Section 498-A I.P.C.
Dawood J. Khatri
(Querist) 05 December 2010
This query is : Resolved
Can anyone give me the citation of the latest Apex Court Judgement or any High Court judgement in respect of S.498-A IPC to the tune that S.498-A IPC would not be attracted if the woman-complainant has been subjected to ill-treatment and cruelty without there being any demand for dowry or money or property from the husband or his relatives? Thanks.
D.J.Khatri, Advocate, Mumbai
Guest
(Expert) 06 December 2010
Demand of dowry is not essential for offence under section 498 A IPC.... cRUELTY defines in explanation (a) and (b) of the said section..... illegal demand explains in clause (b).... but if demand of dowry is not there but cruelty has been committed defined in clause (a)... thn offence is made out... no citation needed... law is clear....
I.P.C. 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 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 meet such demand.]
sangeeta mehrotra
(Expert) 06 December 2010
Domestic Violence Act for Women’s empowerment in India
Till the year 2005, remedies available to a victim of domestic violence in the civil courts (divorce) and criminal courts (vide Section 498A of the Indian Penal Code) were limited. There was no emergency relief available to the victim; the remedies that were available were linked to matrimonial proceedings; and the court proceedings were always protracted, during which period the victim was invariably at the mercy of the abuser.
This set of circumstances ensured that a majority of women preferred to suffer in silence. It is essentially to address these anomalies that the Protection of Women from Domestic Violence Act was passed.
Section 2(a) of the Act will help any woman who is or has been in a domestic relationship with the ‘respondent’ in the case.It empowers women to file a case against a person with whom she is having a ‘domestic relationship’ in a ’shared household’, and who has subjected her to ‘domestic violence’.
Children are also covered by the Act; they too can file a case against a parent or parents who are tormenting or torturing them, physically, mentally, or economically. Any person can file a complaint on behalf of a child.
=Who is defined as ‘respondent’ by this law?
Section 2 (q) states that any adult male member who has been in a domestic relationship with the aggrieved person is the ‘respondent’. The respondent can also be a relative of the husband or male partner .Thus, a father-in-law, mother-in-law, or even siblings of the husband and other relatives can be proceeded against.
=How does the new law define domestic abuse?
Section 3 of the law says any act/conduct/omission/commission that harms or injures or has the potential to harm or injure will be considered ‘domestic violence’.
Under this, the law considers physical, sexual, emotional, verbal, psychological, and economic abuse or threats of the same.
Even a single act of commission or omission may constitute domestic violence — in other words, women do not have to suffer a prolonged period of abuse before taking recourse to the law.
=How does the law ensure that a wife who takes legal recourse in the event is not intimidated or harassed?
An important aspect of this law is that it aims to ensure that an aggrieved wife, who takes recourse to the law, cannot be harassed for doing so. Thus, if a husband is accused of any of the above forms of violence, he cannot during the pending disposal of the case prohibit/restrict the wife’s continued access to resources/ facilities to which she is entitled by virtue of the domestic relationship, including access to the shared household. In short, a husband cannot take away her jewellery or money, or throw her out of the house while they are having a dispute.
=What are the main rights of a woman as recognised by this law?
The law is so liberal and forward-looking that it recognises a woman’s right to reside in the shared household with her husband or a partner even when a dispute is on .Thus, it legislates against husbands who throw their wives out of the house when there is a dispute. Such an action by a husband will now be deemed illegal, not merely unethical.
Even if she is a victim of domestic violence, she retains right to live in ’shared homes’ that is, a home she shares with the abusive partner. Section 17 of the law, which gives all married women or female partners in a domestic relationship the right to reside in a home that is known in legal terms as the shared household, applies whether or not she has any right, title or beneficial interest in the same.
The law provides that if an abused woman requires, she has to be provided alternate accommodation and in such situations, the accommodation and her maintenance has to be paid for by her husband or partner.
The law, significantly, recognises the need of the abused woman for emergency relief, which will have to be provided by the husband. A woman cannot be stopped from making a complaint/application alleging domestic violence. She has the right to the services and assistance of the Protection Officer and Service Providers, stipulated under the provisions of the law.
A woman who is the victim of domestic violence will have the right to the services of the police, shelter homes and medical establishments. She also has the right to simultaneously file her own complaint under Section 498A of the Indian Penal Code.
Sections 18-23 provide a large number of options for legal redressal. She can claim through the courts Protection Orders, Residence Orders, Monetary Relief, Custody Order for her children, Compensation Order and Interim/ Ex parte Orders.
If a husband violates any of the above rights of the aggrieved woman, it will be deemed a punishable offence. Charges under Section 498A can be framed by the magistrate, in addition to the charges under this Act. Further, the offences are cognisable and non-bailable. Punishment for violation of the rights enumerated above could extend to one year’s imprisonment and/or a maximum fine of Rs 20,000.
Dawood J. Khatri
(Querist) 06 December 2010
In the case of State of A.P. Vs. M. Madhusudan Rao, reported t 2009 ALL MR (Cri)547, a division bench of the Supreme Court has held in Para 11: "It is plain that as per clause (b) of the Explanation (in S.498-A, every harassment does not amount to "cruelty" within the meaning of S.498-A IPC. The definition stipulates that the harassment has to be with a definite object of coercing the woman or any person related to her, to meet an unlawful demand. In other words, for the purpose of S.498-A harassment simpliciter is not "cruelty" and it is only when harassment is committed for the purpose of coercing a woman or any other person related to her to meet an unlawful demand fo property etc. that it amounts to "cruelty" punishable under S.498-A IPC."
There is another interesting division bench Apex Court ruling reported at 2010 ALL MR (Cri) 2947, Preeti Gupta Vs. State of Jharkhand. The learned judges have observed in Paras 33-35, that complaints under S.498-A are usually filed over trivial issues without proper deliberation. They are often filed with oblique motive. Majority of such complaints are filed either on the advice of Advocates or with their concurrence. Advocates must ensure that exaggerated versions of small incidents are not reflected in criminal complaints. A serious relook of the entire provision is warranted by the legislature.
I am also of the opinion that a serious relook of the provisions of Protection of Women from Dometic Violence Act, is also needed. The Act is often misused by women to seek civil remedies in respect of maintenance and property.
D.J.Khatri, Advocate, Mumbai.
JT Rajasuriya, Chennai
(Expert) 07 December 2010
Mr.Dawood,
You have done wonderful work to show the subtle difference within the sections.
Hope other advocates note these points for future use.
