Misuse of Section 498-A IPC and Dowry Prohibition Act Vis-à-vis

Human Rights: Need for Statutory changes

By

Prof (Dr) Mukund Sarda×

1. Increasing number of false cases of Dowry harassment against the

husbands is now become so serious that the Government of India is
proposing to amend Sec 498A to make the offence as
‘compoundable’.1 It may also be necessary to make it ‘bailable’.
There is no denial of the fact that woman require special protection
in enjoying the human rights being enforced as integral part of
Fundamental Rights guaranteed in Part III of the Constitution of
India. Sec 498A was enacted by the legislature to provide special
safeguards to protect their rights. There is no denial of the fact that
they were denied of their rightful and just place and position in
society for centuries.2 Sec 498A was enacted with the object to
prevent torture to women by her husband or his relatives in
connection with the demand for dowry, as the dowry harassment
was on the side of increase and required a strong penal measure to
deal with it very effectively.
2. Sec 498A provides that the husband or relatives of the husband
subjecting the 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 to Section 498A deals with what constitutes ‘cruelty’.
It states that any willful conduct which is of such a nature as is

×
Principal & Dean, Faculty of Law, New Law College, Bharati Vidya Peeth University, Pune.
1
Times of India dated 22/3/2015 at P.1.
2
See Lawrence Gomes ‘Section 498A of IPC. It implication and viabilities in our present day daily life and
socio-economic system’ 2004 Cr LJ Journal Section P.11.

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 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 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. In other words, practice of cruelty includes harassment.
As observed by the apex court, a new offence is created by giving a
new dimension to the concept of cruelty.3 The first case recorded
conviction under Sec 498A of IPC was Wazir Chand’s case.4 The
husband of the woman and his father were sentenced to one year
RI and a fine of Rs.100/-. Prosecution under Sec 498A has to
prove the case beyond all reasons of doubt, otherwise the case
would end in acquittal.5
3. Consequent upon the insertion of Sec 304B providing the offence
of Dowry death, the expression ‘cruelty’ occurs in that section but
it has not been defined but the same meaning is attributed to
cruelty including harassment as given in the explanation to Sec
498A.
4. It has been reported that more than 10,000 cases are found to be
false.6 In other words Sec 498A is being misused by the women to
harass their husbands and in-laws and even the Dowry Prohibition
Act is also misused as a weapon in the hands of wives and they are
found to be threatening their husbands, if they fail to carry out the
wishes or demands of the wives.

3
See for details Shoba Rani Vs. Madhukar Reddy, AIR 1988 SC P.121.
4
Wazir Chand Vs. State of Haryana, AIR 1989 SC P.378.
5
Davakabai Vs. Namdev Doka (1995)2 Crime 443 (Bombay).
6
Supra Foot Note I.

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 Where such false complaints are filed, the husband and his
relatives are subjected to arrest, bail being denied and even to enter
into an understanding with the wife to withdraw such cases is not
available, as the offences under Sec 498A are cognizable non-
bailable and non-compoundable. Serious violation of human rights
takes place of the person who are subjected to such false
complaints. Among the persons so involved are a large number of
women like husband’s sister, mother and other female relatives. It
is now used as a weapon by a woman against other woman
resulting in ‘cruelty’ to those who are the victims of false
complaints.
It is understood that women’s organization are agitating against
any step being taken to make the offence under Sec 498A as
bailable and compoundable.7 How can the human rights of
husband or his relatives be seriously violated without any effective
remedy?
5. Time is ripe now that women’s organization should be made to
realize that Sec 498A is for protection of the married women and
not to be used as a weapon to harass or cause mental or physical
suffering to husband or to his relatives. The need for a balancing
norm is imperative, so that while protecting the married women,
the need to protect the husband or his relatives is also met by the
legal process.
6. The apex court in Arnesh Kumar’s case8 observed that a complaint
under Sec 498-A allows immediate arrest and jailing of the
accused, since the offence is cognizable and non-bailable. This is
evidence of violation of human rights, if the complaint is false and
7
It is reported that the Ministry of Women and Child Development has dropped the amendment.
Supra Foot Note .1. P.11.
8
Refer to Special Leave Petition (Crl) No. 9127 of 2013 decided on 2/7/2014.

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 motivated. The apex court also observed that complaints under
Sec 498-A were being filed with an oblique motive to wreck
personal vendetta.9 In the light of this observation, the need to
consider the issue as to how the complaints in false cases be dealt
with suitably to protect the human rights of the victim’s involved
in the prosecution. This has been reiterated again by apex court in
Joginder Kumar’s case.10 The power of arrest should be exercised,
when it is imperative11 and not as a matter of routine. The facts
and circumstances of each case need a thorough examination
before the power of arrest is invoked. 12
7. The guidelines13 given by the apex court on 2/7/2014 needs to be
adhered to strictly. These guidelines may be summarized thus:-
i) Sec 41 Cr Pc may be circulated with a list of items to be
satisfied, before the power of arrest is exercised;
ii) The power of arrest should not be automatically
exercised, merely because of FIR being registered;
iii) The police officers affecting the arrest should furnish all
the details as required under Sec 41 to the magistrate
explaining the expediency to arrest and the need for
further detention to be ordered by the magistrate. The
material should satisfy the criteria laid down under Sec
41 Cr Pc.
iv) The magistrate must apply his mind to the police report
before authorizing further detention of the accused
persons and record his reasons in writing in support of
his order; and

9
In Re Sushil Kumar’s case, 2005 (6) SCC P.281.
10
AIR 1994 SC P.1349.
11
AIR 2011 SC P.312.
12
See also Sec 41 of Cr Pc.
13
These guidelines wsere given in a special leave petition (Crl) 9127 of 2013

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 v) In case of the persons not being arrested, a report should
be sent to the magistrate by the police officer concerned
containing
a) the reasons for not arresting
b) other material facts and circumstances justifying the
non-arrest of the person concerned.
8. A suitable amendment to Sec 498-A is the imperative need of the
hour. The number of false cases is not a material consideration, as
even an accused person is harassed, it is sufficient to protect his
rights. After all human rights of persons, whether of husband or
wife or the relatives of the wife have to be protected.
The amendment may be in the following terms:-
Sec 498-B- Any women or other person making a false complaint
under section 498-B against her husband or his
relatives shall be guilty of an offence punishable by
law upto two years of imprisonment or a fine which
may extend to Rs.15,000/-.
An offence under this section shall be non-cognizable,
bailable and compoundable.