(By Eeshmitha Ranjani[1])
In supreme court of India
| NAME OF THE CASE | Sushil Kumar Sharma vs. Union Of India and Ors |
| CITATION | Writ petition (civil) 141 of 2005 |
| DATE OF THE CASE | 19 July , 2005 |
| APPEALANT | Sushil Kumar Sharma |
| RESPONDENT | Union of India and Ors |
| BENCH/JUDGE RESPONDENT | ARJIIT PASAYAT (J) , H. K . SEMA (J) |
| STATUES/CONSTITUTION INVOLVED | Constitution of India ; Indian Penal Code 1860 ; Indian Evidence Act 1872 |
| IMPORTANT SECTIONS/ARTICLES | Constitution of India – Article 14 , 32 India Penal code 1860- Section 498 , 489 A , 304 -B , 306 Indian Evidence Act – 113B |
ABSTRACT-
A writ petition was filed by the petitioner urging the court, to profess Section 489A to be unconstitutional and ultra vires. He requested to frame substitute guidelines for the safeguard of innocent people who were being falsely alleged by unscrupulous persons with frivolous and ulterior motives, to harass their husbands or their relation, so that the court must take strict action against the people who misused the law for their benefit to ill-treat others. After that, the court mentioned some precedents judgments relating to this case and said that a mere possibility of abuse of the provision was not said to be unconstitutional, the Supreme Court also stated that the provision’s main aim is to avert the cases of dowry menace. And that it was the legislature’s responsibility- to amend or repeal any statutes if they are misused. So the court said that they cannot amend the provisions because it is the legislature who should take remedial measures against misuse of section 498A in the future. At last, the court held that it can’t find any constitutional foundation in this provision and disposed of this petition.
INTRODUCTION-
India is a country that follows many religious customs. One of the ancient customs carried out by Indians – is giving dowry to the bridegroom at the time of marriage. This custom is followed in the marriage ceremony by which a certain amount of property, money, or gifts were given to the husband and his family, as maintenance after the marriage. From the ancient period, Dowry became essential in marriages. But it led to many problems like harassment, cruelty, and causing domestic violence in her marital houses, abetting women to suicide and killing her for dowry, etc, considering these incidents giving tocher was prohibited according to the dowry prohibition Act, of 1961[2]. As dowry killings and the mistreatment of women increased, more incidents of these crimes were reported. In the year 1983, there took the amendment by Criminal Law Act, which inserted Section 498A of Ipc, 1860 – cruelty by husbands or relatives of the husband which sentence with imprisonment up to 3 years and liable to fine. These laws were determined to protect women from being harassed. Later on in the following years section 498A provision has been misused by taking undue advantage to harass their husbands and in-laws with oblique motives. And in this case, a petitioner filed a writ to declare section 498A of IPC to be unconstitutional and ultra vires then the court held that it is not fair ‘as a mere possibility of abuse of provision doesn’t make it unconstitutional’, the main objective of provision was to protect the women from the dowry menace hence misusing it can be seriously punished.
ISSUES-
-Whether Section 498A of Ipc, 1860 is considered to be unconstitutional and why?
-Whether the mere possibility of abuse of power makes the provision ultra vires and unconstitutional?
– Why Section 498A Ipc, 1860 had been inserted by the Criminal law amendment Act, 1983?
FACTS OF THE CASE-
A writ petition has been filed by a petitioner under Article 32 of the Indian constitution. Pleading that Section 498A of the Indian penal code, 1860 which was inserted by the criminal law Act, and 1983 should be declared unconstitutional and ultra vires. The appellant said that they were unfair and unconstitutional. He highlighted by showing many instances, as it was being misused by unscrupulous persons for making false and frivolous allegations against their husbands, in-laws, and their relation, with oblique motives to harass them. As an alternative, he prayed the court to frame certain guidelines so that it would discourage the people from coming to the court with unclean hands and ulterior motives. Reliance was also made in the decision by a learned single judge of Delhi high court wherein concern was shown about the rise in the number of false and frivolous allegation cases. In these cases most of the time, the accuser was at fault rather than the accused. section 498A and section 113B which were enacted by the criminal law Act 1983(2nd Amendment) were held to substantive and presumptive laws, both come under the amplitude of past events of cruelty. Other related provisions like section 304B and section 498A which deal with different offenses have the common essential to prove was ‘cruelty’ and 306 of Ipc concerning section 498A have a similar intention of abetment of suicide -where cruelty committed by the husband or his relation drag women to committed suicide.
reviewed that the main aim of this section was made in the objectives of the criminal law act 1983, besides that several cases such as Mafatlal Industries Ltd. And Ors. V. Union of India and Ors., it was said that a mere possibility of abuse of the provision doesn’t make it unconstitutional or ultra vires. It was the legislature that can amend or repeal any provision or laws enacted, certain remedial measures should be taken by them so that in the future nobody can use it improperly. Until then the court will deal with the cases up to the existing framework only. The court ordered that section has no substance and that section 498A is unconstitutional, so that petition was disposed of saying that if anything the petitioner wants to prove, can be done in the further trial.
ARGUMENTS RELATED TO PETITIONER-
- The learned counsel of the petitioner prayed the Apex court to declare Section 498A of Ipc, 1860 as unconstitutional and ultra vires and in alternative to make some guidelines regarding this section so that the innocent will not be harmed by fake and frivolous allegations alleged by unscrupulous persons, with oblique motives to harass their husband and in-laws.
- He argued that ‘these types of cases were persecuted not prosecuted’. For instance, In a case based on the learned single judge of Delhi high court rendered decision showed concern about an increase in cases of false allegations, mainly the accuser was said to be guilty but not the accused.
- Petitioner states that the provisions included in the Second Amendment of the criminal law Act, 1983- such as section 498A of the Indian penal code, and section 113B of the Indian Evidence Act, 1872 had an objective to safeguard the women from dowry death and cruelty, but it turned out to be misused by them to abuse others. And stringent action should be taken against them by the court.
RELATED PROVISIONS–
- Constitution of India-1949
Article 32 – Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clauses ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution[3]
- Indian Penal Code, 1860
Section 304B-
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For this sub-section, “dowry” shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961)
(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.][4]
Section 306-Abetment of suicide.—If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[5]
Section 498 – Enticing or taking away or detaining with criminal intent a married woman.—Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with the intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.[6]
Section 498A-Husband or relative of husband of a woman subjecting her to cruelty.—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 this section, “cruelty” means—
(a) any wilful 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.[7]
- Indian Evidence Act, 1872
Section 113B– Presumption as to dowry death.—When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the Court shall presume that such person had caused the dowry death. Explanation. For this section, “dowry death” shall have the same meaning as in section 304B, of the Indian Penal Code, (45 of 1860).][8]
JUDGMENT-
The division bench has given a verdict based on their observations in the case. The main objective of Section 489A is to prevent offenses related to dowry death or dowry menace or cruelty or harassment of women by their husbands and their relation (in-laws). Section 498A of IPC and Section 113 B of IEA, 1872 are considered to be substantive (section 498A) and presumptive provisions (section 113B) inserted in the Criminal Law Amendment Act 1983 both sections also explain the cruelty of women, other powerful sections like 304B and 306 of Ipc also somehow related to the offenses against women like, dowry death, abetment of suicide or cruelty. The only objective of the provision(section 498A) is to suppress the cruelty and harassment suffered by women in their marital houses.
In the case-Thangal kunju musaliar v. M. Venkatachalam potti[9], Authorised official and Income Tax officer and Anr.., it was held that “the mere possibility of abuse of law doesn’t per se invalidate the legislation, unless the contrary was proved there will be no application of the provision is done ‘not with an evil eye and unequal hand’ ”. From the foremost cases in India or America one thing is for sure if a statutory provision is Intra vires, constitutional and valid a mere abuse of power given by a provision doesn’t make it invalid and constitutional. Mafatlal Industries Ltd. and Ors V. Union of India ans Ors.,[10] a 9 judges bench observed proclaimed that a mere possibility of abuse of a provision by those in charge of administering it cannot be ground for holding a provision procedurally or substantively unreasonable.
Also in other cases like Maulavi Hussein Haji Abraham Umarji v. State of Gujarat[11] , Unique Butle Tube Industries (P) Ltd . v. U.P. Financial Corporation abd Ors.[12] and Padma Sundara Rago and Ors. V. State the court expressed that it only interprets the law and cannot make them. When a provision is constitutional and intra vires doesn’t mean it can be used unfairly making innocent to undergo false attributions, that will bring great suffering to them. Until he proved to be an acquittal, up to then the public ignominy the person had suffered, and in addition, the media brings more misery to him. In some cases that may even cause the death of the person. So remedial measures should be taken by the legislature to prevent these false allegations on innocent who are becoming victimized by frivolous person’s malicious acts. The court until then works up to the framework of legislation. Court further stated “It is a provision to intend to work as a shield and not assassins” but on the contrary, they were turned out into “legal terrorism”. The judges proclaimed a statement i.e., “if a ‘wolf cry’ is frequently made there might be no protection available if that wolf really comes.” Court and investigation agencies are ‘watchdogs, not bloodhounds’. It was the court’s effort to make sure innocent not made guilty of unlawful and false allegations. The ultimate aim of the legal system is to ‘arrive at truth, punish the guilty and protect the innocent’.
Hence Apex court said there was no need for future investigation and the petition was disposed of.
CHANGES IN THE APPLICATION OF SECTION 498A-
- At the initial stage of commencement of this section after filing FIR there used to be ‘automatic arrest’ of the accused, but now first there was proper investigation steps have taken place, and then only the accused was arrested[13].
- Section 498A added an advantage to grant anticipatory bail based on the precedent case- Rajesh Sharma vs. The state of Uttar Pradesh (2017).
- Without evidence husband or his relative can’t be arrested under this section.
- In addition to that the family welfare committee and district legal aid commission will scrutinize the filed case and report to the authorities. So, these changes will be taken place to not entertain false accusations.
CONCLUSION-
Although the plea of this case was disposed of by the supreme court this was the first case to give a thought to think about changes that should be brought into the light while executing section 498A. The investigation and court proceedings which were related to dowry menace, dowry deaths, harassment of women, abetment to suicide of a woman, and cruelty of women based on section-304B, 306, 498A OF IPC,1860, and section 113B of IEA,1872 were changed after this case. Many changes took place in the court proceedings and investigations process of the cases filed under section 498A, Recently in the Mukesh Bansal v. State of U.P.[14] case, it said to be followed some detailed investigation procedures to stop the misused of section 498A provision.
My conclusion is that courts and legislature should try to assure that there is no innocent being victimized by an unlawful allegation upon them. Certain precautions should also be taken to give protection to the husband and their relation from these false allegations made to harass them. If legislature doesn’t take care of it this may undermine their faith in the law. Thus those who required this provision should make use of this provision as protection from being harassed. One should not make any false allegation unnecessarily to abuse others.
[1]5th Semester Student at Andhra University, Andhra Pradesh
[2] The Dowry Prohibition Act, 1961.
[3] The Constitution Of India 1949, Art 32.
[4] The Indian Penal Code , 1860 Section 304B
[5] The Indian Penal Code, 1860 Section 306
[6] The Indian Penal Code,1860 Section 498.
[7] The Indian Penal Code , 1860 Section 498-A
[8] The Evidence Act, 1872 section 113B
[9] A. Thangal Kunju Musaliar vs M. Venkitachalam Potti And …, (1956) AIR 246.
[10] Mafatlal Industries Ltd., … vs Union Of India Etc. (1997) 5 SCC 536.
[11] Maulavi Hussein Haji Abraham Umarji v. State Of Gujarat And Another (2004) 6 SCC 672
[12] M/S. Unique Butyle Tube … vs U.P. Financial Corporation & Ors (2003) 2 SCC 455.
[13] Rajesh Sharma vs The State Of Uttar Pradesh(2017) Crl. No. 2013 of 2017.
[14] Mukesh Bansal vs State Of U.P. And Another ( 2022) Crl. revision No. 1187 of 2022.