Saturday, February 2, 2008

Indian Judicial System and section 498A of Indian Penal Code
INDIAN JUDICIAL SYSTEMIN MODERN INDIA&SECTION 498AOFTHE INDIAN PENAL CODE
Thesis written by : VINEET RUIA

Preface

Dear Readers,

This subject came to my mind when I started social counseling in the year 1997. While solving several family problems, I came across different problems with the Indian judicial system and specially section 498A of the IPC.Later, I took up a course for Diploma in Human Rights with the Indian Institute of Human Rights in the year 2003. I was so deeply involved in my business on one side and the social counseling on the other that I would hardly get any time for studying the entire course. I was totally confused whether I should complete the course or not. In the meantime, I decided to meet the director of the institute Mr. Rahul Rai. Mr. Rai was a ray of inspiration. He said – “When you have so much of a practical experience, I am sure you will not have to devote much time on studies. Appear for the exams and I am sure you have the ability to pass.” I decided to appear for the exams and I passed all the groups. Now was a big deal to write a thesis. I asked Mr. Rai whether I could take up my subject as the Indian Judicial System with a special emphasis on section 498A of the Indian Penal Code or not? Mr. Rai once again threw light saying – “Anything you think is against humanity is a concern for Human Rights.”I decided my subject. But I did not know where to begin with. I started talking to advocates, policemen, the general public going to courts and the people coming to me for counseling.I saw the anger among people for the Indian Judicial System and I saw the problems of people falsely implicated under the gender biased laws of the country. I started writing but I did not know where to end. I talked to hundreds of people about it. Nobody could think of the end. Though I have ended my thesis here because I have to submit it to the institute, but I reserve and hold my right to keep on writing till…….I know I will never be able to end my thesis anywhere as it seems to be an ongoing process which will continue and the deeper I go, the broader is the well.But there has to be an end to everything anyway. I am already late in submitting the thesis in order to get my degree. So I have given it an end. I hope people would enjoy reading it and I still will be happy to receive all advises and knowledge from people from different spheres of life.Please mail me your thoughts and ideas at vineetruia@yahoo.co.in

"Men may come and go, similarly, generations may pass away;
But the work of a nation goes on"

But do Indians think the other way round :

"Men may come and go, similarly, generations may pass away,
But a pending case in Indian Court goes on"

Definitely - YES. A person files a case, his son fights it and the grandson meets the result of it. The people who were aggrieved, who filed the case and who fought the case are already dead.After all, the question arises – "WHY ?" Why does the judiciary take such a long time to give away judgements? Does it anyhow mean that :

1. The Indian Judicial system is impractical and inappropriate?
2. The courts in India do not have competent lawyers/judges?
3. The matters are delayed due to some external pressures/ "in-the-court clerical adjustments"?
4. The horse-trading takes a long time before the ball is finally thrown in one of the courts?
5. There always remain quite a lot of vacancies on the benches?
6. The Judges are transferred very often? Or ;
7. The Judges frequently go on unscheduled leaves?

The ultimate reason remains a matter of fact, which requires examination.As a personal opinion of mine, I do not believe that we do not have competent people at the bars or benches. It is in fact the system, which is to be blamed. I bring out a few instances, which may throw light on the lapses in the system.

1. Starting from the lower courts,

A. A person who files a case is required to serve a notice to the defendant and the earliest date for appearing of the defendant is given to be two-three months after that. If however, the defendant does not appear on the date after three months (either due to a delay by the postal dept. or due to negligence on part of the local PS), the date is extended to further two-three months. Therefore, a period of six months is passed out very easily without even a single step towards destination. Yes, now after six months, when the defendant appears, the matter is transferred to a particular court and the defendant gets further time of two-three months to file his written statement/objection. After filing of such written statement/objection, the petitioner is required to give his Affidavit-in-reply/objection within two-three months. Hence, one small year is passed on so easily. It is a different issue that some solicitors/lawyers have good understandings with the court clerks and can manage to get little earlier dates but still not before one month. This is a sheer wastage of time and the sequence of getting dates goes on until final judgement is given.Advocate Pawan Agarwal of the Criminal Court at Kolkata states: “Most of the criminal cases remain pending for long due to latches of Police. The service of summons is disobeyed and kept pending not for days, but year after year. The court keeps on issuing warrants on each date but there is no execution report for years. If the criminal court has 10 cases, at least 9 are pending due to non service of summons by police. If police start service of summons promptly, 90% cases of criminal court will be over soon.”

B. There have been instances when a hearing is going on and the magistrate catches a sweet nap. All of a sudden, he is shocked to hear the ‘Peshkar’ say – "Sir, the hearing is over." "Oh my god, hearing is over? What happened?" – whispers the Magistrate. Well, a date is fixed for orders. The question arises, why don’t the Magistrates come to the courtroom well prepared before hand, in spite of the fact that a copy of the petition always exists in the court. Why do they have to depend completely on the counsels to explain them things during hearing only? And how are judgements sometimes given in spite of the magistrate being inattentive? Naturally, the ‘Peshkar’ sometimes plays a vital role here.Advocate Bhaswati Choudhury of the Sessions Court States : “Reservation is a curse to the Indian Judicial System. A few judges are brought in by way of Reservation for SC/ST/OBC etc. These judges do not have any knowledge of the law and its implications. Most of these Judges try to pass out time in the court and try to ensure that their tenure in the court is over before they have to give away a judgement. If at all they have to give a judgement, they would most likely give away a bad judgement.”I would like to ask the politicians shouting for reservations :

1. What can we expect from a Doctor getting job under reservation? Will he save the life of the patient or will he help him to die with immense pain because the doctor did not know the basic rules of an operation or the proper medicines he should be given. These doctors should be sent back to the medical schools.

2. What can we expect from a Magistrate if he does not know the law and interpretation of law? He never practiced at the bar and got a chance to be a Magistrate because he belongs to SC/ST/OBC. In a recent case, a judge coming from SC/ST directed the police to start investigations in a case where a lady divorced in the year 2000 filed a complaint u/s 498a against her ex-husband that he was torturing her. The Officer-in-Charge of the concerned police station produced a decree of divorce, a complain filed by the ex-husband in the PS that the lady visits his house often and creates a mess though she has no right to do so and a copy of order u/s 144 (2) of CrPC restricting entry of the lady into his premises. Still the Magistrate was callous enough to neglect the submissions of the Officer-in-Charge of the PS and direct investigations.

3. What can we expect from a teacher who got a service on account of his being SC/ST/OBC? He himself does not have a competent degree with good marks and he is preaching the society and kids? Can we expect his students to fare well in the examinations?

4. When we want to bring up the backward classes of the society, why doesn’t the government provide them education from the very basic level and then bring them up on merits? Doesn’t the government know that the Indian Constitution provides for free education to every child in the country from the age of 4 to 14?

5. If the foundation of the building is strong, it won’t fall. The tree with deepest and largest roots will grow the biggest. Why not care for each child worrying about his caste or creed? It is the government which is making the discrimination to gather votes. Not the backward classes.Coming back to the lower courts…….


C. In most cases, during the trial or cross examination, the questions asked and the answers received do not hold the actual meaning which they should. Like a question which was asked differs when it is being noted by the stenographer of the magistrate. The answer by the witness is recorded in such a way that it changes the meaning of the entire context. Now, the witness has to sign it when the trial or cross examination is over. The person gets adequate time to think what he/she said and change his/her version and then sign something which changes the entire meaning of the statements. There have been instances I have come across wherein the meaning totally changed.

D. Sometimes, the Judges are so knowledgeable that they imply their own terms beyond provisions of law and the witness or accused fearing not to impulse the magistrate bows to it. I have a very clear example when a magistrate directed the witness to answer anything only as “YES” or “NO”. The learned counsel objected to it but the judge was adamant. Then out of the way, the counsel who was a senior Bar-at-Law from the High Court became angry on the Judge and said if you want an answer in “YES” or “NO”, answer one of my questions in “YES” or “NO”. The judge took it as a challenge and said he could answer. The counsel asked :“Do you beat your wife everyday?”The judge said “NO”. The counsel claimed : That means you beat her on alternate days? The judge realized his mistake.But how many such counsels have the guts to question the dignity or authority of the magistrate? May be 0.0001 percent!!!

E. There have been instances where orders given in the courtroom differ from the signed order copy officially received from the court.

F. In the meantime, the petitioners as well as the defendant, both find their pocket weights reducing substantially.


2. Moving to the higher courts,- Where things move very fast, the dates fall faster (although the matter comes on list but the call for hearing does not come very soon) and the meter of the solicitors & counsels runs fast as well. The only thing that moves slow is the passing of orders.

A. Here, a person filing a case is required to serve a notice and the matter can be taken up for hearing at an early date. If there is an emergency involved, interim orders are passed and then the matter becomes a time pass.

B. I have an instance where a case was filed in the High Court on 2nd November, 2000. The matter being urgent, as it involved the livelihood of more than 500 persons who were suffering since past two months, was taken up as an unlisted court application on 7.11.2000. An interim order was passed on 08.11.2000. The order so passed, also gave a time of two weeks to the defendant to file an Affidavit-in-Opposition and further 10 days to the petitioner to file an Affidavit-in-Reply. The matter being important because the vires of a law were challenged, was to be taken up within 4 weeks from the date of the interim order. The learned Advocate – General was to be served with a copy of the writ petition. After all necessary documentation, the matter was to be taken up for final disposal on 17.01.2001. In the meantime, after the winter vacation of the court, the bench was changed and the matter was shifted to another Justice who was completely unaware of the facts of the case. What was the outcome? The matter has to be started from the very beginning once again. Fresh submissions are to be made and the bills amounting to Rs.1,25,000/- were received by the petitioner from his solicitor. How easy it is to transfer a judge but how difficult it is for the petitioner/defendant to bear.

C. The hearing was held for a short span on 17.01.2001 and the Hon’ble Justice was pleased to direct the matter to appear as a "Specially Fixed Matter" for further consideration on 13.02.2001. On 13.02.2001, the matter could not be taken up due to a large number of court applications. On 14th and 15th, the judge was on leave and on 16th, it was a Friday, when the Original side matters are not taken up. On 19.02.2001, the matter was on the list but was postponed to appear as "Specially Fixed Matter" on 01.03.01. On 01.03.2001, the list of the said court did not appear because the lawyers had boycotted the court. 02.03.01 being a Friday, Original side matters are not taken. On 05.03.01, after a few court applications, a long matter was taken up due to which this matter could not be taken up.D. The petitioners approached me and in my capacity as a social worker, I took up the matter as it was a Public Interest matter and was affecting 18 Lakh consumers of electricity in the city of Kolkata. It was a power versus the poor game. The owners of the electricity supply company had made arrangement with the ruling CPI(M) government in West Bengal and passed a legislature which was ultra vires the constitution of India and the Indian Electricity Act 1910. I started pursuing the matter with the Chief Justice of Calcutta High court and the Law Ministry. The West Bengal government washed off its hands. My meeting with the union law minister Mr. Arun Jaitley on 30th and 31st August 2001 did not bear fruits as the matter was subjudice. But on hard persuasion, Justice A.S. Anand, the Chief Justice of India directed the Calcutta High Court to hear the matter day-to-day and report the happenings in the hearing to the Supreme Court everyday at 5 PM. The Calcutta High Court, under immense pressure, heard the matter and the hearing was over in 5 days on 7th December 2001. The order was reserved. Then the court forgot that it has to give away the order. After one whole year, I wrote a letter to the Chief Justice reminding him that a matter which relates to an unlawful legislature is pending for more than a year. The judge under emissions and omissions, gave away the order on 14th January 2003. Most of the points were covered by the learned judge but the financial issues were forgotten whether knowingly or unknowingly. The Electricity Company went in for an appeal and the matter was heard by the Chief Justice of Calcutta high Court. He ordered that the matter should appear in 4 weeks but it came up for hearing after 3 long years. The division bench in the Calcutta High Court has ruled against the single bench on one meager ground which actually does not apply in this case. I was present at this hearing and everything was looking all set from before except the other side had to be given a little time to speak though not to be considered. In any case, the matter is now a question of arguments which I think the original petitioners are not going to pursue as they have already spent more than Rs.6 lakh and 6 years. They cannot afford any more money and time.The strangest thing in the case was that the Electricity Company had threatened the petitioners that they would get the judges changed in the matter frequently and the matter will never come to an end. And they could do it.Now the judgement has been given away on a very small point stating that one can be a judge in his own cause because the person adjudicating or giving judgement is directly not related to the victim or the accused. Moreover, the earlier act has been repealed by the new act coming into existence. Should this case not be considered based on the law existing during the happening of the incidence?In this case, the officers adjudicating and giving judgement are employees of a private company and if they give an order against the interest of the company, they will be kicked out of the company the very next moment at the sweet will of the management. In other words, if a person in a security agency picks up a revolver to shoot me and in turn I kill him in defense, the people of the agency will decide what punishment I should be given. They are not concerned whether I am innocent or not. They only have to decide a punishment without knowing that I killed him in self defense.Things were finally all managed in this case and even a prima facie case was closed as if nothing had started and nothing ended. The petitioners are once again back to the stage where they started after 6 years and spending Rs.6 Lakhs.You can get a law amended or changed as per your wish in India if you have power.

Indira Gandhi, daughter of the Jawaharlal Nehru, the prime minister, who gave one of the World's best speeches on the day India got independent, grew up under the political shadow of her father. Jawaharlal Nehru died of a stroke in 1964, his daughter Indira was not seriously considered as a successor. However, when two years later the Prime Minister Lal Bahadur Shastri also died suddenly, she was chosen to fill the leadership void in India. The cause of Lal Bahadur Shastri's death always remained a mystery. Overnight she became the leader of India and perhaps the most powerful woman in the World.Although Indira had vowed to remain single, she decided to marry Feroze Gandhi, a family friend. He was a Parsi, a member of a small cultural group that had fled from Persia centuries earlier to escape Muslim persecution. Indira was criticized for her choice of a husband not only by her father but also from the public. Despite these protests the couple married in 1942. Because Nehru was a widower he needed Indira to act as hostess at official government functions. Gradually she and her husband drifted apart and although they were never divorced they live separately until his death in 1960. It is difficult to confirm that Indira married to Feroze Gandhi only to get his surname for her political career.In late 1971, Indira gave military support to a successful attempt by East Bengal to secede from Pakistan, which resulted in the creation of the state of Bangladesh. Following the Pakistan conflict, Indira won the 1972 election, again by a large majority, but her defeated opponent charged that she had violated election laws. The high court of Allahabad ruled against her in 1975, posing the prospect of her being removed from parliament and being barred from politics for six years. Instead of accepting the court's decision, Indira declared a state of emergency, imprisoned her opponents, and suspended civil liberties.Indira Gandhi went on appeal to Supreme Court. Getting superseded 3 senior Supreme Court judges, A.N. Ray was made Chief Justice of India. The Representation of peoples Act was amended and made effective retrospectively to cover the election period. This amendment provided immunity to the Prime Minister.Judgment was delivered by the Supreme Court. Each judge wrote his judgment in her favour but there was one judge Mr. Justice Chandrachud who though wrote the judgment in her favour, mentioned that Allahabad High court judgment was correct but the reversal was because of change in law itself.So the basic principle of justice that one can not be judge in his own case was evaded through back door. He/she can make the law for himself/herself and appoint the judges for himself/herself.It was a great jolt to judiciary. So while declaring section 4 of the Passport Act as ultra vires in Maenaka Gandhi vs. Union of India case they planted three words "just, fair and reasonable". By these words judiciary empowered itself to strike down any legislation as their lordships may please.She was back again 1980 and her most quoted statement after that is that corruption is universal. Over the next several years her political fortunes rose and fell dramatically, and in 1977, her party was swept from power. In 1978, after her supporters formed the Congress (I) "I" for Indira 151 Party, she regained her parliamentary seat and two years later was re-elected to her fourth term as prime minister. Her son Sanjay became her principal political adviser, and all legal cases against Indira were withdrawn. Nobody knows how and why those legal cases were withdrawn. After Sanjay died in an airplane crash in 1980, she began grooming her son Rajiv for leadership of the party.In June 1984, Indira sent the Indian army to the Punjab to drive Sikh out of the Golden Temple of Amritsar, the holiest shrine of the Sikh religion. Over 600 people died in the conflict. On October 31, 1984, Indira Gandhi was assassinated by two of her own Sikh security guards while she walked through her garden. Upon his mother's death, Rajiv became prime minister. Rajiv too was assassinated in 1991. Now Sonia, Rajiv's wife, who is an Italian citizen, now holds the highest power in Indian politics. Sonia is the daughter-in-law of Feroze Gandhi, and Feroze was nowhere connected to Mahatma Gandhi nor can he be said to be the successor of Jawaharlal Nehru.Born in Italy, married to Rajiv, the son of Feroze Gandhi, a Parsi, Sonia has now become so powerful in India that the whole political system of the country dances on her tunes.

History repeats itself and in the instant Electricity case, the judges have proved :

“MIGHT IS RIGHT IN INDIA”

If you have power, you can do anything in India. Make legislations, scrap legislations, anything. Recently, in the matter of Office of profit, when the ministers did not find any other escape route, they are once again planning to amend the law.Coming back to the instant case, one more strange thing and the most important part was that the counsel of the Electricity Company agreed in open court that the company is liable to pay compensation for its own wrongs. There was a prolonged argument considering the laws of natural justice but the learned judge never covered this clause in his judgement.Now, questions arise in mind :

1. What can be the reason behind this matter being delayed? Is it :-

A. Just a co-incidence that something goes wrong on the date fixed for the matter?

B. Due to the reason that the judge wants to go through the petition deeply before coming to the courtroom for which he might not be getting time to prepare?; or

C. Due to some “external-pressure”, the matter is being intentionally delayed to harass the petitioner?

2. What made the Calcutta High Court change 3 judges in six months in one particular case?

3. Why did the Judge not cover the compensation clause in his order?

4. Why is the matter not being taken up for hearing although it is a matter of public importance?I am nowhere interested in the critics of the instant case but this is used just as an instance. The case could have been concluded much faster, had the judge hearing the case from the beginning not been transferred. The petitioners spent more than Rs. 6 Lakhs but still all in vain.Nobody can answer these questions though one can easily understand about what have happened behind the curtains. It is all into the blood of we - Indians. But no one here speaks. All of us are corrupted. Those who are not, they fear to face the evil. Those who dare, their body may be found falling from the 10th floor of a building or lying in a drain. The newspaper would report next day about this unknown suicide.

“DOES THE COMMON MAN HAVE A SAY IN INDIA?”

“IS DEMOCRACY A WEAPON IN THE HANDS OF THE FEW POWERFUL PEOPLE IN INDIA?”

“DOES INFLUENCE PREVAIL, AND JUSTICE FAILS IN INDIA?”

If we believe things had gone fairly, at least my assumption in that case is, - Had there been Video Cameras, which would have taken complete recording of the previous hearings, would have helped the sitting judge to go through the arguments and submissions already done between the learned counsels of the petitioners and the defendants. He has the details on papers, which could make things clear, and further, the judge could have found himself in a better position going through the entire case before coming to the courtroom.How tiresome it becomes for the counsels once again to repeat the things that have already been done. And how costly affair it becomes for both the parties who have to pay for double hearings & conferences and waste equal time. Moreover, how expensive it is for the courts that such a long time, money and man power is wasted.If this kind of practice is changed and things go faster in courts, I believe: -

A. People will have more faith on courts than ever before.

B. Judgements will be passed in very short spans

C. The courts would save time and manpower.

D. Expenses of the courts will reduce.

E. Revenues in the court would multiply thereby showing a way for better infrastructure of courts.

F. Courts would not be termed as ADALAT { A – Aao (come ) ; Da – Do (give ); La – Lado ( fight ) and T – Tabah ho jaao ( get destroyed ) }

G. Rather they would be a place of action for better administration and sooner implications.

I propose installation of Computers and Video Cameras in the courtrooms (if not the lower courts, at least the high courts).The installation of Computers in courts rooms would help in :

A. Bringing efficiency in the working of the courts.

B. Recording exact happening instantly at the point of its occurrence.

C. Giving as many number of certified copies without re-typing or loss of time as the litigants want.

D. Saving time of the court.The Installation of Video Recording system in court rooms would help in :

A. The court to keep records of happening in the court

B. The judges to review the hearings and arguments as and when they deem necessary.

C. The new judges who take up a running case and are totally unaware of the facts that have already been placed and argued upon.

D. In bringing transparency in the judicial system.


My brief reading on Section 498A of the Indian Penal CodeCriminal law (2nd Amendment) Act of 1983Enactment date – 25.12.83Section 498A of IPC states :“Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. The offence is Cognizable, non-compoundable and non-bailable.”Explanation – For the purpose of this section, cruelty means :

(a) A willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view of coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.No doubt, if we would have talked about this section about 50 years back, India would have deadly in need of it. The women folk in the country were subject to torture and were treated with immense cruelty.

If we consider the facts, going back to the period of the gods, it would not be surprising that all the major portfolio or ministries were controlled by the ladies.

Finance Minister – Ma Lakshmi
Education Minister – Ma Saraswati
Defense Minister – Ma Durga
Food Minister – Ma Annapoorna, etc. etc.

The ladies during those periods and ancient India had due respect and were subject of worship. Even the Dynasty rule in India had ample respect for woman in form of “Rajmata” and “Gurumata”

With the invasion of the Mughals and establishment of the Mughal Empires, things started changing. Especially during the rule of Aurangzeb and later, the British, women started becoming subject of abuse, molestation and disregard. In ancient days, though the articles or wealth, the women used to bring with them at the time of marriage, came as a gift, later it started becoming a demand by the groom’s side.Women were tortured and even stabbed or burnt alive to death by greedy in-laws for want of Dowry. After independence, the Dowry System became a cause of concern and there was deadly need of a law for the protection of the women and specially the daughter-in-laws’ in India.As a result, a new section 498A was enacted on 25th December 1983 under the Indian Penal Code in order to penalize the people who commit this grievous crime against women. Any kind of physical or mental torture on the woman by her husband or any one related to the husband was taken into scanner and the person or persons should be severely punished.But who knows, what was deadly required in the past turned out to be futile and destructive in the present. Forget the future which is uncertain.This section was enacted for the welfare of the society in order to protect the dignity and life of women but in the long run, this section is being grossly misused by the daughter-in-laws these days.How are you at risk and why is it dangerous for the society?Your wife/daughter-in-law whose demands are not met can make a written false complaint of dowry harassment to a nearby police station. The husband, his old parents and relatives are immediately arrested without sufficient investigation and put behind bars on non-bailable terms. Even if the complaint is false, you shall be presumed guilty until you prove that you are innocent.In other words, the onus of proving the offence has been transferred from the complainant to the accused. 498a can only be invoked by wife/daughter-in-law or her relative. Most cases where Sec 498A is invoked turn out to be false (as repeatedly accepted by High Courts and Supreme Court in India) as they are mere blackmail attempts by the wife (or her close relatives) when faced with a strained marriage.
In most cases 498a complaint is followed by the demand of huge amount of money (extortion) to settle the case out of the court.
This section is non-bailable (you have to appear in court and get bail from the judge), non-compoundable (complaint can't be withdrawn) and cognizable (arrests without investigation or warrants).
There have been countless instances where, without any investigation, the police have arrested elderly parents, unmarried sisters, pregnant sister-in-laws and even 3 year old children. In these cases unsuspecting family of husband has to go through a lot of mental torture and harassment by the corrupt Indian legal system. A typical case goes on for years (5-7 years is typical) and the conviction rate is about 2.2% only. Some accused parents, sisters and even husbands have committed suicide after time in jail.
Yes, this section is as easy to implicate on in-laws, as easy it is to order a cup of tea in a restaurant. A married woman simply has to either go in person or send through some relative, a complaint on a piece of paper and the result is that all the accused people can easily be arrested.But what about the after effect of this complain? Do any of us think of the results?

Let me explain.As soon as the police receive the complaint, they find a chance to become millionaire soon. Depends, how rich are both the parties. All of us know how honest the police in India are. People in India fear the police as they do not know their rights. Know your rights and do away with your fear from legal touts – POLICE. Don’t think that I am disregarding the POLICE. It is a matter of fact which we all know. Police around the world (specially, western countries) is very co-operative and polite. But here, an Inspector of Police says:“The first line we are taught when we join the police force is – You have to rule the society and people should fear you. The lesson itself is furious.”

I had conducted a survey with 28 senior officials (Inspector of Police and above) of Kolkata Police and West Bengal police in August and September 2006. I elaborate my reading here.I went to about 45 police stations and could manage to take interview of 25 inspectors only as others were reluctant to speak. They wanted me to get a written permission from their DC. They said that they want to say a lot about the misuse of section 498A but are prohibited by the higher authorities to make statements. Their words spoke of the seriousness of the cases. I thought it better to take interview of people who are ready to speak as, if the DC says “NO”, I would not be able to meet these people. And, I wanted the ground reality as these are the people who face the complainants and the accused directly. After meeting these officers, I met three Deputy Commissioners and the Additional Commissioner. I could not manage an interview with the Commissioner as he had busy schedules.I would like to mention here that the gentleman who was then the in-charge of the Women’s Cell in the Kolkata Police Head Quarters was the Deputy Commissioner of Police (Detective Department).

I had met this gentleman and for answers to most of my questions, earlier he said – all the laws in India are misused. Then, he kept on uttering: One section of the society believes that section 498A is being misused.

I said : Sir, I am sorry to state that in such circumstance, 100% of the Kolkata Police belong to that one section of the society. He went out saying that he has to attend an urgent meeting.

I then went to the In-charge of the Women’s Cell. But the lady did not talk to me stating that the DC can only make statements. As I was going out, one of the Sub Inspector caught hold of me and came to meet me outside the Police HQ. He informed me that the Women’s Cell is a Den with not Lions and Lionesses, but Dacoits who are champion in money extortion. Though this cell is meant for counseling, once a case comes in, first enquiry done is as to how rich the parties are.

- Where the parties belong to a lower middle class or poor society, attempts are taken to counsel the case and if not, case initiated and in-laws are arrested to create pressure for a compromise. If no compromise is reached, matter goes to court.

- When parties belong to the middle class or higher middle class, the boy’s side is asked how much they can pay as settlement. A settlement is reached after consulting the girl’s side and the commission from boy’s side is taken for getting him rescued from this stringent law. Then the girl’s side is indirectly asked to give away something as per their choice. If no compromise is reached, matter goes to court.

- Usually cases of High Societies do not come to the women’s cell. They are tackled by the senior people with a nexus between the senior police authorities, advocates and magistrates. They are mostly settled out of court.

Let me elaborate my findings after meeting the 28 senior officials of the Kolkata Police and West Bengal Police. I go with the 24 Inspector level first. (‘Q’ stands for question which I asked, OC means Officer-in-Charge, PS means Police station) I shall mark the saying of the 4 seniors (3 DC’s - deputy commissioners and one ADCP - additional commissioner of police) separately where the question is the same and I shall mark it with the term Seniors.Q : Are you satisfied with the Indian Judicial System?75% of the officers said that modern changes and reforms are a must.

The OC Bowbazar, Mr. Dwijen Chatterjee said –“Considering section 498A, a reverse section for protection of innocent husbands and in-laws is deadly required. There should be no arrest without preliminary inquiry and proper investigation.”

Mr. Tapan Kr. Pramanik of the New Market PS said –“As per law, simply on receiving a complain, we have no other option than to arrest the husband and in-laws”25% of the officers refused to comment or said they are “officially” satisfied as being police officers, they cannot comment on the administration or law of land.

Q : Which courts are you often accessed to?

These officers were accessed to the High Court, Chief Metropolitan Magistrate’s court, Sessions Court, Alipore Police Court, Bidhannangar court, Barasat court, Barrackpore court, Sealdah Court etc.

Q : In your opinion, how long does a criminal matter take to close?

55% of the officers believe that it takes minimum 3 years to close a criminal case by any court if the charge sheet is filed with 60-90 days. In most cases, police is under some or the other pressure and cannot usually file charge sheet within 60-90 days which again delays the matter.20% officers suggest that sometime in the fast track courts, they have seen matters being closed within 1 to 2 years.15% officers say that they file the charge sheet within 60-90 days and after that, it depends on the court and they are not aware how long it takes.5% people say it is difficult to comment and the remaining 5% say it takes anywhere between 6-8 years.

Seniors :The ADCP says it usually takes 3-4 years.One DC says 10-12 years. Another refused to comment. The DC (DD) said – 12 days to 12 years.

Q : Do you think the Indian Courts are plagued due to corruption?

100% people replied – “NO COMMENTS” Most of the people talked a lot about the kind of corruption in court but officially no one wanted to comment. Two persons asked me to write – “NO” because they did not want to fall into controversy. It is a matter of shame that no one was confident enough to say – “NO”

Q : How serious is a judge in a bail matter of a newly arrested person?

40% of the officers relented to comment saying it depends upon the mood and choice of the judge and varies from man to man.45% officers say that it depends on the gravity of the case and usually a short period custody is remanded.15% said that the judges are really serious while hearingMr. Debashish Baidya of the Manicktalla PS says – “Face is the reflection of mind”

Q : What is the percentage of people getting bail on first appearance?

52% of the officers say that the bail on first appearance depends on the merits and gravity of the case subject to preliminary investigation and findings. But in 498A, the statement of the girl or her relatives itself is taken to be true and no other investigation is possible.45% of the officers say that bail on first appearance is very rare.3% say – “NOT SURE”

Q : How many persons out of the Bail rejected people do you torture?

80% of the officers say that they do not torture any one at all nowadays.20% say that they do not torture physically but create immense mental pressure to bring out the truth.

Mr. Debashish Baidya of Manicktalla PS says –“Hit the sentiments of the people, not the people. Three different officials interrogate and find out the contradictions in the statements given by the accused.”

Mr. Salil Bhattacharya of Dum Dum PS says –“In process of interrogation, obviously there is a mental pressure”

Q : Do you feel to some extent torture is necessary?

50% of the officers believe that a Strainous, Prolong and Rapid Interrogation in a scientific way is necessary.41% of the officers believe that mental as well as physical torture is necessary.3% officers say that counseling is required but not by the police but by some social organizations.3% officers say that torturing in no way is acceptable.3% refuse to comment.

One officer said –“Do you think I should offer sweets to the criminal in my chamber and he will spill out the truth? Give me the stick and I will get you the truth. He further stated that a judge scolded him for torturing a criminal and one fresh day the police arrested the person who had stolen the judge’s wife’s necklace. The judge called him up and asked him to rock the thief to inquire about the necklace. Hence, torture depends on who the complainant is.”

When I was coming out of one of the Police Stations and a person from the “Special Police” came to know that I am a student of Human Rights, he approached me –“Sir, try to save us from Human Rights. Upon instruction from our senior officers, we badly beat up the criminals and when the matter comes to a criminal making a complain to the Human Rights Commission, the officers sit back and rest while we become culprits in the eyes of law.”

Seniors :The ADCP and the DC (DD) say – No torture is at all required.One DC says torture to some extent is required where as the other says Mental Pressure is necessary.

Q : How many complains do you receive u/s 498A IPC in a month?

On an average these police stations were said to receive only 4 complains each month. But I am sure that if I go through the RTI route, I may get this number multiplied.

Seniors :All four of them replied that they would have to check.

Q : How many complains are genuine?

67% of the officers said that less than 15% complains are genuine and most cases either not related to 498A, or are rarely genuine, or are mainly fabricated, motivated, provocative, a fashion today and filed to settle scores with ulterior motives.33% officers said that 30 to 50% cases are genuine and one officer said that most cases are genuine.

Seniors :The ADCP said that about 90% complains are genuine.One DC said that since we charge sheet 99%, then most cases would have to be said to be genuine. Rest is on the trial court to decide whether they are genuine or not.(My study goes to say that in 99% cases, the police simply wash away its hand by referring the matter to court and sitting on the back seat. The Charge Sheet is usually a true copy of the complain made by the girl or her relatives)

One DC says – As a policeman, I cannot say much.

The DC(DD) says – This questionnaire is totally biased.

I would like to add a case narrated by Mr. S. Chakravorty, OC Bidhannagar South Police Station –“A doctor got divorced in the year 2000 and holds a decree of divorce in his hands. His divorced wife comes to his house and creates all types of nuisance nowadays after six years. The husband filed several written complains in the Police Station and also obtained order u/s 144(2) from the High Court to keep the divorce wife away from his house. In the meantime, the divorced wife concealed the fact of the divorce and got an order from the court u/s 156(3). The Police was summoned to the court as they did not arrest the doctor. The OC showed all the complaints of the husband along with the order of the High Court and a copy of the divorce decree. Still, the magistrate ordered the OC to arrest the doctor and produce him in the court.”

Q : Do you arrest the accused directly against the complain?

20% of the officers said they simply arrest the accused people on receiving the complaint and produce them before the court stating that they do not have any other option.55% of the officers, all of them from Kolkata Police stated that usually they arrest only the prime accused who is the husband. Then they try to investigate the matter. (Investigation is based on the statements given by the girl or her family and relatives). If counseling is possible, they try to counsel ( I have described the counseling at the women’s cell at Kolkata Police HQ earlier, which is completely horse trading for money). Else, they arrest the people.25% of the officers say that the complainant either comes with an order of the court u/s 156(3) or through their seniors. So they do not have any other option than to consult the Deputy Commissioner and arrest the accused in-laws.

Mr. A.K.Saha of the Beliaghata PS says –“Even I have no guarantee that my wife will not send me behind bars tomorrow”

Seniors :All the seniors say that they try to investigate first but the onus lies on the boy’s side to prove their innocence.

I would like to mention something here for the information of the readers that –“The Indian law has nowhere bound the Investigating Officer to arrest any accused person. The Law always states – The Investigating officer “may” arrest. It nowhere says – The Investigation officer “should” arrest. It is therefore the sole discretion and a ball left in the court of the investigation officer to decide whether he wants to arrest the accused or not.”

I would also like to mention a case as narrated by the OC Beliaghata PS –“The West Bengal Police officials came to arrest a boy and his mother in the area under my jurisdiction. The family is a very gentle and renowned family and resides in the area since last 40 years. The boy’s wife is of lose character and has lot of extra marital affairs which the entire locality knows of. Even then, I could not avoid the boy getting arrested. The mother was so old that she was not in a condition to be arrested. I had tears in my eyes but was helpless as the West Bengal Police was adamant to arrest them.”

Q : Are you aware that the Union Law Ministry and the Home Ministry had sent a circular to make an arrest u/s 498A only after local enquiry?This question of mine was based on my discussions with Mr. Arun Jailtley, the law minister of India in 2001 in his chamber at Shastri Bhawan, New Delhi when I approached him with a request that something serious needs to be done about section 498A and he informed me of such letter already issued to all the police stations all across the country.

80% officers said that they were not aware of any such letter.10% said that they have heard of and still have standing instructions from their own seniors to investigate before arrest.10% said that they have heard of the letter but still have to arrest as per law.

Seniors :None of them have heard of such letter but they claim that they do enquiries these days and there are provisions in law to do so.

Q : How do you carry out local enquiry and do you get signatures of witnesses?

100% of the officers said that they would go to the locality, ask neighbours, tenants, inmates, occupiers, servants etc. and record their statements but will never take signatures as the witness has the right to change his statement in court.

Q : If the girl alleges demand for dowry, isn’t she required to submit a proof of such demand?

75% of the officers say that oral evidence by the girl is sufficient and she is not required to give any proof. Giving a proof is difficult. They leave it on trial to be decided whether the demand was there or not.25% of the officers say that they try to collect some bills of articles or question some witnesses and try to see if evidence is available, else the statement of the girl is assumed to be correct.

Seniors :The ADCP said that proof is required but the onus lies on the accused to prove his innocence. The DC’s said that proof in form of articles, circumstantial evidences or corroborative evidences are required. Else, oral evidence is taken into account.

Q : What happens if it is found that the girl had given a false statement?

85% of the officers say that usually the sympathy and sentiment goes towards the girl and there is nothing to do. Hence they close the matter stating – Mistake of Fact.15% said that they leave upon the court to decide because they could initiate proceedings u/s 211 of IPC against the girl for making a false complain but they have never heard of any such case and hence, leave upon the court to decide.

Seniors :The ADCP said that the police should file Final Report to relieve the boy’s side and initiate section 211 IPC proceedings suo moto. But he could not sight any example ever.One DC says that the police would give a weak charge sheet in such case.

Another DC said that the matter would be closed stating Mistake of fact.

The DC (detective department) said –“There are people who are habituated in giving false statement to police. They also give false statement in courts. Indian Judicial System is very weak.”

Q : How does the boy or his family prove that they have not demanded anything?

50% of the officers say that the boy’s side has no way to prove that they are innocent40% of the officers say that the “Police is always on the prosecution side and the defense has to be proved in the court”10% officers say that it depends on the circumstances but still, onus of proving innocence has been transferred on the accused.

Seniors :Two DC’s said that there is no way that the boy’s side can prove their innocence.The ADCP said that the circumstantial evidence could only be considered where as the DC(DD) said that they go by oral evidences.

Q : How does the police decide whether there was such demand or not?

60% of the officers say that investigations are done to find out documentary or verbal evidences, interrogate the relatives of the girl and if nothing are available, then the matter is referred to the court.20% officers state that there is a Supreme Court ruling to hear the girl and refer the matter to the court to decide.20% of the officers say that the police have no scope to prove whether there was such demand or not.

Seniors :All the seniors said that they have to rely on the statements given by the relatives of both sides, neighbours, investigation and documents containing any lists or transactions.

Q : Do you feel that this section is grossly misused by the females these days?

75% of the officers believe that this section is mostly and to quite a lot extent being misused by the girls and their close relatives these days. One of the officers claims it to be 101% misused.20% of the officers believe that this section is partly used and partly misused.5% of the officers believe that it is not being misused in all cases.

Seniors :The ADCP says that this section is misused to some extent.One DC says that this section is being grossly misused.Another DC says that as police personnel, he has no scope to say that.

The DC(DD) says –“All Indian Laws are being Misused”

I would like to site two examples here for misuse by close relatives :

One is an example as narrated by Sri A.K.Jana, OC Beniapukar PS :“A lady was preparing tea early morning around 6:30 when the stove burst and she got injured. She was immediately taken to the military Command Hospital where she informed it to be an accident. Her statement was recorded in presence of doctors and senior military officials. Later, she was shifted from the military hospital to the general government hospital where her parents came with a complaint drafted by an advocate alleging dowry demand and attempt to murder by in-laws. Sources of MLA’s and higher police authorities forced the PS to lodge a complaint and arrest the in-laws and the case went on for years.”

In another case :“Sajjan Sharma used to live happily with his wife and twin kids in Moscow when accidentally his wife while cleaning the window house fell from the 10th floor when no one else was at home. The Moscow police had given an accidental report and the post mortem clarified that the death was due to a traumatic fall. This gentleman wanted to perform the last rites of his beloved wife in his own country – India. But he never knew what welcome he was waiting for. As soon as he landed at the Kolkata airport, he and his old father were arrested u/s 498A and 304B for harassment and dowry death. The twins were handed over to the family of his wife. Later, the court acquitted Sajjan Sharma and his family from charges of 498A and 304B on reports from Moscow police but to get his kids back, his wife’s family is demanding Rs.1 crore. The matter is still pending with the Indian courts and Sajjan Sharma is running from pillar to post to get his kids back.”

Q : Do you think section 498A of IPC needs to be amended?

80% of the officers strongly believe that section 498A of IPC needs amendment and the section should be made bailable and its impact should be neutralized.5% of the officers say that the section should only be made bailable and there should not be any arrest so long as the girl is alive. It would give a chance for re-uniting the family.7.5% of the officers believe that no change is required in the section as there are other provisions where in the boy’s side can have protection but it depends on the will of the investigating officer.7.5% of the officers believe that even if no change is made to this section, at least a new section should be introduced to provide at least some protection to the boy and his family.

Additional questions asked to the Senior officers :

Q : Should this section be made compoundable?

The ADCP refused to comment.
One DC said that modification is required.
Another DC said that after arrest, question of compoundable does not arise.
The DC (DD) said that the section should be made compoundable.

Q : Should this section be made bailable?

The ADCP and the DC (DD) said – NOOne DC refused to comment
The other DC said – Yes, it should be bailable with stringent bail conditions and early trial.

Q : Is there a need of a men’s cell like the women’s cell (NCW)?

The ADCP said that the Law Commission is thinking of it. He is not sure. But a cell should help.
One DC said – No such cell as such is required.
The other DC said – Counseling is very important and hence a cell should help.
The DC (DD) said – No such cell is required.

Q : Should these cases not be countered with section 211 of IPC?

All of the senior officers strongly believe that section 211 is not being used but its use should be started and the police should be made to be legally bound to use it.

My questionnaire ends here. But, let us discuss some more facts based on the findings of the Supreme Court.Although the Supreme Court has mentioned section 498A as the most important weapon for “Legal Terrorism”, we cannot see any sincere efforts from any of the High Courts, Apex Court, Law Ministry or Home Ministry, to give a serious thought to this issue. Rather, the Courts seem to be legally bound by the acts of the politicians in the Parliament and the Bills passed by the parliamentarians for their personal and political gains. The court cannot recommend a “Bill”. If the Lok Sabha passes it, the Rajya Sabha accepts it and the president signs it, things are over. It is an ACT applicable to all. May it be for the purpose of drawing a vote bank.If you wish to have a right in India, you should be a person from the minority/SC/STC/OBC or the women section of the society.Only one section in the Indian Penal Code does not see who you are. That is section 498A. It only considers that you should be a “BAHU”. It does not consider whether you are from a minority section, SC/ST/OBC or a woman. Mothers, sisters and daughters are no more women. They are just Mother-in-law or Sister-in-Law. They deserve to be behind bars at the sweet will of the “BAHU” of the family.

I have dealt more than 400 such cases practically in my day to day life and I am aware of about 4000 cases in the hands of the Save Indian Family Foundation, a registered NGO. I am also attached to this NGO for more than a year now. We have also formed a group in Kolkata under the name – Bharat Bachao Sangathan (a society maintained by Central Kolkata Society for Integrity and Fellowship).

I have studied section 498A at the very depth it can reach. I have considered the havoc it is creating in the society and how it is being grossly misused by the educated girls of the so called educated society.A girl whose personal egoistic needs are not fulfilled by the husband or his family becomes enraged and simply goes to her local police station with a smiling face and files a FIR stating that her in-laws are:

· harassing her
· torturing her
· beating her
· demanding dowry
· not giving her food and clothing
· interfering into her daily affairs, etc. etc

The Police is lucky to get such cases as the ball comes in their court with the section 498A being non-bailable, non-compoundable and cognizable. The Police have a good role to play here and they make out a plan in nexus with the advocate of the lady. They plan to pick up the entire in-laws family on a Friday or Saturday night so that the court remains closed until Sunday and they get enough time to negotiate a price at which a settlement for bail can be reached. The money is to be distributed among the girl, her advocate and the Police. If the boy’s side is financially sound enough, it proves to be a lottery won by all.I would like to mention here: 498A does not have any severe impact on people earning a meager livelihood and having nothing to pay. It happens only to the families who have a capacity to pay.If the boy’s side negotiates a deal before arrest, the police may let them off stating that they are absconding. But if the girl’s side pays higher to grab the in-laws, then the police picks the entire family and puts them behind bars. Now comes the court in picture.On the next working day of the court, the arrested in-laws are produced in the court. It is very important to note that for bail purposes, the lawyer required is not a good lawyer. But he/she should be a person with proper channel and contacts. The bail depends on the arrangements the lawyer can make. 5% of the bails granted are based on genuine arguments where as 95% of the bails are based on how good the lawyer can manage the entire team. When I say team, it includes the Investigating Officer (Police), advocates, Public Prosecutor and the Magistrate sometimes.If all the people get enough money from the boy’s side, the Investigating Officer says he has no objection, the public prosecutor says there is no reason why the family should be detained and the Magistrate grants the bail. If enough money is not paid, the investigating officer would remand Police Custody stating that there is a risk that the proofs will be tampered with and the witnesses will turn hostile if the arrested family is granted bail. The public prosecutor will plead that there has been deep molestation and harassment of a woman (Abla Naari – Bechari) who is weeping across the benches in the crowd which is a heinous crime. The Magistrate would allow Police Custody, then Judicial Custody for as many days as possible. By this time the family is so depressed and broken that they are bound to negotiate to the maximum extent of money they can borrow from their known people or banks to pay off all these people.I do not say that crime against women is zero or that no women are tortured or harassed. But as a matter of fact, the ladies who actually suffer, never go to the police or the courts. It is a rare exception and I would say that one out of a thousand ladies out of the really harassed ladies would be going to court.

Nowadays, as suggested by the Supreme Court, section 498A is a “Legal Terrorism” in order to extort money from the in laws. It is a weapon in the hands of the women to extort any amount of money from her in-laws based on the capacity of the payer.In any way, the woman using this weapon is never at a loss financially. She gets several opportunities at different stages to negotiate and bring the boy’s side to an amount which she can bargain best. I have seen cases where a girl has married different people different number of times and extorted different amounts. Most of the cases u/s 498A are resolved at a price negotiated anywhere between 5 lakhs to 1 crore today.

The major reasons which I see for happenings of marital discords and misuse of section 498A of the Indian Penal Code:

Late Marriage :

Late marriages today contribute to one of the major reasons for marital discords. Earlier, the girls aged 18 to 20 were usually married away. At that age, the mind of the girl is just pre-matured and the girl was not highly educated. The girl after coming to the matrimonial home would try to adjust with the situation and environment there. Moreover, there was a slight fear of instability or a ruined life if she does not adjust with the family she is married into. So, the girl would at all means try to adjust in her matrimonial home. There used to be a social pressure and understanding between the families and within the society they are into. Although one would say that I am very orthodox, narrow minded and of old thoughts to think all this, but, I consider that if a person, a family and a society is happy with that kind of an arrangement where family is a priority and everything else comes next, I would always stand by those old thoughts and culture.Today, due to late marriages and the girls growing up beyond 23 to 25 till they get married, they are already so matured with a certain mind set, that they cannot at all think of changing themselves. Rather, they would simply expect all other members of the family to change as per her wish and liking. I would say, if this is what the society wants, then the boy should leave his home and go to the girl’s house after marriage. At least the boy’s family will be secured as they would not be living with the unhappily married couple and they would not have to face the false 498A.

Working Girls contribute to major problems :

Girls/ladies have always been good home makers. It is said that if a woman wishes, she can build a strong foundation for a happiest family and on the other side, she will be the biggest reason for downfall of a happy family. The girls who start earning huge amounts by working in business concerns are so highly egoistic that they do not consider any one in the world to be smarter than them. Here comes the problem. She wishes that anyone in the family should breathe as per her wish and choice. Else, she has an independent income and she would not prefer to stay with the family. If her husband does not interfere into her personal affairs, then he is welcome to live with her, else she lives independently on her own. If the parents of the husband have any say in the house, they should be deserted and the husband should make a choice between the parents and the wife.One of the major reasons why the girls wish to work in offices is to keep away from the unnecessary works at home including cooking, cleaning, bringing up kids, looking after old parents etc. They have an independent income of their own and they are self sufficient. They really do not need support of either the family or relatives. They simply want an extravagant and luxurious life to live lavishly and have fun which cannot be done with eyes vigilant on them. In other words, they do not want to take responsibilities of the household.I talked to several people about working girls and late marriages. Most people said that the culture has changed. The girls are more educated nowadays and they are more egoistic and obstinate. They want complete independence.One gentleman requested me to get him a homely girl for his son. I pointed out : Your own daughter works. Why are you looking for a homely daughter-in-law. He replied – “I am unhappy with the working of my daughter but she is so obstinate that I cannot pursue her to leave the job. That is one of the reasons why I am unable to find an appropriate match for her in my own society and she is already 38. Now I have stopped finding a match for her. I would have turned her out of the house but my family culture and her mother does not allow me to do that.”I asked another gentleman why he is not getting his daughter married in spite of her being 35 and earning more than Rs.10 Lakhs a year. He replied – “It is just a dream to get her married. She earns a lot and she has a busy life. All her bosses are fond of her. Any of her bosses who goes out of station, takes her to the best of five star hotels and she stays in the next best room for the entire duration of his stay there.” I did not find need to ask him what his daughter does in the company.I stay in the United States for almost one month every year. I have even stayed with a few American families in their house. I would like to mention that what Indians think of Americans is extremely wrong. The Americans are realizing the mistakes which they committed 20-30 years back and we are going to commit those same mistakes in times to come. Just as the earth revolves from east to west and west to east, we are going from east to west and America is coming from west to east. We are trying to adopt their culture whereas they are trying to adopt our culture. The Americans have started giving priority to families and the ladies have started becoming home makers.Coming back to IndiaIn most cases, where a girl wants to avoid living in a joint family or interference of her husband or his family, and she does not get all that, out of rage she files 498A.In my opinion, either these girls should not marry or if at all they marry, they should marry either the highly qualified persons who stay all alone away from the family. These girls are already self dependent and they should not have the right to file a 498A.One more option I think could work is that they should marry a person who simply wags his tail in happiness to what these girls say. They should never question their wife if she is out on a long trip with her boss or is not returning home occasionally at nights. These men should be ready to become home makers. I would not have hesitation in saying that men should start becoming home makers, but the only problem is : god has not given him the ability to bear child. Certain rights are reserved only for women as is the IPC 498A.

Interference of Mothers :

I have dealt more than 3000 cases of marital discords. Whenever a new case comes to me, I ask the boy – does your mother-in-law dominate your house. The answers :

“Sometimes, I am bound to think whether my wife is my wife or my mother-in-law is my wife?”

“My mother-in-law decides what I have to eat today and at what time, what shirt and color I have to wear today, how I am to spend my weekend and every smallest moment of my life”

“My mother-in-law wants my salary to be either in the hands of my wife or in her own. I can take money for my expenses to the extent I need”

“My wife should have a mobile phone of her own with a post paid connection and there should be a “friends and relative offer” matching to that of my mother-in-law’s mobile number”

“My mother-in-law complains to me about my wife going to disco with her boyfriends and my parents having objection to it”

There are hundreds of such stories. My study goes to conclude that 97% of marital discords occur due to immense domination of the mothers of the girls into their married life. Where the marital home accepts all this, things are fine. The day when the matrimonial home has objection to this domination, they are served with IPC 498A.

High Education :

A boon or a curse ??I bow to Sri Dayanand Saraswati, Raja Ram Mohan Roy and other such socialists who thought of bringing a minimum necessary education for the girl child, widow marriages and woman upliftment. In my opinion a lady should be educated because if ever in life she comes across a situation where she has lost everything, she should be capable enough to earn her livelihood and does not have to spread her hands for alms. An educated woman can be a best homemaker as she would have entire knowledge of how to run a house hold and keep her budgets in control. She is the best lady who can give the best education and a bright future to her kids. A mother is a mother. A mother can become a father but the father can never become a mother. Where as the tree which has more fruits on its branches, bows the most, in other words, whereas the person with more education should be more polite and polished, the girls nowadays are becoming more arrogant and selfish. As a result, the Indian society is getting single parenthood as one of the easiest rewards these days.

Love Marriages :

Love marriages cannot be kept out of the ambit of marital discords. Love at first sight or love at an adolescence age is more of an infatuation than an eternal love. The expectations of the couple from each other tend to be much more than what is in arranged marriages. Wise people say - If you expect and do not get, you are lost. But, if you do not expect and you get, you are the happiest person of the world. The commitments in a love marriage are pre-determined and decided. If the other partner is not faithful or is not able to manage the dreams he/she had shown during dating, the outburst of the other is so huge that it creates havoc for both the families. The boy has no section under the Indian Law where he can file a complaint against his wife and the most he can do is a Written Complaint in the General Diary Book of his local Police Station. But, the girl goes all the way to file a case under section 498A involving the entire family of the boy whether they stay together or far away. There have been cases where the married sisters are staying in foreign countries and arrest warrants have been issued against those who have never met this girl. Though this was a love marriage, a complaint for dowry demand and harassment by entire family is registered and the in-laws family is arrested.But in an arranged marriage, it is more of a time factor with which both the partners are well decided that they have to give time to the relationship and adjust with what they get. Moreover, there is a social pressure and understanding among the elders of the family who can still sit together and solve the problems of the conflicting youngsters. I do not say that there have not been any 498A cases in cases of arranged marriages but these are mostly due to the egoistic, obstinate and outrageous nature of the youngsters today. The system still has nothing to be blamed and I do believe :

“It is better to marry and love than to love and marry”

Western Impact :

A lot of people believe that the western impact has played a vital role in destroying the Indian Joint Family System and institution of marriage. The morality and chastity that the Indian Society used to have from its culture and heritage are all being lost and every single thing is being weighed in comparison to right and legal individualism. Everyone talks of his/her right but, does anyone ever think of his/her responsibility towards the family, the society or the nation as a whole??

Law of Land :

The law of India has been very carelessly and callously framed. It is completely gender bias. Not only gender bias, but it is bias as a whole to make it completely in favour of one grade of person irrespective of caste, creed, religion or gender. Only the “Bahu” (Daughter-in-Law) of India has all the rights. The law provides that one cannot call his wife by name. One cannot ask his wife as to where she is going? What time she is going? With whom is she going? What time will she come back? The person asking these to his wife is committing cruelty and violence to his wife and is liable for prosecution.Today’s woman does not want to answer these questions but I can bet, tomorrow woman will not have an answer to a question when her kids would enquire who their father is? I am blunt to say that Prostitution in India has been indirectly legalized. The unscrupulous women of today are using the law as a weapon to kill the in-laws in order to fulfill their own desires. The law has given them full liberty to misuse the laws made for women empowerment.

Impact of IPC 498A

The worst part of section 498A is that the police arrests the family members of the boy against whom the complaint is made without making any preliminary investigations as to whether the complaint is at all genuine or not. The innocent people who have never faced police in their life nor ever convicted in a criminal offence are suddenly taken into custody without knowing their offence. Though it is a temporary problem but by the time the people are released on bail by the court, the arrested people have to face atrocities at the hands of the police and the inmates in the police custody or the judicial custody. The young are made to do several untoward things else are harassed. Are we not trying to make the educated class a criminal?

Ultimate result of IPC 498A

The girls are mostly influenced by their parents who are well guided by the lawyers or policemen to file a 498A complaint. As soon as some parents reach a lawyer or a policeman, he would build bridges saying that he can make the in-laws rub their nose at the girl’s feet if the girl files a complaint u/s 498A of IPC. Neither the lawyer nor the policeman would tell the after effect of the complaint. Yes, let me explain what happens.

A girl files a complaint with full confidence that her in-laws family will be arrested and they will rub their noses at her feet. Then if she wants to live in the family, she would dictate her terms for the entire remaining life. If she does not want to live with the family, she will demand huge amount of money as alimony or maintenance and a one time settlement.But, she is not aware that it may be a hard time for the in-laws temporarily for a day or two as long as they are behind the bars. But once they are out on bail, the impact of 498A is “FLAT”. She will no more find a flat surface below her legs and all that she had thought is gone. Now she will have to keep on fighting for years to get a meager amount of alimony if at all allowed by the court. By the time she is allowed the meager amount of alimony or maintenance, she has no other choice to waste her entire life as no one else will be willing to marry her and she will have to spend the entire life all alone. I have seen so many cases where the girl later on (may be after two years or three years) comes to her husband and asks for an apology citing her mistake due to influence of her family members, but by this time, the husband has no interest to give this relationship any chance or he has a fear that if this girl is brought back in the family, she will file some new cases tomorrow.I bet, a family whose members have been arrested once, will never accept the daughter-in-law coming back to their house. The girl has already ruined her life.There are cases where the 498A girls have requested to release them with divorce without giving them any maintenance or alimony and I have seen boys now having a feeling of revenge in mind not giving them a divorce and keeping the girl who spoiled his life, begging for a release.

Now, we need to decide whether we want a mediation of the police and courts to settle domestic-emotional matters or we need to have a social gathering and social thought to resolve the problems. The “Stick” would never ensure the joining of a family, it may break the family though. I am sure, police mediation can never resolve a family problem. Family problems are to be resolved with love, emotions and understanding and not by fear of police.

I would like to site the zist of a judgement by Justice J.D. Kapoor of the New Delhi High Court in Crl.M(M) 3875/2003 dated 28th January 2004, which states :

Directions to the Police/Investigating Agencies like CBI etc. :-

(1) Investigating Officer, be of police station or special agency like CBI shall not arrest any person accused of having committed a cognizable and non-bailable offence until it is very necessary for the purpose of investigation or custodial interrogation say for recovering incriminating articles or weapons of offence or eliciting information as to his accomplices etc. or for any other purpose that may help in gathering evidence to prove his guilt.

(2) Arrest should always be avoided if the investigation can be completed even otherwise and the accused gives full co-operation in completing the investigation.

(3) Arrest may be necessary, if the offence alleged is of grave nature and prescribes severe punishment and there is a likelihood of an offender either absconding or not appearing on being summoned or his fleeing away from justice or judgment.

Further,

23. For instance it is the experience of this court that in offences under Sections 498A/406 IPC which are much abused provisions and exploited by the police and the victims to the level of absurdity and are of such nature which can be investigated without arrest and do not fall under the aforesaid category viz. being of highest magnitude and prescribing severest punishment or minimum punishment, every relative of husband, close or distant, old or minor is arrested by the police. By arresting such relatives whose arrest may not be necessary for completing the investigation as it can be completed by recording the statement of victim, her parents and other witnesses, police assumes the role of breaker of homes and not the maker as once any relative of the husband is sent to jail, the marriage ends for all practical purposes and divorce and other miseries are bound to follow. Unless the allegations are of very serious nature and highest magnitude arrest should always be avoided.

24. In this court everyday ten to twenty matters for quashing the FIRs under Sections 498A/406 IPC are taken up as all marriages end in divorce where relatives of husband or other are sent to jail. Unfortunately, sufferers are young girls between the ages 20 to 28 years. Very few cases end up in full trial and conviction. These are the offences whose deterrence has proved worse than remedy.

25. It was in view of this malady that this Court had strongly recommended to make the offence under Section 498A IPC bailable and compoundable if society wants to salvage and save the institution of marriage. This Court again reiterates its recommendations to the Government.

26. Arrest of a person for less serious or such kinds of offence or offences those can be investigated without arrest by the police cannot be brooked by any civilized society.

My Recommendation

National Crime Records Bureau has reported that the rate of conviction in crimes related to section 498A of IPC is only 2.2 percent.
If the rate of conviction is so low, then it is a matter to seriously think whether we at all want this section to exist or not. If the law makers would say that the people are being allowed to easily escape of under this section, then I wonder still, why are people committing non-bailable, non-compoundable and cognizable offence being let free. Crime recorded under this section should be severely dealt with and no one should be allowed an escape route.
The Law maker may also say that few cases are negotiated out of the court and settled. I would say, what is the need for this section to be non-compoundable? If a lady has filed a complaint, she should not be allowed to withdraw it. Either her complain is false and she did it for finalizing and negotiation scores and ulterior motives of her own or if her complaint is true, then why should the offender be spared? This would clearly mean that anyone doing an offence under this section has an escape route cheaper or costlier.

My suggestion goes to say :

“Conviction either of the complainant or of the defendant”

If at the conclusion of the case, the prosecution is able to prove the offences, the defendant should be prosecuted and severely punished. On the other hand, if the complainant has made a false complaint, then immediately, the court or the police should suo motu initiate a proceeding u/s 211 or u/s 182 of the IPC and the complainant should be punished with the equal term of punishment which otherwise the defendant was implicated into.

I would further recommend :

1. To convert section 498A into a bailable one.
2. To convert section 498A into a compoundable one.
3. The learned court could carefully consider whether the allegations of the bride are indeed genuine at least against the in-laws or other relatives of the husband when it directs investigation under section 156(3) of CrPC for an offence under section 498A.
4. The Learned court could carefully take into account whether custodial detention is at all needed for the in-laws and other relatives.
5. Arrest should be made only after getting orders from the Magistrate after primary investigation and producing facts and evidences before the Magistrate
6. Arrest should not be made before trial in cases where the wife is alive.
7. Sections 120B, 177, 182, 211, 199, 200, 209, 499 and 500 of IPC should be extensively used against false complainants.
8. If a wife files 498A, the husband should be allowed immediate divorce.
9. At the stage of counseling before 498A, the parents and/or relatives of the wife should be strictly prohibited to interfere in the family matter of the daughter. If the in-laws are blamed, after investigation, the in-laws should be separated from the son of the family. The husband and wife should be asked to stay separately.
10. To replace the word “husband” or “wife” with the word “spouse in all related laws, so as to ensure equality in law for men and women.
11. Make provisions for a man to file complaint when a wife and in-laws harass him and commit cruelty. Create sections 498B and 304C in IPC to protect men and women in his family when the perpetrators of crime are daughters-in-law and their family.
12. Make provision for penalty on a false complaint by amending IPC 498A. Lodging a complaint u/s 498A IPC has become a tool of manipulation, legal blackmail and legal terrorism in the hands of certain unscrupulous people.
13. Speedy and fair trial in all marital disputes.
14. Make registration of marriages compulsory. Gifts at time of marriage must be listed and photographed.
15. Ensure fair and unbiased investigation & trial of Dowry related complaints, which is totally in favor of daughter-in-law and disregards the trauma caused to mothers and sisters due to a false complaint. Judiciary and enforcement agencies must recognize the possibility of wives and daughter-in-law maltreating the husband and old in-laws or other vulnerable members of the husband’s family.
16. Distant relatives not routinely living with the couple should not be allowed to be named in the complaint and excluded routinely.
17. Fathers should not be routinely deprived of child custody by assuming mother is the best for the child. Child should not be made to choose between parents and joint custody be preferred.
18. No Passport surrender and unnecessary travel restrictions should be imposed at the time of bail. Passports should not be impounded and restrictions of going abroad where wife is alive should be lifted with a condition that the husband should appear in the court as and when summoned.
19. Elder abuse in the name of IPC 498A should be absolutely stopped.
20. Government employees should not face compulsory suspension in case arrested due to a false complaint.
21. Legislation involving domestic issues should be enacted keeping in view the preservation of institution of marriage and not based on gender bias.
22. 82% of the individual income tax collected in the country is paid by men. Spending is all done for women only. Animals in the country have a welfare ministry. Now is a need for opening of a Men’s welfare ministry.
23. Unlike the Crime Against Women Cells, Crime Against Men Cells are also becoming need of the hour.