498-A IPC (85 BNS) must become gender neutral to prevent abuse | N. Vidya

 
“Justice is due!” So read a placard in the room of the Bengaluru IT employee who committed suicide by hanging, leaving behind not just devastated parents and a brother but also a 24-page suicide note detailing all the agony he faced at the hands of his estranged wife and her parents besides their steep monetary demands in the name of maintenance for their four-year-old child.

The tragedy occurred a day before the Supreme Court, speaking through Justice B.V. Nagarathna (tipped to become the first woman Chief Justice of India), in the case of Dara Lakshmi Narayana & Ors. vs State of Telengana & Ors., came down heavily on women (mis)using Section 498-A of the Indian Penal Code (currently Section 85 in the Bharatiya Nyaya Sanhita).

For the unversed, Section 498-A IPC (now Section 85 BNS) punishes the husband and his relatives for cruelty meted out to a married woman by him/them. ‘Cruelty’ is defined as any wilful conduct that drives a woman to commit suicide or which leads to a reasonable apprehension towards the safety of her own life and limb or harassing her or any of her relations with a view to fulfilling unlawful demands regarding property or valuable assets.

Section 498-A was brought on the statute books through the Criminal Law (Amendment) Act, 1983. It has remained in force since its enactment in December 1983. The legislative intent behind the birth of this social welfare provision, in line with Article 15(3) of the Constitution, which permits the State to make laws for the benefit of women and children, was the increasing number of dowry deaths (suicide or murder) of helpless females due to cruelty by husband and his relatives.

It was the time when females in the country were generally married off at a relatively younger age (early 20s in urban areas and even prior to attaining majority in rural areas), were not as educated as now, mostly unaware of the laws in force for them, and were often tutored at home on the lines of ‘adjusting’ and tolerating everything for the sake of the family’s ‘honour’. The ‘honour’ was deemed supreme as was the fear of societal ostracism.

Resultantly, even if the females informed their own parents of the atrocities they were facing, no remedial steps were taken. The poor women were left to their inevitable fate. Recognition of this grave evil led to the birth of Section 498-A in the IPC.

Fast forward to today. According to the National Crime Records Bureau Report of 2022 (latest) Volume I, there were 1,40,019 incidents reported under Section 498-A, with the number of victims (women and/or relatives) being 1,44,593. While the nationwide crime rate under this section was 20.9 per cent, Delhi’s tally alone was as high as 49.7 per cent!

The analysis provided by the NCRB suggests that while in States and Union Territories, the combined crime rate for Section 498-A IPC was at 31.4 per cent, this stood at 32.6 per cent in metropolitan areas. (Not all metropolitan centres were on par with Delhi.)

These numbers can cause problems for many. So, let us simplify it in common parlance.

It is common knowledge that the position of women in certain states in India is not as good as other states in terms of education, finance and economic independence. The complaints under this section in the former states (where women are not better off) ranges from 3.1 per cent to 18.2 per cent. In the latter, it is almost 50 per cent.

It is clear from the data that the urban females are resorting to this section more than their counterparts elsewhere. This brings up the question: Why?

In the case of the Atul Subhash, the deceased Bengaluru IT engineer, his wife is a senior AI engineering consultant for the multinational IT firm Accenture in Delhi. According to a former Accenture employee, a consultant’s annual salary in the company is about INR 15 lakhs. The average expense on a four-year-old can be about INR 1.5 – 2 lakh per year (including education in a decent school, food and medical, outings, clothes, parties, gifts, etc.).

The deceased’s wife allegedly was demanding maintenance of INR 2 lakh per month for the child.

Akin were the facts in the Dara Lakshmi Narayana case (mentioned earlier) wherein the FIR under Section 498-A IPC was lodged as an afterthought by the woman against her husband and his relatives; the latter incidentally were not even residing in the same town as the disputing couple.

This is when the Supreme Court affirmed that while the inclusion of Section 498A of the IPC by way of an amendment was intended to curb cruelty inflicted on a woman by her husband and his family, in recent years there had been a notable rise in matrimonial disputes across the country, accompanied by growing discord and tension within the institution of marriage; consequently, there was a growing tendency to misuse Section 498A of the IPC as a tool for unleashing personal vendetta against the husband and his family by a wife.

“Making vague and generalised allegations during matrimonial conflicts, if not scrutinized, will lead to the misuse of legal processes and an encouragement for use of arm-twisting tactics by a wife and/or her family. Sometimes, recourse is taken to invoke Section 498A of the IPC against the husband and his family in order to seek compliance with the unreasonable demands of a wife. Consequently, this court has, time and again, cautioned against prosecuting the husband and his family in the absence of a clear prima facie case against them,” the apex court said.

It is significant that the misuse of Section 498-A has not come to the fore recently. It has been in the minds of the courts and governments since the early 2000s.

The High Court of Delhi, in Savitri Devi v Ramesh Chand & Ors. (2003), declared that while the female centric provisions were made with good intentions, “the implementation has left a very bad taste and the move has been counterproductive… These provisions have resulted in large number of divorce cases as when one member of the family is arrested and sent to jail without any immediate reprieve of bail, the chances of salvaging or surviving the marriage recede into background and marriage for all practical purposes become dead”.

Similar was the observation of the apex court in Sushil Kumar Sharma v Union of India (2005).

In a letter dated October 20, 2009 to all the Chief Secretaries in states and Union Territories, the Union home ministry spoke about the perils of the said section and how it was increasingly being abused. The ministry urged the administrations to try and reconcile the matter between the disputing parties by employing professional counsellors and mediators, having Women Cells in police stations, and complying with the directions of the Supreme Court in the case of D.K. Basu v State of West Bengal (1996) as regards using caution by the police while exercising their power to arrest.

However, it was the Arnesh Kumar v State of Bihar (2014) judgment of the Supreme Court that really drove the nail in the coffin. The court avowed that just because an offence (like Section 498-A IPC) was cognisable and non-bailable and the police had the power to arrest, it does not render it mandatory for the law enforcement authorities to use the power without discretion or the court to order detention mechanically.

This ruling resulted in a decline in the number of immediate arrests that were being done earlier upon receipt of complaints under Section 498-A IPC.

The problem in the section and its counterpart in the BNS is that it is a gender-specific provision while being cognisable and non-bailable. As the Bengaluru suicide case and the resultant uproar and data reveal, it is not just the females who are at the receiving end in marital disputes. The vice-versa is also true.

Law is always made for the betterment of the society and with the inherent intention of achieving and maintaining a balance across spectrums. It is perhaps time to make marital offences gender-neutral, non-cognisable and bailable so as to prevent the pendulum from going to the other extreme, resulting in complete breakdown of the institution of marriage.

(Author: Advocate N. Vidya, LL.M. (UK), has been practicing law for 11 years in Delhi, specializing in family, women and children’s cases. She may be reached at adv.vidya12[at]gmail.com. She is the author of Laws for Children in India, published by Thomson Reuters.)