Misuse of Section 498A of IPC along with comparison between Foreign and Indian Domestic Violence Act

1. 498A The Indian
Penal Code
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2. 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.

3. Mandate behind 498A
1. The first all-India legislative enactment relating to dowry to be put on the
statute book was The Dowry Prohibition Act, 1961 and this legislation came
into force from July 1, 1961. It marked the beginning of a new legal framework
of dowry harassment laws effectively prohibiting the demanding, giving and
taking of dowry. Although providing dowry is illegal, it is still common in many
parts of India for a husband to seek a dowry from the wife's family and in
some cases, this results in a form of extortion and violence against the wife.
2. To further strengthen the anti-dowry law and to stop offences of cruelty by
the husband or his relatives against the wife, new provisions were added to
the Indian criminal law - section 498A to Indian Penal Code and section 198A
to the Criminal Procedure Code in 1983. In 2005, the Protection of Women
from Domestic Violence Act was passed, which added an additional layer of
protection from dowry harassment. Although the changes in Indian criminal
law reflects a serious effort by legislators to put an end to dowry-related
crimes, and although they have been in effect for many years now, they have
been largely criticised as being ineffective.

4. Convention on the Elimination
of All Forms of Discrimination
Against Women
Article 16 prohibits "discrimination against women in all matters
relating to marriage and family relations." In particular, it provides men
and women with "the same right to enter into marriage, the same right
freely to choose a spouse," "the same rights and responsibilities during
marriage and at its dissolution," "the same rights and responsibilities as
parents," "the same rights to decide freely and responsibly on the
number and spacing of their children," "the same personal rights as
husband and wife, including the right to choose a family name, a
profession and an occupation" "the same rights for both spouses in
respect of the ownership, acquisition, management, administration,
enjoyment and disposition of property, whether free of charge or for a
valuable consideration."

5. Section 198A in The Code Of
Criminal Procedure, 1973
• Prosecution of offences under section 498A of the Indian Penal Code.
No Court shall take cognizance of an Offence Punishable section 498A
of the Indian Penal Code except upon a police report of facts which
constitute such offence or Upon a complaint made by the person
aggrieved by the offence or by her father, mother, brother, sister or by
her father's or mother' s brother or sister or, with the leave of the
Court, by any other person related to her by blood, marriage or
adoption.

6. Cruelty as a ground for divorce
• Section 13 of The Hindu Marriage Act, 1955, provides for dissolution
of a Hindu marriage by a decree of divorce on 13 grounds. One of
them is cruelty. (Gender neutral)
• Section 27 of The Special Marriage Act, 1954, provides for 12 grounds
for divorce. One of them is cruelty. (Gender neutral)
• Section 2 of The Dissolution of Muslim Marriages Act, 1939, provides
for 8 grounds on which a woman married under the Muslim law is
entitled to obtain a decree for dissolution of her Marriage. One of
them is cruelty, and cruelty is well defined in Muslim Law.
• Section 32 of The Parsi Marriage and Divorce Act, 1936, provides for
11 grounds for divorce. One of them is cruelty. (Gender neutral)
• Section 10 of The Indian Divorce Act, 1869, provides for 7 grounds of
dissolution of marriage of Christians. (Gender neutral)

7. Sushil Kumar Sharma vs Union
Of India And Ors on 19 July,
2005
• The court observed:
• The basic difference between the two Section i.e. Section 306
and Section 498A is that of intention. Under the latter. cruelty
committed by the husband or his relations drag the women
concerned to commit suicide, while under the former provision
suicide is abetted and intended.
• The object of the provision is prevention of the dowry menace.
• 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. Till then the Courts have to take care
of the situation within the existing frame work. As noted the
object is to strike at the roots of dowry menace.
• Upheld the constitutional validity of 498A

8. Abuse of 498A
And
Other Domestic
Violence and Dowry
Laws

9. Preeti Gupta & Anr vs State Of
Jharkhand & Anr on 13 August,
2010
• The court observed:
• 33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To
find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband
and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is
difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these
complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The
allegations of harassment of husband's close relations who had been living in different cities and never visited
or rarely visited the place where the complainant resided would have an entirely different complexion. The
allegations of the complaint are required to be scrutinized with great care and circumspection. Experience
reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship
amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the
husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of
amicable settlement altogether. The process of suffering is extremely long and painful.
• 34. Before parting with this case, we would like to observe that a serious relook of the entire provision is
warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the
incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a
very large number of cases.
• Based on the Supreme Court's observations, the Indian parliament set up a committee headed by Bhagat Singh
Koshyari.

10. Arnesh Kumar vs State Of
Bihar & Anr on 2 July, 2014
• the Supreme Court has issued the following directions to all the State Governments:-
• To instruct the police officers to not mechanically arrest the accused under
Section 498 A of I.P.C. without satisfying themselves that the conditions of arrest
are met;
• All police officers to be provided with the check-list of condition precedents
prescribed under Section 41 of Cr.P.C., to be duly filed and forwarded to the
Magistrate while producing the accused for further detention;
• The Magistrate shall then peruse the report provided by the police officer and
only after recording its satisfaction in writing, may authorize detention;
• The decision to not arrest the accused should be forwarded to the Magistrate
within two weeks from the date of institution of the case, the period may be
extended by the Superintendent of police for reasons to be recorded in writing;
• The notice of appearance in terms of Section 41 A Cr.P.C. should be served on the
accused within two weeks from the date of institution of the case, the same may
be extended by the Superintendent of police for reasons to be recorded in writing.
• Failure to comply with the directives set out above may render police
officers/Magistrates liable for departmental action and proceedings for contempt
of court to be instituted before the High Court having territorial jurisdiction.

11. Rajesh Sharma vs. State of UP
2017
• the Supreme Court has issued the following directions to all the State Governments:-
• To instruct the police officers to not mechanically arrest the accused under
Section 498 A of I.P.C. without satisfying themselves that the conditions of arrest
are met;

12. 243rd Report of The Law
Commission on 498A (2012)
• The subject was taken up by the Law Commission pursuant to the
findings in Preeti Gupta & Anr vs State Of Jharkhand & Anr on 13
August, 2010
• The Law Commission recommended that cases under 498A should be
made Compoundable with the permission of the court.
• Arrest should be made only in cases of serious magnitude, which
includes violence, and conciliation should be the first step towards
resolving the cases.
• Statutory requirements must be made before effecting arrest in cases
of 498A
• Compensation to victims to be enhanced
• Protective measures and assistance to be given to aggrieved women

13. Comparison between
Domestic Violence
Laws in India
and in other
Countries.

14. New South Wales: Crimes (Domestic and
Personal Violence) Act 2007 (NSW ACT)
• Object:
• to ensure the safety and protection of all persons, including
children, who experience or witness domestic violence
• to reduce and prevent violence by a person against another
person where a domestic relationship exists between those
persons
• to enact provisions that are consistent with certain principles
underlying the Declaration on the Elimination of Violence
against Women (CEDAW), and United Nations Convention on
the Rights of the Child
• Apprehended domestic violence order (ADVO)
• Violation of ADVO A person who knowingly contravenes a
prohibition or restriction specified in an ADVO made against the
person is guilty of an offence (s 14). The maximum penalty is
imprisonment for 2 years or 50 penalty units (currently $5,500), or
both

15. Family Violence Prevention Act, RSY 2002
(Yukon, a Canadian territory)
• Parties Involved:
• “victim” means a cohabitant who has been subjected to family violence
by another cohabitant.
• “cohabitants” means persons who have resided together or who are
residing together in a family relationship, spousal relationship, or
intimate relationship
• “respondent” means any person against whom an order is sought or
made to enact provisions that are consistent with certain principles
underlying the Declaration on the Elimination of Violence against
Women (CEDAW), and United Nations Convention on the Rights of the
Child
• Apprehended domestic violence order (ADVO)
• Violation of ADVO A person who knowingly contravenes a prohibition or
restriction specified in an ADVO made against the person is guilty of an
offence (s 14). The maximum penalty is imprisonment for 2 years or 50
penalty units (currently $5,500), or both

16. The Protection Of Women from Domestic
Violence Act 2005
• Parties:
• Section 2(A): Aggrieved Person: Woman/In a domestic
relationship
• Section 2(Q): Respondent: Adult male person/in a relationship
with the Aggrieved person/ may also include relatives of the
aggrieved person
• Rights of the aggrieved:
• Protection Orders
• Residence Order
• Monetary Order
• Custody Order
• Compensation Order
• Penalty for breach of any of the above orders (S 31):
• 1 year imprisonment/+ Rs 20K Fine

17. THANKYOU
By: Mansi Agarwal
LLM (Family Law)
Amity Institute of Advanced Legal Studies