Вы находитесь на странице: 1из 49

A RESEARCH PROPOSAL FOR DOCTRINAL RESEARCH

ON
CRUELTY AGAINST MARRIED WOMEN AND THE LEGAL
FRAMEWORK IN INDIA WITH SPECIAL REFERENCE TO INDIAN
PENAL CODE, 1860: A CRITICAL ANALYSIS

SUBMITTED TO:
(Dr. KAUMUDHI CHALLA)
(ASSISTANT PROFESSOR)
(FACULTY OF RESEARCH METHODS AND LEGAL WRITING)

SUBMITTED BY:

JOY SARKER
ROLL NO.-17

PG082014167
LL.M- I TRIMESTER (2014-15)

DATE OF SUBMISSION: 07.10 .2014

HIDAYATULLAH NATIONAL LAW UNIVERSITY


RAIPUR, CHHATTISGARH
1

DECLARATION

I, Joy Sarker, student of Hidayatullah National Law University, hereby declare that the
project work entitled Cruelty against married women and the legal framework in India
with special reference to Indian Penal Code, 1860: A Critical Analysis submitted to the
Hidayatullah National Law University, Raipur is a record of an original work done by me
under the guidance of Dr. Kaumudhi Challa, teacher in subject, Hidayatullah National Law
University, Raipur.

Date:

Name: JOY SARKER


Roll No. 17; PG082014167
LL.M Trimester-I (2014-15)

CERTIFICATE

This is to certify that the project report entitled Cruelty against married women and the
legal framework in India with special reference to Indian Penal Code, 1860: A Critical
Analysis submitted by Joy Sarker in partial fulfilment of the requirement for the award of
degree of LL.M. to Hidayatullah National Law University, Raipur is a record of the
candidates own work carried out by him under my supervision. The matter embodied in this
project is original and has not been submitted for the award of any other degree.

DATE:

(Dr. Kaumudhi Challa)


Teacher in subject

ACKNOWLEDGEMENTS

I would specially like to thank my guide, mentor, Dr. Kaumudhi Challa without whose
constant support and guidance this project would have been a distant reality.
This work is an outcome of an unparalleled infrastructural support that I have received from
Hidayatullah National Law University, Raipur.
I owe my deepest gratitude to the library staff of the college.
It would never have been possible to complete this study without an untiring support from my
family, specially my parents.
This study bears testimony to the active encouragement and guidance of a host of friends and
well-wishers.

Name: Joy Sarker


Roll no -17; PG082014167
LL.M Trimester-I (2014-15)

LIST OF ABBREVIATIONS

AIR

All India Reporter

Cri. LJ

Criminal Law Journal

HINDU L.R.

Hindu Law Reporter

SCC

Supreme Court Cases

TABLE OF CASES
SL.NO.
1

CASE TITLE
A Jayachandra v. Aneel Kaur (2005)2 SCC 22

PAGE NO.
22

BrijLal v. Prem Chand 1989 AIR 1661

26

Daud Mohammad Aga v. State, 1995 Cri L.J. 2947 (Bom.)

14

Hira Choudhary v. State of West Bengal, 1997 (1) WLC 543

21

Holmes v. Holmes,(1755)2 Lee; 161 ER 283

20

Inder Raj Malik v. Sunita Malik,1986 (92) CRLJ 1510

27

Jagdish v. State of Rajasthan, 1998 RCR (Cr) 9

21

Jasbir Kaur vs. State of Haryana (1990)2 Rec Cri R 243

35

10
11
12
13
14

K.Subramaniam v. State, 1989 (1) Hindu L.R. (Mad) 63


Kanaraj vs. State of Punjab 2000 Cri LJ 2993
Kodadi Srinivasa v. State of A.P. 2001 (2) DMC 708
LV Jadhav v. SA Pawar 1983 Cr LJ 150
Maeyaea Vishvanatha Rao v. State of A.P.2003 Cr. L.J. NOC

27
35
30
29
30

15
16
17

11B (A.P.)
Mohd. Hoshan vs. State of A.P. 2002 Cri LJ 4124
N.G. Dastane v. S. Dastane (1975)2 SCC 326
NeeluKohli v. Naveen Kohli AIR 2006 SC 1675

35
20
20

18

Odeti Ram Reddy v. State of A.P. 2002 Cr. L.J. (NOC) 221

30

19
20
21
22

(AP)
Pawan Kumar v. State of Haryana J.T. 1998 (1) SC- 565
Rajesh Dewan v. State of Del.1999 (2) Hindu L.R. (Del) 250
Saritha v R. Ramachandran I (2003) DMC 37 (DB)
Satya Narayan Tiwari v. State of U.P., 2011 Cri. LJ 445

21
29
34
28

23

Satish Kumar Batra v. State of Haryana, AIR 2009 SC 2180

28

24

Saifan Rahimsaheb Shaikh v. State of Maharastra2001 (1)

30

25

Hindu L.R. (Bom) 624


Savitri Devi v Ramesh Chand &Ors II (2003) DMC 328

34

26
27

Srinivasalu v. State of A.P Appeal (Crl.) 11 of 2002


Sushil Kumar Sharma v. Union of India &Ors. AIR 2005 SC

33
13

3100
28

Surender Yadav v. State of Delhi (DB) All C.L.R 2000(2) 160

22

29

Sushil Kumar Sharma v. UOI,JT 2005 (6) SCC 266

31

30

State of Karnataka v. Moorthy 2002 Cr. L.J. 1683

22

31

State of Karnataka v. Balappa, 1999 Cr. LJ 3064 (Kant)

22

32

State of Karnataka v. C.Prakash1998 (1) Hindu L.R. (KAR)

29

33

(DB) 185
State of West Bengal v. Orilal JaiswalAIR 1994 SC 1418

29

34

State v. Siddaraju 2001 (1) Hindu L.R. (KAR) 660

31

35

State of U.P. v. Ramesh Prasad Mishra 1996 SCC (Cr.) 1278

30

36

Thati Konda v. State of A.P. 1992 (1)Crimes 1114

28

37

V. Bhagat v. D. Bhagat 1994 1 SCC 337

22

38

Vinitha Saxena v. PankajPandit, (2006)3 SCC 778

21

39

Yaldapati Kutumba v. State 2003 Cr. L.J. 4220 (AP)

30

CONTENTS

TOPIC

PAGE NO.

DECLARATION

CERTIFICATE

ii

ACKNOWLEDGMENT

iii

LIST OF ABBREVIATIONS
TABLE OF CASES

iv
v-vi

CHAPTER-I:

INTRODUCTION AND RESEARCH


METHODOLOGY

1-18

CHAPTER-II:

EMERGENCE OF THE CONCEPT OF

19-23

CRUELTY AS A SOCIAL EVIL


CHAPTER-III:

REASONS BEHIND THE INSERTION

24-28

OF THE PROVISION RELATED TO


CRUELTY UNDER INDIAN PENAL
CODE, 1860.
CHAPTER-IV:

SECTION 498A IPC, 1860: A

29-35

CRITICAL ANALYSIS
MAJOR FINDINGS

36

CONCLUSION

37-38

SUGGESTIONS

39

BIBLIOGRAPHY

40

CHAPTER-I
INTRODUCTION AND RESEARCH METHODOLOGY

Introduction to the research project:


Family is considered to be the founding stone of the society. And this very family at the same
time has been considered a sphere of intimacy and devoid of conflicts of interests among the
members that poses ideal cultural and focus of identity. Marriage is one of the principal tool
used in expansion of family but having said that the institution of civil marriage has
undergone monumental changes in the last few decades.
First we have to look that what the word marriage means i.e. Marriage is the voluntary
union for life of one man and one woman to the exclusion of all others. It is considered to be
a sacred commitment made by the spouses towards each other. It is regarded to be the social
alliance between two families. It is essential that vows, promises, commitments that are
exchanged by the spouses are revered with a sincere heart because it is this institution which
eulogizes the hallmark of love, bonding, union of families and harmony. Endeavour should
always be made to sustain the sanctity of such divine institution since it is such an edifice
which must be rebuilt every day. Here in this social institution the husband has the
responsibility to take care of and maintain his wife. He cannot neglect his duties.
But like all good aspects bad aspects of a particular act too exists. The institution of marriage
suffers from a major social evil i.e. dowry (Money or property brought by a woman to her
husband at the time of marriage); and for the dowry husband exercises physical as well as
mental cruelty on wife. Women are ill-treated, harassed, killed, divorced for the simple reason
that they didnt brought dowry.For safeguarding the interest of woman against the cruelty
they face behind the four walls of their matrimonial home, the Indian Penal Code, 1860was
amended in 1983 and inserted Section 498A which deals with matrimonial cruelty to a
woman.
Having said that, now in 21st century the concept of cruelty which was earlier exercised by
the husbands on married women, nowadays took a new colour and situation is vice-versa. At
the time of introduction of the section it instilled some hope and optimism in the hearts of the
woman and her family as it was seen as an armour to combat against the brutality of the
male members of the society nevertheless with the passage of time it became transparent that
1

the provision of Section 498A IPC, 1860 left a host of loopholes which seemed to become a
powerful weapon if falls on evil hands.
So by looking in to the above situation we may draw two conclusions i.e. firstly,the main
intention behind the penal law of cruelty against married women by husband is not fulfilled
and secondly,on the other hand the law is being misused and the in-laws and the husband are
mentally and monetarily harassed.
Research methodology:
Definition of Research:
The term research is derived from a French word recerch meaning to to search and a
Latin word circare meaning to go round in a circle.
In research1
R stands for rational way of thinking
E stands for expert and exhaustive treatment
S stands for search for solutions
E stands for exactness.
A stands for analytical analysis of adequate data
R stands for relationship between facts and theories
C stands for (a) constructive attitude; (b) critical evaluation; (c) condensed and compactly
stated generalisation; (d) cautious and careful recording.
H stands for honesty and hard work in all aspects of the treatment of data.
Various definitions as stated by the jurists are as follows:
Manheim, says research is the careful, diligent and exhaustive investigation of a specific
subject-matter, which has its aim the advancement of mankinds knowledge.2
Redman and Mary defines research as systematised efforts to gain knowledge.3
1 Dr. S.R. Myneni, Legal Research Methodology 1 (Allahabad Law Agency, 5th ed. 2012)
2 Dr. S.R. Myneni, Legal Research Methodology 2 (Allahabad Law Agency, 5th ed. 2012)
2

Lundberg says research is a method sufficiently objective and systematic to make possible
classification, generalizations and verification of the data observed.1
Cook defines research is a careful enquiry or examination in seeking facts or principles and
diligent investigation to asserting to something.2
According to Websters International Dictionary, research is a careful, critical inquiry or
explanation in seeking facts or principles; diligent investigation in order to ascertain
something.3
According to Encyclopaedia Britannica, research is an act of searching into a matter
closely and carefully, inquiring directly to the discovery of truth and in particular the trained
scientific investigation of the principles and facts of any subject, based on original and firsthand study of authorities or experiments. Investigation of every kind which have been based
on original source of knowledge may be styled research and it may be said that without
research no authoritative works have been written, no scientific discoveries or inventions
mades, no theories of any value propounded...4
Importance of Research:5
The research can be very important for a researcher. Importance of research can be listed
below as:

To discover answer to the questions


To find out the truth which is hidden and yet not discovered.
To gain familiarity with a phenomenon.
To portray accurately the characteristics of a particular, individual situations or a
group.

3Ibid.
1 Dr. S.R. Myneni, Legal Research Methodology 2 (Allahabad Law Agency, 5th ed. 2012)
2Ibid.
3Ibid.
4Ibid.
5C.R. Kothari and Gaurav Garg, Research Methodology, Methods and Techniques 2 (New Age
International Publishers, 3rd ed. 2014)
3

To determine the frequency with which something occurs or with which it is

associated with something else.


To test the hypothesis of a causal relationship between variables.

Definition of Legal Research:


Legal Research is the process of identifying and retrieving information necessary to support
legal decision-making. In its broadest sense, legal research includes each step of a course of
action that begins with an analysis of the facts of a problem and concludes with the
application and communication of the results of investigation.
Legal research is one of the aspects of study of human behaviour, their interactions, and
attitudes pertaining to any law under the research studies. The legal research is the study of
relationship between the world of the law and the world that the law purports to govern. The
law and the real world are in close relation. The law is a more or less systematic statement or
the appropriate behaviour of the society. But the legal statement is built on the verbal
statements, and in the process the real world becomes more and more remote.1
The systematic investigation of problems and of matters concerned with law such as Codes,
Acts, Constitutions, etc is legal research. Judges, lawyers, Law Commissions and researchers
constantly do research in law. They do make systematic research into the social, political and
other fact conditions which give rise to the individual rule.
For example, in the case of Mc Dowell and Co. Ltd. v. Commercial Tax Officer2, Justice
Chinnapa Reddy presented his investigation and analysis of cases of tax avoidance in his
separate judgment. It is a research report of tax avoidance in terms of legal methodology.
Therefore, legal research can be said to be a research in the field of law and legal institutions.
Legal Research is helpful to understand the problems in society and the changes required.
Legal Research has the following importance:

Only due to legal research one gets to know about the problems in society and the
need for law to tackle them.

1Dr. S.R. Myneni, Legal Research Methodology 16 (Allahabad Law Agency, 5th ed. 2012)
2 (1985) ITR Vol. 154 p. 148-172
4

It also helps to identify the drawbacks in law and the modifications required.
It helps the Government to formulate plans and policies to take care of the needs of

the people.
The Legislature, through legal research can take steps to make laws to take care of the
needs of the society. This is in terms of amending, modifying or making an entirely

new law.
It helps the Executive/Administrative Authority to judge the laws that will be

implemented.
It helps the students of law to enhance and develop their knowledge.
It is helpful and useful for Academicians and also it increases knowledge of law.

Definition of Research Methodology:


Methodology is the science or study of a particular subject. The concept of research
methodology is wider in nature and it includes philosophy and practice of the whole research.
The method which a researcher chose to follow to conduct the research is known as research
methodology. In other words, research methodology is a systematised investigation to gain
new knowledge about the phenomena or problems.
Kaplandefines methodology as a study-description, the explanation and the justification of
methods and the methods themselves.1
Paul Diesing says that the term method or mode of procedure implies the whole series of
subject that a researcher follows in the process of making a contribution of the field of
knowledge.2
According to Business Dictionary,
the term Methodology may include publication research, interviews, surveys and other
research techniques, and could include both present and historical information.3
Research methodology of the project:
The research methodology adopted by the researcher is a doctrinal research. However the
researcher with a view to compliment and substantiate his research paper corroborated his
1 Dr. S.R. Myneni, Legal Research Methodology 6 (Allahabad Law Agency, 5th ed. 2012)
2 Ibid.
3http://www.businessdictionary.com/definition/research-methodology.html (visited on September 17,
2014)
5

study with other forms of legal research such as comparative legal research, case studies and
also critical analysis.It also throws light on the list of study materials and data and their
sources, procured by the researcher as the instrument to conduct the research. Comparative
legal research enabled the researcher to critically appreciate and compare the legal
interpretations of various courts.

Definition of Doctrinal Research:


A doctrinal research means a research that has been carried out on a legal proposition or
propositions by way of analysing the existing statutory provisions and cases by applying the
reasoning power.1
Doctrinal Research involves analysis of case laws, ordering and systematizing legal
propositions and study of legal institutions, but it also creates law and its major tool through
legal reasoning or rational deductions.
According to S.N.Jain, doctrinal research involves analysis of case law, arranging, ordering
and systematising legal propositions and study of legal institutions through legal reasoning or
rational deduction.2
Justice Cardozo highlights the importance of doctrinal research by saying that a law and
legal principle are not final; they are in the state of making.3
Characteristics of Doctrinal Research:4
(a) The study is mainly based on Propositions.
(b) The sources of data for a doctrinal research are the reports of appellate courts and
conventional legal theory.
(c) It is concerned with what the particular doctrine of law says and not as what made the
authority to say so or what has been the impact of that say.

1Dr. S.R. Myneni, Legal Research Methodology 39 (Allahabad Law Agency, 5th ed. 2012)
2Ibid.
3 Dr. H.N.Tiwari, Legal Research Methodology, Allahabad Law Agency Publication, First Edn.,
(Reprint), 2003, Faridabad (Haryana),p. 12
4Dr. S.R. Myneni, Legal Research Methodology 41 (Allahabad Law Agency, 5th ed. 2012)
6

Advantages of Doctrinal Research:


It provides lawyers, judges and others with the tools needed to reach decisions on immense
variety of problems within a limited time frame. It provides sound background for
outstanding scholarship and it helps in smooth functioning of the legal system of the society.
When the question arises as to what course, the law should follow, the doctrinal research may
provide appropriate guidance and hence it is of informational value.It is more flexible in
character and hence it can be stretched to any extent to make it workable.

Disadvantages of Doctrinal Research:


A doctrinal researcher faces difficulties in giving concrete shape to his work because too
many presumptions may be drawn from the materials at his disposal. Over-emphasis on
appellate court decisions.As law is intended for society, it operates in society, and therefore,
knowledge of social policy, facts and social value is essential for the researcher. If he lacks in
these, his research cannot be of great value. If he, likewise, fails to test his ideas,
presumptions from other sources, his research will not be of great significance.The language
of law is difficult to understand and to interpret. If he is not well conversant with the rules of
construction and interpretation the entire idea expressed by him, may be given different and
altogether absurd meaning.
Definition of Comparative Legal Research:
This research format is being used to study legislative texts, jurisprudence and also legal
doctrines, particularly foreign laws. It stimulates awareness of the cultural and social
characters of the law and provides a unique understanding of the way develops and works in
different cultures. Comparative legal research is beneficial in a legal development process
where modification, amendment and changes to the law are required. It also helps in
understanding the rules and principles of laws and involves the exploration of detailed
knowledge of law of other countries to understand them.
Here, comparative legal research enabled the researcher to critically appreciate and compare
the legal interpretations of various courts.
Problem:
Definition of Problem:
7

The terminology problem is taken from a Greek word proballien. The Latin term for
problem is problema. It means a question proposed for a solution or a matter stated for
examination.
R.S.Woodworthsays that problem is a situation for which we have no ready and successful
response or by previously acquired habit.
John Deweysays the need of clearing up confusion, removing any ambiguity, overcoming
obstacles, are all in germ of problem.
Cohen and Magelsays a problem in simple words is some difficulty experienced in
theoretical or practical situations. The truth is to be found by studying the facts and it guides
our research and the facts which are being studied by the researcher would help to remove the
difficulty.
According to Oxford Dictionary, problem means something difficult to deal with or
understand.
Problem of the project:
The project work done by the researcher mainly revolves around the concept of cruelty which
is been practiced in a matrimonial relationship between the spouses. Cruelty was mainly
practiced as a part and parcel of a social evil known as dowry system. Earlier married women
were subjected to cruelty so much by their in-laws that they have only relief to resort was to
commit suicide. Then the government took an active step and brought section 498a under the
Indian Penal Code as a shield against cruelty in the year 1983. But we can see that in the first
half of the 21st century it took a new shape and colour and the very section which was
inserted in penal laws for the benefit of the women raised a plethora of questions and issues
to be dealt with.
The legal luminaries and social scientists are of the opinion that the whole provision is
harbouring the possibility of massive social upheaval in large scale.It is plagued with innate
ambiguity and lack of prudence. There is a rapidly escalating social evil in the Indian families
where Section 498A has become more of a weapon rather than a shield. A section which was
originally meant to be a bulwark especially to combat against the atrocious infliction of
torture of the male members of the society, has now become a legally recognized alibi in the
hands of women in the case of which she decides to leave the husbands house on

preposterous grounds and would still possess the entitlement of receiving alimony, rendering
the husband and his family wretched.
In other words the law made for relief is now being totallymisused.Along with it, many other
problems are working as ancillary part of such misuse such as corruption among the
policemen and law enforcers who usually take bribes from one party to harass the other;
shrewd politicians who take advantage of the scenario in spite of knowing that many
frivolous complaints are being lodged by women just to harass the in-laws, while they
support them in order to secure the vote-bank; even the lower judiciary disposes of such cases
quickly without looking into the facts in hand carefully. It is now a herculean task for the
court to differentiate between the false accusations and defending the real victims since the
whole provisions aims at protecting the women from being tortured on the hands of her
husband or his family.
Rationale:
Definition of Rationale:
Rationale of the project means the significance of the project. Rationale actually shows
importance and purposes of the research with an effect to solve the problem and it also entails
the ambit of the studythat the researcher has proposed to undertake to conduct the research.
According to Oxford Dictionary, rationale means a set of reasons or a logical basis for
a course of action or belief.

Rationale of the project:


The project throws light on the concept of cruelty against married women; to what extent it
has been implemented; and the actual practice of section 498a IPC, 1860, in 21st century.
Objectives:
Concept of Objectives:
The objectives of the project actually talks about what the research is aimed at.The purpose of
research is to discover answer to questions through the application of scientific procedure. To
find the truth with an aim to advance those areas which have not yet been exposed. It means
to further extend the knowledge of any subject matter.

An objective is a specific result that a person or systemaims to achieve within a time frame
and with available resources. Objectives are basic tools that underlie all planning and
strategicactivities. They serve as the basis for creating policy and evaluating performance.
Objectives can be general or specific. The general objective of the study states what the
researcher expects to achieve in general terms. Specific objectives break down the general
objective into smaller, logically connected parts that systematically address the various
aspects of the problem. The specific objectives should specify exactly what the researcher
will do in each phase of his study, how, where, when and for what purpose.
Every researcher has its own specific purpose, however, the purpose and objective of research
can be broadly classified as follows:

Define the focus of the study

Add to existing knowledge

Go from unknown to known

Clearly identify variables to be measured

Indicate the various steps to be involved

Establish the limits of the study

Find out a new concept or rule

Study the impact of law on society

Verify the existing fact

Avoid collection of any data that is not strictly necessary.

The objectives of the project are as follows:


1. To study the object behind the introduction of Section 498a Indian Penal Code, 1860.
2. To study the impact of Section 498a Indian Penal Code, 1860 as a social reform
measure.
3. To examine the present day scenario in relation to the implementation of Section 498a
Indian Penal Code, 1860 and how come it had incurred the title of legal terrorism.

10

4. To make recommendations or find out possible solutions in relation to the problem of


misuse of the penal provision.
Review of literature:
Concept of Review of Literature:
It is being conducted by the researcher to review or go through the literature such that it helps
the researcher to understand the topic of research; helps the researcher to know the past,
present and future related to the topic; helps to remove the doubts; helps in finding materials
related to the problem; find out the objectives, rationale, solution to the topic.
According to Fink, A literature review is a systematic, explicit and reproducible method for
identifying, evaluating and synthesizing the existing body of completed and recorded work
produced by researchers, scholars and practitioners.
Importance of Review of Literature
It provides a theoretical background to the study. The researcher by the help of review of
literature establishes the link between what he is proposing to examine and what he has
already been studied. It helps the researcher to refine his methodology. Through literature
review one is able to show how the findings have contributed to the existing body of
knowledge.
Review of literature of the present research project:The literature reviewed by the researcher for the project are as follows:1. Author: Kusum, Family law lectures, Family law-I Published by LexisNexis
Butterworth Wadhwa, Nagpur, Edition 2nd (2008)
The above-stated book helped the researcher in understanding the historical
background of the concept of cruelty as well as different personal laws pertaining to
cruelty.
2. Author: J.D. Chandna, Law relating to dowry deaths dying declaration suicides &
cruelties to women, Published by the Bright Law House, Delhi, Edition 1st (2005)
The above-stated book helped the researcher in understanding the concept of cruelty
with the help of various case laws, verdicts given by the Judiciary.
3. Author: Ratanlal Ranchoddas and Dhirajlal Keshavlal Thakore, Indian penal
codePublished by LexisNexis, Edition 34th, (2014)
The above-stated book helped the researcher in finding out relevant case-laws related
to Section 498A IPC and cases where misuse has occurred. It also helped the
11

researcher to know the historical background regarding the insertion of the provision
under Indian Penal Code, 1860.
4. Author: K.D.Gaur, Textbook on the Indian penal code, Published by Universal Law
Publishing Co. Edition 4th (2009)
The above-stated book helped the researcher in finding out relevant case-laws related
to Section 498A IPC as well as the concept of dowry death laid under section 304B
IPC.
5. Author: K.D.Gaur, Criminal law: cases and materials Published by LexisNexis
Publications, Edition 7th, (2013)
The above-stated book helped the researcher in finding out relevant case-laws related
to Section 498A IPC
6. Author: Mamta Rao, Law relating to women and children, Published by Eastern Book
Company, Edition 3rd, (2012)
The above-stated book helped the researcher in finding out relevant case-laws related
to Section 498A IPC and the meaning of the provision.
7. Author: S.R.Myneni, Legal research methodology, Published by Allahabad Law
Agency, Edition 5th 2012
The above-stated book helped the researcher to know and understand the basic
concepts of research methodology like research, problem, rationale etc.
8. Author: T.Padma and KPC Rao, Legal research methodology, Published by New Age
International Publishers, Edition 3rd, 2014
The above-stated book helped the researcher to know and understand the basic
concepts of research methodology like research, problem, rationale etc.
9. Author: C.K.Kothari and Gaurav Garg. Research methodology, methods and
techniques, Published by New Age International Publishers, Edition 3rd, 2014
The above-stated book helped the researcher to know and understand the basic
concepts of research methodology like research, problem, rationale etc.
Hypothesis:
Definition of Hypothesis:
Hypothesis can be divided in to two halves i.e. hypo means less than and thesis means idea
or general opinion to be defended by a person. Hypothesis is the tentative solution which is
proposed to the research problem by the researcher.
George A. Lundberg says a hypothesis is a tentative generalization, the validity of which
remains to be tested. In its most elementary stage the hypothesis may be any hunch, guess,
imaginative idea which becomes the basis for action or investigation.

12

Werkmeister says the guesses he makes are the hypothesis which either solve the problems
or guide him in further investigation.
Goode and Hatt says that hypothesis is a proposition which can be put to test to determine
its validity.
According to Websters International Dictionary, hypothesis is a proposition, condition or
principle which is assumed perhaps without belief, in order to draw out its logical
consequences and by this method to test its accord with facts which are known or may be
defined.

Hypothesis of the project:


The judiciary has failed to give justice to the real victims of the dowry harassment cases since
it is hard to differentiate between the real victims and false accusations and sometimes real
victims fall prey to the unfortunate situation and that is why it has earned the infamous title of
being a legal terrorism as quoted by Justice Arijit Pasayat of the Apex court.1
The researcher is of the opinion that Section 498A of the Indian Penal Code is gender-biased
provision and has not been able to fulfil its objectives of protecting the women from dowry
harassment. The possible solution to the problem related to the implementation of Section
498A IPC, 1860 proposed by the researcher are as it has an outrageous impact on the society,
along with the husbands it also affect the innocent lives of the mothers, sisters of the husband
who are harassed on the filing of a single complaint. Thus the section needs immediate
amendment.
Concepts and variables:
Meaning of concept and variables:
Concept are considered as the building blocks of any particular theory or subject.
Websters Dictionary defines concept as a generalized term for a class of objects, an
abstraction from reality that allows us to refer to reality.
McClelland describes it as a shorthand representation of a variety of facts.

1Sushil Kumar Sharma v. Union of India &Ors. AIR 2005 SC 3100.


13

Kerlinger explains that a concept expresses an abstraction formed by generalizations from


particulars.
Nachmias and Nachmias define concept as an abstract symbol representing an object, a
property of object or a certain phenomenon.
John Locke states concept is general idea corresponds to a description of a concept.
The following are the terminology which are being used in the research by the researcher i.e.
Cruelty:1It 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 such demand.
Cruelty has been defined where a woman is harassed with a view to causing her to meet any
unlawful demands for any property or valuable security etc. Therefore in order to come into
the ambit of cruelty by husband, the harassment must be in furtherance to extract unlawfully
from the woman by a man. Unless these two ingredients are satisfied no offence under
section 498A IPC, 1860 can be alleged to have been committed. 2
Dowry and Dowry Death: According to Section 2 of the Dowry prohibition act, 1961,
dowry means any property or valuable security given or agreed to be given either directly or
indirectly
(a) By one party to a marriage to the other party to the marriage or,
(b) 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 said parties but does not include dower or mahr in the
case of persons to whom the Muslim personal law (shariat) applies.

1Explanation to Section 498A IPC, 1860,


2Daud Mohammad Aga v. State, 1995 Cri L.J. 2947 (Bom.)
14

Dowry death is a social evil and technically according to Section 304B IPC, 1860, 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 relative shall be deemed to have cause her death.

Research design:
Meaning of Research Design:
A research design is a research planning of the proposed research project to conduct the
empirical test of the hypotheses or to test the veracity of it.1
According to P.V.Young a research design is plan of action, a plan for collecting and
analysing the data in an economic, efficient and relevant manner.
According to Miller, design research is the planned sequences of the entire process involved
in conducting research study.
According to Nachmias and Nachmias, research design is the programme that guides the
investigator in the process of collecting, analysing and interpreting observations.
Thus in other words, research design refers to the entire process of planning and carrying out
a research study. It is a frame within which research is carried out and it is a blue print for the
collection, measurement and analysing data.2
Research design of the project:
The research study was in relation to the critical analysis of the provision laid under Section
498A IPC, 1860. The researcher has relied on both primary and secondary sources of data.
The research is being conducted mainly to find out whether the provision in the statute has
been implemented properly or not; whether there is any misuse of the provision. The
researcher has conducted a doctrinal research on the topic as stated above and the researcher
went to the library to collect the relevant materials and also visited few websites to find out
1 Dr. S.R. Myneni, Legal Research Methodology 6 (Allahabad Law Agency, 5 th ed. 2012)
2Ibid.
15

the current scenario related to the problem. The researcher suggests that the penal provision
related to cruelty in IPC to be implemented properly such that the real victims receives justice
in true sense; and as there is a recent trend of misuse of this law, it is also suggested that the
parliament amends the provision as soon as possible such that it serves the purpose for which
it was inserted in 1983 in the penal code, at the same time without destroying innocent lives
and families.
Sources of data:
Research data means data in the form of facts, observations, images, computer program
results, recordings, measurements or experiences on which an argument, theory, test or
hypothesis, or another research output is based.
A research is based upon various types of Information. It is not possible to conduct and
complete a research without obtaining and considering different kinds of information. The
more reliable and valid a source of information is the more reliable are the conclusions.
Different types of researchers require different types of information. For data to be useful, our
observations need to be organized so that we can get some patterns and come to logical
conclusions. There are two sources of data i.e. primary and secondary sources. Primary
sources include statutes, acts etc. and on the other hand secondary sources includes books,
articles, magazines, journals, websites etc.
The Sources of data used in the project are as follows:
Primary sources:
Primary sources include statutes, acts etc.

1.
2.
3.

Statutes:
The Indian penal code, 1860
Dowry prohibition act, 1961
Indian evidence act, 1872

Secondary sources
Secondary sources include books, articles, magazines, journals, websites etc.
Books:
1. Author: Kusum, Family law lectures, family law-I Published by LexisNexis
Butterworth Wadhwa, Nagpur, Edition 2nd (2008)

16

2. Author: J.D. Chandna, Law relating to dowry deaths dying declaration suicides &
cruelties to women, Published by the Bright Law House, Delhi, Edition 1st (2005)
3. Author: Ratanlal Ranchoddas and Dhirajlal Keshavlal Thakore, Indian penal code
Published by LexisNexis, Edition 34th, (2014)
4. Author: K.D.Gaur, Textbook on the Indian penal code Published by Universal Law
Publishing Co. Edition 4th (2009)
5. Author: K.D.Gaur, Criminal law: cases and materials Published by LexisNexis
Publications, Edition 7th, (2013)
6. Author: Mamta Rao, Law relating to women and children Published by Eastern Book
Company, Edition 3rd, (2012)
7. Author: S.R.Myneni, Legal research methodology, Published by Allahabad Law
Agency, Edition 5th, 2012.
8. Author: T.Padma and KPC Rao, Legal research methodology, Published by New Age
International Publishers, Edition 3rd, 2014
9. Author: C.K.Kothari and Gaurav Garg, Research methodology, methods and
techniques, Published by New Age International Publishers, Edition 3rd, 2014
Articles:
1. Author: K.D.Gaur, The poor victim of uses and abuses of criminal law and process in
India, Published in Indian Bar Review by the (BCI) Trust, Vol. XXVII, (July- Dec)
(2000)
2. Author: Poonam Pradhan Saxena, Family law and settlement, Published in Annual
Survey of Indian Law by ILI, Vol. XXXVI, 2000
Websites:
1. http://www.498a.org/
2. http://www.saveindianfamily.org/

Method of data collection:


While conducting doctrinal research, the researcher has gone to library and mainly relied on
secondary database but has also supported and complimented the research by primary
materials. Secondary data have been collected through various propositions advocated and
professed by scholars and social theorists, commentaries of social thinkers and eminent
personalities, text books written by renowned scholars and social activists,case reports and
their analysis, personal opinion of the judges associated with the cases, various international
journals and magazines publishing recent trend in casesnewspaper articles, online materials
from the multiple websites dealing with issues of 498A like http://www.498a.org/ and
http://www.saveindianfamily.org/ .
17

Chapterisation:
CHAPTER I: INTRODUCTION AND RESEARCH METHODOLOGY
CHAPTER II: EMERGENCE OF THE CONCEPT OF CRUELTY AS A SOCIAL EVIL
CHAPTER-III: REASONS BEHIND THE INSERTION OF THE PROVISION RELATED
TO CRUELTY UNDER INDIAN PENAL CODE, 1860.
CHAPTER-IV: SECTION 498A INDIAN PENAL CODE, 1860: A CRITICAL ANALYSIS.

Contribution of the study:


The researcher has done a socio-legal research from the perspective of a legal professional.
The study was about the penal provision related to cruelty against married women laid down
under IPC, 1860 and its post effects which are good as well as bad. The researcher has
critically analysed the problem, individual cases and misuses of the provision which is in turn
creating a big hole in the very basic unity of society i.e. family. After going into the problem
it is suggested by the researcher through his study that cruelty is a necessary social evil which
needs to be evicted but at the same time we should give a second thought on the factor that
there is an increasing no. of preposterous complaints of section 498A IPC, 1860 which is to
be kept in mind while dealing with the individual cases such that justice is delivered in the
truest sense.

Limitation of the study:


The researcher has limited his study in relation to the research topic i.e. Cruelty against
women in Indian legal framework with special reference to Indian Penal Code, 1860: A
Critical Analysis within the ambit of the Indian Penal Code provisions specifically section
498A IPC, 1860 along with Section 113A and 113B of the Indian Evidence Act, 1872.

*********

18

CHAPTER-II
EMERGENCE OF THE CONCEPT OF CRUELTY AS A SOCIAL EVIL
Cruelty is one of the serious kinds of social evil since ages.
Historical background:
India being multifaceted democracy discrimination can never be entertained on the social,
civil, political and economic rights guaranteed by the nation. Nevertheless owing to certain
broad situations where Indian women do cross the hurdles and participate in the social
activities.
Since time immemorial women have been reduced to a demeaning decorative character
endowed with superficial attractiveness but intellectually docile, who could only serve the
purpose of male entertainment. Because of the pristine orthodox hierarchical malpractices
they were encouraged to embody the role of mother, wife or that of a home maker only to be
pushed to live a confined life with restricted mobility or in worse cases to live in total
seclusion. In spite of Indias reputation of worshipping and treating women as Goddess
history reveals the dark bitter secret that is buried under the godly personification of women
which was only being used as a camouflage for securing the superior position of the male
members of the society indirectly. Since medieval times as women played a rather
subservient role in the society. Hence it is a fact that women are not respected in a true
manner earlier.
This can be proved from the instances of past, e.g. Sati i.e. self -immolation by a widow on
the pyre of the dead body of her husband. It is yet another phenomenon peculiar to an
illiterate, conservative and tradition bound society. It is nothing but a manifestation of the
barbaric attitude of man towards a helpless woman who becomes widow on the death of her
husband. The irony of fate is that instead of the poor woman getting solace, sympathy and
shelter to bear the tragic loss of her husband, she is forced to become or encouraged to be

19

sati. 1Thereby we may say that this practice of treating women in an inhuman manner leads to
the concept of Cruelty. Cruelty against women has been age-old phenomenon, where women
have been subjected to brutality and inexplicable exploitation for one reason or the
other.Cruelty can be both mental as well as physical cruelty which is being practiced in
different modes in the society in different circumstances. Here for the purpose of the
research, the researcher is going to look into the effects of cruelty from the perspective of
matrimonial relationship.
Under Old English law, according to Blackstone,a husband could correct his wife by beating.
E.g. a husband broke the legs of his wife since she had disregarded his instructions to visit a
particular place.2 In Holmes v. Holmes,3the husband used to assault and abuse his wife and on
occasion he insisted upon sexual intercourse with her in the presence of two men and
threatened that if she refused, the men would hold her down. In spite of all this, the wife was
held not to be entitled to any relief on the ground of cruelty. This was the poor condition of
justice then under old English law.
According to Manu, a husband should beat his wife only with a rope or split bamboo, so that
no bones are broken in the process.4
Concept of cruelty:
Cruelty is an abstract concept, there is no specific definition or explanation given by any
jurist. Cruelty can be of different forms such as mental, physical, direct or indirect, intended
or unintended. It also depends upon different factors and circumstances such as socialcultural background of the woman, mental and physical conditions, etc.
The Supreme Court of India through various decisions has explained the concept of cruelty
such as:

1K.D.Gaur, The poor victim of uses and abuses of criminal law and process in India, 27 Indian Bar
Review 39 (2000)
2Kusum, Family Law Lectures, 59 (Lexis Nexis Butterworths Wadhwa 2 nd ed. 2008)
3(1755)2 Lee; 161 ER 283
4Ibid.
20

In N.G. Dastane v. S. Dastane, the Supreme Court has observed that conduct charged
as cruelty should be of such a character as to cause in the mind of the Petitioner, a
reasonable apprehension that it is harmful or injurious to live with the respondent.1
In V. Bhagat v. D. Bhagat, the Supreme Court held that the mental cruelty must be of
such a nature that the parties cannot be reasonable be expected to live together. While
arriving at such conclusion regard must be had to the social status, educational level
of the parties, the society they move in and all other relevant facts and circumstances.2
In NeeluKohli v. Naveen Kohli, it was held by the apex court that in order to constitute
cruelty the acts complained of as causing cruelty must be more serious than ordinary
wear and tear of marriage. Not any and every abnormal act of the other party can be
viewed as mental cruelty. 3
In A. Jayachandra v. Aneel Kaur, the apex court held that for physical cruelty there
can be tangible and direct evidence but in mental cruelty there may not be direct
evidence. When there is no direct evidence, courts are required to probe into the
mental process and mental effect of incidence that are brought out in evidence.4
In Vinitha Saxena v.Pankaj Pandit, the Supreme Court held that what constitutes
mental cruelty will not depend upon the numerical count of such incidents or only on
the continuous course of such conduct, but really go by the intensity, gravity and
stigmatic impact of it when meted out even once and deleterious effect of it in the
mental attitude, necessary for maintaining a conducive matrimonial home.5
Few instances of cruelty as a social evil in modern era.

Slow starvation - is cruelty: The wife was compelled to do all the domestic works
single handed. She was ill-treated and subjected to physical assault when she
protested. She was not getting sufficient food and it resulted in slow starvation,
thereby giving an emaciated look, to meet an unlawful demand of money. When she
committed suicide cruelty stood proved in a court of law.6
1(1975)2 SCC 326
2(1994)1 SCC 337
3AIR 2006 SC 1675
4(2005)2 SCC 22
5(2006)3 SCC 778
21

Repeated demands of dowry amounts to cruelty: If repeated demands of dowry are


made and harassment is meted out to a woman, which may be physical or mental, it is

an act of cruelty.1
False allegations in litigation amounts to cruelty: The wife was subjected to a series
of malicious and vexatious litigations in which extremely hurtful and offensive
accusations were leveled against the wife of a sense of vindictiveness and wherein she
was humiliated and tortured through the execution of search warrants and seizure of
her personal property. These very acts when repeated and carried on, constitute

cruelty of an intense degree.2


Repeated taunts calling her ugly and mal treatment is cruelty:The wife was illtreated from the next day of marriage and she was repeatedly taunted and mal-treated
and mentally tortured by calling her ugly etc. This amounts to cruelty, mental torture

for any bride.3


Neglect by husband also amounts to cruelty:the act of the husband was only that of
disregarding his duty to provide the wife and the child elementary means of
sustenance while he himself was squandering his earnings on gambling and other

vices and was starving his wife and infant child to death. 4
Non-return of stridhan amounts to cruelty: non-return of stridhan by the husband

and hi relatives amounts to cruelty.5


Cruelty by non-acceptance of baby girl:The conduct of the accused husband and his
father is not accepting the birth of the baby girl was held as amounting to cruelty. 6

Statutory provisions in relation to cruelty under personal laws: a comparative analysis


Hindu Law:

6Hira Choudhary v. State of West Bengal, 1997 (1) WLC 543


1Jagdish v. State of Rajasthan, 1998 RCR (Cr) 9
2 Smt. M.M.Chitnis v. Mr. M.M. Chitnis, 1991 (2) Maharastra L.R. 753
3Pawan Kumar v. State of Haryana J.T. 1998 (1) SC- 565
4State of Karnataka v. Moorthy 2002 Cr. L.J. 1683
5Surender Yadav v. State of Delhi (DB) All C.L.R 2000(2) 160
6State of Karnataka v. Balappa, 1999 Cr. LJ 3064 (Kant)
22

The Hindu Marriage Act, 1955 after going through amendment under the marriage laws
(Amendment) Act, 1976, cruelty is being made a ground for divorce as well as for judicial
separation.

Another significant change brought by the amendment is that the concept of

cruelty has been enlarged as because earlier it was only confined to such cruelty so as to
cause reasonable apprehension in mind of the petitioner that it will be harmful or injurious for
the petitioner to live with other party. However, now simply it is to be established that the
respondent has treated the petitioner with cruelty.
Parsi Law:
Under the Parsi Marriage and Divorce Act, 1936 prior to 1988, cruelty was only aground for
judicial separation, and cruelty was explained as such behaviour as to render it in the
judgement of the court improper to compel him or her to live with the respondent.2

Christian Law:
The Indian Divorce Act, 1869, prior to its amendment in 2001, a wife could seek divorce if
the husband had been guilty of cruelty coupled with adultery. However now, after the
amendment in the year 2001, it completely transformed the original act and the grounds for
matrimonial relief have been brought at par with that of the Special Marriage Act, 1954 and
the Hindu Marriage Act, 1955. 3
Muslim Law:
Under the Dissolution of Muslim Marriages Act 1939, cruelty is mentioned as one of the
grounds to obtain divorce from a matrimonial relationship. 4

1SS 13 and 10 of Hindu Marriage Act, 1955


2Kusum, Family Law Lectures, 61 (Lexis Nexis Butterworths Wadhwa 2 nd ed. 2008)
3Kusum, Family Law Lectures, 61 (LexisNexis Butterworths Wadhwa 2nd ed. 2008)

4Ibid.
23

*********

CHAPTER-III
REASONS BEHIND THE INSERTION OF THE PROVISION RELATED TO
CRUELTY UNDER INDIAN PENAL CODE, 1860.

The judiciary must not take on the coloration of whatever may be popular at that moment,
we are the guardian of rights, and we have to tell people things they often do not like to hear
---Rose Elizabeth Bird, the 25th Chief Justice of California once said that.1 Thus judiciary in
its role as a guardian of the nation is essentially handicapped to tilt in favour of a particular
sex but on the contrary it is expected that its belief system should not sway with the popular
frenzy of speculation endorsed by the crowd and media.

1 Rose Elizabeth Bird, Chief Justice of California (1936-1999) Brown, Patrick. "The Rise and Fall of Rose
Bird, A Career Killed by the Death Penalty"

24

Witnessing the vulnerable condition of women where they were being subject to relentless
mental trauma physical torture and character assassination because of their inability to pay
such cosmic demands of dowry made the poor fuming crowd to sling mud at court. This
wrath and fury of the common masses grew strong when the immeasurable bride burning
cases in open daylight across the nation started showing thumbs to the judiciary.
With the intention of curbing this heinous crime of dowry harassment and dowry deaths
Parliament in 1986 inserted the section 304B to prevent the murder following the dowry and
in the year 1983(25th December) Section 498A was incorporated within Indian Penal Code
with the intention of defining cruelty and harassment which has been a common
phenomenon in a matrimonial relationship.
Parliament has inserted a new Chapter XXA titled of cruelty by husband or relatives of
husband in Indian Penal Code, 1860 in order to make cruelty against women punishable.
Section 498A of IPC, 1860 i.e. HUSBAND OR RELATIVE OF HUSBAND OF A
WOMAN SUBJECTING HER TO CRUELTY reads as
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 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 such demand.
Ingredients of the provision are as follows:

The woman must be married.


She must be subject to cruelty or harassment; and
Such cruelty or harassment must have been shown either by husband of the woman or
by the relative of her husband.

25

Section 498A is a cognizable, non-bailable and non-compoundable criminal offence. A


close analysis of the section makes it clear that the entire section is founded upon four basic
question of law they are as follows:

Any action, gesture or conduct that is likely to drive a woman to commit suicide.
Any action, gesture or conduct that is likely to cause grave injury to the life, limb or

health of a woman
Harassment caused to the woman and her family with the intention of extracting some

property
Harassment caused to the woman and her family in the event of not being able to or
not in agreement to yield to the demand of money or of any property.

In 1989 the nation witnessed two historic cases where in 20 th April,1989 Justice Natrajan, in
the case of BrijLal v. Prem Chand1 reversed the High Courts order which acquitted the
accused since there was no record exhibiting that the murder of the bride, VeenaRai was
instigated by the accused. The Apex Court condemning the verdict of the High Court, ruled
that the abetment of commission of suicide was only due to the instigation which therefore
invites the first clause of section 107 IPC, 1860 2. Justice Natrajan also precipitated his
disappointment on witnessing the degradation of society due to the inimical social structure
created by the depraved and unscrupulous husbands and their relatives with their
unconscionable limitless demands of dowry. With grave disappointment and presumption of a
dark future, the Apex court proclaimed its stratagem of adducing section 113A and 113B 3 of

1 1989 AIR 1661


2 Section 107 reads as Abetment of a thing. -- A person abets the doing of a thing, who- First- Instigates any
person to do that thing; or Secondly. - Engages with one or more other person or persons in any conspiracy for
the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to
the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.- A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he
is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to
instigate the doing of that thing. Illustration A, a public officer, is authorized by a warrant from a Court of.

3Section 113A- When the question is whether the commission of suicide by a women had been abetted by her
husband or any relative of her husband and it is shown that she had committed suicide within a period of seven
years from the date of her marriage and that her husband or such relative of her husband has subjected her to
cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had
been abetted by her husband or by such relative of her husband.Section 113B- When the question is whether a
person has committed the dowry death of a women and it is shown that soon before her death such woman had
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.

26

the Indian Evidence Act, 1872 to corroborate section 498A, with the intention of accentuating
two focal points:
That the woman had committed suicide within a period of seven years of marriage
That the husband or relation had subjected her to cruelty
However this was the first genuine endeavour made by the judiciary to curb this
parochialsocial menace which further seeks the attention of section 306 IPC, 1860.1
On September 26, 1989 the whole nation was astounded when the case of Ravinder Kaur,
daughter of Gurbachan Singh2 made headlines who was burnt to death after being tortured
brutally ever since she was married seven months earlier. Justice B.C. Ray and
SabyasachiMukherji ruled that in suicidal cases since direct evidences are implausible,
abetment and instigation can be established by circumstantial evidence. Ravinder Kaur who
was six months pregnant was a victim of atrocious and inhumane torture by her husband and
in-laws Harbhajan Singh and Kanwaldip Kaur, associated with the incessant taunting in front
of family friends accusing that she had illegitimate child in her womb combined with
repeated threatening that she would be thrown out of the house in the event of not paying the
amount of dowry which was due. On June 23, 1983 she confessed her father about her brutal
sufferings and two days later on June 25th around 2.30pm the painful sound of her screaming
went silent when she suffered third degree burn in her in-laws house which was reported to
her parents around 6.30 pm .Shockingly the High Court on the grounds of technicality of law
and minor contradictions acquitted all three accused since there was no evidence of
instigation or abetment was found. Mr.Gurbachan Singh determined to give justice to her girl
child appealed to the Supreme Court which proved to be fruitful. Taking a sympathetic stance
Supreme Court ruled that persistent demands of the accused for more money, their tortures
and taunts amounted to instigation and abetment that compelled her to do away with her life.
The court gave its rulings based on section 113A of the Evidence Act which states that when
a married woman commits suicide within a stipulated duration of seven years and it is proved
that such woman was subject to mental and physical torture or cruelty by her husband and inlaws, considering all the facts and circumstances of the case the court may presume that her
1 Section 306 IPC, 1860: If any person commits suicide, whoever abets the commission of such
suicide, shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
2 1990 AIR 209,1989
27

suicide had been abetted by those persons who treated her with cruelty. Quite sadly this
expansive interpretation of the term cruelty was appended to the Act a few months after
Ravinder died, although the Court dictated that it has retrospective effect.
Constitutional validity:
Interestingly in the case of Inder Raj Malik v. Sunita Malik,1 the Court held that Sec 498A is
violative of Article 14 and 20(2) of the Constitution since it gives arbitrary powers in the
hands of the Court and it also criticized that the distinction drawn between cruelty and
harassment is ambiguous and vague. Moreover it contradicts with Art 20(2) of the
Constitution as Section 4 of the Dowry Prohibition Act, 1961 has already made demand of
dowry a punishable act and inadvertently creates a situation of double jeopardy. However
Delhi High Court negating such contention held that Sec 4 of the Dowry Prohibition Act is
different from that of the 498A IPC, 1860 since in the former mere demand of dowry is
punishable and it does not necessarily need to establish the factor of cruelty however the
latter case essentially deals with much graver heinous crime.
Retrospective effect of section 498A Indian penal code 1860:
Section 498A IPC, 1860 is not retrospective in nature and no such cognizance can be taken
under this section in case the offence was committed before the enforcement of the section.2
Co-relation between section 302 and 498A Indian penal code 1860:
In ThatiKonda v. State of A.P. 3there was a quarrel between the wife and the husband and the
husband wanted to perform second marriage. It was a strong circumstance for the wife to
commit suicide and for the husband to do away with his wife. As favourable view to the
accused is to be taken and it is clear that the husband wanted to marry 2 nd time, it amounts to
cruelty.
Co-relation between section 304b and 498A Indian penal code 1860:
The two provisions are not mutually inclusive. They deal with different and distinct offences.
Persons charged under section 304B but acquitted can be convicted under section 498A IPC,
1 1986 (92) CRLJ 1510
2K.Subramaniam v. State, 1989 (1) Hindu L.R. (Mad) 63
31992 (1)Crimes 1114
28

1860 even in absence of any charge. The deceased have been subjected to cruelty by her
husband and mother-in-law over the demand of maruti car as dowry and persistently pressed
by them after about six months of the marriage and continue till her death. Accused was
convicted under 304B and 498A IPC, 1860.1
Co-relation between section 306 and section 498A Indian penal code, 1860:
Distinction between section 306 IPC, 1860 and section 498A IPC, 1860 is that of intention.
Under the latter, cruelty committed by the husband of his relations drag the woman concerned
to commit suicide, while under the former provision suicide is abetted and intended.2

*********

CHAPTER- IV
SECTION 498A IPC, 1860: A CRITICAL ANALYSIS
The following chapter talks about the pros and cons of section 498A Indian Penal Code,
1860.
A step towards social reform:
In the first few years of its proclamation section 498A seemed to be quite fruitful and
effective in combating the heinous act of cruelty in the latter half of the 20 th century. The
researcher while studying various cases have found out that the concept of cruelty has been
1Satya Narayan Tiwari v. State of U.P., 2011 Cri. LJ 445
2Satish Kumar Batra v. State of Haryana, AIR 2009 SC 2180
29

interpreted in no. of ways by the judiciary so we will go through a series of judgement where
section 498A whose main object of insertion in 1983 is to punish the husband and his
relatives who tortures and harass women with a view to coerce her or any person related to
her to meet any unlawful demands 1 being adequately corroborated.

In case of State of West Bengal v. Orilal Jaiswal 2, the wife committed suicide by
hanging in the house of her in-laws within one year of her marriage and she was
subjected to cruelty and mental and physical torture by mother-in-law and the
husband.
So here in this particular case, the court after going through the facts of the case stated
it is a clear case of mental and physical cruelty and it is cognizable under Section

498A IPC, 1860.


In case of State of Karnataka v. C.Prakash3, there was a conclusive evidence on
record that the husband assaulted the wife because of some non-payments and as a
result finally wife committed suicide.
The Court held that such acts of the husband are the acts of cruelty and they are grave
and persistent according to the facts of the case hence accused was found liable to

conviction.
In case of Rajesh Dewan v. State of Del.4Husband use to beat his wife in the presence
of his sister and sisters husband, soon the wife left the matrimonial home and filed a
case against the husband and the in-laws.
The court held that cruelty against the wife is proved and an offence is made out
against the husband, sister of the husband, and sisters husband under Section 498A
IPC, 1860. Here in this case increased the ambit of the punishment by including the

abettor of the cruelty i.e. in-laws.


In case of State v. Siddaraju5, husband contracted second marriage during the life time
of his first wife, who was living in the same house, hence it constituted cruelty as held
by the court.

1LV Jadhav v. SA Pawar 1983 Cr LJ 150


2AIR 1994 SC 1418
31998 (1) Hindu L.R. (KAR) (DB) 185
41999 (2) Hindu L.R. (Del) 250
52001 (1) Hindu L.R. (KAR) 660
30

In case of Saifan Rahimsaheb Shaikh v. State of Maharastra1 the wife was treated
with cruelty as she could not bear a child after marriage and hence the court on the

grounds of cruelty proven under Section 498A IPC, 1860 convicted the accused.
In case of Maeyaea Vishvanatha Rao v. State of A.P.2here wife died of burn injury. A
letter written by her revealed anguish about various incidents and methods of
harassments, caused by the accused, which not only included demand of dowry but
also filthiest possible language. This facts were supported by oral evidence by the
prosecution hence the court held the accused to be convicted under section 498A IPC,

1860.
In case of Yaldapati

Kutumba v. State3husband suspected the character of the

deceased, he too suspected that she was pregnant through somebody else; hence the

court held such statements amounts to cruelty.


In case of State of U.P. v. Ramesh Prasad Mishra4the court held that the accused is
being convicted u/s 498A IPC, 1860 as it was found that the victim was harassed and

subjected to cruelty.
In case of Odeti Ram Reddy v. State of A.P. 5here the husband use to beat his wife time
and again, and wife informed this to her parents and other witnesses, later she
committed suicide. The court held that the letters sent by the wife to her parents
revealed that she was subjected to cruelty for non-fulfillment of additional dowry

hence the guilt of the accused i.e. husband is proved beyond doubt and convicted.
In case of Kodadi Srinivasa v. State of A.P.6here the in-laws of the bride treated her
with cruelty. They refused to send her to parents which is a kind of mental torture
exercised on her. The court held that in-laws were found guilty of the offence under
section 498A IPC, 1860.

There are numerous cases of cruelty exercised upon the married women in their matrimonial
homes on account of dowry or anything else, such acts are huge in number and Section 498A
12001 (1) Hindu L.R. (Bom) 624
22003 Cr. L.J. NOC 11B (A.P.)
3 2003 Cr. L.J. 4220 (AP)
41996 SCC (Cr.) 1278
52002 Cr. L.J. (NOC) 221 (AP)
62001 (2) DMC 708
31

IPC, 1860 steps in and plays an important role in curbing out this menace and bring a social
reform in real sense.
Misuse of section 498A Indian penal code 1860:
The highhanded behaviour of the laws and the breakup of the marriage has another side.
Lodging of cases with the crime against women cell may not be genuine. Matrimonial
discords unconnected with dowry demands or dowry related harassment are often given the
colour of dowry by the wives to get even with their husbands.1
A critical study of the section 498A reveals that a provision which was originally designed to
protect the bride from being harassed and physically tortured by the husbands or relatives
unfortunately has been abused to hassle the husband and his family.
The Supreme Court in one of its rulings said that -But by misuse of the provision (IPC, 1860
498A - Dowry and Cruelty Law) a new legal terrorism can be unleashed. The provision is
intended to be used as a shield and not an assassins weapon.2
Section 498A IPC, 1860 sometimes said to be gender-biasedlawbecause recent study
reveals that the provision provides protection only to women in the fight against husband and
his relatives. A number of cases have been filed in the police station which forms the basis for
the official statistics of dowry harassment, which otherwise implicates that only the woman
are entitled to file harassment cases with an unlimited scope of fabricating stories and lies
without even undergoing any penalty to pay compensation or any kind of damages. It is true
that a careful reading of the section exposes some serious problems which can affect the
society:
1) Since only the women are entitled to file harassment cases there ought to be a grave abuse
of this section in the effect of harassing the husband and his family
2) The law framers at the time of enacting this provision did not envisage that it is actually
doing injustice to two sets of people:
a) The real victims of the dowry harassment are now being criticized to make false claims
and accusations.

1Poonam Pradhan Saxena , (Annual survey of Indian law vol xxxvi, 2000)

2Sushil Kumar Sharma v. UOI,JT 2005 (6) SCC 266


32

b) The mothers, sisters of the husband who are either harassed by the police or send to the
police custody without even considering their age, health and marital status. There are
instances where even the pregnant women have been sent behind the bars owing to the false
accusations thrown at the husbands family by the wife.
A research conducted by some social activists reveals that urban well educated women are
taking advantage of the section 498A in order to reside independently, separated from the
husband and his family right after the husbands family submit to her demands which
generally involves either cash or property and the provision of section 498A is such that the
husband cannot even file a complaint or even if they do they are not entertained solely on the
reasons that the law is applied only for the protection of women and not men 1. Thats why
the section incurred the infamy of legal terrorism since it has the peculiarity of tilting
towards the woman and becomes an evil provision when fall into wrong hands.
Real scenario in modern times in cases related to Section 498A IPC, 1860 and the attitude of
Law Enforcing authorities:
A careful examination of recent cases presents a rather horrifying picture. The researcher has
attempted to draw a difference between the existing law and the actual practice in relation to
the 498A cases.
NATURE OF CRIME
Cognizable

IN LEGAL TERMS
IN ACTUAL TERMS
As per law it is the duty of Instead of initiating

the

policeman to register the investigation they arrest the


offence as cognizable and suspects (husband and his
start investigation.
Non-Bailable

By

law

Magistrate

family) more so in exchange


of bribes from both the sides.
is Before
presenting
the

bestowed with the power to individual

in

Magistrates

refuse bail and send the court all sorts of gambles


individual

to

police custody

judicial

or take

place

involving

settlement of cases by paying


huge

amount

of

money.

There are other instances too


where the Magistrate ,public
1 An investigative report by a NGO called Rakshak, The Silent Tears of Shattered Families: The Ugly
Reality of Dowry Law.
33

prosecutor and the policemen


all

conjointly

decides

to

settle the case with the


husband and his family being
locked up inside the police
custody
Thus it is transparent from here that the provision itself is hosting bulk of loopholes and
possibly can threaten the institution of marriage. The corrupt police personnel and the judicial
officers of lower rank are also filling their pockets with the good amount of money they
receive from both the sides.
Why do people misuse the provision 498A IPC, 1860? 1
There are certain specific reasons stated below:
a. Legal Extortion Get-rich-quick-scheme to extort large amounts of money
b. 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.
c. Adultery Women who indulge in adultery use 498a as a bargaining tool
d. Domination Wife wants the husband to abandon his parents and siblings, and have
total control over his finances and social behavior.
e. Custody - Deny the father and his family access to their children.
f. 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.
In order to stop this menace Supreme Court in 2007 in case of Srinivasalu v. State of A.P2held
that consequences of cruelty that are likely to drive women to commit suicide or to cause
grave injury or danger to her life must be established before arresting the husband and his
relatives .The FIR must only be taken if there is a sufficient reason to believe that some gross
action of violence has been committed by the husband towards the wife.
1 An investigative report by a NGO called Rakshak, The Silent Tears of Shattered Families: The Ugly Reality of
Dowry Law.

2 Appeal (Crl.) 11 of 2002


34

The police, civil society, politicians and even judges of the High Courts and Supreme Court
have offered these arguments of the "misuse' of laws vehemently. The allegation of misuse is
made particularly against Sec 498A of the IPC, 1860 and against the offence of dowry death
in Sec 304B one such view was expressed by former Justice K T Thomas in his article titled
'Women and the Law. The 2003 Malimath Committee report on reforms in the criminal
justice system also notes, significantly, that there is a "general complaint" that Sec 498A of
the IPC, 1860 is subject to gross misuse.
There is a gross violation or misuse of this penal provision as with the womenfrivolously
making false allegations against their husbands with the purpose of getting rid of them or
simply hurting the family.The abuse of this section is rapidly increasing and the women often
well-educated know that this section is both cognizable and non-bailable and impromptu
works on the complaint of the women and placing the man behind bars. Like in the case
of Savitri Devi v Ramesh Chand &Ors1the court held clearly that there was amisuse and
exploitation of the provisions to such an extent that it was hitting at the foundation
ofmarriage itself and proved to be not so good for health of society at large. The court
believed thatauthorities and lawmakers had to review the situation and legal provisions to
prevent such fromtaking place.
So the question arises that it is been a duty of the court to condemn wrongdoings and protect
the victim but what happens when the victim turns into the abuser? What remedy does the
husband have here?
In case of Saritha v R. Ramachandran2here the court did notice that the reverse trend and
asked the law Commission and Parliament to make the offence a non-cognizable and bailable
one. Suppose if the suggestion given by the court is approved then it would give a fair
chance to the men and above all help meet the ends of justice.
Justice must protect the weaker and ensure that the wronged is given a chance to claim back
his/her due.When women accuse their husbands under S.498A IPC, 1860then even if the man
is innocent he does not get justice and justice delayed is justice denied. Therefore, the
lawmakers must suggest some way of making this section non-biased to any individual such
that the guilty is punished and the person wronged is given justice.
1 II (2003) DMC 328
2 I (2003) DMC 37 (DB)
35

Views of the Judiciary in the Recent Judgement in respect of misuse of Section 498A I.P.C.
1860:
In case of Jasbir Kaur vs. State of Haryana1 the Punjab and Haryana High court observed 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 case of Kanaraj vs. State of Punjab2the apex court observed that 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
The Supreme Court in the case of Mohd. Hoshan vs. State of A.P.3 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.

*********

MAJOR FINDINGS OF THE PROJECT

The major findings of the project according to the researcher are as follows:
1 (1990)2 Rec Cri R 243

2 2000 Cri LJ 2993


3 2002 Cri LJ 4124
36

The Researcher is of the opinion that the whole provision is harboring the possibility
of massive social upheaval in large scale. Presently it is now a herculean task for the
court to differentiate between the false accusations and defending the real victims
since the whole provisions aims at protecting the women from being tortured on the

hands of her husband or his family.


The law made for relief under the Indian penal Codeis being totally misused.Along
with it, many other problems are working as ancillary part of such misuse such as
corruption among the policemen and law enforcers who usually take bribes from one
party to harass the other; shrewd politicians who take advantage of the scenario in
spite of knowing that many frivolous complaints are being lodged by women just to
harass the in-laws, while they support them in order to secure the vote-bank; even the
lower judiciary disposes of such cases quickly without looking into the facts in hand

carefully.
The researcher after conducting the study found out that the Apex court has stated this
research problem to be legal terrorism and given certain guidelines in relation to it.

**********

37

CONCLUSION
The institution of marriage is no longer considered a sacred union of two hearts but has rather
become more of a civil contract between two individuals in literal sense of the term where
one is obligated to another to perform conjugal rights.
Section 498A which has otherwise incurred the infamy ofbeing a legal terrorism was
primarily incorporated to combat the evil practices of dowry and dowry deaths. But recent
study shows that over the years it has changed its colour and has become a weapon of
notoriety. With the help of books of distinguished legal personalities and eminent lawyers,
articles written or published by social activists the researcher has formulated some hypothesis
in regard to the curbing of this social cancer.
The inclusion of Section 498A IPC, 1860 though seemed fruitful and effective in the early
years of its proclamation unfortunately a new era of ruthlessness emerged with the arrival of
21st century. Although judiciary has failed miserably in curbing the gross abuse of Section
498A nevertheless the very provision calls for an immediate redressal to the sufferings of the
real victims of dowry harassment. The protection should also be extended to male members
of the society as recent study shows countless innocent husbands and their families have been
affected by this stringent provision since the section provides shelter only to women
rendering the provision to be biased, discriminatory and unconstitutional.
Anyone who has been awake the last two decades knows how section 498-A of IPC, 1860 has
been heavily misused, dragging innocent men and women into police stations, lock-ups and
courts, thus depriving may young children of a happy childhood, many youth of productive
careers and many senior citizens of mental peace in the last leg of their lives.
Many women who really need protection from Domestic Violence will probably never know
about it and even if they do, never use it. This law will be yet another weapon in the hands of
unscrupulous women who will misuse it at the slightest opportunity. When a man is thrown
out of his own house under true or false allegations of domestic violence or cruelty everyone
who is dependent on him is bound to suffer. It is unfair enough to penalize an entire family
even if an accused man is truly abusive. Unfair is a subtle word to describe a situation in
which an innocent man, along with his family, is tortured by misuse of law.
After the entire study we can conclude that though Section 498-A of IPC, 1860 was brought
in forth for the protection of women from the cruelty of her husband and his relatives but now
38

it is being abused. These women are turning the law other way round by being cruel to their
husband and his relatives and getting them tried under Section 498A of IPC, 1860 which
deals with Cruelty by husband or relatives of husband. Henceforth certain legal actions
should be taken as soon as possible to curtail growth of legal terrorism, by misuse of
provisions of law.

*********

39

SUGGESTIONS
The following are thesuggestions or recommendations posed by the researcher towards the
research problem:

Firstly,in India, the trial of criminal cases especially of serious nature continues for 8
to 10 years if not more depending on the gravity of crime. But a speedy trial is
advisable so that the innocent victims entrapped under the section of 498A gets
prompt redressal. Therefore it is of utmost importance that besides being effective the

judiciary must try to expedite the process of trial with regard to the 498A cases.
Secondly, an effort must also be made so that the investigation regarding this 498A
cases is operated only by civil authorities and only on the finding of reasonable
evidence, enough to establish the individuals crime, should the policeman take

actions against him.


Thirdly,the provision laid down under section 498A IPC, 1860 needs an immediate
amendment and it should be one of the major concerns of the law-makers in recent

times.
Fourthly, in our nation there is no proper formal organization who offers family
counselling. Establishment of a recognized family counselling organization is
essential so that the individuals can vent out their grief and can also take the advice of

experts and practitioners.


Fifthly,the NGOs associated with the human rights activities must join hands to act
in a neutral manner and should educate the crowd of not filing criminal cases based

on trivial matters.
Sixthly, a genuine endeavor must be made so that 498A cases are continued as
bailable offence and not non-bailable to prevent the innocent ones from languishing in

custody.
Seventhly, The Court should start imposing penalty and stringent actions must be
taken against the individual for making false accusations since this section lacks the

deterrent element for which the dowry cases are increasing at such alarming level.
Eighthly, strong actions must be taken against the dishonest, corrupted police officers;
they must either be penalized or suspended from their posts if it becomes evident that
there has been a gross negligence of duty on their part.
********
BIBLIOGRAPHY

Books:
40

1. Author: Kusum, Family law lectures, Family law-I, Published by LexisNexis


Butterworth Wadhwa, Nagpur, Edition 2nd (2008)
2. Author: J.D. Chandna, Law relating to dowry deaths dying declaration suicides &
cruelties to women, Published by the Bright Law House, Delhi, Edition 1st (2005)
3. Author: Ratanlal Ranchoddas and Dhirajlal Keshavlal Thakore, Indian penal code
Published by LexisNexis, Edition 34th, (2014)
4. Author: K.D.Gaur, Textbook on the Indian penal code, Published by Universal Law
Publishing Co. Edition 4th (2009)
5. Author: K.D.Gaur, Criminal law: cases and materials, Published by LexisNexis
Publications, Edition 7th, (2013)
6. Author: Mamta Rao, Law relating to women and children, Published by Eastern Book
Company, Edition 3rd, (2012)
7. Author: S.R.Myneni, Legal research methodology Published by Allahabad Law
Agency, Edition 5th 2012.
8. Author: T.Padma and KPC Rao, Legal research methodology, Published by New Age
International Publishers, Edition 3rd, 2014
9. Author: C.K.Kothari and Gaurav Garg. Research methodology, methods and
techniques, Published by New Age International Publishers, Edition 3rd, 2014
Articles:
1. Author: K.D.Gaur, The poor victim of uses and abuses of criminal law and process in
India, Published in Indian Bar Review by the (BCI) Trust, Vol. XXVII, (July- Dec)
(2000)
2. Author: Poonam Pradhan Saxena, Family law and settlement, Published in Annual
Survey of Indian Law by ILI, Vol. XXXVI, 2000
Websites:
1. http://www.498a.org/
2. http://www.saveindianfamily.org/
*********

41