The menace of dowry is subsisting in India from the past many decades. The demand for dowry before, after or at the time of solemnisation of marriage often pressures the parents of the bride to fulfil the unreasonable demands of the groom’s family in order to secure a ‘congenial cohabitation’ for their daughter. In case of their failure to heed to this demand, the grunt is later borne by the bride who face harassment as well as torture, both physical and mental, at the behest of her in-laws. This harassment and torture often lead the young bride to such a state that she was compelled to take away her own life.
Earlier, this harassment and torture by the husband or his relatives were made punishable under the provisions of general offences enacted under the Indian Penal Code, 1860 such as hurt, grievous hurt, assault, wrongful confinement or homicide. However, there was no specific provision enacted under the penal code which dealt with the punishment to be awarded to the husband or his relatives in case of cruelty to the wife. Moreover, the cruelty which was meted out to the wife by the husband or his relatives was often in the form of mental cruelty, than physical, within the confines of their homes out of the public gaze which made it difficult for the prosecution to obtain independent evidence to prove the offence.
As a result, on one hand, the offence of cruelty against young brides was increasing and on the other hand, the provisions of the penal law, as well as the procedure code, were not felt to be stringent enough to deal with the atrocities which were being faced by the women. Therefore, a need for the amendment of the criminal law was felt which was subsequently acted upon by the legislature by enacting the Criminal Law (Second Amendment) Act, 1983.
Criminal Law (Second Amendment) Act, 1983
In order to curb the rising cases of cruelty and dowry deaths taking place in the country, the Legislature enacted the Criminal Law (Second Amendment) Act, 1983 which brought comprehensive changes at three different levels.
Chapter XXA was added to the Indian Penal Code, 1860 which consisted of only Section 498A which made the cruelty by the husband or his relative to the wife an offence. Moreover, Section 304B was also added in order to punish the offenders for causing the death of the wife in connection with the demand for dowry.
Similarly, Section 174 of the Code of Criminal Procedure, 1973 was also amended by which duty was cast on the Magistrate to mandatorily make inquests in the cases of suicides or suspicious death of a woman within seven years of her marriage.
Furthermore, an amendment in the Indian Evidence Act, 1872 was also made on the above lines by adding Section 113B which provided for a presumption of guilt of the husband or his relatives in case it was shown that the death of the wife occurred under unnatural circumstances and before such death, she was subjected to cruelty or harassment by a person in connection with the dowry.
The three changes that have been brought in the Criminal Law are effective in the prosecution of those people who tend to torture the wife, either physically or mentally, because of her failure to fulfil their demand for dowry or valuable security.
Cruelty By Husband Or Relative Of The Husband
One of the essential ingredients to prove the above offence is that the cruelty must be meted out to the wife by her husband or relative of her husband. However, the term relative is not defined anywhere under the Indian Penal Code, 1860. Therefore, in order to find out the scope of the word relative, one must resort to the judgment of the various Courts in India.
From the perusal of the case laws, one may find that the term relative conveys the idea of a relationship of an accused person with the husband. This relationship can be by way of blood, marriage or by adoption. Generally, it is the parents, brothers and sisters of the husband who are covered under the term relative for the purpose of conviction under Section 498A. Therefore, a friend of the husband cannot be termed as a relative within the meaning of this section irrespective of the fact that he is very close to the family of the husband[i].
Similarly, if a husband keeps a concubine or a girlfriend, in that case as well, she won’t be considered as the relative of the husband because she isn’t related to her by blood or adoption or marriage[ii]. Therefore, any cruelty committed by such girlfriend or concubine to the legally wedded wife of the husband shall not amount to cruelty[iii].
Status Of The Second Wife of the Husband
- Second Wife as an offender
An interesting question which arises about the scope of the term ‘relative’ is whether a second wife of the husband, who has contracted a marriage during the life of the first wife, can be considered as a relative and prosecuted under Section 498A of the IPC? The answer to this question was answered in affirmative by the Kerala High Court in the case of John Idiculla vs. State of Kerala wherein it was observed by the Hon’ble High Court that if the second wife of the husband is treated as such by the husband, relatives, family and society, then she can be prosecuted under Section 498A of the IPC if she inflicts cruelty upon the first legally wedded wife of the husband. The second wife cannot be allowed to take shelter behind the plea of invalidity of marriage. The law cannot allow an offender to take recourse to a mere technicality and thereby be excused.
- Second wife as the victim
Since the offence of cruelty can be committed by the husband or the relative of the husband against the wife only, therefore moot question which arises is whether the cruelty meted out to the second wife of the husband who married her during the subsistence of the first marriage amount to cruelty since the marriage between the parties cannot be considered to be a valid one. Answering this question in affirmative, it was held by the Hon’ble Supreme Court in the case of Reema Aggarwal vs. Anupam[iv] that the cruelty meted out to the second wife shall make the husband or his relatives liable as the legislative intent behind this section is to stop the harassment of a woman by her in-laws in connection with the dowry. The provision being a beneficial provision, the words ‘husband’ and ‘wife’ must be given a liberal interpretation so as to achieve a larger public interest of the welfare of married women[v].
Meaning of the term Cruelty
No certain acts or instances have been defined by the legislature so as to state precisely the scope and the meaning of the term cruelty. One act may be cruel to one woman and not cruel to another woman. Therefore, it is not possible to define the term cruelty in some strait jacket formula. The explanation to Section 498A however puts some light on what must be the nature of the act so as to term as cruel. A co joint reading of the two clauses provided in the explanation provides that the act on the part of the husband or his relatives may be cruel if:
- It leads the woman to such a state that she commits suicide, or
- It causes a grave injury or threat to the life, limb or health, whether mental or physical, of the woman.
- It is meted out to the woman to coerce her or any person related to her to meet any unlawful demand for property or valuable security.
- It is inflicted because of the reason of the failure of the woman or any person interested in her to meet such demand.
However, no certain acts can be stated with precision to be a part of cruel conduct. Whether a certain act is cruel or not will depend upon a variety of factors such as the sensitivity of the victim concerned, social level, the educational level, the economic situation of the parties, etc. The fact of cruelty has to be ascertained on the basis of facts and circumstances of each case[vi].
However, there must be a presence of an intention or mens rea on the part of the husband or the relative to inflict cruelty. Where there is no intention on the part of the husband to injure the wife, it will not amount to cruelty[vii].
Independent witness to prove Cruelty
As has been stated above, the cruel treatment or the harassment to the wife by the husband or his relatives is usually meted out within the confines of the home. Even the victim or the aggressor do not discuss it with anyone and try to sort out the matter on their own. The matter may not be even in the knowledge of the neighbours or friends of the victim. There might also not be any marks of physical abuse as the cruelty meted out to the woman may be mental cruelty. Therefore, the complaint of the victim cannot be disposed of because of her inability to adduce independent witnesses[viii].
Knowledge of the exact Date and Time
Very often the Indian woman is told to bear the cruelty by her parents in order to save themselves from the alleged harm that might be caused to their reputation. The woman continues to bear the various act of cruelty inflicted upon her by her husband and in-laws for years because of the fear of social isolation and loss of reputation. This, the cruel conduct becomes a way of life for her until something major, beyond the control of such woman, takes place. Therefore, in such circumstances, the woman must not be asked to produce the exact time and details of all the incidents that took place with her. Consequently, her complaint cannot be rejected on this ground[ix].
The changes that have been brought by the Criminal Law (Second Amendment) Act, 1983 are without a doubt of a salutary nature. However, any number of legislative changes shall not bear the fruit unless and until the menace of dowry and patriarchy is rooted out from the society. There is a great need for revisiting the gender roles that the society has assigned to each gender and to treat with respect all the woman without any form of expectations as to the dowry.
(Author: Manik Mahajan, pursuing LLB from Department of Laws, Panjab University, Chandigarh.)
[i] Anil Kumar vs. State of Punjab., (1997) 2 AI CLR 638 (P&H).
[ii] Ranjana Gopalrao Thorat vs. State of Maharashtra., (2007) CrLJ 3866 (Bom).
[iii] Sunita Jha vs. State of Jharkhand., (2010) 10 SCC 190.
[iv] Reema Aggarwal vs. Anupam., AIR 2004 SC 1418.
[v] A Subhash Babu vs. State of Andhra Pradesh., AIR 2011 SC 3031.
[vi] KV Prakash Babu vs. State of Karnataka., AIR 2016 SC 5430.
[vii] Savitri Devi vs. Ramesh Chand., (2003) Cr LJ 2759 (Del).
[viii] S. Mahaboob Basha vs. State of Karnataka., (2014) 10 SCC 244.
[ix] Sudhir Kumar Jain vs. State, (1994) 2 Crimes 954 (Del).