Gender Community Discusses Amendments to Section 498A IPC

Gender
_____________________________
Gender Community

Solution Exchange for the Gender Community
Consolidated Reply
FOR COMMENTS: Amendments to Section 498A Indian Penal
Code (IPC)
Compiled by Malika Basu, Resource Person and Moderator
Issue Date: 4 August 2011

From Vinita Aggarwal, Director, Ministry of Women and Child
Development (MWCD), Government of India (GoI)
Posted 1 July 2011
Section 498A was introduced in Indian Penal Code (IPC) in the year 1983 to protect married
women from ‘cruelty’ by the husband or his relatives. It provides for punishment of imprisonment
up to three years and fine. An offence committed under Section 498A IPC is cognizable, non-
compoundable, and non-bailable.

‘Cruelty’ under Section 498A IPC has been defined in a broad manner, so as to include:
• Any willful conduct likely to drive woman to suicide or cause her physical or mental harm
to the body or health; or
• Acts of harassment with a view to coerce her or her relations to meet any unlawful
demand for any property or valuable security. This includes harassment or demand for
dowry.

As per the National Crime Records Bureau (NCRB), there has been a steady increase 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 of over 10% from the previous year.

The Ministry of Women & Child Development (MWCD), as the nodal Ministry for women
and child issues, is concerned with effective implementation of Section 498A IPC and ensuring
access to justice for women who face cruelty in the matrimonial home. The Ministry has also
received representations regarding non-implementation of the provision as well as its alleged
“misuse”.

The NCRB data shows that in 2009, convictions were only 2.3% (7380 cases). Pendency of cases
was high at 86.3% (2, 78,921 out of a total 3, 23,355 cases) and the cases disposed of were only
11.5% (37,323 cases). Of this, acquittal was 9.3% (29,943 cases). The percentage of cases
compounded or withdrawn was 2.2% (7,111 out of a total 3, 23,355 pending cases). All this
builds a case for a comprehensive review.

The Law Commission of India (LCI) is currently examining the need for amendments to Section
498A IPC. A “Consultation Paper-cum-Questionnaire” has been prepared by the LCI, which raises
several questions including, whether Section 498A IPC should be amended to make it

compoundable and bailable. The feasibility of making Section 498A IPC a bailable offence has
been raised in several quarters. The LCI has emphasized on the need for greater sensitization of
police and legal profession to curb unwarranted arrests and bring a sense of responsibility.

In view of the above, I would like to raise the following issues with the Gender Community
members and seek your comments on the same.
• In your view, what are the reasons for low convictions and high pendency in Section
498A cases?
• Do you think that Section 498A IPC should be made compoundable? What kind of impact
is this likely to have on women’s access to justice?
• Do you think making the offence bailable would address the problem of allegedly
unwarranted arrests while also safeguarding the woman’s (complainant’s) interests?
• What are the measures you would suggest to ensure greater accountability of the police?
• In addition, in your view, who should be conducting counseling of parties and what
should be the role of police in this process? Some States/Union Territories (UTs) have set
up Crime against Women Cells/Mahila desks, which deal with complaints under Section
498A IPC. What is the current practice of these Cells/Mahila desks in dealing with cases
under Section 498A IPC? In your opinion, should they be involved in
conciliation/counseling of parties? Should this model be replicated?

Through this consultative process and discussion with the Gender Community members, the
Ministry hopes to develop further its understanding of the provision as well as the issues relating
to it. The inputs and suggestions received from the Gender Community would facilitate the
Ministry in preparing its response to the Law Commission and greatly contribute to the larger
process of strengthening of Section 498A IPC, which we hope would lead to furtherance of
women’s rights.

Responses were received, with thanks, from
1. Anagha Sarpotdar, Mumbai, Maharashtra
2. JAGORI - Violence Intervention Team, New Delhi
3. Akmal Razvi, Legal Advisor, Newzfirst.com, Bangalore, Karnataka
4. Aasha Ramesh, Gender and Development Consultant, Bangalore, Karnataka
5. Indrani Sinha, Sanlaap, Kolkata, West Bengal
6. Srabani Das, Task Force on Violence Against Women (TFVAW), Bhubaneswar,
Orissa
7. Anuradha Kapoor, Swayam, Kolkata, West Bengal
8. Suman Sinha, Consultant, New Delhi
9. Poonam Kathuria, Society for women's Action and Training Initiatives (SWATI),
Gujarat
10. Bimla Chandrasekar, EKTA Resource Centre for women, Madurai, Tamil Nadu
11. Sanjay Agarwal, SATYA, Rajasthan
12. Satish Girija, Nav Bharat Jagriti Kendra, Hazaribag, Jharkhand
13. Bappaditya Mukherjee, Prantakatha, Kolkata, West Bengal
14. Subhalaxmi Mohanty, Delhi
15. Dolon Ganguly, Jeevika Development Society, West Bengal
16. K. Satyavathi, On behalf of Bhumika Women’s Collective, Hyderabad, Andhra
Pradesh
17. Karuna Singh, Independent Consultant, New Delhi
18. Mitu Khurana, New Delhi
19. B. Keerthi, Vasavya Mahila Mandali, Vijayawada, Andhra Pradesh
20. Medha Dubhashi, Centre for Gender Studies, Vaikunth Mehta National Institute of
Co-operative Management (VAMNICOM), Pune, Maharashtra

21. Flavia Agnes, Majlis, Mumbai, Maharashtra
22. Swati Y Bhave, APOLLO Hospital and AACCI, New Delhi *
23. Joseph Joute, Bible Hill YC's Women Development & Research Center,
Churachandpur, Manipur *
24. Angela Ralte, Center for Peace and Development, Aizwal, Mizoram*
25. Mohan Rambha, Swami Vivekananda Institute of Technology,
Secunderabad, Andhra Pradesh *

*Offline Contribution
Further contributions are welcome!

Summary of Responses
Comparative Experiences
Related Resources
Responses in Full

Summary of Responses
Section 498A was inserted into the Indian Penal Code (IPC) in 1983 via an amendment to
protect married women from ‘cruelty’ by the husband or his relatives. The amendment was a
result of a sustained campaign by the women’s movement that sought a strong effective
legislation to check the increasing violence against women (VAW), particularly rising incidences of
cruelty in marriages and dowry harassment. An offence committed under Section 498A IPC is a
criminal offence that is cognizable, non-compoundable, and non-bailable.

The existence of a section such as 498A is viewed as important and relevant as it challenges
threat to women’s life and personal liberty that is caused by incidents of domestic violence.

Need for Section 498A
Many argue that the context within which S.498A was introduced has not changed; rather, the
Indian society continues to be in a perpetual state of patriarchal domination, where the girl child
is still unwanted and discriminated against. Further, VAW is rampant in all its forms and the
home, a supposedly safe place for women is the site for untold violence on them.

According to the National Crime Records Bureau (NCRB) statistics, in 2009, torture in the
matrimonial home constituted 44% of the total crimes committed against women. Various
research studies and reports (e.g. Journey from Violence to Crime, Shades of Courage, NFHS-3
report) conducted by various organizations (e.g. Centre for Social Research (CSR), Ekta, MARG,
Swayam) have also highlighted the extent and prevalence of domestic violence. The need for
Section 498A to protect women from domestic violence thus cannot be understated. Many of the
studies/reports however conclude that only a small number of women actually use the law; in
fact, the conviction rate in 498 (A) cases is negligible compared to the other sections within the
IPC.

Low Convictions and High Pendency
As per the NCRB 2009 statistics, although charge sheets were filed in over 93% of 498A cases,
convictions occurred only in 19.8% of cases. This, as argued, is not indicative of false cases but
is reflective of the reluctance of courts to convict - due to attitudes that condone and accept
marital violence, as well as the difficulty of proving marital violence which happens within the
four walls of a home. Such attitudes force women to compromise with their husbands despite the
violence they face and to withdraw cases under section 498A, which they may have filed through
quashing cases in the High Court. Further, women may also choose not to pursue the case due

to pressure to reconcile with the husband, social stigma, divorce settlements, disillusionment with
the criminal justice system or other settlements between the families outside the courts.

Some of the specific reasons cited for low convictions and high pendency also include:
• Lack of investigation skills, commitment and insensitiveness to the seriousness of the
violence under 498A, and subsequent failure to build the case, leading to acquittal of
cases
• Investigating agency takes a long time to complete the investigation; with the passage of
time, vital evidences for investigation are lost
• The complainants do not make consistent follow-up to see that the investigation is
moving in the right direction
• The justice delivery system operates depending upon the mind set, attitude and
conviction of the individual judicial officers; some are prejudiced and pre-determined and
conducting trial with the pre-conceived view that women are misusing S.498A

It is suggested that one of the ways high pendency and low conviction can be tackled is by
adding a legislative provision of time bound trials.

The Myth of Misuse
Demand for amendments to Section 498A stems from a myth that the section is misused.
Statistics seem to show that rather than Section 498A being misused, it is a section that is ‘hardly
used’ by women. For instance, the National Family Health Survey (NFHS-3) showed that 40% of
married Indian women face domestic violence of any form. If that is so, then going by the NCRB
data (2008), it appears that only 0.03% of women who face domestic violence actually file cases
under S.498A.

The point is, in a context, where women are mostly dependent on their husband and their family
for their basic necessities and support is not forthcoming from their families, society and state
agencies, they do not really have the means, ability or power to file cases under S.498A let
alone ‘false cases’. Further, it is contended that when the expectation of society from women is
that they should put up with violence, the very act of registering a case of 498A is seen as
misuse, and not a crime.

In view of the fact that many laws are misused and only S.498A, a law to protect women from
violence has been singled out for amendment clearly shows social attitudes towards domestic
violence that accept and condone it. Several judgments (e.g. Sushil Kumar vs Union of India)
have held that mere possibility of misuse can not render a provision invalid and on those grounds
no law enacted by a competent legislature can be struck down.

If the law enforcing mechanism does its job properly, any misuse can be prevented. In addition,
there are existing provisions in the IPC for misuse of any law and if 498A is misused, these
sections – s.182, s.209 and s.211, can be invoked. It is also the duty of the state administration
to ensure that no law is misused by the police using any extra-constitutional powers which
amount to an abuse of power. Further, since it is only after the initial onus of proof has been
discharged that the Court can invoke Section 113 A; this clearly indicates that unless the
prosecution initially presents a water-tight case with sufficient evidence of ‘cruelty’ the case will
not proceed and therefore the question of misuse does not arise.

Arguments Favouring Gender Specific Nature of S.498A
A law can be made gender neutral only if all the concerned persons are on an equal footing. No
one can argue that women and men in India are on an equal plane; such a statement would not
only be fallacious but also imprudent. If S.498A is made gender neutral, it will fall within the
realm of laws relating to assault which has already been provided for in the IPC. The substratum

of the section is to protect women from cruelty and harassment in their matrimonial home and if
it is made gender neutral it will negate the rationale behind the law. Also, it is feared that
making the law gender neutral will make women completely vulnerable and result in men
abusing women, and filing cases before women can gather the courage and support to do so.

Any amendment to Section 498A to say the least will abrogate the constitutional mandate of
Articles 14 and 15 (3); it will be a failure of the State to achieve its intended goal of gender
equality.

The Indian State is responsible to ensure that all its citizens, especially the most historically
marginalized, are provided protection to live a life of dignity and respect. Article 15 of the
Constitution of India (also refer to Yusuf Abdul vs The State of Bombay and Hussenbhoy Laljee)
and International Conventions like Convention for Elimination of all forms of Discrimination
against Women (CEDAW, which India has ratified) has recognized the unequal status of women
and therefore made special provisions for women to address this inequality. Sections 498A, 304B,
Dowry Prohibition Act (DPA), Protection of Women against Domestic Violence (PWDVA) are all
legislations to address the gendered nature of violence against women and also illustrate the
position of the government that the institutions of marriage and family are not insulated from
state interventions, particularly where there is violence against women within such institutions.

The courts have also upheld the validity of the special measures in legislation and executive
orders favoring women (e.g. in Laxman Ram Mane Vs. State of Maharashtra; Nripen Roy and
others v State of West Bengal; Satya Narayan Tiwari @ Jolly & Anr. Vs. State Of U.P; Inder Raj
Malik And Ors vs Sunita Malik; Gurbachan Singh vs Satpal Singh & Ors). It may be added that
through the Code of Criminal Procedure (CrPC) Amendment Bill 2010, there are restrictions now
on the police as far as arrests are concerned; the arrest can be done only after proper
investigation in the reported matter.

Arguments against Making Section 498A IPC Compoundable, Bailable
Making the offence compoundable implies that the complainant may withdraw her police
complaint at any point of time. Marital violence is a crime and compounding it will send out a
message that the gravity of crime is less than that of other similar crimes. Further, women will be
under pressure to withdraw complaints and compromise by family, the other party, lawyers and
courts and may end up being far more vulnerable to cruelty and violence. A procedure for
quashing 498A cases already exists in the High Court and can be utilized where women decide to
withdraw the case. The law must remain non-compoundable to ensure that social pressure does
not result in women being forced to withdraw cases. The non compoundability of the Act is
a principled position it takes and important to the spirit in which it was enacted i.e.
violence is non negotiable and unacceptable under any circumstances.

Likewise, amending S.498A to make it bailable would reduce the gravity of the offence and
remove the fear component in the society, particularly the perpetrators of matrimonial violence.
By doing so, the minimal deterrent effect it has would get depreciated. This would dilute the very
purpose of introducing S.498A

Making the offence bailable will imply that the accused can be granted bail by the local police
station and will no longer require appealing before the Court for bail. Considering the lack of
intent and rampant malpractice that exists, making the offence bailable will open the doors for
more corruption and will further block the access of women to justice. Section 498A should
remain non bailable, requiring the accused to appear before a magistrate to obtain bail.

Alleged unwarranted arrests can be addressed by developing and implementing better guidelines
for arrests in such cases, and by expediting the disposal of bail applications in the trial court.

Why S.498A needs to remain Cognizable?
In the present situation, when offences under S.498A are cognizable, hardly any arrests are
made by the police. Making the section non-cognizable will mean that it will be the responsibility
of the police to bring search warrant from the Courts and arrest the accused. A non cognizable
offence prevents the police from registering a FIR, investigating, or ordering an arrest without
the express permission or directions from the court. The fact that the law is cognizable allows the
police to take immediate action on the complaint of a woman. Making the offence non-cognizable
will place a huge burden on women who will have to go through the judicial process to file an
initial complaint thus making it difficult, if not impossible for women for whose benefit this law
was enacted, to use the law.

Accountability of Police
The police cannot be made accountable for just one section of IPC; if they are to be made
accountable they must be accountable in general. Nevertheless, with regards to 498A, few
suggestions have been put forth to ensure greater accountability of police. These include:
• Higher authorities in the police force visit local police stations on inspection visits without
notice, and make sure that they interact with victims/survivors of VAW from time to time
• In remote villages, enable police outposts with requisite infrastructure and necessary
skills to deal with cases under 498A (and other cases of VAW)
• A functional 24-Hours Helpline in all police stations based in the rural areas to offer help
to victims/survivors of VAW; ensure that information of such Helpline reaches the
remotest villages
• Minimize the gap between the lodging of the FIR and the filing of the Charge-sheet
• It is crucial to change the mindset of the Police; include regular orientation sessions at all
levels of the police system and put in place monitoring tools that will evaluate the
performance of the police officials with regards to dispensation of responsibilities
• Assign a law professional with the investigating wing so that any procedural and
technical lapse that weakens the prosecution could be checked at the earliest
• Constitute a special grievance cell in each All Women Police Station (AWPS), which
classifies the petitions from the women victims into matrimonial cruelty, matrimonial
dispute, domestic violence and violence in public domain; establish support centres for
women in AWPS where qualified social workers take up the cases
• Since ‘matrimonial cruelty’ is an offence that takes place in private domain, the Supreme
Court has held that the statement of Prime Witness (PW1), if strong enough to prove the
guilt of the offence is suffice to punish the offender. Hence, the investigation agency
should not stress for witnesses to corroborate the case
• In the same way, there must be space for the parties of litigation for compromising
during the investigation process after registering FIRs with the permission of superior
authority of the police to avoid concluding the case as ‘mistake of facts’
• Encourage video recording of statements of complainants so that the victims need not
repeatedly speak many of the sensitive issues related to the offences
• Ensure effective coordination between the investigation agency and prosecution agency;
make mandatory approval of application before filing charge-sheet to correct the
limitations in the investigation and preparation of charge-sheet; enhance the veracity of
the case in the trial proceedings
• Prescribe time limits for filing of charge-sheet, framing charges, completion of trial
proceedings, and pronouncement of order
• Train the police to understand the objectives of S.498A, DPA and PWDV Act, the linkages
between the three legislation, the application of different provisions and the role of police
in implementing each of the legislation (as the case is built based on their investigation)

Counseling of Parties and the Role of Police in this Process

Counseling is necessary and depends entirely on the requirements of the respective parties and it
must be done by sensitively trained counselors and non-partisan counselors. Police are not
having professional skills in counseling. Women or couple who require counseling can be
referred to civil society organizations managing counseling centres; there are also Legal Aid
Clinics managed by the Legal Cell Authority. The easy access of aggrieved women to the Taluka
and District level Legal Service Authorities and/or credible NGOs with professional counselors
should be ensured by appropriate measures.

Importantly, enforcement of PWDV Act has created a space for counseling by trained and expert
family counselors with the help of Protection Officers and High Court Mediation Cells. Hence, it is
argued that the police after the first level of screening (e.g. if the woman is not interested to
walk out of marriage, interested to bring husband to negotiation, etc) must forward all matters to
respective Protection Officers. However, it should file the FIR where things have gone out of
reconciliation.

It is also suggested that social workers/mediators with experience in counseling and conciliation
skills and legal knowledge can be appointed in each All Women Police Station (AWPS) along with
Dowry Prohibition Officers; they could be part of the investigation team.

Other Recommendations
• Define the term “cruelty” better to reduce its ambiguity as it makes it difficult to prove
physical and mental torture, resulting in the acquittal of the accused for lack of evidence
• Grassroots organizations need to be involved more for successful implementation of
S.498A
• No excuse for parents of a girl as well, who say that they were forced to give dowry for
customs, social coercion, fear of marriage being broken, loss of face in society, etc
• Dowry is a social evil; there is a need for a revolutionary social reform to do away with
this custom, which will be far more effective and long lasting than laws which can be
misused by some section
• Give shelter to women if they are involved in a case of 498 A
• Develop a protocol at a national level for skilful police investigation of cases registered
under S.498 A
• Critically review judicial decisions of compounding/reconciliation in cases registered under
S.498 A
• Capacity building of the criminal justice system to be able to understand domestic
violence as a crime and regard mental violence as a legitimate evidence to be treated at
par with the physical violence.
• Have a Crime against Women Cell (CWC) in every district to deal exclusively with the
crimes such as S.498A; equip the cell with gender sensitized men or women personnel
and effective and free legal aid services, facilities such as shelter homes, medical facilities
and counselors
• If petitioner chooses legal recourse and prefers civil relief, refer her to the Protection
Officers under the PWDVA; if she prefers criminal action, FIR should be filed, and
referred to the Special Investigation Team comprising of police, legal experts and social
workers; hold preliminary enquiry to screen frivolous complaints at this stage

Section 498A together with its allied Code of Criminal Procedure (CrPC) provisions is not meant to
act as an instrument of oppression and counter-harassment and become a tool of indiscreet and
arbitrary actions on the part of the police.

S.498A has a lofty social purpose; it must remain on the statute book to intervene whenever the
occasion arises. Its object and purpose cannot be stultified by overemphasizing its potentiality
for abuse or misuse. What perhaps needs to be looked at seriously is the proper

implementation of it and ensure that it is not misused. While steps must be taken to
ensure that the criminal justice system takes S.498A as seriously as other crimes, what is equally
pertinent is the need for the enforcement agency personnel to be educated appropriately on the
use of this Section. If this is done properly, then the complaint that it is being misused and
innocent people are facing the brunt could be checked.

Comparative Experiences
Andhra Pradesh

Gender Sensitization of Police Force Applauded (from K. Satyavathi, On behalf of Bhumika
Women’s Collective, Hyderabad, Andhra Pradesh)
Bhumika in Andhra Pradesh constantly interacts with the Home Department (Police). It has
started giving trainings on gender sensitization to the Rakshak Police who do the work of
patrolling on the roads, streets, lanes, etc. They are the first who identify the distressed women.
So, Bhumika gives training to them, and also distributed a booklet which caters to the entire
information on the support services and systems pertaining to vulnerable groups. This has been
appreciated and applauded by the Home Department. These types of trainings help in looking
into the issues pertaining to women in a sensitized manner.

Maharashtra

Section 498A – A Preventive Measure to Curb DV (from Anagha Sarpotdar, Mumbai,
Maharashtra)
A research conducted by TISS namely Shades of Courage, focusing on 498A covered 69 police
stations in the city of Mumbai, representing 1,397 women over a period of 8 years. It revealed
that 40 percent of the cases were registered after the death of the women. The study suggests
that in such a situation, it can be said that S.498A is the only section in the IPC, which can be
used as a preventive measure to curb domestic violence and save lives of women. Read more

Myth of Misuse of S.498A (From Flavia Agnes, Majlis, Mumbai, Maharashtra)
Majlis in Mumbai has been working on the issue of women’s legal rights for the past 20 years. It
has represented more than 50,000 women in litigation. Almost all its clients are victims of
domestic violence. Less than 5% of these women have filed complaints under Section 498A of
the Indian Penal Code. Further, during a spate of suicides by married middle class women in the
months of March-May, 2011 in Mumbai, Majlis found that in not a single instance, a complaint
under Section 498A was filed by the woman prior to her death. This reaffirms that the myth of
the misuse is propagated by certain vested interests.

West Bengal

From Dolon Ganguly, Jeevika Development Society, West Bengal
A Neighbourhood Support Group’s Experience shows that Section 498A is rarely used
Between June 2009 and June 2011, Alor Disha, neighbourhood support group initiatied by NGO,
Jeevika Development Society, dealt with 98 cases which could all have been registered as
complaints under section 498A. However, only 20 cases were actually registered as complaints
out of which only 2 cases were filed. This shows S.498A is rarely used or is used only as the last
resort by victims/survivors after all their attempts at reconciliation have failed. In most cases,
women lodge a General Diary and go beyond that only when the torture becomes unbearable.

Comments from Police Officers Disheartening for Volunteers
First hand experience of volunteers of Alor Disha, a neighbourhood support group, with the Police
has not been positive. Apparently they are at the receiving end, if they try to help lodge

complaints under S.498A. This is illustrated by various comments allegedly made by police
officials such as ‘you have to pay the price of petrol if you want me to complete the
investigation’; ‘it is okay if your husband has beaten you up’; ‘you can be booked under criminal
offence; have you forgotten that you gave dowry in your daughter’s marriage’. Read more

Attitudes Influence Low Conviction Rates Under S.498A (from Anuradha Kapoor,
Swayam, Kolkata, West Bengal)
A study conducted by Swayam, a NGO in Kolkata, reveals that a majority of judges identified that
a woman would probably face the most serious problems in her life in marital home ranging from
torture to death. 80% said that they would encourage their female relatives who asked for
advice in situations of domestic violence to ‘adjust’ and ‘compromise’ and put up with the
violence unless it reached ‘unbearable proportions’. 48% said domestic violence is a family
matter and 78% believe that women are somehow to blame for the violence inflicted on them.
These attitudes are perhaps reflected in the low conviction rates in cases under Section 498A.
Read more

Multiple States

From Anuradha Kapoor, Swayam, Kolkata, West Bengal
Studies show that 40-50% of Indian Women Face Violence in their Homes but do not
Report it
Various studies on Domestic Violence show that between 40-50% of Indian women face violence
in their homes but do not report it. For example, aaccording to National Family Health Survey-3
(NFHS-3): 40% of married Indian women face Domestic Violence of any form, physical, mental
or sexual; According to a Survey by International Clinical Epidemiology Network (INCLEN): 50%
married Indian women face Domestic Violence in any of its forms. According to the NFHS-2 56%
wives from 90,000 interviewed believed that their husband has the right to beat them. According
to a Study conducted by Swayam, with 1500 female students, 44% said they would forgive him
or forget if their husband physically assaulted them.

NCRB Statistics Draws Attention to Crimes against Women
According to the National Crime Records Bureau (NCRB), in the year 2009: 9675 women were
murdered due to dowry i.e. more than 34 women a day (Dowry Death – 8383; Murder due to
Dowry – 1267; Culpable Homicide due to dowry- 25); 2847 women committed suicide due to
dowry related demands and violence (i.e. almost 8 women a day). Thus, 12,522 women were
murdered/dead every year due to marital violence. Further, 89,546 women faced/ were tortured
by their husband and his relatives in their own homes i.e. more than 245 women a day. Torture
in the matrimonial home constituted 44 % of the total crimes committed against women.

Related Resources
Recommended Documentation

From Multiple Sources
Indian Penal Code
Criminal Code; India, 1860
http://www.vakilno1.com/bareacts/indianpenalcode/indianpenalcode.htm
Main criminal code of India; intended to cover all substantive aspects of criminal law;
references made to s.182, 209, 211 which can be invoked if there is misuse of any law
including 498A

Section 498 A Indian Penal Code (IPC)
Criminal Law; India, 1983

Available at http://www.vakilno1.com/bareacts/indianpenalcode/s498a.htm
Section states that whoever being the husband or relative of the husband of woman,
subjects such woman to cruelty shall be punished with imprisonment, also liable to fine

Section 304 B Indian Penal Code (IPC)
Available at http://www.vakilno1.com/bareacts/indianpenalcode/S304B.htm
Section deals with dowry death

Code of Criminal Procedure, 1973
http://delhicourts.nic.in/CrPC.htm
Main legislation on procedure for administration of substantive criminal law in India

Code of Criminal Procedure (CrPC) Amendment Act 2010
Act; Government of India, 2010
Available at http://www.voice4india.org/wp-content/uploads/2010/03/The-Code-of-Criminal-
Procedure-Amendment-Bill-2010.pdf
Aims to curb arbitrariness of police arrests, it fixes the responsibility and makes a police
officer justify the arrest or letting go of an accused and keep a written record of it

The Constitution of India, 1949
http://indiacode.nic.in/coiweb/coifiles/part.htm
Provides Index-wise access to Constitution of India

Article 14
Fundamental Rights; The Constitution of India, 1949
http://indiacode.nic.in/coiweb/coifiles/p03.htm
States that “the State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India”

Article 15(3)
Nothing in this article shall prevent the State from making any special provision for
women and children

Article 21
Provides that every person has a right to life and personal liberty

National Family Health Survey (NFHS-3), 2005-2006
http://www.nfhsindia.org/nfhs3.html; also view
http://hetv.org/india/nfhs/nfhs3/NFHS-3-Chapter-15-Domestic-Violence.pdf
Provides data on key indicators and information on population, health and nutrition in
India, NFHS-3 included a module of questions on domestic violence

Protection of Women from Domestic Violence Act (PWDVA)
Available at http://bellbajao.org/resources/faqs-on-the-law/
Provides protection and relief to women facing domestic violence

The Dowry Prohibition Act (DPA)

Available at http://www.vakilno1.com/bareacts/dowryprohibitionact/dowryprohibitionact.htm
Prohibits the giving or taking of dowry

Consultation Paper-cum-Questionnaire regarding Section 498-A of Indian Penal Code
(from Vinita Aggarwal, Ministry of Women and Child, Government of India)
Paper-cum-Questionnaire; by Law Commission of India,
Available at http://lawcommissionofindia.nic.in/reports/cp-s498.doc
Paper prepared to invite the views of the public/NGOs/institutions/Bar Associations etc.
on the various points related to 498 A before preparing a report for the government

From Anagha Sarpotdar, Mumbai, Maharashtra
Journey from Violence to Crime: A Study of Domestic Violence in the City of Mumbai
Report; by Anjali Dave and Gopika Solanki, Tata Institute of Social Sciences (TISS), Mumbai,
2001
Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/res04071102.pdf (PDF; Size: 1.38
MB)
The study reveals that women continue to struggle to get any institution recognize and
act upon family violence

Shades of Courage: Women and Indian Penal Code Section 498 A
Report; Tata Institute of Social Sciences (TISS), Mumbai, 1999
Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/res04071101.pdf (PDF; Size: 329 KB)
Suggests S.498-A alone is insufficient to deal with domestic violence problems, pending a
comprehensive legislation, scope of 498 A should not be curtailed in any manner

A Research study on the use and misuse of Section 498A of the Indian Penal Code
Report; by Centre for Social Research, 2005
Available at http://www.csrindia.org/attachments/498A%20Seminar%20Report.pdf
Based on information available from NGOs shows before registering a complaint under
S.498 A at every stage, the woman is asked to reconcile and put up with the situation

Gender Equality and Women’s Empowerment in India
Report; National Family Health Survey (NFHS-3) 2005-06, Ministry of Health and Family Welfare,
Government of India, August 2009
Available at http://www.nfhsindia.org/a_subject_report_gender_for_website.pdf
Presents key findings on gender equality and women‘s empowerment in India

Laxman Ram Mane Vs. State of Maharashtra on 7 October 2010
Citation: 2010 STPL (Web) 942 SC
http://www.stpl-india.in/SCJFiles/2010_STPL(Web)_942_SC.pdf
The Supreme Court upheld the conviction of the accused in 498A and 306 IPC stating
that illicit relationship of a married man with another woman amounts to cruelty within
the meaning of Section 498-A

Nripen Roy and others v State of West Bengal
Citation: 2010 Indlaw CAL 763
To access click here; Registration required
While upholding the conviction under section 304B and 498A, the Calcutta High court
observed that a lesser sentence will send wrong signal to potential offender and will not
yield the desired result

Satya Narayan Tiwari @ Jolly & Anr. Vs. State Of U.P. on 28 October, 2010
Citation: 2010 AIR SCW 7144

http://indiankanoon.org/doc/1149159/
The Supreme Court expressed its anguish over the state of affairs prevailing in the Indian
society as brought to fore by repeated incidents of bride-burning; it held that such crimes
need to be dealt with an iron-hand

Preeti Gupta & Another Vs State of Jharkhand & Another (from Akmal Razvi, Legal
Advisor, Newzfirst.com, Bangalore, Karnataka
Criminal Appeal No. 1512 OF 2010 Arising out of SLP (Crl.) No.4684 of 2009
http://www.nicepear.tw/gt/view/id-20807
The Court held that advocates must maintain its noble traditions, and treat every
complaint under section 498-A as a basic human problem, and must make
serious endeavor to help the parties in arriving at an amicable resolution

Within the Four Walls: A profile of Domestic Violence (from Aasha Ramesh, Gender and
Development Consultant, Bangalore, Karnataka)
Study; by Multiple Action Research Group, New Delhi, 1995
For a copy, write to marg@ngo-marg.org
Presents a profile of domestic violence based on interviews with victims, those helping
them in dealing with the violence, also focuses on implementation of 498A

Gender Equality and the Judicial System in West Bengal
Report; by Swayam, Kolkata, West Bengal, 2001
For copies write to Swayam at anindita@swayam.info
Examines the nature, extent of bias against women within the judicial system, suggests
ways in which the processes of administering justice could become more gender sensitive

Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW)
Convention; by Division for the Advancement of Women, United Nations; New York, USA; 1979
Available at http://www.un.org/womenwatch/daw/cedaw/
International bill that outlines the rights of women, ratified by India

A Study on Section 498A in Tamil Nadu (from Bimla Chandrasekar, Ekta Resource Centre for
Women, Madurai)
Study; by Ekta Resource Centre for Women, Madurai, 2011
For copies, write to Bimla Chandrasekar at mdu_ekta@rediffmail.com
Study finds the conviction rate under S.498A for the period from 2003-2008 in trial courts
around 20%, in appellate courts it declined to 3.2%

From Mitu Khurana, New Delhi
Woman SC judge lists daughters as liability
Article; CNN-IBN, 28 December 2010
Available at http://ibnlive.in.com/news/woman-sc-judge-lists-daughters-as-liability/138837-3.html
A sitting judge of the Supreme Court listed her unmarried daughters as 'liabilities',
triggering sharp reactions from women rights activists

The Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex
Selection) Act
Available at http://pndt.gov.in/index2.asp?slid=49&sublinkid=31
Act for prohibition of sex selection, for regulation of prenatal diagnostic techniques for
the prevention of their misuse for sex determination leading to female feticide

From Flavia Agnes, Majlis, Mumbai, Maharashtra
Krishan Lal And Ors. vs Union Of India (Uoi) And Ors on 4 May 1994
Citation: 1994 CriLJ 3472
http://www.indiankanoon.org/doc/1632112/
The Court upheld the constitutional validity of S.498A, and that S.498A is not arbitrary and it
is not violative of Article 14 of the Constitution

Inder Raj Malik And Ors vs Sunita Malik on 30 January 1986
Citation: 1986 CriLJ 1510, 1986 (2) Crimes 435, 1986 RLR 220
The Court held that the word ‘cruelty’ is defined in the explanation which inter alia says
that harassment of a woman with a view to coerce her or any related persons to meet
any unlawful demand for any property or any valuable security is cruelty

Sushil Kumar Sharma vs Union of India (UOI) and Ors on 19 July 2005
Citation: JT 2005 (6) SC 266
http://www.498a.org/contents/judgements/SupremeCourtJudgement_LegalTerrorism.pdf
Widely quoted in support of the amendment because the Court held that any misuse of this
provision of law amounts to unleashing Legal Terrorism, mere possibility of abuse of a
provision of law does not per se invalidate a legislation

Yusuf Abdul Aziz vs The State of Bombay and Husseinbhoy Laljee on 10 March 1954
Equivalent citation: AIR 1954 SC 321; 1954 SCR 930
http://www.advocatekhoj.com/library/judgments/index.php?go=1954/march/3.php
Any law making special provisions under Article 15(3) cannot be challenged on the
ground of contravention of Article 14.

Gurbachan Singh vs Satpal Singh & Ors on 26 September, 1989
Equivalent citation: 1990 AIR 209, 1989 SCR Supl. (1) 292
The Supreme Court held that persistent ill-treatment of a woman for dowry amounted to
abetment to suicide

The Indian Evidence Act
http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm
Contains a set of rules and allied issues governing admissibility of any evidence in the
Indian courts of law; reference to s.113 A of this Act made while arguing against misuse
of s. 498A IPC

State of the World Population - The Promise of Equality: Gender Equity, Reproductive
Health and the Millennium Development Goals
Report; United Nations Population Fund (UNFPA), 2005
Available at http://www.unfpa.org/swp/2005/english/ch1/index.htm
Report observed that as many as 70 percent of married women in India between the
ages of 15 and 49 are victims of beating, rape or coerced sex

The Hindu Succession Act, 1956 (from Mohan Rambha, Swami Vivekananda Institute of
Technology, Secunderabad, Andhra Pradesh)
Act; Government of India, 1956 amended in 2005
http://www.vakilno1.com/bareacts/hindusuccessionact/hindusuccessionact.htm

Act lays down a uniform and comprehensive system of inheritance, following amendment
daughters given equal rights with sons in coparcenary property

From Malika Basu, Resource Person
Memorandum - Violence Against Women Group, Mumbai (A coalition of Women’s
Groups and Organisations working on Violence Against Women in Mumbai)
Memorandum; by Violence Against Women Group in Mumbai to the Chairperson,
Committee on Petitions, The Council of States (Rajya Sabha), 24 December 2010
Available at http://xa.yimg.com/kq/groups/15287701/1666137821/name/Memorandum.doc
Memorandum written in response to the petition by Dr. Anupama Singh to the Rajya
Sabha praying amendment to the Section 498 (A) of the Indian Penal Code of 1860

The Controversial Section 498A
Article; by Pankaj Sharma, Zee Research Group, Zeenews.com, June 2011
Available at http://zeenews.india.com/news/zee-exclusive/the-controversial-section-
498a_714675.html
Highlights the review ordered by the Home Ministry of S.498A

Recommended Organizations and Programmes

From Multiple Sources
Ministry of Women and Child Development (MWCD), Government of India
http://wcd.nic.in/
Nodal Ministry for the advancement of women and children, formulates plans, policies;
enacts/amends legislation; guides/coordinates efforts of organizations working in the
field of Women and Child Development

Law Commission of India (LCI), Ministry of Law & Justice, Government of India
http://lawcommissionofindia.nic.in/
Constituted by the Government and empowered to recommend legislative reforms with a
view to clarify, consolidate, codify particular branches of law where the Government felt
the necessity for it; reviewing the s. 498A IPC

National Crime Records Bureau, Ministry of Home Affairs
http://ncrb.nic.in/
Through Information Technology, Criminal Intelligence enables Indian Police to enforce
the law, improve public service delivery; obtains, compiles, analyzes National Crime
Statistics

Jagori (from Aasha Ramesh, Gender and Development Consultant, Bangalore, Karnataka)
B-114, Shivalik, Malviya Nagar, New Delhi - 110017, Delhi; Tel: 91-11-26691219, 91-11-
26691220; Fax: 91-11-26691221; jagori@jagori.org; http://jagori.org/about-jagori
Advocates for the rights of women, supports diverse groups of women facing domestic
violence, caste violence, dealing with prejudice, exclusion and other forms of violence

Swayam
# 9/2B Deodar Street, Kolkata-700019, West Bengal, India; Tel: 91-33-24863367-68; Fax: 91-33-
24863409; swayam@cal.vsnl.net.in; http://www.swayam.info/
A women’s rights organization committed to ending violence against women and children

International Clinical Epidemiology Network (INCLEN)

# INCLEN INC. Office, Philadelphia, 1420 Walnut St, Suite 411, Philadelphia, PA 19102-4003
USA; Tel: 1-215-735-8170; Fax: 1-215-735-1905; inclen@inclen.org;
http://www.inclen.org/research/ws.html#contact
A unique global network of clinical epidemiologists, social scientists, other health care
professionals to strengthen national health care systems, improve health practices

SANLAAP
# Central Office, 38B Mahanirban Road, Kolkata - 700 029, India; Tel:91-33-2464 9596,2465
3429; Fax: 91-33-2465 3395; sanlaap@rediffmail.com; http://www.sanlaapindia.org/
A developmental organization working towards addressing social imbalances, which
present themselves as gender injustice and violence against women and children

Society for Women's Action and Training Initiatives (SWATI) (from Poonam Kathuria)
# B-2, Sunshine Apartments, Dr S Radhakrishanan Marg, Ahmedabad 380015, Gujarat, India;
Tel: 91-79-26305694; pswati@satyam.net.in; http://www.swati.org.in/women-and-health.html
Works on issues related to the empowerment of women; raises issues related to violence
against women with the communities, relevant authorities, and the State

EKTA - Resource Centre for Women (from Bimla Chandrasekar)
# Bethel Nagar, Bible Bhavan Street, Bypass Road, Ponmeni, Madurai - 625 010, India; Tel: 91-
452-2381309; Fax: 91-452–2382454; e-mail: mdu_ekta@rediffmail.com, mdu_ekta@yahoo.co.in;
http://www.ektamadurai.org
Works with women, adolescents, youth and men towards realizing the goal of
establishing a gender just society; recently did a study on 498A in Tamil Nadu

Jeevika Development Society (from Dolon Ganguly)
# Flat 1/A, South End View Building, Diamond Harbour Road, P.O. Joka, South 24-Parganas
743512, West Bengal, India; Tel:91-33-24673060, 24533843; Fax: 91-33-24753077;
jeevika@cal2.vsnl.net.in; http://jeevikadevelopmentsociety.org/
Committed to working towards furthering the rights of women, facilitated neighbourhood
support group – Alor Disha, which provides legal support to victims/survivors of VAW

Majlis (from Flavia Agnes)
#A 2/4 Golden Valley, Kalina-Kurla Road, Kalina, Mumbai-400098, India; Tel: 91-22-26662394,
Fax: 91-22-26668539; majlislaw@gmail.com; http://www.majlisbombay.org
Works towards securing the rights of women and marginalized through litigation,
pedagogy, campaigns, academic inputs and support to women lawyers

Recommended Portals and Information Bases

From Malika Basu, Resource Person
Supreme Court Judgments related to 498A (upto November 2005)
Available at http://www.498a.org/contents/judgements/SupremeCourt_498a_Judgements.pdf
Cites a number of cases related to 498A and judgments passed by the Hon’ble Supreme
Court of India

Women Corner- 498A
Guidelines; Hyderabad City Policy
Available at http://www.hyderabadpolice.gov.in/womencorner/498a.htm
Provides a set of points to help prevent abuse of 498 A and strengthen the complainants
case

498A.ORG

http://www.498a.org/
A website providing information on various aspects of 498A, with said focus on its misuse

Related Consolidated Replies

For Comments: Study Report on Nyaya Panchayats and Domestic Violence Law, from
Subhash Mendhapurkar, SUTRA, Himachal Pradesh. Gender Community and Decentralization
Community. Issued 06 March 2008. Available at
ftp://ftp.solutionexchange.net.in/public/decn/cr/cr-se-decn-gen-06030801-public.pdf
Comments on the recommendations of report covering issues of using Nyaya Panchayats
in implementing Protection of Women from Domestic Violence Act (PWDVA)

For Comments: Monitoring Indicators for Domestic Violence Act Implementation from
Indira Jaising, Lawyers Collective Women’s Rights Initiative, New Delhi. Gender Community.
Issued 30 June 2007. Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/cr-se-gen-
27040701-public.pdf
Shares feedback on the questionnaires and suggests strategies for developing effective
monitoring indicators for implementation of Domestic Violence Act

Discussion: Implementing the Protection of Women from Domestic Violence Act from
Gouri Chowdhury, Action India, New Delhi. Gender Community, New Delhi. Gender Community.
Issued 1 March 2007. Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/disc01-t01-
fullsumm.pdf
Discusses implementing the protection for women from domestic violence act through
effective mechanisms, training and advocacy

The Protection from Domestic Violence Bill 2005 from Nidhi Prabha Tewari, Sanket
Information and Research Agency, New Delhi. Gender Community. Issued 16 August 2005.
Available at ftp://ftp.solutionexchange.net.in/public/gen/cr/cr-se-gen-16080501-public.pdf
Offers insights into issues to be considered by Parliament in making legal and social
protections currently available to victims of domestic violence more effective

Responses in Full

Anagha Sarpotdar, Mumbai, Maharashtra
I am glad that the Gender Community has put forth for discussion the issues surrounding socio
legal aspects of the Section 498 (A) IPC. I have been working on reported cases of domestic
violence since the year 1999. I was part of the research namely, Journey from Violence to
Crime: A Study of Domestic Violence in the City of Mumbai done by the Tata Institute of
Social Sciences (TISS), Mumbai. As a member of the women’s movement, I am presenting here
before the Gender Community and the MWCD, the response of the women’s organizations and
groups to the proposed amendment to the Section 498 (A) IPC for making it non bailable and
non compoundable. This response is a joint representation by the women’s organizations/groups
in Mumbai.

1. Article 14 of the Indian Constitution provides equality to both men and women while in
order to upgrade her status, the State Governments as per Article 15(3) is empowered to
make any special provision for women and children. In addition, the courts have upheld
the validity of the special measures in legislation and executive orders favoring women.
Harassment of women for dowry has resulted in deaths in the form of both murders and
suicides. Further Article 21 provides that every person has a right to life and personal
liberty. In this regard, existence of a section such as 498 (A) IPC is of importance

and relevance as it challenges threat to women’s life and personal liberty that
is caused by incidents of domestic violence. Back in 1961, Dowry Prohibition Act (DPA)
was introduced and it penalized the act of giving and taking dowry. Unfortunately, the
enactment of the DPA prevented neither the demand for dowry nor the act of giving it.
The practice of dowry continued and its association with violence and death in the
matrimonial home became more evident. During the early eighties, public protests
against dowry deaths received wide media coverage. It is in this context that the IPC was
further amended in the year 1983 to recognize cruelty to a married woman as an offence
u/s 498 A. It is a result of a determined campaign and advocacy by the women’s
movement to highlight the rising incidences of cruelty in marriages and dowry
harassment. In 1988, within four years, however it became necessary to enact Section
304 B IPC, to deal with the death of a woman in the matrimonial home, as it concluded
that Section 498 (A) IPC did not prevent women from dying. Section 498 (A) IPC
primarily aimed to give justice to the women while she is still alive.

2. The most recent National Family Health Survey (NFHS-3) conducted by the Ministry
of Health and Family Welfare, Government of India (GOI) of the year 2005-6 recognizes
‘spousal violence’ and this study further reveals various forms of domestic violence which
women and girls generally face at home. The NFHS–3 findings link is given here
http://www.nfhsindia.org/a_subject_report_gender_for_website.pdf for your ready
perusal to enable us to understand the gravity of offence. The NFHS–3 data tells us that
only 2 percent of abused women have ever sought help from the police. This establishes
the fact that intervention by police is the last resort in situations of domestic violence. In
addition, National Crime Records Bureau (NCRB) data of 2008 available for your
reference at http://ncrb.nic.in/ divulge the fact that Section 498 (A) IPC constitutes only
for 3.9 percent of the total crimes registered for the Indian sub continent. Hence, we
have research studies to show the extent and prevalence of domestic violence; and that
these studies have concluded that only a small number of women actually use the law
and that the allegation of widespread misuse of the provision is not backed by any
research study.

3. The statistics provided by the NCRB available at www.ncrb.nic.in for your reference for
the year 2008 state that 8712 women died because of dowry deaths across India while
81,344 women registered cases for cruelty against husband and his family under Section
498 (A) IPC. It is a known fact that Section 498 (A) IPC came into existence as the
Section 304 (B) pertaining to dowry death was falling short to address the menace of
domestic violence while the women were still alive. It can be said that lives of the 81,344
women have been saved because of the existence of Section 498 (A) IPC that could have
been deaths due to domestic violence otherwise. A research done on women and Section
498 (A) IPC by TISS namely, Shades of Courage, published in the year 1999 covering
69 police stations in the city of Mumbai, representing 1,397 women over a period of 8
years reveals that 40 percent of the cases were registered after the death of the women.
In such a situation, it can be said that Section 498 (A) IPC is one of the prominent and
only section in the IPC which can be used as a preventive measure to curb domestic
violence and save lives of women.

4. The NFHS – 3 of 2005-06 report namely, Gender Equality and Empowerment of
Women available for your ref at
http://www.nfhsindia.org/a_subject_report_gender_for_website.pdf in India reconfirms a
well-known fact that gender inequality is deeply entrenched in the Indian society leading
to disempowerment of women. The legal provisions related to women cannot be
changed from being gender specific to gender neutral at the demand of few individuals
who have no substantive data to prove that gender neutral laws are need of the day. In

India, marriage is seen as holy sacrament and family as a sacred institution, while
domestic violence as private and personal matter. Our social culture has further made
the women believe that she must silently bear the violence and not address in the court
of law. However Section 498 (A) of IPC, the Protection of Women from Domestic violence
Act, 2005 (PWDVA), DPA and other criminal law provisions have been enacted which
clearly illustrates the position of the government that the institutions of marriage and
family are not insulated from state interventions, particularly where there is violence
against women within such institutions. Hence, it is in tune with our Constitution, as it
obliges states to protect the marginalized sections of the society, such as women.
However, an important point to be noted is that, through the Code of Criminal
Procedure (CrPC) Amendment Bill 2010, there are restrictions on the police as far as
arrests are concerned. Police officers will be responsible to record the reasons for either
arresting or not arresting the accused persons after registration of the FIR which are
open to the scrutiny of the court. Moreover, the arrest can be done only after proper
investigation in the reported matter. The conviction rate in 498 (A) cases is also
negligible compared to the other sections within the IPC. Infact the study done by TISS -
‘Journey from Violence to Crime’ (2001) brings out that women continue to struggle to
get any institution recognize and act upon family violence. It further says that to violate a
woman seems to be a norm and to criminalize violence is an aberration. Every attempt is
made by the natal family to neutralize, minimize, and trivialize the experience faced by
the daughter. It is observed that only when the violence becomes extreme and various
attempts to stop it fail, is the last alternative to register a case under Section 498 (A)
IPC. As per the study conducted by the Centre for Social Research (CSR) - available at
http://www.csrindia.org/attachments/Research%20-%20498A.pdf, it tells us that
information available from NGOs shows that before registering a complaint under Sec
498 (A) IPC at every stage (police station, Crimes against Women’s Cell and courts) the
woman is asked to reconcile the matter and put up with the situation. Therefore, the
contention by the petitioner the Section 498 (A) IPC is being grossly misused by the
women and their parents is not a fact.

5. It is pertinent to note that there is an argument that Sec 498 (A) IPC is used as medium
by the women complainants to extort large amounts of money from the innocent
matrimonial families and to deny custody of children to the fathers. We need to
understand that it is a long legal battle and struggle for aggrieved women to seek their
matrimonial rights through courts. Hence, it would be irrational to label women who are
putting up a fight for their rights within marriage as being ‘manipulative’ and ‘scheming’.
In the following two cases, the Hon’ble Supreme Court took cognizance, but only after
the death of the women. Had these cases been dealt by the police and lower courts
promptly, deaths could have been prevented!
a) In Laxman Ram Mane v State of Maharashtra (2010 Indlaw SC 217) the
Hon’ble Supreme Court upholding the conviction of the accused in 498A and 306,
IPC said that, "We are of the opinion that an illicit relationship of a married man
with another woman would clearly amount to cruelty within the meaning of
Section 498-A. Even assuming for a moment that this did not amount to cruelty
within the meaning of Section 498 (A) IPC it could still be used as a piece of
evidence of harassment and misbehavior of the appellant towards the deceased.
We have also perused the Panchnama and the site plan. We find it difficult to
believe that a woman who had been living in the area would have gone to
answer the call of nature at a place where the water was 9 ft. deep and at a
confluence of two rivers. It appears to us, therefore, that this was a case of
suicide on account of harassment meted out to the deceased.”
b) In Nripen Roy and others v State of West Bengal, (2010 Indlaw CAL 763),
while upholding the conviction under section 304B and 498A, the Calcutta High

court has said, "We do not wish to interfere in the matter as we find that a lesser
sentence will send wrong signal to potential offender considering that such
crimes are on rise and lesser sentence will not yield the desired result.”
c) I would like draw attention of the Gender Community members to the fact that
the Hon. Supreme Court of India in its judgment dated 28th Oct’ 2010 given in
the case of Satya Narayan Tiwari vs. State of Uttar Pradesh has expressed
serious concern and said that wife murder crimes are to be treated as the ‘rarest
of rare’ ones and extreme punishment of death should be awarded to offenders.
A Bench consisting of Justices Markandey Katju and T.S. Thakur states that
although bride-burning or bride-hanging cases have become common in our
country, in our opinion, the expression ‘rarest of rare’ does not mean that the act
is uncommon; it means that the act is brutal and barbaric. Bride killing is
certainly barbaric. Justice Katju said, “Crimes against women are not ordinary
crimes committed in a fit of anger or for property; they are social crimes. They
disrupt the entire social fabric. Hence, they call for harsh punishment.”

6. Section 498 (A) IPC is the only section in the IPC that recognizes domestic violence
against women as a crime. It is our experience that it takes tremendous courage on the
part of the women to approach the police for registration of a case under Section 498 (A)
IPC. Any amendment to the section will defeat the courage and motivation of
women who dare to break the barriers and speak up against violence. Similarly,
it also dilutes the purpose and sprit of the section in totality. It will send a message to
the society that the State is not looking at domestic violence as a crime and as an issue
of serious concern. Making the Section 498 (A) IPC compoundable will only
create further scope for the role of police in pressurizing women to reach
'compromises' and withdraw complaints and thus make more room for louder
accusations about the misuse of all laws meant to protect women and girls
against domestic violence. It is therefore imperative to ensure that the Section 498
(A) IPC is maintained as it is and at the same time to effectively implement the
Prevention of Domestic Violence Act, 2005 in the state of Maharashtra.

7. There is also opposition to any proposed amendment in making Section 498 (A) IPC
gender neutral. If we go by numbers and studies, it is evident from the statistics that
women are harassed and tortured for numerous reasons at home. We have never heard
that the husband or his relatives such as parents etc. being kept without food, given no
clothes, not allowed to speak to neighbors, beaten up severely or burnt to death. Hence
the petitioner’s say that indiscriminate registration of cases under Section 498 (A) IPC
leads to ‘poor’ and ‘innocent’ members of the matrimonial family including senior citizens,
teenage girls and/or boys and women being ‘targeted’ and ‘harassed’, husbands being
alienated from their family, causing growth in elder abuse does not hold true and needs
to be substantiated by either researches and/or statistics from any agencies having a
credible status. The NCRB figures available at www.ncrb.nic.in for the year 2008 reveal
that in 93.7% cases registered u/s 498 (A) IPC the charges of cruelty were admitted by
the court. From this it is evident, the courts found substance in the reported matter.

8. Section 498 (A) IPC deals with a crime that happens behind closed doors and within the
four walls of a matrimonial home. Therefore, it is difficult to prove the violence. Because
of the absence of the history of domestic violence due to apathy of the police to register
the non-cognizable complaints and non-existence of witnesses to corroborate the
violence it is seen that the conviction rate of the crimes registered under Section 498 (A)
IPC is low compared to other crimes in the IPC. Further, in our experience, women may
choose not to pursue the case due to pressure to reconcile with the husband, social
stigma, divorce settlements, disillusionment with the criminal justice system or other

settlements between the families outside the courts. In totality, if all these cases which
are not proved or proceedings are quashed at the initial stage are viewed as ‘false’ cases
or cases where there is ‘misuse’ and the concerned women and/or their natal family
members are punished or are compelled to pay compensation to the accused it will be a
highly unjust move leading to re-victimization of the concerned individuals.

9. I would also like to draw attention of the Gender Community members and MWCD to the
fact that several judgments have held that mere possibility of misuse can not render a
provision invalid and on those grounds no law enacted by a competent legislature can be
struck down. The Constitutional Validity of Sec 498 A has been challenged in a number of
cases on various grounds. Hon’ble Supreme Court dismissing the challenge in Sushil
Kumar Sharma Vs Union of India (2000 (6) ALD 217, 2000 (6) ALT 1, AIR 2005 SC
3100, (2005) 6 SCC 281) held that the mere possibility of misuse did not render a
provision invalid.

10. In my view and many other organizations in Mumbai, we must unanimously and strongly
oppose the petition suggesting and requesting any amendment to the Section 498 (A)
IPC and request the following:
• There should be no amendment to the Section 498 (A) IPC in any form or in any manner
• A protocol should be developed at a National level for skilful police investigation of cases
registered under Section 498 (A) IPC
• Judicial decisions of compounding / reconciliation in cases registered under Section 498
(A) IPC should be critically reviewed
• Capacity building of the Criminal Justice System to be able to understand domestic
violence as a crime and regard mental violence as a legitimate evidence to be treated at
par with the physical violence.

JAGORI - Violence Intervention Team, New Delhi
Section 498A was introduced in Indian Penal Code (IPC) in the year 1983 to protect married
women from ‘cruelty’ by the husband or his relatives. It provides for punishment of imprisonment
up to three years and fine. An offence committed under Section 498A IPC is cognizable, non-
compoundable, and non-bailable.

Before 2005 there was no other law to handle criminal conduct of husband and in-laws except
498A and lawyers and social activists took help of this law to:
1. Prove cruelty by in-laws and husband in matters of divorce
2. Prevent violence in matrimonial homes, and to create legal binding on husband and his
relatives, in situations where women were not interested to walk out of marriage
3. Create pressure to bring husband to negotiation table in cases of desertion and violence
and for purpose of safe reconciliation
4. Pressurize the husband and in laws to come for out of court settlement in dowry
harassment cases
5. Get justice in cases of severe violence where a woman wants to punish her husband or
in-laws where things have gone out of reconciliation stage and the woman has decided
to walk out of the marriage
6. Get justice in dowry related violence where things have gone out of reconciliation stage.

When in large number of cases under 498A, and also application of quashing of cases, started
being filed in the High Court, the High Court in many of its judgments, directed police to do
counseling sessions with the couple to find out any chances of reconciliation before filing an
F.I.R under 498 A except in heinous or grave matters. Based on these directions Delhi police as
well as police of other states started counseling process and no direct F.I.Rs were registered
since then in matters of 498A. This process helped women with intentions from 1 to 4

mentioned above, but women with intention 5 and 6 were harassed and faced more violence
and rights violation.

After enforcement of Protection of Women from Domestic Violence Act (PWDVA) in 2005,
a provision was created for women to seek a civil remedy for their intentions from 1 to 4 and
this was meant to take load off from police and 498A cases of civil nature. PWDVA has created a
space for counseling by trained and expert family counselors with the help of Protection Officers
and High Court Mediation Cells, so that now the role of the Police should be to lodge the FIR
when women reach stage 5 or 6, and not engage in reconciliation and counseling process.

According to us, police should stop counseling process for filing F.I.R under 498 A -
rather after the first level of screening they should forward all matters under 1 to 4
to respective Protection Officers and for matters under 5 and 6, they should register
an F.I.R immediately. This strategy should be used by lawyers, social organizations
and other service providers.

498A should be handled as pure criminal law, non-bailable and non-compoundable to
provide justice in cases of cruelty by husband and his relatives. Done in this manner, it would
reduce the number of quashed petitions, hostile witnesses and acquittals; it would reduce the
burden of courts as well as police and would give relief to women fighting for their case in all
categories right from 1 to 6.

Akmal Razvi, Legal Advisor, Newzfirst.com, Bangalore, Karnataka
I am an advocate practicing in the High Court of Karnataka. I have practical experience in dealing
with Section 498A of the Indian Penal Code (IPC). Anagha Sarpotdar in her response (posted 04
July 2011) has given a comprehensive history and background of Section 498 A. I agree with her
on most of the things.

The menace of dowry is eating away the roots of our society. It is probably one of the biggest
factors for the skewed male female ratio in India which, I fear, will bring huge law and order
problems for the country in the near future. Many women are definitely victims of this menace
and therefore the suggestion of deleting the provision of Section 498A is dangerous and
should be opposed. However the abuse of Section 498A is also a fact which we have
to reckon with.

Husband and wife in the natural course have differences of opinion and fights. They almost
always make up after these fights and their relationship comes back to normal. However, there
are some marriages where there are inherent incompatibilities between the spouses on account
of personal traits (like stinginess, unhygienic habits, etc), cultural differences (like the status of
the family elders, lack of freedom to the wife, eating habits and societal aspirations like status
etc). It becomes very clear after some counseling that that the marriage is unlikely to survive.

When it is suggested to the parents of the wife that it is better to end the marriage, they
immediately say that they have spent a fortune on the marriage and blame the husband and his
family for the unfortunate break up and then want to extract the entire money they have spent
on the marriage by filing dowry harassment case. It is rather unfortunate that the Advocates
draft a patently false complaint adding that there was an attempt to kill by the husbands’ family.
Another sad practice is to include the names of all the brothers, their wives, and sisters of the
husband to blackmail and harass the husband and his relatives. The offense being non-bailable,
the relatives are immediately put behind bars.

The practice has been abused so much that the Hon'ble Supreme Court in CRIMINAL APPEAL
NO. 1512 OF 2010 (Arising out of SLP (Crl.) No.4684 of 2009) Preeti Gupta & Another

Versus State of Jharkhand & Another, Dalveer Bhandari, J. had to observe that the
Advocates who belong to a noble profession must maintain its noble traditions and should treat
every complaint under section 498-A as a basic human problem and must make
serious endeavor to help the parties in arriving at an amicable resolution of that human problem.

The Court said that experience reveals that long and protracted criminal trials lead to rancor,
acrimony and bitterness in the relationship amongst the parties. It is also a matter of common
knowledge that in cases filed by the complainant if the husband or the husband's relations had to
remain in jail even for a few days, it ruins the chances of amicable settlement altogether. The
process of suffering is extremely long and painful.

In a country where according to the Law commission of India the jails are overflowing because
43% of the inmates should never have been there, if 3.9% of the crime being reported are under
section 498A and if it is translated into numbers, the figure would be huge.

As a student of the legal system, let me point out that the argument of Anagha that 93% of the
cases were admitted by the Court and therefore they are genuine is incorrect. There is no
concept of admitting a case in Criminal Courts. The Courts simply go by the charge sheets filed
by the Police.

The Criminal justice system in India is heavily supportive of the complainant. The Police routinely
file charge sheets knowing fully well that there is no evidence to back the claim of the
complainant. In an overwhelming majority of the cases, then begins the never ending saga - of
court hearings, adjournments, evidence, arguments, and ultimate acquittal. (In the midst of all
this the age of the wife has become such that her remarriage becomes extremely difficult).

Therefore it is my suggestion that the section 498 A should be amended to define cruelty to
include any kind of physical injury, which if backed by a certificate from a doctor should continue
to be non bailable. Violence of all kinds especially against women is abominable. However, every
other kind of cruelty alleged should be made a bailable offence which should be compoundable.

All other relief that a woman may need are anyway now made available under the Protection of
Women from Domestic Violence Act, 2005.

Aasha Ramesh, Gender and Development Consultant, Bangalore, Karnataka
It is not surprising that the implementation of Sec 498A has come up for review and there are
demands from various quarters to amend this Section. I think there a couple of key points that
need to be considered before any amendments are taken up. These are as follows:

• This section was introduced after a major struggle of the women's movement that
sought a strong effective legislation to check the increasing violence against women
(VAW), particularly related to dowry as there were a spate of dowry murders that had
occurred in the 1980's
• The demand was for a non-bailable, cognisable statute and in keeping with this, Section
498A was introduced
• More recently, one observes that laws introduced to check VAW are coming up for
criticism on the grounds that they are not being effectively implemented, or that innocent
people are facing the brunt of these legislations and therefore the need to review and
amend, which I feel is a conspiracy to dilute these legislations.

Multiple Action Research Group in Delhi had conducted a study looking at the implementation
of Section 498A and this was done specifically looking at the functioning of the Crime Against
Women (CAW) cell located at Nanakpura. I was involved in this study and it might be useful for

you to look at the study, to understand how this Section is used and misused. It was part of a
study on Domestic Violence.

What perhaps needs to be looked at very seriously is the proper implementation of this Act, and
ensure that it is not misused as often the enforcement agency personnel misguide the
complainants and force them to file the case under this Section, even if the issue is related
to child custody etc, as they tend to inform the complainant that only if you bring in a clause of
dowry harassment/torture, only then it will be addressed seriously. Therefore, there is need for
the enforcement agency personnel to be educated appropriately on the use of this Section. If this
is done properly, then the complaint that it is being misused and innocent people are facing the
brunt could be checked.

Another key concern is that the enforcement agency's role is to take action, investigate and
implement law. Therefore they should not take on the role of counseling, which tends to happen
more often than not.

Counseling is necessary and should depend entirely on the requirements of the respective parties
and should be done by sensitively trained counselors, not limited to have prescribed
qualifications, as this alone does not make for sensitive and non-partisan counselors. (I would
like to mention here a very eminent and respected counselor, late Ms. Elizabeth Vatsayan.
More counselors like her are needed. She had the perspective and the appropriate counseling for
the process, and ‘if law was the only recourse then so be it’ - that was her skill)

Further, I fully endorse the points made by JAGORI team (response posted on 05 July 2011) and
reiterate that 498A should be handled as pure criminal law, non-bailable and non-
compoundable.

Indrani Sinha, Sanlaap, Kolkata, West Bengal
It is really encouraging to see that such an important subject is being discussed on the Gender
Community Platform.

We (Sanlaap) do not directly work on Violence Against Women (VAW) but work on ‘trafficking of
women and children’, which is violence too. We do get some cases and we do lot of training for
Women's Organizations on the issue.

On this current discussion, I would like to add few things as follows:
• Implementation of the law is pretty bad
• Most poor women do not have free legal aid to use in their cases, which are long drawn
• Women do not get shelter if they involve in a case of 498 A
• Police need more training on the law itself and how to provide help to the women and
their families.

Srabani Das, Task Force on Violence Against Women (TFVAW), Bhubaneswar, Orissa
The topic raised in the Gender Community on whether Section 498 A in IPC has to be made
compoundable and bailable is pertinent. The section applies to only those women who are legally
married and who make use of this to protect their rights in the marital home. IPC makes this a
non-compoundable, non-bailable and cognizable. I have been working with the women's
movement on this since 1999, especially with the Women Cell (functioning in the Office of the
Deputy Commissioner of Police, Odisha).

Till the Protection of Women from Domestic Violence (PWDV) Act came into force in 2005, this
was the only alternative within the reach of women. In my understanding, a woman resorts to
this section not at the first instance of violence on her. She is a silent bearer of the atrocities till

the ‘explosion stage’. Even though she is aware that she is helpless if deserted or divorced, she
faces the consequences of parting with her children who are minors!!

In Odisha, although a number of service delivery systems are in place such as the family court,
Mahila and Sishu Desks in Police Stations, State Commission of Women and other homes run by
the government, over the past seven years, several women have been denied custodial rights of
biological children by in-laws and have been forced out of the house. The basis is that all these
institutions resort to appeasement and restoration of conjugal rights than providing relief to the
one, who is the victim/victimized.

I strongly advocate that offenders under 498A should be taken to cognizance and punished
accordingly.

Anuradha Kapoor, Swayam, Kolkata, West Bengal
I am writing on behalf of Swayam, a women’s rights organization based in Kolkata, West Bengal,
working on the issue of violence against women and domestic violence in particular for the past
15 years. We strongly protest against the demands for amendments of Sec 498A to make it
compoundable, gender neutral, non-cognizable and bailable for the reasons outlined below:

THE NEED FOR SECTION 498A
Section 498A was introduced to address the violence that women faced within their homes which
often resulted in their death. The context in which the law was introduced has not changed since
the law was introduced. We still live in a society where the female child is still unwanted and
thousands of female foetuses are aborted every year and the girl child is frequently discriminated
against in nutrition, educational opportunities, and health care. Further, violence against women
is rampant in all its forms and the home, a supposedly safe place for women is the site for untold
violence on them. In these ‘safe homes’
• women are murdered for not bringing enough dowry
• women commit suicide because of the violence inflicted on them
• women are violated and 2 in 3 women face domestic violence

According to the National Crime Records Bureau (NCRB), in the year 2009: 9675 women
were murdered due to dowry i.e. more than 34 women a day (Dowry Death – 8383; Murder due
to Dowry – 1267; Culpable Homicide due to dowry- 25); 2847 women committed suicide due to
dowry related demands and violence (i.e. almost 8 women a day). Thus, 12,522 women were
murdered/dead every year due to marital violence. Further, 89,546 women faced/ were tortured
by their husband and his relatives in their own homes i.e. more than 245 women a day. Torture
in the matrimonial home constituted 44 % of the total crimes committed against women.

These are reported figures only. All the studies on Domestic Violence show that between 40-
50% of Indian women face violence in their homes but do not report it. This is borne out by the
following statistics:
• According to the National Family Health Survey-3 (NFHS-3) conducted in 2005-06: 40%
of married Indian women face Domestic Violence of any form, physical, mental or sexual;
35% women, married or unmarried, between ages of 15-49 face Domestic Violence; 17
% never married women face Domestic Violence (figures do not include women above
49 years)
• According to the INCLEN survey 2000: 50% married Indian women face Domestic
Violence in any of its forms – physical, sexual, psychological and/or economic
• According to the National Family Health Survey 2 conducted in 1998-99 in India: 56%
wives from 90,000 interviewed believed that their husband has the right to beat them.
• According to a Study conducted by Swayam in 2002, with 1500 female students, 44%
said they would forgive him or forget it their husband physically assaulted them

It is clear from the above figures that although 40-50% of married Indian women face domestic
violence, only a tiny number actually report it and file a case under Section 498A, due to the
shame and stigma attached to it as well as the fact that a large percentage believe that their
husband has a right to beat them. Women accept violence as a part of their daily marital
life and do not even perceive it as a crime.

Further, violence against women, particularly in the home has been increasing at an alarming
rate and over the five year period from 2000-2005 (NCRB data) there has been:
• Over 23% increase in the number of women who were murdered or committed suicide
for dowry
• Over 53% increase in the number of women who faced violence by their husband and
his relatives in their own homes

Hence, the need for Section 498A to protect women from Domestic Violence is more
today than it was ever before.

SOCIAL ATTITUDES TOWARDS DOMESTIC VIOLENCE - OUR EXPERIENCE OF
WORKING ON DOMESTIC VIOLENCE
Our experience shows that not only are violence against women rampant in our society, domestic
violence in particular is accepted and condoned by society. Everyone including the family, police,
judiciary and society at large believe that women have to adjust and put up with some amount of
violence. The definition of how much violence women should put up with is also very subjective.
Families of women in situations of domestic violence also expect her to ‘adjust’, to ‘compromise’
or to ‘forget’, as bringing the issue out in the open will bring ‘shame, disrepute and dishonour’
upon her and the family.

Given the pervasive belief in society that a woman’s place is in her husband’s home, parents
often push women back into violent relationships rather than encouraging their daughters to
break loose from violent matrimonial relationships. Besides, women themselves are brought up to
believe that their final destiny is marriage. They are told that their true home is their husband’s
home and once they are married no matter how their husband or his family treats them they
have to make their marriage work. The responsibility of maintaining family honour and keeping
the family together is placed on women. Further, most women are dependent on their
husband/families for their basic necessities and cannot take action when they are abused
because if they do so they will not have a roof over their heads nor the resources to look after
their children and themselves. They also stay on in abusive situations because they feel that their
children need their father. Further still, women are unaware of the laws to protect their rights
and do not have the knowledge or resources to access the law.

Given this sort of socialization and dependence, when a woman faces domestic violence, she is
ashamed to talk about it and in majority of the cases wants to compromise. When women come
to us, they mainly want intervention to get the violence to stop and to ‘save’ their marriage. If
this does not happen then they want relief in the form of maintenance from the spouse/partner.
It is only in a very small percentage of cases that they want to take police action. Even then,
they usually want police intervention in the form of negotiation to end the violence or to get back
their belongings or to record a diary for future. Only a tiny percentage of women register criminal
cases under Sec 498A.

In the rare case where women want to take action, they come up against numerous barriers.
When women approach police stations, in most cases they are reluctant to register general
diaries let alone FIR’s under Section 498A. These cases are not given importance as they are
considered to be ‘family matters’ and investigation is slack. It is in very rare cases that family

members are actually arrested. In most of the cases, we have worked with the accused usually
get bail before they are arrested. The attitude of the police is reflected in a study done on
Section 498A by Sanlaap, Kolkata where police personnel when interviewed felt that ‘a little bit of
violence happens in every home’ (so women should not complain) and one even remarked that
498A should be used only when a woman faces physical injury at least once a month!

In a study done by Swayam, Kolkata, on Gender Equality and the Judicial System in West Bengal,
although a majority of judges identified that a woman would probably face the most serious
problems in her life in marital home ranging from torture to death, 80% said that they would
encourage their female relatives who asked for advice in situations of domestic violence to
‘adjust’ and ‘compromise’ and put up with the violence unless it reached ‘unbearable proportions’;
48% said domestic violence is a family matter; and 78% believe that women are somehow to
blame for the violence inflicted on them. These attitudes are reflected in the low
conviction rates in cases under Section 498A.

HIGH CHARGESHEET TO LOW CONVICTION RATES
NCRB 2009 statistics which show that although charge sheets were filed in over 93% of 498A
cases indicating that there was sufficient evidence to take the case forward, convictions occurred
only in 19.8% of cases clearly reflecting the reluctance of courts to convict due to attitudes that
condone and accept marital violence as well as the difficulty of proving marital violence which
happens between the four walls of a home. These attitudes also force women to compromise
with their husbands despite the violence they face and to withdraw cases under section 498A
which they may have filed through quashing cases in the High Court.

THE MYTH OF MISUSE - 498A IS HARDLY USED
The demand for amendments to Section 498A stems from a general myth that Sec
498A is misused. Our experience in working with women facing domestic violence clearly
shows that rather than Section 498A being misused, it is a Section that is ‘hardly used’ by
women. Our social context, the extent of domestic violence and the actual use of 498A clearly
substantiates this fact. As mentioned before, in all these years of work, we have found that an
overwhelming majority of women facing domestic violence who come to us, ask for our help to
stop the violence and to reconcile with their husband. They do not take recourse to law until they
have exhausted all other options to save their marriage. Even after this a large majority does not
want to approach the police. A very small percentage approach the police and even less end up
filing a case under Section 498A. If 56% women in our country feel that their husband has a
right to beat them, the question of using Section 498A will not arise in their minds, let alone
misusing it.

NFHS 3 showed that 40% of married Indian women face Domestic Violence of any form,
physical, mental or sexual. However, if we take 40% of married Indian women in 2008 (Projected
Census figures) and see how many have used 498A (NCRB, 2008 data), we will find that only
0.03% of women who face Domestic Violence actually file cases under Sec 498A. It is clear from
these statistics that women hardly use section 498A. (2008 census: 23,42,96,508 married
women, NFHS 2005-06 statistics show that 40% married women face violence= 93,71,86,032.
However, NCRB 2008 shows only 81,344 cases reported. Also of these 81,344 cases of 498A,
12,389 women were dead due to violence (dowry death/suicide))

In a context where women are dependent on their husband and their family for their basic
necessities; support is not forthcoming from their families, society and state agencies, they do
not have the means, ability or power to file cases under Section 498A let alone ‘false cases’.
When the expectation of society from women is that they should put up with violence, it is hardly
surprising that the very act of registering a case of 498A is seen as misuse, and not a crime. This
allegation about the misuse of Section 498A stems from these social attitudes.

ALLEGATIONS OF MISUSE NOT SUBSTANTIATED
Allegations of misuse are general statements which have no basis or proof and are based on a
view that women in India enjoy great power and have the ability to influence the law machinery
to immediately act on their behalf and arrest and victimize people without any evidence. This
points to a complete lack of understanding of women’s reality in our country today as well as the
attitude of the police, towards violence against women.

ALL LAWS OPEN TO MISUSE
We would like to highlight that all laws are open to misuse and 498A is no exception. The
possibility of misuse of a law does not invalidate the law. We must keep in mind the reality and
powerlessness of the overwhelming majority of Indian women and the entire purpose and
context in which this law has been enacted. There are existing provisions in the IPC for misuse
of any law and if 498A is misused, these sections can be invoked: Section 182 makes giving
false information to a public servant with the intent to cause injury to another person punishable
by imprisonment; Section 209 & 211 respectively relate to making a false claim in court and a
false charge with the intent to injure punishable; Section 41A says that the police instead of
arresting the accused, will be obliged to issue him a notice of appearance for any offence
punishable with imprisonment up to seven years.

In view of the fact that many laws are misused and only Section 498A, a law to protect women
from violence has been singled out for amendment clearly shows social attitudes towards
domestic violence that accept and condone it. Further, if the law enforcing mechanism does its
job properly, any misuse can be prevented.

WHY GENDER SPECIFIC?
Even today, women in India are by and large unequal in every sphere - dependent on men and
their families for their existence; faced with increasing marital violence and social pressures to
maintain family no matter the violence; lose their lives daily due to marital violence; are unaware
of laws to protect them; lack resources and support to pursue the law; and do not have the
power to negotiate or influence. Men on the other hand have exposure, knowledge and resources
to access the law, and use their power to influence the system and get away with it. Making the
law gender neutral under these circumstances will make women completely vulnerable and result
in men abusing women and filing cases before women can gather the courage and support to do
so, and the purpose of the law will be totally defeated.

Besides, the Indian State is responsible to ensure that all its citizens, especially the most
historically marginalized, are provided protection to live a life of dignity and respect. Article 15 of
the Constitution of India and International Conventions like CEDAW (which India has ratified) has
recognized the unequal status of women and therefore made special provisions for women to
address this inequality. Section 498A, 304B, 306, PWDVA, 2005 are all legislations to address the
gendered nature of violence against women.

WHY COGNIZABLE?
A non cognizable offence prevents the police from registering a FIR, investigating, or ordering an
arrest without the express permission or directions from the court. The fact that the law is
cognizable allows the police to take immediate action on the complaint of a woman and the issue
can be addressed without the leave of the court. As it is, women find it difficult to reach the
Police Station and file a complaint as the police are reluctant to take action under Sec 498A.
Making the offence non-cognizable will place a huge burden on women who will have to go
through the judicial process to file an initial complaint thus making it difficult if not impossible for
women for whose benefit this law was enacted to use the law. If the law becomes non-

cognizable, there no action taken will be taken by the police and the law will become totally
toothless and remain on paper.

WHY NON- COMPOUNDABLE?
Making the offence compoundable implies that the complainant may withdraw her police
complaint at any point of time. Law sets a standard for society to follow. Marital violence is a
crime and compounding it will send out a message that the gravity of crime is less than that of
other similar crimes. Further, women will be under tremendous pressure to withdraw complaints
and compromise by family, the other party, lawyers and courts and will end up being far more
vulnerable to cruelty and violence. A procedure for quashing 498A cases already exists in the
High Court and we can utilize it where women decide to withdraw the case. The law must remain
non-compoundable to ensure that social pressure does not result in women being forced to
withdraw cases.

WHY NON-BAILABLE?
Section 498A should remain non bailable, requiring the accused to appear before a magistrate to
obtain bail. The assumption that the police arrest families as soon as the FIR is filed is definitely
not borne out of our experiences or that of other organizations working on this issue. In fact, we
see that a majority of men avoid arrest and get anticipatory bail through influence and with
corrupt police assistance and in a large number of cases, the accused husbands obtain bail
almost immediately. . Everyone who gets arrested under Section 498A feels that the arrest was
‘unwarranted’ as they do not think that they have committed a crime as domestic violence has
such social sanction. While there may be a few cases of ‘unwarranted arrest’, these are few and
far between as women do not have the power or resources to ensure the police acts in this
manner. The fact that the section is non-bailable gives it teeth. If the police are allowed to give
bail then no one will ever be arrested and women’s interests will be completely compromised.

CONCLUSION
In view of the facts and context detailed above, the prevailing social attitudes and the
widespread violence against women in their homes, the need for Section 498A is more urgent
than ever before. Hence, Section 498A must remain gender specific, non-bailable,
cognizable and non-compoundable. The provision is the only Section which acts as a
preventive mechanism for marital violence.

We also feel that steps must be taken to ensure that the criminal justice system takes Section
498A as seriously as other crimes. The police must undergo gender sensitisation trainings as well
as technical training to ensure that the investigations they conduct and charge sheets they file
are done in a manner that enables convictions under the Section. The term “cruelty” should also
be defined better to reduce its ambiguity as it makes it difficult to prove physical and mental
torture, resulting in the acquittal of the accused for lack of evidence. Further, trails should be
made time bound to prevent harassment to all parties.

Suman Sinha, Consultant, New Delhi
What are the reasons for low convictions and high pendency in Section 498A cases?
• Perhaps this Act uses the same judicial system which many other Acts, IPC offences and
civil cases use. The reason for low conviction and high pendency in section 498 A cases
will then not be surprising. Low conviction and high pendency is the rule in our judicial
system.
• The question then comes how much do we want to change; whether we want a change
with respect to the low conviction and high pendency of section 498A or we want change
in overall low conviction and high pendency. (If we choose former it shows we continue
to live in our ‘silos’ and do not want any meaningful change. If we choose the latter we
must be prepared to invest much more time and infrastructure) In the former case, we

Gender Community Discusses Amendments to Section 498A IPC

Gender Community Discusses Amendments to Section 498A IPC

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