Atul Subhash, Section 498A, misuse, difficulty in repealing explained

The suicide of techie Atul Subhash has re-ignited a nationwide debate on the applicability of Section 498A of the Indian Penal Code (IPC). The victim's side has alleged that Subhash's wife was extorting money from him, threatening to sue him under the said Indian law made for the prevention of domestic violence.

It is important to note here that the debate is not one between men and women, misogyny and misandry or which sex dominates the world, as Section 498A may also drag to the court the mother and sister of the husband of the complaining woman. There are women on both sides. Defending the law cannot, therefore, be feminism.

The Supreme Court, on December 10 for example, warned against the inclination to involve all relatives of the husband in domestic disputes stemming from marital discord while dismissing a Section 498A IPC case against a husband and his relatives-in-law.

Why IPC still appiles

But hasn't the IPC given way to the Bharatiya Nyay Sanhita (BNS)? That hardly matters as merely the law's serial number has changed. Besides, lakhs of cases that were filed under various provisions of the IPC, Criminal Procedure Code (CrPC) and the Evidence Act will continue to be treated under the respective antiquated laws until the backlog is cleared.

The BNS sought to modernise and consolidate various legal systems within India. Sections 85 and 86 of the BNS reflect the provisions of Section 498A of the Indian Penal Code (IPC), which addresses the issue of cruelty against married women by their husbands or relatives. This alignment is intended to ensure continuity and enhance the legal protections available to women.

The misuse of Section 498A IPC (now Sections 85 and 86 of the BNS) is not merely a matter of hearsay; it has been documented, with cases arising where false accusations have been made under this law, resulting in unfair repercussions for husbands. Legal remedies for men who experience abuse from women are conspicuous by their absence even as the law is often exploited in various district court cases.

Section 498A IPC-turned-Sections 85 & 86 BNS explained

Section 498A of the Indian Penal Code (IPC) enacted in 1860 addresses the issue of cruelty inflicted upon a woman by her husband or his relatives. 

Definition of cruelty

Cruelty is defined as any intentional behaviour that may:

1. Lead the woman to contemplate suicide
2. Result in serious harm or pose a threat to the woman's life, physical integrity, or health
3. Subject the woman to harassment to fulfil unlawful demands for property or valuable assets 

Legal procedure

To obtain a legal remedy under Section 498A, the affected individual must:

1. Submit a First Information Report (FIR) at the closest police station
2. Furnish comprehensive details regarding the incidents, including dates, locations, and specific acts of cruelty
3. Permit the police to investigate the claims and collect evidence
4. Enable the court to formulate charges based on the gathered evidence
5. Allow both the prosecution and defence to present their arguments
6. Facilitate the court in rendering a judgment based on the evidence presented 

Important considerations

Section 498A is classified as a cognizable offence, which empowers the police to make arrests without a warrant.

1. Upon receiving a complaint under Section 498A, the magistrate can deny bail and remand the accused to court or police custody without necessitating a bail hearing.
2. The term "husband" as used in Section 498A encompasses any individual who enters into a marital relationship and subjects the woman to acts of cruelty.

What Supreme Court says about law's misuse

In a separate but similar case that had come up to the highest court via appellate jurisdiction from the Telangana High Court, the Supreme Court expressed its concern about the increasing tendency to misuse provisions like Section 498A of the IPC, which was intended to protect married women “as a tool for unleashing personal vendetta against the husband and his family by a wife”.

A bench comprising Justices BV Nagarathna and Kotiswar Singh remarked last Tuesday that the amendment introducing Section 498A was aimed at addressing cruelty towards women by their husbands and in-laws, facilitating prompt state intervention. However, in light of the recent surge in matrimonial disputes nationwide, coupled with escalating tensions within marriages, there has been a disturbing trend of utilizing Section 498A as a means for personal revenge against husbands and their families.

In her statement for the bench, Justice Nagarathna cautioned that if vague and generalised accusations were not carefully examined during marital disputes, it could result in the abuse of legal mechanisms and promote coercive tactics by a wife and/or her relatives.

The judges quoted verbatim, responding to the appeal by a man, his parents and three sisters-in-law:

"A bare perusal of the FIR shows that the allegations made by respondent No.2 (wife of the man) are vague and omnibus. Other than claiming that ‘her husband harassed her and that the others instigated him to do so’, she has not provided any specific details or described any particular instance of harassment. She has also not mentioned the time, date, place, or manner in which the alleged harassment occurred. Therefore, the FIR lacks concrete and precise allegations."

“Given the facts of this case and in view of the timing and context of the FIR, we find that the wife ‘left the matrimonial house on 03.10.2021 after quarrelling with’ her husband ‘with respect to her interactions with a third person in their marriage. Later she came back to her matrimonial house assuring to have a cordial relationship’… “However, she again left the matrimonial house. When the husband ‘issued a legal notice seeking divorce on 13.12.2021, the present FIR came to be lodged on 01.02.2022 by’ the wife. Therefore, we are of the opinion that the FIR filed by the wife ‘is not a genuine complaint, rather it is a retaliatory measure intended to settle scores with her husband and his family members’.”

It is noteworthy that the woman "has not only deserted" her husband "but has also abandoned her two children as well, who are now in the care and custody of" the husband.

The applicant’s parents and sisters-in-law “have no connection to the matter at hand and have been dragged into the web of crime without any rhyme or reason”.

A thorough study of the FIR would indicate that no substantial and specific allegations have been made against them other than stating that they used to instigate the husband “for demanding more dowry”.

"A mere reference to the names of family members in a criminal case arising out of a matrimonial dispute, without specific allegations indicating their active involvement, should be nipped in the bud. It is a well-recognised fact, borne out of judicial experience, that there is often a tendency to implicate all the members of the husband’s family when domestic disputes arise out of a matrimonial discord."

“Such generalised and sweeping accusations unsupported by concrete evidence or particularised allegations cannot form the basis for criminal prosecution. Courts must exercise caution in such cases to prevent misuse of legal provisions and the legal process and avoid unnecessary harassment of innocent family members.”

SC's observations in older cases

1. Arnesh Kumar v State of Bihar (2014)
   The court expressed concern about the misuse of Section 498A and issued guidelines to prevent unnecessary arrests. It stated:

   "The fact that Section 498A is a cognizable and non-bailable offense has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shields by disgruntled wives."
   It directed that police officers should not arrest automatically and magistrates should not authorize detention mechanically​.

2. Rajesh Sharma v State of Uttar Pradesh (2017)
   The Court emphasized the rampant misuse of the law and recommended the establishment of Family Welfare Committees to screen complaints. It noted:

   "To prevent misuse of the law, a preliminary inquiry should be conducted before arrests are made under Section 498A."
   These guidelines, however, were later modified to avoid delays in legitimate cases

3. Social Action Forum for Manav Adhikar v Union of India (2018)
   While acknowledging misuse, the Court underlined the necessity of the law for protecting women from cruelty. It overturned parts of the Rajesh Sharma judgment, stating:

   "Mandatory referral to Family Welfare Committees would amount to judicial legislation, which is impermissible."
   The Court advocated balancing safeguards against misuse with ensuring justice for victims

4. Preeti Gupta v State of Jharkhand (2010)
   The Court warned against false complaints under Section 498A, stating:

   "A serious relook of the entire provision is warranted by the legislature... This provision is intended to be a shield, not an assassin’s weapon."
   It highlighted how frivolous litigation strains judicial resources and negatively impacts families​.

5. Sushil Kumar Sharma v Union of India (2005)
   The Court addressed the issue of false complaints under 498A and remarked:

   "Merely because the provision is constitutional and intra vires does not give a license to unscrupulous individuals to wreck personal vendetta or unleash harassment."
   It advocated for reforms while maintaining the law’s intent to curb cruelty against women​

Why legislature can't change the law

Primarily two things and then a third:

1. The instances of women suffering domestic violence far exceed those of women making false cases of assault by their husbands. The law was introduced in 1983 as a response to increasing incidents of cruelty and dowry-related violence against women, a nationwide scenario that has hardly changed.
2. The legislature, regardless of the ruling party, is always under pressure to be politically correct, as criticism and condemnation by feminist lobbies are too overbearing to overlook. Abrogating the law entirely might generate significant social backlash, as it could be seen as regressive in a patriarchal society where women already face systemic disadvantages. The BJP, duly or unduly always being branded as an organisation of the Sangh Parivar that upholds 'regressive' values, is all the more cautious of not inviting more of such predictable deploration.
3. While expressing its concern, the Supreme Court never advocated its repeal. The judiciary often recommended reforms, such as making the offence compoundable (allowing mutual settlements).