Tanya Sara George
Introduction
§498A of the Indian Penal Code (‘IPC’) delineates the punishment of cruelty to the wife. The section holds the authority to place a cognizable and non-bailable offence against the husband, or any relative that subjects the woman to cruelty, with a maximum punishment of 3 years, along with the placement of a fine. While originally created as a necessity to curb often-faced cruelty relating to the procurement of a dowry, this scenario may have changed 40 years later.
As stated over two decades ago by the Malimath Report, India has recorded a trend of misuse concerning §498A. This has been noted in recent cases, with courts often disapproving of this practice. For example, a division bench of the Supreme Court (‘SC’) recently observed the rampant misuse of Section 498A in matrimonial disputes. A month before the SC’s stance, the Bombay High Court had noted that §498A was often used in improbable scenarios that even implicated the elderly and ailing individuals who were evidently incapable of fulfilling the prerequisites for this offence. The present scenario necessitates a rethinking of §498A, reiterating the stance various courts and commissions have taken in asking the question: “Should §498A be made a compoundable offence?”
The echoes of various decisions and reports are emphatic in their stances towards both the compounding and the non-compounding of this offence. This article adopts a theoretical lens in attempting to answer this question. First, I highlight the changing nature of §498A in establishing that the provision has been more prone to misuse rather than effective utilization in today’s world. Second, I elaborate on the principles and theories behind the non-compounding of this offence, applying them to modern contexts. Third, I analyse the rationale of different principles and policies of criminalization in assessing whether compounding could better serve the law’s objectives.
The Changing Nature of §498A
While §498A was formed with a legitimate aim, modern data shows that the rigidity of the law may render it more ineffective than effective, inclining towards a tendency for misuse. Looking at the years between 2007-2013, cruelty cases have recorded a 75% increase. However, the conviction rates have severely diminished. In 2016, the National Crime Records Bureau (‘NCRB’) observed that conviction rates were only 12.2%, the lowest among all IPC offences. Investigations have identified that in certain cases, women evince no interest in going forward after out-of-court settlements, contributing to the low conviction rate. This can be attributed to the growing misuse of Section 498A. Various cases have observed that claims are often over-exaggerated, accusing a number of relatives. The NCRB data provides an example of this, with persons belonging to the below 18 and above 60 age categories being arrested for such cases, indicating that relatives may be arrested without sufficient evidence. This subsequently leads to an increase in cases but a reduction in convictions.
For example, the SC’s recent observation in Payal Sharma v. State of Punjab shows that the petitioner was residing in a different city from the complainant, clearly evident of over-implication. Similarly, in Yashodeep Bisanrao Vadode v. State of Maharashtra, the SC overturned the conviction of a man merely because he was the husband of an accused after noticing that his marriage was solemnized only after the offence was alleged. This trend of over-implication and misusing §498A was also observed in Geeta Mehrotra and Anr. v. State of U.P. and also flagged in Preeti Gupta v. State of Jharkhand where, after considering a very large number of cases, the court warned against over-exaggeration and sent notices to the Law Commission about the same, in public interest.
The Discourse on §498A
Initially introduced in 1983, §498A was designed to deter cruelty within marriages and prevent such offences by categorizing them as non-compoundable. However, the rigidity of this classification soon led to concerns about its practical implications.
The 154th Law Commission Report first proposed that §498A be included in the compoundable offences list under Section 320(2) of the Criminal Procedure Code (‘CrPC’), with court permission. This recommendation was reiterated in subsequent reports, including the 177th Law Commission Report and the 111th Standing Committee Report on the Criminal Law (Amendment) Bill, 2003. These bodies stressed the need to allow reconciliation between spouses if they choose to do so without undermining the law's purpose through the allowance of compounding the offence.
Similar views were adopted through judicial interpretations. In B.S. Joshi v. State of Haryana, the SC allowed the quashing of §498A proceedings under §482 CrPC, stating that petitions must be quashed if it is the desire of both parties to do so amicably, thereby respecting their autonomy in determining the course of their legal relationship.
This stance was revisited in Gian Singh v. State of Punjab, where the court differentiated between public and private criminal activity, reasoning that matrimonial disputes have a ‘personal’ element in them, making it a more private crime, which allows parties to embody a more active role in the process. This allows the offence to lean towards being compoundable. Ensuring safeguards, the court established certain criteria when quashing can be undertaken, such as if the possibility of conviction is bleak or if the continuation of proceedings would cause a grave injustice to the parties. Agreeing with the previous rationale, cases like K.N Rao v. D.A. Deepa have continued this trend, emphasizing the use of mediation to resolve disputes of a “predominant civil flavour” when parties wish to do so.
Further, the SC has established in Preeti Gupta v. State of Jharkhand that these complaints may be exaggerated when drafting. The same was observed in Tr. Ramaiah v. State, in stating that “complaints are often filed in the heat of the moment over trifling fights and ego clashes.” The government has observed that this may lead to irrevocable consequences due to the present categorization of the offence, these individuals would not receive a second chance at marriage in instances where they wish to reconcile. In such scenarios, non-compounding would mean that the law inflicts punishments for the protection of someone, irrespective of their wants.
As shown by Joshi and Gian Singh, the view taken by the court in quashing the offence is not one of protecting the sanctity of marriage but rather allowing for more individual autonomy and efficient justice for concerned parties. These views argue towards balancing the punitive intent of §498A with better individual autonomy, especially when the parties express genuine intent to reconcile, an argument that has also been utilized by the National Commission for Women in attempting to mediate such cases, which strongly oscillates towards compounding §498A.
Examining the Non-Compounding of §498A
Here, this article attempts to undertake a theoretical examination of §498A in examining the non-compounding of §498A, using the welfare principle, the social defence theory, and Feinberg’s offence principle. The first two principles provide a lens to examine whether the intent of §498A has been achieved, while the offence principle is used to judge the implications of non-compounding §498A. As mentioned in the 237th and 243rd Law Commission reports as well as the objective for inserting §498A, the rationale for this law is prioritising welfare and collective societal interests, which allows these theories to function as a normative framework for assessing the law’s efficacy.
The fundamental principles behind criminalising and holding an offence as serious are “declaratory,” “preventive,” and “censuring.” These principles are emulated in the welfare principle of criminalisation. Through the welfare principle, the state objectively holds certain interests as protected and can thereby criminalise actions against them. In the present case, the argument would presumably be that the state should protect interests such as the right to security and freedom from personal attack and the right to life and liberty of women, which subsequently allows for harsh penalisation and non-compounding.
The argument propounded through this theory is that compounding would adversely affect the welfare of women as it might normalise cruelty. However, while this would be true in the case of non-criminalisation, it does not hold true for compounding. Compounding would merely allow for the aims of welfare to be better obtained as individuals would be given the chance to decide the recourse they wish to seek, thereby wholly allowing the penalisation of violence if need be.
The social defence principle aligns with this view, asserting that criminalisation defends individuals against harm, particularly vulnerable groups like women. As stated by multiple reports, women in India are more vulnerable than men and cruelty against women is an evil that must be prevented. Although, doing so must not be at the cost of more harm to the woman. As noted by the 237th report, non-compounding penalizes both the man and the woman in cases of reconsideration or reconciliation. This penalty is also often harsher for women as they are often shunned by their family and left with no resources or autonomy to choose a path such as divorce which may allow for better security and rights in regards to financial security.
An argument for non-compounding under these theories is that allowing for non-compounding may result in women being pressured to withdraw her complaint in cases where she is under-educated and has no other means of income. Albeit unfair, this situation would then mean that women should not be given the opportunity to compound in any IPC offence, which falls counter-intuitive to the social defence principle meant for protecting the rights of women.
Lastly, Feinberg’s offence principle offers an additional lens for judging §498A, particularly concerning the implications of criminal prohibitions. Acting as a runner of the efficiency principle or criminal sanction, this principle holds that a prohibition is valid if it serves as an effective means to an end if enacted. Although normative, this principle can be applied to the domestic context to determine the enforceability of this prohibition. However, on applying this principle to domestic context where research indicates that despite prohibition, cruelty cases are on the rise, this militates against non-compounding.
Should §498A be made Compoundable?
In this section, I address the question of whether §498A be made compoundable and draw an argument towards compounding, by evidencing the flaws in the rationale for non-compounding utilising the individual autonomy principle and the effectiveness principle of criminalisation.
The Rule of Law holds for an incontrovertible minimum respect for the principle of individual autonomy. The welfare theory embodies this principle in holding that the state is obligated to foster conditions that enable individuals to exercise autonomy. This goal then becomes hindered by §498A’s non-compoundable nature. This principle was also implicitly noted in the Malimath committee report, which highlighted that individuals must be given the free will to seek reconciliation and make amends if they wish to do so, arguing towards making the offence compoundable. Additionally, as observed by the SC in G.V. Rao vs L.H.V. Prasad & Ors, prolonged litigation, despite mutual agreement to follow another path, inevitably results in both parties losing their time getting caught up in cases they would not wish to pursue.
As noted by the Malimath committee and 154th and 177th commission reports, it has been shown that individuals show the will to make amends as the proceeds initiate but later get roped into criminal proceedings, antithetical to their then wishes. These reports clearly establish the necessity for applying the individual autonomy principle, to modern jurisprudence concomitant to Section 498A. This rationale is not merely theoretical and has been applied in cases such as B.S. Joshi, and K N Rao v D. A. Deepak, indicating that it makes for good law.
Furthermore, while the social defence theory is used to make legislation that protects vulnerable populations, it is subject to a secondary threshold: criminalisation is warranted only if no better means exist outside criminal law. Here, the misuse of §498A undermines its paternalistic aims.
Consider the case of a woman gaining compensation through filing a suit under §498A when she has yet to spend a day with her husband in the first place. As shown by various cases, similar examples ripple through the usage of this section. In such a scenario of over-implication, it seems more beneficial to treat such cases as compoundable, which allows for more autonomy in reconciliation or to explore alternative paths, if asked for by both parties. Additionally, this provides an allowance to reduce the law’s adversarial impact as established by the court in Rajesh Sharma v. State of Uttar Pradesh. This indicates that it may be more fruitful to treat these cases as compoundable and thereby extinguishes the value of these theories in non-compounding the offence as they do not result in protecting collective social interests.
Moreover, as these principles prioritise collective societal interests, the corollary drawn then is that there must be sufficient flexibility to certain criminal prohibitions to ensure that these interests are met. As the court has shown in K N Rao v D. A. Deepak, using its discretion and allowing for compounding this offence at instances of reconciliation is directly in line with the social defence theory and the paternalistic notion of the state. Punishing individuals despite the wishes of the complainant sequels antithetical to the law’s intent.
Lastly, considering Feinberg’s theory, the data falters in supporting this argument. Despite 40 years of implementation, cruelty cases have not diminished but have risen. Further, the growing tendency of misuse noted by the courts militates against the principle being met.
Further considering the “preventive” facet of the law through the lens of the effectiveness principle, Feinberg states that a law is efficacious if it prevents harm, and there is no other means that is equally effective. This principle reasons that an act must only be harshly penalised if it involves merit that the wrongdoing would be condemned and prevented. If this is not achieved, alternatives to criminalisation may be considered. Arguing on this prong, NCRB data shows that out of the numerous suits filed against this offence, it is only a meagre 15% that has ever seen conviction. Moreover, these suits have over a 96% pendency rate due to over-implication or as the couple exercises the will to reconcile during proceedings, evidencing towards the law not functioning as a preventive measure. This indicates that the “declaratory,” “preventive,” and “censuring” aims of the sanction are often unfulfilled.
As Ashworth notes, a law is efficient if it is (i) fair and (ii) effective. In the present scenario, data indicates that §498A is often misused to implicate in excess, eroding fairness. Further, as noted above, the rise in both misused and genuine cases inclines towards the law not meeting its effective intent. As per the efficiency principle of criminalisation, if the criminalisation, or in this case, non-compounding of the crime, gives rise to previously established societal consequences such as a harsher penalisation for certain women, a growing tendency of misuse, uncorroborated arrests, and not taking into account the interests of the woman, which are hardly better than what the law seeks to prevent, this militates strongly in favour of permissible compounding of the offence.
Conclusion
This paper argues that in the modern world, the old isolated approach of treating §498A cases as non-compounding cannot be adopted. To clarify, compounding the offence is not to be construed as normalising cruelty, but an advocation to equip the complainant with the autonomy to move forward with the complaint in the direction they wish to follow. In this scenario, compounding would allow the object of §498A to not be stultified by a presumption of misuse and ensure that the law still function as protective.
While compounding would provide relief to misuse, it is not a panacea for systemic issues surrounding domestic violence laws. Particularly, in acknowledging the over-use of §498A, courts must be wary of adjudicating on cases with a gendered presumption of misuse. The judiciary must ensure that they do not create a culture of compromise and excessively intervene to encourage reconciliation but must allow compounding to remain a choice, not a compulsion.
Lastly, despite the arguments in favour of compounding, certain limitations must be acknowledged. The power dynamics inherent in matrimonial disputes often place women in a vulnerable position. This requires a framework where courts must prevent coercion or undue influence, bringing the future consideration of how an equitable framework can be formulated within §498A to allow for effective safeguards in ensuring that compounding remains a choice.
Tanya Sara George is a 3rd year B.A., LL. B (Hons.) student at Maharashtra National Law University, Mumbai.
Feature Image: Water colour painting, Domestic violence; a husband holding his wife by the hair. Source: Wikimedia Commons.
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