The Calcutta High Court (HC) of India recently expressed serious concern over the misuse of Section 498A of the Indian Penal Code (IPC). The provision is aimed at addressing harassment or cruelty against women by their husbands or in-laws. Honourable Justice Subhendu Samanta of the HC said that the Indian women often use this particular Section of the IPC as a tool for what he termed legal terrorism in the pretext of seeking justice.
During the hearing of a case involving a man who was accused of domestic violence by his ex-wife (prompting criminal proceedings against him), Justice Samanta said: "The Legislature enacted the provision of Section 498A to strike out the dowry menace from society. But it is observed that in several cases, the said provision is being misused." The honourable judge also said that the current criminal proceedings seemed to stem from a personal grudge rather than genuine concern for justice.
The honourable judge reportedly quashed two criminal complaints filed by the estranged wife against her husband and in-laws, noting: "Harassment and torture enumerated in the definition of security under Section 498A cannot be proved solely by the de-facto complainant. The direct allegation against the husband by the de-facto complainant is merely from the version of the de-facto complainant herself." He further stressed that the woman had no medical record or documentary evidence to support her complaint, adding: "The law allows a complainant to file a criminal complaint, but the same has to be justified by adducing cogent evidence."
Honourable Justice Samanta reportedly observed that there was no fact of torture and assault on the complainant, as the couple was living at a separate house since the beginning of their marriage. "Since the marriage, the woman never intended to stay with her in-laws; consequently, a separate accommodation was arranged by the husband of the petitioner and they are residing separately there," he stated.
The honourable judge described the case as an abuse of the court's process, saying that the evidence and statements of a witness presented were deemed insufficient to substantiate the allegations against the husband and in-laws of the complainant. The couple had separated legally in 2018 while Police investigations were ongoing. The chargesheet in both cases filed by the estranged wife had been submitted to the HC, with statements from her parents and a neighbour included. Although the neighbour reported hearing quarrels, she could not definitively identify the "aggressor"! The wife's medical report, included in the case file, hinted at no signs of injury.
Meanwhile, the husband's learned lawyer, Ayan Bhattacharjee, claimed that the wife lodged another complaint with the same Police Station after the husband obtained an anticipatory bail. In the second complaint, she accused her in-laws of domestic violence. As expected, the case has led the court to question the appropriate application of Section 498A in cases where evidence appears to be lacking or when the provision is possibly being misused.
It may be noted that Section 498A of the IPC states: "A husband or a relative of the 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." For the purpose of this Section, Cruelty means: 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 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.
The Calcutta HC has also made it clear that the Police should not make unnecessary arrests in the context of domestic violence. In a directive, the HC has stated that magistrates should not allow the Police to detain the accused mechanically in such a case. The Jharkhand HC recently refused to give an anticipatory bail to a person accused under Section 498A of the IPC. Later, the Supreme Court (SC) of India overturned the judgement of the Jharkhand HC, directing all the HCs to frame clear guidelines for Lower Courts in this regard. The Apex Court also asked all the Provincial Governments to direct the Police officers of the concerned province not to make immediate arrests without questioning the allegedly accused persons related to cases under Section 498A of the IPC.
Read: How does Domestic Violence affect male victims
According to the Supreme Court, Provinces shall hand over a list, containing the provisions of Section 41(1) of the Code of Criminal Procedure (CrPC), to Police officers. As per the Apex Court's instruction, the Police officers would have to fill that list before making an arrest. According to sources close to the Indian judiciary, the Calcutta HC has prepared this guideline on the basis of the recent judgement of the Supreme Court. While CrPC Section 41(1)(a) empowers Police officers to arrest a person without warrant when a cognizable offence is committed by a person in the presence of the Police, Section 41(1)(b) provides for arrest by the Police on receiving a reasonable complaint/information or has reasonable suspicion of a cognizable offence having been committed, which is punishable with imprisonment of less than seven years, or which may be extended to seven years, if the given set of conditions are satisfied. The additional conditions for such arrest as per Section 41(1)(b)(i) require the Police officer to have reason to believe on the basis of such complaint, information or suspicion that the said offence has been committed.
The Government of India enacted Section 498A of the IPC mainly to provide legal protection to women from abuse by their husbands and in-laws. However, (as honourable Justice Samanta observed) Section 498A is the most misused Section of the IPC. A violation of this Section is done by women by making frivolously false allegations against their husbands in an attempt to get some money or to just harass the family. As the abuse of this Section is constantly increasing, women usually apprehend their husbands quite easily. This development has prompted honourable Justice Samanta to use the term Legal Terrorism while dealing with Section 498A of the IPC.
Furthermore, Section 498A, which allows the Police to enjoy the power to arrest a person without questioning only on the basis of mere filing of a complaint, is not in accordance with the Fundamental Rights enshrined in the Constitution of India. This Section overlooks the fact that there is a clear distinction between making an allegation against a person and proving the allegation against him. The non-bailable aspect of this Act, too, is a controversial one. The philosophy underlying the Indian Constitution states that getting bail is a Natural Right of a person, except in very exceptional cases. It is quite difficult to establish that all allegations related to abusing a wife should be considered as exceptional cases. The Supreme Court amended Section 498A in 2014 only because of this non-bailable aspect of the Act. It is in the same context that the SC has drafted the latest guidelines. It is necessary to take all possible measures in order to ensure the protection of women. At the same time, the judiciary cannot ignore basic Human Rights of the accused.
In India, receiving bail or to remain in jail without trial depends on a number of factors, such as the social status and prestige of the accused, his financial status, influence in higher circles, political opinion, etc. However, it should not happen in a Democratic country. The lengthy judicial process is another problem in the South Asian nation. It is the duty of the Legislature, as well as the Judiciary, to ensure that the innocent should not get punished under any circumstances. Abusing a wife is a heinous crime, indeed. However, it must be ensured that no one is convicted of committing the crime on the basis of mere allegations made by a woman against her husband and in-laws.
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