498A - Analysis

There has been a massive change in the scenario since the time Arnesh Kumar judgment has been pronounced by Honorable Supreme Court Of India. There has been an advisory issued by Ministry of Home Affairs which is a direction to all Police Forces to act in cases related to 498a/ where punishment is less than 7 years.

With these changing times, the questions which are posed to me in weekly meetings have also changed. So I decided to compile all of them  and try to answer each of them in a general manner to provide elementary understanding on IPC Section 498a in the new scenario.

Q1. Can 498a be filed after 7 years of marriage?

A1. Yes, there is no limitation of number of years of marriage on filing 498a. However, that doesn’t mean that a wife or her relative can a file 498a on the husband anytime they wish. As per CrPC 468, the limitation on filing of 498a is 3 years from the last alleged incident.

Q2. Is 498a and dowry harassment same?

A2. Interestingly, Section 498a does not contain the word ‘dowry’ at all. Chapter XX A was introduced into the Indian Penal Code (IPC) containing the solitary Section 498A, in order to “deal effectively not only with cases of dowry deaths, but also cases of cruelty to married women by their in-laws.”  Dowry is dealt specifically by The Dowry Prohibition Act, 1961. Section 498a defines and deals with cruelty (both mental and Physical) meted to a married woman and postulates harassment to the woman with a view to coercing her or her relatives to meet any unlawful demand for any property or valuable security, which is in the shape of dowry.

Q3. Can FIR be filed on the Ladies of the house, like mother-in-law, sister-in-law etc?

A2. Yes, in fact it has been often seen that even when the married couple were living in a separate city, the parents-in-law of the wife were added to the complaint only with the purpose of harassment. Courts have taken strict view of this, but the misuse continues to happen, even today. The name of married sister of the husband is generally added to ensure turmoil in her matrimonial life and for unmarried sister, to ensure she doesn’t get married easily.

Q4. Can I get arrested in 498a without notice from Police?

A4. Yes you can still be arrested, though as per Arnesh Kumar Judgment there will be no automatic arrests on 498a and a Police officer has to follow the guidelines in CrPC 41 if he has to make any arrests or not. As mentioned under CrPC 41(1)(b) ”against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with or without fine, if the following conditions are satisfied….”  “and the Police office shall record while making such arrest, his reasons in writing. Provided that  a Police officer in all cases where the arrest of a person is not required under the provisions of this sub-section, record the reasons in writing for not making the arrest.”

Clearly there is no restriction on making an arrest but the arrest has to be made with Due Process of Law.

Q5. Can a concubine charge 498a on a man and his family ?

A5. No, this section is only for legally valid married  women only

Q6. Can a 498a and Domestic Violence case run parallel?

A6. Yes, they can run parallel. There is no legal bar.

Q7. Is presumption of Innocence applicable in 498a?

A7. Yes, India follows accusatorial system of criminal law, where the act of crime needs to be proved beyond reasonable doubt against the accused for a conviction. The normal rule is that an accused is presumed to be innocent until he is proved guilty; it is therefore the duty of the prosecution to prove its case beyond any reasonable doubt.   Article 11.1 of the Universal Declaration of Human Rights, 1948 states – “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” As per our Constitution,  Article 20 contains a presumption of innocence in favour of a suspect, while not affirming does not prohibit it, thereby, leaving it to Parliament to ignore it whenever found by it to be necessary or expedient. Under section 304(b), which is governed by Indian Evidence Act section 113(b), the burden of proof is on the husband and he is not given the benefit of presumption of innocence, however there is no such bar for IPC section 498a.

Q8. Do I have attend all dates in 498a?

A8. As this is a criminal case, it is required that the accused attends all the dates, however an application may be moved under CrPC 205: Magistrate may dispense with personal attendance of accused. “Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. ”

Q9. Can 498a be charged without MLC or death of wife?

A9. Yes, the only prima facie allegation needs to be of cruelty or harassment as defined under 498a.

Q10.  Can I quash 498a FIR on basis of false evidence?

A10. There are very limited grounds for a quash. Following are the grounds available on which a Quash petition can be filed:

1. The court does not has any territorial jurisdiction

2. Even if the story of the prosecution is assumed to be true, crime is not made out and conviction is not possible,

3. The charges leveled are so improbable that a prudent man cannot believe it.

4. The whole prosecution is malafide.

The charges are false is a matter of trial and quash would not be possible on this ground.

Q11. Can I fight 498a myself in court?

A11. Yes, you can fight your own case in court if you are legally sound or you have to time to learn and understand the nuisances of law. However, if there are more than one accused in the FIR, you can not fight for other accused.

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Enforcement of Foreign Court Awards - Child Custody

Chennai woman wins Indo-US custody battle for only son

  CHENNAI: A Chennai-based software engineer won her only son's custody after the Madras high court on Tuesday refused to take cognizance of an interim order of the Superior Court of California, which had granted the permanent custody of the boy to his US-based father, also an engineer.

The boy was born in September 2008 when the couple were working in the US. While he was barely 15 months old, the family came to India for a visit, but only the boy and his father returned to the US, as the mother could not get H1B working visa. The father had a green card and the boy was a US citizen by birth. In 2011, the man and his son came to India but the mother was not informed. However, while they were on their way back, they were made to return from Singapore because the mother had lodged a police complaint and many relatives of the father had been detained. Since then, the boy has been in with his mother.

The father, who went back to the US, moved the court in California, which granted him permanent custody of the boy. The man then approached HC seeking to enforce the order.

But, Justice Pushpa Sathyanarayana picked holes in the father's case, and ruled that the boy will remain with the mother. "Though the father invoked the jurisdiction of the foreign court, he has not obtained any substantive order in his favour," she said.

Pointing out that the US court order restrains the mother from removing the child from the state of California, the judge said, "It is unenforceable, because the child on the relevant date was in the custody of the mother in India." Though he was a green card holder, became a US citizen later, and obtained green cards for his parents, the boy's father never sponsored his own wife, she said.

Pointing out that the mother had accompanied the father and the child to the airport to see them off when she could not travel for want of visa on November 19, 2009, the judge said: "That being so, it is surprising how he can file a case before the foreign court on the ground of abduction/kidnapping...the question of kidnapping does not arise." 
  Source: timesofindia.indiatimes.com/city/chennai/Chennai-woman-wins-Indo-US-custody-battle-for-only-son/articleshow/48409036.cms  

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