MISUSE OF DOWRY LAWS

HARASSING HUSBAND AND IN-LAWS

Anti-Dowry law was enacted as a defence against a deplorable social practice. Unfortunately, a weapon of defence was turned into a tool of manipulation at the hands of certain unscrupulous people. Rita Khanna, Advocate analyses the legal position.

The 91st Law Commission1, recommended for the insertion of new sections in Indian Penal Code, 1860, Indian Evidence Act, 1872 and Criminal Procedure Code, 1973 for tackling the problem of alarming increase in number of cases in which married women die in highly suspicious circumstances. Cases of cruelty by the husband and relatives of the husband culminating in suicide by, or murder of, the hapless woman concerned, constituted only a small fraction of the cases involving such cruelty. Further, the criminal in such cases is a member of the family, other members of the family (if residing in the same house) are either guilty associates in crime, or silent but conniving witnesses to it. Due to strong shackles of the family, the truth may not come out of the chains. There would be no other eye-witnesses, except for members of the family.

To deal with the situation, the Indian Penal Code, 1860; Criminal Procedure Code, 1973 and the Indian Evidence Act, 1872 were amended by Criminal Law (Amendment) Act, 1983. The changes made by the amendment were:

1. Cruelty to a woman by her husband or any relative of her husband made punishable;

2. “Wilful conduct” of the husband or any relative of the husband as is likely to drive the woman to commit suicide or cause grave physical or mental injury to her;

3. “harassment” of a woman by her husband or by any relative of her husband with a view to coercing her or any of her relatives to meet any unlawful demand for property would be punishable as cruelty;

4. the offence to be cognizable, if information relating to the commission of the offence is given to the office-in-charge of a police-station by victim of the offence or a relative of the victim of the offence or in the absence of any such relative, by any public servant authorized in this behalf by the State Government;

5. No Court to take cognizance of the offence except upon a police report or a complaint made by the victim of the offence or by her father, mother, brother, sister or by her father’s or mother’s brother or sister or
   with the leave of the Court by any other person related to her by blood, marriage or adoption.2 

Substantive section 498A IPC and presumptive section 113B of the Indian Evidence Act, 1872 include in their amplitude past events of cruelty. Period of operation of section 113B of the Evidence Act is seven years, presumption arises where a woman committed suicide within a period of seven years from the date of marriage.3 Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical to the woman is required to be established in order to bring home the application of section 498A IPC. ‘Cruelty” has been defined in the Explanation for the purpose of section 498A.

“Cruelty”: For the purpose of section 498A IPC, which is peculiar to Indian families, victim spouse is always the “wife” and guilty is the “husband and his relatives”, near or distant, living together or separately. Explanation to section 498A explains “cruelty” as under:

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.

It is apparent from the definition stated above that neither every cruelty nor every harassment has element or criminal culpability for the purposes of section 498A IPC4, the acts or conduct should be either such

(i)      that may cause danger to life, limb or health; or

(ii)     cause “grave” injury; or

(iii)    that may drive a woman to commit suicide. It is of a much graver nature and involves series of systematic, persistent and wilful acts perpetrated with a view to make the life of the woman so burdensome or insupportable that she may be driven to commit suicide because of having been fed-up with marital life;

(iv)    such acts or conduct should be “wilful” i.e. intentional.

So, to invoke provisions of section 498A IPC, the tests are of stringent nature and intention is the most essential factor.

“Harassment” : Similarly, the offence of harassment is peculiar to Indian conditions and society where evil of dowry and its perpetuation through customary gifts or demands is widely prevalent and is adversely affecting the institution of family.5 To constitute “harassment”, the following ingredients are essential:

(i)      Woman should be tormented i.e. tortured either physically or mentally through constant interference or intimidation;

(ii)     Such act should be with a view to persuade or compel her to do something which she is legally or otherwise not expected to do by using force or threats;

(iii)    Intention to subject the woman should be to compel or force her or her relatives to fulfil unlawful demands for any property or valuable securtiy.6 

Breach of Trust : Section 406 IPC provides punishment for criminal breach of trust by a person who was entrusted with property or with any dominion over such property and had dishonestly misappropriated or converted it to his own use or disposed it of in violation of any direction of law.

The legislature was conscious about the fact that the provision may be exploited that is why it has defined “Cruelty” and for that purpose “harassment” within the parameters of “intentional conduct” of such a degree that may either drive the woman to commit suicide or cause danger to life, limb or health or cause “grave injury”. Health means not only “physical” but “mental” also.7 

Keeping in view the increasing crime against married women, legislature in its wisdom passed various statutes but in many of the cases these beneficial provisions are being misused just to satisfy their feeling of revenge8. It is generally seen that when any marriage goes in rough weather the tendency is to insinuate as many members of the family of her husband as possible with the allegation of laying demand for dowry and also treating her with cruelty when their demand for dowry is not being fulfilled. Allegations of misappropriation of dowry are also made sometimes against those members of the family of the husband who do not have anything to do with the dowry which is the concern of the bride and bridegroom and at best parents of the bridegroom that too in rare cases.9 These provisions are, therefore abused by the Investigating and Prosecuting agencies as well as the woman and her relatives against the husband and his family members. This was not intended by the legislature. So, instead of curbing the evil of dowry and cruelty towards woman, the misuse of these provisions is adversely affecting the very foundation of the society i.e. the family10. “The family comes to an end as soon as the complaint is lodged and cognizance is taken by the police. These provisions have tendency to destroy whole social fabric as power to arrest anybody by extending or determining the definition of “harassment” or “cruelty” vests with the lower police functionaries who may lack the intellectual capacity to deal with the subject. Therefore, once a complaint is lodged under section 498A/406 IPC whether there are vague, unspecific or exaggerated allegations or there is no evidence of “cruelty” “harassment”, it comes as an easy tool in the hands of the police and agencies like. Crime Against Women cell handle them 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 as the offence has been made Cognizable and Non-bailable.11 

Misuse of the provisions of Law : In a number of cases, the process of the law is abused and false complaints are filed against most of the members of the husband’s family.

In Rajkumar Khanna v. The State (NCT of Delhi)12 the complainant filed complaint against the husband and his family members under section 498A/406/34 IPC in retaliation to husband’s filing the petition of divorce.

Having seen and experienced the enforcement of these laws for decades, the Supreme Court had observed in Pawan Kumar’s case13 that “Often innocent persons are also trapped or brought in with ulterior motives and, therefore, this places an arduous duty on the court to separate such individuals from the offenders. Hence, the courts have to deal such cases with circumspection, sift through the evidence with care”. The suggestions were made to correct the situation by Delhi High in Savitri Devi’s case14, which are as follows:

(i)      Marital offences bailable : Marital offences under sections 498A/406 IPC be made bailable, if no grave injury is inflicted.

(ii)     Offence to be compoundable: If the parties decide to put an end to their marriage by mutual divorce, they should be allowed to compound the offences so that criminal proceedings don’t chase them if they want to start their marital life afresh or otherwise.

(iii)    Investigation by Civil authorities : The investigation into these offences be vested in civil authorities like Executive Magistrates and after his finding as to the commission of the offence, cognizance should be taken. Till such a mechanism is evolved, no police-officer below the rank of ACP for the offences under section 498A/ IPC and DCP for the offences under section 304B IPC i.e. dowry death should be vested with investigation.

(iv)    Minor Children not to be arrested : Where minor school–going children are named, they shall not be arrested and be sent to the court for taking cognizance and further proceedings. Their arrest ruin their future life and lower them in their self-esteem. In certain cases, even the grand-parents in their eighties and nineties suffer this traumatic situation.

To stop the growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband (and if one of them happens to be of higher status or of vulnerable standing, he or she become an easy prey for better bargaining and blackmailing) the Delhi High Court through Justice J.D. Kapoor in Savitri Devi’s15 case recommended to the authorities and law-makers to have a review of the situation and legal provision.

In Sushil Kumar Sharma v. UOI, this following prayers were made to prevent the abuse of process of law by the woman and her relatives:—

(i)      to declare section 498A IPC unconstitutional and ultravires and in the alternative to formulate guidelines so that innocent persons are not victimised by unscrupulous persons making false accusations;

(ii)     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.

It is a settled law that if a statutory provision is otherwise constitutional and valid, mere possibility of abuse of power in a given case would not make it unconstitutional. Therefore mere possibility of abuse of a provision does not per se invalidate a legislation. The court’s role is to interpret the law and not to legislate. It is the function of the legislature. But the courts till then must take remedial measures to prevent abuse of the well-intentional provision.

The Supreme Court in Sushil Kumar’s case have suggested the following remedial measures by stating that the courts have to take care of the situation within the existing framework:—

(i)      the courts and the investigating agencies should not deal with the allegations casually;

(ii)     the courts should not follow any straitjacket formula, any pre-conceived notion or view. These matters are of dowry deaths and cruelty and the ultimate object of the court should be to arrive at truth, punish the guilty and protect the innocent. In such cases, courts and investigating agencies start with the presumption that the accused persons are guilty and the complainant is speaking the truth. But the presumption is rebuttable. So, arriving at truth becomes essential in such cases to protect the innocent persons.

(iii)    In most of the cases, no direct evidence is available and the courts have to act on circumstantial evidence. So, while dealing with such cases, the law relating to circumstantial evidence has to be kept in mind.16 

In the end, one can conclude that the institution of family has got adversely affected by these provisions. These provisions have resulted into large number of divorce cases. Once any member of the husband family is arrested, chances of surviving the marriage become remote and the marriage comes to an end. A woman who is not economically independent gets adversely affected with bleak chances of remarriage and by becoming dependent upon parents and brothers again. Further the future of the unmarried girls of the husband’s family gets adversely affected by these false complaints and prosecutions. If the daughter-in-law needs protection against cruelty, the women of the husband’s family also needs protection against these false complaints. To give the protection to the innocent members of the husband’s family, the law should provide the stringent punishment for the persons making false accusations, complaints etc.

The Protection of Women from Domestic Violence Act, 2005

Till now subjecting a woman to cruelty by her husband or his relatives for meeting the demand of dowry is an offence under Section 498A IPC. But now it has also been included in the definition of Domestic Violence under the Protection of Women from Domestic Violence Act, 200517. The Vienna Accord of 1994 and the Beijing Declaration and the Platform for Action (1995) have acknowledged domestic violence a human rights issue. The United Nations Committee on Convention on Elimination of All forms of Discrimination Against Women (CEDAW) in its General Recommendation No. XII (1989) has recommended that State Parties should act to protect women against violence of any kind especially that occurring within the family i.e. physical, sexual, verbal or emotional, harassment, injury for dowry demand etc.

The Protection of Women from Domestic Violence Act, 2005 has been enacted to protect the rights of women guaranteed under the Constitution (Articles 14, 15, 21) who are victims of any kind of violence occurring within the family. This Act has enhanced or widened the area of rights of women against the husband and family members of the husband without any corresponding rights (provisions) for protecting the husband or members of the husband’s family against the harassment perpetrated by the women against them. Section 3 of the Act includes under the definition of the Domestic Violence any act, omission, commission or conduct of the respondent if it harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to any unlawful demand for any dowry or other property or valuable security18 and it has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned above19. Upon receipt of information, complaint, the police officer has to proceed in accordance with law as to the commission of a cognizable offence20. Further when the incident is repressed to a Police Officer, Protection Officer, service provider or Magistrate he shall inform the aggrieved person of her right to file a complaint under section 498A of the Indian Penal Code (45 of 1860), wherever relevant21.

Further, under section 31 of the Act while framing charges for breach of protection order or of an interim protection order, the Magistrate may also frame charges under section 498A of Indian Penal Code (45 of 1860) or any other provision of that Code or the Dowry Prohibition Act, 1961 (28 of 1961), as the case may be, if the facts disclose the commission of an offence under those provisions.22 

How this law will be effective in curbing domestic violence or harassment, cruelty for dowry demand has to be seen. But the law does not provide for any remedy if the harassment is of the husband/family by the wife. No right to file complaint against the wife has been given to female members of the husband’s family if the wife constantly harasses them.

1.        91st Law Commission Report, 10th August, 1983.

2.        The Criminal Law (Second Amendment) Act, 1983.

3.        Ibid.

4.        Savitri Devi v. Ramesh Chand, 2003 IV AD (Delhi) 73.

5.        Ibid at 77.

6.        Ibid at 78.

7.        Ibid.

8.        Sukhbir Jain & Anr. v. State, 1993 JCC 91.

9.        Lakhwinder Singh v. State of Punjab (2000) Cr. J. 4751.

10.     Supra note 5 at 79.

11.     Ibid.

12.     2002 (1) JCC 327.

13.     AIR 1998 SC 958; (1998) SLT 525.

14.     Supra note 5.

15.     Ibid.

16.     Id. At 441 – 442.

17.     The Act has to come into force by notification it has not been implemented as yet.

18.     Section 3(b) of the Protection of Women from Domestic Violence Act, 2005.

19.     Id. section 3 (c).

20.     Id. Proviso to section 5.

21.     Section 5 (e) Id.

22.     Section 3 (3) Id.