Section 498-A & related legal issues

  • Section 498-A & related legal issues

Litigation in relation to section 498A, 406 is increasing exponentially. Such a steep rise in litigation has made section 498A itself an area of expertise. People want to know more than ever:-

  • How to register a perfect FIR against husband and his relatives?
  • How to extract more money from husband and in-laws?
  • How to protect oneself from false dowry, 498A or domestic violence case?
  • What should a foreign citizen or NRI do if false FIR is registered?

Although we have tried to explain certain aspects of section 498A, this article is not to be treated as a legal advice. We have given perspectives from both husband’s and wife’s point of view. This is just to present how the things are going on nowadays in India.

Section 498-A was introduced in the year 1983 because of increasing the number of dowry deaths. It was observed by the joint committee of the houses that there were innumerable cases involving cruelty by husband and his relatives on wife out of which only few cases of murder or suicide et cetera were reported while all others remained unreported because of no provision to assist hapless women. It was therefore proposed that Indian Penal Code, the Criminal Procedure Code and Indian evidence act should be amended to effectively deal with dowry related crimes against women.

Ingredients of section 498-A

Section 498-A provides for punishment to the husband or his relatives if the subject of women to cruelty for the purpose of dowry. The term cruelty has been defined in the explanation of section 498-A. Cruelty may be any wilful conduct which may lead to suicide of a woman or any grave injury or danger to life or health (whether mental or physical). Cruelty may also include harassment of a woman for the purpose of any unlawful demand for any property or valuable security. This means that a case of assault or injury to wife will not attract section 498-A, although other sections like section 323 of the Indian Penal Code might be attracted. There are specific ingredients of section 498-A and those ingredients must be existing in the complaint to initiate proceedings under section 498-A. For example – wife says she was ill treated and was not given good food. This does not attract section 498-A.

Who can register section 498-A case?

Any person, for example uncle, father, brother, mother of the wife can complaint to the police and initiate criminal proceedings against husband or his relatives under section 498-A. Under no circumstance, it can be said that complaint is not maintainable merely because it has not been initiated by wife herself. The courts have generally observed that there must be specific allegations in the complaint under section 498-A against the husband or his relatives, this is not a rule. There may be a circumstance when a woman complains of continuing and unending acts of mental and physical cruelty by husband or his relatives. In such circumstances long-suffering becomes a continues process and therefore the exact date, time and month and exact allegations may not exist.

For conviction under section 498-A, ingredients of section 498-A must be proved by convincing and direct evidence. Circumstantial evidence, where death or grievous hurt has not occurred, generally results in acquittal and not conviction. Further, it must come in the complaint (First Information Report) and evidence that the wife suffered because of offense under section 498-A. All the relevant material must be placed on record as evidence to ensure conviction.

Wife’s perspective and law points in her favor in section 498-A case

Let us consider first what the wife should to ensure that prosecution results in conviction –

  • The First Information Report or the complaint must be drafted by an expert lawyer who deals with cases relating to dowry and dowry death. This is extremely important as the police may refuse to register an F.I.R. in case it is not properly drafted. If the police registers an F.I.R., High Courts will quash the F.I.R. in case the specific ingredients of the offenses in the F.I.R. are not made out.
  • Make allegations of section 376 against male members. Do not make allegations under section 377. They do not work in court and section 377 is recommended by non-experts in section 498A.
  • Give all evidence in police inquiry. Make sure you are able to prove jurisdiction in the first complaint itself.
  • Do not file several complaints. Just one good-solid-498A-complaint.
  • Always get medico-legal reports conducted by a government hospital in case husband or any family member beats you.
  • Never delay the registration of FIR. This is very important in dowry case.
  • Never leave household (company) of husband, even after fight and registration of FIR. As a wife, Indian laws have given you so many legal rights. Exercise those legal rights.
  • In police investigation, after F.I.R., make an application that the dowry articles and istridhan have not been recovered. Under certain circumstances, this may lead to dismissal of the anticipatory bail, a regular bail or even quashing petition.
  • Get an expert section 498-A lawyer to oppose anticipatory bail, regular bail or quashing petition filed by the husband or his relatives. Each case is different from the other. An expert lawyer may bring out facts and legal points by which you can win or lose the case.

How to prevent section 498-A and protect your friends and relatives?

There are several ways by which husband or his relatives can protect themselves and prevent the adverse ramifications of section 498-A.

  • If there are chances of First Information Report being registered against the husband or his relatives, they can file blanket anticipatory bail along with prayer that either they should not be arrested in case First Information Report is registered against them or they should be informed beforehand (example 10 to 15 days before registering F.I.R.) that a First Information Report is being registered against them or they should not be arrested for, say 10 to 15 days, in the event an F.I.R. is registered against them and in this circumstance they should be allowed to take a fresh anticipatory bail after the registration of F.I.R..
  • The accused persons should file anticipatory bail (if they have not been arrested as yet) or regular bail (in case they have been arrested) as soon as possible. Success rate is high in High Courts because 498-A is not considered to be a heinous offense.
  • The husband or his relatives can file quashing of First Information Report or criminal complaint against them in a High Court. Sometimes lawyers advice clients that clients must get anticipatory bail or regular bail before filing the quashing petition in a High Court. However this is not so. In appropriate cases, High Court has jurisdiction to quash the proceedings (a) without the accused person getting anticipatory or regular bail and (b) before the police has filed charge-sheet (challan) in the lower court.
  • Quashing of FIR works exceptionally well in the case of Non-Resident Indians (NRI) and foreign citizens who got married in India. Success rate of quashing petition filed by Non-Resident Indians (NRI) and foreign citizens is higher than others because of jurisdictional issues involved in such cases.
  • In case a person becomes Proclaimed Offender  (PO), quashing of PO order can be filed in High Court only as district courts do not have power to entertain quashing of PO order.

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