Sec. 498A IPC and its background

In the modern times the State had shown its concerns by identifying the act of dowry as a social malpractice. The term Dowry was defined and its transaction was prohibited even prior to independence. Sindh Deti Leti Act was passed in the year 1939 by the provincial government of Sindh state aiming to discourage the practice of dowry.

After independence the state of Bihar and Andhra Pradesh passed Bihar Dowry Restraint Act, 1950 and Andhra Pradesh Dowry Prohibition Act, 1958 respectively with the objective of eradicating the practice of dowry system from their respective states.

In May 1961, Dowry Prohibition Act, 1961 was passed which came into force on 1st July, 1961. The state governments were allowed to amend the Dowry Prohibition Act, 1961 to make it more effective to fight the evil of dowry in their respective states, but due to several factors this Act of 1961 could not bring the desired changes, for which it was enacted. It was, therefore, taken as a failure.

A Joint Committee of parliament was appointed to locate the causes for the failure of Dowry Prohibition Act 1961 and further suggest effective measures to eradicate this evil of Dowry. The Joint Committee took evidence and consulted many people including experts and concluded that the following factors contributed towards the disappointment:

• The term Dowry was very narrowly defined.
• Secondly, the parents were not coming forward with complaints against the dowry seekers
• Thirdly, the cognizance of offences under the Act could not be taken except on a complaint made within one year from the date of offence.
• Fourthly, the prosecution under the Act could commence only if a notice was given to the government to initiate action against the accused
• The punishment provided was meager and therefore did not act as deterrent.
• Also the fine to be imposed was very low and the Offences in question were not cognizable

The Committee recommended some amendments in criminal law, resulting into the passing of Criminal Law Amendment Act 1983 which introduced S. 498A IPC to punish cruelty related to the act of dowry. Also Code of Criminal Procedure (CrPC) section 174, 175, & 176 were amended directing postmortem and inquiry in cases of unnatural death of a woman within 7 years of marriage in order to determine whether it is a Dowry Death.

Sec. 498 A IPC:

The Text of Sec. 498-A IPC reads as follows:

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 purposes 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.

Based upon recommendations of the Joint Parliamentary Committee in 1982, a Criminal Law Amendment Act was passed in the year 1983 and several amendments were made in the Indian Penal Code 1860, the Code of Criminal Procedure 1973 and the Evidence Act 1872. Section 498 A (under a new and separate Ch. XXA) was added to the Indian Penal Code 1860. Section 113A and 113B were added to Evidence Act 1872; these two sections in Evidence Act raise a presumption against the husband and his relatives in case of ‘dowry deaths’. Section 174(3) CrPC was amended to make post mortem mandatory in a case of seemingly (apparent) dowry death or suicide by a married woman. Section 176 of the code was also amended to make an enquiry by Magistrate necessary in such cases.

These criminal law reforms held great promise at the time of their enactment. The criminalisation of Domestic Violence in the form of Sec 498A and 304B (dowry death) sought to increase the certainty and severity of legal responses, thereby correcting historical, legal, and moral disparities in the legal protections afforded to abused women. It sought for the first time to bring the issue of domestic or family violence out of the protected private realm of the family and into the public domain in India.

These amendments reflected the anxiety of the Law makers to extend protection to the married women against the cruelty at matrimonial home. Prior to 1983 every form of violence committed within the family, either at natal or matrimonial home was not considered as an offence. Domestic violence was considered as a private affair and this was somewhat immune from interference of public authorities. But after this enactment of Sec. 498-A IPC, the position was changed. Domestic Violence, for the first time, was exposed to the State – Intervention.

Section 498 A IPC brought about a change in the legal scenario it defined and made the cruelty, by a husband or the relative of the husband punishable with imprisonment for a term which may extend to three years and also liable to fine. This section defines the cruelty as 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 mental or physical health 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.


Highlighting this, the Hon'ble Supreme Court (AIR 1988 SC 121) observed in Shobha Rani v. Madhukar Reddi

“There has been a marked change in the life around us. In matrimonial duties and responsibilities in particular, there is a sea change. They are of varying degrees from house to house or person to person. Therefore, when a spouse makes complaint about the treatment of cruelty by the partner in life or relations, the Court should not search for standard in life. A set of facts stigmatised as cruelty in one case may not be so in another case. The cruelty alleged may largely depend upon the type of life the parties are accustomed to or their economic and social conditions. It may also depend upon their culture and human values to which they attach importance. The Judges and lawyers, therefore, should not import their own notions of life. Judges may not go in parallel with them. There may be a generation gap between the Judges and the parties. It would be better if the Judges keep aside their customs and manners. It would be also better if Judges less depend upon precedents.
………
A new dimension has been given to the concept of cruelty. Explanation to Sec.498-A provides that any wilful conduct which is of such a nature as is likely to drive a woman to commit suicide would constitute cruelty. Such wilful conduct which is likely to cause grave injury or danger to life, limb or health (whether mental or physical of the woman) would also amount to cruelty. 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 would also constitute cruelty. The cruelty as a ground for dissolution of marriage if not admitted requires to be proved on the preponderance of probabilities as in civil cases and not beyond a reasonable doubt as in criminal cases.”

The amendment Act also introduced Sec. 304-B IPC which also deals with the cruelty in the hands of in-laws which results into the death of the woman. Earlier it was thought that the cruelty mentioned in Sec. 498-A IPC and Sec. 304-B IPC. The languages of Sec. 498-A IPC and Sec. 304-B IPC are not mutually exclusive as observed by the Hon'ble Supreme Court in (AIR 2003 SC 2865 ) Hira Lal v. State (Govt. of NCT), Delhi in the following words:

“Question is whether a case under S. 498-A has been made out, even if accusations under S. 304-B fail. It is to be noted that Ss. 304-B and 498-A, I.P.C. cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The Explanation to S. 498-A gives the meaning of 'cruelty'. In S. 304-B there is no such explanation about the meaning of 'cruelty.' But having regard to common background to these offences it has to be taken that the meaning of 'cruelty' or 'harassment' is the same as prescribed in the Explanation to S. 498-A under which 'cruelty' by itself amounts to an offence. Under S. 304-B it is 'dowry death' that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in S. 498-A. A person charged and acquitted under S. 304-B can be convicted under S. 498-A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections. On the facts of the case even though it is difficult to sustain the conviction under S. 304-B, IPC, there are sufficient materials to convict the accused-appellants in terms of S. 306, IPC along with S. 498-A, IPC”

During the same period, two amendments to the Dowry Prohibition Act of 1961, enacted in 1984 and 1986, made dowry giving and receiving a cognizable offence. Even in this case, where a person is prosecuted for taking or abetting dowry or for demanding dowry, the burden of proof that he had not committed an offence was placed on the accused.

Women experience violence within the home in varied forms and not only physical or mental abuse. Women’s real life experiences show that they face violence in the form of physical, mental, verbal, psychological, sexual and economic violence. Sexual violence particularly needs to be recognized as a form of cruelty not only because of its high prevalence within marriage but also because the definition of rape within Sec 376 IPC specifically excludes marital rape as an offence. Section 498A does not address these different forms of violence specifically, and addresses “cruelty” very generally, as any act that is likely to drive the woman to commit suicide or to cause grave injury or danger to life, as mentioned earlier. As a result, it often is at the discretion of the police officer to assess whether the sexual abuse or verbal and psychological abuse faced by a woman from her husband or in-laws would qualify as cruelty under Sec 498A or not.