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Victim of special penal legislation relating to

women

A Dissertation
Submitted to department of law
University of Rajasthan
Jaipur

Under Supervision of: Submitted by:

Dr. Aruna choudhary Vinit Meena


Faculty LL.M. IV semester
Department of law (Tort & crime)
University of Rajasthan Department of law
University of Rajasthan

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DECLARATION

I declare that the dissertation entitled “victim of special penal legislation relating to women” is
the outcome of my own work conducted under the supervision of Dr. Aruna choudhary.

I further declare that to the best of


my Knowledge the project does not contain any part of any work, which has been submitted for
the award of any degree either in this University or in another University / Deemed University
without proper citation.

VINIT MEENA
Dated: / /2017

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Certificate
This is to certify that Mr. vinit meena is a student of LL.M. IV semester (tort & crime),
department of law, University of Rajasthan, Jaipur. He has written the Dissertation entitled
“victim of special penal legislation relating to women” under my supervision and guidance.

It is further certified that the candidate has made an appreciable attempt on the subject mentioned
above.

Dated: Dr. Aruna choudhary

(Supervisor)

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Acknowledgement
It is my keen desire to pay heartiest thanks to our worthy head of department Mr. S.P.S
Shekhawat sir because only due to their valuable direction, motivation & kind patronage we are
able to plunge into the action to achieve our targeted goal and hope same will give us flying
colours to shine in our time to come. I have written this Dissertation entitled “victim of special
penal legislation relating to women” under the supervision of Aruna choudhary mam.I found
no words to express my sense of gratitude for Dr.Aruna choudhary for providing the necessary
guidance and constant encouragement at every step of her endeavor. The pain taken by her,
scrutiny of the rough draft as well as his valuable suggestions to plug the loopholes therein have
not only helped immensely in making this work see the light of the day, but above all, have
helped in developing an analytical approach to this work. I am grateful to my respected teachers
of department of law, for their co-operation, guidance and their valuable time. I am highly
indebted to my classmates and library staff of the department of law for the support and co-
operation extended by them from time to time. I am thankful to my parents and all my well
wishers who have helped me by giving necessary material relating to the study in question.

I cannot conclude without recording my gratefulness to Aruna choudhary mam.

Vinit Meena

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Table of contents Page no.
1. Introduction 6

2. Concept of equality and equal rights 8

3. Concept of cruelty against husband 9

3.1 Concept of Matrimonial Cruelty in Penal Code 11

4. New Legal Terrorism through Misuse of Legal Provisions 17


5. Legal Provisions Relating to Women and their Misuse 19
5.1 Legitimacy of Section 498 A of Indian Penal Code 22
5.1.1 Why good law turned into legal terrorism 25
5.1.2 Adverse Impact of Misusing S.498A 27
5.1.3 Non Resident Indians and Misuse of S. 498A 30
5.1.4 How this Terrorism can be Prevented 32
5.2 Dowry Prohibition Act - a boon or bane 34
5.2.1. Misuse of Anti-Dowry laws by wives to blackmail husbands 38
5.3 Section 497 of Indian Penal Code needs Amendment 75
5.4 Abuse of Domestic Violence Act 78
5.5 Misuse of Medical Termination of Pregnancy Act, 1971 85
6. Judicial Response to Misuse of Legal Protection by Women 87
6.1 Matters under Section 498-A, IPC are essentially civil in nature 94
6.2 No Casual Arrest 95
6.3 Mediation and Conciliation 96
6.4 Recommendation for Re-look 97
6.5 Quashing of Proceedings where amicable settlement is arrived 98
6.6 Recommendation to make section 498-A, IPC to be compoundable 99
6.7 Liberal and Human approach towards Accused 101
7. Women Organizations and cruelty to men 102
8. Demand by Various Organizations for Protection of Husbands 103
9. Conclusion 105
10.Bibliography 108

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1. Introduction
In the era of man’s ascendancy to power, the institution of marriage came into existence as an
exclusive union. It is believed that wife is ardhangini i.e. half of man. Man is only half not
complete until he marries. Wife is not grihapatni but also dharampatni.1 In the Ramayana the
wife is said to be very soul of her husband.2
The institution of marriage is an oldest social institution and
provides a foundation on which whole superstructure of civilization and prosperity is built.
Stability i.e. a happy, cordial and harmonious relationship between couples has been considered
as one of the most important condition for this institution in civilized societies-ancient as well as
modern. However due to emergence of industrialized societies and result of social awareness
amongst people, especially in females about their right of equality and personal liberty, the
meaning of stability in the context of marriage has been changing gradually in different span
Of times.3
The issue of women’s rights and family law reform has been increasingly entangled within the
polemics of politics and minority rights. It is true that the hardships and the sufferings
experienced by woman of all communities, minorities as well as majority cannot be overlooked
with the help of persuasive or effective freedom of religion. The life on an average Hindu
woman has always been difficult and pitiable due to existing social customs practices of time.
But today the laws are such that a woman can easily misuse it for her purpose and benefits.4
Although women protective
laws have been justified with respect to status of women in olden times, but as we all know the
world has changed and so on the behavior of women. Those women who are used to be subjected
to house caretaker now are taking steps ahead along with men. The law on the other hand has not
changed proportionately. The society has progressed to such an extent that criminality amongst
women have achieved a higher stand in society and certainly have become influential but with
respect to law is still where it was in olden times. The repeatedly misuse of legal protection can

1
Paras Diwan, Modern Hindu Law, (2007), p.63-64
2
Ramayana, 11-37
3
Prof. Ajay Kumar, “Institution Of Marriage-Judicial Approach”, All India Reporter, January, p.6,( 2010)
4
Lalsa Mohini, “Legitimacy of Section 498A of Indian Penal Code” Cri. LJ, Vol-117, April p.127, (2011)

6
lead to new legal terrorism. So there is need to change law relating to women. It is not fair to pre-
establish that domestic violence happens to wife only.5
While making special laws for women, the legislators
must think of victimized sect of the society in male line also. Laws like, Indian Penal Code
section 498-A and Domestic Violence Act, 2005 have number of provisions to intimidate men
and their families. The effect of these laws is unjustified power in the hands of women for
blackmail and extortion in domestic disputes which irreparably damages the life of husbands and
their relatives and sometimes also becomes the reasons for their death.6
In India and elsewhere in the world, there
are no special laws for male. There is Dowry Prohibition Act, Section 498A in Indian Penal
Code i.e. offence of cruelty by husband and relatives of husband; section 125 in Code of
Criminal Procedure i.e. maintenance for wife; protection of women from domestic violence, in
Statute books. But there is no protection of men in Domestic Violence Act, 2005, there is no
provision like Section 498B in Indian Penal Code, there is no provision like Section 125A in
Code of Criminal Procedure i.e. maintenance to husbands under the Act. Rather the specific laws
for women are misused by errant women and police officers. The cry of victimized husbands and
their relatives is not heard either in courts or in society. The practice says that real purpose of the
women – related specifies laws are misused and thereby husbands suffer for no fault.7

The section 498A of Indian Penal Code has become frustrated on the feminist standpoint also.
Rapid use and heavy misuse of this section has also failed to fulfil the object of social welfare
and gender justice. The random arrest of mother-in-law and sister-in-law in the name of cruelty
under this section has proved that to protect one woman it has put in danger and made vulnerable
two more women.8

5
Ajay Kumar Singh, “Dowry Problem In India: Rethinking Anti-Dowry Laws” Cri. LJ, September p. 256, (2009)
6
http:// www.498a org/legaltorture. html, 20 November 2010
7
P.K. Das, Law relating to cruelty to husband, (2008), p.1
8
Dr. Partha Pratim Mitra, “A new look on matrimonial cruelty within criminal law”, Indian Bar Review,
Vol. XL (1) 2013.

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2. Concept of Equality and Equal Rights
Article 14 of Indian Constitution provides for equality before Law and equal protection of law.
Similarly article 7 of Universal Declaration of Human rights, 1948 provides that all are equal
before law and are entitled without any discrimination to equal protection of law. Article 3 of the
Covenant on Economic Social and Cultural Rights 1966 and the Covenant in Civil and Political
Rights 1966, provides that State parties to these covenants undertake to ensure equal rights for
men and women, given under these covenants. Article 15(3) of Indian Constitution is considered
as an exception to general rule of Article 14. If there is discrimination in favour of particular sex,
it is permissible provided that the classification is the result of other considerations beside the
fact that the persons belonging to that class are of a particular sex.9
In Vijaylakshmi Vs. Panjab University10 it was held that as a
result of joint operation of Article 15(1) and (3), the State may discriminate in favour of women
against men but it may not discriminate in favour of men against women. Discrimination would
be permissible provided it is not only on the ground of sex.
Analyzing the constitutional validity of the section 498 A of
I.P.C. it can be viewed that the section is ultra vires to Art. 14 of constitution of India, the
concept of equality and equal protection of law guaranteed by Art 14 in its proper spectrum
encompasses social and economic justice in a political democracy. It is a pledge of protection of
or guarantee of equal rights within the territorial jurisdiction of the Union to the enjoyment of
rights and privileges without favoritism or discrimination. If a wife has a law to protect herself
against the cruelty of her husband, why doesn’t husband have it? When male goes with genuine
complaint the police at max can record a Non Cognizable offence against the women. Every 100
male suicides have 45 married males, and every 100 women suicide have 25 married women.
Married women suicides have default arrests of the in-laws under presumed dowry death.
Married men suicide entitle wife for a 50% share in the property. What kind of equality is this?
Equality is a dynamic concept which goes on changing with changing times and social contexts
and must be understood in that sense. There is no prohibition clause in the section 498A that
would stop women to misuse it against the men.11

9
Durga Das Basu, Commentary on the Constitution of India, (2007), Vol-I, p.986
10
AIR 2003 SC 3331
11
Supra note, 4, p.127-128

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3. Concept of Cruelty against Husband
In India where marriage is the union between man and woman to get social status in the society
and marriage is nothing but procreation and caring of the child. According to Westmark
Marriage has been often like as an institution made by it. As there is increase in number of
marriages every day, at the same time breakdown of marriages in the society has also been seen
to be increasing whether by fault of husband or wife. Though cases filed by wife against husband
and in-laws under Protection from Domestic Violence Act and 498-A of Indian Penal Code to
claim maintenance and divorce but all complaints are not filed bona-fidely. Freedoms of
education, job opportunities, economic independence and social attitude have brought
tremendous change in the status of women. The balance of scale has tilted reversely in favour of
women.12
Cruelty is an inhuman treatment and it is an act that causes mental sufferings and endangers to
the life and health of the other. Cruelty may be in the form of physical as well as mental by the
act either of the husband or the wife. Though it is the women who have always been subjected to
be tortured and harassed by the husband and relatives, in fact saying this will not be proper as
cases of torture and harassment against the husband by the wife is increasing day by day. Cruelty
is the main ground to seek divorce as defined under ‘Sec 13(1) (i-a)’ of ‘The Hindu Marriage
Act, 1955’ and party who is filing a case must prove that living between husband and wife
became impossible.
Cruelty in human behaviour is as old as human civilization itself is. Human by nature is cruel. As
and when one gets an opportunity, be it a male or female, one perpetuate cruelty upon other. In
the ancient days the human being practices cruelties towards animals. After some development
of human race the subject of cruelty changed from animal to other human being. The perpetuator
of cruelty always remains to be the powerful one and the one upon whom the cruelty was
perpetuated always remains to be weaker one. With the concept in mind human being started
perpetuating cruelty in order to gain strength and show their power.13

12
Dhawesh Pahuja, “Cruelty against husband in India” www.legalindia.in/cruelty-against-huband
13
A.S Arora, Law on Cruelty against husband, (2010), p.1

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With the development in civilization and with coming into existence institution of marriage the
subject of cruelty changed drastically and one spouse, be it a male or female, started perpetuating
cruelty upon the other spouse but as there was no forum to redress this grievance, so the
instances of cruelty remained confined to four walls of house.14

14
Ibid

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3.1 Concept of Matrimonial Cruelty in Penal Code
The Criminal law Amendment Act, 1983 inserted section 498A (Chapter XX-A) relating to
cruelty by husband or relatives of husbands to combat social evil of dowry and matrimonial
atrocities against married women.15 Here this feminist measure was to make better family system
for greater society. One side to protect society from crime against women and other side to put
matrimonial cruelty in penal code for making it more stringent to curb wife battering, dowry
system which made society more polluted. There are several provisions in penal law relating to
offences of matrimonial nature. A married woman is subjected to cruelty under Indian Penal
Code, 1860 by her husband or his relatives (498A) or by same husband and his relatives in
demands of dowry preceding unnatural death within seven years of marriage (304B) or causing
woman’s death (302) amounting to murder.16 In both sections 498A and 304B cruelty extends
towarddeath. A person charged under section 304B can be convicted under 498A without any
charge under that section.17
But this shield has become only and multipurpose sword against husband and his relatives.
According to Malimath Committee Report once a complaint or FIR is lodged under section 498A
or 406 of Indian Penal Code, it becomes easy tool in the hands of the police to arrest or threaten
to arrest the husband and other relatives named in FIR without even considering the intrinsic
worth of allegations and making a preliminary investigation.18
The law Commission of India recently in its 237th report on ‘compounding
of IPC offences’ highly recommended for section 498A of Indian Penal Code, 1860 should be
made compoundable with the permission of the court.19 This is not the first time; the same
recommendation was made in its 154th report on 1996 and 177th report on 2001 respectively.
Apart from law commission, Justice Malimath Committee’s report on ‘Reform of Criminal
justice System’ also suggested to bring the section 498A under the purview of compoundable
offence. There was a constant demand for flexibility of this provision from apex court in
numerous cases.20

15
Act 46 of 1983
16
K.D. Gour, A Textbook on The Indian Penal Code, (2001), p.714
17
Ratanlal and Dhirajlal, The Indian Penal Code, (2006), p.919
18
237 Law Commission Report
th

19
Published in December 2011
20
Dr Partha Partim Mitra, “ A new look on matrimonial cruelty with criminal law”, Indian Bar Review, Vol
XL(1) 2013, p.87

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In famous case of Preeti Gupta Vs. State of Jharkhand21 Supreme Court observed that a
serious re-look of entire section 498A of Indian Penal Code is needed. All of these
recommendations are in against the rigidity of this provision. The simple principle has been
revealed here that if procedural laws are made too hard then object of the substantive law will be
frustrated. The simplicity in the procedural laws will give the scope of amicable settlement of
family disputes because this offence is very much related to marriage and family. If chance of
reconciliation is not given then the whole institution of family will come to an end. But cardinal
rule of family law is to make the family not to break the family. The aim of this provision was
mainly to make a society free from family disputes. Whereas heavy misuse of law has made this
society full of matrimonial problems. In writ petition about the constitutional validity of section
498A, the Supreme Court said, merely because the provision was constitutional and intra vires,
did not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment.
It has been very properly discussed that how sister-in-laws become victim of section 498A
without having any nexus with cruelty. Not only that but there are many practical examples
where 498A was charged against remote relatives, friends, match makers or even priest also. The
rapid increase of matrimonial litigations according to the Supreme Court demonstrates discontent
and unrest in the family life of a large number of people of society. Even false charge of cruelty
under criminal law has become a ground of cruelty for matrimonial relief. False cases of bigamy
against husband22 or under Dowry Prohibition Act, 1961 as well as Indian Penal Code23 are also
amount to cruelty as decided by various High Courts. As the Supreme Court said the object was
to strike at the roots of dowry menace. But by the misuse of the provision a new legal terrorism
can be unleashed.24 Even Court has accepted that false allegation of cruelty is amount to
cruelty.25This is an irony of law that one protective legislation has become a cause for protection
for other.
It is a general notion that in matrimonial disputes the perpetuator of cruelty is always to be
husband being the strongest one and the subject is always the faire sex i.e. wife. But it can not be
ruled out that wife had never perpetuated cruelty towards her husband. Earlier instances of
cruelty having been practiced by wife were not highlighted. It is only first time in the history of

21
AIR 2010 SC 3363
22
Raj Vs. Raj, AIR 1986 pat. 362.
23
Kalpana Vs. Surendra, AIR 1985 All 253
24
Sushil Kumar Sharma Vs. Union of India, AIR 2005 SC 3100
25
Ashok Kumar Vs. Vijay Laxmi, AIR 1992 Del. 182.

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legal system the case of cruelty having been perpetuated by wife came before the Hon’ble
Supreme Court for decision. Earlier to the said decision the cruelty to be a ground for
matrimonial dispute was considered to be only physical cruelty.26
Unsubstantiated allegations made by wife in a court
of law during divorce proceedings about her husband's extramarital relations amounts to cruelty,
the Bombay High Court has ruled, while allowing dissolution of marriage on these grounds. The
ruling was delivered recently by a bench which quashed a Pune family court order of July 11
dismissing a divorce petition filed by a man on the grounds of cruelty. Hearing an appeal of
husband against the impugned order, Justices G S Patel and O S Oka allowed dissolution of
marriage between Mahesh and Mohini Paigude. The husband had filed a petition in the family
court seeking a decree of divorce on the grounds of cruelty. One of the grounds pressed by him
was an unsubstantiated allegation made by his wife that he was having extramarital relationship.
The High Court held that making such unsubstantiated allegations amounts to causing mental
cruelty to the husband.27
Though it is the duty of the court to decide the case based on facts and circumstances but what
amounts to cruelty is an important aspect as misuse of Laws by the wife against husband in
society is growing day by day and most apparently some Indian Urban educated women have
turned the tables and are using these laws as weapon to unleash personal vendetta on their
husbands and innocent relatives and there are certain grounds on which cruelty against husband
can be proved28:-

 Misuse of Dowry Laws, Domestic Violence Act and ‘Sec: 498-A’ of IPC by wife against
husband and in-laws of husband through lodging false complaints.

 Desertion by wife which means wife deliberately intending for separation and to bring
cohabitation permanently to an end.

26
Ibid, p.3
27
The Indian Express, 27 July 2013
th

28
Dhawesh Pahuja, “Cruelty against husband in India” www.legalindia.in/cruelty-against-huband

13
 Adultery by the wife means wife having sexual relationship with some other person
during the lifetime of marriage and there must be strict law to punish wife who has
committed adultery.
 Wife opting out for second marriage without applying for the divorce proceedings.

 Threatening to leave husband’s home and threat to commit suicide by the wife.

 Cruel behavior of wife where wife tearing the shirt of the husband, refusing to cook food
properly or on time and breaking of the mangalsutra in the presence of husband’s
relatives.

 Abusing and accusing husband by way of insulting in presence of in-lawsand in some


cases wife abusing husband in front of office staff members.

 Wife refusing to have sex with husband without any sufficient reasons which can be
considered as a ground of cruelty and husband can file a divorce petition.

 Lowering reputation of the husband by using derogatory words in presence of family


members and elders.

 Lodging FIR against husband and in-laws which has later proved as false report.

 Conduct and misbehavior of the wife against husband i.e. pressuring husband to leave his
home, insisting for the separate residence, mentally torture and disrespectful behavior
towards husband and in-laws as well.

 Some other grounds of cruelty i.e. mental disorder and unsoundness of wife, Impotency
of wife, illicit relationship of wife with some other person and Wife suffering from the
filarial.

14
 Extra-marital affairs of wife can also be a ground of cruelty against the husband.

 Initiating criminal proceedings against husband and in-laws of husband with mala-fide
intention by the wife.

Situations in Hindu marriage where a wife was held as cruel to the husband and the Hindu
divorce law was applied by the Supreme Court:

But while rendering land mark judgment in the case in Dr. N. G. Dastane Vs. Mrs. S. Dastane29
the Hon’ble Supreme Court had held that the cruelty is of two type one is mental and other is
physical. It might be true that physical is generally being perpetuated by the husband being a
strong one but at the same time this can’t be said to be universally true. It is also vice versa in the
case of mental cruelty. But in the majority of cases of mental cruelty it is almost the wife
who causes mental cruelty to the husband.

Mrs. Deepalakshmi Saehia Zingade Vs. Sachi Rameshrao Zingade30 In this case
petitioner/wife filed a false case against her husband on the ground of Husband Having Girl
Friend which is proved as false in a court of law so it can be considered as cruelty against
husband.

Anil Bharadwaj Vs. Nimlesh Bharadwaj31 According to this case a wife who refuses to have
sexual intercourse with the husband without giving any reason was proved as sufficient ground
which amounts to cruelty against husband.

Kalpana Vs. Surendranath32 According to this case it has been observed that where a wife who
refuses to prepare tea for the husbands friends was declared by the court as cruelty to husband.
Though the amendments introduced in the penal code are with the laudable object of eradicating
the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the

29
AIR 1975 SC 1534
30
AIR 2010 Bom
31
AIR 1987 Del 111
32
AIR 1985 All 253

15
relatives of a psychopath wife who may have chosen to end her life for reason which may be
many other than cruelty.

Though the amendments introduced in the penal code are with the laudable object of eradicating
the evil of Dowry, such provisions cannot be allowed to be misused by the parents and the
relatives of a psychopath wife who may have chosen to end her life for reason which may be
many other than cruelty. The glaring reality cannot be ignored that the ugly trend of false
implications in view to harass and blackmail an innocent spouse and his relatives, i.e. fast
emerging. A strict law need to be passed by the parliament for saving the institution of marriage
and to punish those women who are trying to misguide the court by filing false reports just to
make the life of men miserable and ‘justice should not only be done but manifestly and
undoubtedly be seen to be done’.33

33
Supra note 16

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4. New Legal Terrorism through Misuse of Legal Provisions
Marriage is a basic social and legal institution. Marriage of two persons brings a lot of changes in
their socio-economic and legal status. Due to rapid growth and development of the society and as
a result of liberalization, postmodernization and globalization, the stability of institution of
marriage has weakened. The new concepts like live-in-relationships, gay and lesbian marriages
have eroded the traditional concept of marriage. At the same time matrimonial offences are
rising high in our country. There are real victims of these offences. At the same time, there are
persons who are falsely implicated in these cases. They are accused but they are ‘innocent
victims’ of matrimonial offences. Because,they have to face trial for no guilt. Their only guilt is
that they are relatives of husband. The cases of false implication in dowry related matter has
reached on the alarming level.34

Commenting upon the situation in our country, Hon’ble Apex Court in Shushil Kumar Sharma
Vs. Union of India35 has observed that by misuse of the provision a New Legal Terrorism can be
unleashed. This observation of Hon’ble Apex Court came in year 2005; now six more years have
passed. The question is – does a provision of law have become synonymous of a very negative
thought like terrorism? It is an arguable question and needs a close examination of
prevailing socio-legal position.
Law is always to protect its subjects and to ensure justice, which is its end. But if the
situation arrives when a ‘piece of legislation’ becomes a ‘symbol of terror’ for the subjects, its
horrible. Imagine the plight of unmarried girl, whose life and future prospects are ruined due to
arrest and detention and frequent visits to courts, the sufferings of old aged persons, who went to
jail, the pain of married sister, and other in-laws, falsely implicated, who never lived with the
victim of 498 A and 304 B, of I.P.C. All these are terrorized in the hands of the law. Before we
can term this scenario as New-Legal Terrorism, there has to be very strong and sound reason in
support thereof. Terrorism has no face, no caste, no creed, no religion, no geographical limits, no
defined objects, its lurking everywhere, be it temple, church, mosque, gurudwara sahib.
Certainly, its war against humanity. What is terrorism? Terrorism is the philosophy that supports
the acts of terror to cause extreme fear in the society, to destabilize the society, to end the peace

34
Kiran Singh, “Protection of ‘Innocent Victims’ Of Matrimonial “ Cri. LJ , Vol:116, September, p.243, (2012)
35
AIR 2005 SC 3100

17
and harmony of the society. The cases of false implications In dowry related matter has reached
to such level that almost every married male persons and his relatives are fearful of it every time.
Thanks to the Protection of Women from Domestic Violence Act, 2005, this has added one more
lethal weapon in the armory of unscrupulous litigants.36
The observation of Hon’ble Apex Court that “Unfortunately a
large number of these complaints have not only flooded the courts but also have led to enormous
social unrest affecting peace, harmony and happiness of the society” 37, clearly shows that these
provisions are causing extreme fear in the society, therefore, synonymous with New-Legal
Terrorism, perhaps has now been unleashed. Like terrorism it is the nation wide, rampant in
every religion, in every social strata. No age group is exempted of it.

36
Ibid
37
Preeti Gupta Vs. State of Jharkand, AIR 2010 SC 3363

18
5. Legal Provisions Relating to Women and their Misuse
Due to ever increasing evil of dowry deaths in the country the need was felt for inserting the
stringent provisions in substantive and procedural criminal law which tend to deal effectively
with sordid incidents of mental cruelty on helpless wives. In 1983 certain amendments were
made in Indian Penal Code, Code of Criminal Procedure and Indian Evidence Act on the
recommendations of the 91st law commission.38
S. 498A of Indian Penal Code, 1860 provides that 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 be liable to
fine. Similarly S.113-B of Indian Evidence Act, 1872 provides that in case of dowry death, the
Court has to presume that dowry death was caused by the person who is shown to have subjected
the woman to cruelty or harassment soon before the death.
Moreover S.406 of Indian Penal Code, 1860 provides for the
punishment for criminal breach of trust. Wives can file a case against their in-laws under this
section if ‘streedhan’ is not returned. The Protection of Domestic Violence Act, 2005 under sec
31 provides that Magistrate may file case under Sec 498-A of Indian Penal Code in appropriate
case. Protection officers, Service providers and Magistrates are under duty to inform aggrieved
party of her right to file a complaint under S. 498-A of Indian Penal Code 1860.
Payment of dowry, gift-often financial,
has a long history in many parts of the world. In India, the payments of dowry was prohibited in
1961 under Indian law and subsequently by section 304B and 498A of the Indian Penal Code
were enacted to make it easier for the wife to seek redress from potential harassment by the
husband’s family. The giving and taking dowry, its abetment or the demand for it have been
made as an offence punishable with imprisonment or fine both (Section 3 and 4 of Dowry
Prohibition Act 1961). Section 5 of the act, makes the agreement for giving dowry to be void
which means that such an agreement is unenforceable by law.
Even at International level various efforts were
made for the protection of women. International Conferences like Vienna 1993, Cairo 1994,
Copenhagen 1995 and Beijing 1995 highlighted problems of women. In 1998, 50th anniversary of
‘Declaration of Human Rights’ was celebrated by the United Nations with global campaign for

38
91st Law Commission Report, 10th August, 1983.

19
elimination of gender based violence and discriminations.39 Basically anti-dowry laws and other
laws relating to women protection are made to protect them from greedy in laws and husbands.
But there is also another section of women who often abuse the authority of law. They snuff–out
vengeance with the liberty of protection of law and find enough room to misuse the instruments
of law at their pleasure. The husband is victimized most, so also the members of his family. We
don’t always have Sita in every frame of woman. The law which was meant to protect the
women is often getting double edged, hitting back the husband with deep incised wounds. The
provisions of Indian Penal Code, Code of Criminal Procedure and Domestic Violence Act 2005
become handy weapons for those who want to settle any scores with the “husband” and “in-
laws”. There had been no live concern about the reality but the sharpening of the wits was there
with wrong signals. It has become an easy reckoner for the wife to dictate her own terms to the
husband and the in–laws even if mentally and physically she remains elsewhere.40

The objects with which these provisions were added in the statue books were noble one. But
these provisions have been misused over the years by the unscrupulous litigants to serve their
oblique motives. It was noticed during the survey that there are some misguided elements
amongst women who misuse the law to reap the vengeance and harass the poor husband.
According to a lady Magistrate Prabha Tak, who has lot of experience of cases of dowry deaths,
young girl marry with lots of aspirations based on movies and films. Their expectations are
totally unrealistic. They are away from the mundane realities of life, this leads to tensions and
frustrations when realities down their marriages. The new culture of not teaching the girls any
household makes their life miserable when they have to involve in these jobs. They have not
learnt cooking, naturally their cloth will catch fire if they are not careful. Similar are views of
DCP Crime (women cell) and many of them who were interviewed. Most of the cases of dowry
harassment are actually cases of marital maladjustment. The wife commits suicide out of the
frustration of work or because of her inability to make adjustments and the poor husbands and
his family have to take the blame for the acts of his over sentimental wife. The girl’s parents by
blaming the in-laws for demanding more dowry or perpetrating atrocities, actually cover up their
own responsibility of not bringing up their daughter properly. In most of the cases the fault could

39
Proffulah Padhy, Social Legislation and Crime, (2005), p.143
40
V.K Dewan, Law relating to Cruelty and Offences against Husbands, (2009), p. 4

20
be appropriated to both, the husband as well as wife. It was the mental blocks and lack of desire
to adjust with each other.41

It is not fair to pre-establish that domestic violence happens to a wife only in the Indian family.
In a typical situation a wife can act cruel to her husband physically, mentally or by her anti-social
behavior. As in most Indian families, husband’s parents live with him, so wife can be also cruel
to them. In such circumstance, many husbands and their old parents committed suicide after
being neglected by everyone including the police, courts and civil societies. The common
reasons for misuse of anti-dowry laws are:-

 To maintain her illicit relations and extra–marital relations after marriage.

 Abusing the parents, sisters and brothers of her husband with filthy words.

 Demanding the separation of husband from his old parents.

 Demanding transfer of property and assets just after marriage to her name.

 Aborting the child without telling husbands or his parents.

 To extract money from husband and her in laws.42

Sole object of women protective laws was to give legal protection to the married women against
victimization by. But these laws have now become a handy weapon for many women to black
mail, harass, humiliate and falsely implicate the innocent members of the In-laws family in
dowry-demanded cases and extract money from them before finally setting the marital discard or
dispute.

41
Shobha Saxena, Crime against Women and Protective Laws, (2004), p.359
42
Supra note. 2

21
5.1 Legitimacy of Section 498 A of Indian Penal Code
Section 498-A was inserted in Indian Penal Code in 1983 to protect married women from cruelty
including dowry harassment but it is being fearlessly abused and misused by large section of
unscrupulous people who are using law as a weapon for ulterior motive. The section 498-A was
brought in forth for the protection of women from the cruelty of her husband and his relatives
which is now being misused by some thoughtless women. These women are turning the law
other way round by being cruel to their husbands and his relatives and getting them tired under
Section 498-A. Indian Law has always laid emphasized on protection of the innocent. It has
always been emphasized that ten guilty persons can be acquitted rather punishing a single
innocent person. But this section is being misused and innocents are punished. Today the time
demands an equal law for the men to protect them against the evil shadow of section 498A. This
anti-social misuse of provisions of law is growing a legal terrorism in the society.43
Constitutional validity of the section
498A, of Indian Penal Code has been challenged on the ground that this provision is misused.
But Hon’ble Apex Court in Sushil Kumar Vs. Union of India44has upheld its constitutional
validity, holding that possibility of misuse or abuse of a statutory provision of Law, which
is otherwise valid, can’t render it invalid.
According to Black’s Law Dictionary45 Cruelty means, “the intentional and
malicious inflection of mental or physical suffering on a living creatures esp. a human; abusive
treatment.” Cruelty is defined under S. 498A and it has been used in relation to human conduct
and human behavior. Human conduct is complex and a rigid definition of cruelty is not
impossible. While deciding whether cruelty has been proved or not variety of factors like social
status, customs, traditions, public opinion etc. have to be considered. Cruelty for the purpose of
section 498A need not be physical, even mental torture or abnormal behaviour may amount to
cruelty. Inference should be drawn by taking into the account the nature of conduct and its effect
on the complaining spouse.46

43
Lalsa Mohini, “Legtimacy of Section 498A of Indian Penal Code”, Cri, LJ, Vol:116, p.128, April (2011)
44
AIR 2005 SC 3100
45
Black’s Law Dictionary, 8th Edition, p.405
46
P.K. Das, Law Relating to cruelty to Husband, (2008), p.54

22
In Vinita Saxena Vs. Pankaj Pandit47 It was held by the Apex Court that cruelty depends upon
the type of the life the parties are accustomed to or their economic and social conditions and
human values.
There are no parameters by which cruelty by wife against her husband and his relatives,
can be measured. Wives are continuously taking advantage of this stringent provision under
which husband or his relatives can be punished upto three years of punishment and fine.

“whenever there is matrimonial dispute between the husband and wife for the fault of husband or
other relations of the husband that is the brother, sister, parents are also roped in the litigation on
the allegation of demand of dowry, whether they are living jointly or separate and sometime even
the parents who are aged 80 to 90 years and are unable to walk or talk and the sisters living at far
off place in the matrimonial house are involved”. As it is always presumed that these legal
provision are made for the protection of the women from cruelty, then what about the mother,
sisters, sister-in-law of the husband? Are they not women? Why they are involved in all these
litigation?

Delhi High Court in Anu Gill Vs. State & Anr.48 Observed as The Hon’ble Judge of Punjab and
Haryana High Court has observed that: “It has become a practice that whenever a police report is
lodged consequent upon a matrimonial discord, there is always a tendency on the part of the
complainant to involve practically all the relations of her in-laws family either out of vengeance
or to curl out appropriate settlement. Such a tendency ought to be deprecated.”

There are many reasons for filing false case against husband and his family like demanding
separation of husband from his old parents, interference by parents of wife in her matrimonial
life, past affair of wife or extra-marital affair, financial independence of wife etc. It is seen that
most cases of misuses of dowry laws are reported by urban families and wives who are well
educated, independent and aggressive. Mere lodging a complaint by a married woman even
based on conflicts with husband on trivial matters not distantly relating to dowry demand gets
the police machinery into action quickly and all accused are put behind the bar; even young kids

47
AIR 2006 SC 1662
48
2001 (2) JCC (Delhi) 86

23
and close relatives are not spared some time. Offences under section 498A of Indian Penal Code
are non bailable and non compoundable. Women take advantage of these provisions to set scores
with husbands and in laws.49

49
Hemant Kumar, “Legal Terrorism”, Lawyer’s update, p.11 October (2010)

24
5.1.1 Why good law turned into legal terrorism
The question is- why a good law that was created with noble vision gradually turned into a legal
terrorism? Here it is submitted that researcher had found that there are several reasons, which
have been crystallized on the basis of judicial decisions, empirical research work and experiences
came across in court. They are:-

 In those cases where matter is partially true, exaggeration is made to make the matter real
and thrust of the complainant remains on the point that maximum relatives of in-laws are
roped and arrested so as to mount pressure on the in-laws and on husband to settle the
matter on the dictate of wife.

 Sometimes false cases are filed to take revenge.

 There are cases, where wife gets second marriage done, concealing the first marriage. In
such cases, when second husband comes to know the fact of first marriage, he files
complaint of bigamy. Then, in rebuttal, wife files complaints alleging dowry demands
and harassment.

 Luteri Dulhan- Cases have come in light, where a woman used to marry a number of men
and cheat everyone of them, by living sometime with them and sometime and then
making theft of valuable property and disappear. If case of cheating and theft is filed
against such woman, criminal complaints of alleging dowry demand and harassment are
filed.

 In several cases, criminal complaints of dowry demand and harassment are filed to get
the property of husband, where husband is alone successor of huge property.

 The most common fake complaints are filed at the moment when husband files suit for
restitution of conjugal rights and the notice is served on the wife; wife files complaints of
dowry demand and harassment.

25
 In very rare case, a complainant is punished for filing false complaints.

 Most of these complaints are filed in the heat of the moment over trivial issues without
proper deliberations.

 Last but not the least, a good lawyer in Bar is one, in the eyes of litigant, who can win the
case of the complainant, by whatever means.

It is submitted that these reasons can’t be exhaustive because human mind can never be explored
in toto. For the aforesaid reasons filing of false complaint are rising high, creating fear in the
mind of citizens of India.

26
5.1.2 Adverse Impact of Misusing S.498A of Indian Penal Code,1860
Every person who is falsely implicated in criminal complaints or F.I.R. is sufferer. A false
complaint has a far reaching impact on social and economic prospects of accused. Sometimes, a
complainant herself is sufferer, mostly in those cases where complaining wife has no
independent source of livelihood. Because, arrest of near and dear one’s of husband culminates
in divorce between husband and wife and ultimately she is left at the mercy of her natural
parents. Minor children to marriage are innocent victims, who don’t face legal action but they do
face social problem like, single parenting, criminogenic atmosphere of up-bringing which results
in ‘broken personality’. The criminal trial lead to immense sufferings for all concerned. Even
ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of
ignominy. A large number of these complaints have led to enormous social unrest affecting
peace, harmony and happiness of the society. Further, tendency of false implication of parties
does have bearing on genuine cases50.
It can be concluded that the institution of marriage and family got adversely
affected by misuse of this provision and the other dowry related laws. Following are the few
points of ill effects of misuse of this provision:-

 It has resulted into large number of divorce cases. Once the members of the husband’s
family are arrested, chances of surviving the marriage became remote and marriage
comes to an end.

 A woman who is not economically independent gets adversely affected with break
chances of remarriage and by becoming dependent upon parents and brothers again.

 The future of unmarried girls of the husband’s family gets adversely affected by the false
implication and prosecution.

 The accused under dowry crimes are kept with hard core criminals that severely affect
their personality and thinking.
50
Preeti Gupta Vs. State of Jharkhand, AIR 2010 SC 3363

27
 It increases corruption in police and society as police threaten persons involved that if
they would not pay money, their bail will be delayed.

 Many lawyers, in lieu of getting commission on the money received by women by


misusing this provision, encourage complaints to exaggerate the amount due to them as
streedhana. It causing disgrace to profession of advocates.

 Many husbands or their old parents commit suicide due to the harassment by women in
such false cases.

 World Health Organization report on Elder Abuse finds misuse of dowry laws by
daughter-in-law as the main reason for the elder abuse in India.

 Mothers, in order to take revenge on the husband, do not allow fathers to see the child. It
has ill impact on the physical and mental development of the child.

Annually about 75000 dowry harassment cases are filed in India. According to National Crime
Reports Bureau data, more than 80% people arrested under dowry law cases have turned out to
be innocent. Suicide rates of married men in India are higher than females and their proportion
increases with their age. For males in the age group of 30 to 40 suicide rate is 508 per 100000
persons; for women it is 220. The suicide rates among men in the age group of 45 to 59 are 1812
per 100000 persons and among women, it is 550. It shows that more husbands are compelled to
commit suicide because of unbearable harassment, mental torture, disturbed family life, financial
pressure etc.51

51
www.indiastate.com

28
If a woman misuses S, 498A of Indian Penal Code, 1860 she is committing following crimes:-

 Crimes against her husband and his family members.

 Crime against her children, who will suffer due to their separation and tension.

 Crime against the religious vows that she took during marriage.

 Crime against the sanctity of court.

 Crime against police and public administration who has supported her as a victimized
women.

 Crime against society, social system and values.

 Crime against the womanhood which is in question due to her.

It means that misuse of S. 498A is an offence that should amount to seven times the punishment
provided under this section.52

52
Nishant Kumar, Misuse of Anti-Dowry Laws to Blackmail Husband, Independent Media Centre India,
(2006), p. 6.

29
5.1.3 Non Resident Indians and Misuse of S. 498A
The NRI husbands get harassed tortured and blackmail by their wives, when dowry harassment
cases are registered against them. Due to distance, they are unable to deal properly with the
authorities and legal procedures to prove their innocence. In some cases Indian authorities ask
foreign embassies to cancel their visa. When they arrive India they are arrested at airports as
criminals, their passports are seized and are stopped to go back to their job abroad. Due to this
harassment, the USA State Department has already issued warning to foreigners for not
travelling for marriage to India. It is seriously unfortunate for India to depict such a horrific
image at International level. The dowry harassment laws are cognizable offence, in which the
proof is not required and on the basis of statement of wife, police put all accused persons in
jail.53
There are many issues for which wives harass their NRI husbands like wife marries NRI husband
to procure visa, to make money from marriage with NRI, etc. Wives are obtaining Permanent
Residency of file false dowry cases against NRI husbands to take over his assets, wives abducts
children and flee to India.54

Several reports of the abuse of section 498A have involved couples based outside India
especially in US & Canada. The United States Department of State has published the following
travel warning:
A number of US men who have come to India to marry Indian nationals have been
arrested and charged with crimes related to dowry extraction. Many of the charges stem from the
US citizen’s inability to provide an immigrant visa for his prospective spouse to travel
immediately to the United States. The Courts sometimes order the US citizen to pay large sums
of money to his spouse in exchange for dismissal of charges. The Courts normally confiscate the
American’s passport, and he must remain in India until the case has been settled. It is stated in
Travel Advisory by US, since the police may arrest anyone who is accused of committing a
crime (even if the allegation is frivolous in nature), the Indian criminal justice system is often
used to escalate personal disagreements into criminal charges. This practice has been
increasingly exploited by dissatisfied business partner, contractor, estranged spouses, or other
persons with whom the US citizens has a disagreement, occasionally resulting in the jailing of
53
Ibid
54
“NRI Marriages- vanishing Brides and Abandoned Grooms,” Press Conference-August, 2007

30
US citizens pending resolution of their disputes. At the very least such circumstances can delay
the US citizen’s timely departure from India, and may result in an unintended long-term stay in
the country. Corruption in India, especially at local levels, is a concern, as evidenced by
Transparency International’s Corruption perception index of 3.5, ranking India in 72nd place of
the world’s countries.55
In a well publicized case, Dr. Balamurali Ambati who earned his MD at age 17, and his family
were detained in India for over three years in a suit related to alleged dowry demands by the
family for his brother’s wife Archana, which delayed Dr. Ambati’s entry to the ophthalmology
program for two years, leaving him to begin his residency in 1998. All charges against him were
dismissed in October 1996 and his family members were acquitted in June 1999. During the
course of the trial the Ambatis produced a tape in which the father of Archana demanded US
$500,00 to drop all the charges although the details of this particular case are still debated in
India.56
The world Health organization reports Lebanon and India as first ranking countries for legal
abuse of elders in India57. And also in year 2005 there were 10491 cases which were not charge
sheeted because of frivolous grounds. Not only are senior citizens, even women and children
abused using this legal process. It is ironic that more than 5,000 innocent women get arrested
under section 498-A, which has been projected as a law for welfare of women. Under false cases
of section 498-A, an innocent woman is arrested every 23 minutes and an innocent person is
arrested every 5 minutes.58

55
Dr. Shobharam Sharma, “Legal Terrorism in India: Need to Change the Law” Cri. LJ, Vol:117, p.372,
December(2011)
56
Ibid
57
http:/www.498a org/legaltorture
58
National Crime Record Bureau. 2006

31
5.1.4 How this Terrorism can be Prevented?
Every problem has solution. There are several measures by which problem can be minimized.
These measures may be taken at family level, at police station level and finally in courts. 59

 Trivial disputes between husband and wife or wife and in-laws are part and parcel of
matrimonial life. These problems can amicably be settled at family level, by the
involvement of elders in the family. If these are settled down normal matrimonial
relations are resorted.

 Where wife leaves matrimonial home, normal tendency of Indian society is that efforts
are made to solve the problem. At this stage mediation can be made by the relatives,
respectable persons of locality in which either party to marriage resides. If these problems
settled down normal matrimonial relations are resorted.

 Where suit by husband for restitution of conjugal rights is filed, Courts can refer the
matter to mediation or conciliation cell or make efforts themselves. Learned mediator of
bar can also act as mediator. If at this stage mediation succeeds, suit by husband for
restitution of conjugal rights is withdrawn and normal matrimonial life is also resorted
with some efforts.

 Legislature should conscious enough to the fact that conciliation is the best way to settle
matrimonial disputes. Provisions have been made in this regard. Section 23 of the Hindu
Marriage Act, 1955, Section 9 of the Family Courts Act and section 14 of the Protection
of Women from Domestic Violence Act, contains the provisions regarding conciliation.

59
Kiran Singh, “Protection of ‘Innocent Victims’ Of Matrimonial” Cri LJ, Vol:118,p.242, September
(2012)

32
 The High Courts should laid down several guidelines, through judicial pronouncement, to
protect the liberty of the citizens and harassment of innocent persons in the hands of
unscrupulous litigants.

Offence under Section 498A of the IPC, relating to harassment for dowry and cruelty to women
in her matrimonial home, may become slightly less stringent on husband and in-laws. After
many complaints about its misuse, the law commission is set to recommend making the offence
compoundable. This means the husband and in-laws of a complaint would have the choice of
compromising and getting the case of their back, provided the woman agrees. Till the
compromise takes place, the offender would stay in jail unless they get bail.60
The Government of India is mulling over
a proposal to review/amend some provisions of Dowry Prohibition Act, 1961. Replying to a
question in Lok Sabha the Minister of Women and Child Development Smt. Krishna Tirath
stated that the Government has a proposal for amendment to the Dowry Prohibition Act, 1961 to
make it more effective and prevent its misuse .The Minister revealed that No complaints/
representations alleging misuse of Dowry Prohibition Act, 1961 have been received. She
however informed that, some complaints/ representations regarding alleged harassment of
husband and other family members for inflicting cruelty on account of dowry using Section 498-
A I P C have received. Smt. Tirath stated that for preventing the misuse of Section 498-A of IPC,
Government has issued an Advisory to all the State Governments and Union territory
Administrations on 20th October, 2009. They have been advised to comply with the procedures
laid down by the Hon’ble Supreme Court and that in cases of matrimonial disputes; the first
recourse should be to effect conciliation and mediation between the warring spouses and their
families.61

60
Times Of India, May 26th 2011
61
Ministry of Home affairs, 5Th November 2009.

33
5.2 Dowry Prohibition Act - a boon or bane?
Till a hundred or two hundred years back, the valuables/money/property given to a daughter
during her marriage which she would take along with her to her husband's family. This practice
was prevalent in many countries across the world including in Europe. In those days, the women
were typically not allowed to own property or get inheritance assets/property/business shares and
this was a way to give the woman's own right/share to her once she got married. This would
save from any disputes between the brothers and this woman after the parents of the wife
expired. In India, it is still not uncommon for women to sign off all rights on their parents’
properties at the time of marriage and their parents give away the woman's share as expenses of
the marriage and as Streedhan. The original definition of so called dowry was what is known as
Streedhan in India. The other historical purpose of dowry, or dower from which the word dowry
originated, was to provide support for the wife in the case of his death.62
Unfortunately, many people abuse the
power that money brings. Many brides' family used the power of dowry to "purchase" grooms
that the bride could get on her own merits. Over the years, one thing that has clearly been seen is
that there are very rare cases brought up when dowry is demanded and not a single case the
dowry givers had been punished. Largely, cases are registered firstly when some marriage
dispute occurs due to various reasons and all the disputes termed as Dowry dispute. Surprisingly,
in most of these cases, the matter is not even brought up or looked down initially and this way
both giving and taking dowry is justified. It is a well known strategy of stopping crime and
terrorism to find the source of funds to these groups and cut this source of funds. Till the time the
brides and their families are willing to pay the price for a groom who is better that the bride on
merits, this system can't be stopped.63
It is now a well know fact that in India, there are now more men than women. This means
that for a bride getting a suitable groom should no more be a problem. There is now no real
reason for a bride and her parents to pay a "price" for a suitable groom in the current situation.
Other noticeable things that have happened are that women have been brought up to the same
level as far as men by the amendments to the Succession Act. Some of these amendments had
already been made in the South. The concept of Streedhan and that it is something in total

62
Shobha Saxena, Crimes against Women, (2004), p.115
63
http:/ www.saveindiafamily.org/index.php

34
control of the bride to whom it is given is also well known and established. After marriage it is
the husband's family who are harassed at least 10 times more to get the money/property/business
share by the wives and their family members. Result more and more burden put on the head of
Husbands and they are ending their life all most double than married women.64
THE STRINGENT provisions incorporated in the
Dowry Prohibition Actof 1961 (Central Act) have been largely diluted. Recent amendments and
rules framed under the Act by State governments reinforce this perception. Whether the teeth
provided in the Act had been plucked off as the injustice caused by it was too much, or whether
cases filed under the Act and put to test acted as a catalyst for a rethinking about the provisions is
a moot point. When the Bill was introduced in Parliament it was said that its object was `to
prohibit the evil practice of giving and taking of dowry.' When a Bill was introduced to amend
the Act of 1961, it was said that the evil of dowry had been a matter of serious concern in view
of its ever increasing and disturbing proportions. Accordingly the Act of 1984 made some
amendments in the Act of 1961. Some women's voluntary organizations felt that the amendments
were still inadequate. Hence the Amendment Act of 1986 further amended the 1961 Act. After
the above two amendments, the Act became more stringent. The 1986 Act introduced new
sections 8-A and 8-B. Sec. 8-A says that the burden of proving that one has not committed
offence u/s. 3 (giving or taking of dowry or any abetment towards it) and u/s. 4 (demanding
dowry) is on the person charged.65

However, the Supreme Court in the case of Balram Kumawat Vs. Union of India66 has held
that conviction cannot be based on such presumptions without offence being proved beyond
reasonable doubt. The amendments and Sec. 498-A of the Indian Penal Code (IPC) were
introduced presupposing that only genuinely aggrieved women would lodge complaints and that
they would invariably tell the truth. Some victims of false cases formed associations and
expressed concern over the arrest of the accused husband, his family members and even remote
relatives without proper investigation, and money mongering by wife and her relatives led to
suicides by many men.67

64
Ibid
65
The Hindu, 14th December 2004.
66
AIR 1996 SC 2184
67
Ibid

35
Today more persons are committing suicide for fearing harassment on the basis of false
complaints under Dowry Prohibition Act. It is submitted that punitive punishment should be
imposed on those responsible for giving false complaints besides awarding costs and damages to
the victims; that tax payer should not be made to pay for mala fide and frivolous complaints; that
the process of courts should not be used for settling personal vendetta; that Sec. 498-A of the IPC
and the amended Dowry Prohibition Act, which were meant to prevent the victimization of
women, were being increasingly misused by women to blackmail, victimize and harass innocent
husbands and their relatives.

When the Dowry Prohibition Act was sought to be amended in 1986, Parliament with a view to
checking the misuse of the Act, introduced Sec. 8-B which deals with appointment of dowry
prohibition officers by State governments. The Supreme Court in a number of judgments asked
the State governments and Union Territories to immediately frame rules for appointment
of dowry prohibition officers under the Act.

The Punjab Government (Act 26 of 1976) substituted Sec. 7 of the Act


to the effect that no police officer below the rank of Deputy Superintendent of Police shall
investigate any offence punishable under the Act or make arrest thereof. Himachal Pradesh has
also substituted the provision as above.

Punjab inserted Sec. 8-A as hereunder:

"8-A Institution of Proceedings: No prosecution shall be instituted against any person in


respect of any offence committed under this Act without the previous sanction of the District
Magistrate or of such officer as the State government may by special or general order appoint in
this behalf."
The government of Tamil Nadu also framed the Tamil Nadu Dowry Prohibition Officers and
Advisory Board Rules 1998. Dowry prohibition officers were invested with the powers of police
officers as per rule 4 of the above Rules. Tamil Nadu gave more powers to dowry prohibition
officers and to stop misuse of the Act, brought in new rules called Tamil Nadu Dowry
Prohibition Rules 2004 in supersession of the Tamil Nadu Dowry Prohibition Officers and

36
Advisory Board Rules 1998. The Tamil Nadu Dowry Prohibition Rules define police officer as
Deputy Superintendent of Police of the division concerned. In Rule 3 it is said that dowry
prohibition officers shall exercise jurisdiction and powers u/s. 8-B of the Act. Dowry prohibition
officers' approach as defined in the Rules is primarily preventive and remedial and for
prosecution he can only recommend. Rule 7 further says that dowry prohibition officers shall
submit a report before a competent magistrate and the report shall be deemed to be a report u/s.
173 of CrPC. I do not think in any other statute in India, it has been mentioned that an enquiry
should be conducted to collect such evidence from the parties as to the genuineness of the
complaint. When the Rule 5 (X) insists that the dowry prohibition officers shall scrutinise the
complaint and collect evidence from the parties as to the genuineness of the complaint, we can
read between the lines a lot. Moreover, it insists that evidence should be collected from the
parties, which means not only on the complainant side but also on the respondent side.68

While disposing of a petition, the High Court of Madras (Justice A.K. Rajan) has said: "It is true
that demand of dowry, which originally prevailed among a small sect of people, has not
pervaded the entire society due to the educational advancement. Further, due to the constant
attempts by various organisations women started complaining about dowry harassment to the
police. Of course, it is a healthy sign. But at the same time, it is not uncommon that while such
complaints of dowry harassment are made, even innocent in-laws are arrayed as accused. When
such false complaints are made, some people, unable to bear such false accusations, go to the
extent of committing suicide. This has to be taken note of by the authorities concerned and there
must be restraint regarding such complaints against in-laws." 69

68
Ibid
69
The Hindu, 14th December 2004.

37
5.2.1. Misuse of Anti-Dowry laws by wives to blackmail husbands
It has become a custom in India that a lot of social and legal concerns are expressed for wives in
cases of matrimonial disputes, but husbands and their family members are totally ignored.
Social & Legal Systems take for granted
the notion that the Indian husband, his relatives and friends harass his wife, and ignore the
instances where it is the wife and her relatives who harass the husband. There are special laws
that provide for women who claim to be harassed but not for men. Men who seek to fight back
against such harassment find that they have also to fight the systemic bias of the governments,
the police and the courts against them. India has a long and ancient tradition of entrenched and
dominant women perpetrating harassment of men, and this has only grown worse as the norms of
Indian Society has evolved from the Joint Family to the Nuclear Family, making the husband, his
parents and other relatives more susceptible to domestic violence.
The Assumption of the Law that in a given marital
dispute, domestic violence happens only to a wife in unfair and in violation of the basic
principles of justice. In a typical situation, a wife could act cruel to her husband physically,
mentally or by her anti-social behavior. As in most Indian families, the husband’s parents live
with him, so the wife can be also cruel to them. In such circumstances, many husbands and their
old parents have committed suicide after being abused by everyone including the police, the
courts and the civil authorities. The vast majority of cases where the wife and her aides are guilty
of harassment and more go unpunished due to limitations in our laws and social values.
Traditionally, in India, a newly
married woman was expected to be quiet and submissive to her husband and his relatives, but
principally with his mother, sisters and sisters-in-law, with a clear hierarchy operating among the
womenfolk. While in name, a Patriarchy, the Indian family has traditionally been a Matriarchy.
For all its faults, however, the hierarchy also helped newcomers to adjust and provided for their
mental and physical comfort at all times. The aim has always been to provide for the needs of all
members of the household without exception. However, under pressures of modernity, this norm
has fractured.
The modern norm is the Nuclear Family, and it is not unheard of for husband and wife to
combine against the husband’s aged parents, to harass them to move out and to force them to live
in the streets or in old-age homes.

38
Moreover, women are now taught not to submit and insist on their rights.
When two or more people live
together, each of them cannot behave as a commander-in-chief. Someone has to yield to the
other. In most marriages, husband and wives make sacrifices in order to adjust to each other.
However, when both insist on their rights, acting as independent and sovereign countries, clashes
are bound to develop. Due to this, even a small thing can degenerate into a major quarrel. When
their views and ideas don't match, such couples will quarrel on trifling topics. Verbal abuse and a
refusal to adjust to each other feeds on itself in a vicious circle, increasing misunderstanding
between the couple, so that they come to categorically reject each other's ways and no longer
wish to live together.
The modern trend is for the wife and her relatives to pressurize the husband to separate from his
parents and live apart in a nuclear family setup. In some cases, this is not acceptable to the
husband for good reasons, such as being the only person who really loves and cares for his
parents, even if he has other brothers and sisters who could do it, but who are indifferent to his
parents. Some refuse for financial reasons. In most such cases, when the husband refuses, the
wife begins to sulk, abuse his parents physically and verbally and even desert him.
But the Law has handed a new weapon
in the hands of such a woman who refuses to adjust and who insists on her own way. She can
merely sashay into the nearest police station and register a complaint against the husband and his
relatives for harassing her for dowry. The Law, as amended progressively since 1983, presumes
the culpability of the accused and compels the police to blindly arrest the persons named as
accused, regardless of their age and ability to move and cause harm, so that from bedridden
elders to babies in-arms are mercilessly hauled off to prison. The husband and his family
members get a great shock after knowing their offence to realize the wife’s ill-designs until the
police wake them up from sleep one morning. It is seen that police arrest on a day before
government holidays or on Friday to elongate the arrest period.
Thereafter, for several years often extending to decades, they are compelled to defend
themselves against the charges, while the woman who made the complaint has to do nothing to
prove her claims. The Law places the burden of proving the innocence of the accused upon
themselves, casting into the garbage can the basic and fundamental legal principle that a person
is to be presumed innocent until proven guilty!

39
Marriage is a major catalyst of change for women, who are obliged to move to a new home and
to adjust to a new family. However, this is inevitable, and in the long history of mankind, it has
been done. However, there are some cases of women who insist on clinging to their parents and
siblings. The wife could pressure her husband to get separated from in-laws due to lack of her
individual space and freedom. The wife may be suffering from Borderline personality disorder,
or she could be her parent’s only child, or only daughter who is accustomed of getting extra
privileges at her parental home. The wife’s parents could be demanding their “damaad” (son-in-
law) to settle with them and become a “Ghar Jawai” which men usually would not prefer. This
will usually lead to a rupture between the husband and wife. This is another instance where the
woman can turn the facts on their head and make false allegations of harassment for dowry by
her husband, his relatives and even his friends.
The following, in our experiences, are the common causes for marital strife or the grounds for
disagreements and mutual recriminations between the husband and the wife and between their
respective families and supporters:
 Harassing the husband for large sum of money (in lacs) for the settlement of her siblings
or for establishing her parental family;

 Sending out on a regular basis, money provided by the husband for running the house, to
her parents and or siblings without his knowledge and permission;

 Continuing her illicit relations with her pre-marital boyfriend even after marriage or
developing extramarital relations at her workplace or in her neighborhood; d) Showing
uncontrollable and aggressive behavior that may be a symptom of Borderline Personality
Disorder or other psychological disorder;

 Psychological Terrorism: Demonstrating abusive behavior such as abusing her husband’s


parents, sisters and brothers with filthy words and in a deliberately extra-loud voice with
the intention of creating a scene of public humiliation and intending to intimidate and
terrorize her victims;
 Habitual and pathological dishonesty towards husband and other family members on
domestic affairs and other matters where the husband and other household members have

40
a right and duty to be told the truth in order to uphold and protect the family’s rights and
good name in society;

 Alienation & Abandonment: Attempting to alienate the husband’s affections from his
parents and blood relatives, and demanding that husband separate from and abandon his
aged, dependent parents;

 Expropriations: Demanding transfer of the husband’s property and assets to her name;

 Expropriations: Taking away and stealing precious jewelry items and other valuables that
would also include items given by husband’s parents, without his express permission;

 Desertion: Wife visiting her parents frequently and lingering for long at her parental
home without any reasons and leaving the marital home (husband’s house) along with
their children without giving any reason to her husband or his parents, thus effectively
kidnapping his children and denying him access to his own beloved offspring, with the
intention of placing unlawful and unjust psychological pressure on him to surrender to
her demands, and also demanding legal separation or divorce for no just cause;

 Aborting the child without the permission of the husband

 Extortion: Demanding large sums of money or property from his husband and making
false allegations against the husband of atrocities committed against her, and
blackmailing the husband or his family members for valuable moveable or immoveable
properties with threats of falsely invoking unjust laws against them;

 Misrepresenting facts and incidents to cast them in a sinister light and as crimes and
atrocities against her self;

 Blackmail: Threats to commit suicide if her undue demands are not yielded to;

41
 Parents of wife frequently accusing husband for not satisfying or being incapable of
satisfying their daughter thus amounting to psychological cruelty and abusive behavior
with the intention of demoralizing and systematically victimizing him;

 Defamation: Defaming husband’s family in their neighborhood and in their relations by


spreading false stories of her harassment and torture;

 Excessive involvement of wife’s relatives in husband’s life or dictating to him on every


domestic matter or marital questions;

 Wife conceals or suppresses material facts of her medical problems that affect and indeed
even negate the marriage, such as her infertility that she was aware of before the
marriage, or carrying infectious venereal diseases such as H.I.V., etc.;

 Wife’s parents failing to restrain, reprimand and correct her for her wrongdoings but
rather giving her full and unconditional support, and in turn falsely blaming the husband
and in-laws for domestic troubles;

 Wife and her parents being cynically manipulative, frequently changing their stand and
statements to take advantage of every opportunity to misrepresent and embarrass the
husband and his relatives with deliberate intent;

 Mindless and malicious opposition to each and every measure suggested by the husband
for settling the dispute, such as an application for Restitution of Conjugal Rights under
section 9 (asking wife to come back to live with husband) or for Divorce in the Family
Court, etc.;

 Wife always complaining of financial crunch and misrepresenting her situation, claiming
to be henpecked by the husband and his relatives;

42
 Intimidation: Wife’s side always ready to exhibit money and power and boast themselves
of having good contacts in the police, government and among politicians, with the
intention of intimidating the husband and his relatives to surrender to their unjust
demands;

 If the husband visits his wife at his in-law’s home for a peaceful meeting with the
purpose of bringing about a reconciliation, her parents would deliberately misrepresent
his visit to the authorities, police and courts as a threat and as part of an imaginary
campaign by him of intimidating them, with the intention of misusing unjust laws and the
whole system for harassing and blackmailing husband and his relatives;

 Wife’s relatives treating the husband with suspicion and denying him normal courtesy &
respect;

 No time limit bar to dispose cases of family disputes by Indian courts under the unjust
laws.

By filing a false complaint, fraudulent wives are affecting the credibility of the women who are
genuine victims, thereby depriving them of appropriate recourse provided by the law. For every
one woman filing a typical false complaint there are at least two women accused: husband's
mother and sister or a sister-in-law. Statistics may show that there are more women who are
falsely accused in dowry law complaints than the genuine wives who benefited from it. These
fraudulent, cruel, sadistic brides are an utter disgrace to womanhood and should not deserve any
sympathy from anyone as punishment of an offence is not based on sex.
A wife chooses an abuse and violent behavior to cause
physical, sexual, emotional damage and worry. Women who behave this way are often immoral,
selfish and egoist. Such a woman uses her fury, moods and impulses to control the people around
her and to be noticed. Such women choose deceit, fury and assault to get their own way and then
revel in the addicting exhilarating emotional unrest they create. Others, more insidiously, present
a personable public image to conceal their true character and behavior. These women lie,
connive, and extort to insult and humiliate their partner and some argue and use offensive

43
language in the presence of others including their children. Many steal or destroy their partner's
possessions. These women are driven by jealousy and view others as rivals. They treat their
partners as possessions and strive to isolate them from friends and family.
Many abusive women falsely accuse their partners of infidelity while they are indulged in affairs.
These women often abuse children or animals. Nearly all exhibit erratic mood changes, feign
illnesses or injuries, and most are practiced actresses. They are not sick; they play the triple roles
of a terrorist, a tyrant, and a victim.
At some point, she will falsely accuse her husband or partner of a crime. False allegations of
child abuse continue to be a common feature in divorce proceedings and the courts ignore the
problem. Now, the domestic violence accusation has become the woman's weapon of choice.
Apart from the monetary and property gains, domestic violence is so easy to fabricate and these
women crave the pleasure that comes from destroying their husband or partner.
Persons who have experienced an abusive
relationship often experience fear or shame or bewilderment. They have tried everything to
satisfy their wives but nothing works meet her unending demands. These people have found
themselves in a dilemma of what would happen next, riding on an emotional roller coaster that
they cannot escape. Most of such victimized husbands are sad, depressed, humiliated, and
exhausted. Many have lost every pleasure and happiness they had in the world and are worried
about their future. However, these abusive women have no limits.
Their outrageous behavior escalates to unbelievable
levels and in turn no one believes the victimized husband who is considered to be stronger and
more aggressive than a woman.
U.S. and British studies support this view that if the wife has chosen abuse or violence, the
husband should get a restraining order and end the relationship promptly and irrevocably.
When faced with the breakup of a
relationship, some women become vindictive, and abusive women become very dangerous.
When others (friends, relatives, police and judges) believe her, they join in, and the frustrated
husband or partner finds himself a victim of undeserved hatred, defamation, and abuse.
The other dangers are that some
women kill their partner or the partner's new companion, or the children, or the relatives and
show it as a suicide, accident or a robbery killing. Sometimes, women fake or inflict injuries on

44
themselves, or use an accomplice, a relative or new lover, to frame her husband or partner. The
most common behaviors are pressing false criminal charges, stealing or destroying property,
snatching children, and engaging in bad faith litigation.
In divorce, husbands must treat their abusive wives with steeled resolve and the courts must
understand this. These women cannot see and reason beyond them, so negotiation is impossible
and mediation is pointless. Unfortunately, the legal process regarding divorce requires
negotiation and mediation providing yet another way for these women to abuse their husbands.
Husbands must not accept telephone calls, conversation, visitations, reconciliation, or
appeasements from these abusive wives for this only bolsters their belief that they remain in
control of their husbands. The courts must realize that these women have no limits and derive
pleasure from destroying their husbands. Only unswerving firmness of purpose shows these
women that their power has ended.
Hon'ble Mr. Justice J.D. Kapoor, High Court of Delhi, had stated in his order of Savitri Devi Vs
Ramesh Chand and Ors., dated May 19, 2003 that such a petition is misconceived and is being
used as a tool to hold the entire household to ransom and jeopardy. Some excerpts of order are
provided below:
 It appears that the legislature was mindful of the fact and situation that this provision may
be exploited that it defined `cruelty' and for that purpose "harassment" falling within the
parameters of "intentional conduct" of such a degree that may either drive the woman to
commit suicide or cause danger to life, limb or health or cause `grave' injury. Of course
"health" means not only physical but mental also. But unfortunately, these provisions
have been abused by the Investigating and Prosecuting Agencies and exploited by the
women and their relatives to such an extent that these have proved to be most ineffective
in curbing the evil of dowry as well as disciplining the husband and his relatives to treat
the woman in human and humane manner and give the bride or wife proper respect and
honour.

 Before parting, I feel constrained to comment upon the misuse of the provisions of
Section 498A/406 IPC to such an extent that it is hitting at the foundation of marriage
itself and has proved to be not so good for the health of the society at large.

45
 These provisions were though made with good intentions but the implementation has left
a very bad taste and the move has been counter productive. There is a growing tendency
amongst the women which is further perpetuated by their parents and relatives to rope in
each and every relative- including minors and even school going kids nearer or distant
relatives and in some cases against every person of the family of the husband whether
living away or in other town or abroad and married, unmarried sistes, sister-in-laws,
unmarried brothers, married uncles and in some cases grand-parents or as many as 10 to
15 or even more relatives of the husband. Once a complaint is lodged under Sections
498A/406 IPC whether there are vague, unspecific or exaggerated allegations or there is
no evidence of any physical or mental harm or injury inflicted upon woman that is likely
to cause grave injury or danger to life, limb or health, it comes as an easy tool in the
hands of Police and agencies like Crime Against Women Cell to hound them with the
threat of arrest making them run here and there and force them to hide at their friends or
relatives houses till they get anticipatory bail as the offence has been made cognizable
and non-bailable. Thousands of such complaints and cases are pending and are being
lodged day in and day out.

 These provisions have resulted into 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 becomes dead. The aftermath of this is burdensome, insupportable
and miserable more for the woman. Remarriage is not so easy. Once bitten is twice
scared. Woman lacking in economic independence starts feeling as buden over their
parents and brothers. Result is that major bulk of the marriages die in their infancy,
several others in few years. The marriage ends as soon as a complaint is lodged and the
cognizance is taken by the police.

 For ages the cruelty, desertion and adultery have been ground for divorce which were to
be proved in civil courts. Now the police and that too its lower functionaries have been
made the decision making authority to conclude whether the harassment or the cruelty as
brought out in the statement of the complainant wife is sufficient to put all the relatives

46
including school going minor brothers and sisters of the husband behind the bar. Such
was neither the intention nor the object of the legislation.

 To start with, marital offences under Sections 498A/406 IPC be made bailable , if no
grave physical injury is inflicted and necessarily compoundable. If the parties decide to
either settle their disputes amicably to salvage the marriage or decide to put an end to
their marriage by mutual divorce, they should be allowed to compound the offences so
that criminal proceedings don't chase them if they want to start their marital life afresh or
otherwise. The past should not haunt them nor the hatchet they have buried should be
allowed to be dug up and mar their present life or future married life.

 Lastly in view of sensitivity of such offences and in order to avoid clumsiness in human
relations and viewing this problem from human and social point of view, and the law as it
stands today it is required that the investigation into these offences be vested in civil
authorities like Executive Magistrates and after his finding as to the commission of the
offence, cognizance should be taken. Till such a mechanism is evolved, no police officer
below the rank of ACP for the offences under sect on 498A/406 IPC and D.C.P for the
offence under Section 304-B IPC i.e dowry death should be vested with investigation and
where minor school going children are named, they shall not be arrested and be sent to
the court for taking cognizance and futher proceedings. Their arrest ruin their future life
and lower them in their self esteem. This court has even dealt with the bail applications
and prosecution of children merely for the fact that their names also figured in the
complaint lodged by the wife. In certain cases even grand-parents of the husband who are
in their eighties and nineties suffer this traumatic situation.

 There is growing tendency to come out with inflated and exaggerated allegations roping
in each and every relation of the husband and if one of them happens to be of higher
status or of vulnerable standing, he or she becomes an easy prey for better bargaining and
blackmailing.

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 These ground realities have pursuaded this court to recommend to the authorities and law
makers to have a review of the situation and legal provision.

An increasing numbers of cases of marital disputes are filed under the Dowry Prohibition Act in
India. By this, the Authorities criminally make themselves accessories and accomplices to
deliberate and malicious misrepresentations by the wife of every marital dispute as a case of
dowry harassment by the husband and his family members.
How can the law Presume that the cause of marital dispute is
invariably inordinate demands made for dowry by the husband or his relatives and friends? This
is Prejudice, not Law! This is criminality, not Law!
Usually, the wife registers a false complaint with the police on assurances from her parents,
lawyers and more importantly, malicious groups pretending to be public-spirited Women’s Aid
NGOs.
There is also a trend nowadays of the wife’s parents wanting her to divorce on trivial disputes by
making them into ego-issues or with the hope of ensnaring a better match and go to the extent of
filing a deliberately false 498 A case against their 'damaad' (son-in-law) and many, if not all, of
his family members, in order to intimidate and terrorize them to surrender to their unjust terms.

The law has no consideration for the husband and his relatives to prove other reasons of marital
dispute, and for proving that the difficulties have been created by the wife and her unreasonable
behavior and or demands.
The Law as it presently stands treats the husband and his relatives who have been blindly and
maliciously misrepresented as dowry-maniacal demons as stepchildren with no rights and bereft
of the rights and dignities that belong to them as citizens. As a matter of fact, the accused are
effectively robbed, without a trial, of their status as citizens, until they can, at great expense and
trouble to themselves, prove themselves innocent!

48
It is pretended that these amendments were enacted in order to “protect” women against a
widespread social disorder. As a matter of fact, these Prejudicial Anti-Laws target far more
innocent women than men; the mothers, sisters, sister-in-laws, etc., of the husband. This law in-
practice is against the sanctity and safety of most women, which can be reaffirmed by examining
cases of accused women under the 498A charges. And despite the pious humbug of “Feminist
and pro-Women NGOs” that agitated for these criminalities to be enacted, these satanic, diabolic
“laws” do not spare even minor girl children!
Not only do these Prejudicial Anti-Laws militate against humanity and justice, they also pretend
to absolve the authorities from any responsibility to investigate allegations of false complaints
made by the wife and her relatives, determine if wrongdoing was indeed committed and penalize
these real criminals for the marital disputes and other crimes that they have perpetrated against
the man and his relatives.
In the absence of a just and impartial investigation, the laws are massively and routinely misused
and cases of Crime against husbands are rapidly increasing day by day.
To deal with Dowry / Harassment cases, section 498A was
inserted into the Indian Penal Code. It reads 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. The aims of section 498A
were to help wife to stay with her husband, protecting wives from marital violence, abuse, and
extortionist dowry demands. But the actual implementation of this Act has left a bitter trail of
disappointment. Since there is no penalty or a fine for filing a false case, many women are
misusing this law to dictate terms. It is a myth that Sec 498A is protecting the women, in reality
it is against women themselves and also adversaly effect children and aged people. Reality is
498A is destroying marital harmony and gives no solution to solve the Problem of Marriage;
rather it is breaking Indian family system. If the husband has filed for Restitution of Conjugal
Rights under section 9 of IPC, or divorce and wife does not want to comply so she files for 498A
to blackmail husband to increase her bargaining powers. The IPC498A is so convenient to
misuse and worse than TADA or POTA, the lawmakers didn't consider the effect it's misuse and
how it will spoil the basic foundation of institution of marriage of Indian Society.

49
These biased laws and their unfair implementation is increasing the single parenting, distrust in
the ‘laws and legal system’ and marriage, dissatisfaction and insecurity among the law abiding
citizens and a great hatred and vengeance for country. It is taking a heavy toll on the sensitive
minds of young people who are now scared to marry with an Indian bride. Due to these faulty
laws, many innocent, lawful and reputed citizens are being defamed as culprits and criminals in
society. The whole drama also affects and involves other people of society who are colleagues,
friends and relatives of the accused and get shocked to hear the dowry harassment case on
accused which they can not believe as they have known the person very well. It is seen that the
society is altogether opposing such laws that are heavily misused in the interest of daughter-in-
law only, who terrorizes the husband, his family and the whole society. Abuse of Section-498A
Should Be immediately curtailed and law abusers should be punished without mercy to stop this
dangerous trend which is creating havoc in family, society and the nation.
Supreme court in its recent judgment acknowledged
and stated on record “The object of Dowry harassment laws are to strike at the roots of dowry
menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is
intended to be used as a shield and not as an assassin's weapon. If cry of wolf is made too often
as a prank assistance and protection may not be available when the actual wolf appears. Merely
because the provision is constitutional and intra vires, does not give a license to unscrupulous
person to wreck personal vendetta or unleash harassment”.
Outcomes of misuse of dowry laws and pseudo feminists propaganda is behind the destruction of
many Indian families. Many innocent men we have been insulted, put down, wounded,
investigated, financially ruined, assaulted, humiliated, and emasculated by females through the
unjustified legal proceedings for long enough. It is observed that trail in dowry harassment cases
does not start for years when Complainant the Daughter-in-law absconds after filing false case
and the husband & his family members would have to run after court for years together seeking
justice. Such men have borne it with patience in the face of outrageous pressure when their
children were snatched and given legal custody to vindictive wives. A husband is forced to pay
for the upbringing of children when he can not see or meet them. Grandparents, uncles and aunts
are denied to contact their grand kids, nephews, and nieces.

50
In majority of matrimonial disputes, the sacred institution of marriage gets transformed into a
profit making institution to satisfy the greed of blackmailers on the name of out of Court
settlements.
The innocent, harassed and victimised husband can use legal safeguards against any misuse of
laws by his wife. A husband shall do a police complaint mentioning blackmailing, threat for false
dowry case from in-laws without forgetting to mention if she had left the house after taking
jewelry, cash or others or whatever be the situation. Recording of husband's conversations can
also be done through miniature recording devices which would help to prove his innocence to
police and court. A husband shall write a detailed statement with every detail about his
innocence to police commissioner with copies to SHO, SSP, SP of his local police station, ACP,
DSP, IG and a copy to ACP and relevant police officers of wife’s local police station. He shall
state in his document mentioning Blackmailing etc. that he including parents and relatives are
under threat of falsely Implicating in Dowry related and other criminal cases. A complaint in
police station can be filed on basis of evidence. If it’s not possible then sends the documents
through registered post, and move to court to register the same under criminal procedure 156(3),
for necessary investigation. A criminal case in court under 156(3) under section 200 of CrPC can
be filed, with reference to police complains.
Cases to be filed against fraudulent wife:
 1st: Case on sections 191, 192, 193, 196 and 209 of I.P.C, i.e. 191. Giving false evidence,
192. Fabricating false evidence, 193. Punishment for false evidence, 195. Giving or
fabricating false evidence with intent to procure conviction of offence punishable with
imprisonment for life or imprisonment, 196. Using evidence known to be false, 199.
False statements made in declaration which is by law receivable as evidence, 200. Using
as true such declaration knowing it to be false, 209. Dishonestly making false claim in
Court.

 2nd: Case u/s 211 of I.P.C.: 211. False charge of offence made with intent to injure. IPC
211 is applicable which states that the wife is liable for imprisonment up to 7 years (as in
case of 498A). Filing false CRIMINAL case attracts the SAME punishment (as for the
criminal case for the accused) for the COMPLAINANT.

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 3rd: Separate case : Charging 120 B of I.P.C.,463, 464, 465, 466, 468, 469, 471 r/w 34 of
I.P.C. : 120B. Punishment of criminal conspiracy, 463. Forgery, 464. Making a false
document, 463. Forgery, 464. Making a false document, 465. Punishment for forgery,
466. Forgery of record of court or of public register, etc, 468. Forgery for purpose of
cheating, 469. Forgery for purpose of harming reputation, 471. Using as genuine a forged
document.

 4th: Case under section 340 Cr.P.C: Wrongful confinement. Cases under section 199,
200, 205 to 211 IPC are to be taken up by courts themselves(as per 195 and 340 of
Criminal procedure code, but supreme court has set some bar which allows private party
to put a case under section 199, 200, 205 to 211 IPC). The judge can take up the false
information case by himself, on base of an application u/s 340 Cr.PC, this would carry
more gravity since its a case initiated and executed by the judge. But if the respective
courts do not take up these cases (which is usually the case) then file for private cases
under sections 199, 200, 205 to 211 IPC (citing the bar Supreme court has set, enabling
private parties to initiate such cases.

 5th: 100[182. False information, with intent to cause public servant to use his lawful
power to the injury of another person, 389. Putting person in fear or accusation of
offence, in order to commit extortion, 418. Cheating with knowledge that wrongful loss
may ensue to person whose interest offender is bound to protect, 415. Cheating, 499.
Defamation, 500. Punishment for defamation, 503. Criminal intimidation.

 6th: Section 190 of Cr.P.C. Cognizance of offences by Magistrates allows to file a


complaint in front of the magistrate with all the evidences which can prima facie prove
that the case against you is the false one.

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In a landmark judgment, the Delhi High Court has ruled that lodging false dowry complaints
against men amounts to cruelty and can be a ground for dissolution of marriage. The court
granted divorce to a man who alleged mental cruelty by his wife. With this order, Justice O P
Dwivedi disposed of a four-year-old petition in which a woman had challenged a lower court’s
order permitting divorce to the husband. The wife admitted during the proceedings that she had
filed a false case of dowry against her husband, in-laws and their relatives in Meerut. As a result
of the false complaint, the husband and relatives were in jail for 10 days.
As a matter of fact, these “laws” were deliberately and
maliciously created with the specific intention of targeting men and providing an “assassin’s
weapon” to mischievous wives, and they are deliberately and maliciously worded in such a
manner that misuse of them is not abuse but the norm!
The dowry harassment laws are cognizable offences, in which the proof is not required and on
the basis of the statements of the wife, the police can put all accused in jail after arrest. But
surprisingly when such offences are considered severe crimes, usually the complainant makes a
compromise with accused. Social workers and counselors have acknowledged that educated
wives of middle-and high-income group families whose husbands can afford to shell out bring
most of false cases. These wives approach Crime Against Women (CAW) Cell or similarly
functioning ‘Mahila Kendra’ not to reconcile and live with husband, but to obtain their Streedhan
back, negotiate huge alimony and get divorce by mutual consent. CAW Cell or Mahila Kendra
would call husband for counseling until the girl's grievances are sorted out. If they don't achieve
it, usually they one-sidedly insist on FIR registration by strengthening the dowry harassment case
supported by false information while neglecting all facts of prevailing situations. Normally, the
Enquiry Officer will be indifferent to what a husband would tell or show them as evidences
towards his innocence, and all his sincere efforts to reconcile with wife would be totally
disregarded. Places like CAW cell have become place of humiliation and harassment for
innocent husbands and their family members who are falsely accused for dowry harassment by
wife. In one such case, the 17 persons of one family were arrested under dowry law and finally
the compromise was reached. It is increasing corruption in police and society as people allege
that police threatened to oppose or delay granting of bail unless the accused family coughed up
fairly hefty amounts as bribes. Others allege that many lawyers encourage complainants to
exaggerate the amounts due to them as Streedhan (woman’s property), assuring them that they

53
would get them a hefty settlement from the husband, provided they got a certain percentage as
commission for their services in coercing the husband’s family. The wife usually uses provisions
of 498A in the hope of enhancing her bargaining position against her husband and in-laws. In
most cases of settlement, wife withdraws her complain u/s 498a and gives divorce after getting a
huge amount. So the laws are misused for extortion of husbands with the involvement of women
10 organisations, police and lawyers. Such instances have been increasing and the Supreme
Court has identified them as “Legal Terrorism”. In such cases, the Lie-Detector Tests such as
Brain Mapping Test and Narco-Analysis test should be used to get to the truth of the story. After
seeing the plight of increasing number of harassed husbands and their family members, a Public
Interest Litigation Arjun Lal Vs State of Rajasthan70, was filed at Rajasthan High Court, Jaipur
bench for demanding such facilities for liedetector tests by police and state authorities which is
currently under consideration. As earlier Yasmin Hazarika, for long in charge of the Crime
against Women Cell (CWC) once said "We need safeguards. A massive, thorough inquiry is
absolutely essential before a case is registered". So the centers like CWC should be asked for
cases where they conducted thorough inquiry, and found out that cases were wrongly fabricated.
The rising numbers of couples are separating within
a short duration of marriage due to the temperamental issues and mental incompatibility in
between the husband and wife, when both decide amicably to leave each other. It is seen that the
wife’s parents and lawyers advice her to distort actual grounds for their separation for creating
the case of harassed wife due to dowry demand, physical and mental abuse, just to extort good
amount from the leaving husband. With large amount of money rolling in process in name of
maintenance and alimony, the marriage is made the business of daughter for many parents and
lawyers. It is like legalized prostitution through marriage related laws. Surprisingly it is
happening more in the educated urban families who are well capable to maintain themselves and
smart enough to mischief others. The large amounts of alimony and maintenance awarded to
wife by courts at the dissolution of marriages encourage other unsatisfied and mischievous wives
and their parents to instigate separation within short course of marriage. It is observed that even
if wife is well educated, capable to earn very good salary and have good financial support from
her parents then also she demands heavy amounts from her husband just to get richer and to put
pressure and harass him. The rewards in the laws should be so built that encourage long term

70
(PIL) DBCW Petition No. 2825/05
54
marriage relationship and not disruption of homes and society. It is a fact that wives usually use
the power of Section 498A to increase her bargaining power for getting large amounts as
alimony and maintenance. The large sum of money available in the process encourages all kinds
of mischievous acts including the misuse of severe criminal laws that spoil the golden period of
life, morals, faith, families, reputation, careers, financial conditions, children future, physical and
mental health, valuable time and resources of courts and police. The marital disputes where
498A is registered should be taken as cases with irreparable damage to marriage and no
possibility left for cohabiting. An example of awarding large alimony to wife proves fatal for
many more families in society when it is followed by greedy wives to ruin more marriages and
families.
In fact, divorce should be made easy to finalize within a time frame of 3-6 months maximum.
The grounds like mutual consent, incompatibility and frequent quarrels, infidelity and denial of
normal sex should be made easy grounds for divorce decree.
The laws dealing with marital problems and disputes should be made
balanced considering both husband and wife circumstances, with a provision for very stringent
punishment for its misuse to act as deterrent. In cases of Crime against Women, complain is
registered by wife against in-laws or mother-in-law, but Indian laws do not have equivalent
provisions to deal with cruelty to a woman by her sister-in-law or daughter-inlaw. So it is wrong
to say that anti-dowry laws provide safety to women; instead they provide an “assassin’s
weapon” to the daughter-in-law or ‘Bahu’. The fact is that around two out of every three women
prisoners in Tihar Central Jail, Delhi, are detained on an alleged dowry harassment offence and
similar situation is in the other jails throughout the country. The threatening, abusing,
maltreatment, conspiring, inflicting physical violence against husband and in-laws as well as
subjecting them to cruelty - physical, mental or emotional should be duly recognized and
considered under a new criminal law.
The accused under dowry laws crime are rapidly increasing in jails across India. They are kept
with hard-core criminals that severely impact their personality and thinking. Study should be
undertaken in all jails about these prisoners who are prosecuted under dowry related laws. Our
laws with loopholes encourage false complains by wives, as there is no such counter check to
investigate reality of any crime informed by wife. In most cases, the wife files false FIR under
pressure of parents who think that police case will weaken their son-in-law mentally so he and

55
his family would agree to their demands, be it related to money, property or family related
issues. During police investigation, the police should verify wife's charges in front of both wife
and husband during their meeting for reconciliation. Police should give chance to justify each
others’ move and should double check the motive of complainant otherwise once husband goes
to jail there is less chance to save marriage.
Unless allegations are of very serious nature and highest magnitude, the arrest should always be
avoided.
Innocent lives are spoilt when involved in lengthy legal proceedings and continuous court
appearances without getting reasonable result. There are no repercussions on the wife even in a
falsely registered case, as the wife gets a lawyer provided by government, a Public Prosecutor,
and she is not required to appear in court except extremely rarely for her statements. Even in a
false case, the husband and his family bear the brunt as the whole police “investigation” (sic!)
and legal process lingers aimlessly, which is itself a punishment for those who would never deal
with court and police in their lifetime. All family related matters should be dealt sensitively
within the shortest possible timeframe to minimise humiliation and harassment of old parents
and other family members.
The tradition of exchanging gifts in the marriage is prevalent and practiced commonly in Indian
society, which is accepted as a social custom. Under the Hindu Marriage Act, whatever gifts are
given to the wife by her parents and guests are considered as ‘Streedhan’, and are her personal
property. It is considered in Hindu society that daughter is gifted with a share in her father’s
property and assets at her marriage. So the bride’s father wants to willfully and readily gift
Streedhan to his daughter to increase his prestige and respect in society and in groom’s family.
Thus, the husband is not the “sole beneficiary” who can be later accused of demanding dowry
from his wife, as he by no means instigates the willful conduct of his in-laws. The Indian laws
charge husband and his family for demanding money, gift or property in marriage that is termed
as ‘dowry’. It’s difficult to determine whether the wife’s parents willingly gave the wedding gifts
or whether the husband demanded them.

56
When the marriage turns sour, the wife could manipulate her marriage gifts ‘Streedhan’ as
having been demanded by husband and in-laws who would be accused by misusing the law. She
can complain of harassment and torture for bringing insufficient dowry and that her husband and
in-laws were demanding more money, articles, or property. This entire story can be very easily
fabricated by the wife as it does not require any proof or evidence of mental torture or whatever
that has been said or done to her earlier. All these circumstances points out flaws in present laws
related to domestic violence. So the wife’s complaint that she was harassed for dowry needs to
be substantiated with other supporting facts of offence. The age-old custom of exchange of gifts
that is a ritual in India cannot be easily eradicated by legislations alone, but by promoting
continuous efforts and emphasis on education for a change in social values and family traditions.
Wives usually use the law u/s 406 of
IPC related to ‘Streedhan’ for extortion. After the dispute, the wife usually claims an exaggerated
list of jewelry and other items that were never given by her parents in marriage. In many cases,
when the wife separates and leaves her marital home, she takes away all her belongings and
jewelry including the jewelry of her mother-in-law also, which never belonged to her but later
denies possessing them. So these laws should ensure that the Streedhan of mother-in-law be
returned back to her and whatever is given to girl by her parents in marriage shall only be
returned.
The concept of ‘Streedhan’ derives from Hindu religious customs that has another concept of
‘Kanya Daan’ meaning ‘donating one’s daughter’. The ‘Kanya Daan’ is performed when girl
leaves her parent’s home after marriage, as she is, by her free consent, “given” to her husband, a
custom mirrored in the Western custom of a father giving his daughter’s hand in marriage to her
suitor. But in modern society, usually after separation, the wife returns back to her parents and
ask maintenance from husband. In case of their separation the ‘Kanya Daan’ is revoked so
husband would not be responsible to support or maintain his wife according to religious customs.
‘Kanya Daan’ also establishes the severe crime of wife’s parents of taking back their married
daughter with the intention of obtaining a permanent separation from her husband after marriage.
As per ‘Kanya Daan’, the wife’s parents should have no right on her after marriage so that they
cannot interfere. Their interference should be considered as a breach of trust under the law for
which they should be punished. As a thing or person is not allowed to be donated more than once
by the same person, the father cannot perform ‘Kanya Daan’ a second time, which means that the

57
girl cannot remarry. This reaffirms that the circumstances of separation and maintenance are
against the Hindu religious norms.
Domestic Violence Bill is in the process of becoming a law. This proposed legislation needs
proper review, to prevent it from reinforcing the already excessively malicious dowry
legislations. Mental cruelty and torture to husbands should be covered under the Domestic
Violence Act. The circumstances as provided below shall be considered: If a wife deserts her
husband without any reason, or if she has an affair with some other man, if she doesn’t cook food
and refuses to fulfill her marital duties, if she expropriates the husband’s belongings and
valuables, if she threatens to commit suicide, if by her actions she has demonstrated that she has
the potential of harming or injuring the physical or mental health of the husband and or his blood
relatives, then the safety of the injured party or parties (the husband and his family members)
should be ensured in this new law.
As in India, generally after marriage, the wife lives in a joint family in one house with the
husband’s parents and other family members, all the situations and circumstances should be
taken into account before drafting the rules of the game.
After marriage, she has to live with the present circumstances of house that she cannot compel
to change as per her desires. She cannot compel her husband to live in a separate house away
from his parents or attempt to alienate his affections from them or to abandon them and cease to
provide for them and their daily needs and care. Such elder abuse by daughters-in-law is rampant
today in Indian society and police and laws fail to give any security to those old aged parents.
The abuse of elders is
generally noticed in Indian families due to conflicts in between parents and the daughter-in-law
‘bahu’. When the new family member the daughter-n-law ‘bahu’ misuses the laws to pressurize
and dominates the house, it is a great cruelty, humiliation and harassment to elder members. The
daughter-in-law ‘bahu’ demands to live independently with her husband in a nuclear family and
neither she wants to follow any traditional customs of the house nor she wants to take care of her
old and sick in-laws. They even demand the old and sick in-laws not to visit their son and if they
do not comply with her demands then she with support of her parents and siblings often threaten
her husband and in-laws to get all of them jailed. Due to this, harassment and mental abuse of
elders in society is a growing epidemic. The lack of any social security system for elderly people
makes their situation much worse when helpless, old and sick people don’t find any support or

58
place to go when everyone ignores them. Due to situation created by laws and courts, police and
civil administration that supports daughter-in-law not parents in India, the feeblish and old
parents are left alone to die without any medical, financial or mental support and the government
and women organisations become deaf, dumb and blind to the cry and misery of these old
parents.
Under the dowry harassment law, the daughter-in-law can book her in-laws and husbands in jail
without giving any evidence. Even when they had never lived with daughter in law, then also
they were accused and 13 arrested under the complaints of dowry harassment. Even if the police
know that the harassment allegations are false, still they are helpless and arrest the old parents. It
is becoming a trend in India that in the fear of getting jailed, many parents have started
disowning their sons. But, even that is not protecting them. The daughter-in-law wants to fully
control her husband and demands that the old in-laws must not visit their son in her house and
her husband must not visit his parents. Police officers at ‘Mahila Thana’ refuse to register
complaints by a mother-in-law against her mischievous daughter-in-law. Many parents have
been jailed who stood firm and were principled enough to oppose their daughter-in-law. Many
mentally distressed and old parents commit suicide being unable to withstand shock, trauma and
torture as their high morals, principled and well disciplined lifestyle had never allowed them to
see such pathetic conditions in their lifetime.
Recently, the World Health Organisation (WHO) has highlighted the abuse of elders with false
police complaints by daughter-in-laws in India. It has specifically mentioned this injustice as a
Legal and Financial Abuse in its report on Elder Abuse called "Missing Voices"71 Many judges
including former Supreme Court Chief Justice K.N. Singh, former Karnataka High Court Chief
Justice and NHRC member Justice Malimath have asked for changes in this law saying that the
well intentioned laws are grossly misused leading to severe injustice to innocent old and sick
people.
Women's Organisations and Human Rights groups have turned a blind eye to these atrocities in
spite of the fact that most of them are women and old parents. The real victims of domestic abuse
could never go to police or courts for the justice but the urban power hungry selfish daughter-in-
laws misuse these laws as a weapon of assassin against old and weak citizens who find

71
URL: http://www.who.int/hpr/ageing/MissingVoices.pdf
59
themselves helpless. The proper investigation of complaints is the only remedy to get to the
truth. We fight for proper investigations by police before arresting and torturing innocent people.
Usually Mahila Kendras, women
organizations and the police “Crime Against Women Cell” adopt the method of pressurizing the
husband to sign an agreement that compels him to live with his wife separately from his parents
and agreeing to her unjustified demands. Such agreements should be revoked by getting a copy
and challenging them in courts.
[Note: When pressured to do so, one must demand instructions in writings to be taken to one’s
advocate for drafting the agreement to protect one’s own interest. Once you have got a written
instruction, write out a complaint to your local police station or to the Crime Branch with a copy
attached and demanding offences be registered against the instigators as co-conspirators,
collaborators, accomplices, instigators, abettors, accessories, etc., of the wife in perpetrating the
crimes of ALIENATION OF AFFECTION from one’s parents, CAUSING ONE TO
ABANDON ONE’S PARENTS, etc., all of which are serious crimes! If the police refuse to
accept, go away and send it in by registered post, and hand in copies to the concerned higher
officers. You can always demand for “Action Taken Reports” under the Right-To-Information
Act.]
Suicide rates of married men in India are higher than females and their proportion increases with
their age. As figures from Indiastat.com shows: for males in the age group of 30 to 44, the
Suicide rate is a whopping 508 per 100,000 persons; for women it is 220.
The Suicide rates among men in the age group of 45 to
59 are a shocking 1,812 per 100,000 persons and among women, nearly 550. However, among
divorced males the suicide rate is 164 per 100,000 persons, but even in this class, among females
the rate is only 63 per 100,000. While the suicide rate for separated men is about 167, for
females it is only 41 per 100,000 persons.
These figures clearly show that more husbands are compelling to suicide due to their disgusting
experiences with the police and legal system. It is due to unbearable harassment, mental torture,
disturbed family life, 14 male bashing, financial pressures, etc. They don’t get any support, but if
a woman should commit suicide then feminists, women organisations, civil authorities, legal
system and media would proactively come in support of victim’s family. Why are we ignoring
husbands just because they are males?

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If someone misuses a criminal law like sec. 498A & 406 of IPC, who accuses the husband and
his relatives with the motive of gaining hidden selfish goals, then in-effect it is a seven-fold
crime:
 Against her husband and his blood relatives,

 Against her children if any, who will suffer due to their separation and tension,

 Against the religious vows that she took during marriage to support her husband as a sati-
savitri and sita,

 Against the sanctity of the court,

 Against the police & public administration who has supported her as a victimised woman,

 Against society, the social system and values which tend to unconditionally trust and
sympathise with her as a victim,

 Against womanhood which is in question due to her wrongdoings.

Thereby, the misuse of laws like 498A is an offence that should amounts to seven times the
punishment provided in a 498A conviction.
The accused in a typical dowry law case are different members of family i.e., the husband, his
old and sick parents (saas-sasur), uncles, sisters of husband (nanad) who could be unmarried,
brother-in-laws of husband, sister-in-laws of husband (Bhabhi) and cousins.
Such a complaint must be properly checked for its authenticity that makes the whole family
accused in a criminal offence under which the conviction rate is mere 2% of cases and when
most end in compromise.
Due consideration should be given to family members who are respected and responsible citizens
of society and who have no criminal record.

61
All the family members should not be accused of criminal offence only on basis of the
allegations made by the complainant but must be given due opportunity to respond to the
allegations.
In cases when family members are accused by a complainant who lived with them, the problem
needs to be resolved with discussions and the complaint has to be earnestly investigated for its
authenticity before taking any step against family members.
The misuse of laws causes irreparable damage to victimised family
members, that can be prevented by providing stringent punishment to culprits that wreck the
foundation of marriage and thereby ultimately cause society at large to suffer.
The contradiction appears when the terms of a “mutual
compromise” are compelled to be “agreed to” between the complainant and the accused in most
of 498A cases in which offences are non-bailable, noncompoundable and cognizable.
The statistics show
that accused u/s 498A of IPC (Anti-dowry law) are convicted to around 2%.
The great deal of reconciliation and compromise efforts are done by
judges during anticipatory bail cases of husband and family members and during the family court
trials.The courts blindly insist on reconciliation neglecting the fact that after the intolerable
aggressions and humiliations perpetrated by the wife, her husband and his relatives can no longer
revert to a normal relationship with her.
They are also naturally distrustful of one who has shown such shameless miscreancy and are
naturally of similar further mischiefs by her if she would live with them.
It is seen that cases under section of 498A are repeatedly
registered against husband i.e., second time, third time or fourth time with inclusion of severe
charges in different sections of law related to crime against women.
It is pity that a criminal case is registered against a person
who has financially supported the complainant and allowed her to live at his place, which is
unique in criminal cases of matrimonial disputes. In matrimony, a husband usually provides the
financial support, place to live, manages the household work and renders safety to wife and his
children. He takes risk to work hard for his family. But rather the husband becomes vulnerable to
being abuse by malicious “laws” (sic!) when he, his parents and other relatives can go to jail on
basis of a simple unsubstantiated complaint made by his wife.

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Most of such cases in which stringent punishment is recommended under law, are settled for a
compromise. It means that the real purpose of law is not attained and thus it should be amended
to take care of the circumstances and preventing its misuse.
498A of IPC should be amended to make it bailable, compoundable
and non-cognizable to prevent harassment and torture of all family members by their arrest so
the case should be settled within a set timeframe. The delay in filing complain in domestic
violence case should be considered as a way of threatening the husband and family members by
making false allegations and charges. The new law should be well capable and provided to
handle such situations.
Needless to say, the laws in their present state are a negation of the husband's rights in marriage.
It’s not less than a blunder that such a situation should have been permitted to persist for the last
two decades and not much public protest and awareness has come for remedies and reliefs
against these crimes masquerading as “laws”! It’s a shame to talk of such laws in a democratic
country like India, a nation of Gandhi.
The Malimath Committee is ‘bothered’ by the offence being non-bailable and non
compoundable, which makes “reconciliation and returning to marital home almost impossible.”
The report of the Malimath Committee on Reforms of Criminal Justice System was submitted in
April 2003. Some of its excerpts are:
 In less tolerant impulsive woman may lodge an FIR even on a trivial act. The result is
that the husband and his family may be immediately arrested and there may be a
suspension or loss of job. The offence alleged being non-bailable, innocent persons
languish in custody. There may be a claim for maintenance adding fuel to fire, if the
husband cannot pay. She may change her mind and get into the mood to forget and
forgive. The husband may realize the mistakes committed and come forward to turn a
new leaf for a loving and cordial relationship. The woman may like to seek
reconciliation. But this may not be possible due to the legal obstacles. Even if she wishes
to make amends by withdrawing the complaint, she can not do so as the offence is non
compoundable. The doors for returning to family life stand closed. She is thus left at the
mercy of her natal family.

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 This section, therefore, helps neither the wife nor the husband. The offence being non-
bailable and non-compoundable makes an innocent person undergo stigmatization and
hardship. Heartless provisions that make the offence non-bailable and non-compoundable
operate against reconciliations. It is therefore necessary to make this offence (a) bailable
and (b) compoundable to give a chance to the spouses to come together.

The Shinghal Report, or the "Study Report on Crimes Against Women - Role of Section 498-A,
IPC in States of Delhi & Haryana" was submitted by Mr. N.K Shinghal who is a retired police
officer who was commissioned to report on the functioning and implementation of section 498A.
The Shinghal Report states that: “Most of the police officers, barring a few at senior levels and
the defense lawyers, considered both the sections to be not only inadequate, but also overtly
biased in favour of women, leading to their increasing abuse.”
The present law related to Adultery dismisses the adulterous
acts of a woman, and makes man purely responsible for their combined adulterous act. A married
woman involved in an extramarital relationship is legally innocent while the man who is having
an affair with her will be committing a criminal offence, and could be imprisoned up to five
years or fined or made to endure both under Section 497 of the Indian Penal Code of 1860.
It is pity that an adulterous woman
cannot be punished for even the abetment of crime. Such biased laws come in support of wife’s
adulterous behavior that would further increase the unfaithful attitude towards marriage resulting
in decline of moral values in society.
Both genders should be covered under preview of Adultery law, as both genders are equally
responsible to entangle into any such relationship that challenges the laws and rules of society.
Recently the Malimath committee report has recommended making adultery punishable for both
men and women.
The society, police and administration should recognize that Domestic Violence happens to man
as well. Many men are severely assaulted by their wives when he is kicked, bitten, hit with a fist
or object, being scratched, slapped, beaten up, and threatened with a knife, gun or other deadly
weapon to be used against them. Sometimes husbands are worried about being attacked in sleep.
Wife would also deliberately destroyed or damaged something of value to husband. She may
throw things at him or break objects during an argument. She may spend large sums of money

64
and refuse to tell why or what the money was spent on. The wife would make it difficult for
husband to know that where the important documents are kept. She may be extremely jealous
and unjustly accuse husband of flirting with others or having affairs. It becomes hard for him to
maintain relationships with others because wife doesn’t approve of them. She may stop caring
about the children and house, stop cooking and would withhold sex with husband without any
reason. She may force to have sex or made to do things during sex that made him feel
uncomfortable.
A Wife does mental abuse by telling husband that that he is worthless, can not do anything right,
can not have good money and life and she will leave her and does not want to live with her. It
hurts emotionally as well as physically. Continuing this pattern can result in depression,
substance abuse, loss of confidence, and suicide. It can also result in death at the hands of wife or
by some other who is induced to kill him. He shall seek a mental health counselor to deal with
domestic violence concerns and shall never be provoked. He shall take a legal advice and insist
police to record his injuries.
Many men stay in abusive relationships due to their concerns of their children’s' future as they
want to protect them. They fear leaving the abusive relationship because they assume the legal
system will not grant them custody because they are a man, and fear that visitation in the hands
of a controlling spouse will never be easy, or that they may never see their children again.
More laws should be made for
providing justice to harassed husbands. If the husband died of unnatural death within 7 years of
marriage, a case should be able to be registered against his wife for conspiring for her husband’s
death, and for mental torture and cruelty. If wife is given a large amount as alimony from
husband, then she should give in writing that she would support herself and possibly any children
from the received alimony so thereafter will never marry again in life to seek another support. If
she marries again, the whole alimony should be returned back to her ex-husband with interest.
The basic problem with the
present laws dealing with domestic discord and marital abuse is absence of providing effective
remedies through civil laws, as the whole matter has been put under the jurisdiction of criminal
laws, with very draconian provisions to make their implementation stringent.

65
Criminal laws like 498A have been massively used in cases that can be dealt with civil
procedures to put undue pressures on husband. This make cases much more complex to tackle
thus leading to delay to the final outcome. Marital problems and circumstances should be
categorized differently to deal properly, effectively, carefully and in timely manner. Out of
situations described below in different sections, the criminal law shall be enacted only in
conditions A, B, C, D and E; the remaining situations should be dealt with the civil court
procedures only.
 Death of wife or husband due to dispute in between them.

 Wife or husband survived the life threat that is related directly or indirectly to marital
problems

 Wife or husband often commits physical abuse, blackmail or makes threats.

 Marriage was based on fraud and wife or husband wants to dissolve it because of this
fraud.

 Wife or husband is cheating the other, as in case of an extra-marital affair or any other
misconduct and maltreatment.

 Wife or husband demands from other that what cannot be fulfilled.

 Onerous and excessive demand for donation of wealth in any form demanded by one
party from the other party as a prerequisite condition to the marriage, except by free and
mutual agreement, and where “onerous and excessive” must mean more than a fair share
of the other party’s assets as existing at the time.

 One party being abused, physically or mentally tortured and harassed by the other party
and his or her accessories, abettors, instigators, etc. who interfere maliciously in between
them to alter their present state of living standards, family and cultural values, living
place and family arrangements.

66
 Attempt by external or third party to alienate the affection of one of the parties to a
marriage from the other for whatever purpose and end, whether towards himself or
herself or otherwise.

 One party has abandoned the other without just cause.

 Parties agree in writing freely to live separately for any reason agreeable to them. L) One
or both party seeks a divorce.

 One or the other party is indifferent, refuses his or her affections to the other party
without just cause or fails to fulfill his or her obligations towards the other.

 A marriage shall be considered Null and Void by the wronged party on the discovery of
the following facts having occurred previous to the marriage and which the one party has
knowingly concealed from the other: Previous dissolved or nullified marriage; birth of
children; abortion or deliberate murder; abandonment of previous children; infertility or
impotence known to the party prior to the marriage; infection with mortal or venereal
disease due to the party’s previous promiscuous immodest adulterous behavior. These
shall not apply when the party who committed these acts or who had suffered them, had
disclosed them to the other party in writing prior to the marriage. However, the other
party, on the discovery of these facts, may freely legitimize the marriage in writing.

 A marriage shall be considered Null and Void on the discovery of the facts that a party
thereto had not sincerely consented or that a defect of intention occurred thus rendering
the union null and void by that fact itself.

 Separated parties are desirous or being reconciled.

 A party will be entitled to a fair share of the assets owned by the other where the first
party can show that the assets in question were increased due to her or his contributions

67
to the life and well being of the other, subject however, to the a fair share of only those
assets gained during the union.
 When two persons have cohabitated for any period of time, it shall not be assumed that
they are husband and wife, and no two persons shall be presumed to be united in
matrimony, unless they have been specifically united in a certified public ceremony
mandated or recognized by law.

It is seen that most cases of misuse of dowry laws are reported by urban families and wives who
are well educated, aggressive and keep threatening to go to police and court with false
complaints. Such wives are well capable of earning their own living, but still they demand heavy
maintenance amount from their husbands on separation. It is sometimes even more than what
husband earns can earn. The Supreme Court has also declared this malpractice as "Legal
Terrorism" only after knowing that such incidents occur on a large scale. But as usual, the
National Commission for Women denies any knowledge of such cases of misuse of the “Dowry
Laws”. The issue is not of misuse of law, but its greater propensity for the misuse. It can only be
controlled through proper channels like the women organisations, Crime against Women Cell
and Police. Out of these, the CAW cell and Women organisations will undoubtedly continue to
be biased and partial as they are exist for the wife’s benefit so they will be reluctant to act against
her and to share any such data or case openly. And police would do without much initial enquiry
with limited duties under the pressure and false propaganda of women organisations. It proves
that false feminism has highjacked the police, legal system, government and politics in India, and
husbands have no justice.
There is a great misconception in society about Crimes against Women, due to lack of efforts for
in -depth study, awareness of the true ground situation, and massive “Feminist” propaganda.
Government statistics of cases related to ‘Crime Against Women’ present a false image as it also
includes numerous false cases registered for gaining sympathy of law and other government
authorities and system. These cases are manipulated to show the aggrieved women, but actual
situation gets proven during the trial of cases.

68
The complete picture of Crimes against Women is produced by considering the judgment orders
in their trials that show only around 2% conviction.
Behind the false propaganda are the women organizations and NGOs that are chasing big funds
and aids in the name of welfare of women and children. Due to the corruption in the system,
organizations are getting easy money from government and other international organizations and
they are surviving by doing propaganda on the basis of wrongly manipulated facts and data.
The media sometimes unknowingly
publishes or promotes biased news sympathizing with the wife or daughter-in-law without
verifying any of the false allegations. So it would include full name of the husband and his
relatives with other information that causes irreparable damage to the entire family's image and
hard earned reputation. There are many such instances when false information of dowry cases
was published in newspapers.
Women organizations need to be apprised for their funding from government as such
organizations are working as political outfits to fulfill their selective agendas that are not in the
interest of society as a whole. In the name of women emancipation and empowerment, they are
promoting anti-family terrorism by recommending new amendments in laws to make more
biased laws that can be misused for blackmailing innocent citizens and furthering their agenda of
degrading humanity. Society has a right to information how each of the activities of such
organisations are funded and organized. The laws that consider offences related to social rituals
of marriage and family members should be frequently dealt with proper reviews and feedbacks
while considering consequences of its implications. Any amendments in such laws shall be
considered only after the proper reviews and feedback of all sections of society.
The laws that deal with ‘Crime Against
Women’ are widely acknowledged as being overtly biased laws in support of the daughter-in-law
alone. It is seen that such laws are made or considered for further 19 amendments with strong
recommendations and propaganda by the ‘National Commission for Women’ (NCW) and few
prominent NGOs and “feminists”, but reviews and opinions of other sections, institutions and
organisations are totally ignored and never considered by the government.

69
The meaning Of 'Gender Sensitivity' as per women organisations and feminists in India is as
follows:
 Adultery by a “WIFE” is not a crime.

 The filing of false cases (dowry/rape/domestic violence) by “WIFE” cannot not be


punished.

 The complaining woman's mother-in-law, sister -in-law or niece from the husband's side
are not women.

 Perjury, theft, fabrication, blackmail, extortion and kidnapping by women are not an
offence.

 Exposure of body-parts by women to entice/beguile men cannot be called exhibitionism.

 Women can sleep their way up the corporate ladder, and they are allowed to lie, steal and
fabricate without any penalty.

 Crimes of passion (including murder) by women can be blamed on the hormones


(therefore, beyond their control) and therefore cannot be punished.

 Unless it is the case of a woman against woman, the woman who turns on the tears is
always the right.

 The bigamous woman should be rewarded (latest scheme by the women's activists), and
not punished.

 Any attempts by the man to expose the truth about an abusive/deceitful woman is an
attack on her privacy/ modesty.

70
In a diversified and democratic country like India, it’s totally unjustified and insane to draft any
law or any amendment, only on recommendations of persons who are not representatives of all
social classes and segments and whose interests could be affected by these legislations. Without
such general inputs and considerations of the needs of all segments of society, such laws can
only prove to be biased, would result in greater injustice and chaos in society at large as they
disturb the very basic unit of any society, the family.
It is hard to understand the disproportionate role played by the NCW
in the making of such laws, which is not a representative of all sections, but is ostensibly a
government organization working for A MINORITY SECTION OF WOMEN and not for all
women.
Research studies should be undertaken in different sections of society for any amendment in
laws or for implementing new laws that deal with family life, as it impacts each and every one of
us.
A human rights violation is happening in this regard, and our administrative system is ignoring
this fact, as they usually say: “we cannot do anything, these laws are such, and even if we will try
to help the innocent people, the women organizations will abuse us all over”. So such is the
nexus of these government funded women organizations that even the police and civil
administration are fearful of them, afraid to raise the alarm.
It has observed though many Reports, Newspaper articles and
Judgments given by many High Courts and the Supreme Court that women are massively
misusing laws against husbands, a phenomenon that is rapidly growing.
An independent working agency at central government level
should be set-up to review atrocities against men that go unreported due to their gender only.
An organization should be setup to
undertake wide spectrum research for appraising the legitimacy of laws that provide “assassin’s
weapons” to such unscrupulous women.
A Statutory ‘National Commission for Men’ or ‘Manav Aayog’ should be set-up to safeguard the
rights of men i.e. Right for a livelihood, Rights in Marriage & Divorce, Right to Child Custody,
Right to live in his property, 20 Right to frustrate and deny unjust expropriations on and
extortions of, his assets, Universal Right to the Presumption of Innocence until proven guilty,

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Right to prove his innocence, Right to provide for and live with his parents and blood relatives
and dependents, including unmarried sisters, Right to terminate an abusive and injurious marital
relationship and Right to have his grievances and plaints be heard, investigated and acted upon
impartially against any other woman.
Expatriates (NRIs) gets harassed, tortured and blackmailed to give large amount of money as
alimony and maintenance to their wives when dowry harassment cases are registered against
them. Their plight is such that they can’t easily prove themselves innocent. Due to distance, they
are unable to deal properly with the authorities and legal procedures to prove their innocence.
These NRIs are harassed when their arrest warrant are released to Interpol and the Indian
embassies without doing any enquiry. In some cases, Indian authorities ask foreign embassies to
cancel their visa also. When they arrive in India they are arrested at airports as criminals, their
passports are seized and they are prevented from returning to their livelihoods abroad. Some of
them have severely suffered due to loss of their parents because of their mental harassments by
police and court dealings. In such cases, the wife demands maintenance amount up to Rs. 50
thousand or even 1 Lac per month. This should justify the false case of dowry demand on
husband who can pay Rs. 1 Lac every month as maintenance to his wife. They are not given
child custody, whereas in west, around 50% husbands fight for child custody and win, whereas
wife has to prove that she is capable to raise the kids. Due to this harassment, the USA State
Department and the Canadian Government have already issued “Travel Advisories” warning
their citizens against the misuse of 498A for extortion. International organizations such as the
United Nations’ World Health Organization and Amnesty International have taken official
cognizance of this malaise, which women organizations in India sedulously pretends to be
insignificant or nonexistent! It is really unfortunate for India to depict such a horrific image
internationally of the Indian Legal System.
It is unjustified for a wife to demand maintenance from a husband who is accused of a criminal
offence such as 498A and 406 of IPC. The accused husband shall not maintain and support the
same complainant, against whom he has supposedly committed the criminal offence. In cases of
divorce also, it should not be necessary to give maintenance to the wife. The marriage is the
result of a situation when both the bride and groom owe responsibility towards each other. As
per the seven vows that take place during the Hindu Marriage ceremony, both take
responsibilities towards each other. But after separation, both would stop being responsible to

72
each other as both shall act according to their free will. After divorce, even when wife is not
liable to fulfill any of her duties towards him, it is husband’s responsibility to provide regular
maintenance to ex-wife. If wife is not bound after divorce, then why should the husband be
bound to provide for the woman who is no longer his wife? And if she is capable to earn her
living then why should she ask extort money from the man who is no longer her husband?
The media exposure and the
cosmopolitan culture is highly inflecting the behavior of men and women and so the marital
relationship. The attitude towards marriage is rapidly changing all over India. Earlier they used
to debate on joint families breaking into nuclear families and these days the discussion is on the
nuclear families that are breaking apart further due to individualistic and selfish approach. It has
to do with the impact of overall society on a human character; the ‘Sati Savitri’ character of
sympathy, honesty, devotion, commitment, tolerance and sacrifice is no more a role model for
the modern wife. It is evident from the fact that women constitute 55% of the primary petitioners
who are filing for Divorce according to a recent story published in a national magazine. Today,
wives are seeking financial security and demanding high lifestyle comforts, money, gifts, luxury,
freedom, friendships, equal status etc from their marriages. This has made newly married
husbands to live under great mental pressure to fulfill wife’s demands apart from doing high-
tension jobs. Many young men are prone to much stress and responsibility today, when they
struggle to establish their family independently at a much younger age while living separately
from their parents due to their jobs.
498A of IPC is a cognizable crime which obliges a police officer to a person without a warrant.
In such cases, the police are under an obligation to take immediate action on receipt of a
complaint or of credible information, visit the scene of the crime, investigate the facts, apprehend
the offender and arraign him before a court of law having jurisdiction over the matter.
A total of 50,703 cases of Cruelty by Husband
& Relatives were reported in the country during 2003 with an increase of 3.0% over 2002.
Significant increase of 800 percent was reported from UT of Delhi over the previous year (from
135 cases in 2002 to 1211 cases in 2003). Nearly 16 percent of such crimes reported in the
country were reported from Andhra Pradesh (8,167) only. The statistical data of Incidence &
Rate Of Crime Committed Against Women In States, U.T.s and Cities During 2003 has the
following conclusions: Delhi city has highest 2888 incidences in country, ie 14.8% Percentage

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Contribution To All-Cities, and has 22.6% Rate Of Total Cognizable Crimes carried out in
Delhi. Surprisingly Kolkata has 725 incidences i.e. just 3.7% of all cities, and has 5.5% Rate Of
Total Cognizable Crimes. Mumbai has 881 crimes i.e. 4.5% Percentage Contribution To All-
Cities, and 5.4% Rate Of Total Cognizable Crimes. Bangalore has 1227 incidences, i.e. 6.3% of
Percentage Contribution To All-Cities and 21.6% Rate Of Total Cognizable Crimes in the city.
Hyderabad city has 1945 incidences which is the 2nd highest in country i.e. 9.9% Percentage
Contribution To All-Cities and 35.1% Rate Of Total Cognizable Crimes. It shows the Delhi
figures of 22.6% that is really exaggerated for which the real reasons need to be investigated
from authorities. Cities like Mumbai and Kolkata have around 5.5% rate of total cognizable
crimes. The great difference in figures of Delhi and these cities shows that certain procedures
have been adopted by the state authorities in Mumbai and Kolkata.
To save Indian families from marital discords, self-help
groups should be formed in every community, company and business. Promotion of awareness
programs on ‘Pledge of not taking dowry’ among the youth should be done through phone
helplines and Internet. Post-marital counseling should be provided to couples who are both
working, living independently and feeling stressed out due to work pressure, other financial and
family burdens. A joint declaration should be signed by both husband and wife that they have not
taken any dowry in marriage, and so their problems are not related to dowry harassment.
Various self-help are being formed by victims
of abuse of dowry law, that provides support though helplines in Delhi, Mumbai, Bangalore,
Hyderabad, Jaipur, Chandigarh and many other places.

74
5.3 Section 497 of Indian Penal Code needs Amendment
Section 497 of Indian Penal Code: Whoever has sexual intercourse with a person who is and
whom he knows or has reason to believe to be the wife of another man, without the consent or
connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of
the offence of adultery, and shall be punished with imprisonment of either description for a
term which may extend to five years, or with fine, or with both. In such cases wife shall not be
punishable as an abettor.
Section 497 of the Indian Penal Code punishes adultery. It is very astonishing to
note that in this case only the male partner is made liable for punishment. As the sexual
intercourse does not amount to rape, necessary implications follows that woman is willing and
consenting party to the act of sexual intercourse. Why then women is exempted from liability?
Moreover, even if she invites a male for this purpose, she will not be held guilty of any offence.
This is very ridiculous. A married woman has a greater duty than a stranger has, to abstain from
doing such an act so as to preserve the fidelity towards her husband whom she owes faithfulness
on account of marital tie. But in this case, her infidelity is excused completely and only stranger
(man) is held liable, even though both parties are equally responsible for commission of this act.
This is clear discrimination and this cannot be called protective discrimination either. Excluding
her from criminal liability is not based on any convincing logic or reason. Indian Penal Code’s
provision of ‘adultery’ exhibits double standards. Ranbir Penal Code, 1932 which is in force in
Jammu and Kashmir State penalizes such wife also. In Pakistan, Saudi Arabia, Iran, Egypt etc.
both participants i.e. man and woman are punished for adultery. It should be remembered that in
ancient Hindu Law Manu had provided for punishment for adulteress.72
It is beyond at least my comprehension that
why a married women alone has been given a blank cheque of open exemption to indulge in free
sex with as many as she likes and yet not be punishable as an abettor even though
notwithstanding that it was she who lured them and on the contrary men will be punishable under
all the circumstances? Can on earth there is be any such discriminatory law which openly
discriminates between men and women and punishes men alone even though women abetted it?
At least not in my knowledge have I ever heard of such a law!

72
Dr. H.G. Kulkarni, “Erratic Dimensions of Law” Vol:118, Cri LJ, p.29, January(2012)

75
The Fifth Law Commission of India in its 42nd Report, 1971 had recommended the retention of
Section 497 in its present form with the modification that even the wife, who has sexual relations
with a person other than her husband, should be made punishable for adultery. It also
recommended for revision of the current punishment for the same, which is five years, as it felt
that it is, “unreal and not called for in any circumstances.” The suggested modification was not
accepted by the legislature. Joint Selection Committee suggested equal culpability of both the
sexes for their promiscuous behavior, but it was of the view that the old punishment of five years
should be retained as it is.73
Justice Malimath Committee Report on Reforms of Criminal Justice System in 2003
recommended: “In view of the fact that an adulterous relationship cannot take place without the
consent of the married woman, it is highly discriminatory to hold only the man guilty of the
offence without making the adulterous women liable for her infidelity.”

Even the Apex Court in Sowmithri Vs. Union of India74 held; it is commonly accepted that it is
the man who is the seducer and not the woman.

This position may have undergone some change over the years but it is for the legislatures to
consider whether Section 497 should be amended appropriately so as to take note of the
transformation which the society has undergone. Justice Malimath Committee recommended
deletion of section 497 IPC and making adultery a civil offence only. The Fourteenth Law
Commission in 1997 in its 156th report on IPC also suggested by Joint Selection Committee. The
draft National Policy on Criminal Justice formulated by the Madhava Menon Committee also
recommended de-criminalizing adultery.75
Existing Law does not seem that it is competing with present era.
Malimath Committee and Report of the Law commission must be taken into consideration.
Necessary amendments be made to Sec 497 of IPC, so as to do away with irregularities, and in
the interest of doctrine of equality.76

73
Sanjeev Sirohi, “Section 497 of IPC Must Be Amended”, Cri LJ, p.79, June(2013)
74
AIR 1985 SC 1618
75
Supra note 34
76
Purushottam Kumar, “Women Must be Penalized in Adultery”, Vol:116, Cri LJ, p.58, February(2010)

76
The National Commission of Women had also criticized the British era law of being anti-
feminist as it treats women as the property of their husbands and has consequently recommended
deletion of the law or reducing it to a civil offence. Besides, even women must have the right to
sue anyone having adulterous relationship with her husband and not just men alone as most
unfortunately section 497 presently entails. At least now our Government must act and initiate
necessary changes in it by either making it gender neutral or decriminalizing it entirely. Media
should also play its part in this regard by debating it more vigorously and prominently to draw
the attention of our law makers in this regard. No other section of IPC so blatantly discriminates
between men and women with men here being at the receiving end and women being at he
gaining end. No men can ever stare continuously at women without her
consent; leave alone the question of having physical relationship.77

The law is being misused as a bargaining tool by those women who indulge in adultery. When
their nefarious acts are exposed they take recourse to misusing this law, thereby deflecting the
needle of crime on innocent husband and his family. This law being an exception in criminal law
presumes the accused as guilty until proven innocent; hence the women’s word is taken as a
gospel of truth. And there from begins the saga of unending trials, tribulations and destruction
for an innocent man and his family.78

77
Supra note 34 p.79
78
Dr. Shobharam Sharma, “Legal Terrorism in India: Need to Change the Law” Cri LJ, Vol:117, p.374,
December(2011)

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5.4 Protection of Women from Domestic Violence Act 2005: Cruelty to Male
Abuse of Domestic Violence Act
It is an accepted fact in the present world that domestic violence in any household, relationship,
living-in partners, and marriage should be construed as violation of human rights. As a result,
over the last few years, there is a consensus among various nations including members of the
United Nations that violence perpetrated against women has risen beyond expectations and that
there is an alarming increase in the violence committed against women. As such, most of the
countries have enacted various laws to prevent such violence being unleashed against women in
particular. In India, one such piece of legislation came to be enacted with effect from 26/10/2006
under the heading "The Protection of Women from Domestic Violence Act 2005". No doubt,
there are various offences covered under the provisions of IPC; to name one of them is the most
common 498-A of the IPC, which provides for punishment of the accused who has practised
sustained violence against women, whether the same has resulted in death of the victim or not.
Notwithstanding such laws, the act referred to above came into existence with an intention to
protect women victims at large from persons who have subjected them to violence which is
termed as domestic violence as the same does not encompass violence in general terms.

In this act, domestic violence includes actual abuse or threat that is physical, sexual, verbal,
emotional or economic. In other words violence need not be purely physical alone as trying to
deprive the woman of a decent life by not providing a decent maintenance also amounts to
domestic violence. In fact, Articles 14, 15 and 21 of the constitution guarantees rights of
equality, etc. This act draws strength from provisions of the said articles so as to provide equality
to women too. In the present act, any woman aggrieved in her domestic relationship can
complain to the concerned judicial magistrate whether or not she is living with her spouse, that
the said person is treating her with such cruelty which according to section 3 of the act defines
the term domestic violence.

Domestic violence in general includes harms or injuries, which may injure health, safety, life of
the aggrieved person with an intention to force her to meet any unlawful demand by the accused
including dowry, etc. However, domestic violence is not limited to mere abuse by a man,
physical or mental, even failing to look after any woman in a relationship with him by not

78
providing clothe, food or shelter deliberately will also be termed as domestic violence under the
act. Under this act, the magistrate orders protection of such women by ordering for maintenance,
etc. The magistrate is also empowered to pass ‘protection orders’ in favour of the complainant so
as to protect him/her from being further abused by the accused. Non-governmental organizations
help in aiding the aggrieved with medical help, legal aid, safe shelter, etc.

Whatever are the honest intentions of the legislature, it is seen that the provisions of the act is
misused and abused by the so-called victims. In other words, the provisions of the act does not
afford the accused to explain his stand for the simple reason that even if the woman is living
separately from him, she can still accuse her husband or anyone claiming under him of
continuing to threaten her and so on. Since the provisions of the act have a presumptive value,
most of the time, the accused is left defenseless.

As such, most of the time, the accused is at the receiving end and as the provisions are in
addition to whatever is in existence, this will amount to subjecting the accused to multiple
jeopardy. As a result, the accused has to not only pay for maintenance but also is liable to pay the
said compensation under the "Hindu Marriage Act".

The present act most of the time is used to harass the husband or any other member claiming
under him and to see that he yields to the illegitimate demands of the so called victim instead of
vice versa. Many a time, aged parents and other relatives are falsely accused of physically and
mentally torturing the so-called victim, thereby causing unwanted tension, which may result in ill
health of the aged parents and physical and mental distress to the family members of the
‘accused’. Although this act is devised to protect the interests of the ‘victim’, instead it causes
untold pain and misery to the ‘accused’ and his elderly family members. According to many
legal experts, this act although has some honest intentions of protecting the victim, it has caused
more harm than good due to its misuse, misapplication and misinterpretation of the act. When a
person is accused under the provisions of the act, no matter what may be the outcome of the
prosecution, the social stigma remains, thus affecting the future prospects of the ’accused’.

79
Thus again, the accused is tormented by the society even if the accusation is proven wrong. Poor
and uneducated women may have borne the torture of the husband’s family, but today many
well-educated women are using this act for unlawful purposes. They falsely accuse their
husbands and in-laws so as to gain substantial wealth by means of compensations. With such
wrong intentions, these selfish women are ready to jump at the smallest opportunity and file a
case. Such misapplication and misuse of the law is one of the main causes for the destruction of
many families. The act may need revision in order to prevent such misuse and misapplication of
the act. The true intention of this act was to protect domestic violence victims from further pain
and to thus relieve them from their misery and not to cater to the selfish needs of people who
would not mind accusing their own family of committing atrocities for the sake of gaining
financial benefits. Thus, only genuine victims of domestic violence must be identified and given
assistance; and such greedy complainants must be stopped from ruining families.
To curb the menace and cruelties
to women being the weaker sex several legislations have been enacted in India, i.e. section 498A
of the Indian Penal Code, Section 113-A of the Evidence Act, Section 125 of the Code of
Criminal Procedure, Dowry Prohibition Act and some other provisions in the Indian Penal Code
and also the latest legislation Protection of Women from Domestic Violence Act 2005 was
enacted. The latest legislation was enacted in consonance
with several International Accords and Conventions under the norms and principles adopted by
the United Nations for protection of women. The concept of protection of women against
cruelties and tortures have brought, us to a situation where all protective legislations are being
enacted for the benefit and protection of women only and the male persons and more particularly
male spouse are left at lurch and at the mercy of the women who can use and misuse the
legislations to suit their objects and ends. This is of course is not a generalization but from time
to time such situations do occur.79
After the Independence of India we have made greater strides in our social, economical, cultural
and educational front and also the advancement of science in its various forms had taken us a
long leap forward. The women of yesteryears are more and more educated, enlightened,
independent excepting in some grey areas of rural India and the women have started enjoying

79
Taranga Pandit, “Domestic Violence/Cruelty to male and need for Legislation” Vol: 117, Cri. LJ, p.242
August (2011)

80
their new found upliftments and overall developments in all possible ways. The developments of
education has also taken the women to the road of self – sufficiency and much needed
independency but in some areas it has also created more matrimonial rights between the male
spouse and the female spouse. For every petty action between male and female spouse, legal
provisions are used by women for causing distress and harassment to the male spouse and his
family members.80
The Protection of Women from Domestic Violence Act 2005 was enforced to protect the women
from harassment ranging from physical beating, emotional torture, and sexual abuse, denial of
basic amenities, verbal insults of calling of names, maligning characters and other offences but
no attention was given by the law-makers to the fact that males can also be subject to such
offences in hand of women in certain circumstances and as such the time has now come for
rethinking of the matter of protection of males from the hands of women as well.
Some of provisions of Protection of Women from Domestic Violence Act 2005 are so biased in
favour of women, which are misusing by them mostly. Here we will discuss some provisions of
the act; can you believe that a phone call can cost you Rs. 20,000? Not an International call, but a
domestic call for even a single minute can cost you Rs. 20,000. A Magistrate is empowered to
pass a protection order in favour of a wife and prohibit the husband from attempting to
communicate the wife including oral, written, electronic or telephonic contact under the
Protection of Women from Domestic Violence Act.81
If such husband against whom a protection order is issued makes a phone call to his wife, he has
committed an offence under section 31 of this act for which punishment could be not only Rs.
20,000/- but also one year of imprisonment. Moreover, this offence is cognizable and non-
bailable. Such husband making phone call to his wife can be arrested without warrant and would
not get bail easily as the offence is non-bailable. Does this disproportionate punishment not
offend our conscience?82
Under the Protection of Women from Domestic Violence Act, 2005 the aggrieved party is
always “any woman”. Man does not come within the purview of such definition. Aggrieved
under the Act is only for women. Even the preamble speaks for “rights of woman.” The
protection officers and counselors under the rules should preferably be a woman. The

80
Ibid
81
Section 18(d) of Domestic Violence Act 2005.
82
Section 31 of Domestic Violence Act 2005.

81
“respondent” under the definition means any “adult male person”, which means a complaint can
not be directed against the female. Is it not discriminatory? Where is law for the protection of
husbands? The whole scheme of the act and the rules made there under appear to be absolutely
one–sided.83
The worst part of the legal provision is to be found in Section 32(2) of the Act which provides
that on the sole testimony of the aggrieved person, in this example the wife, the Court may
conclude that the offence has been committed by the accused. This provision is against the
principles of natural justice. Such husband even if has not made a phone call and wife says
falsely that he has made a phone call to her, the Court convict the husband and punish him for no
crime. The Section 32(2) is totally biased in favour of females and against males. Law is
irrationally presuming here that females always speak true and males always lie? This is an
example of sex-biased law.
One more example of extreme favourable attitude of law towards females can be found while
passing protection order Magistrate can prohibit a man from operating bank lockers or bank
accounts held by both the parties, jointly be the aggrieved person and the respondent or singly by
the respondent without the leave of Magistrate. The Protection order would be justified only if it
prevented the man from operating joint bank lockers or joint bank accounts. But the protection
order can go further and also prohibit operating bank lockers or bank account held separately by
the man without the permission of the Magistrate. Man is expected to ask permission from the
Magistrate every time he wants to withdraw his own money from his separate individual bank
account. What more humiliation of a man can be done than this?84

Another substantiation of the act being unreasonable and excessive is that in relation to the right
of residence wherein by including the divorced wives, former girlfriend and former live-in
partners in the list of women facing domestic violence, this act gives enough leeway to women to
harass innocent men and turn the heat on their former partners. Now even a traitorous woman
cannot be thrown out of house as she can easily threaten her husband or in-laws of false domestic
violence charges as the act expressly mentions that in case of absence of any other evidence, her
sole testimony shall be relied upon by the magistrate in deciding the existence and extent of

83
Ibid, P 9
84
Section 18(e) of Domestic Violence Act 2005.

82
violence. The act almost gives a legal sanction to any relationship, which is not at all socially
acceptable like the live-in relationship. In addition to this the respondent is totally deprived of his
legitimate rights over his property as he cannot alienate or dispose it off if an
order is passed under the act. On the contrary there is an added liability on his part to arrange for
an alternate accommodation to pay the rent for the same.85

The concept of cruelty cannot to attributed to women only and the male can also be a subject
thereof from the hands of the women as was rightly pointed out by the Apex Court in a number
of cases where the Court held that cruelty or harassment need not be physical but mental torture
in a given case and is sufficient to cause cruelty. It can never be safely and conclusively said that
the males are beyond the domain of cruelties and tortures caused by women and the definition of
cruelties as has been pronounced by judicial decisions are not bestowed on male by women at the
present stage of the society where the male domination is fast losing its ground.86
The Parliament now in its wisdom recently
appreciated the problem now being faced by male spouses in particular although belated by
publishing on Sep. 2004. Mallimath Committee report which has made recommendation for
public suggestions and is one of its recommendation felt that a less tolerant and impulsive
women may lodge a FIR on trivial acts and as a result the husband and the family members may
languish in jail custody. To avoid such cruelties and tortures to males, the time is ripe enough to
enact an appropriate legislation to protect the males also from all kinds of cruelties and tortures
in the hand of women as and when they are so committed.87
In the grab of providing protection, this legislation in fact,
strikes at the very foundation of marriage by promoting intolerance and encouraging a
unnecessary litigation even for the petty domestic disputes. The law is based on a wrong notion
and assumes men as the sole perpetrators of domestic violence. This is altogether a wrong
impression and only confirms the gender bias in favour of women created by this law. Giving of
such sweeping legal powers to women while with-holding protection to male victims is

85
Protection of women from Domestic violence Act-2005-was it worth the
effort”,http/www.legalserviceIndia.com/article/1150-protectio-of-women
86
Supra note 39, p.243
87
Ibid

83
tantamount to systematic legal victimization of men. The law is wholly gender specific and
rules-out any possibility of domestic violence against a man. The law confers right in a woman
without imposing any liability, while a man is overburdened with discriminative liabilities with
total denial rights.88

88
Dr Avinash kumar, “Private violence, Public wrong & human reconceptualizing domestic violence in India, Cri,
LJ, Vol:116, p.278, September(2010)

84
5.5 Misuse of Medical Termination of Pregnancy Act, 1971
Rampant misuses of modern technology, a collective failure of medical ethics and inability to
shed notions of a male heir have pushed foeticide in affluent India to a shocking high. The
biggest shift has been in technology. Easy sex determination and latest abortion techniques have
reduced the risk rate for women, earlier exposed to fatal complications on terminations of
advanced pregnancies. Falling infant mortality rates and later the two-child norm also made male
children the most wanted. Tamil writer Vasanthi, author of influential novel Kadas Varai (till the
end) agrees that the “new-born culture mindset is that of extreme consumerism, which has
trapped even the educated element.” Mothers who don’t want to be mother of girl child often
aborted their child by these modern techniques. Sometime with or without the consent of their
husbands and family.89
Indian Government liberalized its abortion laws by adopting the Medical
Termination of Pregnancy Act, 1972. This landmark legislation empowered women by legalizing
induced abortion in India under certain conditions.90
Heavy misuse of MTP Act, 1971 has caused the female
foeticide and law for gender justice has become a weapon for sex determination in India.
Femalefoeticide is an organized crime by parents, doctors, clinics and above all society.91
Science and technology are
for betterment of mankind but those sophisticated techniques are misused by human beings
themselves for destruction of humanity. Ultrasound machines are needed to watch natural growth
and development of foetus and health of mother. But if those machines are used for detecting sex
of foetus followed by abortion then it is not defect of machine but those persons who are
operating these machines. Mothers are also culprits who want illegal abortion after knowing that
foetus is a girl child. Female infanticide has existed in India for centuries and modern scientific
devices have given another chance of killing before birth i.e. female foeticide.92

89
Dr.Supinder kaur, Female Foeticide a frightful reality, (2009), p. 35
90
Dr. Meeta Mohini, “Law against sex selection in India” vol: 118, Cri. LJ, p.302, October (2012)
91
Dr. Partha Pratim Mitra, “Child Sex Ratio, 2011: The Myths of Laws and The Reality of Politics”, Vol
117, Cri. LJ, p.254, August(2011)
92
Lily Srivastva, Law & Medicine, (2010), p.81

85
Law cannot change human mind. We have to think scientifically about our future. As sons are
chosen as first choice for parents only to enhance the lineage of their family, then whole
generation will be finished automatically if girls are not left in the society. Now the time is to
change our mindset and also to go against all the social taboos and religious dogmas. Apart from
those, parents avoid girls as they were worry about their marriage and their modesty at society in
future. Then if we can wipe out dowry system or abolish the outrage the modesty of women from
society then automatically girl child can take safe birth.93

93
Annual Report on PC & PNDT Act, Ministry of Health and Family Welfare, Government of India, p.6
(2005)

86
6. Judicial Response to Misuse of Legal Protection by Women
Ultimate objective of every legal system is to arrive at truth, punish the guilty and protect the
innocent. The investigating agencies and the courts start with the presumption that the accused
persons are guilty and that the complainant is speaking the truth. The role of investigating
agencies and the court is that of watch dog and not of bloodhound. It is generally accepted that
criminality amongst women is more damaging to wider society that’s why women are less likely
to be suspected of crime. When suspected they are less likely to be charged and prosecuted and
finally if prosecuted our criminal justice system treats them lightly in matter of punishment.94
Systems of law differ in scope,
jurisdiction, application etc for legitimacy. The well documented, culturally rich history of India
is full of incidents that have used laws for emancipation of women. Every aspect of law has an
impact on life of men and women. It is important for law makers to look at system in its
entirety95.
The significance of the
court’s directives goes beyond what happens to S.498 A. The conception as the silent suffering
sort who could do no wrong has influenced the administration of justice in both open and subtle
ways. The presumption of innocence is not available to accused but assumption of women’s
innocence is apparent in laws. When judges come to an issue relating to women, they will
invariably rely on their common sense of knowledge, derived from their social acquaintances. In
India women are considered as weaker section who can never do any wrong rather who are
harassed by men.96
Just as certain persons are thought to have a high probability of indulgence in criminal
behaviour, so also some other may have a greater likelihood of being victimized. Indian judiciary
is giving a lot of attention to the women victims but in these days men are victims and women
are committing cruelty to husbands and their family. The administration of criminal justice,
which is not much concerned with ‘men victim’ must be changed so that justice can be done
towards the male victims.97

94
Gagandeep kaur, “Crulety against Men-Legal Vacuum, Pbi. ULJ, Vol:4, p.169 (2010)
95
Talha Abdul Rahman, Women and Family Law, The Edoct, p.19-20,January( 2007)
96
Mrs K. Vijya Lakshmi and Mrs D. Radhika Yadav, “Emerging necessity of Gender Balance in Indian
Judicial system”, All India Reporter, p.544, May (2010)
97
Ahmad Siddqui, Criminology, (2005), p.544

87
But as time changes, judicial observations and remarks are showing anguish over the law. Here
are some recent judicial observations. The Supreme Court, in a relatively recent case, Sushil
Kumar Vs. Union of India98 held that object of the provision is prevention of dowry menace.
But as has been rightly contended by the petitioner that many instances have come to light where
the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal
of the accused does not in all cases wipe out the ignomy suffered during the prior to trial.
As observed in Malavi Hussain Haji Abraham Umarji Vs. State of Gujarat99, Padma
Sundra Rao and others Vs. State of Tamil Naidu and others100 while interpreting a provision
the Court only interprets the Law and can not legislate it. If a provision of law is misused and
subjected to the abuse of the process of law, it is for the legislature to amend, modify or repeal it,
if deemed necessary.
Apparent attempts by the bride’s side to implicate the groom’s kith and kin after things go wrong
between the couple have not escaped the Punjab and Haryana High Court’s notice.
Taking note of the
disturbing trend involving misuse of the process of law, Justice Harbans Lal observed it has been
authoritatively pronounced that it is general tendency on the part of the girls to involve all the
family members and near relations whenever there arises any difference between the couple and
thus, the provisions of section 406 and 498-A of the Indian Penal Code are being misused
flagrantly.101
The assertion, bringing out the sorry state of affairs, came on a petition filed by Krishna Wanti
and five others through Counsel R S Bajaj. The Petitioners had challenged the order passed by
Trial court, summoning them under section 319 of Code of Criminal Procedure.
Bajaj said initially the FIR in the matter
was registered against the boy, his family and near relations. On the investigation, the allegations
were found to be false. Accordingly, the Police filed the challan only against husband Ashok
Kumar. Subsequently, however, on an application filed by the complainant, the groom’s old
mother and his married sister-in-laws, maternal uncle and paternal uncle were also summoned.
Referring to the provisions of law, Bajaj argued before summoning anyone as an accused under

98
AIR 2005 SC 3100
99
AIR 2004 SC 3946
100
AIR 2002 SC 1334
101
“Legal lacunae being misused in dowry cases” The Tribune ,30th September 2010

88
section 319 of the Code of Criminal Procedure, it was essential for the court to be satisfied that
the evidence adduced on behalf of the prosecution, if un-rebutted, would lead to conviction of
the persons sought to be added as accused in the case. In the present case, the “satisfaction” was
totally missing. The court also did not take into consideration the fact that it was general
tendency on the part of the bride to involve the family and the near relations.102
As such the provisions of section 406
and 498-A of IPC dealing with subjecting a married woman to cruelty and criminal breach of
trust were being blatantly misused. The present case was classic example. After hearing the
arguments, Honorable Justice Harbans Lal directed the setting aside of the order passed by the
trial court, summoning six relations of the groom, The suggestions were also made to correct the
situation by Delhi High Court in Savitri Devi Vs. Ramesh Chand103 which are as follows.

 Marital offences should be bailable

 Offences to be compoundable

 Investigation by civil authorities

 Minor children not to be arrested.

In this case Delhi High court through Justice J.D. Kapoor recommended to the authorities and
law-makers to have a review of the situation and legal provision.
Supreme Court in Sushil Kumar Sharma Vs.
Union of India104 and others has suggested the following remedial measures by stating that the
courts have to take care of the situation within the existing framework.

102
Ibid
103
2003 Cri. LJ 2759 (Delhi)
104
AIR 2005 SC 3100

89
 The courts and the investigation agencies should not deal with the allegations casually.

 The Courts should not follow any strait jacket formula, any pre conceived notion or view.

Justice Markendey Katju has rightly expressed his opinion in Som Mittal Vs. Govt. of
Karnatka.105 The experiences have shown that the absence of the provision for anticipatory bail
has been causing great injustice and hardship to the citizens of U.P., for instance, often false
FIRs are filed e.g. under section 498-A of Indian Penal Code. There are some reported incidents.
Many cases remain unreported. But it is unfortunate that no authentic data is available of its
misuse. However, courts all over the country are experiencing that misuse of matrimonial
offences has reached to drastic level, which have reflected in remarks made by the higher courts
in several cases.
Similarly in Preeti Gupta Vs. State of Jharkhand106 Hon’ble Supreme Court has observed that
it is a matter of common experience that most of these complaints under section 489A, IPC are
filed in the heat of the moment over trivial issues without proper deliberation. We came across a
large number of such complaints which are not even bona fide and are filed with oblique motive.
Court also advised members of bar to maintain its noble traditions and they should treat every
complaint under S.498 A as a basic human problem and must make serious endeavour to help the
parties in arriving at an amicable resolution of that human problem. At the time of filing the
complaint the consequences are not properly visualized by complainant that such complaint can
lead to harassment by relatives, pain and agony to accused and his relatives. Allegations of
harassment by relatives, being at faraway places, should be scrutinized with great care. Criminal
trial leads to immense suffering for all concerned. Even ultimate acquittal in the trial may not e
able to wipe out the deep scars of suffering of ignomity. It is high time that the legislatures must
take into consideration the pragmatic realities and make suitable changes in the existing law.
A copy of this judgement is directed to be sent to the law commission and to the Union Law
Secretary, Government of India who may place it before the hon’ble Minister of Law and Justice
to take appropriate steps in the larger interests of society.

105
AIR 2008 SC 1126
106
AIR 2008 SC 1126

90
The Apex Court, in the case of Kanaraj Vs. State of Punjab107 observed as: “for the fault of the
husband, the in-laws or other relatives cannot in all cases held to be involved. The acts attributed
to such persons have to be proved beyond reasonable doubt and they can not be held responsible
by mere conjectures and implications. The tendency to rope in relatives of the husband as
accused has to be curbed.” Karnatka High Court, in the case of State Vs. Srikanth108 observed
as “Roping in of the whole family including brothers and sisters-in-laws has to be depreciated
unless there is a specific material against these persons, it is down right on the part of the police
to include the whole of the family as accused.”

Supreme Court, in case of Mohd. Hoshan Vs. State of A.P109 observed as “Whether one spouse
has been guilty 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.”

Delhi High Court, in Savitri Devi Vs. Ramesh Chand110 observed as: these provisions were
though made with good intentions but the implementation has left a very bad taste and the move
has been counterproductive. There is growing tendency amongst the women which is further
perpetuated by their parents and relatives to rope in each and every relative including minors and
even school going kids nearer or distant relatives and in some cases against every person of
the family of the husband whether living away or in other town or abroad and married,
unmarried sisters, sister-in-law, unmarried brothers, married uncles and in some cases
grandparents or other relatives of husband.

107
2000 Cri. LJ 2993
108
2002 Cri. LJ 3605
109
2002 Cri. LJ 4124
110
2002 Cri. LJ 4124

91
Punjab and Haryana High Court, in Bhupinder Kaur and others Vs. State of Punjab111 case
observed as: “From the reading of the FIR, it is evident that there is no specific allegations of any
act against petitioners, which constitute offence under section 498-A, I.P.C. I am satisfied that
these two persons have been falsely implicated in the present case, who were minor at the time of
marriage and even at the time of lodging FIR. Neither of these two persons was alleged to
demand of dowry article nor they alleged to have ever demanded any dowry article. No specific
allegation of demand of dowry, harassment and beating given to the complainant by the two
accused has been made. The allegations made are vague and general. Moreover, it cannot be
ignored that every member of the family of the husband has been implicated in the case. The
initiation of criminal proceeding against them in the present case is clearly an abuse of the
process of Law.”
Section 498-A of IPC is incorporated by the Legislatures basically in the interest of women and
to safe guards them from harassment. But, it has become somewhat counterproductive. In several
cases, women are harassed, arrested and humiliated on the complaints given under section 498-A
IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely
no authentic and prima facie material like medical evidence is required, but on such complaints,
in several of cases, number of women are being arrested. In cases of arrest of married young
women are being arrested. In cases of arrest of married young women, they might face some
problem from their husband and inlaws. In case unmarried women are arrested their marriage
prospectus would be badly affected and if Government servants are arrested their service
prospectus are affected. In the present case, only one woman is alleged to victim; but at
least four women might have to go to jail even before trial, effecting their reputation, subjecting
them to rude treatment in police station etc.112

In order to prove offence under section 304-B with the aid of presumptionunder section 113-B of
Indian Evidence Act, the prosecution must prove that soon before the death there was cruelty or
harassment. In the case on Mangal Ram Vs. State of MP 113there was no material to infer that
the deceased was subjected to cruelty soon before her death. Similar view was taken in Sham

111
2002 Cri. LJ 4124
112
Dr. Shobharam Sharma, “Legal Terrorism in India: Need to Change the Law” Cri. LJ, Vol:117, p.371,
December(2011)
113
1999 (3) Crimes 409 (M.P)

92
Lal Vs. State of Haryana114 the ingredients for the offence under section 304-B were laid down
in the case of Shambu Raj Vs. State of Rajasthan115 it appeared that it was a love marriage;
there was simple ceremony and no demand of dowry made; no specific allegation in the FIR
regarding demand of dowry. She was immediately taken to private clinic; the husband also
sustained burn injuries and hence held that the accused was not liable to be convicted.
It was rightly observed
by the Apex Court in Madhu Kisawar Vs. State of Bihar116 law is the manifestation of
principles of justice, equity and good conscience. Rule of law should establish a uniform pattern
for harmonious existence in a society where every individual would exercise his right to the best
of his advantage to achieve excellence, subject to protective discrimination. The best advantage
of one person could be the worst disadvantage to another. Law steps into iron out such creases
and ensure equality of protection to individuals as well as group liberties. Justice, equality and
fraternity are trinity for social and economical equality. Therefore, law is the foundation on
which the potential; of society stands.
Higher Courts of the country has laid down several guidelines, through
judicial pronouncements, to protect the liberty of the citizens and harassment of innocent persons
in the hands of unscrupulous litigants. They are discussed in detail hereinafter:

114
AIR 1997 SCW 1614
115
AIR 1997 SCW 1614
116
AIR 1996 SC 1864

93
6.1 Matters under Section 498-A, IPC are essentially civil in nature
When a criminal case is instituted either on complaint or on police charge sheet, summons are
issued for the appearance of the accused or if accused doesnot appear, processes to compel his
appearance are taken as provided under the code. However due to fault in police system, most of
the times, summons are not served properly and courts are bound to issue coercive process
against the accused. Higher Courts have stressed on the duty of the trial courts while issuing
processes. Hon’ble Supreme Court has held that matters under section 498-A, IPC are civil in
nature and are private in nature117. Therefore, in such matters it is the duty and obligation of the
criminal court to exercise a great deal of caution in issuing the process118.

117
Ram Gopal Vs. State of M.P, 2010, SCALE 711
118
G Sagar Suri Vs. State of UP, (2002) 2 SCC 636

94
6.2 No Casual Arrest
Arrest of a person is deprivation of his most cherished right of life and personal liberty,
therefore, arrest should be made in exceptional cases. Hon’ble High Court of Allahabad has
moved one step ahead by issuing directions to police authorities to make arrest only after
complying with newly amended provisions of Ss. 41 and 41-A of the Code.119 Further, the
Division Bench of Hon’ble High Court of Allahabad has directed to Magistrates to exercise great
caution and care while granting remand in cases of matrimonial disputes. Remand has to be
refused where arrest is made without complying with newly amended provisions of Ss 41 and 41
A of the Code and accused has to be released on bail.120

119
In Re: Matrimonial Disputes, Criminal Misc. Writ Petition No-3322 of 2010, order dated, 30-09-2011.
120
Shaukin Vs. State of U.P, Criminal Misc. Writ Petition No-17420 of 2011, order dated, 29-03-2011.

95
6.3 Mediation and Conciliation
Higher Courts have issued directions that matrimonial matters be referred to mediation and
conciliation and every effort be made by the police and trial courts to settle the disputes by these
measures. Court has specially directed to Magistrates to refer the matter to mediation and
conciliation centre when an application u/s 156(3) of the code is filed in the court.121 And when
magistrates comes to the conclusion that no such compromise or settlement is possible only
in those cases order for registering FIR be passed. Hon’ble Supreme Court has observed that
learned members of Bar have enormous social responsibility and obligation to ensure that the
social fiber of family life is not ruined or demolished. They must make serious endeavour to help
the parties in arriving at an amicable solution of the problem.122

121
In Re: Matrimonial Disputes, Criminal Misc. Writ Petition No-3322 of 2010, order dated, 29-03-2011.
122
Preeti Gupta Vs. State of Jharkhand, AIR 2010 SC 3363, para 31

96
6.4 Recommendation for Re-look
Since courts are seriously concerned with larger public interest, Hon’ble Supreme Court has
observed that there is serious need to re-look of entire provisions. Merely because the provision
is constitutional, does not give a license to unscrupulous persons to wreck personal vendetta or
unleash harassment. It may, therefore, become necessary for the legislature to find out ways how
the makers of frivolous complaints or allegations can be appropriately dealt with. Hon’ble Court
has directed the Law Commission of India to consider proper steps and for suitable legislative
amendments.123

123
Sushil Kumar Vs. Union of India, AIR 2005 SC 3100

97
6.5 Quashing of Proceedings where amicable settlement is arrived
Since offence under section 498-A of IPC, being non-compoundable, in cases of compromises,
proceedings of all related cases may be quashed under section 482 of Code of Criminal
Procedure by the Hon’ble High Court. This has been recommended by Hon’ble Supreme Court
in B.S. Joshi Vs. State of Haryana124, Manoj Sharma Vs. State125. In the later case it was
observed that where the dispute is purely personal in nature, (i.e. the element of the offence
being a crime against society is secondary), and the wife decides to compound the offence, as
there would be little likelihood of conviction, quashing of the offence should not be refused on
the hyper-technical view that the offence was not compoundable.

124
AIR 2003 SC 1386
125
2008 SC (Suppl) 1171

98
6.6 Recommendation to make section 498-A, IPC to be compoundable
At present offence u/s 498-A, I.P.C. is non-compoundable and therefore, even after the
compromise between the parties, accused has to face trial, however, it results in acquittal due to
hostility of witnesses. If the offence u/s 498-A, IPC is made compoundable, it will save the time
of trial courts and also the time of litigants. Hon’ble Supreme Court has suggested making
suitable amendments in this regard. In Ram Gopal Vs. State of M.P126 a copy of judgement has
been send to Law Commission of India to consider the matter. Hon’ble High Court of Allahabad
has also issued the same directions to State of U.P. Hon’ble High Court has suggested that
offence u/s 498-A, I.P.C should be made compoundable with the permission of the court.

126
2010 SCALE 711

99
6.7 Liberal and Human approach towards Accused
Higher Courts of the country are alive to the changing needs and pragmatic realities of the
society. Analysis of some recent judgments of Hon’ble Supreme Court reflects that, Court has
adopted humane approach towards accused persons, who are falsely implicated. The Court has
held127 that ‘girl friend’ or ‘concubine’ of the husband is not covered within the term “relative of
husband”. It may be a ground of Judicial separation but not cruelty u/s 498-A, IPC similarly; it
has been held that ‘petty quarrels’ does not amount to cruelty u/s 498-A I.P.C. In the instant case
wife gave birth to a male child and husband did not even come to see the child. It was held to be
no cruelty.128
Thus we can see a change in the approach of Apex Court as it is also feeling the seriousness of
the problem of misuse of legal provisions and in its several decisions it has emphasized the
responsibility of courts and prosecution and to proceed in these type of cases very cautiously.
Justice Katju has rightly suggested in this case to invoke the safeguards of anticipatory bail so as
to innocent family members could not be harassed.

127
U. Sovetha Vs. State by Inspector of Police, AIR 2009 (Supp) 1451
128
Manju Ram Kalita Vs. State of Assam, AIR 2009 SC (Supp) 2056

100
7. Women Organizations and cruelty to men
Chairperson of National Commission for women Girja Vyas has cautioned against indiscriminate
use of the anti-dowry legislations and advised women to resolve their marital problems through
mutual discussion. Feminist argue that in each of the aspect like marriage, divorce, child custody
etc, male dominating society has been able to device methods based on interpretation of texts or
by placing it in a social context to reinforce inequalities. Gender inequality of one type tends to
encourage or sustain gender inequalities of other kind129.
On the other hand harassed husbands argue that crime
against women cell or other organizations have become place of harassment for innocent
husbands and their family members. Wives approach organizations not for the settlement
but to negotiate huge alimony and to obtain her streedhan back. Women organization use dowry
laws against husband to pressurizing them to sign an agreement that compel him to live
separately with his wife agreeing to her unjustified demands. These organizations are reluctant to
act against the wife because they are working for her benefit. Women organizations are chasing
big funds in the name of welfare of women from Government or other International organization
and they wrongly manipulate data and facts. They are promoting family bound terrorism by
recommending amendments in various laws to make more biased laws that can be misused by
women, any amendment should be considered only after proper review of all sections of
society130.

129
Amarty Sen, The Argumantative India, (2007), p.220
130
Nishant Kumar, "Misuse of Anti-Dowry Laws to Blackmail Husbands", Independent Media Centre
(2006), p.6

101
8. Demand by Various Organizations for Protection of Husbands
The Save Indian Family Foundation (SIFF) comprises young, angry “harassed” husbands who
claim they represent 25 NGOs and 40,000 equally “tortured” persons like them. Their grouse:
they were being “betrayed” by those who framed laws and enforced them, that the law
erroneously assumed all wives were “innocent girls” who could only be sinned against, and are
not sinners131.
Seeking equality for men, again SIFF raised issue of gender bias on the International Men’s Day
in Chandigarh on 19th Nov. The SIFF along with Parivar Raksha Samiti, Chandigarh, demanded
institution of ‘men welfare ministry’, ‘National commission for men’, abolishment of anti – male
gender biased laws and replacing the word wife in law with spouse132.
The Representatives of the SIFF stated that though
the government earned 82 percent of taxes from men, it has not spent a single rupee for their
welfare or enacted a single law to protect men. On the other hand more than 98% of men are
in armed forces while less than 28 percent serve in media industry. The prostitution industry is
dominated by 99.98 percent women against 0.02 percent of men while 70 percent of women are
employed in reception, office telecom, school, bank etc, jobs having ease of work with fewer
burdens.133
Victims of misuse of anti-dowry laws and provisions of Indian Penal Code 1860 are demanding
that legislations should be amended and there should be such measures by courts, so that women
are not able to misuse these laws.Members of Save India Family Foundations and other
organizations are demanding that section 498A of I.P.C should be declared unconstitutional
because it is a violative of concept of equality given in Indian Constitution and there are chances
of its misuse.134

In Sushil Kumar Sharma Vs. Union of India135 A petition under Article 32 of Constitution was
filed to declare S.498A of Indian Penal Code to be unconstitutional and ultra vires or in
alternative to formulate guidelines so that innocent persons are not victimized by the
unscrupulous making false allegations and further stringent actions should be taken by Court

131
Swagta Sen, Arvind Chabra,”Unhappily Harried”, India Today, 31st Aug 2009
132
“Anti-Dowry Laws or ‘Frame-Up’ for Men ?”, The Tribune, 19th November 2009
133
Ibid
134
Gagandeep Kaur, “Cruelty Against Men-Legal Vacuum” Pbi. ULJ p.168, (2010)
135
2005 SCC (Cri) 1473.

102
against persons making false allegations under s. 498A. Apex court held that mere possibility of
abuse of a provision of a law does not per se invalidate legislation. It must be presumed; unless
contrary is proved that application of particular law would be done ‘not with an evil eye and
unequal hand’. In case of possibility of abuse of law ‘action’ not the section may be illegal.
Court by upholding the provision of Law may still set aside the action, order or decision and
grant appropriate relief to the aggrieved person.
Organizations for protections of men are also demanding the
setting up of the welfare ministry for men. They are also asking for a commission to address
men’s issues. Not only men but family of victim husbands are also harassed by wives by attack
of anti dowry laws specially sec. 498A. A circular issued by the Commissioner of Police states
that any arrest under S. 498A and S. 406 of Indian Penal Code will be made with prior
permission of a Deputy Commissioner of Police. Arrest of a person should be an exception and
not a rule. Now this measure will prove to be deterrent in arresting innocent people. Now mere
naming anyone in FIR is not sufficient to arrest anyone.136

According to the various men’s right movement in India, the laws suffer from the following
shortcomings:137

 Gender bias: The laws do not recognize cruelty and domestic violence against men. The
police in India almost never register complaints of extortion or violence against men in
domestic relationship, whereas registering a complaint under S. 498A (where a woman is
the aggrieved party) is widespread.

 Vague definitions of Dowry and Stridhan.

 Presumption of guilt. S. 304B, IPC assumes that if the accidental death of a wife happens
within 7 years of marriage, it should be assumed to be murder, unless the husband can
prove his innocence. Similarly, The Dowry Prohibition Act (section 8-A) states that
“where any person is prosecuted for taking or abetting the taking of any dowry under Sec

136
Hindustan Times, June 2008
Dr. Shobharam Sharma, “Legal Terrorism in India: Need to Change the Law” Cri. LJ, Vol:117, p.372,
137

December(2011)

103
3, or the demanding of dowry under Sec 4, the burden of proving that he had not
committed an offence under those sections shall be on him.”

 Duplication of existing laws: Laws already exist to deal with offences against
intimidation, violence, extortion and murder. A “dowry death” can be considered a
murder, and a demand for dowry can be considered amurder, and a demand for dowry
can be considered extortion under existing laws. The additional laws, instead of
reforming the police, mostly serve to shift the burden of proof onto the accused.

 A corrupt police force which often does no investigation before arresting innocent
people.

 Human Rights violations: In most cases involving Non-Resident Indians,their passports


are impounded and they are restricted from travelling outside the country.

 No penalties, in practice, for false complaints or perjury.

The language, content and structure of this law has enabled implication of thousands of innocent
families in the false cases. A complaint without any authenticity and without any weight of
evidence, is enough to arrest the husband, in-laws anyone else name in the complaint,
irrespective of whether a crime occurred or not. This has led to arrest of lakhs innocent citizens
(thousands of families), with many committing suicide as they are unable to bear the indelible
stigma on their honour and reputation. Statistics corroborate the above contention that: 5,01,020
people arrested under section 498A of IPC; 2,94,147 people competed trial under section 498A
of IPC; and 58,842 people convicted (out of this many must have appealed to higher courts).138

138
NCRB (2003-2006), Ministry of Home affairs, Government of India

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9. Conclusion
Law is multidimensional. It has social, economic and historical dimensions in addition to legal
dimension. Law is not always just, reasonable or rational. A reasonable and rational law a
century back may not be equally reasonable and rational law now. Law requires to be given a
fresh look periodically. Law requires to be pruned as per needs. The journey of law may not
always be linear and in right direction. Sometimes, it may travel in erratic manner. The
academicians need to expose and reveal unnatural and unreasonable growth of law. With view to
granting equal status to women, laws consciously or unconsciously are drafted having effect of
sex-bias.
The sole object of the women protective laws was to give legal protection to married women
against victimization by dowry greedy in-laws or by stronger sex. Women protective laws have
been justified with respect to the status of women in older times. But now the society has
progressed to such an extent that criminality amongst women have achieved a higher stand in
society and certainly have become influential but with respect to law is still where it was in older
times. The repeatedly misuse of legal protection can lead to new legal terrorism.
The women protective
laws have now become a handy weapon for many women to blackmail, harass, humiliate and
falsely implicate the innocent members of the in-laws family in dowry demand cases and extract
money fromthem before finally setting the marital dispute. Laws like Indian Penal Code, section
498-A and Domestic Violence Act 2005 have number of provisions to intimidate men and their
families. The effect of these laws are unjustified power in the hands of women to harass the
husbands and their family members in domestic disputed which irreparably damages the life of
husbands and their relatives and sometimes also becomes the reason for their death.
Judiciary also demands that if provisions
of law is misused and subjected to the abuse of the process of law, it is for the legislature to
amend, modify or repeal it, if deemed necessary. While it is true that women protective laws are
marking effectively for the well being of the women, there are allegation that these laws have
been misused by errant women, and police officers for nefarious ends. Under the Dowry
Prohibition Act both giving and taking are punishable offence but no one has been penalized till
date for giving dowry. The repeatedly misuse of anti-dowry laws can lead to new legal terrorism
that have been made by the Malimath Committee Report. The gross misuses are reported in

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respect of dowry related I.P.C. provisions. To prevent the abuse of these provisions the Malimath
Committee recommended that the sections be made bailable and compoundable to give a chance
to the spouses to come together. Undoubtedly, the dowry prohibition act is also being misused, it
can be said that all laws are capable of and subject to abuse and misuse.
The solution does not lie in dismissing the all
existing laws. It is desirable to provide an opportunity to estranged spouses to settle their dispute
amicably. To amend certain existing laws at the extent through which that laws can’t be misused
or abused.
The Indian justice system is still in search of an effective way to legally mitigate the dowry death
and domestic violence is- sued that has troubled the nation for so long. While the Dowry
Prohibition Act of 1961 proved completely ineffectual due to its unenforceability, the stringency
of Section 498-A went too far, creating a problem of legal abuse and uncovering a much deeper
problem of gendered social tensions and resentment within Indian society. These facts raise
the fundamental question of whether the Indian judiciary should continue to regulate the dowry
practice? However, in many regards, the last word on the efficacy of 498A and the current set of
dowry laws has not yet been spoken. A number of women have been able to free them- selves
from abusive relationships due to the law’s favorable language, even though the problem of
dowry deaths undoubtedly continues. The catalyst of the dowry death phenomenon is social in
nature, and under current conditions of limited law enforcement in India, can only be eliminated
through large-scale social change. While the place of the law is surely to regulate social customs
from causing harm, in the context of Section 498-A, the value of harshly criminalizing this
aspect of family law. For the time being, the Supreme Court of India has promised to force the
government to reassess the law. Until then, it can only be hoped that the law enforcement of
India miti- gates the adverse effects of 498A, while realizing its potential to keep the Indian
family from further crises.
The object of the protective legal provisions was prevention of the crimes against
women, but many instances have come to light where the complaints are not bonafide and have
been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe
out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to
the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of
the wellintentioned provision. Merely because the provision is constitutional and intra vires, does

106
not give a license to unscrupulous persons to wreck personal vendetta or unleash harassment. It
may, therefore, become necessary for the legislature to find out ways how the makers of
frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to
take care of the situationwithin the existing frame work. As noted above the object is to strike at
the roots of crime against women. But by misuse of the protective legal provision a new
legal terrorism can be unleashed. The provision is intended to be used a shield and not an
assassin's weapon. If cry of "wolf" is made too often as a prank assistance and protection may
not be available when the actual "wolf" appears.
It cannot be lost sight of that ultimate objective of every legal
system is to arrive at truth, punish the guilty and protect the innocent. There is no scope
for any pre-conceived notion or view. It is submitted that the investigating agencies and the
courts start with the presumptions that the accused persons are guilty and that the complainant is
speaking the truth. Certain statutory presumptions are drawn which again are rebuttable. It is to
be noted that the role of the investigating agencies and the courts is that of watch dog and not of
a blood hound. It should be their effort to see that an innocent person is not made to suffer on
account of unfounded, baseless and malicious allegations. It is equally undisputable that in many
cases no direct evidence is available and the courts have to act on circumstantial evidence. While
dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in
view.

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