Friday, June 16, 2006
IS 498A IPC A BALANCED LAW?
IS 498A IPC A BALANCED LAW?
Right to life and liberty of every citizen is guaranteed under
Article 21 of the Constitution of India. But this life and liberty
can be curtailed if they hinder others' life and liberty. For that
due process of law is necessary. Due process includes reasonable
force. The net purpose of due process, therefore, is to restore
equilibrium when there is imbalance in any locus of the society.
While civil law determines what is right and what is wrong, the
criminal law imposes penalty to deter.
Section 498A was inserted in The Indian Penal Code in 1984
with a view to protect women against dowry harassment. From the very
beginning of this law there is reaction from the society including
legal luminaries that this law could be misused and there would be
severe deleterious effect in the society. But before going to its
deleterious effect let us consider if the volume of complaints have
gone down as may be seen in The Crime in India statistics. The
volume is continuously going up which means that there is no
deterrence effect of section 498A of IPC. This is now 2006. This
very fact itself needs that the law is to be amended to curb the
rising graph.
Coming to the judicial observations and remarks we find that
continuously their lordships are showing anguish over the law. Here
are some recent judicial observations.
Way back 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."
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 relations of the husband as accused has to be curbed"
In the case of State Vs. Srikanth, 2002 CriLJ 3605 te
Karnataka High Court observed as:
"Roping in of the whole of the family including brothers and sister-
in-laws 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."
In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case the
Apex Court 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."
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-laws,
unmarried brothers, married uncles and in some cases grand parents
or as many as 10 o 15 or even more relatives of the husbsnd."
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 f the process of law."
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. In this connection
reliance may be placed upon AIR 1992 SC 604: (1992CriLJ 527)."
And in a relatively recent case, Sushil Kumar Sharma vs. Union
of India and others,JT 2005(6) SC 266 observed as:
"The object of the provision is prevention of the dowry menace.
But as has been rightly contented by the petitioner many instances
have
come to light where the complaints are not bonafide and have been
filed with oblique 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 above 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 an
assassin's
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 straitjacket 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
presumptions that the accused persons are guilty and that the
complainant is
speaking the truth. This is too wide available and generalized
statement. Certain statutory presumptions are drawn which again are
rebuttable. 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 an innocent person is not made to suffer on
account of unfounded, baseless and malicious allegations. It is
equally
undisputable 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."
These are only a few observations of their lordships from
scores which conclusively prove that:
1. A woman (not necessarily every woman) can be much more cruel
than a man (not necessarily ever man).
2. While intending to protect the life of a person, s.498A of
IPC jeopardizes around a dozen innocent persons no matter whether
they are children or old. Hence, the provision is discriminatory and
violative of Article 14 of the Constitution of India.
3. Instead of restoring equilibrium, the provision aggravates
disequilibria. Hence, it is not only imbalanced but also there is a
failure of guarantee of right to life under Article 21 of the
constitution of India.
4. For the reasons stated under conclusions 3 and 4 above the
provision is not only imbalanced but also ultravires.
Because of these maladies the provision needs to be amended at the
earliest to protect the life and liberty of lacs of innocent people
including children and old. Prior to that the learned and honorable
courts may consider imposition of heavy penalty as done in case of
vexatious PILs. Such PILs are only vexatious but in the matter of
498A the cases may be false, malafide, malicious and revengeful.
Courtsey: Posted originally by Jogeshwarmahanta in SIF yahoo group.
Right to life and liberty of every citizen is guaranteed under
Article 21 of the Constitution of India. But this life and liberty
can be curtailed if they hinder others' life and liberty. For that
due process of law is necessary. Due process includes reasonable
force. The net purpose of due process, therefore, is to restore
equilibrium when there is imbalance in any locus of the society.
While civil law determines what is right and what is wrong, the
criminal law imposes penalty to deter.
Section 498A was inserted in The Indian Penal Code in 1984
with a view to protect women against dowry harassment. From the very
beginning of this law there is reaction from the society including
legal luminaries that this law could be misused and there would be
severe deleterious effect in the society. But before going to its
deleterious effect let us consider if the volume of complaints have
gone down as may be seen in The Crime in India statistics. The
volume is continuously going up which means that there is no
deterrence effect of section 498A of IPC. This is now 2006. This
very fact itself needs that the law is to be amended to curb the
rising graph.
Coming to the judicial observations and remarks we find that
continuously their lordships are showing anguish over the law. Here
are some recent judicial observations.
Way back 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."
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 relations of the husband as accused has to be curbed"
In the case of State Vs. Srikanth, 2002 CriLJ 3605 te
Karnataka High Court observed as:
"Roping in of the whole of the family including brothers and sister-
in-laws 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."
In Mohd. Hoshan vs. State of A.P. 2002 CriLJ 4124 case the
Apex Court 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."
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-laws,
unmarried brothers, married uncles and in some cases grand parents
or as many as 10 o 15 or even more relatives of the husbsnd."
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 f the process of law."
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. In this connection
reliance may be placed upon AIR 1992 SC 604: (1992CriLJ 527)."
And in a relatively recent case, Sushil Kumar Sharma vs. Union
of India and others,JT 2005(6) SC 266 observed as:
"The object of the provision is prevention of the dowry menace.
But as has been rightly contented by the petitioner many instances
have
come to light where the complaints are not bonafide and have been
filed with oblique 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 above 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 an
assassin's
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 straitjacket 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
presumptions that the accused persons are guilty and that the
complainant is
speaking the truth. This is too wide available and generalized
statement. Certain statutory presumptions are drawn which again are
rebuttable. 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 an innocent person is not made to suffer on
account of unfounded, baseless and malicious allegations. It is
equally
undisputable 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."
These are only a few observations of their lordships from
scores which conclusively prove that:
1. A woman (not necessarily every woman) can be much more cruel
than a man (not necessarily ever man).
2. While intending to protect the life of a person, s.498A of
IPC jeopardizes around a dozen innocent persons no matter whether
they are children or old. Hence, the provision is discriminatory and
violative of Article 14 of the Constitution of India.
3. Instead of restoring equilibrium, the provision aggravates
disequilibria. Hence, it is not only imbalanced but also there is a
failure of guarantee of right to life under Article 21 of the
constitution of India.
4. For the reasons stated under conclusions 3 and 4 above the
provision is not only imbalanced but also ultravires.
Because of these maladies the provision needs to be amended at the
earliest to protect the life and liberty of lacs of innocent people
including children and old. Prior to that the learned and honorable
courts may consider imposition of heavy penalty as done in case of
vexatious PILs. Such PILs are only vexatious but in the matter of
498A the cases may be false, malafide, malicious and revengeful.
Courtsey: Posted originally by Jogeshwarmahanta in SIF yahoo group.
