Rising Misuse of 354, 377,376-D IPC and futility of 498-A

After the judgments of Arnesh Kumar[1] and Rajesh Sharma[2], the deterrence has been knocked on the head of the provision of 498-A. Yes, a dreaded provision which could well be termed as a watershed amendment to the IPC to protect women right is now relegated to a toothless provision which is a mere formality. To understand what went wrong with the section we need to understand where it all started.

In the hindsight.

We fairly remember that from beginning of the 70’s there were surge in crimes against women particularly related to dowry and in order to protect the dignity and life of women from the menace of dowry, a much required amendment was done and section 498-A IPC[3](Husband or relative of husband of a woman subjecting her to cruelty.) was added in Indian Penal Code. However, with the passage of time we saw implication and indictment of the entire family members of the husband in the allegations leveled under this provision; needless to say minors were also implicated.

It would not be incorrect to say that victims were encouraged to lodge such FIR’s so that maximum ‘negotiations’ could take place during mediation proceedings or at the time of charge-sheeting of accused. In the aforesaid premise,after a series of judgments and laws laid down by the Hon’ble Apex court, the discretion to arrest under 498A has been considerably reduced,lest the malaise of false and frivolous implication and misuse of s. 498AIPC pervades further. Sadly but rightly, as an imperative the provision of 498A was read down which lead to another malady, the gross misuse of sec.354, 377, 376-D read with 120B IPC.

Position of Husband.Why 354, 377, 376D IPC?

After the whittling down of 498-A, the sections which are now insidiously and malafidely being alleged against the husband and his family members are sec. 354, 377, 376-D read with 120B IPC. Since there are no automatic arrests under 498A now and a charge of rape is not maintainable against husband so the FIR’s, in the absence of a stern provision for perpetrating violence and cruelty on the victim rampant misuse of aforesaid sections prevails.

Easy vulnerability of husband and the male family members remains the primary reason as to why these sections have now become a nightmare to them. An allegation of such nature resurrects the discretion of immediate arrest of the investigative authorities. Later, once the conditions of divorce and alimony is settled either the FIR is quashed in terms of the settlement or the witness turns hostile. Nonetheless, the outcome remains the same, as it was prior to the reading down of the provision of 498-A IPC i.e. a settlement skewed against the accused.

A case study.

In one of the cases which I am recently dealing with can be used as an example on the issue. A couple with 16 years of marriage and a child of 14 years is living in the same building with the in-laws but on separate floors with separate egress and ingress. Certain disputes arose between the husband and wife and allegations involving sections 354, 376-D, 377 IPC read with 120B IPC were leveled against the husband and his family members.

Surprisingly, the alleged crime was stated to have occurred in the year 2005, just after the marriage but was reported in 2016. The case is at the stage of prosecution evidence and the charges have been framed against the accused. However, the accused have approached Hon’ble High Court by way of Criminal Revision Petition and the case is under consideration.

The process/trial is the punishment.

Irrespective of how the trial concludes, it is always the prolonged trial against the accused which drains the life out of them. Effective and speedy trial not only favors the victim but also helps the accused to pursue their life in general, if acquitted. The long taxing trial is the actual punishment which one faces while the Sword of Damocles hangs over them. It would be prudent for the accused to move to superior courts for examination of untenable charges framed, instead of facing a prolonged trial.

Victim’s point of view.

Victims must put their faith in the due process of law and allege the case as it is, they must not relent under the pressure to level wild allegations and to frivolously indict the entire family of the accused. It is pertinent to mention here that when allegations devoid of merit are subject to cross-examination they succumb and then the original case is also lost due to the credibility of the witness. If the case is made out as it is then the chances of conviction become considerably high.

False Claims Act: Need of the hour.

In the prevailing circumstances, a stringent law which sternly deals with false claims is need of the hour. If we examine the rates of conviction related to crime against women we realize that there is a systemic overhaul which is required. “According to the latest data on crimes, released by the National Crime Records Bureau (NCRB), more than 3.3 lakh cases of crimes against women were registered in 2016. Of these, 1.1 lakh cases related to ‘Cruelty by husband or his relatives’. Cases under Section 498A were found to have the lowest conviction rate — merely 12.1 per cent — among all cases of crimes against women.”[4]The purpose of trial is to bring guilty to justice and not the subjugation of accused to trial itself.

(DISCLAIMER: Writer nowhere undermines the credibility of any person, institution or law. The above work is only an attempt to elucidate on the issue from a contrasting perspective. The above work cannot be used as an advice or opinion on any law.)

Writer is a practicing advocate in SC and HCs. He can be reached at email:utkarsh.sjc05@gmail.com.

[1](2014) 8 SCC 273.

[2]2017 SCC OnLine SC 821

[3][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.]

[4] https://indianexpress.com/article/india/section-498a-dowry-most-firs-least-convictions-4969913/

By: Utkarsh Singh
The author can also be reached at utkarsh.sjc05@gmail.com