The section contemplates that the offender must be either the husband of a woman or a relative of his. The offender must subject such woman to cruelty. The explanation attached to this section defines cruelty by saying that for the purposes of this section cruelty means (a) any wilful conduct which is of such a nature as is likely to drive the woman either to commit suicide or to cause grave injury or danger to life, limb or physical health or mental health of the woman, or (b) harassment of the woman where such harassment is with a view to either coercing her or any person related to her either 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. In other words, the concept of cruelty under this section has a two-fold dimension; first, it is a wilful conduct of such a nature as to drive a woman to such a desperate situation as to commit suicide or grave injury or danger to life, limb or physical or mental health of the woman, and secondly, it is a harassment of the woman with a view to coerce either her or any person related to her to meet unlawful demand for any property or valuable security or is on account of she or her relative having failed to meet such demand.
A new section, section 113-A, relating to presumption as to abetment of suicide by a married woman, has been added in the Indian Evidence Act, 1872. The section states that when the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by he husband or by such relative of her husband. The explanation attached to this section states that for the purposes of this section ‘cruelty’ shall have the same meaning as in section 498-A of the Indian Penal Code. Where death of a newly married woman by burning happened but the circumstances could not establish murder or abetment of suicide, section 498-A was held to be attracted in view of the fact that essential elements of this offence were established beyond doubt. Where a married woman was asked by her husband and other relatives of his to give them her jewellery and valuables so that the marriage of her husband’s sister could take place, but the woman refused to do so and the matter was not further pursued, it was held that this section did not apply. Drinking habits of the husband and his coming home late at night have not been held to amount to cruelty.
But where the same is accompanied with beating and demanding dowry, section 498-A is attracted. Vexatious litigation on the part of the husband because of his vindictive attitude towards his wife coupled with her humiliation and torture by reason of execution of search warrant and seizure of personal property, have been held to be cruelty on the part of the husband. Where the wife was being harassed for yet outstanding items of dowry, and the demands were met and the matter was settled thereafter, and there was no evidence of further demand for dowry or torture, but the wife committed suicide within one and a half months of the settlement of the matter, the conviction of the accused under this section deserved to be set aside. A wife was harassed, tortured, assaulted and was never loved, appreciated or allowed to be happy, and there was continuous and incessant harassment driving her to commit suicide. In her dying declaration she had absolved her husband and his other relatives. The incident had happened when she was cooking on stove. This along with other evidence proved the case.
It was held that even though section 306 did not apply section 498-A was definitely attracted. Where the husband accompanied his wife to the parental home of his wife and asked for not only the unpaid amount of the dowry but also put additional demands, the section was held to apply. Mere demand of dowry is an offence under this section by virtue of part (b) of the explanation, but for the purposes of sections 2 (1) and 4 of the Dowry Prohibition Act, 1961 it is necessary that dowry must have been either given or agreed to be given.
The Andhra Pradesh High Court has even held that this section is attracted to cruelty against a mistress leading to her suicide. Where there was harassment and ill-treatment of a bride for not bringing enough dowry, and her father-in-law set her ablaze after dousing her with kerosene, and there were two consistent dying declarations and the doctor declared the declarant to be conscious and coherent, the accused was held guilty under sections 302 and 498-A of the Code. Similarly, where there were harassment, ill-treatment and torture of the deceased by her husband and mother-in- law for non-fulfilment of dowry demands, the accused were held guilty under section 498- A. In Shanti Behai v. State, there was allegation of harassment, cruelty and maltreatment by the husband and the mother-in-law against the bride. The victim had written a few days before the incident to her parents expressing apprehension of danger to her life. In her dying declaration her mother-in-law was implicated for burning her and both she and the husband for harassing her.
This declaration was duly recorded and corroborated by medical and other circumstantial evidence. The victim’s father also testified as to the dowry demands made by the husband the conviction of the mother-in-law for murder and under section 498-A and the husband under section 498-A was held to be proper. In State of West Bengal v.
Orilal Jaiswal, the newly married girl victim was not a hyper sensitive woman. Her mother-in-law used to abuse her to be ‘Alakshmi’, a woman of evil luck. When the victim suffered a miscarriage her mother-in-law abused her to say that she was vile enough to swallow her own baby.
The husband of the victim also used to assault her occasionally and abuse her that the bridal presentations brought by her were of in- ferior quality. The Supreme Court ruled these acts to be cruelty and held both of them guilty under section 498-A. In Sarojakshan Shankaran Nayar v. State of Maharashtra the deceased wife belonged to a respectable orthodox family. Her husband was of a highly suspicious nature and made life difficult for her by demeaning her, insulting her, calling her a prostitute, not allowing her to meet others, denying her family life and comforts. It was held that the trial court was justified in convicting her under section 498-A of the Code. In Chanda v.
State of A.P. the accused stayed happily with his wife for one and a half years after marriage.
It was alleged that thereafter he demanded additional money and gold from her. The harassment of demanding additional money was proved by evidence. He was held guilty under section 498-A and it was observed that his acquittal for the graver offence of murder under section 302 was not a legal impediment for his conviction under section 498-A of the Code. In Pawan Kumar v. State of Haryana, the Supreme Court held that cruelty or harassment under section 498-A need not be physical, and mental torture in a grave case would be sufficient for conviction. In Sham Lai v. State of Haryana, there was evidence by the prosecution of only the fact that there was a dispute between parties regarding dowry and that the wife was sent back to her parental home, and was again taken back to the nuptial home after the ‘panchayat’ intervened about ten to fifteen days before the wife died. There was no evidence, however, that she was treated with cruelty or harassed with demand for dowry again.
The Supreme Court held that the accused was liable to be convicted under section 498-A on the basis of evidence of the father of the deceased and her dying declaration, but section 304-B would not apply. In State v. Balappa, the Karnataka High Court has ruled that where accused has been charged under sections 304-B and 498-A, and the charge under the former fails, that by itself does not mean that he is not guilty under the latter also, and therefore the conduct of the accused and his father in not accepting the wife and the newborn baby girl for nine months after delivery amounts to cruelty under section 498-A of the Code. In Pachipala Laxmaiah v. State of Andhra Pradesh, a wife poured kerosene on herself and set herself on fire.
In her dying declaration she stated that the accused, who was her husband, used to take liquor after borrowing money from villagers and beat her afterwards. The Andhra Pradesh High Court concluded that the accused had not instigated the deceased to commit suicide at the present occasion by doing any act and thus he cannot be held guilty under section 306 of the Code. But his act in harassing the deceased, drinking continuously and beating her regularly amounts to cruelty and so his conviction was altered from one under section 306 to that under section 498-A. In State of Karnataka v. Moorthy, the Karnataka High Court ruled that act of a husband disregarding his duty to provide wife and infant elementary means of sustenance and deliberately and irresponsibly squandering his earnings on gambling and other vices and starving wife and the child to death amounts to cruelty under section 498-A even though he was not proved guilty under section 306 when bodies of wife and child were recovered from a channel. In Sumangala L. Hegde v.
Laxminarayan Anant Hegde, the Karnataka High Court has held that the act of husband taking away his minor child without the consent of its mother (i.e., the accused’s wife) does not amount to cruelty to her under section 498-A. In B.
S. Joshi v. Hary, proceedings were initiated by a wife under section 498-A against her husband and his relatives. Subsequently, she settled her dispute with her husband and his relatives. The wife and husband agreed for a divorce by mutual consent. An application was filed by the wife for quashing the proceedings under section 498-A filed by her earlier. The High Court refused to exercise inherent powers.
The Supreme Court held that it was not proper on the part of the High Court as it would prevent women from settling disputes earlier and that was not the object of Chapter XX-A of the Indian Penal Code as section 498-A was enacted to prevent torture of married women by their husbands and their relatives. Reema Agarwal v. Anupam, is a very important case where the relevance of sections 304-B and 498-A of the Code and section 113-B of the Indian Evidence Act in cases where validity of the marriage itself was in question, was looked into by the Supreme Court. The Court stated that the concept of ‘dowry’ is intermittently linked with a marriage and the provisions of the Dowry Prohibition Act apply in relation to marriages. If the legality of the marriage itself is an issue further legalistic problems do arise.
If the validity of the marriage is under legal scrutiny, the demand in respect of an invalid marriage would be legally not recognizable. Even then the purpose for which sections 498-A and 304-B of the Indian Penal Code and section 113-B of the Indian Evidence Act were introduced cannot be lost sight of. Legislations enacted with some policy to curb and alleviate some public evil rampant in society and effectuate a definite public purpose or benefit positively, require to be interpreted with certain element of realism too and not merely pedantically or hyper technically. The obvious objective was to prevent harassment to a woman who enters into a marital relationship with a person and later on becomes a victim of the greed for money. Can a person who enters into a marital arrangement be allowed to take shelter behind a smoke screen to contend that since there was no valid marriage the question of dowry does not arise? Such legalistic niceties would destroy the purpose of the provision. Such hairsplitting legalistic approach would encourage harassment to a woman over demand of money. The nomenclature ‘dowry’ does not have any magic charm written over it. It is that a label given to demand of money in relation to marital relationship.
The legislative intent is clear from the fact that it is not only the husband but also his relations who are covered by section 498-A. Legislature has taken care of children born from invalid marriages. Section 16 of the Hindu Marriage Act deals with legitimacy of children of void and voidable marriages. Can it be said that legislature which was conscious of the social stigma attached to children of void and voidable marriages closed eyes to plight of a woman who unknowingly or unconscious of the legal consequences entered into the marital relationship. If such restricted meaning is given, it would not further the legislative intent. On the contrary, it would be against the concern shown by the legislature for avoiding harassment to a woman over demand of money in relation to marriages. The first exception to section 494 has also some relevance. According to it, the offence of bigamy will not apply to “any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction.
” It would be appropriate to construe the expression ‘husband’ to cover a person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband subjects the woman concerned to cruelty or coerce her in any manner or for any of the purposes enumerated in the relevant provisions—sections 304- B/498-A, whatever be the legitimacy of the marriage itself for the limited purpose of section 498-A or section 304-B. Such an interpretation known and recognised as purposive construction has to come into play in a case of this nature. The absence of a definition of ‘husband’ to specifically include such persons who contract marriages ostensibly and cohabits with such woman in the purported exercise of his role and status as ‘husband’ is no ground to exclude them from the purview of section 304-B or section 498-A viewed in the context of the very object and aim of the legislations introducing these provisions.
In M. Saravana Porselvi v. A. R.
Chandrasekar, the complainant and the accused had entered into a registered agreement of divorce as per custom. They were living separately for ten years. A complaint of cruelty by him on her was filed thereafter. The Supreme Court held that it was barred by limitation.
Harassment of hers by him was also unbelievable. The proceedings initiated are abuse of process of court and are liable to be quashed. In State of Andhra Pradesh v.
Guvva Satyanarayana,1 the drunk accused husband demanded additional dowry. The deceased wife, unable to bear the agony, set herself ablaze after pouring kerosene on her body. In the hospital the doctor noted that she might have sustained bums accidentally at her residence. Her alleged dying declaration implicating the accused was found to be not free from suspicion. The Supreme Court did not interfere with the order acquitting him under section 302 and imposing three years, rigorous imprisonment under section 498-A of the Code. In Arvind Barsaul v.
State of Madhya Pradesh, complaint under section 498-A was filed by a wife against her appellant husband and in-laws. In the meanwhile dissolution of marriage by a decree of divorce had been passed. The appellant husband and his parents were convicted under Section 498-A. A compromise between the parties during the pendency of the appeal was rejected by the appellate court and the High Court.
Parents of the appellant were suffering from multiple ailments because of advanced age. The Supreme Court held-that in the peculiar facts and circumstances and in interest of justice, continuation of criminal proceedings would be abuse process of law. The Court in exercise of powers under Article 142 of the Constitution quashed the criminal proceedings under section 498-A against the appellants. In Bhaskar Ramappa Madar v. State of Karnataka since the accused sister-in-law had no issues she was demanding from the deceased to give her son in adoption to her. The Supreme Court held that such a demand is not a demand of dowry and so section 498-A was not applicable.
In Satish Kumar Batra v. State of Haryana, the Supreme Court stated that mere possibility of abuse of a provision of law does not per se invalidate a legislation. It must be presumed, unless the contrary is proved, that administration and application of a particular law would be done not with an evil eye and unequal hand. In U. Suvetha v. State by Inspector of Police if the Supreme Court held that a girl friend or concubine of the husband of the victim is not his relative within the meaning of section 498-A as a penal statute is to be strictly interpreted and thus cannot be charged for the offence under this section. Compounding of offence The Courts have permitted compounding of the offence under this section. Where a wife condoned the cruelty of her husband, they were permitted to compound the case even though in a separate civil petition for restitution of conjugal rights by the husband against his wife allegation of cruelty was not proved.
But the Andhra Pradesh High Court has held that a wife cannot be permitted to withdraw a charge-sheet filed by the police. The Supreme Court has ruled that to bring an accused within the ambit of section 498-A, it must be proved that the woman was subjected to only such cruelty, and cruelty of no other kind, as has been provided under this section. Constitutionality of section 498-A The Delhi High Court was seized of the question of constitutionality of section 498-A in Inder Raj Malik v. Sunita Malik. It was argued that the provision violated Article 14 of the Constitution inasmuch as it gave an arbitrary power to the police as well as to the court, that the word ‘harassment’ used in part (b) of the explanation was vague and thus any person could be arbitrarily arrested for harassment, and that this section violates the principle against double jeopardy guaranteed by Article 20(2) of the Constitution in view of the fact that demand of dowry or any property was punishable under this section as well as under section 4 of the Dowry Prohibition Act, 1961. Rejecting these arguments the court held section 498-A constitutional. It observed that since the word ‘crurelty’ is well-defined in the section, no arbitrary power has been given to the police and the court, and the discretion as to what sentence can be passed is not arbitrary as it is always exercised judicially by the court and thus Article 14 is not violated.
The import of the word ‘harassment’ is a very well known word, and interpreting the same cannot be called arbitrary. Article 21 is not violated in view of the fact that while section 498-A punishes demand of property or valuable security as coupled in cruelty, the Dowry Prohibtion Act, 1961 penalises mere demand for dowry and the element of cruelty is not necessary under this Act, and thus these are two distinct offences. In Krishan Lai v. Union of India while examining the constitutional validity of section 498-A a Full Bench of the Punjab and Haryana High Court held that the husband and other relatives of the husband of a married woman form a class apart by themselves. The said classification is a reasonable classification, section 498-A is not violative of Article 14 of the Constitution. The words ‘having regard to all the other circumstances of the case’ in section 113-A, Indian Evidence Act, 1872 give wide powers to Court to appraise evidence and come to conclusion whether there was some extraneous cause for a woman to commit suicide.
These in-built safeguards do not violate right to life and fair procedure provided under Articles 20 (3) and 21 of the Constitution. The words ‘intentionally aids’ in section 107 (iii) are wide enough to cover ‘treating a married woman with cruelty’. The provisions of section 113-A, Indian Evidence Act, 1872 are not contradictory to section 107 of the Code; they are supplementary. For dowry death within seven years of marriage the presumption against the husband or his relatives is valid. This provision under section 113-B, Indian Evidence Act, 1872 is not ultra vires the Articles 14, 20 (3) and 21 of the Constitution.
The requirement of proving that soon before her death the woman was subjected to cruelty or harassment by her husband or his relatives for or in connection with any demand of dowry clearly shows that the legislature had imbibed the necessary mens rea for the offence of dowry death. Sections 498-A, 304-B and 306 of the Code are not offensive to the mandate of Article 20 (2) as all these provisions create specific offences although cruelty or harassment of wife is one of the essential ingredients thereof. The pronouncement of the Supreme Court that section 309 of the Code is ultra vires does not make the offence of abetment to commit suicide under section 306 of the Code ultra vires. Both these offences are on different footings and a third person is involved in an offence under section 306 of the Code. Counting of period of limitation The question of counting of period of limitation in cases under section 498-A came up before the Supreme Court in Arun Vyas v. Anita Viyas, It was held that the essence of the offence in section 498-A is cruelty as defined in the explanation appended to the section.
It is a continuing offence and on each occasion on which the respondent wife was subjected to cruelty, she would have a new starting point of limitation. The offence under this section is cognizable if information relating to the commission of offence is given to an officer-in-charge of a police station by the person aggrieved by the offence or by any person related to her by blood, marriage or adoption, or if there is no such relative, by any public servant belonging to such class or category as may be notified by the State Government in this behalf, and non-bailable, and is triable by Magistrate of the first class.