140-A5 Committee on Petition _English - Rajya Sabha Secretariat ...

C.S.II. - <strong>140</strong>RAJYA SABHACOMMITTEE ON PETITIONSHUNDRED AND FORTIETH REPORTONPETITION PRAYING FOR AMENDMENTS IN SECTION 498AOF INDIAN PENAL CODE, 1860(Presented on the 7th September, 2011)RAJYA SABHA SECRETARIATNEW DELHISeptember, 2011

CONTENTSPAGES1. COMPOSITION OF THE COMMITTEE ........................................... (i)2. INTRODUCTION .................................................................... (iii)-(iv)3. REPORT ............................................................................. 1-394. MINUTE OF DISSENT BY SHRI P. RAJEEVE, MP AND MEMBER OFTHE COMMITTEE .............................................................40-425. APPENDICESI. Petition praying for amendments in Section 498Aof Indian Penal Code, 1860. ......................................... 43-50II.Comments on the petition received from Ministryof Home Affairs .......................................................... 51-59III.Comments on the petition received from Ministryof Women and Child Development ................................ 60-73IV. Minutes of the meetings of the <strong>Committee</strong> ..................... 75-1046. ANNEXUREI. List of organizations/individuals appeared beforethe <strong>Committee</strong> ............................................................ 105-107

COMPOSITION OF THE COMMITTEE(2010-11)1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Ram Vilas Paswan3. Shri Nandi Yellaiah**4. Shri Rajeev Shukla5. Shri Avinash Pande6. Shri Balavant alias Bal Apte*7. Shri P. Rajeeve8. Shri Veer Pal Singh Yadav9. Shri Paul Manoj Pandian10. Shri RajaramMEMBERSSECRETARIAT1. Shri Deepak Goyal, Joint Secretary2. Shri Rakesh Naithani, Joint Director3. Shri Ashok K. Sahoo, Deputy Director4. Shri Goutam Kumar, Assistant Director

INTRODUCTIONI, the Chairman of the <strong>Committee</strong> on Petitions, having been authorised bythe <strong>Committee</strong> to submit the Report on its behalf, do hereby present this Hundredand Fortieth Report of the <strong>Committee</strong> on the petition signed by Dr. AnupamaSingh, a resident of New Delhi praying for amendments in Section 498A of IndianPenal Code, 1860.2. The petition was admitted by Hon’ble Chairman, Rajya Sabha on 11thNovember, 2010 under the provisions of Chapter X of the Rules of Procedure andConduct of Business in the Council of States. In accordance with Rule 145 ibid,the petition was reported to the Council on 15th November, 2010 by Secretary-General after which it stood referred to the <strong>Committee</strong> on Petitions forexamination and report, in terms of Rule 150 ibid.3. The <strong>Committee</strong> issued a Press communiqué inviting suggestions frominterested individuals/organizations on the subject matter of the petition. Inresponse thereto, more than two thousand memoranda were received by theSecretariat. The Secretariat scrutinised those memoranda and a gist thereof hasbeen suitably incorporated in the Report.4. The <strong>Committee</strong> heard the petitioner and others on the petition in its sittingheld on 29th November, 2010. The <strong>Committee</strong> heard the Home Secretary in itssitting held on 17th February, 2011. The <strong>Committee</strong> also heard certainorganizations/ individuals, who had submitted their memoranda on the issuesraised in the petition in its sittings held on 3rd and 29th June, 2011. On 25th July,2011, the <strong>Committee</strong> recorded the views of representatives of NationalCommission for Women and National Commission for Protection of Child Rightson the petition. The <strong>Committee</strong> heard the Secretary, Ministry of Women andChild Development on 1st August, 2011.4.1 The <strong>Committee</strong> in its sitting held on 30th August, 2011 took up forconsideration the draft Report. The amendments proposed by Shri P. Rajeeve,Member of the <strong>Committee</strong>, to certain paras of the draft Report were consideredbut could not be agreed to. At that stage, the said Member observed that hiscomments/amendments may be treated as ‘Minute of Dissent’ and appended to theReport. The <strong>Committee</strong> agreed to the request of the Member. Thereafter, the<strong>Committee</strong> adopted the draft Report.

5. The <strong>Committee</strong> while formulating its observations/recommendations, hasrelied on the written comments of the concerned Ministries, National Commissionfor Women and National Commission for Protection of Child Rights, oralevidence of witnesses–official as well as non-official, feedback received inresponse to the Press Release, observations of the Members of the <strong>Committee</strong> andinteraction with others.6. For facility of reference and convenience, the observations andrecommendations of the <strong>Committee</strong> have been printed in bold letters in theReport.NEW DELHI;August 30, 2011.Bhadrapad, 1933 (Saka)BHAGAT SINGH KOSHYARIChairman,<strong>Committee</strong> on Petitions.

REPORTThe petitioner, Dr. Anupama Singh, a resident of New Delhi has submitteda petition dated 7th July, 2008 seeking amendments in Section 498A of the IndianPenal Code (IPC), 1860 (Appendix-I)1.1 The petitioner has submitted that Section 498A, IPC, which was inserted inIndian Penal Code, 1860 way back in 1983 to protect married women from dowryharassment in their matrimonial home, has been grossly abused and misused by alarge section of unscrupulous people for their ulterior motives. She has cited thefollowing types of misuse:-(i)(ii)to alienate husband from his parents so as to gain control over hisfinance and social behaviour including his lifestyle;to save her marriage when concealment of true facts about bride’smental health and educational level are unearthed by the groom andhis family;(iii) as a bargaining tool by those women who indulge in adultery;(iv) to seek divorce in order to revive any pre-marital relationship whichwife may have had and unwillingly given her consent for marriage inorder to satisfy her parents;(v)to deny custody of child/children to the father and his family in caseof marital discord at the time of pending of divorce petition; and(vi) to inflict suffering on husband and his family to settle the scores andto take vengeance.1.2 The law, as it appears, is cognizable, non-bailable and non-compoundableand thus gives power to the Investigating Officers in police stations to arrest thehusband and his relatives whose names are mentioned in the First InformationReport (FIR) by the woman or her family under Section 498A.1.3 She has cited low conviction rate of cases filed under Section 498A tobuttress her contention about its misuse. In support of her contention, she has alsocited observations of Apex Court, Reports of Justice Malimath <strong>Committee</strong> andOne Hundred and Eleventh Report of Department-related Parliamentary Standing

<strong>Committee</strong> on Home Affairs wherein suitable amendment to the Section has alsobeen proposed. She has also contended that persons arrested under Section 498Aon the basis of false accusation might have been acquitted by the court of law butthey have to live rest of their lives with the stigma attached to them due to arrestby the police. In order to safeguard the interest of innocent persons which includeelderly citizens, pregnant women, children from false accusation under Section498A, the petitioner has prayed the following :-(i)(ii)Section 498A be suitably amended so as to make it bailable, noncognizableand compoundable;Suitable provisions be specifically inserted in Section 498A so as tomake it punishable for whosoever misuses or abuses it;(iii) Compensation of financial loss suffered by the persons falselyimplicated;(iv) Law be made gender neutral to protect the interests of the innocent;and(v)Six months time bound trial, should be made a statutory requirementunder this law for quick disposal of cases.2. The Ministry of Home Affairs, which is the nodal Ministry for criminal lawand criminal procedure, in their initial comments dated 1st January, 2009 havementioned that cases registered under Section 498A of IPC relating to cruelty byhusband and his relatives have increased during the year 2004-06 as per NationalCrime Record Bureau (NCRB) data, i.e., 58121 (2004), 58319 (2005), 63128(2006). The Criminal Law (Amendment) Bill, 2003, which inter alia included aproposal to amend Section 320 of CrPC to enable compounding offence underSection 498A of IPC, was deleted from the Bill due to intense pressure by variouswoman organizations. The Ministry of Women and Child Development were alsonot in favour of diluting the provisions of Section 498A. The Ministry of HomeAffairs has also sought data regarding misuse of Section 498A from all the StateGovernments/Union Territory Administrations. That Ministry in their subsequentcommunications dated 28th December, 2010 have mentioned that representationshave been received containing suggestions of various organizations andindividuals for amendment to Section 498A in view of its gross abuse and misuse

thereby causing harassment to innocent relatives of the husband. Considering theobservations of Supreme Court, various High Courts and Justice Malimath<strong>Committee</strong> Report for remedial measures to reduce misuse of the Section, thatMinistry have also issued advisories to Chief Secretaries of StateGovernments/Union Territory Administrations on 20th October, 2009 for takingeffective measures for prevention of misuse of 498A in the light ofdirections/orders issued by courts regarding its misuse. That Ministry have alsoreferred the matter to the Law Commission of India to study the usage of Section498A, IPC and to suggest amendments, if any, to the problem. At that time,comments of Governments of Arunachal Pradesh, Assam, Chhattisgarh, Gujarat,Goa, Haryana, Jharkhand, Karnataka, Madhya Pradesh, Meghalaya, Mizoram,Nagaland, Punjab, Rajasthan, Sikkim, Tripura, Uttar Pradesh, Andaman &Nicobar Islands, Union Territory of Delhi, Chandigarh, Daman & Diu, Dadra &Nagar Haveli and Lakshadweep were received by them and most of theStates/UTs were in favour of making the offence compoundable.2.1 The Ministry of Women and Child Development in their initialcommunication dated 25th June, 2009 have referred to the judgment of SupremeCourt in D.K. Basu vs. State of West Bengal (AIR 1997 SC610) wherein the powerof arrest without warrant should be exercised only after reasonable satisfaction isreached after some investigation as to genuineness and bona fides of thecomplaint and the reasonable belief as to both the person’s complicity as well asneed to effect arrest is stressed upon. That Ministry are of the view that therecourse to conciliation between warring spouses and their families may be takenin any case of matrimonial dispute before filing FIR under Section 498A of IPC.The Dowry Prohibition Act, 1961 and the Protection of Women from DomesticViolence Act, 2005 (PWDVA) as well as Section 498A IPC are importantlegislations which provide legal remedies to women. Their misuse can becurtailed if those laws are harmonized and uniformly implemented. Legal remedyis also available under Section 250 of the Code of Criminal Procedure (CrPC) tocurtail misuse of the provisions of IPC and other laws. That Ministry have,therefore, not felt any need for amendment to Section 498A.

Section 498A IPC: Meaning and Background3. Section 498A was inserted in IPC, 1860 under Chapter XXA along withamendment to First Schedule of the CrPC, 1973 and insertion of Section 113-B inthe Indian Evidence Act, 1872 through the Criminal Law (Amendment) Bill,1983. The Statement of Objects and Reasons of the said Act mentions as under:-“The increasing number of dowry deaths is a matter of serious concern. Theextent of the evil has been commented upon by the Joint <strong>Committee</strong> of boththe Houses to examine the working of the Dowry Prohibition Act, 1961.Cases of cruelty by the husband and relatives of husband, which culminatesin suicide by, or murder of helpless women concern constitute only a smallfraction of the cases involving such cruelty. It is, therefore, proposed toamend the Indian Penal Code, the Code of Criminal Procedure and theIndian Evidence Act suitably to deal effectively not only with cases ofdowry death but also cases of cruelty to married women by their in-laws.”3.1 In 1986, Section 304B was inserted in the IPC for the purpose of controllingthe menace of dowry death occurring within seven years of marriage of a woman.3.2 Relevant substantive, procedural and presumptive Sections related todomestic violence is produced below:-“498 A. Husband or relative of husband of a woman subjecting her tocruelty (IPC) : - Whoever, being the husband or the relative of the husbandof a woman, subject such woman to cruelty shall be punished withimprisonment for a term which may extend to three years and shall also beliable to fine.Explanation - For the purpose of this section, “cruelty” means–(i)(ii)any willful conduct which is of such a nature as is likely to drive thewoman to commit suicide or to cause grave injury or danger to life,limb or health (whether mental or physical) of the woman; orharassment of the woman where such harassment is with a view tocoercing her or any person related to her to meet any unlawfuldemand for any property or valuable security or is on account offailure by her or any person related to her to meet such demand.”

3.2.1 304B. Dowry death (IPC) - (1) Where the death of a woman is caused byany burns or bodily injury or occurs otherwise than under normal circumstanceswithin seven years of her marriage and it is shown that soon before her death shewas subjected to cruelty or harassment by her husband or any relative of herhusband for, in connection with, any demand for dowry, such death shall becalled “dowry death”, and such husband or relative shall be deemed to havecaused her death.Explanation - For the purpose of this sub-section, “dowry” shall have the samemeaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).(2) Whoever commits dowry death shall be punished with imprisonment for aterm which shall not be less than seven years but which may extend toimprisonment for life.3.2.2 Section 113B in the Indian Evidence Act, 1872 is a complementary Sectionto the aforesaid Sections in IPC. The relevant Section from the Indian EvidenceAct is produced below:“1113B. Presumption as to dowry death- When the question is whether aperson has committed the dowry death of a woman and it is shown that soonbefore her death such woman has been subjected by such person to crueltyor harassment for, or in connection with, any demand for dowry, the courtshall presume that such person had caused the dowry death.”Explanation- For the purposes of this section “dowry death” shall have thesame meaning as in section 304B, of the Indian Penal Code (45 of 1860).In most of the cases of dowry death (under Section 304B), Section 498A isinvoked by the police leading to presumption of harassment or cruelty to thewoman by the husband or his relatives. Keeping in view of the fact that witness asto such cruelty to married woman occur in four walls of matrimonial home whichmay not be easily available to the Court, the accused is presumed to be guilty eventhough that is against the cardinal principle of criminal jurisprudence inaccordance of which the accused is presumed to be innocent unless proved guiltyby the prosecution. The burden is shifted to the accused to rebutt the saidpresumption of guilty.

3.2.3 The punishment for offence under Section 498A IPC is imprisonment forthree years and fine. The relevant Chapter of Section 320 of CrPC, 1973 isreproduced below:-Chapter XXA – OF CRUELTY BY HUSBAND ORRELATIVES OF HUSBANDSection Offence Punishment Cognizable or Bailable By whatnon-cognizable or non- courtbailabletriable498A Punish- Imprison- Cognizable if infor- Non-baila- Magist-ment for ment of mation relating to ble rate ofsubjecting three years the commission the firsta married and fine. of the offence is classwoman tocrueltygiven to an offi-cer in charge of apolice station bythepersonaggrieved by theoffence or by anyperson related toher by blood,marriageoradoption or if therein no such relative,by any publicservant belongingto such class orcategory as may benotified by theState Governmentin this behalf.

3.2.4 The provisions of Section 4 of the Dowry Prohibition Act, 1961 makeexchange of dowry punishable. The said Act defines dowry as any property orvaluable security given or agreed to be given either directly or indirectly.3.3 The offence under Section 498A is cognizable offence where the officer-inchargeof police station may investigate the case without the order of a magistrateand effect arrest without any warrant. The offence is non-bailable because thepower to grant bail is not available to the police which has to be obtained from theMagistrate. The crime cannot be generally compounded even afterreconciliation/settlement between parties to the dispute.3.4 Even though the element of cruelty is an essential ingredient common toboth the Sections 498A and 304B of IPC but both the Sections are mutuallyexclusive. Explanation to Section 498A defines the cruelty in following manner:-(i)(ii)Willful conduct that is likely to drive a woman to commit suicide;Willful conduct which is likely to cause grave injury or danger to life,limb or health of the woman;(iii) Harassment with the purpose of coercing woman or her relatives tomeet any unlawful demand for property or valuable security; and(iv) Harassment meted out to woman or her relatives on account of theirfailure to meet the demand of property or valuable security.Thus, the definition of cruelty within the meaning of Section 498A, IPCdoes not include the simple harassment. The forms of marital cruelty 1 asrecognised by the courts are as follows:-(a)(b)(c)(d)(e)Persistent denial of food;Insisting on perverse sexual conduct;Constantly locking a woman out of the house;Denying the woman access to children, thereby causing mentaltorture;Physical violence;

(f)(g)(h)(i)(j)Taunting, demoralising and putting down the woman with theintention of causing mental torture;Confining the woman at home and not allowing her normal socialintercourse;Abusing children in their mother’s presence with the intention ofcausing her mental torture;Denying the paternity of the children with the intention of inflictingmental pain upon the mother; andThreatening divorce unless dowry is given.When the harassment is coupled with the intention of coercing the womanor her relatives for unlawful demand of property or valuable security, thatharassment tantamounts to cruelty and is punishable under Section 498A of IPC.3.5 The element of cruelty 2 is one of the grounds for divorce in personal laws ofour country besides insanity, adultery, impotency, desertion, etc. These laws interaliaprovide civil remedy in the form of decree of divorce or judicial separationfor the spouse. There is tendency to encourage the woman to link the divorce casewith Section 498A of IPC by including demands for dowry in the ground ofcruelty. There is tendency to demand the return of more than what was given as‘Stridhan’, which is the absolute property of the women by using Section 498A ofIPC. There is also demand for more money as enhanced settlement as a preconditionfor divorce by mutual consent where both the parties have to declareand convince the court that their marriage has irreversibly broken down. Byinvoking Section 498A in the divorce petition filed by woman, the criminalproceedings in addition to civil proceedings are set in as a result of which therelatives of husband as well as he himself are arrested by the mere complaint ofthe woman.3.6 The cases of domestic violence against married woman in matrimonialhome during the period from 2005 to 2009 under Sections 498A and 304B of IPC,1860 indicate the increasing trend. The percentage increase of cases under Section498A in 2009 over 2008 is around ten percent. The table below contains thefigures of cases:

Crime HeadNo. of cases Percentagevariation in2005 2006 2007 2008 2009 2009 over 2008Torture 58,319 63,128 75,930 81,344 89,546 10.1(Section498A, IPC)Dowry 6,787 7,618 8,093 8,172 8,383 2.6Deaths(Section304B, IPC)(Source: NCRB, Crime in India, 2009)Judicial pronouncements on Section 498A of IPC4. Supreme Court and various High Courts have time and again examined theSection 498A, IPC. Delhi High Court in the case of Savitri Devi vs. RameshChand and others (Criminal Revision No. 462 of 2002) (2003 Criminal LJ 2759,104 (2003) DLT 824, II (2003) DMC 328) have examined the section 498A andobserved as follows:-“Before parting, I feel constrained to comment upon the misuse of theprovisions of Section 498A/406 IPC to such an extent that it is hitting at thefoundation of marriage itself and has proved to be not so good for thehealth of the society at large. To leave such a ticklish and complex aspect ofproposition as to what constitutes ‘marital cruelty’ and ‘harassment’ toinvoke the offences punishable under Sections 498A/406 IPC to lowerfunctionaries of police like sub Inspectors or Inspectors, where as sometimes even courts find it difficult to come to the safer conclusion is to givethe tools in the hands of bad and unskilled masters.This Court has dealt with thousands of cases and matters relating to dowrydeaths and cases registered under Section 498A/406/306 IPC arising out ofdomestic violence, harassment of women on account of inadequate dowry orcoercion of the woman for not fulfilling the demand of dowry and hundred

of divorce cases arising therefrom. Experience is not so happy nor isimplementation or enforcement of these laws is anything but satisfactory orpunctilious.These provisions were though made with good intentions but theimplementation has left a very bad taste and the move has been counterproductive. There is a growing tendency amongst the women which isfurther perpetuated by their parents and relatives to rope in each and everyrelative including minors and even school going kids nearer or distantrelatives and in some cases against every person of the family or thehusband whether living away or in other town or abroad and married,unmarried sisters, sister-in-laws, unmarried brothers, married uncles and insome cases grandparents or as many as ten to fifteen or even more relativesof the husband. Once a complaint is lodged under section 498A/406 IPCwhether there are vague, unspecific or exaggerated allegations or there isno evidence of any physical or mental harm or injury inflicted upon womanthat is likely to cause grave injury or danger to life, limb or health, it comesas an easy tool in the hands of Police and agencies like Crime AgainstWomen Cell to hound them with the threat of arrest making them run hereand there and force them to hide at their friends or relatives houses till theyget anticipatory bail as the offence has been made cognizable and nonbailable.Thousands of such complaints and cases are pending and arebeing lodged day in and day out. These provisions have resulted into largenumber of divorce cases as when one member of the family is arrested andsent to jail without any immediate reprieve of bail, the chances of salvagingor surviving the marriage recede into background and marriage for allpractical purposes becomes dead.”4.1 The Supreme Court in its judgment on a Writ Petition (Civil) No.141 of2005 – Sushil Kumar Sharma vs Union of India and others (JT 2005 (6) SC 266)has also observed as follows:-“The object of the provision (Section 498A) to prevention of the dowrymenace. But as has been rightly contended by the petitioner many instanceshave come to light where the complaints are not bonafide and have beenfiled 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 thewell-intentioned provision. Merely because the provision is constitutionaland intra-virus, does not give a licence to unscrupulous persons to wreckpersonal vendetta or unleash harassment. It may, therefore, becomenecessary for the legislature to find out ways how the makers of frivolouscomplaints or allegations can be appropriately dealt with. Till then thecourts have to take care of the situation within the existing frame work. Asnoted above the object to strike at the roots of dowry menace. But by misuseof the provision a new Legal Terrorism can be unleashed. The provision isintended to be used a shield and not an assassin’s weapon.”4.2 The Supreme Court of India in Preeti Gupta and Anothers vs. State ofJharkhand and Anothers in SLP (Criminal) No.4684 of 2009 has observed that :-“Unfortunately a large number of these complaints have not only floodedthe courts but also have led to enormous social unrest affecting peace,harmony and happiness of the society. It is high time that the legislaturemust take into consideration the pragmatic realities and make suitablechanges in the existing law. It is imperative for the legislature to take intoconsideration the informed public opinion and the pragmatic realities inconsideration and make necessary changes in the relevant provisions oflaw”.4.3 The Supreme Court in Som Mittal vs. Government of Karnataka [Appeal(Criminal) 206 of 2008] has observed the following regarding Section 498A:-“Often false FIRs are filed e.g. under Section 498A, IPC, Section 3/4 DowryProhibition Act, etc. Often aged grandmothers, uncles, aunts, unmarriedsisters, etc. are implicated in such cases, even though they may havenothing to do with the offence. Sometimes unmarried girls have to go to jail,and this may affect their chances of marriage.”4.4 The Punjab and Haryana High Court on the issue of constitutional validityof Section 498A, IPC in Krishan Lal and others vs. Union of India and others(1994 Criminal LJ3472) has observed as under:-

“The husband and relatives of husband of a married woman form a classapart by themselves and it amounts to reasonable classification especiallywhen a married woman is treated with cruelty within the four-walls of thehouse of her husband and there is not likelihood of any evidence available.Consequently, Section 498A of the Code cannot be said to be offensive ofArticle 14 of the Constitution.”Observations of various <strong>Committee</strong>s/Commission on Section 498A IPC5. The Malimath <strong>Committee</strong> on Reforms of Criminal Justice System (2003)has while pointing out flaws in the implementation of the Section 498A, IPC,recommended for suitable amendment in IPC to make the offence under Section498A, bailable and compoundable. The Malimath <strong>Committee</strong> in its report (videparas 16.4.4 and 16.4.5) has observed as under:-“A less tolerant and impulsive woman may lodge an FIR even on a trivialact. The result is that the husband and his family may be immediatelyarrested and there may be a suspension or loss of job. The offence allegedbeing non-bailable, innocent persons languish in custody. There may be aclaim for maintenance adding fuel to fire, especially if the husband can notpay. Now the woman may change her mind and get into the mood to forgetand forgive. The husband may also realise the mistakes committed andcome forward to turn over a new leaf for a loving and cordial relationship.The woman may like to seek reconciliation. But this may not be possible dueto the legal obstacles. Even if she wishes to make amends by withdrawingthe complaint, she cannot do so as the offence is non-compoundable. Thedoors for returning to family life stand closed. She is thus left at the mercyof her natal family. This Section, therefore, helps neither the wife nor thehusband. The offence being non-bailable and non compoundable makes aninnocent person undergoes stigmatisation and hardship. Heartlessprovisions that make the offence non-bailable and noncompoundableoperate against reconciliations. It is therefore necessary to make thisoffence (a) bailable and (b) compoundable to give a chance to the spousesto come together.”5.1 The Law Commission of India in its Hundred and Fifty-fourth Report(1996) has also found this Section as harsh as it does not provide any opportunity

for reconciliation to the aggrieved spouses. The Commission in the said Report(vide Chapter XII, para 4) has observed that:-“It was felt that as Section 498A is not included in the Tables appended toSection 320 of the Code, it could not be compounded by the parties. Manyinstances were cited where though the parties wanted to compound yet inthe absence of an enabling provision, they could not do so. This has createdhardship even in genuine cases. In order to meet this situation, it isrecommended that the Section 498A be inserted in the Table under subsection(2) of Section 320 CrPC, where it can be compounded with thepermission of the Court.”5.2 Besides this, the Department-related Parliamentary Standing <strong>Committee</strong> onHome Affairs in its One Hundred and Eleventh Report on Criminal Law(Amendment) Bill, 2003 (2005) has also recommended that express provisionsmay be made in Section 320 of CrPC to reflect the availability of compounding ofoffence to the relatives of the husband.Petitioner’s deposition before <strong>Committee</strong>6. The petitioner while deposing before the <strong>Committee</strong> has submitted that theSection 498A of IPC is being fearlessly abused and misused with ulterior motivebecause the Section is itself harsh being non-bailable and cognizable which hasled to arrest of relatives of husband including senior citizens, minor children,women even pregnant one. There are reported instances where the said law hasbeen misused by women to become rich by extorting large sum of money from thefamilies of her husband, particularly the NRI bridegroom. It has been used as abargaining tool by some women in the divorce suit pending before the Court.6.1 She informed the <strong>Committee</strong> that during the period from 1995 to 2006, thenumber of cases have increased by hundred twenty per-cent and 1, 40,000 peoplehad been arrested under the said provision. It was informed that thirty per cent ofbail applications before the Courts pertain to Section 498A. She further added thatan evaluation of post implementation of Section 498A might be carried out toassess its deterrent effect. The petitioner has pleaded to make the law bailable andcompoundable; and also for provision of stringent punishment for abusers ofSection 498A of IPC.

Suggestions/View points of Stakeholders and concernedOrganisations/Individuals:7. The <strong>Committee</strong> has received more than two thousand memoranda fromvarious organizations/individuals expressing views on the subject matter of thepetition both in favour and against. The petition was supported by anoverwhelming majority of organizations/individuals whereas someorganizations/individuals have rejected it. The <strong>Committee</strong> gave opportunity tosome of the organizations/individuals who requested for an audience before it. Alist of organizations/individuals those appeared before the <strong>Committee</strong> is atAnnexure-I. The views expressed in the memoranda as well as during the oralevidence by witnesses are divergent and diametrically opposite. Some other viewsalso emerged before the <strong>Committee</strong>. The views have been summarised and givenbelow.View points in favour of the Petition:(i)(ii)Section 498A of IPC permits arrest of the husband and his female ormale relatives irrespective of their age, marital status, health conditionmerely on the basis of allegation of wife. In that context, the terms“cruelty”, “harassment” and “relatives of the husband of the women”had been interpreted to suit the complainant and investigating agencyleading to enhancing the suffering of innocent relatives of husband,who are merely related by blood or marriage but might even notresiding with the husband or even might not have visited the family inthe near past. These terms need to be defined in the code;Section 498A, IPC together with Section 113B of the Evidence Act,1872 are technically flawed from the time of their insertion in thestatute books because those Sections presume the alleged accused tobe guilty till proven innocent which goes against the cardinal principleof criminal jurisprudence in accordance of which any individual ispresumed to be innocent until proved guilty beyond reasonable doubt;(iii) The said provisions make complete disregard of Fundamental Right toLife and also directly violates Universal Declaration of HumanRights, 1948 to which our country happens to be a signatory;

(iv) Section 498A could be resorted to any time during life period ofhusband by wife even to suppress her fault and further her own selfinterest. Some sort of time limit similar to the time (within sevenyears of marriage) provided under Section 304B of IPC for dowrydeath might be provided in Section 498A;(v)Sometimes petty marital squabbles between spouses in order to havecontrol over husband and his family often drive the wife to resort to498A which strikes at the root of institution of marriage and the trendof ‘live-in-relationship’ may get a boost which may promotepolygamy and children born out of that relationship would be worstsuffers in the times to come;(vi) The stigma and insults suffered by the family of the husband due tomisuse of Section 498A cannot be wiped out in any manner in oursociety. Provision for penalty and recovery of prosecution cost fromthe lady or her family who misuses the Section 498A may beincorporated. Suitable compensation to the persons who are affectedby such process;(vii) Cruelty or domestic abuse is not gender specific. The assumption thatvictims of physical, verbal, emotional, sexual, and financial abuse arewomen always is wrong. According the Universal Declaration ofHuman Rights, all are equal before the law, and are entitled withoutany discrimination to equal protection of the law. Therefore, Section498A may be made gender neutral;(viii) Making the offence under Section 498A, bailable and compoundablewould also provide great relief to Indian judicial dockets andpendency of cases would be reduced substantially;(ix) There is a large difference in the number of person arrested underSection 498A IPC and convicted under this Section, which showshow some people are misusing this for ulterior motive;(x)Arrest of elderly people, children and pregnant woman in the name ofrelative of the husband is the hardest situation a family can face; and

may commit suicide because of torture. Section 498A provides an aptremedy to the torture of women in matrimonial home;(vi) The menace of dowry is rampant in our country and linked to it is thechild sex ratio which is dwindling over the years because of femalefoeticide being done clandestinely in our society. The reasons ofmisuse of Section 498A for amendment of the law are not convincing,particularly in the face of increasing crime against women and dowrydeaths; and(vii) Misuse of Section 498A can be checked by other Sections of IPC(182, 203, 209 and 211). Instead of tampering with the law, the policeneeds to be sensitised about the directions given by the SupremeCourt in D.K. Basu vs. State of West Bengal (1997) case whichregulate the power of arrest by the police.Other view points on the petition:(i)(ii)To make the Section compoundable, views were expressed both infavour and against. Those against making the offence compoundablesaid that if this is done then the wives would be prompted to bargainfor allowing divorce which would act harsh upon the husbands. It wassuggested that mediation/conciliation could be tried before going tocourt;Application of Section 498A has been detrimental to the future of thechild who undergoes the trauma throughout his/her life when his/herfather is sent to jail. Arrest of children under the said Sectioncontravenes the provisions of the Juvenile Justice (Care andProtection of Children) Act, 2000;(iii) The Police should not be allowed to summon randomly a husband andhis family members to the police station in the name of counseling orquestioning in case marital disputes. Police involvement in thecounseling should be banned;(iv) Section 498A IPC is presently under criminal law even though it dealswith a dispute which is of matrimonial in nature. Even the peopleaccused under these laws are common people and not hard core

criminals. Therefore, Section 498A IPC may be brought under civillaw;(v)Definition of ‘dowry’ needs to be clarified in the Dowry ProhibitionAct, 1961 as there is likelihood that causal demand for financialassistance or loan by husband may not be treated as a willful demandfor dowry. The provision of dowry to the girl by her family has beenconsidered as status symbol and practiced during kanya daan in theform of gift which is permissible under the Dowry Prohibition Act. Incase of difference and discord between the spouses, the propertiesgiven as gift are treated as dowry by the wife. It is suggested that anundertaking may be made mandatory that no exchange of dowry takesplace at the time of registration of marriage;(vi) Daughter has equal share in the self acquired property of her father,which needs to be secured for her development. In the case ofallegation of dowry, the capacity of the dowry given also needs to beverified;(vii) Cases relating to dowry and Section 498A might be tried in FamilyCourts under the Family Court Act, 1984;(viii) Provisions of Section 498A IPC, PWDVA and Section 125, CrPC areinterlinked and women generally use it against their husband.Husband has to run from one court to another to defend himselfinnocent for the same set of allegations. Since the allegations in all thecases are similar hence both domestic violence case and 498A IPCmay be combined together so that a lot of harassment in the form ofrunning around the courts can be reduced;(ix) In most of the complaints, false claims are made that many articles aregiven to the husband and his relatives as dowry during the marriagewithout any proof or evidence. dowry Prohibition Officer, appointedunder Dowry Prohibition Act, may file an affidavit to the Court withproof and evidence of the claims of the wife regarding the dowryexchange. Section 498A, IPC may be amended in such a way that no

arrest should be made till the Dowry Prohibition Officer files anaffidavit to the Court;(x)The Court should not entertain complaint under Section 498A, IPC ifthe marriage is not registered. All marriage certificates must clearlyspecify any stri-dhan which is given to the wife or gifts to thehusband including cash or any articles;(xi) It has been seen that a trial under 498A, IPC takes a minimum of fiveto eight years in the trial court and if the matter is appealed to theSession Court, High Court and Supreme Court it can take aroundfifteen to twenty years. Husband and his relatives spend a significantportion of their life running around the corridors of the court, policestation and lawyer’s office. Offence under Section 498A, IPC may betried in the fast track court with a mandate to deliver judgment in sixtydays as is the case in the PWDVA; and(xii) Section 498A IPC may be amended in such a way that children andgrandparents and other relatives may not be arrested under thisSection.Home Secretary’s deposition before <strong>Committee</strong>8. The Home Secretary in his deposition before the <strong>Committee</strong> touched uponreported misuse of Section 498A, IPC because of harsh provisions of the saidSection. On the issue of amendment to Section 498A of IPC so as to make itbailable, compoundable he apprised the <strong>Committee</strong> that in view of opposition ofMinistry of Women and Child Development the Home Minister had to withdrawthe proposed legislation from the Cabinet. However, in pursuance ofrecommendations of Parliamentary Standing <strong>Committee</strong> on Home Affairs to bringa comprehensive legislation to both IPC & CrPC, the Home Ministry with theapproval of the then Home Minister had written to the Law Commission to bringabout comprehensive amendments to both IPC & CrPC including amendment toSection 498A of IPC.8.1 Home Secretary apprised the <strong>Committee</strong> that the Ministry of Home Affairsvide their letter dated 20th October, 2009 sent an advisory to all the State

Governments/UT Administrations on misuse of Section 498A, which emphasiseson the following:Power to arrest without warrant should be exercised only afterreasonable satisfaction as to bona fides of a complaint.In matrimonial disputes, it may not be necessary to exerciseimmediate power of arrest but to attempt the recourse to other disputesettlement mechanisms.Recourse to filing charges under Section 498A, IPC may be resortedto where conciliation fails and where there appears a prima facie caseunder the said provision or other laws. Counselling should beconducted by professional trained counsellors and not the police. Themechanism instituted under the PWDVA may be used for thispurpose.Submissions of Ministry of Women and Child Development9. The Secretary of the Ministry of Women and Child Development in hisdeposition before the <strong>Committee</strong> has submitted that the objective of insertingSection 498A in IPC was to protect women being subjected to cruelty by thehusband or his relatives. But over the period, representations have been receivedby the Government alleging misuse of the provisions of the Section. Afterexamining such representations in consultation with the National Commission forWomen, the Ministry of Women and Child Development come to the conclusionthat Section 498A, IPC & other laws such as Dowry Prohibition Act and PWDVAare important legislations which provide protection and legal remedies to womenand these should not be tinkered with and at the same time; if some set proceduresare followed, its misuse can be curtailed.9.1 The Secretary has further added that the advisories issued by the Ministry ofHome Affairs to all the State Governments/UT Administrations on misuse ofSection 498A should be implemented in letter and spirit to put an effective checkon the misuse of section 498A, IPC. Further Section 41 of CrPC which providesthat police may arrest without warrant on commission of a cognizable offence oron the basis of a reasonable complaint or reasonable suspicion, has now beenamended by the Criminal Procedure Code (Amendment) Acts of 2008 and 2010,

to restrict this discretionary power of the police may also be instrumental inputting a check on the misuse of Section 498A. As per the amendments, an arrestwithout warrant in case of a reasonable complaint or reasonable suspicion canonly be made under certain specific circumstances. The <strong>Committee</strong> has beenapprised that the PWDVA provides for a comprehensive mechanism forcounselling between the parties to arrive at a settlement (Section 14 read withRule 14 of PWDVA). Increasing use of PWDVA and its provisions on counselingwould lead to a decrease in the number of complaints filed under Section 498A,IPC. There is also a need for sensitisation of the police so that they can encouragewomen approaching them to use the PWDVA.9.2 It has been further submitted by the Secretary that there might be mala fideallegations under Section 498A, IPC but this can be effectively addressed withinthe existing legal framework such as provisions under the criminal law for filing afalse case (Section 211 of IPC) or for perjury/giving false evidence (Sections 191and 193 of IPC). Cognizance of a case under any of the above provisions can betaken by a competent Court as per Section 340 read with Section 195 of the CrPC.Further, the apex Court and High Courts also have inherent powers to takecognizance of such cases and impose penalties in the form of fine. One of thelegal remedies that can be further considered for preventing filing of falsecomplaints under Section 498A is by proposing punishment of imprisonment uptosix months in the Section itself for the misusers, which would act as a deterrentfor the complainant. However, to ensure that bona fide complainants are notvictimised, adequate safeguards would also need to be incorporated to effect that.Since the incident of dowry death is on increase, that Ministry is not in favour ofmaking the said Section non-cognizable because of the fact that it would placeenormous burden on women to approach judicial magistrate to file initialcomplaint against their husbands or his family thereby putting a barrier to theiraccess to justice.9.3 Regarding the prayer of the petitioner to make Section 498A compoundable,the Secretary has mentioned that the Ministry of Women and Child Developmenthas not been in favour of making it universally compoundable because the courtshave already inherent power under Section 482 of CrPC, 1973 to quash the FIR in

the event of out of court compromise/settlement between parties to secure theends of justice.9.4 In view of the Secretary, making the law bailable and non-cognizable woulddilute its deterrent effect and would be detrimental to the interest of women withbonafide allegations of cruelty. Effective implementation of the PWDVA andfacilitating counselling under it would provide women with the option to explorepossibility of conciliation and would in the longer run, reduce the number of casesfiled under Section 498A, IPC. However, incorporation of some checks andbalances against abuse of the provision may be considered, which includesprovision of imprisonment upto six months for a complainant who files a falsecomplaint, and empowering Courts to specifically adjudicate on whether thearrests made by the police are justified/ made without prima facie evidence/incollusion with person(s) filing false complaint.Views of National Commission for Women10. The Member Secretary, National Commission for Women in her depositionhas mentioned that Section 498A, IPC and other laws such as Dowry ProhibitionAct, 1961 and the Protection of Women from Domestic Violence Act, 2005(PWDVA) are important legislations which provide protection and legal remediesto women, should not be tinkered with. She also contended that if the Section isimplemented with set procedures, its misuse can be curtailed. But having said that,she has suggested following methods to minimise the misuse of the Section 498A,IPC:-(i)(ii)Section 498A, IPC, provisions of the Dowry Prohibition Act 1961 andthe Protection of Women from Domestic Violence Act 2005 have anelement of commonality and need to be harmonized and uniformlyimplemented;Police should in the interest of the protection of the constitutionalrights of a citizen ensure that no arrest should be made without areasonable satisfaction after some investigation as to the genuinenessand bonafide of a complaint and the need to effect arrest;

(iii) Creation of Mahila Desks at police station and Crime Against Women(CAW) Cell, atleast at the district level which would specifically dealsthe complaints made by women. When a wife moves to file acomplaint to a women cell, a lot of persuasion and conciliationrequired. The Legal Service Authorities of the States/UTs, NationalCommission for Women, NGO and social workers should set up adesk in CAW Cell to provide conciliation services to the women sothat before the state machinery is set in motion the matter is amicablysettled at that very stage;(iv) In case of matrimonial disputes, the first recourse should be effectiveconciliation and mediation between the warring spouses and theirfamilies and recourse of filing charges under Section 498A, IPC maybe resorted to in cases where such conciliation fails and there appearsa prima facie case of Section 498A of IPC and other related laws; and(v)Counseling mechanism envisaged under the PWDVA should beimplemented by State Governments and counseling of parties shouldbe done only by professionally qualified counselors and not by thepolice. The police may consider empanelling professional counselorswith CAW Cells.10.1 The National Commission for Women in their written response submittedon 25th August, 2011 to the <strong>Committee</strong> contradicted the common claim that amajority of 498A cases are false since more than ninety percent of all cases underSection 498A, IPC are found to be true on investigation and less than ten percentare found to be false on account of mistake of fact or of law. And the percentageof cases declared false is declining. The analysis of figure of cases under Section498A during the period from 2005 to 2009 as submitted by the Commission isgiven below:

Cases declared False on account of Mistake of Fact or Law underSection 498A, IPC (2005-09)Year Cases reported Number of cases Percentage of casesduring the year declared false on declared false onaccount of mistakeof fact or of lawaccount of mistakeof fact or of law2005 58319 6141 10.532006 63128 6365 10.082007 75930 8215 10.822008 81344 7616 9.362009 89546 8392 9.3710.2 That Commission opposed the prayer of the petitioner to make the Section498A, IPC non-cognizable, bailable and compoundable on following grounds:–(i)(ii)making the offence non-cognizable will place a huge burden onwomen who will have to go through the judicial process to file aninitial complaint thus making it difficult to take recourse of this law, ifnot impossible for women for whose benefit this law was enacted;in case of making it bailable, police will be empowered to give bail,then no one involved in domestic violence will ever be arrested.Further anticipatory bail under Section 438, CrPC can be obtainedfrom Magistrate even in the criminal cases; and(iii) compounding the crime under Section 498A will send Court amessage that the gravity of crime is less than that of other similarcrimes. Further woman will be under tremendous pressure towithdraw complaint and compromise by her family. However,procedure for quashing FIR filed under Section 498A due to

compromise/settlement already exists with the High Courts underCrPC.Views of National Commission for Protection of Child Rights11. The Chairperson, National Commission for Protection of Child Rights(NCPCR), who appeared before the <strong>Committee</strong> has submitted that theCommission often receives complaints regarding custody of child/children in thedispute arising out of matrimonial relation from one of the parents who have noaccess to the child with a allegation that the child is not being treated well andneeds protection from a non congenial atmosphere. In such cases of domesticviolence, the child is often subjected to abuse because he/she is manipulated totake sides as a witness to such a acrimony which has a harmful impact on thechild leading to anxiety, depression, social withdrawal, aggressive behaviour, lackof attention and insecurity, etc.11.1 She mentioned that a child who is separated from one or both parents needsto be facilitated to maintain personal relations and direct contacts with bothparents on a regular basis, except if it is contrary to the child’s best interest. Sheapprised that as per the data obtained from NCRB, 1007 children have beenbooked under 498A of IPC during the period from 2007 to 2009. The childrenshould not suffer in such cases as they have no control over the causes/groundsunder Section 498A and are victim of circumstances. She has suggested followingmeasures for protection of child rights in matrimonial cases:–(i)(ii)The children should not be arrested or charge-sheeted under Section498A in any circumstance;The matters of children whose cases are pending before Magistratesand/or Juvenile Justice Boards should be reviewed by the ChiefJudicial Magistrate/Chief Metropolitan Magistrate or the DistrictJudge concerned in the light of the provisions under Section 14 (2) ofthe Juvenile Justice (Care and Protection of Children) Act, 2000;(iii) The concerned Magistrate should solicit a detailed report from theProbation Officer, Child Welfare <strong>Committee</strong>, District Legal AidServices Authority or the District Officer in-charge of ChildProtection/Child Welfare on the impact of his/her order on his

children/dependants, before sentencing an adult under Section 498A.This proposition is in no way intended to interfere with the judicialproceedings, but intended to ensure that while attempting to deliverjustice to a woman, great injustice is not done to children affected inthe process;(iv) Since a child needs to have regular contact with both the parents asrequired under Article 9(3) of the UN Convention on Rights of theChild, 1989 to which India is a signatory, Section 498A of IPC shouldin no circumstances be allowed to be used to depriving the child fromaccess/regular contact with both the parents;(v) Whenever any child is apprehended by the police under section 498A,IPC such child must be handed over to the Juvenile/Child WelfareOfficer of the concerned Police Station or Special Juvenile PoliceUnit (SJPU), as envisaged under Rule 11 of the Juvenile Justice (Careand Protection of Children) Rules, 2007. The Juvenile/Child WelfareOfficer shall thereafter, produce the child before the Child Welfare<strong>Committee</strong> at the earliest but within twenty four hours. The ChildWelfare <strong>Committee</strong> shall arrange for counseling and interim care ofthe children in child friendly environment;(vi) The affected children need to be heard and consulted in camera by theconcerned family courts and district courts adjudicating familydisputes such as divorce, legal separation, custody and visitationrights of parents/spouses;(vii) The best interest of the child (both in short term and long term) shouldbe the primary consideration in deciding the custody and access ofchildren involved in divorce/legal separation to their parents; and(viii) The family courts and district courts adjudicating the divorce, legalseparation and custody matters should have at their disposal sufficientnumber of professionally qualified and trained family counselors tocounsel the parents and children involved so that amicablesettlement/compromise among the contesting parents in the interest oftheir children may be done.

Deliberations of <strong>Committee</strong>12. The views of the Members of <strong>Committee</strong> emerged during the course of thedeliberations of the <strong>Committee</strong> are summarised below: –(i)(ii)There is vagueness in the definitions of the terms ‘cruelty’, ‘unlawfuldemand’ and ‘relatives of the husband of women’, which need to bespecific, leaving no scope of misinterpretation for the investigatingagency and the court;The burden of proof must be on the prosecution like other offencesand not on the accused;(iii) Provisions of Section 498A of IPC were introduced to curb theharassment of a woman either in the hands of the husband or hisfamily members, connected with the demand of dowry. But within ashort span of time this Section has become a tool in the hands ofbridal side either to blackmail the husband or other in-laws;(iv) The natural death or voluntarily suicidal death or self emolition bywoman are taken as a dowry death. So the definition of dowry alsoneeds to be clarified in clear terms. Every money transaction ordemand should not necessarily be construed as demand for dowry.The loan or financial assistance sought by the husband from the wifeside to settle his family or business or profession must not be treatedas dowry so also the stridhan of the women;(v)The Section is underused in rural area but overused in urban area;(vi) Bail out or the acquittal does not in all cases wipe out the stigma andinsults suffered by the husband or his relatives during pre-trial, trial orpost-trial period. Such news is promptly and repeatedly brought out inthe print as well as in the electronic media. Instances are there wherethe innocent minor brothers/sisters, the long-long distant relatives,boy/girl friends, of the husband, the priest performing marriage, thebarber and the people attending the marriage, etc. were arrayed as anaccused under Section 498A of IPC;

(vii) The innocent children born out of their wedlock are the worstsufferers. It badly affects their upbringing. The children need theshelter, guardianship, love and affection from both mother and father;(viii) Under the existing frame work of the law after being implicated underthis Section, the agony of divorce between the spouses is bound tooccur. The divorce is so thorny that in such a case the wife is alwayslooser;(ix) The advisory issued by Ministry of Home Affairs to StateGovernments/UT Administrations to prevent misuse of Section 498Aof IPC should be notified by the concerned Government; and(x)Fast track Courts may be assigned to decide cases under Section 498Ain view of huge pendency thereof; counselling mechanism availableunder Family Court Act, 1984 may be attempted to before trial ofcases under Section 498A.Observations/Recommendations13. Having gone through the evidence produced before it by differentstakeholders, the <strong>Committee</strong> finds it difficult to give a straight answer to therequest made in the petition in terms of yes or no. The petitioner and thestakeholders who have come up in favour of the petition have vehementlyprotested against the misuse of the provisions of Section 498A IPC. The fact thatthese provisions of the IPC are being misused stands corroborated through severalsources. In the first place, the Ministry of Home Affairs, the nodal Ministry for thesubject, had come out with a formal proposal to amend Section 320 of theCriminal Procedure Code, 1973 in the year 2003 so as to make the offences underSection 498A of the IPC compoundable. The proposed amendments were,however, withdrawn after intense pressure from various women’s organisations.Next, there are the recommendations of the Malimath <strong>Committee</strong> on Reforms ofCriminal Justice System set up in 2003 which considered the implementation ofSection 498A of IPC and recommended that the offence in this Section may bemade bailable and compoundable to give chance to the parties in the marriage tocome together. Further, the <strong>Committee</strong> finds several pronouncements of the HighCourts as well as the Supreme Court from time to time highlighting in strong

terms the instances of misuse of provisions of Section 498A of IPC andrecommending remedial action. All these inputs received by the <strong>Committee</strong>strongly advocate modifications in the provisions of the existing law in order toprevent its misuse.13.1 The <strong>Committee</strong> is deeply moved by the serious concern it has come acrossfrom different quarters calling for modification in Section 498A of IPC so as toprevent its misuse. But the <strong>Committee</strong> is unable to oversee the inputs it hasreceived from the Ministry of Women and Child Development, the NationalCommission for Women, National Commission for Protection of Child Rights andother organisations that have pleaded before the <strong>Committee</strong> against the petition.The <strong>Committee</strong> notes that the amendments brought about by the Criminal Law(Amendment) Bill, 1983 were at a time when married women in society were veryinsecure and crimes against them were high. In that scenario, Section 498A ofIPC, which was introduced then along with some other amendments in theCriminal Procedure Code and the Indian Evidence Act whereunder a specificoffence was created vide Section 498A IPC and categorized non-bailable andcognizable. This step has been able to send a strong message across the countrythat married woman need to be seen with due respect and that they dare not bemal-treated in their matrimonial home. The fact that offence under Section 498Aof IPC is cognizable and non-bailable is acting as a big deterrent in the society. Inthe opinion of the <strong>Committee</strong>, this historic step has succeeded in containing themagnitude of crime against women in the country. Therefore, the <strong>Committee</strong> isunable to agree to the petition in so far as categorising the offence underSection 498A IPC as non-cognizable and bailable is concerned. The<strong>Committee</strong> recommends that the offence under Section 498A of IPC maycontinue to remain cognizable and non-bailable as any change in the law atthis stage might go against the interest of the women community in general.The <strong>Committee</strong> fears that any interference in the present law might reversethe social protection of women in their matrimonial home that has been builtup so far.Making the offence under Section 498A IPC compoundable:13.2 The <strong>Committee</strong> notes that the offence under Section 498A IPC is essentiallyfallout of strained matrimonial relationship for which there might be various

considerations. Since there can be various causes leading to an offence underSection 498A, IPC and parties to the marriage could be responsible for the samein varying degrees, it would be appropriate if the remedy of compromise is keptopen to settle a matrimonial dispute. In this context, the <strong>Committee</strong> feels that incase of any marital discord which has reached the stage of a complaint underSection 498A, IPC, it would be better if the parties have the option of acompromise whereafter they can settle down in their lives appropriately for abetter future rather than diverting their energies negatively by pursuing litigation.The <strong>Committee</strong> recommends to the Government to consider whether theoffence under Section 498A,IPC can be made compoundable.13.3 Having recommended that the offence under Section 498A of IPCshould continue to be cognizable and non-bailable, the <strong>Committee</strong> stronglyrecommends that the ill-effects and misuse of the present legal provisions isalso checked. The <strong>Committee</strong> fears that failure to do so might leave no optionexcept to dilute the law by making the same noncognizable and bailable. Inthis context, the <strong>Committee</strong> recommends certain additional measures ascontained in the succeeding paragraphs.Power to arrest:13.4 The <strong>Committee</strong> feels that the offences under Section 498A IPC beingcognizable and non-bailable, the police authorities have all powers to arrest theperson(s) named in the complaint filed by the wife. The <strong>Committee</strong> notes that thewords ‘relative’ appearing in Section 498A IPC is ambiguous and as a result,anybody named in the complaint is liable to be arrested. As a first step to checkmisuse of provisions of Section 498A IPC, the <strong>Committee</strong> recommends thatthe provisions of Section 498A IPC should be suitably modified so as to definethe term ‘relative’ which may exclude the arrest of small children and veryelderly people and also distantly related persons who might not have a role inthe commission of offence. Secondly, the <strong>Committee</strong> would very much like tosee that the powers of arrest on such complaints are exercised carefully andcautiously. The <strong>Committee</strong> notes that advisories have been issued by theMinistry of Home Affairs to all State Governments/UT Administrations forpreventing the misuse of Section 498A IPC. The <strong>Committee</strong> would like theseguidelines to be followed and implemented strictly in letter and spirit by the

State Governments/UT Administrations. The <strong>Committee</strong> furtherrecommends that these guidelines should be adequately published by theState Governments/UT Administrations and displayed publically in policestations so that the public is aware of their rights/liabilities and is notharassed on account of ignorance of law.13.5 In this context, the <strong>Committee</strong> appreciates that the States of Andhra Pradeshand National Capital Territory of Delhi have issued orders to regulate and restrictthe power to arrest under Section 498A IPC by prescribing that such arrests can bedone only with the prior written approval of DCP/ DSP. The <strong>Committee</strong> findsmerit in this action and recommends that other State Governments/UTAdministrations should follow suite and arrests under Section 498A, IPCshould be done only with the written orders of the police officer of the level ofDCP or equivalent and for acceptable reasons. The <strong>Committee</strong> recommendsthat the State Governments/UT Administrations may issue necessarydirections in this regard. The <strong>Committee</strong> in this context further recommendsthat the State Governments/UT Administrations may also keep an eye on thenumber of complaints registered under Section 498A, IPC and the arrestsmade as follow up by calling periodic data from their police Department formonitoring whether the provisions of the law are not being misused. In casethe State Governments/UT Administrations fail to check the misuse therewould be no option left but to dilute the offence, the <strong>Committee</strong> feels.Counselling and Mediation:13.6 The <strong>Committee</strong> is of the opinion that the process of counselling available insome States is very vague and not properly defined. There are instances where nocounselling was done to any of aggrieved party and they are forced to takerecourse to Section 498A of IPC. The <strong>Committee</strong> feels that the process ofcounselling has to be initiated prior to the invoking of provisions of Section 498A.The <strong>Committee</strong> recommends that adequate provisions may be introduced inSection 498A to make the process of counselling compulsory before anyarrests are made. The <strong>Committee</strong> further advocates that professional andtrained family counselors should do the counseling in the Women’s Cell sothat frivolous cases are screened at the initial stage itself and Section 498A isinvoked in rare cases. The report of the counselling process may be submitted

to the concerned DCP or equivalent rank officer and only when theconcerned officer is not satisfied with the results of the counselling,provisions of Section 498A may be invoked. The <strong>Committee</strong> also recommendsthat the process of counselling which is being handled by the PoliceDepartment should be developed professionally by involving qualifiedcounselors and reputed NGOs so that people have more confidence in themechanism and they could be approached for intervention timely and arriveat some settlement without reaching the stage of complaint under Section498A, IPC. The <strong>Committee</strong> hopes that a professionally managed counsellingsystem would definitely be able to curtail the number of complaints underSection 498A.Time bound trial:13.7 The <strong>Committee</strong> notes that the trial under Section 498A takes a very longtime to complete and if any party takes the matter to High Court/Supreme Court inappeal, husband and his relatives spend a significant portion of their life inrunning around the courts. The <strong>Committee</strong> recommends that a provision maybe appropriately inserted under Code so that the offence under Section 498Amay be tried in the fast track courts with a mandate to deliver judgment intime bound manner.Check on false complaints:13.8 The <strong>Committee</strong> expresses serious concern over the fact that misuse of theprovisions of Section 498A has increased insurmountable harassment, agony, painof the innocent relatives of husband and stigma attached due to such abuse of theprocess of law can not be wiped out in any manner. Whatever available remedy inthe criminal law or civil law available to the aggrieved party can be resorted toonly after his/her suffering and after prolong period of trial in the court of law.The <strong>Committee</strong> feels that the Government should consider providing legalremedies for preventing filing of false complaints or complaints with ulteriormotive to harass the husband and his relatives under Section 498A. The<strong>Committee</strong> recommends that Section 498A be amended so as to provide forspecific penalty in case the complaint is found to be false or with some otherulterior motive. The <strong>Committee</strong> hopes that this would act as a deterrentbecause the complainant will be aware of the consequences which may follow

if the complaint is found to be false by the court, at any stage of theproceedings.Dowry and Registration of Marriage:13.9 The <strong>Committee</strong> is concerned that dowry is at the root of most of thematrimonial disputes. The country has a Dowry Prohibition Law since 1961 butthe same has failed to check effectively the menace of dowry. Even in case ofmatrimonial dispute that lead towards filling of a complaint under Section 498A,IPC the issue of return of dowry items remain in the background during thecontinuance of the criminal proceedings.13.10 The <strong>Committee</strong> is of the considered view that a strong andeffective anti dowry law can go along way in curbing matrimonial disputes.Accordingly, the <strong>Committee</strong> recommends that the existing Dowry ProhibitionAct, 1961 may be strengthened so that no dowry is given in marriage andwhatever gifts are exchanged in the marriage are listed out andacknowledged by the parties to the marriage in writing. The <strong>Committee</strong> feelsthat such a step by the Government would curb the dowry relatedmatrimonial disputes which are substantial portion of the whole lot ofdisputes.Juvenile in conflict with law (Section 498A IPC):13.11 As per the data of NCRB as shared with the <strong>Committee</strong> by the NationalCommission for Protection of Child Rights (NCPRB) children arrested underSection 498A of IPC during the period 2007-09 are 1007. Their arrest wasopposed by the Commission in their written submission as such actionscontravene the provisions stipulated in a special legislation, i.e., Juvenile Justice(Care and Protection of Children) Act, 2000. As per sub-rule (2) (I) of Rule 3 ofJuvenile Justice (Care and Protection) Rules, 2007, a juvenile is presumed to beinnocent of any malafide or criminal intent up to the age of eighteen years.Further, non-stigmatisation principle enunciated under Rule 3, ibid prohibits arrestof juvenile to protect them from mental harassment in judicial custody. Thechildren in most of the criminal cases are victim of circumstances. Arrest bypolice or summoning them as witnesses to the police station for investigationpurpose also put mental harassment to the children. So, it is the impact not the

intent which matters most in the case of juvenile in conflict with law. Suchchildren need to be counseled by the professional counselors. The IntegratedChild Protection Scheme (ICPS) also provides cadre of counselors to provideprofessional counseling service to the families for the care and protection ofchildren. The Family Court Act, 1984 objective of which is to promoteconciliation and speedy settlement of disputes relating to marriage and familyaffairs stipulates the service of counselors in the Act (Section 6). There are FamilyCounselling Centres (FCCs) run by Non-Governmental Organisations withfinancial assistance from Ministry of Women and Child Development throughCentral Welfare Board/ State Welfare Board. The <strong>Committee</strong> recommends thatservices of such professionals trained family counselors may be utilized in theCrime Against Women Cell/Mahila Desk at every police station formediation, conciliation of conflicts arising out of matrimonial relationshipbetween warring spouses which would also take care of custody, care andprotection of their children. The <strong>Committee</strong> reiterates that the recourse toSection 498A or arrest thereunder should not be taken before making anattempt for reconciliation through the assistance of professional familycounselors.13.12 The <strong>Committee</strong> notes with concern that the innocent children who are thevictims under Section 498A IPC are the worst sufferers. It badly affects theirupbringing. The children need the shelter, guardianship, love and affection fromboth mother and father as the parents are the source of inspiration of the child.The <strong>Committee</strong> recommends that there is a need to ensure that provision ofSection 498A should not be invoked in case of juveniles. However in case ofany aberrations, the police must ensure that the children are put under thecare of Child Welfare <strong>Committee</strong> which would arrange for counselling andinterim care of the children in child friendly environment.

MINUTE OF DISSENT30th August, 2011ToChairman,Standing <strong>Committee</strong> on Petitions,Rajya SabhaRespected Sir,I would like to submit some observations to the draft report of petition ofSection 498A of IPC. I have gone through the draft report and I do not agree withsome of the recommendations. Accordingly, I am submitting herewith my note ofdissent on succeeding paras for incorporation in the report:-1. Para 13.2: Though the <strong>Committee</strong> knows that the incident of false cases onaccount of fact or law are limited to 10% of the cases registered under 498A IPC,even the NCW has detailed that cases which are compromised or settled are oftenlisted as mistaken on account of fact. I feel that making the law compoundablewill result in extreme pressure being put on the complainant/petitioner towithdraw her complaint/case. The kind of pressure that is put on women towithdraw criminal cases is also evident in other crimes against women like rape,molestation etc. In any event since women are the more vulnerable partners in amarriage, making 498A compoundable will result in them being coerced andpersuaded to withdraw even genuine cases. I disagree with the observation thatwomen and their families have tendency to rope in as many relatives of thehusband’s family as they can. I feel that there is no basis for assuming that womenare widely abusing the process of law. It is well known that cases of 498A whichget settled out of court are readily quashed by the High Court. At the lower level ifevidence is not given then cases again fall through. In a number of casescompromise and reconciliation takes place and nobody has complained that theyare unable to reconcile because of this law. I firmly believe that 498A a mustremain non-compoundable.2. Para 13.5: The experience related by women’s organizations and groupsclearly shows that the police are extremely reluctant to proceed with a case under

Section 498A and that arrests take place in a very miniscule number of cases. Ifany recommendation regarding prior permission to arrests is made this will goagainst women who are victims of criminal violence. Even in heinous cases ofSection 498A in which violence has taken place no arrests will be made leavingthe husband and or member of his family free to continue to torture the woman. Ifeel it is important to point out that Sections 498A is the only Section in the IPCwhich deals with marital violence. The violence can be on account of dowry butmay also be violence unrelated to dowry as Section 498A clearly states “anywillful conduct which is of such a nature as is likely to drive the woman tocommit suicide or - to cause grave injury or danger of lie, limb or health, whethermental or physical of the woman” would amount to an offence. Thus this Sectioncovers physical beatings/battery/violence and the police in a given case may berequired to arrest immediately. I feel if the mandatory permission of the DCP is tobe taken before arrest in many cases it will be counterproductive.3. Para 13.6: As far as mediation and counselling is concerned, no provisionsneed to be introduced in Section 498A to make the process of counsellingcompulsory. Even in cases of persistent or extreme violence the women is oftencounselled and pressurized to return to the marital home or to withdraw or settlethe case on terms unfavourable to her. If such a provision is added it will result inintimidating even tortured women/victims from taking recourse to law.4. Para 13.8: I do not support the provision that if a complaint is found to befalse by the court the complainant should be punished. If a complaint is notproved it cannot be stated to be false. In fact in a number of criminal casesbecause of lackadaisical investigation and non collection of relevantfacts/statements/documents etc. the case does not get proved. In such cases itwould be absurd and highly unjust to say that these cases are false. Even thecriminal law provides for the manner in which action can be taken against falsecases and no further provision is necessary.5. Paras 13.11 & 13.12: While I agree that a juvenile should not be arrested forcommitting an offence under Section 498A IPC, I feel that the <strong>Committee</strong>’srecommendations are mixing the issue of custody, care and protection of thechildren of the parties with Section 498A. A child who is in conflict with the lawand has committed an offence under 498A will of course have to go through the

process outlined in the Juvenile Justice Act. I do not feel that if a womancomplains then the Child Welfare <strong>Committee</strong> should step in a manner that it maybe abandoned, lost, neglected or abused children. The question of custody willhave to be decided by the guardianship/custody or designated courts in this behalf.While children need both the parents, women/mothers who are gravely injuredand wish to pursue complaints should not be forced/compelled by any mandatoryprovision to reconcile by professional counsellors guided mainly by the concernof children. Such a provision would effectively ensure that women with childrenwould be additionally compelled by the State to withdraw their complaints.Thanking you,Sd/-(P. Rajeeve)

APPENDIX-IPETITION SIGNED BY DR.ANUPAMA SINGH, A RESIDENT OFNEW DELHI PRAYING FORAMEND-MENTS IN SECTION 498AOF INDIAN PENAL CODE, 1860

July 7th, 2008To:The Council of States (Rajya Sabha)The petition of Dr. Anupama Singh, a medical doctor and a resident of HauzKhas, New Delhi.Sheweth,1. That Section 498A was inserted in Indian Penal Code in 1983 to protectmarried Indian women from cruelty, including dowry harassment. Theoffence under this section is cognizable, non-bailable, non-compoundablewith provision to lodge a complaint against the husband or any relative ofthe husband of the woman. The section reads as hereunder:"Whoever, being the husband or the relative of the husband of a woman,subjects such woman to cruelty shall be punished with imprisonment for aterm which may extend to three years and shall also be liable to fine."2. That Section 498A of Indian Penal Code is being fearlessly abused andmisused by a large section of unscrupulous people, who are using law as aweapon for ulterior motives.3. That the abused population is undergoing tremendous harassment andtorture, which includes atrocities inflicted on senior citizens, children,women (including pregnant women) and men.4. That there is an urgent need to address the issue of abuse of this law as interalia the ramifications of its abuse are far more damaging than the lawmakers had ever conceived :(a)This law is being misused rampantly by unprincipled people. Andgiven the time tested benefits it has reaped for them, its abuse is nowwidespread. Infact the gravity of the situation can be assessed fromthe fact that there are several cases of dowry death wherein thesupposedly 'dead victims' have come back alive, and several cases

where the same woman has repeatedly alleged charges under this lawin each of her repeat marriages.(b)(c)(d)(e)(f)(g)This law is being misused by women to enable a get-rich.quickschemeto extort large amounts of money from innocent families.Women, their parents and instigators have used this law to extendthreats and hold innocent families to ransom, thereby pressurizingthem to accede to unjustified demands.This law is being misused by women to alienate the husband from hisparents and siblings, so as to gain control over his finances and socialbehaviour including his lifestyle. Growing instances of abusivebehaviour towards elderlies in families, including parents and seniorcitizens, are another ramification of its abuse.This law is also rampantly misused by those brides and her parentswho conceal true facts about her mental health and educational levelat the time of marriage, thereby adopting fraudulent means to forgethe alliance. When these facts are unearthed by the groom and hisfamily, the bride and her family prefer to take recourse to Section498A of IPC.This law is being misused as a bargaining tool by those women whoindulge in Adultery. When their nefarious acts are exposed they takerecourse to misusing this law, thereby deflecting the needle of crimeon innocent husband and his family. This law being an exception inCriminal law presumes the accused as guilty until proven innocent,hence the woman's word is taken as a gospel of truth. And therefrombegins the saga of unending trials, tribulations and destruction for aninnocent man and his family.The law is being misused to enable divorce so as to revive any premaritalrelationship that the wife may have had as she may haveunwillingly given her consent for marriage to satisfy her parents.The law is being misused to deny custody of child/children to thefather and his family. Intact several cases abound where children have

een wrongfully deprived of fatherly care and affection through suchindiscriminate, rampant misuse of this law.(h)(i)This law is being misused to inflict sufferings on husband and hisfamily to settle scores and to wreak vengeance, thereby posing a gravethreat to the very existence of a peaceful family unit in society. law isto protect, not to destruct. law is as much for protecting the innocentas it is to punish the guilty.The language, content and structure of this law has enabledimplication of thousands of innocent families in false cases. Acomplaint, without any authenticity and without any weight ofevidence, is enough to arrest the husband, in-laws and anyone elsenamed in the complaint, irrespective of whether a crime occurred ornot This has led to arrest of lakhs of innocent citizens (thousands offamilies), with many committing suicide as they are unable to bear theindelible stigma on their honor and reputation.5. That the following statistics corroborate the above contention of thepetitioner:5,01,020 people arrested under Section 498A of IPC2,94,147 people completed trial under Section 498A of IPC58,842 people convicted (out of this many must have appealed tohigher courts)Source: NCRB (2003-2006), Ministry of Home Affairs, Government of India.6. That misuse of Section 498A of IPC has been acknowledged / condemnedby leading authorities:(a)(b)The Supreme Court of India in Sushil Kumar Sharma vs. U.O.I.(2005) said that any misuse of this provision of law amounts tounleashing legal Terrorism. It acknowledged that there are growinginstances of women filing false charges.The World Health Organization (WHO), in its Report on India clearlycited Section 498A as one of the major reasons for growing ElderAbuse in India.

(c)(d)The law Commission in its 154th Report, the Malimath <strong>Committee</strong>Report (on Reforms of Criminal Justice System, 2003) and the 111thReport of the Parliamentary Standing <strong>Committee</strong> on Home Affairs,have all acknowledged that Section 498A is being widely misused.The Center for Social Research (India), in a study on implications ofSection 498A IPC states that "educated and independent mindedwomen misuse the section".7. That there is no remedy / provision in this law:(a)(b)(c)(d)(e)(f)(g)(h)(i)for punishment to people who misuse and abuse this lawfor people who are proved innocent after being falsely implicatedunder this lawfor the indelible stigma that falsely accused people are forced to livewith for the rest of their livesfor the immense financial, social and personal loss borne by thefalsely accusedfor resurrecting the lives of falsely accused and maligned peoplefor discouraging people from filing false casesfor punishment to guilty and corrupt law enforcement agencies whoconnive and collude with complainants to harass and torture thefalsely accusedfor preventing the media from maligning and defaming the falselyaccused innocentsfor citizens to file complaints against women who inflict cruelties andatrocities on them and their family members8. That the Supreme Court of India in Sushil Kumar Sharma vs. U.O.I. &others (JT 2005 (6) SC 266) clearly said that it is for the legislature to findways on how to deal with misuses of this law as well as on how to wipe outthe ignominies suffered during and after the trial by the falsely accused.

9. That the petitioner, therefore, prays for remedy to mitigate the sufferings oflakhs of Indian citizens, who through this law, have been unceremoniouslyexposed to the whims and fancies of corrupt, immoral, unprincipled sectionof society, who for their own personal agendas do not hesitate incommitting the worst possible crime under law, which is Misuse of Law. Itis therefore prayed:(a)(b)(c)(d)(e)that Section 498A be suitably amended so as to make it bailable, noncognizable,and compoundable.that suitable provisions be specifically inserted in Section 498A so asto make it punishable for whosoever misuses or abuses it.that the misuser of this law should be made liable to compensate thefinancial loss suffered by the falsely accused in the process.that the law be made gender neutrall to protect the interests of anyinnocent, be it a man or a woman.that time bound trial should be made a statutory requirement underthis law, with a 6 month maximum limit specified therein.Name of Petitioner Address SignatureDr. Anupama Singh D-40, Hauz Khas Sd/-New Delhi -110016

APPENDIX-IIF .No.3/5/2008-JudI.CellGovernment of India/Bharat SarkarMinistry of Home Affairs/Grih Mantralaya--------Office MemorandumJaisalmer House, Man Singh Road,New Delhi -110011.November 25, 2009Subject:-Petition for amendment to section 498A of IPC--------The undersigned is directed to refer to Rajya Sabha Secretariat letterNo.RS.6(59)/2008-Com.1I dated 31st July, 2008, on the subject cited above andto say that the thrust of the petition is related to misuse of section 498A of IPC(Husband or relative of husband of a women subjecting her to cruelty).2. As the matter is in the concurrent list of the Seventh Schedule of theConstitution of India, the comments of the State Governments/Union TerritoryAdministrations were also sought in the matter. The comments of the Governmentof Arunachal Pradesh, Chhattisgarh, Goa, Haryana, Madhya Pradesh, Meghalaya,Rajasthan, Sikkim, Tripura, Uttarakhand, Andaman and Nicobar Islands, NCT ofDelhi, Chandigarh, Daman and Diu and Lakshadweep have been received so far.Comments of the State-Governments/UT Administrations are enclosed.3. Comments/views of the Ministry of Women and Child Development werealso sought in the matter. That Ministry was of the view that the importantlegislations such as Section 498A IPC, Dowry Prohibition Act 1961 andProtection of Women from Domestic Violence Act, 2005 which provideprotection and legal remedies to women should not be tinkered with. As these arespecial laws governing the same subject matter, these laws need to be harmonizedand uniformly implemented. At the same time, if some set procedures arefollowed, its misuse may be curtailed. Therefore, they suggested that:-

(i)(ii)In order to bring an end to the misuse of these Acts, it would beadvisable if MHA issue advisories to the State Governments tocomply with procedure as laid down in D.K.Basu's case.Mahila desks may be created at Police Stations and 'Crime AgainstWomen Cell' may be created at least at the district level which couldspecifically cater to complaints made by women.(iii) In cases of matrimonial disputes, it is recommended that the firstrecourse should be to effect conciliation and mediation between thewarring spouses and their families and recourse to filing charges U/S498A IPC may be resorted to in cases where such conciliation failsand there appears a prima facie case under section 498A and otherlaws. The Counselling mechanisms envisaged under PWDV Act,2005 should be implemented by State Government and anycounselling of parties should be done only by professionally qualifiedcounsellors and not by the police. The police may considerempanelling professional counsellors with the CAW Cell.4. The Law Commission in its 154th Report has recommended that the offenceunder section 498A IPC be inserted in the Table under sub-section (2) of section320, whereby it can be compounded with the permission of the Court. TheMalimath <strong>Committee</strong> on Reforms of Criminal Justice System has alsorecommended that the offence under section 498A IPC be made bailable andcompoundable. In the light of the aforesaid recommendations and some judicialpronouncements, an attempt was made earlier to amend the section to make theoffence compoundable. However, this could not be pursued because of theopposition from many concerned bodies.5. As a number of representations have been received suggesting amendmentin the said section, the matter has been referred to the Law Commission to studythe usage of this provision and hold consultation and suggest amendment, if any,to the provision. The views of the Law Commission are awaited.6. Since amending the law at this stage is likely to be opposed again by thewomen organizations, advisory has been issued to the State Governments on lines

suggested by the Ministry of Women and Child Development. A copy of the sameis enclosed.Sd/-(Mohinder Singh)Director (Judl.)Te1.No.23074185

Rajya Sabha Secretariat,[Shri Tapan Chatterjee, Joint Secretary]Parliament Hosue Annexe,New Delhi.No. 3/5/2008-Judl. CellGovernment of India/Bharat SarkarMinistry of Home Affairs/Grih Mantralaya.....Jaisalmer House, Man Singh Road,New Delhi - 110 011.ToOctober 20, 2009The Chief Secretaries of State Governments/Union TerritoryAdministrations(As per list attached)Subject: - Misuse of Section 498A of IPC- regardingSir,'Criminal law' and 'criminal procedure' are in the Concurrent List of 7thSchedule to the Constitution of India. Both Parliament as well as State legislaturesare competent to enact laws in regard to these matters. However, enforcement andimplementation of the laws made under these provisions is the domain of the StateGovernments.2. The scourge of dowry crimes has been prevalent in the Indian society for along time and nasty manifestations of crimes relating to dowry as instances ofcruelty to married women have been coming up time and again. Serious concernwas expressed by all right-thinking persons of the country including severalwomen's organizations, social workers and even law courts about this cruelty. Asa consequence thereof, Section 498A was incorporated in the Indian Penal Codein the year 1983 to provide for adequate punishment for any cruelty inflicted on a

married woman by the husband and his relatives. The punishment is imprisonmentfor three years and fine. The offence is cognizable as well as non-bailable.3. The Section reads as follows :-"498A. Whoever, being the husband or the relative of the husband of awoman, subjects such woman to cruelty shall be punished withimprisonment for a term which may extend to three years and shall also beliable to fine."Explanation - For the purposes of this section, 'cruelty' means –(i)(ii)any willful conduct which is of such a nature as is likely to drive thewoman to commit suicide or to cause grave injury or danger to life,limb or health (whether mental or physical) of the woman; orharassment of the woman where such harassment is with a view tocoercing her or any person related to her to meet any unlawfuldemand for any property or valuable security or is on account offailure by her or any person related to her to meet such demand".4. The objective of inserting Section 498A was to protect women beingsubjected to cruelty by the husband or his relatives. The 'explanation' added to theSection, has tried to define what 'cruelty' would in such circumstances, mean.5. While the initial reaction to insertion of Section 498A was more or lesswelcome, of late, representations have been received by the Government allegingmisuse of the provisions of the Section. In some cases, every member of thehusband's household has been arrested irrespective of whether they had a role ininflicting cruelty on the married woman or not. In some cases, the provisions havebeen used to settle personal scores: Cases have been reported where momentaryanger has resulted in invocation of Section 498A, which resulted in the arrest ofthe members of the family shutting down any possibility of reconciliation infuture and a total collapse of the marriage. Even where there is a divorceproceeding, the case under Section 498A continues to persist because of theoffence being non-compoundable.

6. The Delhi High Court in the case of Savitri Devi Vs. Ramesh Chand andothers (Criminal Revision No.462 of 2002) have examined section 498A atlength. The Court among other things observed as follows:–"Before parting, I feel constrained to comment upon the misuse of theprovisions of Section 498A/406 IPC to such an extent that it is hitting at thefoundation of marriage itself and has proved to be not so good for the healthof the society at length. To leave such a ticklish and complex aspect ofproposition as to what constitutes 'marital cruelty' and 'harassment' to invokethe offences punishable under sections 498A/406 IPC to lower functionariesof police like Sub Inspectors or Inspectors whereas some times even courtsfind it difficult to come to the safer conclusion is to give the tools in thehands of bad and unskilled masters.This Court has dealt with thousands of cases and matters relating todowry deaths and cases registered under Section 498A/406/306 IPC arisingout of domestic violence, harassment of women on account of inadequatedowry or coercion of the woman for not fulfilling the demand of dowry andhundred of divorce cases arising therefrom. Experience is not so happy noris implementation or enforcement of these laws is anything but satisfactoryor punctilious.These provisions were though made with good intentions but theimplementation has left a very bad taste and the move has been counterproductive. There is a growing tendency amongst the women which isfurther perpetuated by their parents and relatives to rope in each and everyrelative including minors and even school going kids nearer or distantrelatives and in some cases against every person of the family or thehusband whether living away or in other town or abroad and married,unmarried sisters, sister-in-Iaws, unmarried brothers, married uncles and insome cases grand-parents or as many as 10 to 15 or even more relatives ofthe husband. Once a complaint is lodged under Section 498A/406 IPCwhether there are vague, unspecific or exaggerated allegations or there is noevidence of any physical or mental harm or injury inflicted upon womanthat is likely to cause grave injury or danger to life, limb or health, it comesas 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 hereand there and force them to hide at their friends or relatives houses till theyget anticipatory bail as the offence has been made cognizable and nonbailable.Thousands of such complaints and cases are pending and are beinglodged day in and day out.These provisions have resulted into large number of divorce cases aswhen one member of the family is arrested and sent to jail without anyimmediate reprieve of bail, the chances of salvaging or surviving themarriage recede into background and marriage for all practical purposesbecomes dead." (J.D. Kapoor J).7. Justice Arijit Pasayat of the Supreme Court in the Judgment on a WritPetition (Civil) No.141 of 2005 - Sushil Kumar Sharma vs. Union of India andothers has observed as follows."The object of section 498A is to prevent the dowry menace. But as hasbeen rightly contended by the petitioner many instances have come to lightwhere the complaints are not bonafide and have been filed with obliquemotive. In such cases acquittal of the accused does not in all cases wipe outthe ignominy suffered during and prior to trial. Sometimes adverse mediacoverage adds to the misery. The question, therefore, is what remedialmeasures can be taken to prevent abuse of the well-intentioned provision.Merely because the provision is constitutional and intra virus, does not givea license to unscrupulous persons to wreak personal vendetta or unleashharassment. It may, therefore, become necessary for the legislature to findout ways how the makers of frivolous complaints or allegations can beappropriately dealt-with':8. The Supreme Court has in one case opined that no arrest need be made onlybecause it is Iawful for the police officer to do so. The police officer must be ableto justify the arrest apart from his power to do so. No arrest should be made in aroutine manner on a mere allegation of commission of an offence made against aperson.9. In the light of the above judicial pronouncements, an attempt was madeearlier to find a via media by amending this Section to make the offence

compoundable. However, this could not be pursued because of the oppositionfrom women organisations.10. Further, the views of the Ministry of Women and Child Development on theissues are that the important legislations such as Section 498A IPC, DowryProhibition Act 1961 and Protection of Women from Domestic Violence Act,2005 which provide protection and legal remedies to women should not betinkered with. As these are special laws governing the same subject matter, theselaws need to be harmonized and uniformly implemented. At the same time, ifsome set procedures are followed, misuse of laws may be curtailed.11. Since amending the law at this stage is likely to be opposed again, in orderto lay to rest the allegation of misuse of Section 498A of IPC, the StateGovernments are requested kindly:(a)(b)(c)To comply with the procedure as laid down in D.K. Basu's case. TheHon'ble Supreme Court in its judgement dated 18.12.96 in CRL CWPNO.539/86 - D.K. Basu vs. State of West Bengal has stated that thepower of arrest without a warrant should be exercised only after areasonable satisfaction is reached, after some investigation, as to thegenuineness and bonafides of a complaint and a reasonable belief asto both the person's complicity as well as the need to effect arrest.Therefore in any matrimonial dispute it may not be necessary in allcases to immediately exercise the powers of arrest. Recourse may beinitially taken to dispute settlement mechanism such as conciliation,mediation, counselling of the parties etc.Mahila desks may be created at Police Stations and 'Crime AgainstWomen Cell' may be created at least at the district level which couldspecifically cater to complaints made by women.In cases of matrimonial disputes, the first recourse should be to effectconciliation and mediation between the warring spouses and theirfamilies and recourse to filing charges U/S 498A IPC may be resortedto in cases where such conciliation fails and where there appears aprima facie case under section 498A and other lows. The Counsellingmechanisms envisaged under PWDV Act 2005 should be instituted byState Government and any counselling of parties should be done only

y professionally qualified counsellors and not by the police. Thepolice may consider empanelling professional counsellors with theCAW Cell.12. All the State Governments/UT Administrations are requested to takeeffective measures in the light of the directions/orders issued by the Courts andadvisories issued by the Government of India from time to time to put to rest theallegations of misuse of section 498A of IPC.13. The receipt of this letter may please be acknowledged.Yours faithfullySd/-(Shashi Bhushan)Joint Secretary (Judicial)Ph. 23385020

F.No. 19-1/2009-WWGovernment of IndiaMinistry of Women and Child Development WWW SectionAPPENDIX-IIIRESPONSE OF MINISTRY OF WOMEN AND CHILD DEVELOPMENTON PETITION PRAYING FOR AMENDMENTS TOSECTION 498A INDIAN PENAL CODEAbout Section 498A IPCThe scourge of dowry crimes has been prevalent in Indian society for a longtime and nasty manifestations of crimes relating to dowry as instances of crueltyto married women have been coming up time and again. Serious concern wasexpressed by all right-thinking persons of the country including several women'sorganizations social workers and even law courts about this cruelty. As aconsequence thereof, Section 498A was incorporated in the Indian Penal Code inthe year 1983 to provide for adequate punishment for any cruelty inflicted on amarried woman by the husband and his relatives. The punishment is imprisonmentfor three years and fine. The offence is cognizable as well as non-bailable.The objective of inserting Section 498A was to protect women beingsubjected to cruelty by the husband or his relatives. The 'explanation' added to theSection, has tried to define what 'cruelty' would in such circumstances, mean. Forthe purpose of this section, cruelty means:(i)(ii)Any willful conduct which is of such a nature as is likely to drive thewoman to commit suicide or to cause grave injury or danger to life,limb or health (whether mental or physical) of the woman; orHarassment of the woman where such harassment with the view tocoercing her or any person related to her to meet any unlawfuldemand for any property or valuable security or is on account offailure by her or any person related to her to meet such demand.Over time, representations have been received by the Government allegingmisuse of the provisions of the Section. After examining such representations inconsultation with the National Commission for Women, the Ministry of Women

and Child Development conveyed to the Ministry of Home Affairs that Section498A IPC and other laws such as Dowry Prohibition Act and Domestic ViolenceAct are important legislations which provide protection and legal remedies towomen and these should not be tinkered with and at the same time, if some setprocedures are followed, its misuse may be curtailed. Ministry of Home Affairswas further informed in September, 2008 that it would be advisable if they issueadvisories to the State Governments to comply with the procedure as laid down bythe Hon'ble Supreme Court in its Judgment dated 18.12.1996. Accordingly, theMinistry of Home Affairs vide their letter dated 20.10.2009 sent an advisory to allthe State Government/UT Administrations on misuse of Section 498A. Thisadvisory emphasised on the following:Power to arrest without warrant should be exercised only afterreasonable satisfaction as to bona fides of a complaint;In matrimonial disputes, it may not be necessary to exerciseimmediate power of arrest but to attempt recourse to other disputesettlement mechanisms;Recourse to filing charges under Section 498A IPC may be resorted towhere conciliation fails and where there appears a prima facie caseunder the provision or other laws. Counselling should be conductedby professional trained counsellors and not the police. The mechanisminstituted under PWDVA may be used for this purpose.In addition the Cr. PC, under Section 41, provides for "when police mayarrest without warrant". This provision gave a police officer the discretion toarrest any person on commission of a cognizable offence or on the basis of areasonable complaint or reasonable suspicion in this regard. However, Section 41has now been amended vide the Criminal Procedure Code (Amendment) Actsof 2008 and 2010, to restrict this discretionary power of the police. As per theamendments, an arrest without warrant in case of a reasonable complaint orreasonable suspicion can only be made under certain specific circumstances whichhave been enumerated.Situational Analysis

As per the National Crime Records Bureau, there has been a steadyincrease in the number of cases under Section 498A IPC. In the year 2009 alone,a total of 89,546 cases were registered under this section, which is an increase ofover 10% from the previous year.The data shows that in 2009, pendency of cases was high at 86.3%(2,78,921 out of a total 3, 23,355 cases). The cases disposed of (in which trial wascompleted) were only 11.5% (37,323 cases). Of this, convictions took place in19.8% (7380) of the cases of the total 3,23,355 cases was 2.2% (7,111) werecompounded or withdrawn.Further, as per the NCRB, in 2009, of the cases in which investigation wascompleted by the police, charge sheets were submitted in about 85% of caseswhile final report true was submitted in about 5% cases filed under Section 498AIPC. This indicates that prima facie close to 90% of the complaints had meritwhile 10% of the cases, charge was found to be false/there was mistake of law orfact. It is significant that barring some offences such as hurt, molestation, sexualharassment etc., Section 498A has the highest percentage of charge sheetssubmitted.Concerns raised in PetitionThe present petition under consideration of the Hon'ble <strong>Committee</strong> raisescertain specific concerns with regard to alleged "misuse" of Section 498A IPC,which briefly are as under:Repeated cases under Section 498A IPC filed by the same woman, ineach marriage she has entered into;Women and their parents use the law to coerce the other party to settlefor monetary compensation;Growing elder abuse as a result of Section 498A IPC complaints;Using the provision as a bargaining tool by women, particularly thosewho are in adulterous relationships;Denial of custody of children and settling of scores against thehusband and his family.

In this background, the petitioner has prayed that Section 498A IPC shouldbe amended to:Make it bailable, non-cognizable and compoundable;Make it gender neutral;Insert a specific provision, prescribing punishment for misusing orabusing the law and that such person should be liable to compensatefinancial loss suffered by the falsely accused person(s); andProvide for time-bound trial, with a 6 month limit specified.Views of MWCDThe legislative history of Section 498A IPC shows that the provision wasenacted to address the specific need of protecting married women from crueltyperpetrated within the matrimonial home. NCRB data on Section 498A and 304BIPC (dowry death) shows, cases of dowry related violence have still not gonedown. Section 498A IPC is as relevant today as it was some 30 years ago andthere is no case for its dilution. A statement showing the increasing trend in casesregistered under Sections 498A and 304B IPC from 2005 to 2008 is as under:Crime Head 2005 2006 2007 2008 2009 Percentage \Variation in2009 over2008Torture 58,319 63,128 75,930 81,344 89,546 10.1(Section498A IPC)Dowry 6,787 7,618 8,093 8,172 8,383 2.6Deaths(Section304B IPC)Source: NCRB, Crime in India, 2009

Given the objective with which Section 498A was introduced and the factthat dowry related violence is continuing to increase, the Ministry is of the viewthat the status quo should be maintained. This would ensure that the deterrenteffect of the provision is not diluted and interests of genuine complainants areprotected. Any issue related to "misuse" would fall in the realm of implementationand would need to be addressed separately.Further, with the enactment of the Protection of Women from DomesticViolence Act, 2005 (PWDVA), women have recourse to civil remedies such asprotection orders as well as various support services. PWDVA also provides forcounselling of the parties to arrive at an amicable settlement, at the option of theaggrieved woman. To facilitate this, the Act lays down detailed provisions on whomay be appointed as counsellors and the procedure to be followed for conductingcounselling.The result is that under the existing legal framework, women seeking civilremedies or desirous of conciliation may approach the PWDVA while only inthose cases where she wants criminal action, she may take recourse to Section498A IPC. The focus should, thus, be on effective implementation of theprovision through sensitization of law enforcement agencies, lawyers andjudiciary as well as encouraging use of the provisions of the PWDVA.It is in this background that a point-wise response to the prayer made in thepetition is placed as under:(i) Making Section 498A non-cognizable, bailable and compoundableThe petition prays that Section 498A IPC should be amended to make theoffence non-cognizable, bailable and compoundable. The rationale is that thiswould prevent victimisation of the husband and his relatives, including elderlyparents, in cases where the complaint is frivolous in nature.In this context, it is submitted that given the stigma attached to legal actionin matrimonial matters and women's lack of economic independence, Section498A IPC is often the last resort for married women. Not only this, even in caseswhere she decides to take legal recourse, she faces barriers in the form of lack ofempathy from the police and prosecution, threat of counter litigation such as filing

of divorce or custody proceedings by the husband and even lack of support fromher natal family.In the study "Section 498A IPC: Used or Misused" conducted by Centre forSocial Research which has been quoted in the petition, the findings show that allthe women victims who were interviewed said that they sought legal redressalonly in extreme situations, at the risk of dissolving the marriage, and after bearingmental and physical torture. 80% of the victims had filed a case afterexperiencing severe DV for three years. In fact, all the respondents in the studywere against making Section 498A a bailable and compoundable offence (pg. 33).A non-cognizable offence prevents the police from registering a FIR,investigating, or ordering an arrest without the express permission ordirections from the court. Making Section 498A IPC non-cognizablewill place a huge burden on women who will have to go through thejudicial process to file an initial complaint thus creating anotherbarrier to their access to justice.As regards the suggestion that the provision should be made bailable,it is the Ministry's view that this would make it easier for theperpetrators to misuse the provision by easily obtaining bail from thepolice station. This would in turn, make the complainant morevulnerable to further violence, not only diluting its deterrent effect butalso discouraging women from filing complaints. Further, inRavindra Saxena vs. State of Rajasthan (2009), the Supreme Courthas reiterated the principles laid down in its earlier judgment inGurbaksh Singh Sibbia and others vs. State of Punjab (1980) andheld that anticipatory bail, in case of non-bailable offences, can begranted under Section 438 CrPC anytime as long as the accused hasnot been arrested for an offence. This provision has been used toobtain anticipatory bail under Section 498A IPC.The status quo should, therefore, be maintained, with the discretion ofgranting bail continuing to vest with the Magistrate.In this context, one of the apprehensions expressed has been ofindiscriminate and unwarranted arrests by the police due to the

provision being cognizable. In this regard, the Ministry is of the viewthat this can be addressed through a combination of legal response andadministration action on part of States/UTs.Reference has already been made to the CrPC Amendment Act of2008 which has amended Section 41 to incorporate additionalsafeguards, not only to protect the rights of the accused but also toensure that no one is unnecessarily harassed or victimised because ofdiscretionary exercise of power of the police to arrest without warrant.This aspect can be further taken care of if the courts are asked tospecifically adjudicate on whether the arrests made in the case werejustified/ made without prima facie evidence/in collusion withperson(s) filing false complaint. This is important and is required tomake the police officers accountable for each act of arrest, as it is thiswhich if not checked, can do irreparable damage and bring disreputeto the family of the accused. This needs to be put under check of thejudiciary as they are the final arbiter in the matter.On the administrative front, the MHA Advisory relating to 'Misuse ofSection 498A of IPC - regarding' puts effective fetters onunwarranted arrests. Further, some States/UTs like Andhra Pradeshand Delhi have taken administrative action in the form of specificdirections to the effect that an FIR could be lodged and arrest madeunder Section 498A IPC only with prior approval of the DCP/DSP,thus, ensuring that litigation would be initiated only after thebonafides of the complaint have been ascertained. Moreover, withrespect to relatives of the husband, Delhi Police guidelines providethat arrests can be made only with the prior written approval of theDCP.Amending Section 498A IPC to make it compoundable universallymay not be desirable. More so, because already in cases wheresettlements/compromises are being arrived at, the FIRs filed arequashed by the High Courts invoking its inherent power under Section482 CrPC.

This is in pursuance of the judgment of Supreme Court in B.S. Joshi& Ors. vs. State of Haryana (2003), where it was observed that ahyper technical view with regard to Section 498A IPC would becounter productive and would act against the interests of women.Hence, by virtue of this inherent power, such cases where the partiesarrive at a settlement do get compounded.Further, as mentioned earlier, the PWDVA provides for acomprehensive mechanism for counselling between the parties toarrive at a settlement (Section 14 read with Rule 14 of PWDVA).With effective implementation of the Act which includes appointmentof trained counsellors, more and more women may opt, in future, forcounselling under the PWDVA. We expect that over a period of time,increasing use of PWDVA and its provision on counselling wouldlead to a decrease in the number of complaints filed under Section498A IPC. In fact, there is a need for sensitization of the police so thatthey can encourage women approaching them to use the PWDVA.Finally, making Section 498A IPC compoundable would not addressthe concerns regarding "misuse" of the law. It is submitted that since acomplaint under the provision can only be compounded at thediscretion of the complainant, any legal action initiated with mala fideintention would not be covered. The amendment would thus, notaddress abuse of the law but result in detrimentally affecting womenwith bona fide allegations.While it may be true that like any other legal provision, mala fideallegations may be filed under Section 498A IPC, this can be effectivelyaddressed within the existing legal framework such as provisions under thecriminal law for filing a false case (Section 211 of IPC) or for perjury/giving falseevidence (Sections 191 & 193 of IPC). Cognizance of a case under any of theabove provisions can be taken by a competent Court as per Section 340 read withSection 195 of the CrPC. Further, the apex Court and High Courts also haveinherent powers to take cognizance of such cases and impose penalties in the formof fine.

One of the legal remedies that can be further considered for preventingfiling of false complaints is by making it punishable under the IPC. The law canbe amended to provide that the person filing a false complaint will faceimprisonment upto 6 months. This will act as a deterrent because the complainantwill be aware of the consequences which may follow if the complaint is found tobe false by the Court, at any stage of the proceedings. However, to ensure thatbona fide complainants are not victimised, adequate safeguards would need to beincorporated to the effect that,mere inability to substantiate the complaint or provide adequate proofwould not make a person liable for punishment under this provision;andmalicious intent or falsehood on part of the complainant shall have tobe established through judicial adjudication in accordance with theprocedure established by law. Hence, the due process of law wouldfirst need to be completed before any action is taken against acomplainant in this regardIn Sushil Kumar Sharma vs. Union of India (JT 2005 (6) SC 266) whichhas been quoted in the petition to support amendments to the law because of thewords "legal terrorism" used therein, the Hon'ble Supreme Court has upheld theconstitutional validity of Section 498A. Not only this, the Court observed that "Itis well settled that mere possibility of abuse of a provision of law does not per seinvalidate a legislation. It must be presumed, unless contrary is proved, thatadministration and application of a particular law would be done "not with an evileye and unequal hand".With regard to the contention in the petition that the burden of proof rests onthe accused, the issue has been conclusively decided in Gurbachan Singh vs.Satpal Singh (AIR 1990 SC 20). In this case, the Hon'ble Supreme Court held thatthe initial burden to prove that the accused has subjected the woman to cruelty ison the prosecution. At that stage the provisions of Section 113 A of the EvidenceAct would not be invoked. It is only after the initial onus has been discharged thatthe Court can invoke Section 113 A. This clearly indicates that unless the

prosecution initially presents a water-tight case with sufficient evidence of crueltythe case will not proceed.(ii)Gender neutralityAs regards the contention that the provision should be made genderneutral so as to ensure equality, it is reiterated that Section 498A IPCwas enacted in the exercise of the constitutional power of making"special provisions for women and children", guaranteed underArticle 15(3). It has been enacted with the specific purpose ofprotecting women within the privacy of their matrimonial home. If thelaw is made gender neutral, it will fall within the realm of lawsrelating to assault which have already been provided for in the IndianPenal Code. Thus, making the law gender-neutral will nullify the verypurpose of the law.The issue of gender neutrality of laws has been raised in a number ofcases before the Supreme Court. As early as 1954 in Yusuf AbdulAziz vs. State of Bombay (AIR 1954 SC 321), the Hon'ble Court heldthat any law making special provisions under Article 15(3) cannot bechallenged on the ground of contravention of Article 14. In KrishanLal vs. Union of India (1994 Cr.LJ 3472 (P&H)) it was held "thehusband and relatives of husband of a married woman form a classapart by themselves and it amounts to reasonable classificationespecially when a married woman is treated with cruelty within thefour walls of the house of her husband and there is no likelihood ofany evidence available". Thus, the constitutional validity of Section498A IPC has been upheld in a series of judgments.(iii) Punishment for MisuseAs mentioned above, the criminal laws already provide for punishment topersons filing a false complaint or giving false evidence before the court. WhileSection 211 of IPC deals with filing a false case, Sections 191 & 193 of IPCprovide penalties for perjury or giving false evidence. The apex court and High

Courts have inherent powers under the CrPC to take cognizance of such cases andimpose penalties in the form of fine.These provisions apply in cases of offences where an injury is either causedor there is an intention to cause an injury to any person for not having committedthe offence. 'Injury' is defined under Section 44 of the IPC and includes harm tobody, mind, reputation or property. Additionally, a provision for punishing falsecomplaints or misuse of Section 498A IPC can be considered because of the highnumber of such complaints amounting to 10% at present, which includes cases ofmistake of law or fact as well as misclassification. In our view, it is the falsecomplaints which shake the faith of the people and, specially, of those who suffer,in the law as well as the implementers. Therefore, it may be a good idea to make aspecific provision, subject to it being legally feasible, spelling out the punishmentfor the complainant in case of a false complaint.As regards, compensation to the accused in case a false complaint has beenfiled, as mentioned above, the existing legal provisions, such as Section 211 of theIPC adequately address the issue.(iv) Time limit for completion of trialIt is proposed that a timeline of maximum of 60 days may be prescribed forcompletion of trial under Section 498A IPC. The Ministry agrees with the idea fortime-bound disposal of cases so as to provide speedy justice to victims. But theproposed 60 days are short. This will have to be a reasonable period within whichthe Courts are able to deliver justice, given the rush of cases. Therefore, withoutcomprehensive reforms of the judicial system, including effective casemanagement mechanisms, it may not be possible to adhere to the timeline, shouldit be prescribed ambitiously. Past experience has been that the timelines, such asthose envisaged under Section 125 CrPC and the PWDVA are not being adheredto.Further, the Ministry believes that sensitization of judicial officers andconstitution of Fast Track Courts to deal exclusively with women-related lawswill also help in addressing the issue of delays.

On a consideration of the issues raised in the petition as also the data andjudgments relating to Section 498A IPC, the Ministry is of the view that makingthe law bailable, compoundable and non-cognizable would dilute its deterrenteffect and would be detrimental to the interest of women with bona fideallegations of cruelty. The Ministry hopes that effective implementation of thePWDVA and facilitating counselling under it would provide women with theoption to explore possibility of conciliation and would in the longer run, reducethe number of cases filed under Section 498A IPC. However, incorporation ofsome checks and balances against abuse of the provision may be considered,which includes:Provision of imprisonment upto 6 months for a complainant who filesa false complaint, as adjudicated by the Courts at any stage of theproceedings. Adequate safeguards will, however, need to beincorporated to protect interest of bona fide complainants; andEmpowering Courts to specifically adjudicate on whether the arrestsmade by the police were justified/ made without prima facieevidence/in collusion with person(s) filing false complaint.The legality of adding these provisions will need to be examined separately.

MINUTES OF THEMEETING OF THE COMMITTEEAPPENDIX-IV

Record Note of the sitting of <strong>Committee</strong> on PetitionsThe <strong>Committee</strong> assembled at 3.00 P.M. on Monday the 29th November,2010 in Room No. 63, First Floor, Parliament House, New Delhi.MEMBERS PRESENT1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Ram Vilas PaswanSECRETARIAT1. Shri Deepak Goyal, Joint Secretary,2. Shri Rakesh Naithani, Joint Director,3. Shri Ashok K. Sahoo, Deputy Director4. Shri Goutam Kumar, <strong>Committee</strong> OfficerWITNESSESI. * * *II.On petition praying for amendments in Section 498A of IndianPenal Code, 1860:1. Dr. Anupama Singh2. Ms. Preeti Goyal3. Shri R. S. Jain, and4. Shri Yogesh Koda2. The chairman at the outset informed the <strong>Committee</strong> that Press Release wereissued on the following three petitions under its examination which appeared inNational dailies on saturday, 27th November, 2010 :-(i) * * *(ii) * * *(iii) Petition signed by Dr. Ranjana Kumari and others praying for urgentneed to curb female foeticide.3. * * *

3.1 * * *4. * * *5. The <strong>Committee</strong> then took up the petition praying for amendments to Section498A of Indian Penal Code, 1860 in view of its gross misuse and low convictionrate and that too after protracted litigation. Chairman briefly touched upon one ofthe prayers of the petitioners to make Section 498A of IPC bailable, noncognizableand compoundable in the background of the issues highlighted in thepetition and asked the petitioner to elucidate the prayer detailed in her petition.6.0 The petitioner made a power point presentation to put forth her point ofview on the subject matter of the petition. According to her, the prime objective ofSection 498A of IPC was to protect married women against dowry harassmentand cruelty, which is being fearlessly abused and misused by a large sectionunscrupulous people with ulterior motive as a result of which, many innocentcitizens including senior citizens, minor children, women (including pregnant one)have been harassed. Such harassment is aggravated because of the fact that theseprovisions of the IPC are non-bailable and non-compoundable. The said law hasbeen equally misused by women to become rich by extorting large sum of moneyfrom the families of her husband, particularly the NRI bridegroom. The SupremeCourt of India, the World Health Organisation (WHO), the 154th LawCommission Report, the Malimath <strong>Committee</strong> Report and the 111th Report ofStanding <strong>Committee</strong> on Home Affairs have acknowledged widely reported misuseof this law. It has been used as a bargaining tool by some women.6.1 The petitioner further informed the <strong>Committee</strong> that during the year 1995 to2006, the number of cases have increased by 120% and 1,40,000 people had beenarrested under the said provision. It was informed that 30% of bail applicationsbefore the Courts pertain to Section 498A. NRI grooms are the most vulnerablesection being tortured under these provisions. Accordingly the petitioner prayed tomake the law bailable and compoundable; no arrest to be made unless absolutelynecessary; provision of stringent punishment for abusers of Section 498A of IPC.In the end the petitioner added that an evaluation of post implementation ofSection 498A might be carried out to assess its deterrent effect.

6.2 One of the supporters of the cause of the petition narrated his case of tortureand arrest by police as an example of misuse of the Section 498 A to buttress theprayers of the petitioner.7. The Chairman thanked the petitioner for taking up public spirited petitionon behalf of the affected section of the society. He assured the petitioner that the<strong>Committee</strong> would make field study and consult stakeholders before arriving at anyconclusion on the prayers of the petitioner.8. A verbatim record of the proceedings of the meeting was kept.9. The <strong>Committee</strong> adjourned at 5.00 P.M.

VISIXTH MEETINGThe <strong>Committee</strong> met at 3.00 P.M. on Thursday, the 17th February, 2011 in<strong>Committee</strong> Room 'A', Ground Floor, Parliament House Annexe, New Delhi.MEMBERS PRESENT1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Nandi Yellaiah3. Shri Avinash Pande4. Shri Rajaram5. Shri P. RajeeveSECRETARIAT1. Shri Deepak Goyal, Joint Secretary,2. Shri Rakesh Naithani, Joint Director,3. Shri Ashok K. Sahoo, Deputy Director4. Shri Goutam Kumar, <strong>Committee</strong> OfficerRepresentatives of Ministry of Home Affairs1. Shri Gopal Krishan Pillai, Home Secretary2. Shri D.R.S. Chaudhary, Special Secretary3. Shri K.C. Jain, Joint Secretary4. Shri J.L. Chugh, Joint Secretary5. Shri Sadakant, Joint Secretary6. Dr. M.C. Mehanathan, Director7. Shri Arvind Kumar, Principal Resident Commissioner,Government of Sikkim2.0 The Chairman in his opening observation apprised the Members that theHome Secretary had been invited to depose before it on two important petitions,namely, (i) petition praying for protection of interest of bona fide Indian nationalsresiding in Sikkim prior to its merger with India in 1975; and (ii) petition prayingfor amendments in Section 498A of Indian Penal Code, 1860.

2.1 * * *3. * * *4.0 * * *4.1 * * *4.2 * * *4.3 * * *4.4 * * *4.5 * * *5.0 The <strong>Committee</strong>, thereafter, took up for consideration the petition praying foramendments in Section 498A of Indian Penal Code, 1860.5.1 The Chairman in his initial observation on the said petition made a mentionthat Section 498A which was intended to protect the women from cruelty ofhusband and his relatives had been reportedly misused grossly. Instances havebeen heard where the police had arrested elderly parents, unmarried sister,pregnant sister-in-Iaws and even little children without investigation, because ofharsh provisions of the said Section. The petitioners had, therefore, prayed forsuitable modifications, i.e., to make the offence non-cognizable, noncompoundableand bailable in order to check its misuse. He requested the HomeSecretary to make a presentation on the said petition inter-alia touching upon therate of misuse of the Section, steps taken to curb its rampant misuse and alsothinking of Union Government on the proposals of various State Governments forenacting amendments therein.5.2 The Home Secretary submitted that the issue of amendment to Section498A of IPC so as to make it bailable, compoundable had been discussed in greatdetail. Justice Malimath <strong>Committee</strong> and the Parliamentary Standing <strong>Committee</strong> onHome Affairs had proposed amendment in Section 498A on the above lines, inview of its rampant misuse. But the Ministry of Women and Child Developmentwas not in favour of making it bailable and compoundable as a result of which theHome Minister had to withdraw the proposed legislation from the Cabinet. Inpursuance of recommendations of Standing <strong>Committee</strong> on Home Affairs to bring

a comprehensive legislation to both IPC & Cr PC, the Home Ministry with theapproval of present Home Minister had written to the Law Commission to bringabout comprehensive amendments to both IPC & CrPC including amendment toSection 498A of IPC. This exercise would be completed by July, 2011.5.3 The <strong>Committee</strong> desired that urgent steps may be taken, pending the outcame of the deliberations of the Law Commission, to check atrocities on innocentpeople under Section 498A, IPC, since most of the States had suggestedamendment to the said Section.6. A verbatim record of proceedings of the Meeting was kept.7. The meeting ended at 4.10 P.M.

XIITWELFTH MEETINGThe <strong>Committee</strong> met at 12.00 NOON on Friday, 3rd June, 2011 in <strong>Committee</strong>Room 'A', Ground Floor, Parliament House Annexe, New Delhi.MEMBERS PRESENT1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Nandi Yellaiah3. Shri Rajaram4. Shri Paul Manoj Pandian5. Shri Veer Pal Singh Yadav6. Shri P. Rajeeve7. Shri Ram Vilas PaswanSECRETARIAT1. Shri Deepak Goyal, Joint Secretary,2. Shri Rakesh Naithani, Joint Director,3. Shri Ashok K. Sahoo, Deputy Director4. Shri Goutam Kumar, <strong>Committee</strong> OfficerList of representatives of NGOs on the petition praying for amendment inSection 498A of the Indian Penal Code, 1860:I. Women Power Connect, Safdarjung Enclave, New Delhi1. Dr. Ranjana Kumari, President2. Dr. N. Hamsa, Executive Director3. Mr. Soumya Bhaumik, Legal Consultant4. Ms. Subashini Perumal, Programme AssociateII. Partners for Law in Development, Jangpura Extension,New Delhi1. Ms. Madhu Mehra2. Ms. Urvashi Butalia

III. All India Democratic Women's Assocation, Talkatora Road,New Delhi1. Ms. Kirti Singh, Legal Convenor2. Ms. Albeena ShakeelIV.Swayam, Deodar Street, KolkataMs. Anurahda Kapoor, DirectorV. Centre for Women's Development Studies, Bhai Vir SinghMarg, New Delhi1. Dr. Mary E. John, Director2. Dr. Indu Agnihotri, Deputy Director2. At the outset, the Chairman apprised the Members that more than 2,500written memoranda have been received on the petition praying for amendments inSection 498A of the IPC, 1860. More number of memoranda are in favour ofproposed amendment. To begin with organizations, that have opposed theamendment, have been invited to depose before the <strong>Committee</strong>. Referring to thesubject matter of the petition, he mentioned that the petitioner has prayed to makethe Section 498A of IPC bailable, compoundable, and non-cognizable in view ofits gross misuse. Many unmarried sisters, elderly parents and even youngerchildren have been arrested by the police under the law on a plain complaint of awoman or her relatives without proper investigation.3.0 The Chairman next welcomed the witnesses and asked them to give theirintroduction in the first instance. Thereafter, they were given the floor to presenttheir view point on the subject.3.1 The witnesses in their deposition submitted that domestic violence,particularly against women in their matrimonial home, is a common phenomenonin India and also a serious offence which is consistently increasing. They quotedthe National Crime Record Bureau (NCRB) statistics from 2003 to 2009 tobuttress their submissions. They also referred to statistics of the National FamilySurvey of India in accordance of which 37% of married women have experiencedsome sort of physical, mental and sexual violence in their matrimonial home.

3.2 Referring to the background of enactment of Section 498A, the witnessessubmitted that Sections 498A as well as 304B were inserted in IPC way back in1983 and 1986, respectively, to check dowry death and torture related to demandfor dowry because the Dowry Prohibition Act, 1961 and even Section 306 of IPCwere not effective to contain and control these heinous crimes against women.Section 498A was enacted after long debate within the legal community, inParliament and following agitation by women parliamentarians and womenorganizations in the country. Prosecution under Section 304B of IPC is contingentupon the proof of cruelty as defined under Section 498A. Between 40 to 50%domestic violence cases against women go unreported because women never wantto break their family by lodging case against their husband; she goes to policeonly after suffering prolonged harassment and torture in her matrimonial home.There is low conviction rate of cases relating to Section 498A because the womanhappens to be the weaker party in the case and is unable to gather the evidence ofcruelty against her husband and family of in-laws. Arrest of younger children bythe police under Section 498A of IPC is violative of another legislation, namely,Juvenile Justice Act, 2000.3.3 The witnesses averred that in the event of making the Section 498A bailableand compoundable, women and their families would have to go to a JudicialMagistrate for registering the case and only thereafter, arrest can be effected bythe police. At that point, recourse to mediation and reconciliation at communitylevel may be taken by the police but, in the mean time, the woman may commitsuicide because of torture. Section 498A, provides an apt remedy to the torture ofwomen in matrimonial home.3.4 It was added that the menace of dowry is rampant in our country and linkedto it is the child sex ratio which is dwindling over the years because of femalefoeticide being done clandestinely in our society. Around 85% of women in Indiaare caught in a relationship of dependency because they are not paid for the workdone by them. They opposed the amendment to the law because the need for it hasnot yet arisen in the society. The witnesses mentioned that the reasons of misuseof Section 498A as cited by the petitioner, for amendment of the law are notconvincing, particularly in the face of increasing crime against women and dowrydeaths. Furthermore, misuse of Section 498A can be checked by other Sections ofIPC (182, 203, 209 and 211). The witnesses explained that instead of tampering

with the law, the police needs to be sensitised about the directions given by theSupreme Court in D.K. Basu Vs. State of West Bengal (1997) case which regulatethe power of arrest by the police.3.5 The witnesses said that the petitioner has not disclosed her locus in the case;she has submitted unsubstantiated data in support of her prayer which iscontradictory to the ground reality in the society.4.0 A query was raised about any survey having been done to ascertain thenumber of false cases filed as well as complaints lodged with judicial Megistratefor false prosecution. In response to the said query, it was submitted that theCentre for Social Research has been engaged to find out the reasons for lowconviction rate of cases filed under Section 498A, which is on the verge ofcompletion after which the findings will be submitted to the <strong>Committee</strong>. Anotherquery whether any women organizations were ever given the opportunity topresent their viewpoint before Justice Malimath <strong>Committee</strong> which has suggestedfor amendment to Section 498A, was also raised and in response to that thewitnesses submitted that the Amnesty International Report (2003) mentioned thatno women organizations were ever invited before Justice Malimath <strong>Committee</strong>.4.1 The response of the witnesses were also sought as to how the problem ofarrest of elderly parents who are not actually party to the crime and not residingwith the daughter in-law but are arrested because of having blood relationshipwith the son could be tackled without amending the Section 498A of IPC. Whilesumming up the Chairman stressed on the dire need for curb on marriage expensesto check the demand of dowry in the society. Thereafter, he told the witnesses thatthey could send supplementary points to their deposition to the <strong>Committee</strong>, if theywanted.5. A verbatim record of the proceedings of the meeting of the <strong>Committee</strong> waskept.6. The meeting adjourned at 1.40 P.M.

XIIITHIRTEENTH MEETINGThe <strong>Committee</strong> met at 11.00 A.M. on Wednesday, 29th June, 2011 in Main<strong>Committee</strong> Room, Ground Floor, Parliament House Annexe, New Delhi.MEMBERS PRESENT1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Rajeev Shukla3. Shri Avinash Pande4. Shri Rajaram5. Shri Veer Pal Singh Yadav6. Shri P. Rajeeve7. Shri Ram Vilas PaswanSECRETARIAT1. Shri Deepak Goyal, Joint Secretary,2. Shri Rakesh Naithani, Joint Director,3. Shri Ashok K. Sahoo, Deputy Directbr4. Shri Goutam Kumar, <strong>Committee</strong> OfflcerList of representatives of NGOs/individuals on the petition praying foramendment in Section 498A of the Indian Penal Code, 1860:I. Shri Govind Ram Miri, Ex-MP, Rajya Sabha.II.Bhavya Foundation, Shalimar Garden, Sahibabad, Ghaziabad.1. Shri Kamal Vikram, President2. Ms. Madhu KishwarIII. Bureaucracy Today, Kasturba Gandhi Marg, New Delhi.Shri Suhaib Ilyasi, Editor-in-ChiefIV.Gender Human Rights Society, I.P. Extension, Delhi.1. Shri Sandeep Bhartia, President

2. Mrs. SwarnlataV. All India Mother-in-Law Protection Forum, Rohini, Delhi.1. Mrs. Saroj Rani, Executive Member2. Mrs. M. Puri, Executive MemberVI.Indian Social Awareness and Activism Forum (INSAAF),C. R. Park, New Delhi.1. Shri Niladri Shekhar Das, Co-ordinator2. Mrs. Ekta Singh, General SecretaryVII. Children's Rights Initiative For Shared Parenting (CRISP),Hauz Khas, New Delhi.1. Shri Kumar V Jahgirdar, President2. Shri Anil Kumar, G. SecretaryVIII. National Family Harmony Society, Palam Colony, New Delhi.1. Ms. Swathi Goyal, Executive Member2. Shri Ravi Mishra, Executive Member2. Taking up the agenda for the day, the Chairman apprised the <strong>Committee</strong>that more than two thousand memoranda had been received both in favour andagainst the suggested amendments to Section 498A, IPC, 1860, to make the samenon-cognizable, bailable and compoundable. Briefly touching upon the subjectmatter of the petition, he mentioned that the gross misuse of the said Section hadentailed arrest of elderly parents, unmarried sisters and pregnant sisters-in-law aswell as little children of husband's family on the basis of mere complaint of thewife and, therefore, the petitioner had contended for amendment to Section 498A,IPC. In that context, he requested the witnesses to share their views in a conciseway on the necessity of amendment sought for by the petitioner and the particularmanner in which the amendment could be effected without diluting the objectiveof the Legislature.3.0 The witnesses in their deposition mentioned that provisions under Section498A of IPC permits arrest of the husband and his female or male relativesirrespective of their age, marital status, health condition merely on the basis of

allegation of wife and endorsed the suggested amendment to Section 498A IPC,1860 in order to check its misuse. In that context, it was suggested that the terms"cruelty", "harassment" and "relatives of the husband of the women" had beeninterpreted to suit the complainant and investigating agency leading to enhancingthe suffering of innocent relatives of husband, who are merely related by blood ormarriage but might even not be residing with the husband or even might not havevisited the family in the near past. The Section together with Section 113B of theEvidence Act, 1872 were technically flawed from of time of their insertion in thestatute books because these Sections presume the alleged accused to be guilty tillproven innocent which goes against the cardinal principle of criminaljurisprudence in accordance of which any individual is presumed to be innocentuntil proved guilty beyond reasonable doubt. It was also averred that the saidprovisions made complete disregard of Fundamental Right to Life and alsodirectly violated Universal Declaration of Human Rights, 1948 to which ourcountry happened to be a signatory. It was also referred that the misuse of 498Aby the bridal side is akin to misuse of MISA by the Government against itspolitical opponents during emergency period. The Section had been termed assource of 'legal terrorism' by the apex court. Amendment to draconian Section498A of IPC and deletion of Section 113B from the Evidence Act, 1872 hadbecome the need of the hour which would shift the burden of proof from thealleged accused to the prosecution and the arrest of the alleged accused could bemade after investigation and filling charge sheet in the court of law. Further theSection 498A could be resorted to any time during life period of husband by wifeeven to suppress her fault and further her own self interest. Some sort of time limitsimilar to the time (within seven years of marriage) provided under Section 304Bof IPC for dowry death might be provided in Section 498A.3.1 It was pointed out that petty marital squabbles between spouses in order tohave control over husband and his family often drove the wife to resort to 498Awhich struck at the root of institution of marriage and the trend of 'live-inrelationship'got a boost which may promote polygamy and children born outthere from would be worst suffers in the times to come.3.2 The stigma and insults suffered by the family of the husband due to misuseof Section 498A cannot be wiped out in any manner in our society. They

suggested for penalty and recovery of prosecution cost from the lady or her familywho misuse the Section 498A and suitably compensate the persons who areaffected by such process so as to make the said Section gender neutral. This wouldalso provide great relief to Indian judicial dockets and pendency of cases would bereduced substantially.3.3 It was further suggested that the definition of 'dowry' needed to be clarifiedin the Dowry Prohibition Act, 1961 as there is likelihood that causal demand forfinancial assistance or loan by husband might not be treated as a willful demandfor dowry. The provision of dowry to the girl by her family has been consideredas status symbol and practiced during kanya daan in the form of gift which ispermissible under the Dowry Act. In case of difference and discord between thespouse, the property given in gift were treated as dowry by the wife. It wassuggested that a undertaking might be made mandatory that no exchange of dowrytook place at the time of registration of marriage. Further the daughter has equalshare in the self acquired property of her father, which needed to be secured forher development. In the case of allegation of dowry, the capacity of the dowrygiver is also needed to be verified. It was alleged that the Ministry of Women andChild Development which is the nodal agency for the Dowry Prohibition Act,hardly spend any money to popularize the Act. It was suggested that cases relatingto dowry and Section 498A might be tried in Family Court under the FamilyCourt Act, 1984.3.4 The misuse of Section 498A had been detrimental to the future of the childwho undergoes the trauma throughout his/her life when his/her father is sent tojail. Further arrest of children under the said Section contravenes the provisions ofJuvenile Justice Act, 2000. In that context it was averred that The DomesticViolence Act, 2005 could also provide protection to women in case of cruelty.3.5 To make the Section compoundable, views were expressed both in favourand against. Those against making the offence compoundable said that if this isdone then the wives would be prompted to bargain for allowing divorce whichwould act harsh upon the husbands. It was suggested that mediation/conciliationcould be tried before going to court.

4. A verbatim record of the proceedings of the meeting of the <strong>Committee</strong> waskept.5. The meeting adjourned at 12:50 P.M.

XVFIFTEENTH MEETINGThe <strong>Committee</strong> met at 3.30 P.M. on Monday, 25th July, 2011 in <strong>Committee</strong>Room 'D', Ground Floor, Parliament House Annexe, New Delhi.MEMBERS PRESENT1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Nandi Yellaiah3. Shri Avinash Pande4. Shri Rajaram5. Shri Paul Manoj Pandian6. Shri P. Rajeeve7. Shri Ram Vilas PaswanSECRETARIAT1. Shri Deepak Goyal, Joint Secretary,2. Shri Rakesh Naithani, Joint Director,3. Shri Ashok K. Sahoo, Deputy Director4. Shri Goutam Kumar, <strong>Committee</strong> OfficerI. Representatives of National Commission for Women on the petitionpraying for amendments in Section 498A of the Indian Penal Code,1860:1. Ms. Zohra Chatterji, Member Secretary2. Ms. Minakshi Ghose, Joint Secretary3. Shri Raj Singh, Deputy SecretaryII.Representatives of National Commission for Protection of Child Rightson the petition praying for amendments in Section 498A of the IndianPenal Code, 1860:1. Dr. Shantha Sinha, Chairperson2. Shri Vinod Kumar Tikoo, Member

3. Shri Lov Verma, Member Secretary4. Shri Binod K. Sahu, Registrar2. At the outset, the Chairman apprised the Members that the representativesof two Commissions, namely, National Commission of Women and the NationalCommission for Protection of Child Rights have been invited to express theirrespective views on the petition praying for amendments in Section 498A of theIndian Penal Code (IPC), 1860. Referring to the contention of the petitioner, theChairman mentioned that the particular Section had been misused grossly causinginter alia injustice even to pregnant women, senior citizens and others in thefamily of the husband by the married women or her relatives; the petitioner,therefore, had prayed the Council to make the offence under this Section bailable,non-cognizable and compoundable in the larger interest of the society. In thatbackground, he invited the Member Secretary of National Commission forWomen (NCW) to express views of the Commission on the petition.3.0 The Member Secretary, NCW in her deposition mentioned that Section498A was inserted in the statute book after protracted struggle by the womenactivists in the country way back in 1983, which was the first step to checkdomestic violence. Referring to the low conviction rate under the said provision ofthe IPC, by the petitioner, she mentioned that the particular provision has beenunder used rather than misused. Since domestic violence in the country has beenincreasing, any amendment to the law at this stage would give wrong signal to thevictims of domestic violence in the country. The misuse of the law, as cited by thepetitioner, is linked to the implementation of the law rather than the provisions ofthe law. She, therefore, pleaded that the Section 498A, IPC, and other related lawssuch as Dowry Prohibition Act, 1961 and the Protection of Women fromDomestic Violence Act, 2005, which are important legislations providingprotection and legal remedies to women should not be tinkered with. Respondingto the query of a Member about large scale acquittal of persons falsely implicatedfrom the family of husband, who are living with stigma after their acquittal, shementioned that the police must carry first level of investigation on the complaintof a married woman or her relatives under Section 498A before arresting thepersons mentioned in the FIR. In that context, she said that the Ministry of HomeAffairs have already issued advisories to Chief Secretaries of all States.

3.1 The Commission opposed the prayer of the petitioner to make the Section498A non-cognizable, bailable and compoundable; however she suggestedfollowing ways to minimize the misuse of Section 498A IPC:–(i)(ii)Harmonization of Section 498A, IPC with provisions of the DowryProhibition Act, 1961 and the Protection of Women from DomesticViolence Act, 2005;Power of arrest by police should be exercised after reasonablesatisfaction following some preliminary investigation so as to ensurethe genuineness and bonafide of a complaint and the need to effectarrest;(iii) Creation of Mahila Desks at police station and Crime Against Women(CAW) Cell, atleast at the district level;(iv) Recourse to Section 498A, IPC may be excercised in cases whereconciliation between warring spouses fails; and(v)Counselling by professionally qualified counsellers envisaged underthe PWDVA should be implemented by State Governments.3.2 To the query of a Member, whether the Commission has suggested anypunitive measures for the violators of guidelines issued by the Supreme Court inthe D.K. Basu case, regulating the power of arrest by the police, she respondedthat the Commission has not got any complaint regarding specific violation in thisregard. Another query about the observation of Supreme Court in Sushil KumarSharma v/s Union of India on misuse of 498A, she mentioned that the said Court,while making observation that the misuse of 498A had resulted in legal terrorismhad also refused to strike down the Section 498A as unconstitutional. On the issueof recommendations of Malimath <strong>Committee</strong>, she responded that it had notdiscussed the issues in detail before arriving at a conclusion on 498A to make itbailable and compoundable. She mentioned that the Commission is thinking ofmaking a study regarding misuse of provisions of Section 498A.4. The Chairman concluding the discussion on the presentation of MemberSecretary of NCW observed that improper implementation of the provisions ofSection 498A, IPC indicates that there are shortcomings in the law which inter

alia affords scope to the police officer to allow the misuse of the provisions of thelaw by the married women causing problem to the innocent citizens of herhusband's family. The Chairman desired that the Commission being a statutorybody need to take a balanced approach to the problem while contradicting theprayers made by the petitioner. He directed the Member Secretary to give adetailed study report on the misuse of provisions of 498A to the <strong>Committee</strong> withinfifteen days for its consideration.(The witnesses then withdrew)5. The <strong>Committee</strong> thereafter heard the Chairperson of National Commissionfor Protection of Child Rights (NCPCR) on the issue relating to custody of childin the event of his/her father's arrest under Section 498A and arrest of childrenunder the said Section.6. The Chairperson, NCPCR submitted that domestic violence betweenwarring parents has tremendous impact on the future of the child. There has beenlegal battle between estranged parents about the custody of the child in the casesrelating to domestic violence which also include violence under Section 498A ofIPC. She apprised the <strong>Committee</strong> that as per data obtained from the NationalCrime Record Bureau (NCRB), 1007 children have been booked under Section498A of IPC during the period from 2007-2009 even though they do not havecontrol over the causes/grounds under the said Section and became victims ofcircumstances. For the best interest of the child, whenever the child isapprehended by the police under Section 498A of IPC, he or she should not berounded off alongwith other adult perpetrators of crime and must be handed overto the Juvenile/Child Welfare Officer of the concerned police station or specialjuvenile police unit as envisaged under Rule 11 of the Juvenile Justice (Care andProtection of Children) Rules, 2007. The Child Welfare Officer may produce thechild before Child Welfare <strong>Committee</strong> or Juvenile Justice Board instead of normalcourt in accordance with Juvenile Justice Act. It was submitted that the JuvenileJustice (Care and Protection of Children) Act, 2000, is a special law for childrenwhich must prevail over the general law, i.e. Section 498A of IPC. The affectedchildren may be consulted and heard in camera by the family court or districtcourt adjudicating family disputes such as divorce, legal separation, custody ofchildren etc. It would ensure proper care and protection of the affected child under

non-institutional care. The Commission did not offer any view on amendment toSection 498A as prayed by petitioner.(Witnesses then withdrew)7. A verbatim record of proceedings of meeting of the <strong>Committee</strong> was kept.8. The <strong>Committee</strong> adjourned at 4.26 P.M.RECORD NOTE OF THE SITTING OFCOMMITTEE ON PETITIONSThe <strong>Committee</strong> meet at 3.00 P.M. on Monday the 1st August, 2011 in RoomNo. 63, First Floor, Parliament House, New Delhi.MEMBERS PRESENT1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Ram Vilas PaswanSECRETARIAT1. Shri Deepak Goyal, Joint Secretary,2. Shri Rakesh Naithani, Joint Director,3. Shri Ashok K. Sahoo, Deputy Director4. Shri Goutam Kumar, Assistant DirectorI. * * *II.Representatives of Ministry of Women and Child Development onpetition praying for amendment in Section 498A IPC, 1860:1. Shri D.K. Sikri, Secretary2. Smt. Sangita Verma, Economic Advisor3. Smt. Vinita Aggarwal, Director2. * * *3. * * *

Deposition of Secretary, Ministry of Women and Child Development4.0 The Chairman welcomed the Secretary, Women and Child Developmenttogether with senior officers of the Ministry to the continued sitting on the petitionpraying for amendment to Section 498A of IPC, 1860. Referring to the contentionof the petitioner, the Chairman mentioned that false acquisition about thecommission of offence under Section 498A by the woman or her relatives hadcaused harassment to the family members of her husband including senior citizensand minor children in his family. Thus, the petitioner has come with the prayer forsuitable amendment therein to check its misuse and also to protect innocentrelatives of the husband. In that context, he sought views of the Ministry ofWomen and Child Development on the requirement of amendment to the Sectionas prayed by the petitioner.4.1 The Secretary commenced his deposition by referring to the backgroundleading to insertion of Section 304B and 498A of IPC in statute book in eighties tocheck the death and harassment of women relating to demand of dowry which wason increase at that time. He added that Section 498A describes punishment for thecrime not against society but for matrimonial offences committed withinmatrimonial home due to marital discord. Torture in matrimonial home aloneconstitutes forty eight per cent of total crime committed against women in thesociety. Referring to NCRB data on dowry death, he submitted that the offencehas been increasing during 2003-09 by twenty four per cent and offences under498A has been increasing during 2003-2009 by fifty per cent. Around ten per centcases registered under 498A were found to be false. A number of <strong>Committee</strong>s,including Justice Malimath <strong>Committee</strong> on Reforms in Criminal Justice Systemand the Department-related Parliamentary Standing <strong>Committee</strong> on Home Affairsin its One Hundred and Eleventh Report on Criminal Law (Amendment) Bill,2003 have suggested amendment to the said Section. The Apex Court whiledisposing cases of Sushil Kumar Sharma v/s Union of India (Jt 2005(6) SC266),Preeti Gupta and another v/s State of Jharkhand (2010) has suggested amendmentto the Section for reconciliation of marital discord but the judiciary has neverstruck down the constitutional validity of the Section. The incident of violence inmatrimonial home of husband is increasing in our society even after thirty years ofinsertion of the said Section in the IPC.

4.2 He pointed out that the tendency to implicate as many relatives of thehusband as possible by the wife or her relatives has not been uncommonphenomenon now-a-days. This has resulted in increase in number of arrest ofpersons under Section 498A which has equally caused insurmountableharassment, pain and agony to the innocent relatives of husband and also led toabuse of process of law by the women. At the same time, dowry relatedharassment and violence has not gone down even after three decades of enactmentof the said Section. The Ministry has not been in favour of making the saidSection non-cognizable because it would place enormous burden on women toapproach judicial Magistrate to file initial complaint against her husband in thematrimonial dispute thereby putting a barrier to their access to justice. Further,anticipatory bail in the non-bailable offence can be taken under Section 438 ofCrPC, 1973 from the court to evade arrest in such case. In that context, he drewthe attention of the <strong>Committee</strong> to recent amendment to Section 41 of CrPC, 1973to regulate the discretionary power of police to effect arrest without warrant so asto protect the rights of the alleged accused. The Ministry of Home Affairs has alsoissued advisories to Director General of Police of all States to put fetters uponunwarranted arrest. Even the State of Andhra Pradesh and NCT of Delhi haveissued administrative orders to regulate and restrict the power of arrest underSection 498A of IPC to the effect that it can be done only with prior writtenapproval of DCP/DSP.4.3 Regarding the prayer of the petitioner to make Section 498A compoundable,the Secretary mentioned that the Ministry of Women and Child Development hasnot been in favour of making it universally compoundable because the courts havealready inherent power under Section 482 of CrPC, 1973 to quash the FIR in theevent of out of court compromise/settlement between parties to secure the ends ofjustice.4.4 Regarding fixing liability on the misuse of legal provision, he mentionedthat punishment for filing false charges of offence under Section 211 of IPC andfor perjury under Section 193 of IPC are available in Statute book. The courtshave inherent power to take cognizance of said cases and impose penalty on themisuser. Since the penalty on the misuse can be evoked only after injury caused,the Ministry is contemplating to provide six months imprisonment to restrain the

misuser from making complaint with malafide intention. He averred that thebonafide complainants should not be discouraged at the same time.5. A query was made about low conviction of cases registered under Section498A IPC. The Secretary in response thereto submitted that besides the mainaccused, other immediate and distant relatives of the husband also get arrested bythe police who later on are let off by the court. This over implication under theAct has led to low conviction rate which could be reduced if punishment isproposed within the law itself for the misuser of the process of law which mightact as a safeguard for the innocent co-accused also. In that context, he mentionedthat the charge against the husband has seldom been dropped until it was found tobe patently a false case. It was also suggested by him that an FIR could be lodgedafter making reconciliation attempt by the women cell of police station. Further,the written approval of DCP/DSP for effecting arrest under 498A would curtailthe indiscriminate use of the power of arrest by the police in police station. Merepossibility of abuse of law does not make the law invalid. In case of making thelaw non-cognizable, there would be increase of dowry death and harassment insociety6. The <strong>Committee</strong> appreciated the suggestions given by the Secretary anddesired that a balance should be struck between the unnecessary harassment metedto the innocent co-accused and safeguard to ladies from cruelty in matrimonialhome. The written approval of DCP/DSP for effecting arrest under Section 498Aas practiced in NCT of Delhi and Andhra Pradesh may be included in the lawitself to enhance the accountability of police.(The witnesses then withdrew)7. A verbatim record of proceedings of meeting the <strong>Committee</strong> was kept.8. The <strong>Committee</strong> adjourned at 4:50 P.M. to meet again on 18th August, 2011.

XVIISEVENTEENTH MEETINGThe <strong>Committee</strong> met at 10:30 A.M. on Tuesday, the 30th August, 2011 inRoom No. 126-A, (Chairman's Room) Third Floor, Parliament House, New Delhi.MEMBERS PRESENT1. Shri Bhagat Singh Koshyari –– Chairman2. Shri Paul Manoj Pandian3. Shri Veer Pal Singh Yadav4. Shri P. Rajeeve5. Shri Ram Vilas PaswanSECRETARIAT1. Shri Deepak Goyal, Joint Secretary,2. Shri Rakesh Naithani, Joint Director,3. Shri Ashok K. Sahoo, Deputy Director4. Shri Goutam Kumar, Assistant Director2. The <strong>Committee</strong> took up for consideration draft One Hundred and FortiethReport on the petition praying for amendment in the Section 498A of Indian PenalCode, 1860. The amendments proposed by one of the Member of the <strong>Committee</strong>to certain recommendations of the <strong>Committee</strong> contained in the draft Report werealso considered by the <strong>Committee</strong>. The <strong>Committee</strong> did not agree to theamendments moved by that Member and adopted the report with minormodifications. The concerned Member suggested that hisamendments/comments on the recommendations of the <strong>Committee</strong> may be treatedas "Minutes of Dissent" to the report. The Chairman directed the Secretariat toappend the said dissent note to the Report.3. The <strong>Committee</strong> authorised its Chairman and in his absence Shri Veer PalSingh Yadav to present the Report to the Rajya Sabha on Wednesday, the 7thSeptember, 2011.4. Thereafter the <strong>Committee</strong> reviewed status of petitions pending for itsconsideration. The <strong>Committee</strong> decided to undertake study visit to Gangtok

(Sikkim) and Darjeeling (West Bengal) on the petitions praying for developmentof railway network in Himalayan States and protection of interest of bonafideIndian nationals residing in Sikkim prior to its merger with India in 1975, from21st to 25th September, 2011. The <strong>Committee</strong> authorized its Chairman to seekapproval of Hon'ble Chairman to the proposed study visit of the <strong>Committee</strong>. TheChairman also directed the Secretariat to make preparation for the study visit.5. The <strong>Committee</strong> adjourned at 10:45 A.M.

LIST OF ORGANIZATIONS/INDIVIDUALS APPEAREDBEFORE THE COMMITTEEI. Representatives of National Commission for Women1. Ms. Zohra Chatterji, Member Secretary2. Ms. Minakshi Ghose, Joint Secretary3. Shri Raj Singh, Deputy SecretaryANNEXURE-III.Representatives of National Commission for Protection of ChildRights1. Dr. Shantha Sinha, Chairperson2. Shri Vinod Kumar Tikoo, Member3. Shri Lov Verma, Member Secretary4. Shri Binod K. Sahu, RegistrarIII.Bhavya Foundation, Shalimar Garden, Sahibabad, Ghaziabad.1. Shri Kamal Vikram, President2. Ms. Madhu KishwarIV.Bureaucracy Today, Kasturba Gandhi Marg, New Delhi.Shri Suhaib Ilyasi, Editor-in-ChiefV. Gender Human Rights Society, I P Extension, Delhi.1. Shri Sandeep Bhartia, President2. Mrs. SwarnlataVI.All India Mother-in-Law Protection Forum, Rohini, Delhi.1. Mrs. Saroj Rani, Executive Member2. Mrs. M. Puri, Executive MemberVII. Indian Social Awareness and Activism Forum (INSAAF), C. R. Park,New Delhi.1. Shri Niladri Shekhar Das, Co-ordinator2. Mrs. Ekta Singh, General Secretary

VIII. Children's Rights Initiative For Shared Parenting (CRISP), HauzKhas, New Delhi.1. Shri Kumar V. Jahgirdar, President2. Shri Anil Kumar, G. SecretaryIX.National Family Harmony Society, Palam Colony, New Delhi.1. Ms. Swathi Goyal, Executive Member2. Shri Ravi Mishra, Executive MemberX. Women Power Connect, Safdarjung Enclave, New Delhi1. Dr. Ranjana Kumari, President2. Dr. N. Hamsa, Executive Director3. Mr. Soumya Bhaumik, Legal Consultant4. Ms. Subashini Perumal, Programme AssociateXI.Partners for Law in Development, Jangpura Extension, New Delhi1. Ms. Madhu Mehra2. Ms. Urvashi ButaliaXII. All India Democratic Women's Assocation, Talkatora Road,New Delhi1. Ms. Kirti Singh, Legal Convenor2. Ms. Albeena ShakeelXIII. Swayam, Deodar Street, KolkataMs. Anurahda Kapoor, DirectorXIV. Centre for Women's Development Studies, Bhai Vir Singh Marg,New Delhi1. Dr. Mary E. John, Director2. Dr. Indu Agnihotri, Deputy DirectorXV. Shri Govind Ram Miri, Ex-MP, Rajya Sabha.