Section 498A OF INDIAN PENAL CODE,1860.
Most people are not aware of Section 498A of the IPC or what to do when a case related to Section 498A is registered. It is important to know more about what this law is all about. Section 498A was introduced in the year 1983 to protect a married woman from being subjected to cruelty. It claims to protect women against dowry-related harassment and cruelty. On the other hand, it became an easy tool for women to misuse it and wreak revenge on their NRI husbands or to file a false case. Section 498A is one of the most controversial sections of the IPC.
What is 498A?
Definition under IPC
Section 498A of the Indian Penal Code (IPC) deals with the violence done to women after her marriage by her husband or her in-laws or any relative of the husband. It prescribes punishment for 3 years and a fine. It gave a new definition of cruelty. Cruelty can be defined as –
- If the act was done is of such a nature that the woman is enticed to commit suicide or cause an injury to herself, which may prove fatal. This was added in the case of Shobha Rani v.Medhukar Reddy. It was held in the case that evidence is required to prove cruelty.
- If the act is done is to harass women or any other person related to her to meet unlawful demands.
Illustration– The S-498A of the Indian Penal Code, 1860, pertains to the offence of cruelty being committed on a married woman by her Husband or the relatives of her husband. As per the law of land, every information to the police relating to the commission of offence under Section-498A of the Indian Penal Code (For short IPC) is supposed to be converted into a formal FIR. The registration of the FIR follows a Police investigation in the Case. The Police have lot of discretion in the matter of investigation and interrogations. The Police can seek custodial interrogation of the husband and his relatives, and at the same time, it can opt not to press for that. The custodial interrogation means interrogation by the Police after arresting the person concerned. To curb the misuse of this desertion by the Police, the Courts, i.e., the High Court’s all over India and the Hon’ble Supreme Court of India have passed, from time to time, the Orders, Judgments, and Guidelines directing the Police not to arrest the husband and/ or his relatives in a particular facts and circumstances. The Superior Officers of the Police also often issue such Guidelines to the concerned Investigating Officers (IOs) at their command as might be essential for the due compliance of the Court Orders and Judgments.
• Allied Legal Provisions
- Indian Penal Code, 1860
- Section-304B. Dowry death.– Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.
- Explanation–For this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
- (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.
- Section-306. Abetment of suicide.– If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
- Section-406. Punishment for criminal breach of trust.– Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
- Section-493. Cohabitation is caused by a man deceitfully inducing a belief of lawful marriage.– Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine,
- Section-494. Marrying again during the lifetime of a husband or wife.– Whoever, having a husband or wife living, marries in any case in which such marriage is void because of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- Exception.-This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same arc within his or her knowledge.
- Section-495. Same offense with concealment of former marriage from person with whom subsequent marriage is contracted.– Whoever commits the offense defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
- Section-496. The marriage ceremony was fraudulently gone through without lawful marriage.– Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married, knowing that he is not thereby lawfully married, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also tie liable to fine.
- Section-497. Adultery.-Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offense of rape, is guilty of the offense of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such a case, the wife shall be punishable as an abettor.
- Section-498. Enticing or taking away or detaining with criminal intent a married woman.– Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
- Section-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 willful 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 to coerce 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-503. Criminal intimidation.-Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.
- Explanation.-A threat to injure the reputation of any deceased person in whom the person threatened is interested is within this section.
- A, to induce 6 to desist from prosecuting a civil suit, threatens to burn B’s house. A is guilty of criminal intimidation.
- Section-506. Punishment for criminal intimidation.-Whoever commits, the offense of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;
- If the threat is to cause death or grievous hurt, etc.– and if the threat is to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offense punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastely to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with the line, or with both.
- The captioned subject is complex by its very nature. We, therefore, always encourage our visitors & Clients to seek independent legal advice from our impaneled lawyers. In such cases, our lawyers devise the most appropriate legal recourse for our Clients after examining the related provisions of law, i.e. The Indian Penal Code, 1860, The Code Of Criminal Procedure, 1973, The Limitation Act, 1963, The Evidence Act, 1872, Other relevant Acts, Judgments, and Citations of the Hon’ble Supreme Court Of India and the High Courts. Even otherwise, the question as to how to apply the laws, judgments, and citations is rather more complex, as it involves a thorough examination of substantial laws, procedural laws, and Court precedents in a given set of facts and circumstances.
- Section 377. Unnatural offences.—Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.
- Section 323. Punishment for voluntarily causing hurt.—Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Procedure of 498A- Step by Step
- Complaint at CAW Cell/Mahila Thana/ Parivar Kendra: This is the first step for 498A in most of the states. A complaint is lodged in a Police Station which is transferred to a CAW cell.
- Reconciliation/Mediation Process at CAW Cell/ Mahila Thana: CAW cell tries for reconciliation/settlement between the parties. This process is also called mediation which can also occur at various stages like Bail etc. What is Mediation? (To find out go to page no.- 30)
- I.R – If there is no reconciliation at the previous stage, the police register an FIR. At this stage, the police can open a lookout circular and other harassment may happen to men at this stage. It is important to know your rights as an accused when facing a criminal case. (To find out your rights go to page no.- 32)
- Bail/Anticipatory Bail/Stay on Arrest– You can approach the court for Anticipatory bail or stay on the arrest. If arrested already then you can approach the court for Bail.
- Police Investigation – The police investigate the crime, mostly it is collection of bills, statement of witnesses of the complaint.
- Charge Sheet– A charge sheet is a final report prepared by the investigation or law enforcement agencies for proving the accusation of a crime in a criminal court of law. The report is basically submitted by the police officer in order to prove that the accused is connected with any offense or has committed any offense punishable under any penal statute having an effect in India. The report entails and embodies all the stringent records right from the commencement of investigation procedure of lodging an FIR to till the completion of investigation and preparation of the final report (Section 173(2) (i) and Section 173(5) of the Cr. P.C.).It also includes a statement of witnesses u/s 161 of CrPC and u/s 164 of CrPC(If any sexual crimes are alleged). Accused are summoned and provided with a copy of the Chargesheet free of cost.
- Framing of Charge and Discharge– After the chargesheet has been scrutinized by the accused/ their lawyers, the court proceeds to frame the charges, i.e telling the accused on what crimes they have been charged. This is also the stage when the accused think that there is not enough material on record to charge him and he can move for discharge.
- Prosecution Evidence– Mostly the evidence is oral in 498A, witness Statement, and Cross-Examination, though there can be medical/other evidence as well. In the first step, prosecution lawyer asks a witness to narrate their version of facts, and then the accused lawyer gets an opportunity to cross-examine them. Investigating Officer is also the witness.
- Defense Evidence: After Prosecution Evidence gets over, the defense gets the opportunity to present its witnesses. The process is the opposite of prosecution evidence.
- Accused are examined by a magistrate– u/s 313 CrPC
- Arguments– Both sides’ advocates present their arguments.
- Order/ Judgment– Acquittal/Sentencing.
What is CAW Cell?
Crime against Women Cell, mostly referred to as CAW Cell, is also known as Mahila Thana or Parivar Pramarsh Kender in various states in India, though I will use CAW Cell for the sake of consistency. The primary job of these Cells is to bring about reconciliation between the warring couple. Mostly now a days in Dowry Harassment cases also known as 498a; cases or Domestic Violence cases. CAW Cells try to bring about reconciliation between the parties.
Need for Section 498A
Women have always been subject to cruelty by male society. Laws like these help women to fight back. A woman feels they are being heard. There is a lot of need for laws like these in a country like India –
- 9 out of 10 cases are always related to dowry. So, there is a dire need for these laws to prevent women from cruelty.
- Women are continuously forced, tortured, threatened, or abused for demand for something or the other. Section 498A of the IPC helps the woman to approach the court of law and punish the wrongdoer.
- In many cases, the woman is also subject to mental cruelty. There is no law that can help the woman to ease the mental pain caused to her. Acts like these help women in every possible way.
- No matter if the laws are misused, they cannot be removed from the Indian Penal Code. As the laws can always be amended. There will be certain loopholes but always a provision can be added to rectify the problems.
Rights Guaranteed to wife:
If a woman has been harassed for dowry or threatened for the same, before, during, or after marriage, her husband, his family, or in-laws can be subjected to punishment under the dowry act, 498a and even Section 304a, (in case her life has been threatened).
What is Mediation?
- Mediation is a customary procedure ordered by family courts for civil suits relating to family law like divorce, child custody, etc. The idea of mediation is to allow parties to dispute to sort out their issues between themselves without going through court procedures. All parties to mediation — mediator, petitioners, respondents, and their lawyers are expected to work towards that goal.
- Following is a brief explanation of the procedure of mediation.
- Mediation date and time are given by the court to both parties – husband and wife parties. On the date of mediation, both are expected to appear in the Mediation center of the court premises.
- Mediation is conducted/moderated by an expert who is a lawyer by training and does it pro-bono, i.e, without financial remuneration.
- The mediation process once started can last for a maximum of 60 days. It can happen multiple times within this period. At the end of it, the mediation center has to send their report to the court, whatever be the result of mediation – success or failure.
- Whatever is said during mediation is not used for any legal or court purposes. No written records are kept. So one can say something without fear of being incriminated based on that.
- If an amicable settlement of a dispute is reached between parties, the mediator will ask the parties to put that in writing. That document will be sent to court. The final agreement will only happen with a court-approved document. So the job of the mediation center is to facilitate reaching mutual agreement and not taking over the job of courts.
- The physical process of mediation
- Parties reach the mediation room at the appointed time, accompanied by lawyers. Lawyers are not the main actors here. Their job is not to argue cases or points. They are supposed to facilitate mediation and that is what they usually do in front of the mediator.
- Mediator explains the steps of mediation. The first discussion is with both parties present. She will ask for some background information from both parties (without asking about dispute or petition). She may ask what grievances the parties have.
- One party will then leave the mediation room. The mediator discusses the issues with the party in the room to understand their view of the problem/ petition etc. This is called private discussion.
- After that mediator gives the same opportunity to the other party in private discussion.
- Finally, both parties again meet with the mediator. The mediator will try to do the best effort to arrive at some kind of settlement after understanding issues /points raised by both parties. If more time and effort is required for parties to think over, then the mediator will give the next date and time of mediation.
How to seek protection against Section 498a IPC?
- Get an Anticipatory Bail: If you think your wife may file an FIR under Section 498A, hire a criminal defense lawyer and get an anticipatory bail to prevent yourself or your family member’s arrest. Anticipatory bail is like a precautionary bail in case police move ahead to arrest you or your family members. You can file for anticipatory bail for protection against section 498a IPC case under Section 438 of CrPC.
- Get the 498a FIR Quashed: You can also get the false 498A FIR quashed by High Court under Section 482 of CrPC. Courts are generally reluctant to quash an FIR or interfere in the law and order process, but if you have sufficient proof, the court has the power to quash the false 498A FIR filed by your wife.