Written by: Upasana Borah, N.E.F. Law College, Guwahati, Assam
In the past decades married women have been constantly subject to violence. In extreme cases they are even murdered or driven to commit suicide. In order to combat this menace the parliament has added Section498A by CRIMINAL LAW AMENDMENT ACT, 1983 in THE INDIAN PENAL CODE,1860 and thus makes it punishable to practice cruelty upon a married woman dowry demands are one of the main reasons for inflicting cruelty upon a woman by her husband or in-laws. The main objective of this amendment is to protect the woman from being harassed.
However Section 498A of the INDIAN PENAL CODE, 1860 reads as- Woman subjecting her to cruelty- [1]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 purpose 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.
CONSTITUTIONAL VALIDITY OF SECTION 498A
Section 498A deals with aggravated form of the offence. It punishes such demands of property of valuable security from the wife or her relatives as coupled with cruelty to her a person can be prosecuted with respect to both the offences punishable under section 4 of Dowry Prohibition Act, 1961.The section gives a wide discretion to the courts in the matters of interpretation of the words occurring in the laws and also in matters of awarding punishments. This provision is not ultravires and it does not confer arbitrary powers on the court.
Further according to Hon’ble Supreme Court the offence of cruelty defined under Section 498A is a continuing offence and thus on each occasion on which the wife is subjected to cruelty .
CASE LAW= INDER RAJ MALIK & ORS v MRS. SUNITA MALIK
In this case it was contended that section 498A of Indian Penal Code, 1860 is ultavires with Article 14 and Article20(2) of the Constitution of India, 1950. Since there was Dowry Prohibition Act, 1961 which deals with similar cases therefore both statues create a situation called Double Jeopardy. But Delhi High Court negated of this contention and held that this does not create Double Jeopardy. Section 4 of Dowry Prohibition Act, 1961 and Section 498A of Indian Penal Code, 1860 both sections are distinguishable from each other. The essence of the offence in section498A is cruelty as defined in the explanation under this section.
WHETHER COMPOUNDABLE OFFENCE OR NOT?
As per the 1st schedule classification of offences the offence of cruelty and harassment under section 498A of IPC, 1860 is non-bailable and cognizable by the Magistrate of the 1st class.
CASE LAW- B.S JOSHI’S CASE
In this case it has been held by the supreme court that section 320 of the CRPC, 1973 i.e compounding of offences would not bar exercise of power of quashing for securing end of justice and exercising or non exercising of power to quash FIR or complaint would depend upon facts and circumstances of each case.
In the present case the Supreme Court ruled that since offence under section498A is non-compoundable it would not be permissible in law to quash the complaint or FIR on the ground that there has been a settlement between the parties.
REASONS BEHIND ENACTING SECTION498A
Recently a large number of dowry death came into light and it was the matter of serious concern for woman. The matter was debated and working of Dowry Prohibition Act,1961 attracted adverse criticism in both the houses of the legislature. Later on finally it was thought expedient to add the present section in the Indian PenalCode,1860 . Adequate amendments have also been made in the Code of Criminal Procedure,1973 and Indian Evidence Act,1872 to meet the situation.
There was the object of introducing Chapter XX-A containing section498A in the Indian Penal Code was to prevent the torture to a woman by her husband or the relatives. In the view punishing them for unlawful demand of dowry.
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