Showing posts with label 498a. Show all posts
Showing posts with label 498a. Show all posts
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.
Source:http://shoneekapoor.com/498a-myth-buster-the-current-scenario-for-newly-hits/
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.
Source:http://shoneekapoor.com/498a-myth-buster-the-current-scenario-for-newly-hits/
Dowry Prohibition Act - Excerpts
Introduction
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The practice of giving a "dowry"
or a gift to a woman at marriage is said to have its origins in the
system of "streedhan" (women's share of parental wealth given to her at
the time of her marriage).
As a woman had no right to inherit a share of the ancestral
property streedhan was seen as a way by which the family ensured that
she had access to some of its wealth. There is no clear proof as to when
this practice was first started in India.
What began as gifts of land to a woman as her inheritance in an
essentially agricultural economy today has degenerated in to gifts of
gold, clothes, consumer durables and large sums of cash, which has
sometimes entailed the impoverishment and heavy indebtedness of poor
families. The dowry is often used by the receiving families for business
purposes, family member's education, or the dowry to be given for the
husband's sister. The transaction of dowry often does not end with the
actual wedding ceremony as the family is expected to continue to give
gifts.
In the course of time dowry has become a widespread evil and it has
now assumed menacing proportions. Surprisingly it has spread to other
communities, which were traditionally non-dowry taking communities. With
the increasing greed for the easy inflow of money on account of a bride
the chilling stories of bride burning started coming to light.
With a view to eradicate the rampant social evil of dowry from the
Indian society, Parliament in 1961 passed the Dowry Prohibition Act
which applies not merely to Hindus but all people, Muslims, Christians,
Parsees and Jews. It extends to the whole of India except the State of
Jammu and Kashmir.
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What constitutes dowry
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Dowry is defined as any property or valuable security given or agreed to be given either directly or indirectly:
BAN ON ADVERTISEMENT
Any advertisement in any newspaper, periodical, journal or through
any other media offering dowry as consideration for marriage is
punishable with imprisonment for a term not less than 6 months and it
may extend upto 5 years or with fine upto RS. 15,000 (Fifteen thousand).
DOWRY AGREEMENT-NOT VALID
An agreement for giving and taking of dowry shall be void
Pending such transfer that person shall hold the dowry in trust for
the benefit of the woman. In the event of death of the woman dowry
shall be transferred to her children or her parents.
If any person fails to transfer any property within the time limit
specified, he shall be punishable with imprisonment for a term not less
than 6 months, but which may extend to 2 years or with fine which shall
not be less than RS. 15,000 (Fifteen thousand) or with both.
|
Remedies
|
Giving,
taking and demanding dowry is a criminal offence under the Dowry
Protection Act and the Indian Penal Code. Under the Dowry Prohibition
Act only Metropolitan Magistrate or the Magistrate of the first class is
competent to try these offences
A Complaint may be made in the following manner:
The Code of Criminal Procedure shall apply to offences under the
Dowry Prevention Act as if they were cognizable offences (cognizable
offence is one in which a police officer may arrest without warrant)
Every offence under this Act is a non bailable and non compoundable
offence (that which cannot be compromised or settled out of court,
between the complainant and the accused, at any stage of the trial)
BURDEN OF PROOF
Where any person is prosecuted for taking or abetting the taking of
any dowry or the demanding of dowry, the burden of proving that he has
not committed an offence shall be on him. (One of the principles of the
Indian Criminal Law is that a person is innocent until proven guilty and
the onus of proving the guilt is on the complainant/prosecutor. This
onus has been shifted in certain specific offences such as Dowry, Rape,
etc.).
PENALTY FOR TAKING OR GIVING DOWRY
The giving, taking or even abetting to give or take dowry amounts
to an offence punishable with imprisonment for not less than 5 years and
with fine which shall not be less than RS. 15,000 (Fifteen thousand) or
the amount of value of the dowry, which ever is more.
PENALTY FOR DEMANDING DOWRY
If any person demands directly or indirectly, from the parents or
other relatives of a bride or bridegroom, as the case may be, any dowry,
he shall be punishable with an imprisonment for a term which shall not
be less than six months but which may extend to two years and with fine
which may extend to RS. 10,000 (ten thousand)
LIMITATION
There is no period of Limitation for filing a complaint under the
Dowry Protection Act. For example: If a person was harassed for dowry in
the year 1996 she can file a complaint in the year 2001 or even later
as for prosecution under the Act bar of limitation has been removed.
DOWRY PROHIBITION OFFICERS
The Act also empowers the State Government to appoint Dowry
prohibition officers and they have the following powers and functions.
|
Dowry death
|
The Indian
Penal Code provides that where any women dies an unnatural death within
seven years of her marriage and it is shown that she was harassed or
subjected to cruelty by her husband or his relative for dowry, such
death shall be called a Dowry death. The husband or the relative shall
be deemed to have caused the death of the women. The offence is
punishable with imprisonment of not less than seven years (Section 304B
Indian Penal Code).
|
Cruelty/Harassment Towards Women
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Whoever,
being a husband or relative of the husband subjects such women to
cruelty shall be punished with imprisonment for a term of three years.
Cruelty has been defined as:
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Seema Anil Dhavale, 498a Quash and Discharge Judgements useful for Victims
Seema Anil Dhavale, 498a Quash and Discharge Judgements useful for Victims
Umpteen number of judgments and useful guide for 498a victims
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Umpteen number of judgments and useful guide for 498a victims
