Over the last decade, misuse of Section 498A under Indian Penal Code has become common knowledge. Men Rights Activists as well as Indian Judiciary has taken explicit note of the on-going practise of filing false cases of cruelty against the husband and his relatives, particularly parents, brothers and sisters. Section 498A is a provision of criminal law and therefore, the impact of a false complaint is very serious – the husband can be imprisoned, along with his elderly parents, he has to face social scrutiny, and in many cases, men also report losing jobs and becoming unemployed. The expenditure on lawyers and everyday harassment is not even accounted for. Thus, given the high stakes, disgruntled wives often lodge false complaints against the husband and in-laws. This has become a mode of exacting revenge, rather than ensuring justice and safety of the woman.
Although no relief has come for men from legislature, Indian judiciary has significantly stepped up to the issue and made various changes in application of the law so that misuse can be prevented as far as possible. Here, it is important to understand that majority of cases filed under Section 498A are genuine and Indian society still has a long way to go in terms of ensuring women safety, even inside her own home. The rampant practise of Dowry in our society also leads to a necessity to have a law as provided under Section 498A. Thus, the legislature has still not amended the law to reflect prevention of misuse.
Section 498A provides that a wife facing mental or physical cruelty at hands of her husband or his relatives can lodge an FIR against him. This also includes harassment due to dowry demands. FIR can be lodged by any person related to the wife, or by a civil servant as well. The FIR can be lodged within three years of the occurrence (the limitation period of three years can be condoned by the court in cases where it deems fit).
“498A. 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 purpose of this section, “cruelty” means—
(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 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 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.
Following various judgments, the procedure under section 498A has been relaxed. Prevention of misuse of sec-498A is achieved through following procedural changes:
1) Immediate arrest of the named offenders (husband, or his relatives) is not mandatory. The Police Authorities receiving a complaint alleging cruelty are not required to register an FIR immediately. They can conduct a preliminary enquiry to establish the true facts.
2) In most cases, the complaint is forwarded to the local Women Cell, where the couple and their family undergo mandatory counselling sessions to resolve their matrimonial issues. The purpose of the counselling sessions is to save the marriage through peaceful negotiation. Both the parties are given equal time and space to voice their personal issues.
3) After the counselling sessions, which may continue for six months or more, the parties are asked to reach a settlement. In case no settlement can be reached, the wife who originally filed a complaint is asked to decide whether she wants to register an FIR under section 498A, or initiate divorce proceedings in the civil court.
4) After registration of an FIR, the court will take cognizance of the same on the basis of factual report submitted by the Police. Thus, the grant of bail will depend on the investigation report so filed, and not merely on the FIR lodged by the wife.
5) Through various judgments, the courts have clarified that Section 498A is meant to work as a “Shield” for the aggrieved wife, and not as a “Weapon” to attack her husband and in-laws. Therefore, if the allegations made by wife are proved false, the court can order payment of compensation as well as damages to the husband and his family.
6) In case the charge under section 498A is proved false, the husband can use the fact to establish a claim of cruelty under section 13 of Hindu Marriage Act (and corresponding Acts) to initiate divorce proceedings in the civil court. A major benefit here would be that the husband may receive significant relaxation in payment of alimony and maintenance, since his wife is the defaulter.
7) The Police officers undertaking investigation must follow the procedure under section 41(1)(b)(ii) CrPC and follow its mandate completely:
“Section 41: When Police May Arrest Without Warrant:
41(1) (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:--
(relevant)
(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:
2[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.]
8) In case the Police Officer doesn’t comply with the instructions under section 41(1)(b)(ii) CrPC, departmental inquiry can be initiated against him/her.
Apart from above stated changes, the family members of the husband can request appearance through video conferencing also. Nowadays, Family welfare bodies also help in counselling of the couple and their families. They actively assist the police force to prevent misuse of the provision.