false498a

February 17, 2010

498amisuse-judgements

Filed under: 498a-misuse-judgements — Fighting Legal Terror @ 9:32 am

6.1  In Sushil Kumar Sharma Vs. Union of India (UOI) (Case No: Writ Petition (C) No. 141 of 2005), the Honorable Supreme Court has observed:

 

“The object of the provision is prevention of the dowry meance. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bonafide and have filed with obligue motive. In such cases acquittal  of the accused does not in all cases wipe out the ignomy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame work. As noted the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used a shield and not assassins’ weapon. If cry of “wolf” is made too often as a prank assistance and protection may not be available when the actual “wolf” appears. There is no question of investigating agency and Courts casually dealing with the allegations. They cannot follow any strait jacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the innocent. There is no scope for any pre-conceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumption that the accused persons are guilty and that the complainant is speaking the truth. This is too wide available and generalized statement. Certain statutory presumption are drawn which again are reputable. It is to be noted that the role of the investigating agencies and the courts is that of watch dog and not of a bloodhound. It should be their effort to see that in innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally indisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view. “

6.2  In Som Mittal Vs Govt. of Karnataka (Appeal (crl.) 206 of 2008, DATE OF JUDGMENT: 29/01/2008), the Honorable Supreme Court has observed:

33. Experience has shown that the absence of the provision for anticipatory bail has been causing great injustice and hardship to the citizens of U.P. For instance, often false FIRs are filed e.g. under Section 498A IPC, Section 3/4 Dowry Prohibition Act etc. Often aged grandmothers, uncles, aunts, unmarried sisters etc. are implicated in such cases, even though they may have nothing to do with the offence. Sometimes unmarried girls have to go to jail, and this may affect their chances of marriage. As already observed by me above, this is in violation of the decision of this Court in Joginder Kumars case (supra), and the difficulty can be overcome by restoring the provision for anticipatory bail.

6.3       Onkar Nath Mishra & Ors vs State (Nct Of Delhi) & Anr on 14 December, 2007, Honorable Supreme Court observed as:

The Honorable Judge has observed that:

“Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, we find that charge under Section 498A I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned.”

6.4      In Kans Raj vs. State of Punjab and others AIR 2000 SC 2324 the Hon’ble Supreme Court, inter alia, observed as under:-:

The Honorable Judge has observed that:

“Crl.A.No.339-41/2005 Page 21 of 27 “In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in thematters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the    real accused as appears to have happened in the instant case.””

6.5      IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No.339-41/2005 % Reserved on: 23rd February, 2010 Date of Decision: 02nd March, 2010

The Honorable Judge has observed that:

“23. There is growing tendency these days to take revenge  from the husband, by implicating all his family members, by  making allegations of general nature  against all of them,  though the husband alone may be responsible for the cruelty  inflicted to the woman. The Courts, therefore, need to  carefullyanalyze the evidence and need to separate the chaff  from the grain, so as to arrive at a just and fair conclusion.”

 

6.6  IN THE HIGH COURT OF DELHI AT New Delhi, Reserved on: 12.02.2007      Date of Decision: February 23, 2007, CRL.M.C.7262/2006 by JUSTICE SHIV              NARAYAN DHINGRA

“Now-a-days, exorbitant claims are made about the amount spent on marriage and other ceremonies and on dowry and gifts. In some cases claim is made of spending crores of rupees on dowry without disclosing the source of income and how funds flowed. I consider time has come that courts should insist upon disclosing source of such funds and verification of income from tax returns and police should insist upon the compliance of the Rules under Dowry Prohibition Act and should not entertain any complaint, if the rules have not been complied with.

The Metropolitan Magistrates should take cognizance of the offence under the Act in respect of the offence of giving dowry whenever allegations are made that dowry was given as a consideration of marriage, after demand. Courts should also insist upon compliance with the rules framed under the Act and if rules are not complied with, an adverse inference should be drawn. If huge cash amounts are alleged to be given at the time of marriage which are not accounted anywhere, such cash transactions should be brought to the notice of the Income Tax Department by the Court so that source of income is verified and the person is brought to law. It is only because the Courts are not insisting upon compliance with the relevant provisions of law while entertaining such complaints and action is taken merely on the statement of the complainant, without any verification that a large number of false complaints are pouring in.

I consider that the kinds of vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any court at their face value and the allegations have to be scrutinized carefully by the Court before framing charge.”

6.7  IN THE HIGH COURT OF DELHI AT NEW DELHI, CRL. R 462/2002  DATE OF DECISION: May 19, 2003, Savitri Devi ………….Petitioner. Through Mr. H C Mittal,Adv.
Versus  Ramesh Chand and Ors. …………Respondents  Through Mr. R P Bhardwaj, Adv.
HON’BLE MR. JUSTICE J.D. KAPOOR

 

21.Before parting, I feel constrained to comment upon the misuse of the provisions of Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage itself and has proved to be not so good for the health of the society at large.

To leave such a ticklish and complex aspect of proposition as to what constitutes `marital cruelty’ and `harassment’ to invoke the offences punishable under sections 498A/406 IPC to a lower functionaries of police like Sub Inspectors or Inspectors whereas some times even courts find it difficult to come to the safer conclusion is to give the tools in the hands of bad and unskilled masters.

22. This Court has dealt with thousands of cases and matters relating to dowry deaths and cases registered under Section 498A./406/306 IPC arising out of domestic violence, harassment of women on account of inadequate dowry or coercion of the woman for not fulfilling the demand of dowry and hundred of divorce cases arising therefrom. Experience is not so happy nor is implementation or enforcement of these laws is anything but satisfactory or punctilious.

23.These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative- including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sistes, sister-in-laws, unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to 15 or even more relatives of the husband. Once a complaint is lodged under Sections 498A/406 IPC whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run here and there and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out.

24.These provisions have resulted into large number of divorce cases as when one member of the family is arrested and sent to jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and marriage for all practical purposes becomes dead. The aftermath of this is burdensome, insupportable and miserable more for the woman. Remarriage is not so easy. Once bitten is twice scared. Woman lacking in economic independence starts feeling as burden over their parents and brothers. Result is that major bulk of the marriages die in their infancy, several others in few years. The marriage ends as soon as a complaint is lodged and the cognizance is taken by the police.

25.It was primarily a social problem and social evil but has been allowed to be dealt with iron and heavy hands of the police. These provisions have tendency to destroy whole social fabric as power to arrest anybody by extending or determining the definition of harassment or cruelty vests with the lower police functionaries and not with officers of higher rank who have intellectual capacity to deal with the subject.

29.To start with, marital offences under Sections 498A/406 IPC be made bailable , if no grave physical injury is inflicted and necessarily compoundable. If the parties decide to either settle their disputes amicably to salvage the marriage or decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise. The past should not haunt them nor the hatchet they have buried should be allowed to be dug up and mar their present life or future married life.

30.Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human relations and viewing this problem from human and social point of view, and the law as it stands today it is required that the investigation into these offences be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police officer below the rank of ACP for the offences under sect on 498A/406 IPC and D.C.P for the offence under Section 304-B IPC i.e dowry death should be vested with investigation and where minor school going children are named, they shall not be arrested and be sent to the court for taking cognizance and futher proceedings. Their arrest ruin their future life and lower them in their self esteem. This court has even dealt with the bail applications and prosecution of children merely for the fact that their names also figured in the complaint lodged by the wife. In certain cases even grand-parents of the husband who are in their eighties and nineties suffer this traumatic situation.

31.There is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing.

32. These ground realities have pursuaded this court to recommend to the authorities and law makers to have a review of the situation and legal provision.

Copy of the order be sent to Law Secretary, Union of India.

6.8  2002 (4) ALT 592 (D.B), In the High Court of judicature, Andhra Pradesh at hyderabad

B. S. A Swamy and Dr. G. Yethirajulu, JJ, A. A. O. No. 1039 of 2001-Decided on 9-7-2002

Saritha Vs R.Ramachandra reported in (I) (2003) DMC 37 ( DB )

“The court would like to go on record that for nothing the educated women are approaching the courts for divorce and resorting to proceedings against in-laws under section 498a , IPC implicating not only the husbands but also their family members whether in India or Abroad. This is nothing but misuse e of the beneficial provision intended to save the women from unscrupulous husbands. It has taken a reverse trend now. In some cases this kind of actions is coming as a formidable hurdle in the reconciliation efforts made by either well meaning people or the courts. and the sanctity attached to the marriage in Hindu Religion and the statutory mandate that the courts try to save the marriage through conciliatory efforts till last , are being buried neck-deep . It is for the law commission and the parliament either to continue that provision ( section 498a IPC ) in the same form or to make that offense non cognizable and bailable so that ill-educated women of this country do not misuse the provision to harass innocent people for the sin of contracting marriage with egoistic women “

6.9  In 1990 Punjab and Haryana High court observed in Jasbir Kaur vs. State of Haryana, (1990)2 Rec Cri R 243 case as:

“It is known that an estranged wife will go to any extent to rope in as many relatives of the husband as possible in a desperate effort to salvage whatever remains of an estranged marriage.”

 

6.10  In Kanaraj vs. State of Punjab, 2000 CriLJ 2993 the apex court observed as:

“for the fault of the husband the in-laws or other relatives cannot in all cases be held to be involved. The acts attributed to such persons have to be proved beyond reasonable doubt and they cannot be held responsible by mere conjectures and implications. The tendency to rope in relatives of the husband as accused has to be curbed”

6.11  Karnataka High Court, in the case of State Vs. Srikanth, 2002 CriLJ 3605 observed as:

“Roping in of the whole of the family including brothers and sisters-in-law has to be depreciated unless there is a specific material against these persons, it is down right on the part of the police to include the whole of the family as accused”

 

6.12  Supreme Court, In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case, observed as:

“Whether one spouse has been guilt of cruelty to the other is essentially a question of fact. The impact of complaints, accusation or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of the sensitivity, degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own facts whether mental cruelty is made out”

6.13       Delhi high Court, in Savitri Devi vs. Ramesh Chand, 2003 CriLJ 2759 case observed as:

“These provisions were though made with good intentions but the implementation has left a very bad taste and the move has been counter productive. There is a growing tendency amongst the women which is further perpetuated by their parents and relatives to rope in each and every relative including minors and even school going kids nearer or distant relatives and in some cases against every person of the family of the husband whether living away or in other town or abroad and married, unmarried sisters, sisters-in-law, unmarried brothers, married uncles and in some cases grand parents or as many as 10 o 15 or even more relatives of the husband.”

 

6.14       Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others, 2003 CriLJ 3394 case observed as:

“From the reading of the FIR, it is evident that there is no specific allegation of any act against petitioners Nos.2 and 3, which constitute offence under s.498-A I.P.C. I am satisfied that these two persons have been falsely implicated in the present case, who were minors at the time of marriage and even at the time of lodging the present FIR. Neither of these two persons was alleged to have been entrusted with any dowry article nor they alleged to have ever demanded any dowry article. No specific allegation of demand of dowry, harassment and beating given to the complainant by the two accused has been made. The allegations made are vague and general. Moreover, it cannot be ignored that every member of the family of the husband has been implicated in the case. The initiation of criminal proceedings against them in the present case is clearly an abuse of the process of law”

 

6.15       Jharkhand High Court in Arjun Ram Vs. State of Jharkhand and another, 2004 CriLJ 2989 case observed as:

“In the instant case, it appears that that the criminal case has been filed, which is manifestly intended with mala fide and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

6.16       Punjab and Haryana High Court in Mukesh Rani Vs. State of Haryana 2002 (1) RCR (Criminal) 163 observed as:

The learned Single Judge of Punjab and Haryana High Court has observed that:

“Whenever there is a matrimonial dispute between the husband and wife for the fault of husband other relations of the husband that is the brothers, sisters, parents are also roped in the litigation on the allegation of demand of dowry, whether they are living jointly or separate and sometimes even the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far off places in the matrimonial house are involved.”

 

6.17       Delhi High Court in Anu Gill Vs. State & Anr. 2001 (2) JCC (Delhi) 86 observed as:

The Honorable Judge of Punjab and Haryana High Court has observed that:

8. It has almost become a practice that whenever a police report is lodged consequent upon a matrimonial discord, there is always a tendency on the part of the complainant to involve practically all the relations of her in-laws’ family either out of vengeance or to curl out appropriate settlement. Such a tendency ought to be deprecated.”

 

6.18       Ramesh & Ors. Vs. State of Tamil Nadu AIR 2005 SC 1989 observed as:

The Honorable Judge has observed that:

The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband’s relations as possible.

 

6.19       Delhi High Court CHANDER KANTA LAMBA & ORS. observed as:

The Honorable Judge has observed that:

18. In the light of the aforesaid proposition if one examines the authorities cited by the learned Senior Counsel one cannot but agree that the proposition of law which is enunciated in all these cases is that invariably whenever matrimonial relations have turned sour there is a tendency on the part of the complainant whether it is done by her of her own free will or at the instigation of her parents, brothers, sisters or even legal advice to make all kinds of wild and reckless allegations against the entire family of the husband.

 

6.20       THE ADDITIONAL SESSIONS JUDGE-01/SOUTH,PATIALA HOUSE COURT in Criminal Revision No. 88/2008/2002, observed as:

The Honorable Judge has observed that:

It is settled legal position that vague and bald statement7 cannot be the foundation for framing of charge. Since a tendency has emerged to rope in other family members of the husband in cases of 498-A, concrete allegations with regard to the date, the place, the manner, the act of cruelty should be present in the evidence in order to frame a charge for offence under Section 498-A. Because of the present propensity to rope in innocent persons, the Trial Court has to be vigilant while framing charge for offence under Section 498-A.

6.21       THE Panjab and harayana High Court in Krishan Jeet Singh vs State Of Haryana on 3/10/2002, observed as:

The Honorable Judge has observed that:

18. It is germane to mention here that the petitioner had stayed at her matrimonial home only on four occasions during her marital life. These are from the date of marriage that is February 18, 1991 till February 21, 1991, from February 22, 1991 to February 25, 1991, from March 12, 1991 to March 14, 1991 and thereafter from June 15, 1991 to June 20, 1991. The total period of the stay of the petitioner at her matrimonial home as per her own version was 13 days in all. It is the case of the petitioner that during her short stay at her matrimonial home, she was given beating, abuses, and harassment on the point of  inadequate dowry given to her by her parents and further demand of dowry was made. It is an admitted fact that the parties belong to Hissar. As can be gleaed from the evidence led by the parties, the parties arc affluent and belong to families of high strata of society. The father of the petitioner is Deputy Director in Ch. Charan Singh Haryana Agriculture University, Hissar. The real uncle of the petitioner, Sh. Jawant Singh, was a Minister in the State Government. The petitioner herself is educated. The respondent is also running a restaurant in Hissar besides having agricultural land. With this background, this Court is of opinion that in such a short span of 13 days, demand of dowry, as has been alleged by the petitioner, could not have been made by the respondent or his family members. At the risk of repetition, it is being mentioned that had it been so, the figure that is Rs. one lac or two lacs or Rs. 11,000/- must have been referred to in the petition by the petitioner which she did not for the reasons best known to her. This Court is conscious of a fact that in these days when the number of divorce petitions are increasing in our society, this is one of the easiest allegations to level against the husband by the wife. It is easy to level it but it is very difficult to prove the same. It also appears obnoxious that a bride, as the petitioner was, when left her parental home for her permanent home that is her husband’s home after the marriage on February 18, 1991 and stayed there upto February 21, 1991 and during 2-3 days, she was given beating and abuses by the respondent and his family members because it is in the rarest of rate cases that such bad treatment would be given to the bride by the bridegroom or his family members, particularly having considered the background of the families, as has been indicated above.”

6.22       THE Orrissa High Court in Benumadhab Padhi Mohapatra vs State on 28/8/2003, observed as:

The Honorable Judge has observed that:

“But then, while dealing with the prosecution relating to such offences the Court cannot close their eyes  to the fact that the provisions are also misused by unscrupulous litigants to satisfy their personal vendetta. Often being enraged, innocent relatives are roped in just for the sake of harassment and taking revenge. In view of the aforesaid scenario the Court has to be careful while dealing with cases involving dowry torture.”

6.23      THE HON’BLE SRI JUSTICE P. SWAROOP REDDY Criminal Petition No. 6642 of 2007, 22-11-2007, Kamireddy Mangamma and others, State of AP represented by the Public Prosecutor, Counsel for the Petitioner: Sri D. Bhaskar Reddy, Advocate
Counsel for Respondent No.1: The Public Prosecutor,  observed as:

The Honorable Judge has observed that:

4. Thus most of the allegations in the complaint are vague and petitioner Nos. 2 to 5 are married sisters and their husbands, who are admittedly living elsewhere and out of them, A-5 is living in
USA. It is very difficult to believe that from USA A-5 every day used to telephone and instigate the other accused to harass the complainant. As per the complaint, A-5 has grudge against the
complaint, but it is not stated as to why A-5 should have grudge against the complainant.

6. The nature of allegations referred to in the complaint, particularly against the present petitioners, particularly against petitioner Nos. 2 to 5, the married daughters and their husbands, would show that in all probability, the allegations are false and exaggerated. It is very difficult to believe that the third
petitioner used to harass the complainant, all the way from USA by instigating the other accused, particularly when no reasons are shown for him to have any grievance against the complainant. The
reference to A-5 in the complaint, might be A-3 and, in fact, even that also would not make any difference.

8. Before parting with the petition, I feel it desirable to observe that there is rampant misuse of S.498-A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands; unmarried sisters and  brothers and married brothers and their wives. There are instances where even young children, aged below ten years, were also implicated in the offences of this nature. My experience, while sitting in matrimonial Bench revealed that several families are ruined;  marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin. To discourage this unhealthy practice, it is desirable that anticipatory bail is granted very liberally in all cases of S.498-A IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence.

9. Section 498-A IPC is incorporated by the Legislature basically in the interest of women and to safe guard them from harassment. But, it has become somewhat counter productive. In several cases, women are harassed, arrested and humiliated on the complaints given under section 498-A IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc.
10. Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc., are available and where there is sufferance of serious injuries or death of the victim only, perhaps, it is desirable to refuse anticipatory bail, that, too, for the accused-husband. Another important aspect is in this type of cases; there is no chance of witnesses turning hostile or being influenced by the accused, as the witnesses would invariably be the kith-and-kin of
the alleged victim like herself and her parents etc. These aspects have to be kept in view, while dealing with the cases of anticipatory bail/bail in cases of offences involving section 498-A IPC.

6.24       THE Allahabad High Court in Case :- CRIMINAL MISC. WRIT PETITION No. – 3322 of 2010, Petitioner :- Sanjeev Kumar & Others, Respondent :- State Of U.P. & Others, Petitioner Counsel :- P.N. Gangwar, Respondent Counsel :- Govt. Advocate, observed as:

The Honorable Judge has observed that:

Hon’ble Amar Saran,J.
Hon’ble Shyam Shankar Tiwari,J.

The other reason why this Court often interferes in such cases, is that when the atmosphere, between the wife and her natal family and the husband and his family has become sour, there is a tendency to rope in as many of the relations of the husband as possible, even though they may not be directly involved in the crime. This negative tendency was adversely commented upon by the Supreme Court in Kansraj v. State of Punjab, AIR 2000 SC 2324. Such en masse involvement of a large number of family members takes place because in the aftermath of the incident, tempers are extremely high, the parties do not have a cool mind, and the aggrieved party at that stage only wants to seek recompense, by sending the other party to jail. It is only with the passage of some time usually with the help of mediators, that wisdom may dawn and the complaining party may consider the advisability of exploring other options such as either to resolve their differences and to come together, or to mutually agree to part on acceptable terms.

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