Should §498A be Made a Compoundable Offence? – A Response

Aravind Sundar

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Section 498A of the Indian Penal Code, 1860 (pari materia to Ss. 85-86 of the Bharatiya Nyaya Sanhita, 2023) defines and punishes the crime of marital cruelty. It broadly covers various forms of harassment and wilful conduct leading to physical/mental injury meted out to a wife by her husband or his relatives.

A previous piece in this forum argued in favour of making S. 498A a compoundable offence, i.e., an offence in which the complainant and the accused may reach a settlement leading to the withdrawal of the criminal case. The author’s argument is broadly based on the supposed misuse of S. 498A in the past decades and the practices of over implication that often arise in cruelty cases. To support their argument, they cite the offence’s low conviction rates, and various court judgements and Law Commission Reports which have highlighted this supposed misuse of S. 498A. They conclude that making the offence compoundable would help reduce the courts’ workload in dealing with these  “false” cases of cruelty while also granting more autonomy to the female complainant in how they wish to pursue their case.  

I argue that this piece is misguided because it interprets low conviction rates in marital cruelty cases as evidence of the provision’s supposed misuse. First, I argue that S. 498A is not being misused and that these judgements and reports use a common method of misinterpreting low conviction rates as evidence of its misuse. Second, I argue against making S. 498A a compoundable offence, as it contradicts the theoretical parameters governing compoundable offences in criminal law and would result in a trivialisation of the crime. Third, I address the author’s contention that compounding S. 498A would increase female autonomy by pointing out that most victims suffer from a great deal of social coercive forces that disable them from moving forward with their existing cases.

In the next section, I delve into the misinterpretation of low conviction rates in marital cruelty cases as proof of its misuse.

The Question of misuse and its (Lack of) Proof

The discourse around the supposed misuse of S. 498A by disgruntled wives looking to use the law to arm-twist their husbands is not new. The Supreme Court in various cases has highlighted this supposed misuse of S. 498A, even going to the extent of terming it as a form of “legal terrorism.” In Preeti Gupta v State of Jharkhand, the Supreme Court claimed that it was “a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints” [para 28]. Similarly, in Arnesh Kumar v State of Bihar, the Court cited the chargesheeting, conviction, and arrest rates to justify their observation on how S. 498A had a “dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives” [para 6]. In Rajesh Sharma v State of UP, the Court, while passing directions to constitute a third-party agency that would be involved in cruelty cases, claimed that most complaints under S. 498A were not bona fide in nature and often filed under the heat of the moment [SCC para 14]. These directions were later overturned by a larger bench, which attributed the excessive arrest rates to investigative agencies acting without any application of mind. A few weeks ago, while dealing with a case of supposed over-implication affecting the relatives of the husband, the Supreme Court in Geddam Jhansi v State of Telangana observed that “when tempers run high and relationships turn bitter, there is also a propensity to exaggerate the allegations, which does not necessarily mean that such domestic disputes should be given the colour of criminality.” [para 32]

The previous piece also cited the 2003 Malimath Committee Report, which claimed that there was a general complaint regarding the misuse of S. 498A and that the inability to compound the offence often operated against the wife’s interest [pp. 290-291]. The Report also claimed that FIRs alleging marital cruelty were often filed impulsively, even against “trivial” acts [p. 191].

A common thread running through these claims of misuse is the citing of low conviction rates,  high chargesheeting, and arrest rates in S. 498A as proof of its supposed widespread misuse by disgruntled wives who seek to weaponise the law against their husbands and in-laws. An article by Jayna Kothari and an Amnesty International report, while specifically addressing the Malimath Committee Report, have noted how such allegations of misuse are based on conjecture and are not backed by any independent research, studies or primary data. Indira Jaising also criticises courts (specifically the Arnesh Kumar judgement [p. 37]) for using poor conviction rates as evidence of misuse of the provision. She argues instead that courts should be using such evidence as proof of  prosecutions that have been conducted in an unsatisfactory manner, rather than blindly concluding that the acquittals arise out of false cases filed by “disgruntled wives”, without performing any analysis on the cause of the acquittals.

Jaising further points out that the low conviction rate in S. 498A cases can also be explained by the Supreme Court themselves trying to encourage the compounding of marital cruelty cases, despite the crime being non-compoundable under the IPC and BNS. She contends that many acquittals could arise due to the complainant turning into a hostile witness during the trial and refusing to give evidence against her husband, after being subject to undue pressure from the familial sphere or due to “settlements”. Flavia Agnes criticises this social insistence on settling or “counselling”, as it forces women to adjust and reconcile with their abuser to save the marital ties, even at the cost of returning to an environment that poses a danger to her life. She draws attention to dowry and dowry death statistics to show that a large number of domestic violence cases do not even reach the legal system —states which record a high number of dowry deaths have a minuscule number of cases registered under S. 498A.

To further her point on the underreporting of S. 498A cases, Agnes highlights the inconsistency between the number of wives who suffer from domestic violence as reported in the National Family Health Survey and the significantly lower number of marital cruelty cases that have been instituted. Her observations ring true even today —the NFHS-V survey released in March 2022 reported that 32% of ever-married women in India between the ages of 18-49 had experienced some form of spousal violence [Vol. 1, p. 639], compared to the mere 8 lakh cases in trial reported by the NCRB’s 2022 statistics. NFHS-V data also shows that only 6% of abuse victims go to the police to seek help [Vol. 1, p. 648].

The legally impermissible practice of pressuring women into settling their S. 498A complaints has an adverse effect on how these cases are represented in legal documents and statistical reports. Because S. 498A is actually non-compoundable, police officers cannot legally record the settlements that they secure between the complainant and her husband and close the case. A study conducted in 2013 of over 300 cases in two districts reveals that police officers instead choose to close such settled cases as “false”, “misunderstanding”, or “mistake of fact”, which are the only grounds that legally enable them to close a S. 498A complaint. These terms either outright deny the existence of violence or trivialise the violence into a misunderstanding/overreaction, thereby wrongly constructing the complainant as an “irrational” or “hypersensitive troublemaker” [p. 84]. A similar study conducted by Amnesty International in 2000 [p. 22] throws light on this practice of recording compromises as “false cases” and closing the complaint. Therefore, it is not just the low conviction rates that are subject to the misinterpretation highlighted above — even statistics on cases reported as false/misleading are to be viewed with a distrustful lens.

Having established that S. 498A is not being misused and that low conviction rates are a misleading factor in determining whether the law is subject to misuse or not, I move on to address whether S. 498A should be made compoundable.

The Non-Compoundable Nature of S.498A

The question of whether an offence can be made compoundable is largely based on the following factors: the graveness of the offence and whether the offence is public in nature i.e., whether it has an element of public interest. Broadly, only those offences which are minor and private in nature and do not vitally affect the interests of the public are made compoundable. Certain offences are understood to be so pernicious and dangerous to society that their impact could not be said to affect only the individual victim. Hence, it would be required for the state to interfere and impose penal sanctions to punish this infringement of public interest appropriately. In their 237th Report, the Law Commission noted that offences which were grave in nature or had a serious societal impact could not be compoundable [para 1.3]. The 237th Report also recommended making marital cruelty a compoundable offence, which will be addressed later.

The Bombay High Court in Reg v Rahimat noted that the object of criminal law was to recognise that the punishment of certain offences was so paramount that the state could not permit any purely remedial arrangement between the injured person and the offender. Such offences could not be made compoundable because the wrong is so pernicious that it endangers not just the individual interests, but also the welfare of society. [paras. 3-4]

The Singapore High Court’s judgement in Ho Yean Theng Jill v PP also provides some important insights into determining the compoundable nature of an offence. Since the Singaporean criminal legal system borrowed the concept of compoundable offences from our criminal laws [paras. 6-9], the Court’s observations are relevant for the Indian context. The Court dealt with the question of whether a case of maid abuse (cases where a domestic maid has been abused by their employer in the employer’s household) could be compounded. It was observed that there was a strong element of public interest involved in ensuring that these cases were prosecuted. The deterrent effect of punishment was required to limit this offence, which was difficult to detect as it often took place in the privacy of a home. The Court further observed that the non-compounding of maid abuse cases would send a clear deterrent signal to would-be abusers that they could not escape the consequences of their actions by purchasing their way out of prosecution [paras. 31-32].

These are pertinent observations for the issue of whether S. 498A is compoundable, an offence which similarly takes place in the privacy of the home and is often termed as a private and not public wrong. Most judgements and reports that recommend making S. 498A compoundable claim that these cases often consist of impulsive complaints filed against trivial acts [Malimath Committee Report, para 16.4.4], or that these matrimonial disputes are of a predominantly civil nature [K Srinivas Rao v DA Deepa (2013) 5 SCC 226, SCC para 43]. In Manohar Singh v State of MP (2014) 13 SCC 75, the Supreme Court observed that criminal complaints arising out of matrimonial discord can be compounded because “such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape, etc.” [SCC para 6].

This trivialisation of marital cruelty as a private or civil wrong is deeply problematic. The purpose [p. 17] of enacting S. 498A is to establish that marital violence is not a private/internal family matter. Instead, there is a public interest in preventing marital violence, which justified state intervention in the marital sphere. The state seeks to invoke the element of deterrence, and this can only work [p. 62] when it uses its machinery and resources to convict and punish perpetrators rather than giving them the ability to pay their way out of the criminal legal system. As highlighted by the Singapore High Court in Ho Yean, offences should remain non-compoundable when there is a public interest in ensuring that the state prosecutes them. By claiming that marital cruelty is a private/personal wrong in which the state should not interfere and leave the parties to resolve the dispute amongst themselves, the law would entrench the public-private dichotomy, which serves to reinforce male power in the family sphere and sanction their acts of violence against women.

To summarise, making S. 498A compoundable would result in the law implicitly acceding that marital cruelty is a minor crime, which is a private and not social issue. This would entrench the public-private dichotomy that legitimises male violence in the family sphere. The law would send a signal that such violent acts would not necessarily be subject to criminal prosecution and punishment. In this way, it would embolden male abusers, who would now be able to buy their way out of the criminal legal system in a legally valid manner.

In the next section, I challenge the previous piece’s contention that making S. 498A compoundable would enhance the interests of female autonomy.

Where’s the female autonomy?

The author in the previous piece contended that the criminalisation of cruelty as a non-compoundable crime would actually harm women’s interests. They argued that non-compounding would remove the female complainant’s choice in deciding the recourse they seek while pursuing the case. It was claimed that complainants often show the will to make amends with their husbands after filing complaints over trifling matters but get sucked into criminal proceedings against their wishes.

These contentions are misinformed. It must first be noted that complaints under S. 498A are not actually filed as a knee-jerk reaction to “trifling fights and ego clashes”, as claimed by the Delhi High Court [SCC para 10]. The previously cited study [p. 87] shows that victims seek help from legal institutions only after they exhaust other avenues of help, such as family or community interventions. The police are a last resort when efforts from these social institutions fail to reduce the violence meted out to these victims. This is backed by NFHS-V data, which shows that only 6% of domestic violence victims approach the police for help. Another study [p. 93] shows that women take 3.5 years post-marriage to report the cruelty to the police, even if the violence started a month after marriage.

Even those who do invoke the legal system are faced with debilitating roadblocks that prevent the abuser from being successfully convicted. On receipt of a complaint under S. 498A, police officers often “mediate” between the husband and the wife-complainant and push for their reconciliation – the measures [p. 94] taken to ensure reconciliation include calling the husband to the station in the presence of the complainant and even refusing to file the FIR. During these mediation sessions, various social forces coerce the complainant into closing the complaint and reconciling with her husband. This may include active coercion from family members, community norms or the husband, or even the internalised reluctance [p. 4846] to prosecute their husband due to the possible hardships that may arise if he is sent to jail.

The complainant must go through this “negotiation process” in a disadvantageous position [p. 357] due to these patriarchal cultural norms and social forces that seek to maintain the marital institution. These efforts by the criminal justice system are geared at salvaging the matrimonial institution by achieving settlements [p. 97].  The “settlements” arising out of these efforts often result in the complainant returning to the husband’s dangerously abusive household. Rather than ensuring justice and protection for the victims and punishment for the abusers, the system pushes the victim back into the violent arena of marital abuse that she sought to exit.

It becomes clear that most victims who register a complaint under S. 498A are robbed of their autonomy to prosecute the case pertaining to an offence that currently cannot be legally settled. The law’s response to this cannot be to presume an equal bargaining position between the husband and the wife and legalise attempts to settle S. 498A complaints. The decision to institute a complaint under S. 498A is one that is taken after due consideration and only when other social institutions fail to resolve the issue. The law must respect and recognise this difficult choice by intervening to protect the victim and prosecute the abusive husband.

Making the offence compoundable would only serve to increase the number of coerced settlements and unjust reconciliations. Husbands would be empowered to continue their abuse, knowing that they would be able to use these coercive social forces to their advantage and pay their way out of the criminal legal system. This would defeat the deterrent and protective intent of S. 498A.

Conclusion

Any discourse on S. 498A must be preceded by a clear understanding of why low conviction rates exist and what the difficulties are in securing convictions. It would be ill-advised to blindly fall into the trap of the “adverse propaganda” that superficially suggests that low conviction rates of marital cruelty cases are proof of misuse by “disgruntled wives”.

The claim that compounding S. 498A would serve to increase the legal system’s efficiency by reducing its workload is farcical and preposterous. The judiciary’s high workload and increasing pendency rates are systemic problems that have nothing to do with the number of marital cruelty cases being prosecuted, which made up merely 2% of the 58.2 lakh cases that were instituted in 2022. In comparison, economic offences make up 3.4% of the criminal cases instituted in 2022, offences against property make up 14.4% and forgery related offences make up over 2%. There is no discourse that heavily pushes for these offences to be compounded.

Through this article, I respond to a claim that compounding the offence would reduce its misuse and promote female autonomy. I have argued above that such a move would trivialise the offence and further entrench the public-private dichotomy that enables marital violence. Furthermore, such a claim rests on a problematic and incorrect presumption that marital cruelty victims have the free will to determine the recourse they wish to pursue, without being subject to any external coercive forces.

Arguing that the law should presume a lack of female autonomy in S. 498A cases comes with its criticisms, as it forwards a protectionist and paternalistic approach that views women as “weak” and “submissive”, thereby reinforcing their subordinate status [p. 216]. While this may be the case, the law is also required to respond to the empirical reality, where various social forces and institutions conspire to protect the marital institution by excusing domestic violence. This calls for continuing to keep S. 498A as a non-compoundable offence, and to ensure that abusers are appropriately convicted.

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Aravind Sundar is a third-year undergraduate student at National Law University, Delhi. 

Feature Image: Bride's Toilet, by Amrita Sher-Gil (1937). Source: Wikimedia Commons