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.
Taji
George, a lawyer with 20 years of experience behind him, was recently
approached by a client with a peculiar problem — his wife was charging
him of domestic abuse. 