In what can be termed as an extremely questionable interpretation of law, a judgement of the Punjab and Haryana High Court, while quashing a case filed under section 498A of the IPC against a male, remarks that the section was being used as a weapon instead of a shield by “disgruntled wives”. This not only takes jurisprudence back by decades but also sets a dreadful precedence in gender issues. There are always possibilities that in a given case an emancipatory section of the law may have been misused. To use an instance, if at all, to make generalisations on the law itself retards space and growth of gender sensitised jurisprudence. Since the amendment of the law to insert this amendment in 1983, this push back has been a norm.
498 A – inception and significance
Section 498A was inserted in the IPC in 1983 in order to protect married women from cruelty of her husband and his relatives. The section states 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 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.]
Clearly, the word cruelty has been given a wider meaning and scope in this section so as to protect women from domestic abuse and dowry related cruelty. The objective was to deal with the menace of dowry deaths and harassment of married women.
The section was inserted to address the lacuna in law despite the Dowry Prohibition Act, 1961 in place. The alarming rise in dowry deaths resulted in women’s rights movement in 1970s and 1980s to bring marital cruelty under the ambit of criminal law.
In fact, the court has even protected the second wife under the purview of this section. In Reema Aggarwal v. Anupam, (2004) 3 SCC 199), the Supreme Court had held, “…The legislature has taken care of children born from invalid marriages. Section 16 of the Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that the legislature which was conscious of the social stigma attached to children of void and voidable marriages closed its eyes to the plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship? If such restricted meaning is given, it would not further the legislative intent.”
The apex court has even explored the definition of the word “cruelty” and the subjectivity of the term. In G.V. Siddaramesh v. State of Karnataka, (2010 3 SCC 152) the court held “Cruelty can either be mental or physical. It is difficult to straitjacket the term cruelty by means of a definition because cruelty is a relative term. What constitutes cruelty for one person may not constitute cruelty for another person.”
The fact that the offence of cruelty under section 498A is cognizable, non-bailable and non-compoundable, shows the gravity of the offence and intention of the legislature to treat it as a serious offence.
Every law is subject to misuse by an individual and it is by some means collateral damage which is always a small percentage of cases registered under a particular offence. Naysayers will put up statistics of conviction rates in a particular offence to prove the misuse of law, but conviction rate is by no means proof of false case. More often than not the low conviction rate in a particular crime is owing to lack of substantial and conclusive evidence or apathetic or even inadequate investigation by the police.
Rise in domestic violence
Cruelty is the most important element in cases of domestic violence. The definition of cruelty, in fact, encompasses all kinds of domestic violence. In Ramesh Dalaji Godad v. State of Gujarat (II (2004) DMC 124), the Supreme Court held that “it is not important to show or put forth that the woman was beaten up- abusing her verbally, denying her conjugal rights or even not speaking to her properly would fall into the ambit of mental cruelty”; thus bringing mental trauma under the ambit of cruelty and further widening the scope of domestic violence, instead of limiting it to physical abuse and assault.
Hence, a rise in incidents of domestic violence during lockdown, which means people spending most of their time at home, is worrisome. The World Health Organization (WHO) also raised concern on the rising cases stating that there is a 60% rise in these cases in Europe.
The story is no different back home. The Tribune reported that domestic violence cases have risen by 21% since lockdown. Tamil Nadu state government submitted to the High Court that since lockdown, more than 600 cases of domestic abuse have been registered in the state. It is pertinent to note, that the number of actual incidents is always more than reported incidents in such domestic offences.
498A Amendment preceded enactment of the India’s Domestic Violence Law
It took the Indian Parliament a dozen years after the insertion of this section in 1983 to enact the Protection of Women from Domestic Violence Act, 2005 [Act No 43 of 2005]. The brief introduction to this law states that it is “An Act to provide for more effective protection of the rights of women guaranteed under the Constitution who are victims of violence of any kind occurring within the family and formatters connected therewith or incidental thereto.”
Impact on jurisprudence
In a situation where domestic violence and abuse enjoys societal sanction even and discussions on marital rape are taboo, the remarks by the Punjab and Haryana High Court could set an unwarranted precedent. It was a single judge bench of (Justice) Jaishree Thakur even termed it as a “common practice to use provisions of section 498A IPC as a weapon rather than shield by disgruntled wives. The simplest way to harass is to get the relatives of the husband roped in under this provision…” such a statement coming from a high court not only discredits genuine cases of violence which are much higher in number than frivolous ones but also instills apathy in the police while dealing with such cases. Opinions voiced by high courts judges leave a lasting imprint on jurisprudence of crimes against women, making the fight against domestic abuse and, in general, gender-based crimes against women even harder.
Even the Supreme Court has not shied away from making such haphazard statements in what were deemed as false cases of cruelty against husband and his family members. In 2017, the apex court had, in Rajesh Kumar & Ors v. Sate of U.P. (2017 SCC OnLine SC 821), had given directions to set up Family Welfare Committees which would scrutinize any complaint under section 498A of IPC before the police could look into it. The law that was formulated for the protection of women was now being used to protect the interests of men, basis some sparse frivolous cases; thus, completely defeating the legislative intent. These directions were later withdrawn by the apex court in 2018 by a bench led by then CJI Dipak Misra. The bench accepted that such a committee would create an extrajudicial entity which has not been envisaged under the Criminal Procedure Code (CrPC). The bench also withdrew another guideline that gave a district judge the power to dispose of proceedings if the parties in a case reach a settlement, since the same was contradictory to the non-compoundable nature of the crime stipulated under the IPC.
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