Substantive Sections 498A IPC and presumptive Section 113-B of the Indian Evidence Act. 1872 (in short `Evidence Act') have been inserted in the respective statutes by Criminal Law (Second Amendment) Act, 1983.
Section 498A IPC and Section 113-B of the Evidence Act include in their amplitude past events of cruelty. Period of operation of Section 113-B of the Evidence Act is seven years, presumption arises when a woman committed suicide within a period of seven years from the date of marriage.
Section 498 reads as follows:
"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 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.
Section 113-B reads as follows:-
"113-B: Presumption as to dowry death-When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death.
Explanation-For the purpose of this section `dowry death' shall have the same meaning as in Section have the same meaning as in Section 304-B of the Indian Penal Code (45 of 1860)."
The object for which Section 498A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As clearly stated therein the increase in number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, which constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short `the Cr.P.C.') and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.
One other provision which is relevant to be noted is Section 306 IPC. The basic difference between the two Section i.e. Section 306 and Section 498A is that of intention. Under the latter. cruelty committed by the husband or his relations drag the women concerned to commit suicide, while under the former provision suicide is abetted and intended.
Supreme Court of India Sushil Kumar Sharma vs Union Of India And Ors on 19 July, 2005
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 of 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. It is to be noted that Sections 304-B and 498A, IPC cannot be held to be mutually inclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the Sections and that has to be proved. The explanation to Section 498A gives the meaning of `cruelty'. In Section 304- B there is no such explanation about the meaning of `cruelty'. But having regard to common background to these offences it has to be taken that the meaning of `cruelty' or `harassment' is the same as prescribed in the Explanation to Section 498A under which `cruelty' by itself amounts to an offence.
Supreme Court of India
Sushil Kumar Sharma vs Union Of India And Ors on 19 July, 2005
9. Ingredients of 498A of the Indian Penal Code are :-
a). The woman must be married
b) She must be subjected to cruelty or harassment; and
c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.
10. Appellant herein had not been charged for abetment of a crime. Any
conspiracy amongst the accused persons has also not been alleged. A
woman in terms of the aforementioned provision must be subjected to
cruelty by her husband and/or his relative. The word `cruelty' has also been
defined in the explanation appended thereto. It is in two parts.
Clause (a) of the said explanation refers to a conduct which is likely to drive the woman to
commit suicide or to cause grave injury or danger to her life, limb or health
(whether mental or physical); clause (b) provides for 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.
Supreme Court of India U.Suvetha vs State By Insp.Of Police & Anr. on 6 May, 2009
5. Section 498A IPC provides as under:-
"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 purpose of this section, "cruelty" means-(a) any willful 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 her such demand."
6. A bare perusal shows that the word 'cruelty' encompasses any of the following elements :-
(i) Any 'willful' conduct which is of such a nature as is likely to drive the woman to commit suicide; or
(ii) any 'willful' conduct which is likely to cause grave injury to the woman; or
(iii) any 'willful' act which is likely to cause danger to life, limb or health whether physical or mental of the woman.
7. So far as criminality attached to word 'harassment' is concerned, it is independent, of 'cruelty' and is punishable in the following circumstances:-
(a) Where the harassment of the woman 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
(b) Where the harassment is on account of failure by her or any persons related to her to meet such demand.
8. It is apparent, neither every cruelty nor every harassment has element of criminal culpability for the purposes of Section 498-A. There is no problem where there is physical violence and infliction of injury which is likely to cause grave injury or danger to life, limb or health. In such cases, facts will speak for themselves.
16. 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. Ingredients of 'cruelty' as contemplated under Section 498A are of much higher and sterner degree than the ordinary concept of cruelty applicable and available for the purposes of dissolution of marriage i.e. Divorce. In constituting 'cruelty' contemplated by Section 498A IPC the acts or conduct should be either such that may cause danger to life; limb or health pr cause 'grave' injury or of such a degree that may drive a woman to commit suicide. Not only that such acts or conduct should be "willful" i.e intentional. So to invoke provisions of Section 498A IPC the tests are of stringent nature and intention is the most essential factor. The only test is that acts or conduct of guilty party should have the sting or effect of causing grave injury to the woman or are likely to cause danger of life, limb or physical or mental health. Further conduct that is likely to drive the woman to commit suicide is of much graver nature than that causing grave injury or endangering life, limb or physical or mental health. It involves series of systematic, persistent and willful 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.
17. Similarly 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 eating the very vitals of matrimony and tearing familial social fabric apart. To curb this evil, the acts of not only the husband but the entire household have been brought within the net of "harassment of a woman" if done to coerce her or her relatives to fulfilll the unlawful demands for property or valuable security.
18. The word 'harassment' in ordinary sense means to torment a person subjecting him or her through constant interference or intimidation. If such tormentation is done with a view to 'coerce' any person and in this case, the wife to do any unlawful act and in this case to meet the unlawful demand of property or valuable security, it amounts to "harassment" as contemplated by Section 498-A. Word 'Coercion' means pursuading or compelling a person to do something by using force or threats. Thus to constitute "harassment" 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 pursued 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 fulfilll unlawful demands for any property or valuable security.
19. Only allegation against the respondents is that they did not like the clothes brought by the petitioner as customary gifts for relatives of the husband. One of the sisters-in-law remarked that had the marriage taken place with her sister, more dowry would have been received. These allegations when tested on the anvil of aforesaid tests, do not make out a case of either 'cruelty' or 'harassment' as contemplated by Section 498A IPC Non-acceptance of gifts might have hurt her feelings and other remarks might have been unkindly and incisive but by no stretch of imagination, such a conduct involves any of the ingredients of either offence under Section 498A IPC or 406 IPC. Neither such an act or conduct has the effect of driving the woman to commit suicide nor of causing grave injury nor, is likely to cause danger to life or limb nor did it amount to tormenting her either physically or mentally to compel or force her or her relatives to fulfilll the demands of any property or valuable security. For the foregoing reasons, the petition is highly misconceived and is being used as a tool to hold the entire household to ransom and jeopardy. Petition is dismissed.
Delhi High Court
Savitri Devi vs Ramesh Chand And Ors. on 19 May, 2003
Equivalent citations: 2003 CriLJ 2759, 104 (2003) DLT 824, II (2003) DMC 328
Punjab & Haryana High Court in the case of Richhpal Kaur v. State of Haryana and Anr. reported as 1991 (2) Recent Criminal Reports 53 wherein it is observed that:-
"Beating given to bride by husband and his relations due to domestic disputes and not on account of demand of dowry - Offence under Section 498A IPC not made out."
that in order to attract the provisions of Section 498A it is not every harassment or every type of cruelty that would attract the provision of Section 498A. In this regard we are supported by the decision of Bombay High Court in Sarla Prabhakar Waghmare v. State of Maharashtra (1990) Crl.L.J. Page 47 (Bombay) and Rajanimal and Ors. v. State by D.S.P. CB CID 1993 Cr.L.J. Page 3019. Court observed that cruelty by itself without demand would not be sufficient to bring home the guilt under explanation (b) of Section 498A IPC. Harassment by itself is not a cruelty unless there is a demand of dowry and the cruelty is a consequence of that demand. Supreme Court in the case of State of Himachal Pradesh v. Nikku Ram and Ors. while interpreting the provisions of Section
304-B, 498-A, 306 and 324 IPC the Apex Court observed that harassment to constitute cruelty under Section 498A explanation (b) must have nexus with the demand of dowry and if this is missing the case will fall beyond the scope of Section 498A. Pre-condition for attracting the provisions of Section 498A is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the woman without any nexus with the demand then such a cruelty will not be covered under explanation (b) under Section 498A IPC. It may be a cruelty under Hindu Marriage Act as held by Supreme Court in the case of Shobha Rani v. Madhukar Reddi . Apex Court observed that cruelty
under Section 498A IPC is distinct from the cruelty under the Hindu Marriage Act which entitle the wife to get a decree for dissolution of marriage.
guidelines laid down by the Supreme Court for quashing the FIR in the case of State of Haryana and Ors. v. Chaudhary Bhajan Lal and Ors. . Paragraph 107 of the said judgment itemise
guidelines as follows:-
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverter allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. 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.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with malafide and/or 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.
Supreme Court in the case of Rajesh Bajaj v. Govt of NCT of Delhi, held that power of quashing a criminal proceeding
should be exercised very sparingly and with circumspection and that too in the rarest or rare case. Similar view was taken by the Supreme Court in the cases of State of Bihar v. P.P. Sharmareported in 1992 (Suppl.1) SCC 222, State of Maharashtra v. Ishwar Piraji Kalpatri and Ors. where the Apex Court observed that:-
"Malafides or animus of complainant or prosecution not relevant, if on the basis of allegation in the complaint a prima facie case is made out, the High Court has no jurisdiction to quash the proceedings."
In the case of Datar Singh v. State of Punjab (Supra), the Apex Court found that such an FIR becomes suspicious when it was neatly written. Mr. Mathur further said that the way this complaint was written it cannot be called spontaneous, rather it appears to be calculated. The Apex Court in the case of Kans Raj v. State of Punjab and Ors. observed :-
"A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not, discouraged is likely to affect the case of the prosecution even against the real culprits."
23. Bombay High Court in the case of Sarla Prabhakar Waghmare v. State of Maharashtra and Ors. 1990 (2) Recent Criminal Reports page 18 observed that:-
"It is not every harassment or every type of cruelty that would attract Section 498A IPC - Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands."
A complaint was filed alleging commission of offences punishable under Sections
498-A, 406, 323, 506, 148 and 149 of the Indian Penal Code,
1860 (in short the 'IPC')--The absence of reasons has rendered the High Court's judgment not sustainable.--"Failure to give reasons amounts to denial of justice". Case No.:Appeal (crl.) 222 of 2008 Petitioner:Ran Singh and Anr. Respondent: State of Haryana and Anrand Anr. DATE OF JUDGMENT: 30/01/2008 BENCH: Dr. ARIJIT PASAYAT & P. SATHASIVAM JUDGMENT: (Arising out of SLP (Crl.) No.3089 of 2006) Dr. ARIJIT PASAYAT, J.(see attachment 1.)
22. Mere omission or defect in framing charge does not disable the Criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal procedure has ample provisions to meet a situation like the one before us. From the Statement of Charge framed under Section 304B and in the Alternative Section 498A, IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306, IPC existed in the case. The mere omission on the part of the trial Judge to mention of Section 306, IPC with 498A, IPC does not preclude the Court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498A of IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 of Cr.P.C. take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on fats found in evidence, he could have been charged for such offence. Section 221 of Cr.P.C. needs reproduction:-
"221. Where it is doubtful what offence has been committed. - (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
23. The provision of Sub-section (2) of Section 221 read with Sub-section (1) of the said Section can be taken aid of in convicting and sentencing the accused No. 1 of offence of abetment of suicide under Section 306 of IPC along with or instead of Section 498A of IPC.
24. Section 215 allows criminal court to ignore any error in stating either the offence or the particulars required to be stated in the charge, if the accused was not, in fact, misled by such error or omission in framing the charge and it has not occasioned a failure of justice. See Section 215 of Cr.P.C. which reads:-
"215. Effect of errors - No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
Supreme Court of India
K. Prema S. Rao And Anr. vs Yadla Srinivasa Rao And Ors. on 25 October, 2002
Equivalent citations: AIR 2003 SC 11, 2002 (2) ALD Cri 871
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