The Concept of cruelty is described in many ways such as animal cruelty and spouse cruelty, etc. In 1990s, the World Health Organization stated that “Violence against women causes more deaths and disability than many diseases put together and violence against women is a common phenomenon in Indian society.”[1] In India, there are legal provisions on cruelty by husband and by wife. The crime against women is increasing from centuries such as dowry death, sexual harassment and cruelty. According to the National Crime Record Bureau, the cases on the cruelty to married women was 1,18,866 in 2013 [2] and it is increasing day by day. Wife beating is also a type of violence against wife. The women who married at age of 15 to 49 years are experienced at martial violence and according to the National Family Health survey 2016, nearly 31 percent women suffered domestic violence in India.[3]
Table of Contents
Cruelty to wife under the Indian Penal Code, 1860
Cruelty was defined under section 498A of the Indian Penal Code, 1860 and it was inserted in 1983. It states that “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. Explanation; For the purposes of this section, cruelty means (a) anywilful 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 to 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.”[4] The main elements of Section 498A are the women must be a married women, that women should be subjected to any type of cruelty, that is physical or mental by the husband, or from any relative from husband’s side. Under this Section, the offence is non-bailable and non-compoundable.
The meaning of cruelty under this Section was stated in Kaliyaperumal v. State of Tamil Nadu[5], where the court held that cruelty is the most common element in crimes under various sections such as Section 304B and 498A of the Indian Penal Code. These Sections are not inclusively related but a person acquitted under dowry death offence can be convicted under cruelty. The dowry death offence does not contain any definition or meaning of cruelty but the meaning given under Section 498A of the Indian Penal Code will be applicable to Section 304B. Under Section 498A of the Indian Penal Code, cruelty by itself is an offence but in the offence of dowry death, the death must occur during seven years of marriage. There is no such time period in case of cruelty.
In Jagdish Chander v. State of Haryana[6], the husband had a habit of drinking alcohol and everyday he went home late and did not say anything to his wife. But the wife filed a petition under Section 498A of Indian Penal Code, 1860. The court held that it does not come under cruelty. In the Amarjit Singh case [7], which contains similar facts but here, the husband beats wife daily the court held that it is cruelty.
In the State of West Bengal v. Orilal Jaiswal[8], the court held that if the mother-in-law is always abusing the daughter-in-law by some words, that she is “evil luck”, shall be punished under Section 498A of Indian Penal Code.
In K. Bhavani v. K. Laxman Swamy[9],the husband before marriage underwent a vasectomy operation and he married to women, abused and harassed her for a child. The court held that it is a cruelty under Section 498A of the Indian Penal Code.
https://legalreadings.com/sexual-offences-the-indian-scenario/
Section 113A of the Indian Evidence Act, 1872
This Section was introduced for the sake of dowry death offence and also introduced to raise the presumption of abetment to suicide by married women. This provision also protects women from cruelty. This 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 her husband or by such relative of her husband. Explanation – For the purposes of this section, cruelty shall have the same meaning as in Section 498A of the Indian Penal Code, 1860.”[10]
Misuse of Section 498A of the Indian Penal Code, 1860
In this society, many women are victims of cruelty by husband and relatives of husband but some of them take advantage of this Section and misuse the law to their advantage. From the legal perspective, this Section was inserted for protecting women from cruelty and other offences. In many cases the accused were acquitted and the misuse of this provision was recognized by the Judiciary.
In Saritha v. Ramchandra[11], the wife wanted to seek divorce from her husband. The husband did not want to give divorce at that time. The court asked the wife to stay at a resort for a period of 7 days. She stayed and enjoyed it during that time but still she wanted to seek divorce from her husband. She filed a false criminal case that her husband had committed cruelty on her and violated Section 498A of Indian penal code. The court noted the “reverse trend” and requested the law commission to make this offence as a non-cognizable and bailable offence.
In Chandra Bhan v. State[12], the court introduced some steps to prevent the misuse of Section 498A of the Indian Penal Code. Firstly, the FIR should not be registered easily and the police should be careful while screening the complaint and then an FIR should be registered. The cases which are related to cruelty offences will not be registered without the authorization of the deputy superintendent of police. All the efforts regarding reconciliation between the husband and wife should be made and if it is not settled then the further steps should be taken. The dowry and other things of the complainant should be returned. After the proper investigation and which is approved by the ACP or DCP then the accused will be arrested. If there are any co-accused such as relatives of the accused, it should be mentioned in the file before approval of the ACP or DCP.
Cruelty as a ground of divorce under Hindu law
In India, a wife has been given cruelty as a ground to seek divorce under Section 13(1)(ia) of the Hindu Marriage Act, 1955. This section was inserted in the act by 1976 amendment Act. Previously, it was ground for judicial separation. Under this Act, cruelty has grounds such as unsoundness of mind, demand of dowry, false allegation of adultery, refusal to have martial intercourse, threat to commit suicide, impotency, hurling of insults at spouses and drunkenness. In Russel v. Russel[13], cruelty was defined as “conduct of such a character as to have caused danger to life, limb or health, bodily or mental, or as to give rise to reasonable apprehension of such danger.” Under the Hindu Law these rights were given to both husband and wife to seek the divorce.
The Protection of Women from Domestic Violence Act, 2005
The Protection of Women from Domestic Violence Act, 2005 deals with civil law matters which are related to protect the women who are victims of domestic violence within the family. There are certain provisions under this Act which benefits the women who have suffered from domestic violence such as the Section 18 of the Act which deals with protection order, Section 19 of the Act which deals with residence order, Section 20 of the Act which deals with monetary relief, Section 21 of the Act which deals with custody order, Section 22 of the Act which deals with compensation and Section 23 of the Act deals with interim relief.
In Juveria Abdul Majid v. Atif Iqbal Mansoori[14], the court held that even though a case under Section 498A of the Indian Penal Code is pending in a criminal court, “if allegation is found genuine” then the appellant is always free or open to ask about the reliefs under Sections 18 to 23 of the Protection of the Women from Domestic Violence Act, 2005.
Conclusion
In present society, violence against married women is increasing especially harassment, cruelty and other offences. Victims have been provided with many laws to get justice in every legal aspect. The offence of cruelty provisions are in the Indian penal code, Hindu Marriage Act, Protection of Women from Domestic Violence Act, 2005, etc., which gives benefits to women. Section 498A of the Indian Penal Code was misused by some women basically taking advantage of this Section but the Judiciary has made many preventive steps to ensure the Section is not misused. In the Hindu law, cruelty is a ground to seek the divorce from a spouse. Considering or with the help of the circumstances and facts provided for a particular case and through which if in a situation the key and the true element of the evidence is shown to be strong then the case is considered to have been complete or is decided. The proper investigation should be done by the police. Section 498A of the Indian Penal Code should be a bailable and compoundable offence.
REFERENCES
[1] World Health Organization,“ Violence against women A priority health issue” (July, 1997) available at https://www.who.int/violence_injury_prevention/media/en/154.pdf
[2] National Crime Records Bureau, “crime in India” (2013). Available at https://ncrb.gov.in/sites/default/files/Statistics/Statistics-2013.pdf
[3] Iadv, “Domestic Violence and Connected Laws Indian Women Should Know Of” shethepeople, May. 2, 2020, available at- https://www.shethepeople.tv/law-and-her/domestic-violence-and-connected-laws-indian-women-should-know-of/ (last visited on 16th Dec, 2020).
[4] The Indian Penal Code, 1860 (Act 45 of 1860), s.498 (A).
[5] (2004) 9 SCC 157.
[6] (1988) CriLJ 1048.
[7] Amarjit Singh v. State of Punjab (1939).
[8] (1994) Cri J 2104 (cal).
[9] (1994) Cr.L.J 1827(A.P).
[10] The Indian Evidence Act, 1872 (Act 1 of 1872), s. 113 (A).
[11] (2002) 6 ALD 319.
[12] AIR 1954 All 39.
[13] (1897) AC 305.
[14] (2014) 10 SCC 736.
BY BANOTH MYTHILY MEERA NAIK | SYMBIOSIS LAW SCHOOL, HYDERABAD