December 11, 2018

MISUSE OF SECTION: 498A: LEGAL TERRORISM?

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Section 498a of Indian penal court dealt with the provision which provides legislative protection to women against domestic violence and dowry. The objective was to allow the state to intervene rapidly and prevent the murders of young girls who were unable to meet the dowry demands of their in-laws. The system of dowry existed in India even before the British rule but not in the format that is prevalent in the society today. Earlier women were gifted wealth from their parents during marriage and this served as a tool of financial independence for the bride even after marriage. So it’s hard to determine that when and where did the contradiction of the menace of dowry enter our society?  No matter how it comes but due to this menace certain amendments took place in Indian penal code, Indian evidence act and the Dowry prohibition act with the intention of protecting women from marital violence, abuse and dowry demands. The most important amendment came in the form of the introduction of Section 498A in the Indian Penal Code (IPC).

Therefore; it’s a kind of tool which acts as a power given to women to protect herself from any kind of marital violence against her. But we know that the greater the power, the more dangerous the abuse. I believe the root of all evil is the abuse of power. Section 498A is a cognizable, non-bailable, and non-compoundable offence. Unfortunately, the formulation of this law left a host of loopholes for exploitation and abuse. 498a is an “extortion racket”: (http://www.legallyindia.com/)

  • It is a law that fosters corruption and enables government agencies like the police to violate Fundamental Rights.
  • It plays a role in gender-based vote bank politics.
  • It denies justice to the real victims of dowry harassment.
  • It exposes innocent families to the evils of the corrupt Indian criminal justice system.
  • This is a law poisoning the lower judiciary by exposing it to corruption.
  • Above all, this is a gamble bound to fail if the accused choose to fight back.

It is not always that only women are getting harassed. Nowadays, there are many innocent men who have been falsely victimized under section 498a.  Unfortunately, Indian law failed in providing legal protection to men. What if the husband and their family were wrongly accused and trapped under the section 498a of IPC? What if women blackmail her in laws and her husband? Women who are doing are unaware from the fact that this not only causing problem to innocent men but also innocent women who are really suffering from the harassment. It is becoming hard for them also to prove in the court that they are the actual victim.

 

By observing the various false cases filed under 498a; “Supreme Court calls 498a as a legal Terrorism”. Though there are many reasons to call 498a as anti-social, some of them are highlighted below: ( http://www.498a.org/top25.htm)

  • Non-bailable warrant does not require proof before arrest. No investigation necessary. This exposes the vulnerability of the accused taking away their basic human rights.
  • Even those who were not part of the ‘day-to-day’ family life could be named and arrested on one complaint, which can also include pregnant women and children.
  • It is non-compoundable which means that the complaint can’t be taken back that hinders any scope of reconciliation between the couple.
  • Old parents who lived with dignity and respect have to live with the stigma of harassing their daughter-in-law for the rest of their lives
  • 498A case can be filed even after the divorce, which only means that the accuser wants to demand money legally apart from maintenance.
  • There is no prohibition clause in the 498A law that would stop women to misuse it.
  • It is nearly impossible to file a case of defamation on the accuser because the police will not register the case and it would be hard to prove it.

The Supreme Court laid down the new directions for making police officers and judicial magistrates liable for departmental action and contempt proceedings for making “scurrilous” arrests and ordering “routine” detention under Section 498A of the IPC or under Section 4 of the Dowry Prohibition Act.

The bench used the “Crime in India 2012 Statistics” published by the National Crime Records Bureau of the Ministry for Home Affairs to point out:

“The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision.”

“According to the statistics, 6 per cent (1,97,762) of total arrests made in 2012 were under Section 498A, the rate of charge sheeting under the section was 93.6 per cent while the conviction rate was only 15 per cent and out of the 3,72,706 cases pending trial 3,17,000 are likely to result in acquittal.”

Eight new directions laid down by the Supreme Court are as follows: (http://www.498a.org/top25.htm)

  • State governments are to instruct police officers against routine arrests under Section 498A and to fulfill conditions under Section 41 of the CrPC
  • Provide a checklist of Section 41 sub clauses to all police officers.
  • That checklist should be filled and appended with reasons and materials to support arrest, and forwarded by police officers to magistrates.
  • Magistrates will peruse this forwarded report and record their satisfaction before ordering detention.
  • The decision not to arrest an accused, with written reasons for the same, will be forwarded to the magistrate within two weeks from the date of the institution of the case.
  • Notice of appearance in terms of Section 41A of CrPC will be served on the accused within two weeks from the date of institution of the case, with written reasons.
  • Police officers will be liable for departmental action and punishable for contempt by the high court for failure to comply with these directions.
  • Magistrates authorizing detention without recording reasons will be liable for departmental action by the high court

The existence of dowry deaths in the rural areas is not the reason for lenient laws as understood by women organizations. The law is already unfair, biased and inapplicable.

The true reason for dowry deaths in rural areas is poverty and under-developed civilization. Dowry deaths still flourishing in the rural areas and misuse of 498a law is flourishing in the urban areas. If the misuse of laws still continues then the social infrastructure will collapse which will have a direct unfavorable impact on the country’s economy. If the law can’t curb dowry deaths, can’t even stop misuse, then what is the use of such a law that causes millions of people to suffer?

 

REFRENCES:

http://www.498a.org/top25.htm

http://www.legallyindia.com/

http://indiankanoon.org/doc/538436/

http://menrightsindia.net/498a-judgments

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About Priyanka Sinha 13 Articles
Advocate and Cyber Law Consultancy also Pursuing Intellectual Property Law from NLSIU, Bangalore.
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