOs/institutions/Bar Associations etc. on the following points, before preparing and forwarding to the Government the final report:
1) a) What according to you is ideally expected of Police, on receiving the FIR alleging an offence u/s 498A of IPC? What should be their approach and plan of action?
b) Do you think that justice will be better meted out to the aggrieved woman by the immediate arrest and custodial interrogation of the husband and his relations named in the FIR? Would the objective of s.498A be better served thereby?
2) a) The Supreme Court laid down in D.K. Basu (1996) and other cases that 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. Don’t you agree that this rule applies with greater force in a situation of matrimonial discord and the police are expected to act more discreetly and cautiously before taking the drastic step of arrest?
b) What steps should be taken to check indiscriminate and unwarranted arrests?
3) Do you think that making the offence bailable is the proper solution to the problem? Will it be counter-productive?
4) There is a view point supported by certain observations in the courts’ judgments that before effecting arrest in cases of this nature, the proper course would be to try the process of reconciliation by counselling both sides. In other words, the possibility of exploring reconciliation at the outset should precede punitive measures. Do you agree that the conciliation should be the first step, having regard to the nature and dimension of the problem? If so, how best the conciliation process could be completed with utmost expedition? Should there be a time-limit beyond which the police shall be free to act without waiting for the outcome of conciliation process?
5) Though the Police may tender appropriate advice initially and facilitate reconciliation process, the preponderance of view is that the Police should not get involved in the actual process and their role should be that of observer at that stage? Do you have a different view?
6) a) In the absence of consensus as to mediators, who will be ideally suited to act as mediators/conciliators – the friends or elders known to both the parties or professional counsellors (who may be part of NGOs), lady and men lawyers who volunteer to act in such matters, a Committee of respected/retired persons of the locality or the Legal Services Authority of the District?
b) How to ensure that the officers in charge of police stations can easily identify and contact those who are well suited to conciliate or mediate, especially having regard to the fact that professional and competent counsellors may not be available at all places and any delay in initiating the process will lead to further complications?
7) a) Do you think that on receipt of complaint under S.498A, immediate steps should be taken by the Police to facilitate an application being filed before the Judicial Magistrate under the PDV Act so that the Magistrate can set in motion the process of counselling/conciliation, apart from according interim protection?
b) Should the Police in the meanwhile be left free to arrest the accused without the permission of the Magistrate?
c) Should the investigation be kept in abeyance till the conciliation process initiated by the Magistrate is completed?
8) Do you think that the offence should be made compoundable (with the permission of court)?
Are there any particular reasons not to make it compoundable?
9) Do you consider it just and proper to differentiate the husband from the other accused in providing for bail?
10) a) Do you envisage a better and more extensive role to be played by Legal Services Authorities (LSAs) at Taluka and District levels in relation to s.498A cases and for facilitating amicable settlement? Is there a need for better coordination between LSAs and police stations?
b) Do you think that aggrieved women have easy access to LSAs at the grassroot level and get proper guidance and help from them at the pre-complaint and subsequent stages?
c)Are the Mediation Centres in some States well equipped and better suited to attend to the cases related to S,498-A?
11) What measures do you suggest to spread awareness of the protective penal provisions and civil rights available to women in rural areas especially among the poorer sections of people?
12) Do you have any informations about the number of and conditions in shelter homes which are required to be set up under PDV Act to help the aggrieved women who after lodging the complaint do not wish to stay at marital home or there is none to look after them?
13) What according to you is the main reason for low conviction rate in the prosecutions u/s 498A?
14) (a) Is it desirable to have a Crime Against Women Cell (CWC) in every district to deal exclusively with the crimes such as S.498A? If so, what should be its composition and the qualifications of women police deployed in such a cell?
(b) As the present experience shows, it is likely that wherever a CWC is set up, there may be substantial number of unfilled vacancies and the personnel may not have undergone the requisite training. In this situation, whether it would be advisable to entrust the investigation etc. to CWC to the exclusion of the jurisdictional Police Station?
- 498a Legal Terrorism
Government of India - Law Commission
LAW COMMISSION OF INDIA
Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code
Consultation Paper-cum-Questionnaire regarding Section 498-A of IPC
The police should not resort to over-action in the case when the allegations put by her/them have not yet been proved or there is a discrepancy. It is unjust on the part of police to arrest the person who has come to Police Station to tell his version of the case. Also in many cases the police are hand in glove with the complainant just only to extract money or make some quick money. Nonetheless, it’s being an extortion act by police. It should not be a blind game, which is running at present. The police should never take things for granted, the fundamental rights of a human by coming on early Saturday morning, arrest the whole family members thereby depriving of his basic fundamental to approach court or magistrate. The police do not have the right to torture in this manner by taking loopholes in the law. The police should never act on mere baseless, frivolous allegations basing on just a piece of paper. The law is meant to do justice. Instead of doing justice it is breaking the families, just for going against her will. Even if the complaint is false, the police is presuming guilty until it is proved that we are innocent ( innocence can be proved only after 7 to 15 years or unproved during his life time in few cases who cannot fight thereby depriving of one’s right to family – where as the complainant is enjoying another marriage). Most cases are mere blackmail attempts by the wife or her close relatives when faced with a strained marriage or when she is having an affair before marriage, unscrupulous women to extort money. In most cases 498a complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. This section is non-bailable, non-compoundable and cognizable (register and investigate the complaint, although in practice most of the time arrest happens before investigation). There have been countless instances where, without any investigation, the police have arrested elderly parents, unmarried sisters, pregnant sister-in-laws and even 3 year old children. In these cases unsuspecting family of husband has to go through a lot of mental torture and harassment by the corrupt Indian legal system. A typical case goes on for years and the conviction rate is about 2% only. Some accused parents, sisters and even husbands have committed suicide after time in jail. Hence, the husband, his old parents and relatives should not be arrested without sufficient investigation and the case should be made bailable.
The police has to visit the site of crime first in presence of the complainant and the respondent, if any such thing which is unlawful, the police can act directly on the respondent. If there is no any such thing, the police can act on the case after proper investigation taking into consideration the views put by the complainant and the respondent. The investigation reports should be placed before both of them, if discrepancies are found, then the police can take necessary action.
In no case, justice is done immediate in the current legal system. Immediate arrests or late arrest does not make difference in interrogation, only in genuine 498a cases it would be little help. Custodial interrogation should be done only after mediations are filed. The objective of s.498A can be served only through proper channel; currently it is improper, unjust and biased.
No immediate actions should be taken in cases of family matters. First police should give preference for mediation only; the mediation report has to be taken into consideration by making the parties to submit it in writing. If the mediation fails then police should interrogate. This will save many marriages and families and abuse of law. It’s just only a presumption that immediate arrests give reprieve to the aggrieved woman, wherein actuality the law is playing with the lives of people, mainly the husband – just because he is a man. Gender bias is openly followed everywhere starting from the society to Police to Courts which I have seen in many cases.
Section 41A of the Cr.P.C 1973 Act is stating that the police shall not arrest when one is giving support in investigation. This section should be scrupulously followed by the Police. This has been given in the Bill No. LXXX-C of 2006, the Code of Criminal Procedure (Amendment) Bill, 2008 (As passed by the Rajya Sabha), A Bill further to amend the Code of Criminal Procedure, 1973 or the later one which has been passed.
Memos issued earlier by the respective police departments have to be followed. The memo No. L&O/M6/1315/2002 dated: 06-01-2002, issued earlier issued by the then Commissioner of Police, Sri M.V. Krishna Rao in Andhra Pradesh has to be taken into consideration.
Circulars issued by respective state governments, mainly the one issued by the State Vigilance and Anti Corruption Bureau, Shimla, Himachal Pradesh – Circular No. 02/2011, Sub: Arrest – Amendments to Code of Criminal Procedure 1973 – Need based arrest should be made to follow by every police officer in India. Every state government has to issue such circulars.
Recommendations done by the High Court of Judicature at Allahabad, Court No.46 in Case: - CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010. Petitioner: Re: In the Matter of Matrimonial Disputes vs. Respondent: State of U.P & others.
It is a piece meal measure, if the case is made bailable. No one will run away in hours or days even if one is guilty, he can be caught. But there should be a provision to stop people going out of country in as the law differs from that of India.
What actually the law wants through this case or any case is that punishment should be given if guilty. If not why one should be punished. After all it’s a matter of matrimonial case in which no third party involvement is ever entertained, only thing is that it should be done through mediation by proper mediators, not by the one suggested by either parties but by the police. The conciliation process cannot be time bound. It is not possible to make one’s mind at the outset. It will take its own time. It is not important to put forth the atrocities by the other part that goes to say it is futile to comment retrospective. One has to go on very positively whatever may be the past to make the dispute reach to the solution till last breath. Also one needs to keep cool, wise and prompt. The ultimate success at Mediation is the solution by mutual understanding only. The jury is not concerned with the facts of the allegations and the degree of cruelty on either part.
First the mediation has to be done before the friends or elders known to both the parties. Mediation make sense when mediators are the one who has been there at the time of talks of marriage (In case of arranged marriages, people present at the time of Lagna Partika, talks play a crucial role – before the mediator who brought the parties together). If the elders’ mediation failed or succeed then also a third party mediation should be made compulsorily. It can be by a DLSA or NGO or as suggested by you. Third party mediation report has to be stressed even in cases, if not directed by the Police.
Any NGO or a Government Organisation has the list of counselors. Counsellors list can be made available at every district courts, this will not only help the legal process but also the general public. The government should take responsibility of propagating the message like other schemes. It is the thing that only when people are in good living conditions one can expect less crimes, more development and so on.
If there are strong evidences by which a police can judge that crime has occurred beyond scope of doubt, then one can be sure that this step has to be taken necessarily. Unfit for cases where mediation can be done.
The police can arrest if one is not complying to Section 41 of the Cr.P.C act, where there is a chance that he will abscond or run away or there is strong evidence that one need to be arrested. Also in cases where one can be sure that he has committed such offence and is going to tamper the evidence or he may effect witnesses.
The investigation can be kept in abeyance as all the police and courts are already burdened with innumerable cases. These are the cases which get solved by mediation. No one has done harm except in burning cases directly. Benefit of doubt can be given. This will help stop breaking of families. But not in cases where mediation cannot be afforded.
The offence should be compoundable; otherwise many women who have filed case are going scot free at the cost of husband and their family members. And also the conviction rate is very low of 2%, which indicates the fate of these cases. If compoundable then women who are wrong will fear putting a false case. It can have tremendous effect which will reel out many false cases and the legal procedures and cases pending in the court.
No one is accused until proved. Even husband is on one. The law should not differentiate husband too. The law should not follow legal bias. Everyone has fundamental right.
The LSAs and Police Stations should go together. Only after proper procedure should the matter be referred to LSA’s. Without following the proper procedure for the sake of money or something affiliations or redtapism by politicians should not affect these LSA’s.
It is the aggrieved in any case who should be made to go at the grass root level itself before involving others. This step should be the first step in any case. Thereafter other steps follow. This will not only reduce the number of cases but also eradicate cumbersome legal procedures to everyone.
Two chairs for the mediators and two chairs for the aggrieved and husband and closed room with a fan and sufficient. Also need not mention about stationary, which is sufficient for running a mediation center. Charges can be levied even for such mediation. Nothing comes free in these days.
It is duty of NGO’s and the local LSA’s that can spread the awareness of the protective penal provisions and civil rights. The Government should take active part in regulating the daily television serials to include such things at least in one of the serials of the channel running in a day. Many women watch serials these days in the evenings and nights.
No such cases. I have seen only all false cases of 498a. I can give the list of such cases to the best of my knowledge.
Majority of the cases are fabricated with false evidences, dishonestly making false claim in the courts, false charge of offence made with intent to injure and Defamation. Not only this, we have been seeing cases filed with the motivation
• Legal Extortion – Get-rich-quick-scheme to extort large amounts of money
• Prior Relationship – Wife has a prior relationship, and cannot get out of it. She marries to satisfy her parents, and then misuses the 498a law in order to obtain a divorce
• Adultery – Women who indulge in adultery use 498a as a bargaining tool
• Domination – Wife wants the husband to abandon his parents and siblings, and have total control over his finances and social behavior
• Custody - Deny the father and his family access to their child(ren).
• Fraudulent Marriages - in which the bride (legal provisions for protection
from a daughter-in-law or sister-in-law even in cases where she is abusive)
• Disintegration of families – Due to fear of being implicated in a false 498A case, parents have now started to legally disown their sons before or immediately after marriage. The terror of this law has resulted in the breakup of numerous families.
• Suicides of innocent people – Unable to bear the harassment and the humiliation they suffer after being charged in a false criminal case, many people, including aged senior citizens, have been committing suicides.
It is necessary to have such cells as crime has increased in every sector of the country. A CWC should have sufficient women police as that required by the area and basing on the number of crimes.
It is natural. When you have work for 100 persons and you have 20 persons who can do that work out of 30 persons, naturally you give to the others. It should not be the case that only women police should investigate or act on a crime. A crime is a crime which one should stop.
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