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Section 498A: Alleged Misuse or Factual Under Use

The India a few decades back was full of newspaper reports and news readings on the subject of cruelty by husband or his family members against the women in their marital home pertaining to many different reasons such as not fulfilling demands of dowry not being able to bear child for not working or earning . So in order to safeguard the interest of woman by preventing them from the cruelty they were facing under the roof of their matrimonial home Section 498A was inserted in the Indian Penal Code1860 by an amended in 1983.This section is acknowledging the domestic violence reffered to as ‘Matrimonial Cruelty’ to a woman. This offence of cruelty against women in their matrimonial homes is cognizable non-compoundable and non-bailable offence as per the definition in Chapter XXA of I.P.C. under Sec. 498A. Yet since last few years after about two decades of criminal law reform a major contentions against the use of this laws relating to protection of women against domestic cruelty are being raised the contentions claim the abuse of law as according to them torture their husbands by filing false complaints against them or the in- laws and there are various suspicious reasons being given like to extort money or personal vengeance towards family of husband to get divorce to cover her own affairs but it is still debatable. Different judgments given in the cases relating to this section by various legal authorities mentions the misuse of this section. The charge of misuse is made particularly against offence of dowry death in Section 304B and Sec 498A of the IPC without dealing with grassroot realities. Therefore research article would be dealing with the section 498A of IPC the claimed misuse in present context along with the arguments of the accused side. This paper will also deal with the Judgments of the court in this regard and the reality beyond this which tells a story of the suffering of married women making this section all the more indispensable.

Introduction
In the 1980s the occurrences of 'dowry deaths' were consistently increasing in India. there was a trending news thing in the papers of a young lady who was burned alive or murdered by in-laws when she was not able satisfy their coercive requests for cash articles or property precisely dowry. Various women associations in the nation pressurized the government and asked the administration to give authoritative insurance to women against violence at home and dowry demand. The objective was to enable the state to resolve quickly and stop the killings of young women who were not able meet the demands for dowry made by their in-laws. Because of the exceptional struggle and campaigning excessive amendments were made in the Indian Penal Code the Indian Evidence Act and the Dowry prohibition Act with the objective of protecting women from the violence in marriage mishandle and repeated dowry demands. The most vital amendment came as the presentation of Section 498A in the Indian Penal Code (IPC). It is thought that Sec 498A and Sec 304B were acquainted with and will supplement each other since Sec 304B tends to the specific offense of dowry death and Sec 498A looked to address the wide-scale domestic violence and cruelty against women for dowry. The essentials of this section is that the expression ‘cruelty’ is a wide term as defined in the IPC inclusive of both infliction of physical or mental harm on 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 property and money or valuable security. Torturing for dowry falls at a latter stage in the section. Making a circumstance by the willful conduct of the husband which is likely to drive the women to submit to committing suicide is also one of the elements of 'cruelty'. The offense under s.498A is cognizable non-compoundable and non-bailable.

With the ascent in modernization educational qualification financial and social security and the freshly discovered autonomy the radical women's activist has made 498A a weapon in her hands. There has been cases of husbands and in laws facing legal action by their daughter in laws under section 498A. Apparently most situations where Sec 498A is involved end up being false (as over and over acknowledged by High Courts and Supreme Court in India). There are major questions to be answered before accepting this conclusion. This paper is to discuss different dimensions of the section and more plausible solutions than to amend the section or limit it. The courts have time and against missed some essential aspects which are yet to be discussed.

Allegations of Misuse of Section 498a

There are people alleging the misuse of section 498A IPC which was inserted in the Indian Penal Code in 1983 after due deliberations for the protection of women from marital violence and dowry harassment. Their allegation goes like women have grossly misused and abused this section to fulfill her ulterior motives. Some of the allegations are a understated –
·The women want to separate her husband from his family want to control his actions and lifestyle and also to take advantage of the financial resources of husband.

·The wives also file a case under this section to save the marriage when her family at the time of marriage has concealed certain facts like her health or education level from the bridegroom’s family which the later discover.

·The women use this as a tool to bargain for the ill deeds done by her like indulging in adultery and other wrongs which can break her marriage.

·Some women file a case against their husbands to get divorce so that she can revive the premarital relationship and due to which she was not willing to get married and married only under pressure of family.

·In the cases where there is already a pending petition of divorce of the couple the wives file the case in order to deny the husband of the custody of the children.

·In order to take vengeance and settle the score with the husband and his family by inflict suffering on them through this case.

These are the major arguments taken up by accused against whom the case under section 498A is being filed and it is a myth that the wife has a lethal weapon in form of this provision which she uses to settle scores and take vengeance and not because of the need. The mode of operation is said to be such that the husband and family is being falsely accused and suffering is indiscriminately implicated the husband and his relatives. The above said arguments are without any basis or proofs and are based on the assumption that women can best be served encouraging reconciliation with the husband and his family and accepting of subordinate roles. The idea that women are treated with cruelty for dowry only and that the actual form of violence is “physical” only which we be concerned of.

The arguments also sometimes claim the the law has been harsh not only on men but on women too because of the lodging of the FIR which becomes a tool into hands of police for extortion and badgering of husbands and in laws without even considering the worth of the allegations and making proper investigation. At the point when the individuals from a family are arrested and sent behind the bars with no quick prospect of safeguard the option of reconciliation also fades away or then again rescuing the marriage will be lost completely. In such cases the loopholes are not in the law itself but the acts of the police authorities as they fail to honor their duty of making proper background check and investigation for before arresting the husband and family. The corruption in the department of the state cannot be blamed on the law put down for the protection of women.
The other argument says long and extended criminal trials leads to sourness in the relationship among the friends and relatives of the family. Realities must be taken care of while managing marital issues with due respect to the way that it is a sensitive family issue which should not be permitted to be exasperated by insensitive activities with respect to the Police by exploiting the brutal arrangements of s.498A of IPC together with its related arrangements in CrPC. The time taking trials is not a not a drawback of the law but of the process the need here is for making trails under section 498A to be time bound so that people can resume their normal lives. Reality of the situation is claiming that life of family and friends will be disturbed will not change the gravity of the offence committed against the victim.

Other Side of The Story
The rate of conviction being low is major argument people alleging misuse of the section 498A but this can be explained very well by the situation of this patriarchal society and the nature of domestic violence which takes place in the house boundaries and witness are hard to find as those who live in the house are usually reluctant to involve themselves or their son in the legal cases. Not having witnesses is a huge disadvantage as the offense is of such a nature that other type of evidences are not much involved. It also reflects to the fact that the investigation done by the police is weak because despite presence of prima facie evidence in 94% of the cases most of them does not lead to conviction for the reason of loopholes in the investigation. In many cases priority is not given to the seriousness of the situation due to which the investigation gets delayed leading to losing of crucial evidence. Besides the trials also are delayed and the victims have to wait for years to get justice. In the cases where the cruelty and torture is magnified due to animosity if the cases and hence the life of victim becomes all the more difficult.

The public prosecutors fighting on behalf of the women are not that competent as senior advocates appointed by the accused and in most cases the women end up losing the case due to this. It is socially accepted that the women will face problems in their marital home and they are expected to adjust in the environment. The society where women are asked to compromise instead of taking a stand for their rights it becomes all the more difficult fight the accused and win despite having everyone against her. The domestic verbal abuse and crimes are not seen as crimes by the society and hence it is all the more difficult to convict a person for mentally harassing his wife as many of the women accept this marital violence as fate so the problem is only for the husbands whose wives stands against this cruelty. Many a times it is the societal pressure or lack of options with the women who are more vulnerable to family politics that they chose to withdraw the case and settle for the same environment than fight for justice.

Statistics have contradicted the commonly claimed fact that majority of 498A cases are false because more than 90% of the cases are found to be true on investigation but the mistaken notion of the false cases have lead to more loss to the women than the loss of losing the case against her husband. Low conviction rate does not necessarily mean the case was false but there are variety of reasons for low conviction rate like lack of evidences to prove the case lack of financial help to appoint good advocates the patriarchal mindset of judiciary corruption by the accused and many more. The less number of convictions are interpreted as lack of truth in the allegations and false facts of the case which is mostly not the case.

The allegation of misuse of law have just been general statements without being substantiated by any proofs. The idea is based only on the fact that women having law in her favor will give her independence and power to misuse the law. What this stand lacks is the understanding of situation of women in Indian households and the attitude of police against the offense against women.

The amount of misuse of law is not as high as it is claimed to be but still there is misuse of law and that is not only because of the ill intentions of women but also because of the loopholes in the law itself. All the other criminal laws are misused like criminal breach of trust kidnapping and abduction cheating etc. but the fingers are pointed only at the laws which are for protection of one gender. This idea of gender specific laws being prone to misuse and gender neutral laws being immune to the same is in itself flawed.

The demand has arisen time and again from the society for the amendment in section 498A for the only reason that it is a gender specific laws and because it protects women from the cloches of the patriarchal society. It is the general myth that the section 498A is misused and there is not support to this claim as the statistical data and the experience of the organizations working in the grassroot level with the women who face domestic violence shows that this section is not misused rather it is hardly used by the victim of domestic violence. The provision for the protection of such suffering women have-not yet reached them as the actual extent of domestic violence occurring in the country is very high and the number of cases filed under this section is far less. The National Family Health Survey in its report showed that the 40% of the married women in India suffer domestic violence in any form as physical sexual or mental. And in contrast to this the number of cases filed against domestic violence under this section are less than 1% of the women suffering. Instead of claiming it as misuse of he law it should be looked at from the perspective that it is being underused and there are still sections of the society where this section is yet to reach. In a contest it is the fact that most women are dependent on husband and their family for basic necessities and they did not get support from their families or the state agencies . Many a times the women does not have proper channel for help or support to file a case against their husbands and families. When the society expects from women to adjust and compromise in the marital relationship and accept violence it is not a surprise to see that most of the cases of violence go unrecorded and all that remains in the hands of the defense is to allege misuse of the laws. Such allegation has arisen from the patriarchal mindset and attitude of the society towards women.

Recommendation
The provision of this section is for prevention of marital violence inflicted on the women it is all the more important for section 498A to be non-bailable cognizable and non compoundable because of the understated reason.

If the offence is non cognizable the police can neither register an FIR  investigate nor order arrest without court’s order and directions. But the offence being cognizable will allow the police to take action. For the women in India it is already difficult to go out of the house and file a complaint in the police station under 498A and making it non- cognizable will make it difficult for the women suffering of such violence at home to go out and report because the burden will be on the women to go through the judicial proceedings. The women will not be able to drive benefit of the this law making it only on paper.

Domestic violence is an offence not to be negotiated upon and this offence is of such a nature that the accused are in the better position to suppress and tremendously pressurizing the victim to settle and withdraw the case. The compounding such an offence sends a message to the society that the offence is less grave making the victim all the more vulnerable to such domestic violence and cruelty.

Domestic violence being such a social sanction is not exactly seen as an offence in the society and making it non bailable will create a difficult situation for the women complaining about her husband that her rights are being compromised with and she will be under constant threat and pressure of the same violence as no instant action is being taken by the police authorities.

The legislature made this law cognizable non-bailabe and non- compoundable for the reason that the offence is of grievous nature and if instant action is not taken harm can be caused to the victim which can lead to further serious circumstances. Gender sensitization training is needed for the police and judiciary. Proper training shall be given to the police regarding the investigation of the cases under section 498A so that the victim is not harassed and the investigation is effective.

There is a need to make the section more definitive and specific as ambiguity of of the word cruelty makes it difficult for the prosecution to prove the case as most of the times there is no evidence to prove mental and physical torture which gives a window to the accused to get away the offence.

There need is for creation of awareness of the provision among illiterates and poor people living in remote areas where the problem is drunken husband coming home and beating wife and abusing her is prevalent. The education of husband is more important for prevention domestic abuse. There has to be easy access of the aggrieved women to the NGO and professional counselors appointed by state and the district level legal service authorities.

The trial process shall be time bound making it harassment free fir both the parties and giving them time to move on with their lives. The piling up of cases under this section makes life of both the parties difficult and this has an impact not only on their personal lives but professional lives as well. Making the trail of these cases time bound will make it easier for both the parties.

Conclusion
Looking at the above facts and the detailed discussion on the reality of situation and condition of women suffering from domestic violence the attitude of society towards such women and such widespread violence against the women in their marital homes the need of proper acknowledgement and implementation of section 498A is way more than before. In this century maximum number of married women are dependent on their husbands and in laws for their survival no matter how much we promote equality women are still unequal on various platforms and spheres of life making them vulnerable to domestic violence torture and cruelty. Women lose their lives due to domestic violence and those suffering on daily basis are not even aware of the provisions for their protection. Some women lack resources some education and some both. In this situation where even the society does not acknowledge their plight of such women as in the game of power play they does not have the exposure knowledge and power to negotiate with them and influence them hence there is a need for this gender specific law to stand independent of dilution corruption and political plotting. In this male dominating society a law for protection of women is not a discrimination but a provision to protect them from marital violence. Besides the onus is on the Indian state to protect it citizens and ensure that all the citizens specially the marginalized and the one historically suppressed shall be provided with protection of life and dignity respect. State shall invest in securing a violence free society and every state shall have proper protection officer for each police station who can be a bridge between the survivor of violence and the court who can coordinate to provide her with the services like medical attention shelter food clothing and the infrastructural support shall be provided by the state governments to insure that there is proper sensitization and education to the people and there is reduction of crime. The international conventions which india is a signatory to and the constitution of India itself provides for the protection of rights of women and special provision to address inequality and suppression of women. The supreme court has moved a step backward while deciding the recent case[1]of domestic violence which needs to be improved upon as the suggestions given by the supreme court are worth implementing but the learning’s of the court are yet to be looked into by another judgment from the same court.

End-Notes
[1]Rajesh Sharma & ors. V State of U.P. & Anr(2017) Criminal Appeal No. 1265 of 2017

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