What is 498A punishment & protection against Section 498a ipc case

498A Myth Buster | FAQs on 498A | Detailed Information on 498A IPC Punishment

Myths about 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) range from it can not be filed after seven years of marriage, to arrest is guaranteed in 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023), to accused has to prove innocence. Some of these myths are squarely that -myths, however, some has become myths now with the change of times.

There has been a massive change in the scenario since IPC 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) was inserted in Indian Penal Code. There has been lot of judicial pronouncements and there has been changes in CrPC, which has affected how 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) cases are perceived and run in courts now.

The questions which are posed to me in weekly meetings and otherwise w.r.t. 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) 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 IPC (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) Punishment in the new scenario.

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

A1. Yes, there is no limitation of number of years of marriage on filing 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023). However, that doesn’t mean that a wife or her relative can a file section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) on the husband anytime they wish. As per CrPC 468, the limitation on filing of 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) is 3 years from the last alleged incident.

Q2. Is 498A and dowry harassment the same?

A2. Interestingly, section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) does not contain the word ‘dowry’ at all. Chapter XX A was introduced into the Indian Penal Code (IPC) containing the solitary Section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023), 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 (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) 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?

A3. 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 Section 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 (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) 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/ Girl friend/ Fiance 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 Sec 498A?

A7. Yes, India follows the 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) (Dowry Death: Proposed Section 79 of The Bharariya Nyaya Sanhita, 2023), 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 the presumption of innocence, however, there is no such bar for IPC section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023).

Q8. Do I have attend all dates in 498A Case?

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 Section 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 section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023).

Q10.  Can I get quash or get discharge in FIR on the basis of 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 have 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. You can read more on how to seek Discharge here.

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 nuances of law. However, if there are more than one accused in the FIR, you can not fight for other accused.

Q12. How can my family members defend themselves in case my wife charges molestation or rape against my father or brother?

A12. As the saying goes, “Dard badta gaya jyun jyun dawa ki.” Arnesh Kumar judgment though have given certain relief to some people. It has created a newer kind of problem for many. Now unscrupulous women have started including brother-in-law, father-in-law etc in other charges like molestation, attempt to rape and sometimes rape itself. With increased talk about increasing sexual crimes in the country, one should not keep waiting for notice under S 41A. The parties concerned should immediately move for Anticipatory Bail.

Q13. If I win my 498A case, can I take it as a ground of Divorce against my wife?

A13. This is not so simple. Actually, no one can win section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023). It can only be defended. So if one gets acquittal in 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023), that itself is not a ground for divorce. Only if it is proved and mentioned in the judgment that the said 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) case was false and malicious, one can seek divorce on that ground. Most of the times, the court notes that “Prosecution failed to prove the case” in, such cases, it is going to be difficult to get divorce on this ground alone. Yes, if there are other grounds and section 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) acquittal is also there, it could be little easy.

Q14. Do I have to pay maintenance to my wife if she starts a 498A or Dowry harassment case on me?

A14. Maintenance is a separate right of a wife and minor children but only if she has no means to support herself. But in 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) or dowry harassment case, it is not decided. For maintenance the wife can file a separate case under CrPC 125, DV or HAMA 18. Sometimes women on wrong advise file more than one case for maintenance. The said case would be fought separately and decided separately.

Q15. How can I defend myself if my wife charges unnatural sex or IPC 377 on me?

A15. If one is charged with a heinous crime like IPC 377. He should seek Anticipatory Bail immediately. Only thereafter one can start defending it. Mostly it is seen that if such allegations are leveled, they are bald and thus easier to defend. However, there is no “One Solution Fits Everyone”, each case has to be fought on its merits. Better sit with someone who has expertise in dealing with such issues with complete documents and decide future course of action.

Q16. How can I get the false 498A quashed?

A16. Quashing happens on very limited grounds. In Bhajan Lal Vs State of Haryana 1992AIR604 (Supra) defined these below seven legal grounds. Quashing is filed u/s 482CrPC in High Court.

1. Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec.156(1) of the Code except under an order of a Magistrate within the purview of Sec.155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Sec. 155 (2) of the Code.
5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

This said, quashing is a rarest of rare phenomenon. Mostly quashing has been successful on the ground of Jurisdiction or on the ground that it has been filed jointly after settling of disputes. Y Abraham Ajith Vs Inspector of Police, Chennai 2004 SCC (Cri) 2134 used to be the super precedent for it, if no part of the offence was alleged to have happen in the area where the FIR was lodged, courts usually quashed the FIR. However now as per the latest judgment, where the woman is residing can also file case from that location.

Q17. Can recovery of istridhan be a ground for dismissal of my anticipatory bail application?

A17. Though recovery of istridhan was never a ground for dismissal of anticipatory bail as propounded by Apex Court, but this was a practice in many states. The Apex Court in Rajesh Sharma judgment clarified in clear words  that return of istridhan articles in itself may not be a pre-condition for bail.

Q18. Will there be any relief for NRIs facing 498A trial in India post September 14^th judgment?

A18. The Non-Resident Indians facing 498A (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) cases can also breathe easy. The Apex Court in its wisdom has held that the provision that Red Corner Notice or Passport impounding shall not be done in a routine matter. That means if the NRI is responding to summons and is appearing as and when directed, his privilege to travel for work or stay shall not be curtailed.

Though I have tried to answer freuently asked questions here. If you have any questions related to 498A IPC Punishment, you may ask it in below comment section or can contact me at info@shoneekapoor.com

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