Should one fear the wife and daughter-in-law? By: Sh. B.N. Gururaj, Advocate

At present, in India, the answer seems to be in the affirmative, especially for young husband and his parents. Here is the background.

Life before Section 498A of IPC

There was a time, in none too distant past, when the newspapers reported almost on routine basis, cases of bride-burning. The ostensible motive was the demand of dowry, failure of the daughter-in-law and her parents to meet the demands and consequent criminal acts by the parents of the bride groom. These sickening episodes were reported with alarming regularity. The names bandied about sometimes, included powerful people in the society, politics, business. That was a time, when trial by media had not yet caught on. Matters were merely reported and not speculated upon. So much so that eventually, the Central Government moved out of its slumber and sometime in early nineties inserted Section 498A in the Indian Penal Code, 1860, so that in a case of cruelty to girls in the marital homes, not only the husband, but also near relatives of the husband could be arrayed as accused. The offence was punishable with seven yeas imprisonment.

Correspondingly, in the Code of Criminal Procedure 1973 also, the Schedule was amended to treat the offence under Section 498A of the IPC as cognizable and non-bailable offence. That is, being a cognizable offence, upon receipt of a complaint from a harassed girl or her family or even a near relative the police were empowered to arrest the accused persons named in the complaint, which would usually include the husband, parents-in-law, sisters-in-law. Being a non-bailable offence, under Section 437 of the Cr.PC, no magistrate could grant bail to the accused persons unless the public prosecutor was heard. In practice, this meant that time should be given to the public prosecutor to file written objections, thereafter hear the accused and then decide on granting the bail.

Use and abuse of new provision

Gradually the complaints from harassed daughters-in-law started trickling into the police stations and courts. The society generally cheered such events as it conferred power to strike back on the hapless girls who were going through hell in their marital home, suffering ignominy, mental agony, often physical injuries, not to speak of agony for her maternal home.

In the criminal law, the burden of proof is on the prosecution to prove the case beyond reasonable doubt. Hence, success rate in prosecution cases is quite low. Few years later, the courts, especially the superior courts such as the High Courts and the Supreme Court noted with concern that vast number of cases were getting dismissed at trial itself. In such of those cases, which came before the superior courts in criminal appeals or revision petitions, evidence was found to be wanting. Many cases were bereft of facts. Investigation by the police was either absent or very sketchy. The courts noted with concern that the police were more or less trigger-happy when it came to acting on complaints under Section 498A. The courts advised and directed that the police should be careful before exercising the power of arrest pursuant to a complaint filed under Section 498A. Of course, needless to add that as long as the statutory provision remains on the book, the police are bound by it and are entitled to act on that basis.

Ugly side of complaint under Section 498A

The flip side of this provision was that it became a milch cow for the police, greedy complainants and unscrupulous lawyers. For acting on the complaint from the daughter-in-law or her family, the police would take money. They would also make money from the husband’s side by threats of arrest. With it, another new and fertile field of police-station lawyering also grew. A tribe of lawyers who became adept and experts at helping the girl’s side in filing complaints, frequently false complaints. Where the ingredients were not available or the complaint did not know better, there was always a helpful police-station lawyer willing to fill in the blanks so that the complaint fitted within the scope of Section 498A.

Complainant aided by unscrupulous lawyers and corrupt police

Soon this provision became a tool for extortion, with the help of a Inspector or PSI always willing to help for a consideration from the girl’s side. The police could not case less what the demand was as long as the complainant was pleased. If the complainant was displeased, in compliance with the complaint and consideration received from the girl’s side, the Inspector or the PSI would arrest the named accused.

Arrests are done with great alacrity, in all case with almost no investigation, as though the accused might disappear like a whiff of smoke. Arrests are deliberately done at such timing, that the person has to spend at least one night in the police lock up, usually at around eight O’clock in the evening or thereabouts. The arresting officer would truthfully record that since it was too late to produce before a learned magistrate, the accused would be produced in the court the next day.

Another routine case for the trial court

At the court, it will be one more case of arrest produced before the magistrate. After asking the routine question whether police caused any inconvenience to the accused, the magistrate would send the accused to the Judicial Custody. That is, the accused will spend the night along with criminals and under trials. After spending the night as a State Guest and suffering the ill-treatment at the hands of the jail wardens, the accused would be ready to do anything in the world to get out of that hell called Jail. Bail granted would have humiliating condition of regularly marking attendance at the police station. Even marking of this attendance if not free of corruption.

Prosecution itself can be a punishment

Thereafter, the police have sixty days time to file the charge sheet. The trial may go on endlessly for years together. Few if any, accused can lead normal life of working and earning a living during the period, what with frequent appearances in the court, the ignominy faced at the work place and expenses towards legal defense. If the accused is working abroad, the position will be worse, as failure to return in time would mean loss of job abroad. Therefore, usually, the accused is forced to strike a deal with the complainant, pay a king’s ransom and see that the complaint is withdrawn or quashed.

Criminal proceedings used for circumventing civil proceedings

The police and their lackey lawyers have no respect for courts and their proceedings. Even when civil proceedings are pending for divorce, the complainant used Section 498A as a tool of extortion to demand huge permanent alimony, a sum far higher than any family court would award in a civil proceeding.

This is how, Section 498A of the IPC, a salutary provision meant for protecting daughters-in-law harassed for dowry is working. It has become a tool of extortion. A tool used with the willing aid of the police and unscrupulous lawyers. Section 498A has become a Democlean sword hanging over the heads of the husband and in-laws of the girl. At any time, the girl can demand ransom and demand that her wish be met. The demand could be money, or getting rid of husband’s parents, or making separate home. If the husband fails to meet the demand, she can walk into a station aided by a lawyer to file complaint against her husband and in-laws. What follows thereafter has been narrated elaborately.

What is needed to be done?

This does not mean that the law has to be changed to its original position. In fact, IPC need not be amended at all. It is necessary to make the offence under Section 498A a non-cognizable offence and a bailable one. This would mean that the complainant has to file a complaint before the magistrate under Section 200 of Cr.PC. When the court issues summonses to the accused persons after obtaining the sworn statement of the complainant, the accused would appear before the court and obtain bail. The disruption of the life of the accused would be minimal. Most importantly, the proceeding under Section 498A, which is now under the control of the Police would come under judicial control.

It is an urgent requirement of society to ensure that law is not misused by the greedy girls, their families, the corrupt police and unscrupulous lawyers to harass guiltless people.

More about lawyers’ ugly role in the matter

There is an ugly side to the court proceeding and the conduct of lawyers, ignorance of lawyers which results in needless agony and expenditure for the accused. That will be the subject matter of another series of papers. In that paper, I shall describe a live case, to which I was an eye witness. I shall describe the conduct of the greedy and conscinceless complanants, corrupt police, lawyers ready to lie for their client's benefit, incompetent and ignoramous lawyers who have the task of defending the accused persons.