CRUELTY AGAINST WOMEN

CRUELTY AGAINST WOMEN

                                            

                                                CRUELTY

Abstract

Consequences of cruelty which are likely to drive women to commit suicide or to cause grave injury or danger to life or health, whether mental or physical, of the women or required to be, established to bring home the application to Section 498-A of the I.P.C.

I.P.C. “498A. Husband or relative of husband of a woman subjecting her to cruelty–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punishable with imprisonment for a term which may extend to three years and shall also be liable to fine.   Explanation.-For the purpose of this section, “cruelty” means- (a) any wilful 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 woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand Forms is on account of failure by her or any person related to her to meet such demand.”

The nature of the offence under Section 498A is:

• Cognizable: A cognizable offence is an offence in which the police officer as per the first schedule or under any other law for the time being in force, can arrest the convict without a warrant and can start an investigation without the permission of the court.Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence.

• Non-Bailable: There are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody.

• Non-Compoundable: A non-compoundable case, e.g. Rape, 498A etc, cannot be withdrawn by the petitioner. The exception is in the state of Andhra Pradesh, where 498A was made compoundable.

 

Burden Of Proof.

Burden of proof is a legal duty that encompasses two connected but separate ideas that apply for establishing the truth of facts in a trial before tribunals.

Even in a case of legitimate burden created on defence as may be in case of section 304B of IPC or case of misappropriation embezzlement of properties where the burden is-caused on the accused to indicate the discharge of entrustment of the property, the primal onus is on the prosecution of establishing the constitution of the offence which was allegedly committed by the accused by admissible and acceptable evidence this onus never shifts. Once the prosecution has discharged its primary onus of establishing the offence which was allegedly committed by the accused, then only there would be some burden on the accused which could be required  to be discharged.

Where the evidence of the complainant is found to be convicting and acceptable as to demand and acceptance of dowry and the same is supported by the evidence of other witnesses the burden of proof of defence that he did not commit offence of demand and receipt of dowry shifts on the accused and whatnot discharge his burden of proof.

Development of Section 498A

The section was enacted with the aim to protect women from dowry harassment and domestic violence. However, more recently, its misuse has become an everyday affair. The Supreme Court, hence, in the landmark case of Sushil Kumar Sharma v. Union of India  condemned this section as ‘Legal Terrorism’. Since cruelty is a ground for divorce under section 13 (1) (ia) of Hindu marriage Act, 1955. Wives often use this provision in order to threaten husbands.   In another case of Preeti Gupta v. State of Jharkhand, the Supreme Court observed that “serious relook of the entire provision is warranted by the Legislature. It is a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over-implication is also reflected in a very large number of cases''.   Even an innocent person accused under S.498A IPC, does not get the chance of getting quick justice owing to the offence being non-bailable and cognizable. We well know that ‘justice delayed is justice denied’, hence came the 243rd report of Law commission on section 498A of IPC laying down various changes ought to be made in order to remove the flaws of this section and its misuse.   A strict law in this regard needs to be passed by the parliament in order to punish those who act malafidely and try to misguide the system of law.  Law commission in its 243rd report opined that  the  Section  along  with  its  allied Crpc  provisions  shall  not  act  as  an  instrument  of  oppression  and  counter-harassment.

 

Conclusion

Sometime back, there was a news item in the papers of a young girl who was burnt alive by her father and brother brutally just because she had refused to marry the person chosen by her family. This is the state of affairs of our nation today where countless numbers of women are being killed in the name of dowry, honour, domestic violence and what not. India has ratified International Conventions like Convention for Elimination of all forms of Discrimination against Women (CEDAW). Hence, India made special provisions for women to address this inequality. Legislations like Sections 113 B, 498A & 304B of the Indian Penal Code, 1860, Dowry Prohibition Act (DPA), Protection of Women against Domestic Violence (PWDVA) address violence against women.

These also lay the position that the institutions of marriage and family are not insulated from state interventions, particularly where there is violence against women within such institutions.