DOWRY DEATH

Aug 27, 2008

           



INTRODUCTION :-

The dictionary meaning of the term dowry is ‘property or money brought by bride to her  husband on marriage’. The system of taking dowry is prevalent in our country  since ages. As per  section 2 of the Dowry Prohibition Act.,1961 dowry is defined as “dowry includes any property or valuable security given or greed to be given either directly or indirectly:
-By one party to a marriage to the other party to the marriage; or
-By the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person at or before or any time after the marriage in connection with the marriage of the said parties.
 During the ancient times dowry was considered as a custom in our country. The custom however became a social evil with the passage of time. This social evil has taken lives of many innocent brides for its non fulfillment. Deaths of young brides through suicide or homicide following disputes over the dowry  are increasingly a feature of Indian society.
            Marriages in India are usually arranged by parents and the wife becomes a member of the husband's family, in most cases moves in with them.  Since most marriages are arranged with the assistance of third parties, the family generally do not know each other well.  Nevertheless, the newly wedded bride is expected to switch her principal loyalty overnight to her husband's family. The husband's family may make little accommodation to the bride, but expect her to adjust to them.  Since they are now supporting her, the husband’s family  believes that she must be considerate to their wishes. If they think she is not, they may feel justified in treating her harshly, even violently. In the early stages of a marriage, a new bride who is being mis-treated by her husband's family may not seek help from her own parents because they will already have counseled her that a period of adjustment to her new situation may be needed. If she does complain, unless the abuse is repeated or extreme, most parents would probably be reluctant to intercede on her behalf with the in-laws or husband.  This reflects the Hindu norm that once a girl is married, her parents have only limited rights to a say in her new family's personal affairs.  They might also hope that some mutual adjustment might occur between the bride and her new family so that there would be a reduction in harassment and ill-treatment.  If the girl returns to her parents' house because of quarrels with her husband, this brings shame on her parents' family and prevents the marriage of any of her sisters.  Moreover, she cannot take part in any religious ceremonies without her spouse.  For all these reasons an abused wife may not expect much support from her parents and may only get support in more extreme cases. These marriage arrangements reflect the generally subordinate and powerless position of younger women, and patterns of domestic violence in India are indicative of this position.
The practice of dowry has its roots in the most common rite associated with a Hindu marriage (the majority of Indians are Hindus), 'Kanyadan', the act of giving the bride to the groom.  (The word literally means the act of giving or donating a virgin to the groom on an auspicious day).  It is recommended in the shastras (certain rules prescribed in Hindu philosophy) that the bride be adorned with jewelry and then given away. According to the shastras, the ritual gift remains incomplete until the groom and his parents are given 'dakshana', a token gift in their honor. This is supposed to be in recognition of the fact that the bridegroom and his kin deserve to be honored (and financially compensated) for accepting the girl into their fold. 

OBJECTIVE:-

TO HIGHLIGHT THE OFFENCE OF DOWRY DEATH AND HOW IS IT MISUSED IN OUR COUNTRY, ALSO TO HIGHLIGHT THE INDIAN SCENARIO.

STATUTORY PROVISION OF DOWRY DEATH :-

Section 304 B was introduced in the Indian Penal Code in order to strictly deal with and punish the offence of Dowry Death. It was a new offence created with effect from November 19, 1986 by insertion of the provision in the Indian Penal Code providing for a more stringent offence, than provided by Section 498A of the same Act, which deals with punishment for cruelty by husband and his relatives.
Section 304-B of IPC reads as follows:-
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death" and such husband or relatives shall be deemed to have caused her death.

Explanation – For the purposes of this sub section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961.

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.

Therefore from the above section we can see that the following ingredients are necessary for application of dowry death:-
1.                                          When the death of a woman is caused by any burns or bodily injury, or occurs under unusual circumstances.
2.                                          And the aforesaid two facts spring within 7 years of the girl's marriage.
3.                                          And soon before her death, she was subjected to cruelty or harassment by her husband or her relative
4.                                          And this is in connection with the demand for dowry.

If these conditions exists it would constitute dowry death, and the husband and/or his relatives shall be deemed to have caused her death.
 It is true that in criminal jurisprudence the benefit of the doubt is extendable to the accused. This concept of 'benefit of doubt' has an important role to play but within the confines of the stringency of laws. Since the cause of death of a married woman was to occur not in normal circumstances but as a dowry death, for which the evidence was not easily available, as it is mostly confined within the four walls of a house, namely the husband's house, where all likely accused reside, the amendments brought in the concept of deemed dowry death by the husband or the relatives, as the case maybe.
In cases of dowry deaths and suicides, circumstantial evidence plays an important role and inferences can be drawn on the basis of direct or indirect evidence. This section lays down stringent provisions by shifting the burden onto the accused by bringing in the deemed clause. According to Section 8-A of the 1961 Act, which came into force for taking or abetting any dowry, the burden to explain is placed on such person against whom the allegation of committing the offence is made. Similarly, under Explanation to Section 113 B of the Indian Evidence Act, there is a presumption that a death caused within 7 years of marriage is a dowry death.

LAW COMMISSION ON DOWRY DEATH:-

The 18th Law Commission has recommended increasing the minimum sentence from 7 to 10 years in dowry death cases. It has, however, declined the suggestion to increase the maximum punishment from life imprisonment to death sentence.

Justice A.R.Lakshmanan-chairman of the reconstituted commission, handed over the report on 'Dowry Death' to Union Law Minister HR Bharadwaj on October 10,2007. The report examined the questions whether section 304-B of the Indian Penal Code should be amended to provide for death sentence to end dowry deaths. This section provides for a jail term not less than 7 years but which may extend to life imprisonment..
The report says , It may be pertinent to point out that where a case of dowry death also falls within the ambit of the offence of murder, awarding death sentence may be legally permissible. The guidelines laid down by the supreme court for award of death sentence, especially the dictum of the rarest of rare cases, will, however, have to be adhered to in such cases". The commission says there are misgivings & misapprehensions associated with dowry death. It is quite often confused with the offence of murder. There may be instances where the two overlap. This gives rise to the demand for parity in the matter of sentence in both cases. Nevertheless, the two offences are distinct & independent offences. The commission says " there is no justification for amending section 304-B of IPC to provide for death penalty.

DOWRY DEATH IN INDIA:-

In India not only was there an apparent increase of dowry-related deaths from kitchen fires but from this weed other covert forms of related oppression sprouted. Some of these led to psychological torture, suicides and murder of married women, desertion by their husbands, rampant abortion of female fetuses, and poor families resorting to female infanticide for fear of not being able to provide dowry.
 On an average one Indian woman commits suicide every four hours over a dowry dispute, as per official data, despite a series of laws to empower them.
According to data complied by the National Crime Records Bureau (NCRB), a total of 2,276 female suicides due to dowry disputes were reported in 2006 that is six a day on an average, while the figure was 2,305 in 2005. In 2004, at least 2,585 such cases were registered across the country.
Statistics suggest that Madhya Pradesh topped the list for the fourth time with 585 cases, accounting for one-fourth of the total number of such suicides last year in the country. West Bengal was second with 445 cases and Uttar Pradesh third with 314 cases. The national capital was seventh with 69 cases.
Police officials in the capital told reporters that suicide by hanging was the most common means adopted to end life followed by self-immolation in such cases.
The NCRB is a central body assigned to compile crime figures in the country. Its figures also state that one case is registered almost every hour under Dowry Death, which includes suicides as well as murders.
A total of 7,618 cases were registered under Dowry Death in 2006, while 6,787 cases were registered in 2005.
Dowry is a social evil but continues to be a common practice in almost every part of India. Women at the time of marriage are expected to bring with them jewellery, cash and even consumer durables are part of dowry to the in-laws and they are subsequently ill-treated, often violently, if they fail to do it.

DOWRY DEATH MISUSE:-

NCW want each and every death of a wife to be converted to dowry death, so that they can fool the people that dowry death is increasing and demand more and more fund form the government and other sources.
Such loop sided and assumption based law should be immediately changed by our LAW maker and the same to be made gender equal, husband/wife to be replaced by the word spouse, as more than 52000 married man also end their life in un natural death as per crime Beureu report itself, but all the husband killers are moving freely in our society.
Let stop this legal terrorism promoted by NCW and their associated organizations, who wants that each and every home more and more litigations, so that their recommended Panel lawyers can earn more and more money by sucking the blood of common people.
In the IPC already the Murder LAW/Attempt to murder law are there and the convection up to hang to death already available, still they want more and more duplication of law to increase more and more litigation and want to send the innocent people behind the bar without any evidence and without any investigation and want to convert each and every death of a wife to a dowry death to fulfill their hidden agenda. 
It is a great challenge to our LAW makers, will they surrender to NCW’s absurd, ill-minded proposal or do justice to common people and stop this Legal Terrorism in India in the name of so called dowry Laws, which is totally assumption based instead of any evidence based.

CONCLUSION:-

It is ironic that in India dowry was originally designed to safeguard the woman and it was the provision of " Sthreedhan" ("Sthree" meaning woman and "dhan" wealth) in the form of money, property or gifts given solely to the woman by her parents at the time of her marriage. "Sthreedhan", an inheritance was meant to exclusively belong to the woman at the time of her marriage. The abuse of this custom eroded and aborted the original meaningful function of dowry as a safety net for the woman and was corrupted to become the price tag for the groom and consequently the noose for the bride. The price of the Indian groom astronomically increased and was based on his qualifications, profession and income. Doctors, Chartered Accountants and Engineers even prior to graduation develop the divine right to expect a "fat" dowry as they become the most sought after cream of the graduating and educated dowry league. A reactionary preliminary wave of preserving oppressive practices of dowry demands, harassment and placing Indian males as high commodity line of goods, appeared to surface also in the West and other countries where immigrants of Indian origin established themselves.
A number of laws like the Dowry Prohibition Act of 1961 (often touted as toothless) and Section 113-A and Section 113-B in the Evidence Act exist to tackle the problem of dowry. But none of them is good enough.
Also various legislations that have been enacted for dowry death should not be misused .


About the Author

Sidhartha Roy

Men- Beware Of Marriage

 Mar 19, 2010

We are born in a society where marriage is treated as sacrosanct, something which was fixed in heaven. It is a relationship valid not only in this life but also in lives yet to come. Nevertheless, this relationship is changing and law has played a very important role in altering this relationship. The legislature drafted these laws to protect the vulnerable women in the relationship, but while doing that didn't keep in consideration abuse of these laws by not so vulnerable women. The judiciary, while sympathizing with the tears of women, didn't recognize the fact that these may be crocodile tears. Due to these reasons these laws has become a tool to harass husbands, extort money from husbands and their family, to torture hapless women of the husbands family. In short, these laws have made marriage more a legal relationship than a social relationship.

The law presumes that everybody knows laws. Marriage is a voluntary relationship, in the sense that till this point of time there is no law which can compel a man to marry (although in practice some women do compel men to marry them by leveling false allegation of rape against them. The recent case of suicide by an ex-Army officer is a case in point where the man committed suicide due to pressure to marriage and in case of denial threat of false cases.). Thus every man must know the legal provisions before he enters into the legal relationship of marriage. If he enters without knowing these provisions, he cannot blame any other persons for that. However, it is the duty of legal practitioners and social workers to make them aware of these laws so that nobody enters into a legal relationship of marriage without knowing its implications.

Slowly and steadily the number of law governing the relationship between husband and wife is increasing. One thing is common in all laws- they are prejudiced and biased against the men in the sense that they give rights only to the wives and imposes duties only on the husband. Further the language of the law is such that it facilitates abuse of these laws against the husband and his family members. And in fact also the wives are systematically abusing these laws. These laws were primarily designed to protect the vulnerable women in our society but the working of these laws suggests that they have become more a weapon of harassment and extortion in the hand of not so vulnerable women.

The Hindu Marriage Act and the Hindu Adoption and Maintenance Act impose a duty upon the husband to maintain their wife. However a person can claim maintenance only if he/she is not able to maintain himself/herself. The term is ability or potential to maintain and not mere inability to maintain at any point of time. However, a survey of the judgments will clearly shows that even when the wife was able bodied and educated then also the courts have granted maintenance. Further, these two Acts are not sufficient and the Criminal Court is empowered to grant maintenance as per section 125 of the Code of Criminal Procedure. More Acts for the same relief means that the wife has more avenues to harass a husband through the process of Court. We can see that a wife has a right to maintenance- but what is her duty. Law says nothing. If she abuses the husband, then also she can claim maintenance. If she beats her mother-in-law, then also she can claim maintenance. Thus a wife has no duty, only rights. Just maintenance is not something to be very worried about. What is more important that the wife has been given power to send the husband and his family members to the prison at wish? Under section 498A of the Indian Penal Code a wife can complain that she has been treated with cruelty for dowry and name anybody in the relatives of the husband. What is cruelty or what is dowry, nobody knows. A gift to husband is dowry but a gift to wife is streedhan. A husband should not demand any consideration for marriage, but a girl has a right to look for a wealthy husband with a fat pay packet; it is not dowry, it is pragmatism. The law says giving dowry is as criminal as taking dowry, the wife screams that she has given dowry, but the law does not take any action against her- this is women empowerment. Under this Section octogenarian grand mom of husbands are being prosecuted for harassment- this is power of wife. Just these are not sufficient. If your wife commits suicide, invariably you will be prosecuted under Section 304B of the IPC. Here, even the prosecution has not prove many thing, Section 113A is there in the Evidence Act to presume your guilt. When men commit suicide, the law is silent. After all men can commit suicide for so many reasons- wife can commit suicide only after harassment by husband and his family. So what, the suicide statistics shows that more men commit suicide. Once any of these cases are registered against you few things are certain-like you are likely to loose your job. You will be merely suspended if you are in government service. You will spend a couple of months in jail before the bail. In jail too you will have full company of your family members. Finally, you will be granted bail and the trial begins. What will happen in trial, I don't know. Indian Criminal Justice system is totally biased against the men accused, if complainant is a woman. That is why making allegation in India has become an industry. It is a tool of legal extortion in the hand of police and false accusers. Well, the purpose of this article is merely informing the worse half of the population the legal consequence of marriage and their vulnerably, if they decide to marry. Difficult to imagine-even now men marry. In any case old habits die hard. There is no solution. We are living in Rule of Law and when the law is tyrannical and prejudiced, you cannot have a solution. But, the risk can be reduced by taking recourse to written contract at the time of marriage. It is a good idea to enter into written contract at the time of marriage with your would be wife. No law prohibits such type of contract. The contract can make provisions for expenses of marriage ceremony, list of gifts received, the couple decision regarding maintenance, child custody and all other items, which the couple feels necessary to incorporate in the written contract. It may seem nauseating to introduce the idea of contract in marriage, but it is better as law has already entered into marriage. Written contract is just one mutually agreed way to reduce the rigor of falsehood in deposition before the court. It is better to catch up a lawyer before the police catch up with you.

Rajesh Kumar - About the Author:
A Men's Right Activist. Practicing Advocate based in Delhi, India.
Author can be contacted on rk1771@gmail.com

Misuse of Dowry Laws IPC 498a

Oct 8, 2010

MISUSE OF ANTI DOWRY LAWS IN INDIA...by Bharat

"A happy marriage is a harbour in the tempest of life, an unhappy marriage is a tempest in the harbour of life"
Dowry is one of the biggest social evils facing our country, and no civilized society should tolerate this, and every effort should be made to eradicate this evil, people giving and demanding dowry should be punished severely, But other side of the coin, often unlooked upon should not be ignored. And this side of the coin – is the misuse of these provisions by some unscrupulous wives to wreak havoc on husband and family.

In recent years the criminal law of the land have undergone radical changes to provide protection to women, more teeth have been provided to existing laws (DP Act, 498A, 406 IPC etc) and new enactments have been made (DV Act), but unfortunately the remedy is becoming worse than the ailment, which is now a well known fact as the stringent dowry laws have failed to stop the gruesome crimes for dowry/dowry deaths.

These laws which have been proved to be highly unsuccessful (as evident from the low conviction rate) and far from what the law makers desired it to be, are now being misused by some urban women for ulterior motives.

The henious nature of these laws (498-a, 406) does nothing but to help the unlawful implementation. As these laws are non compoundable & non bailable, the chances of reconciliation between the spouses after litigation are next to nil.

The biased nature of this laws is evident from that fact that unlike almost all laws in INDIA the burden to prove innocence lies on the accused……this means as soon as the complaint is made..whichever persons are named in the complaint are accused in the eyes of law, Isn't this verdict before trial, now lets embark upon what Section 498 A is :
Section 498a of the IPC is a criminal law in which the wife and her parental family can charge any or all of the husband's family of physical or mental cruelty.

This law is unique to India, it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband.

Typically, the charged family members in these cases include:
• Mostly women of all ages (unmarried, married sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)
• Other maternal and paternal relatives and even young children in the family.
For every complaint filed by a woman, there are at least twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.

Characteristics of 498-a, Indian Penal Code.
IPC-498a is

• Cognizable – The accused can be arrested and jailed without warrant or investigation
• Non-Compoundable – The complaint cannot be withdrawn by the petitioner (chances of living together again are lost)
• Non-Bailable – The accused must appear in the court to request bail
On a single complaint of the wife, the husband and his entire family can be packed off to behind the bars, with an estimated 40,000 such accusations per year and an average of 5 members of the husband's family implicated in each of these 498-a cases, about 200,000/- people are directly affected by these cases.

Hon'ble Supreme Court and various High Courts have time & again showed concern over this growing menace by observing that "By misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended to be used a shield and not an assassin's weapon… says the Hon'ble Supreme Court. Merely because the provision is declared constitutional, it does not give licence to unscrupulous persons to wreak personal vendetta [1]

The judicial recognition of blatant misuse of these laws is not anew, way back in 1987, The Hon'ble Court In BALBIR SINGH VS. THE STATE OF PUNJAB [2] observed :
"Though the amendments introduced in the penal code are with the laudable object of eradicating the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the relatives of a psychopath wife who may have chosen to end her life for reason which may be many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast emerging. IT IS THE TIME TO STOP THIS UNHEALTY TREND WHICH RESULTS IN UNNECCESARY MISERY AND TORTURE TO NUMEROUS EFFECTED PERSONS."

Justice J.D.Kapoor (Delhi High Court) said in his order passed on 30th May, 2003 [3]
" I feel constrained to comment upon the misuse of the provisions
(of law) 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."

"There is a growing tendency to come out with inflated and exaggerated allegations, roping in each and every relation of the husband.

In Jasbir Kaur v/s State of Haryana[4] : the Punjab & Haryana high Court rightly observed 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 on an estranged marriage.

In Kanaraj vs. State of Punjab [5] the Hon'ble Apex Court observed:
"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"

Karnataka High Court, in the case of State Vs. Srikanth [6] observed "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"

The Hon'ble Supreme Court, In Mohd. Hoshan vs. State of A.P. [7], observed "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 [8], categorically stated "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."

Punjab and Haryana High Court, in Bhupinder Kaur and others vs. State of Punjab and others[9], held :
"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"

The Hon'ble Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others[10]

"The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that 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 ignominy 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.

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."

Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:

"16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.

It Is pertinent to note here that, the real sufferers of the evil of dowry, the rural indian women are not even sensitized about their rights, and fail to make use of these laws.

But Some Indian Urban educated women have turned the tables and are using these laws as weapon to unleash personal vendetta on their husbands and innocent relatives.

Despite the various guidelines/recommendations of the Supreme Court of India and Justice Malimath Committee that the working of these laws should be reviewed and reformed with change in time, so that innocents are protected, and false complaints made with malafide intention are not registered, the suggested amendment to the law has been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. Feminists are now demanding even more teeth to the existing women laws, and more & more laws are being enacted for women. But the real sufferers are not sentisized enough to make use of these laws, and these laws are getting misused in the hands of some clever Indian wives.

The latest addition in a women's legal artillery is The Protection of Women from Domestic Violence Act – This law is absolutely pro-women and anti-men, this law assumes every man as a virtual torturer" and considers only women as victims. This law is highly vague, and speaks of verbal/economical & emotional abuse, which are impossible to quantify & ascertain. Many husbands and their family members, falsely implicated in these cases have committed suicide after being jailed, unable to bear the social trauma.

Nearly 44.7% of the suicide victims were married males while only 25% were married females. This clearly shows the ratio of victims of domestic violence and gender abuse.[11]

It is high time for law makers/law enforcing agencies/judges to pay heed and review these laws in public interest to check the growing misuse of these laws to ensure impartial justice and to protect the pious and sacred institution of marriage.
________________________________________________________________________________________________________________
[1] http://www.hindu.com/2005/07/22/stories/2005072202631500.htm
[2] 1987 (1) CRIMES - 76.
[3] ( 20 May 2003 )
[4] (1990)2 Rec Cri R 243
[5] 2000 CriLJ 2993
[6] 2002 CriLJ 3605
[7] 2002 CriLJ 4124
[8] 2003 CriLJ 2759
[9] 2003 CriLJ 3394
[10]JT 2005(6) 266
[11] Source: http://ncrb.nic.in/ADSI-03.pdf

Source: Creativecommons.org

About the author:

Bharat Chugh * Law Student from Delhi * Convenor : Law Students Collective (a public interest initiative providing legal advise & Assistance to the weaker sections of the society)
& associated with Men Cell (www.mencell.weebly.com)

498a, Ipc: Through the Looking Glass

Oct 6, 2008

Lawmaker Manu's oft-quoted statement, that women are not worthy of freedom, exhaustively underscores the Indian Paradigm that was sought to be negated by the legislature, when it set out to pass the Criminal Law (Second Amendment) Act No. 46 of 1983, introducing for the first time, to a nation seemingly never full of dowry deaths and cruelty to married women, Section 498A the debutante in a code which lacked the intrinsic aspect of protection to the hapless victim of marriage in a patriarchal society. The 20th century had been the Dark Age for women the world over, who had been subjected to different standards than men. They had been consistently oppressed in nearly all aspects of life, from political to personal, public to private. Women were always a weaker section of the society, which denied them basics such as education, nutrition and expression. Consequently, marriage too weighed against them; statistical testimonies being the number of dowry-related harassment and domestic violence cases that are on record from that era.
Section 498A of the IPC defined a new cognizable offence, namely, cruelty by husband or relatives of husband. It is directed against the husband and/or his relative, who is guilty of the offence of subjecting the wife of such husband to cruelty, and can be invoked by such wife, or daughter-in-law, or her relative, against the offenders. The term cruelty has been given a wide berth, a protectively, non-evasive connotation in the explanation to the section, and includes both forms physical as well as mental. The offence is non-bailable, non-compoundable and cognizable on a complaint made to the police officer by the victim or by designated relatives.
The legislatures bona fide attempt in re-asserting, through the passage of the aforesaid provision, a womans right to be treated with due care and respect, has been successful in its own right. It is only now that women are learning to use the laws put in place for their protection. This law has laid the foundation for the demand of a civil law to protect women and children. Domestic violence has since 1983 been recognised as a crime and also constitutes a considerable part of the workload of police, prosecutors and the courts.
However, 498A in leading the pack of Indian 'women-protection laws', and in assuming that wives are always honest victims of marital wrath, therefore requiring no proof of their claims before initiating action against the accused, quite unwittingly overlooks the possible emergence of a reverse trend in the aforesaid scenario. The victim turning into the abuser!
The section, today, has metamorphosized into a unilateral and indefeasible weapon in the hands of married women, which can be easily abused if intended. The scope and limitations of the section have not been defined and demarcated which makes the situation worse. Many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive.


POLICE PROCEDURES: FIRST IN LINE FOR THE SCANNER!

No arrest can be made because it is lawful for the Police Officer to do so.
Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence. S.498A was intended, by the legislature, to be invoked by way of private complaint to the Judicial Magistrate First Class or the Metropolitan Magistrate, who will take cognizance of the complaint, if it is found to be up to his judicial satisfaction, and issue summons to the opposite party, directing them to apply for bail. Nowhere in this scheme, does a clause of unconditional arrest book a place. But evidently, the Police has pushed to the backward recesses of the systems memory, the fact that the existence of the power to arrest is one thing, while the justification for its exercise is quite another. The Police Officer must be able to justify the arrest apart from his power to do so. No arrest can be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person''s complicity and even as so as to the need to effect arrest. A person is not liable to arrest merely on the suspicion of complicity in an offence. It is not imperative that in each and every cognizable offence, the accused must be arrested merely because an F.I.R. has been lodged against him. The officer in charge, if comes to the conclusion that there is no sufficient ground for entering on an investigation, shall not proceed to investigate the allegations made in the report, and in such a situation, he shall inform accordingly to the informant.
Thus even a special women-oriented law like the 498A itself, is untenable where statistics such as the one indicating arrest of 30,000 innocent women annually based solely on the F.I.R lodged by a living tortured daughter-in-law or sister-in-law, are concerned. The law was not designed as ultra vires the constitution, and never was its true implementation intended to give way to any such defence of the section.
If any special treatment need be given to the said section, it shall touch upon the fact that S.498A unlike regular penal laws is a matrimonial law. Levying of other penal sections in addition to S.498A is a sure indicator of abuse of the process to cause arrest for ulterior motives. This additional levying causes a repetition of charges, because the said section is not entirely bereft of the elements of dowry demand. This is a clear abuse of police powers to arrest, by abetting the woman and her side to authoritatively implement her ulterior design to commit extortion in the garb of a prosecution for cruelty.


COMPOUNDING OF NON-COMPOUNDABLE OFFENCES

Based on whether a criminal complaint can be withdrawn, and investigations against the opposite party compromised to give effect to private settlement between parties to the complaint, offences under the penal code are divided into compoundable and non-compoundable offences. S.498A is a non-compoundable offence under the code. An offence under S.498A or any other offence under the Code which is not specifically enumerated in Section 320 of the Code cannot be compounded by the apex court in exercise of its powers under Section 320 and by High Court in exercise of its inherent powers under Section 482 of the Code.
However in a recent case of the Bombay High Court, it was added to this position of law, that, the inherent powers under Section 482 of the Code include powers to quash FIR, Investigation or any criminal proceedings pending before the High Court or any Courts subordinate to it and are of wide magnitude and ramification. Such powers can be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. These powers are neither limited nor curtailed by any other provisions of the Code including Section 320 of the Code. The Court could exercise this power in offences of any kind, whether compoundable or non-compoundable. However, such inherent powers are to be exercised sparingly and with caution. Further, the Court should ensure that object and purpose of passing any order in exercise of its inherent powers should be confined to one of the three categories stated in Section 482 of the Code.
This fresh observation may be supplemented with the legislatures intention to not apply ordinary judicial procedure to the sensitive area of personal relationships. Litigation concerning or involving affairs of the family, therefore, seems to require a special approach in view of the serious emotional aspects involved.
A Division Bench of The Bombay High Court relying upon the judgment of the Supreme Court in B.S. Joshi''s case and expanding the principles of socio-welfare interpretation to the provisions of the Code, has thus ruled that the decision of the Supreme Court gives powers to the High Court to permit compounding of matrimonial offences and the High Court has powers to quash the criminal proceedings, FIR or complaint.
For the woman armed with skewed intentions though, and coupled with the executives inclination towards rampant abuse of police powers, as detailed under the preceding sub-heading, this newfound judicial activism serves as the perfect artillery to avenge and extort. Where the courts are allowing the withdrawal of the case when the parties agree to reconcile or settle case, in real terms it amounts to the fact that if you pay up, the case goes away, if you dont you will get stuck with a criminal case that will go on for years. Every year, close to 4,000 innocent senior citizens are arrested under IPC Section 498A. Many retired elders have been ill treated, thrown out of their own homes and deprived of their meager means of sustenance by greedy or vengeful daughters-in-law. A visit to the Crime Against Women Cell shall reveal hoards of Men and their relatives being tortured by the legal machinery at the behest of women.
Thus we are witnessing an era of misconstruction at its best, of the meaning and implication to be given to the compounding of this matrimonial offence.


NO-BAIL: A LOST BARGAIN

There are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody. The process of anticipatory bail, arrest, regular bail, filing of charge sheet, if any, have to follow the registration of an FIR. Given the nature of matrimonial disputes, straightway registering an FIR, which triggers the criminal justice process, can place the parties in an inflexible position and thereafter less inclined to reconcile their differences. Here comes in the notorious Crime Against Women Cell (CAW Cell), which has been notified as a Police station. The complaint, at the stage at which it is referred to the CAW Cell by the police, has not been registered as an FIR. The reference of the complaint to the CAW cell has increasingly gained recognition as supposedly having the effect of postponing the activation of the criminal justice process by facilitating dialogue between the parties with the help of the police. The Supreme Court has in some of its decisions recognized the practice of the police conducting a preliminary enquiry before registering an FIR. Now the CAW cell is not bound to follow the statutory procedure for investigation as under the Criminal Procedure Code, since it is only a pre-enquiry stage. So the cell devises its own methods to identify the nature of offence, collection of evidence and examination of witnesses. Even vague, unspecific or exaggerated allegations bereft of any evidence of any physical or mental harm or injury inflicted upon the woman cater to the cells quest to hound the husbands 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. Thousands of such complaints and cases are pending and are being lodged day in and day out. Read between the lines, this is the tyranny of corrupt CAW cells. Picture Jasbir Kaur Vs State , where instead of making an effort to bring about amicable settlement between the parties, the cell blackmailed the husband with threats of registering immediately an FIR against him. Leading dailies have been documenting statistical evidence of the number of fake cases before such CAW cells, and yet we have figures such as over 100,000 women being arrested since 2004, u/s 498A!
Losing our reins over the mushrooming CAW cells is one aspect; the other is the sheer abandon of a citizens A.21 right under the constitution. When the basic criterion that whether there is any prima facie evidence to connect the accused with the crime is overlooked, and each time a bail plea is rejected even without giving opportunity of hearing to the defence counsel, it is a sheer violation of the basic principles of natural justice. The amended S.437(2), CrPC lends support to the contention that in deciding the question of grant of bail, the seriousness of the offence is of no consequence unless and until the nexus between the accused and the crime is highlighted by the prima facie evidence.


A RETURN-PATH TOWARDS LAW AND ORDER

The use of S.498A by reading in part or in isolation to each other, of the provisions of the Criminal (Amendment) Act No. 46 of 1983, is resulting in a stark deviance from the literal meaning of the section. Exigent is a reversion to the golden rule of interpretation here. 498A was never developed as a weapon of mass-destruction, but that is what it easily mirrors itself into, the moment the thin line between judicial activism and gross misconstruction of the provision is ignored. To save such ignominy of the well-intended provision, certain authoritative observations, such as the following, may be taken guidance of:
1.  The Apex Court has set out in some detail, the categories of cases where the High Court may exercise its power relating to cognisable offences to prevent abuse of process of any court or otherwise to secure the ends of justice. Significant among them are:

1.  
   1. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 
   2.  
   3. Where a criminal proceeding is manifestly attended with mala fides and where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
   4.  
2. If for the purpose of securing the ends of justice, quashing of FIR becomes necessary, section 320 of Cr.P.C would not be a bar to the exercise of power of quashing. The court considering the special features of the matrimonial matters, has observed that it is the duty of the court to encourage general settlement of matrimonial disputes U/S 498-A by quashing the criminal proceedings under that section. Further, it would not be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. 
3.  
4. An attitude that has the potential to uncover great institutional damage is that justice is required to be done only in the courts. It should instead be taken to be that any and every authority under the statute has to discharge its duties in a just manner, otherwise people will lose faith in the governance. Public authorities should stringently desist from unnecessarily burdening courts by placing before it frivolous and fabricated cases.

  4.  Section 498A is intended to protect the women from cruelty of husband or his relatives. It has been widely reported that this provision has been misused and is also harsh as it is non-bailable and non-compoundable. It is desirable to provide a chance to the estranged spouse to come together and therefore it is proposed to make the offence under Section 498A IPC, a compoundable one by inserting this Section in the Table under sub section (2) of Section 320 of CrPC, wherein it can be compounded with permission of the Court.However, as has been detailed above, the ordeal does not end at the withdrawal of petition. To treat this malady, an amendment to the effect of making the misuse of the law as a valid ground for divorce, is suggested. Furthermore, all marriages ending up with false dowry cases should not be allowed alimony and child custody.

A cardinal principal of the sentencing policy is that it is better to forgive ten suspected criminals than to punish one innocent person but today, the IPC 498A is powerfully working its way towards uprooting the very foundation of any such Rule of Law.

If Feminazism (Feminist-Nazism) is on the rise, willing to overturn every sane tenet upon which has been founded a groundbreaking woman-oriented law, then the golden rule and mischief rule of interpretation shall come together to bare face the law in its essence. The abuse of any such law should especially not happen in a society which is in the nascent stage of transforming ideologies, as it is the very antithesis of the notion of law itself and shakes to the core, the belief in the prevalence of a just social order.

Source: CreativeCommons.org

Arjun Syal

LLB(Hons), 3rd year, Amity Law School, Delhi

Sec 498a of the Indian Penal Code - Weapon in the Hands of Vamps

Aug 28, 2008

Introduction


Objective: The Indian Penal Code, 1860 was amended in the year 1983 to include the provisions of Section 498 A which deals with the punishment of the husband and his relatives if a married women is subjected to cruelty which is likely to drive a woman to commit suicide or cause grave physical or mental injury to her, and harassment with a view to coercing her or any of her relatives to meet any unlawful demands of property. The offence is cognizable, non-bailable and non-compoundable. Hence once a complaint is lodged on the above mentioned grounds the accused has a lot to bear before he can be given a clean chit. With the rise in modernisation, education, financial security and the new found independence the radical feminist has made 498A a weapon in her hands. Many a hapless husbands and in laws have become victims of their vengeful daughter-in-laws. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage. In most cases 498a complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court. My aim is to study the cause and effect relationship that this section brought about in the matrimonial sphere of the Indian society.

Scope : The scope of my article is to cover Section 498a of the IPC relating to  criminal law in which the wife and her family can charge any or all of the husband’s family of physical or mental cruelty. This law is unique to India as it not only discriminates based on gender (man Vs. woman), but also discriminates against women based on their relationship with the husband. Typically, the charged family members in these cases include:
• Mostly women of all ages (unmarried, married and pregnant sisters of the husband, his mother and sisters-in-law, elderly grandmothers and aunts)
• Other maternal and paternal relatives and even young children in the family.
The Report will deal with the ingredients of the section and what must be essentially proved to convict an accused under this section. I will also deal with the provisions relating to the cognisable and non-bailable provisions of this section. The non-bailability provision is grossly misused by unscrupulous wives who file false complaints against unsuspecting husbands and her in laws. The police in such cases register and FIR and forward the chargesheet without proper investigation in most of the cases. A lot of men have had their lives ruined because of this drastic section.

Methodology :

I have used the doctrinal method of legal research for this report. Thus it required an extensive study of the provision along with the relevant act of the Evidence Act and the Criminal Procedure Code. Reference to case laws have been made by going through case laws in relation to this provision.

Main Text :

The Supreme Court of India says, “But by misuse of the provision (IPC 498a - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is intended
to be used a shield and not an assassin’s weapon”. Laws originally meant to protect from the dowry menace are being misused by urban ill-intentioned, unscrupulous women and their families as “an assassin’s weapon” . There is a rapidly escalating social evil in Indian families, namely the misuse of the Dowry and Cruelty laws (Criminal Laws), which were originally meant to act “as a shield” for the protection of harassed women. Nowadays, the educated urban Indian women have turned the
tables. They have discovered several loopholes in the existing Indian judicial system and are using the dowry laws to harass all or most of the husband’s family that includes mothers, sisters, sisters-in-law, elderly grandparents, disabled individuals and even very young children.
We are not talking about the dowry deaths or physical injury cases but about dowry harassment cases that require no evidence and can be filed just based on a single-sentence complaint by the wife. With an approximately 60,000 such accusations per year, about 200,000 people are directly affected by these false accusations. The number of such cases has increased by about 100% in the last 10 years and by more than 15% in just the last two years. This poorly formulated law is inviting unscrupulous people to file false cases, and causing the imprisonment of innocent people without investigation. These innocent people undergo stigmatization and hardship even before a trial in the court of law which leads to immense emotional, physical and financial trauma. Unable to bear the harassment, the loss of reputation and the social consequences of being implicated in a false criminal case, some of these falsely accused husbands and their elderly parents are committing suicide. Despite the recommendations of the Supreme Court of India and Justice Malimath Committee that the legislative arm should modify the laws such that the innocent are protected, the suggested amendments to the law have been largely ignored. Unconstrained, this social evil is threatening the foundation of the Indian Family system. For every complaint filed by a woman, there are generally twice as many or more women are accused although the married couple may have never lived with any of the people mentioned in the criminal complaint.
Let us look into the general text of the section it reads 498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
 Explanation.-For the purposes of this section, "cruelty" means-
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.

IPC-498a is

• Cognizable – The accused can be arrested and jailed without warrant or investigation

• Non-Compoundable – The complaint cannot be withdrawn by the petitioner

• Non-Bailable – The accused must appear in the court to request bail

The accused are presumed guilty, and for all practical purposes, the burden is on the accused to prove innocence in the courts. The FIR is typically an imaginary story, running into many pages, with absolutely no supporting evidence. It typically takes about 7 to 8 years for the accused to prove their innocence in the courts. Due to the overwhelmingly large number of false cases, the conviction rate in these cases is close to zero. The delay in the provision of justice amounts to the denial of justice. There is no penalty for the misuse of IPC 498a, and after acquittal of the accused, the courts are reluctant to entertain defamation and perjury cases against the falsely testifying witnesses.

We must look into why people misuse the provisions of Sec 498A of the IPC. 

• Legal Extortion – Get-rich-quick-scheme to extort large amounts of money
• Prior Relationship – Wife has a prior relationship, and cannot get out of it. She marries to satisfy her parents, and then misuses the 498a law in order to obtain a divorce.
• Adultery – Women who indulge in adultery use 498a as a bargaining tool
• Domination – Wife wants the husband to abandon his parents and siblings, and have total control over his finances and social behaviour
• Custody - Deny the father and his family access to their child(ren).
• Fraudulent Marriages - in which the bride (and her family) hides her education level or mental health; and when is justifiably asked to release the person who has gone into marriage without knowing the full facts; she files a false 498a case.
The kind of women who are likely to file false 498A cases have certain typical traits :
• Who is suffering from pre-existing mental problems such as Borderline Personality Disorder, Bipolar Disorder, Schizophrenia, etc.,
• Whose family is nouveau riche and likes ostentatious display of wealth, possessions as well as social and political connections
• Who is used to living beyond her means
• Whose father is hen-pecked and whose mother dominates all family situations
• Who listens to and acts in accordance with her parents’ wishes at all times, exhibiting a lack of individuality and discretion in dealing with her married life
• Who pushes for quick involvement during the establishment of a marriage alliance, pressing the man and his family for an instantaneous commitment
• Who is excessively possessive and suspicious
• Who is self-centred and feels the need to dominate the relationship and every aspect of decision making
• Who tries to alienate her husband from his family and friends
• Who is hypersensitive and therefore easily insulted
• Who indulges in verbal abuse and constant criticism of her husband and in-laws
• Who uses blackmail (emotional or otherwise) and threats to get her unreasonable demands fulfilled by her husband and in-laws
• Who walks out on her husband following an argument and stays away from her husband indefinitely without any effort towards reconciliation

Today every husband is labelled a torturer and the mother-in-law a demon. A fair amount of blame for this rests on the media which, with a view to sensationalize the ‘story’ blows the news of ‘harassment’ or ‘torture’ of married women out of proportions, without properly investigating the veracity of the story. The news of alleged ‘torture, harassment, and misappropriation of stridhan’ of wife by ‘A’ was published prominently by a leading city newspaper, accusing several members of his family torturing her. The concerned reporter never bothered to verify the allegations with the husband of ‘A’. As the news carried his full name and those of his relatives, designation and the organization where he was working, it caused irreparable damage to the entire family’s image and hard-earned reputation in almost every circle they moved. Queries started pouring in following this news. Depressed as he was, ‘A’ immediately registered his protest with the editor. The newspaper did publish his rejoinder, but after a long time gap and without any apology for publishing an unverified report. One wonders where this growing tendency of misusing the useful laws by unscrupulous parties is leading the society. Harassing and victimizing women for dowry is condemnable. We all have sisters, and daughters, and undoubtedly they require legal protection from all forms of harassment and cruelty but what if the legal loopholes of this very law are misused by women to harass their husbands and in-laws?
The Apex Court has also commented on the possible misuse of this provision in a number of cases. 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. 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 has been reaction from the society including legal luminaries that this law could be misused and its effects on the society would be deleterious. In their judicial observations and remarks, the courts have expressed deep anguish over this 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 relatives of the husband as accused has to be curbed”

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”

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”

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.”

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”

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)”
Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and others, JT 2005(6) 266 observed as:

“The object of the provision is prevention of the dowry menace. But as has been rightly contented by the petitioner that 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 ignominy 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.
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.”

Justice Malimath Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, 2003 observed the following and gave the recommendation to amend the law immediately:

“16.4.4 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is that the husband and his family may be immediately arrested and there may be a suspension or loss of job. The offence alleged being non-bailable, innocent persons languish in custody. There may be a claim for maintenance adding fuel to fire, if the husband cannot pay. She may change her mind and get into the mood to forget and forgive. The husband may realize the mistakes committed and come forward to turn a new leaf for a loving and cordial relationship. The woman may like to seek reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes to make amends by withdrawing the complaint, she can not do so as the offence is non compoundable. The doors for returning to family life stand closed. She is thus left at the mercy of her natal family.
16.4.5 This section, therefore, helps neither the wife nor the husband. The offence being non-bailable and non compoundable makes an innocent person undergo stigmatization and hardship. Heartless provisions that make the offence non-bailable and non-compoundable operate against reconciliations. It is therefore necessary to make this offence (a) bailable and (b) compoundable to give a chance to the spouses to come together.
(118) The Code may be suitably amended to make the offence under Section 498 A of the I.P.Code, bailable and compoundable.”
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 every man).
2. While intending to protect the life of a person, s.498A of IPC jeopardizes around a dozen innocent persons whether they are children or old. Hence, the provision is discriminatory and in violation to the 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 millions of innocent people including children and old. Prior to that the learned and honourable courts may consider imposition of heavy penalty as done in case of vexatious PILs. Such PILs are only vexatious but in the matter of the cases may be false, mala fide, malicious and revengeful.

What could be the possible alterations in the present system and the law?

1. Role of Women NGOs: These organizations should investigate complaint properly without any bias towards the woman keeping in mind that the law is being misused largely to harass more women in husband’s family. They should not encourage any woman to file a criminal case against her in-laws for trivial matters. Foreign Women Organizations should also take responsibility of not allowing false complaint to be registered against NRI’s just to harass and extort huge amount of money from them. These organizations should also conduct survey/research on the misuse of the act and should educate people about its consequences. If these organizations are found to be assisting in filing false complaints, then they should be made liable for prosecution in the country where they are functioning.

2. Family Counselling Centres: Numerous cases of men being harassed by wife or/and in-laws have come to light from different parts of the country. As of now there is no organization, which can really help these harassed men and his family members, to listen their side of the story and put their point of view in front of the government. Need of the hour is to create family counselling centres across the country to help those aggrieved families.

3. Time bound Investigation and Trial : A speedy trial of 498(a) cases will not only ensure justice for the innocents that have been implicated in false charges, it will also lead to prompt redressal of the grievances of real dowry victims .The reduction in false cases will also reduce the burden on judiciary and expedite the processing of real cases.
4. Definition of Mental Cruelty: Mental cruelty has been vaguely defined in the act, which leaves scope of misuse. This should be clearly elaborated to remove loopholes in the law. There should be provision for men also to file a case for mental cruelty by his wife.

5. Investigation by Civil authorities: The investigation into these offences be carried out by civil authorities and only after his/her finding as to the commission of the offence, cognizance should be taken. The government should create awareness among officers about its misuse.

6. Bailable: The main reason of 498a being misused to harass innocent is its non-bailable nature. This section should be made bailable to prevent innocent old parents, pregnant sisters, and school going children from languishing in custody for weeks without any fault of them.

7. Compoundable: Once FIR has been registered it becomes impossible to withdraw the case even if wife realizes that she has done a blunder and wants to come back to her matrimonial home. To save institution of marriage this should be made compoundable. Moreover, in the scenario where the couple decides to end the marriage by mutual divorce, continuation of criminal proceedings hamper their life.

8. Arrest Warrants: Arrest warrant should be issued only against the main accused and only after cognizance has been taken. Husband family members should not be arrested.

9. Penalty for making false accusation: Whenever any court comes to the conclusion that the allegations made regarding commission of offence under section 498a IPC are unfound, stringent action should be taken against persons making the allegations. This would discourage persons from coming to courts with unclean hands and ulterior motives. Criminal charges should be brought against all authorities that are collaborating with falsely accusing women and their parental families.

10. Court Proceedings: Physical appearance of the accused on hearing should be waved or kept low to avoid hassles in appearing to the court, especially for NRIs. The court should not ask to surrender passport of the husband and his family which could cost job of the husband and his family members.

11. Registration of Marriage and Gifts Exchanged: The registration of marriages should be made compulsory along with the requirement that the couple make a joint declaration regarding the gifts exchanged during marriage.

12. Punish Dowry Givers: If the complainant admits giving dowry in the complaint, the courts should take cognizance of the same and initiate proceedings against them under the relevant sections of the Dowry Prohibition Act

13. Penalize corrupt Investigation Officers: If it is apparent to the court that a fair investigation has not been conducted by the investigation officer, and that the husband
and his family have been charge-sheeted without proper verification of the complaint, the investigation officer should be penalized for gross negligence of duty.

14. NRI Issues : Unless they are proven to be guilty after the due judicial process, NRIs should be a given a fair chance to justice by assuring them of the following -a) Permission to return to country of employment b) No impoundment/revocation of passport and no Interpol Red Corner Notices. c) No unnecessary arrests d) Expeditious investigation and trial

15. Gender Neutral: Everyone should have equal rights and responsibilities, irrespective of gender. In the current social context, there should be similar laws to protect harassed husband and his family members from an unscrupulous wife.

CONCLUSION

IPC section 498a was originally designed to protect married women from being harassed or subjected to cruelty by husbands and/or their relatives. This law was mainly aimed at curbing dowry harassment. Unfortunately, this law has been misused to harass men and their families rather than protect genuine female victims of harassment. The Supreme Court of India itself has labelled the misuse of section 498a as “legal terrorism” and stated that “many instances have come to light where the complaints are not bona fide and have been filed with an oblique motive. In such cases, acquittal of the accused does not wipe out the ignominy suffered during and prior to the trial. Sometimes adverse media coverage adds to the misery.“ In agreement with the above statement, the findings of a study conducted by The Centre for Social Research indicated that 98 percent of the cases filed under IPC section 498a are false. Nevertheless, the law has been always justified based on its intention of protecting women. At this point it would be worthwhile to think about how IPC section 498a has really affected women.

It has been argued by Government officials favouring the law that despite the establishment of legal measures to counter harassment of married women, there is an increase in the number of cases of harassment. The first part of the statement suggests that women who are harassed should be utilizing this law as a means of protection. If harassed women indeed used the law then we should see a decrease in the number of cases of harassment over time. Considering the stringent consequences imposed by the law and the inordinate delays inherent in the legal system, no ordinary citizen, male or female, would be impudent enough to risk being implicated under this law for the sake of satisfying their monetary or even sadistic desires for that matter. The fact is that many women who are actually beaten up and harassed by their husbands and in-laws rarely file 498a or resort to other dowry related laws. A lot of them live in rural areas, unaware of the law or lack the necessary economic and moral support from their natal families. Going by the conviction rate the proportion of women who have genuine cases is 2%. Most women who file 498a are from urban backgrounds and are either capable of fending for themselves or have enough family support to fall back on. The proportion of women who belong to this category is 98%. In the 98% of false cases, in every instance that 1 daughter-in-law files a false complaint at least 2 women (an innocent mother-in-law and sister-in-law) are arrested and undergo stress, humiliation and harassment in the hands of the exploitative police, lawyers, staff and officials in Indian courts before being acquitted several years later. So, in every 100 cases 2 women genuinely benefit, 98 women get away with perjury and extortion, and at least 196 women suffer needlessly.

The number of cases that are filed in police stations or courts are the basis for the official statistics of dowry harassment. So, given that the law allows women unlimited scope to fabricate lies (with no penalty of perjury) and given that women are encouraged to keep filing false cases the statistics of “dowry harassment” are bound to rise while the problem of genuine harassment is left unchecked. So, the government has, in the name of protection of women, done grave injustice to two groups of women. The first group constitutes the genuine victims of dowry harassment whose misery remains unresolved but is constantly alluded to in order to justify the law. The second group consists of innocent mothers and sisters of husbands who are criminalized and harassed by the police and the legal system without any regard to their age, health or marital status. Pregnant women, unmarried sisters, ailing mothers and even aged grandmothers have been sent behind the bars under false allegations but their pain and suffering has not even been acknowledged leave alone addressed by the Government. Through IPC section 498a, the Government is actually protecting those women that indulge in perjury, blackmail, extortion and harassment of their husbands and inlaws.


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'Mummy, don't': Woman kills her only daughter, 12, after boyfriend says, 'It's the child or me'

Feb 2, 2009

A mother murdered her only child after being told by her boyfriend: 'It's her or me.'
Penny Boudreau strangled 12-year-old daughter Karissa after Vernon MacCumber threatened to end their affair because he did not get on with the girl.

Boudreau drove her daughter to a deserted wooded area, knocked her to the ground and strangled her, a Canadian court heard.

The heartless mother ignored her terrified daughter's cries of 'Mummy, don't!' as she pinned her down and wrapped a rope around her neck, prosecutor Paul Scovi said.

She then drove to a nearby river and pulled her daughter's trousers partly off to make it look as if she was the victim of a sex attack, before rolling her into the water.

Boudreau later claimed her daughter had gone missing after they had an argument and made TV appeals for her return. Two weeks later Karissa's body was found on the banks of the river.

Boudreau was caught by undercover officers posing as gangsters offering to destroy any evidence police had against her. She was charged with murder in June last year.

Boudreau broke down in tears in the courtroom in Bridgewater, Nova Scotia, as she pleaded guilty to murder and said: 'I'm sorry.'

Boudreau pleaded guilty to second degree murder and was jailed for 20 years without parole.
Relatives wept openly in the courtroom as Karissa's final hours were revealed by prosecutors.
The court heard that the single mother moved in with her boyfriend Vernon MacCumber.
MacCumber did not get on with the 12-year-old Karissa, and issued an  ultimatum that either she went or he would end the relationship.
Bourdeau chose to sacrifice her daughter's life.
On returning home she threw away some of Karissa's clothes to make it look like she had run away. She also called her boyfriend to tell him her daughter had gone missing.
It is unclear if MacCumber knew what she had done. The pair attended Karissa's funeral together.
Police always suspected Boudreau but had no evidence to charge her after  Karissa's body was found in February 2008.
Undercover investigators only learned the grisly details of the murder after a sting operation in which officers posed as organised crime bosses who convinced Boudreau they could destroy whatever evidence the police might have against  her.
Boudreau took the bait and began talking. She was charged with murder in June  2008.
The judge Justice Margaret Stewart, looking directly at  Boudreau, told her: 'You can never call yourself mother.
'The words, "Mummy, don't," are there to haunt you for the rest of your life'

Source: Dailymail.uk

Ontario mom to get life for drowning her girls

In true Feminazi style the Husband is the Devil and Wife always the victim. This article does not hide the fact that they are Male biased, it was the hands of the mother which murdered in cold blood her own flesh and blood, yet its the husband who is the bad guy, when will this Feminazi nonsense stop? 

Nov 16, 2010

BARRIE, Ont. - An abusive husband, escalating psychosis and an ineffectual mental-health system were all cited Monday as factors in the deaths of two young sisters, but a jury decided the ultimate responsibility lies with their mother, who held their tiny heads underwater in the bathtub.

Elaine Campione's whole body began to shake and she burst into loud sobs after the jury found her guilty of two counts of first-degree murder in the deaths of her daughters Serena, 3, and Sophia, 19 months.

The defence had conceded from the beginning that Campione drowned her children in October 2006, just days before a family court appearance at which her ex-husband was to fight for custody. But lawyer Mary Cremer had urged the jury to find Campione not criminally responsible by reason of mental disorder.

Three of the jurors wiped tears from their eyes Monday as the verdict was delivered.

Justice Alfred Stong told the court that because of the "unimaginable facts of this case" he is ordering the Ministry of the Attorney General to cover any counselling the jurors may want.

"The circumstances of this case are undeniably and inordinately tragic," Stong said after the verdict was read. "One can only hope that they do not reflect, even at their most extreme, a direction of our society."

Stong continued on, telling the court about the "breakdown of the family unit" and an "increasing inability to make personal commitments, much less permanent commitments."

"It is more than disconcerting to think that if Ms. Campione had not been so abused, so used and discarded as a person, her two daughters could still be alive," Stong said.

The jury, which heard seven weeks of testimony and deliberated for nearly a week, was tasked with sifting through evidence of Campione's suicide attempts and mental illness. They heard doctors had diagnosed her as having unspecified psychosis with borderline personality traits, post-traumatic stress disorder from spousal abuse, depression and an eating disorder when she was younger.

The trial heard that Campione spent time in psychiatric wards, attempted suicide, had delusions that people were trying to kill her and steal the girls and exhibited bizarre behaviour including not letting one of her daughters touch anything red and claiming she saw aliens.

During their deliberations the jury asked the judge three questions, including asking him to clarify the phrase "morally wrong."

The Crown didn't deny Campione was mentally unwell, but lawyer Enno Meijers argued it did not prevent her from knowing right from wrong. He had argued Campione killed the girls out of spite so her abusive ex-husband couldn't get custody.

While assault charges against Leo Campione were stayed after his wife was charged with killing their children, the trial heard evidence that he hit his wife and eldest daughter.

Leo Campione and his family have been given the chance to make victim impact statements on Wednesday before Elaine Campione is formally sentenced to life in prison with no chance of parole for 25 years.

Campione's lawyer said she hopes her client will get the help she needs in prison, but called the case a tragic indictment of Ontario's mental-health system.

"From June 2005 to October of 2006, Ms. Campione sought help six times and she became an involuntary psychiatric patient three other times," Cremer said outside court.

"It's a sad statement in that our system is horribly underfunded. We are not equipped to deal properly with mental-health issues. We are short of psychiatrists."

Ontario Premier Dalton McGuinty said his government would "take a very close look at the case, in particular the findings, to find out what exactly we might do."

"We always have a responsibility in government to take a look at the findings, the facts that were brought forward, to determine what we might do to improve the quality of care and oversight that we provide to children in particular," said McGuinty.

Campione is "devastated" by the verdict, said Cremer, who added she is considering an appeal.

"This is a woman who was suffering, ravaged terribly by mental illness," she said. "She herself lost her children as well in this whole ordeal."

The sisters were found on Oct. 4, 2006, after Campione calmly called police to say her children were dead, though she likely killed them two days earlier.

When officers arrived they found the little bodies dressed in pyjamas, posed in Campione's bed holding hands. The odour of decomposition was already in the air. A photo album and a rosary had been placed with their bodies and little Sophia's hair had been combed. Underneath a tuft of hair that had been brushed across Sophia's forehead were marks that looked like the bath mat.

In that room a videotape was found showing footage from the night of Oct. 2, 2006 of the sisters playing and colouring. The tape was turned off at 8:39 p.m. and then at 9:27 p.m. the video camera is turned back on and Campione is sitting alone on a couch facing the camera.

"Leo, there are you happy?" she says. "Everything's gone ... The idea that you could actually have my children — God believes me and God's taking care of them now."

She goes on to spew vitriol about her ex-husband, calling him a "hideous monster" and "the devil."

"I want you to know how much I hate you," Campione says on the video. "You couldn't leave us alone. You wanted to win and you won ... Are you happy? ... You beat your wife to death and your children and don't you ever, ever, ever forget it."

The camera was turned on again at 8:19 a.m. on Oct. 3 and Campione, sitting in the same spot, tells the camera she tried to overdose but it didn't work. The camera is turned on again soon after.

"It's morning and our babies are in heaven," Campione says. 

 

Source: Metronews.ca