Domestic violence perpetrated by a husband or his immediate family is not unheard of in Indian households. Statistics say that every third woman has faced or is actively facing domestic violence. One form of domestic violence recognized under Criminal Law in India is Cruelty whether mental or physical, perpetrated on the wife by her husband or his relatives. This is provided for under Section 498A of the Indian Penal Code. It is not limited to only cruelty and also provides protection to wife against harassment due to dowry demands, or failure to pay dowry (the word dowry here means any unlawful demand for any property or valuable security).
“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.”
Section 498A is imposes criminal liability on the husband or his relatives. This provision is a diversion from the social principle of keeping matrimonial issues out of the scope of criminal law jurisdiction. Thus, we must understand that the law of our country sees Cruelty against Wife as a serious offence. For this reason, Section 498A is made a non-bailable offence. Thus, a wife (or a widow living with her in-laws) facing physical or mental cruelty, or facing harassment due to dowry demands can register an FIR against her husband or his relatives. She simply needs to approach a near-by Police Station or call on 100 number to seek immediate help from Police Authorities in her area.
An offence under sec. 498A is a non-bailable offence and therefore, it depends on case-to-case basis whether bail will be granted by the Court. Usually, Section 498A is invoked by women to register FIR against husband and his family members responsible for physical cruelty. But women must know that Cruelty also includes mental cruelty, such as not providing adequate care or expenses, denying proper meals of the day, harassing the child to inflict mental torture on the wife, demanding dowry or abusing due to lack of dowry payment or non-fulfilment of demands in lieu of dowry.
Section 498A is not a provision to seek divorce from husband, although a charge proven under section 498A can lead to a successful claim for divorce under other acts such as Hindu Marriage Act, or Special Marriage Act. Unlike the aforementioned acts, Section 498A is a secular provision and can be used by any wife, irrespective of the religion she belongs to.
Following rampant misuse of the law against cruelty, the registration of FIR and arrest of the husband/in-laws has been altered to prevent innocent husbands from legal harassment. The Police Authorities after receiving a complaint of cruelty against wife undertake a preliminary investigation, which includes proper medical examination of the wife in case of physical cruelty. However, many women don’t know about this procedure. In case where she complaints of mental cruelty due to physical harassment towards her child, then the Police officer is duty bound to conduct a proper medical examination of the child as well.
Further, in order to prevent rampant misuse, arrangement has been made under women cells to provide counselling to the couples as well as their families. This counselling is undertaken by the designated police officers who record the statements of both parties to establish facts. During the counselling, the complainant (that is the wife) is again asked to decide if she wants to register an FIR against her husband, or go back to her matrimonial house, or initiate divorce proceedings. The counsellors can also help the aggrieved wife to get proper maintenance from her husband or his family. A complaint under section 498A can be filed within three years of the said incident. However, the court is free to condone the delay in appropriate cases. It is also important to note that the Court will not initiate a case against the offendors except on a report by the police official(s) dealing with the case.