Thinking Of Getting Married? Advice From Divorcee Anne Heche

She is soooo right about the benefits of a perpetual engagement !!

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AP HC Acknowledges The Abuse Of 498A – 2007

Here is a great judgement from Justice Swaroop Reddy Of the AP HC. He basically acknowledges the abuse of 498A going on in the country and in the state.

Here are some excerpts:

• 8. Before parting with the petition, I feel it desirable to observe that there is rampant misuse of S.498-A IPC. False complaints are given against kith-and-kin of the husband, including the married sisters and their husbands;unmarried sisters and brothers and married brothers and their wives. There are instances where even young children, aged below ten years, were also implicated in the offences of this nature. My experience, while sitting in matrimonial Bench revealed that several families are ruined; marriages have been irretrievably broken down and chances of reconciliation of spouses have been spoiled on account of unnecessary complaints and the consequent arrest and remand of the husbands and their kith-and-kin. To discourage this unhealthy practice, it is desirable that anticipatory bail is granted very liberally in all cases of S.498-A IPC, particularly when the petitioner/accused is not the husband of the complainant and when the allegations are not very specific and prima facie do not inspire confidence.
• 9. Section 498-A IPC is incorporated by the Legislature basically in the interest of women and to safe guard them from harassment. But, it has become somewhat counter productive. In several cases, women are harassed, arrested and humiliated on the complaints given under section 498-A IPC. The truth or otherwise of the allegations is subject to proof. For giving complaint absolutely no authentic and prima facie material like medical evidence is required, but on such complaints, in several cases, number of women are being arrested. In cases of arrest of married young women, they might face problems from their husbands and in-laws; in case unmarried women are arrested their marriage prospects would be badly affected and if government servants are arrested their service prospects are affected. In the present case, only one woman is the alleged victim; but at least four women might have to go to jail even before trial, effecting their reputation, subjecting them to rude treatment at Police Station etc.
• 10.Only in cases where, strong and authentic evidence like letters written by the accused-husband to the spouses or their parents etc., are available and where there is sufferance of serious injuries or death of the victim only, perhaps, it is desirable to refuse anticipatory bail, that, too, for the accused-husband. Another important aspect is in this type of cases; there is no chance of witnesses turning hostile or being influenced by the accused, as the witnesses would invariably be the kith-and-kin of the alleged victim like herself and her parents etc.These aspects have to be kept in view, while dealing with the cases of anticipatory bail/bail in cases of offences involving section 498-A IPC.

Here is the judgment:  AP HC Acknowledges The Abuse Of 498A

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SC Clarifies Sections 406 And 498A – 2007

Excerpts:

• According to Section 406 I.P.C., the offence of criminal breach of trust is committed when a person who is entrusted in any manner with the property or with any dominion over it, dishonestly misappropriates it or converts it to his own use, or dishonestly uses it, or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by him touching such discharge, or wilfully suffers any other person so to do. Thus in the commission of the offence of criminal breach of trust, two distinct parts are involved. The first consists of the creation of an obligation in relation to the property over which dominion or control is acquired by the accused. The second is a misappropriation or dealing with the property dishonestly and contrary to the terms of the obligation created. (See: The Superintendent & remembrancer of Legal Affairs, West Bengal Vs. S.K. Roy )
• We are convinced that the allegation of misbehaviour on the part of appellant Nos.1 and 2 and the demand of Rs. 50,000/- and V.C.R. by them made by the complainant in her subsequent statement, dated 4.4.1995, was an after thought and not bona fide. Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, we find that charge under Section 498A I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned.

Here is the judgment: SC Clarifies 406 And 498A-2007

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Fudging Data-19,000 Frivolous 498A Cases: Renuka Choudhry In Parliament

• http://164.100.24.208/lsq14/quest.asp?qref=54495
• 19000 Frivolous 498A Cases (pdf)

You can read about her obfuscation of facts here:

http://desicritics.org/2008/03/16/091618.php

FULL TEXT: 

GOVERNMENT OF INDIA
MINISTRY OF WOMEN AND CHILD DEVELOPMENT

LOK SABHA
UNSTARRED QUESTION NO 193
ANSWERED ON 16.11.2007

FALSE IMPLICATION IN DOWRY DEATH CASES

193. SHRI RAGHUVIR SINGH KAUSHAL
Will the Minister of WOMEN AND CHILD DEVELOPMENT be pleased to state:-
(a) whether the Law Commission has suggested not to acquit the
accused of dowry death on flimsy grounds;
(b) if so, the details thereof and the action taken thereon;
(c) whether the Government is aware of false or willful implications
in dowry cases; and
(d) if so, the reaction of the Government alongwith the action taken
thereon?

ANSWER
MINISTER OF THE STATE OF THE MINISTRY OF WOMEN AND CHILD DEVELOPMENT
(SHRIMATI RENUKA CHOWDHURY)
(a)&(b) Law Commission of India has submitted in October, 2007 its
202nd Report on “Proposal to amend Section 304-B of Indian Penal
Code” in which recommendations have been made relating to dowry
deaths. The Report is available on the website of Ministry of Law and
Justice, Law Commission of India. Department of Legal Affairs has
forwarded a copy of the Report to Ministry of Home Affairs for
examination/implementation.

(c) The following data for the country has been furnished by National Crime Records Bureau, Ministry of Home Affairs for the period 2004-06:-

Under Section 304-B IPC (Dowry death)

No. of cases registered: 21431
No. of cases declared false on account of mistake of fact or law: 974

Under Section 498-A IPC (Cruelty by husband or relatives of husband)

No. of cases registered: 179568
No. of cases declared false on account of mistake of fact or law:
19013

Under Dowry Prohibition Act, 1961

No. of cases registered: 11300
No. of cases declared false on account of mistake of fact or law: 615

(d) It is for the investigating and prosecuting authorities in the States to deal with any false complaint relating to dowry.

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Mumbai HC: Hubby Can Be Jailed Despite Patch-Up

The Mumbai HC may have taken the first step in the right direction of blunting this extortion racket called Sec 498A Of The IPC. A 498A wife files the case to force the hubby to settle and then prays the HC for a quash.

To understand what I am saying, read this:

The Abuse Of The Benevolence Of The Courts In 498A Cases

You can also read about this NRI doctor whose sister was jailed for a month and released after the NRI paid up the demanded cash. Indira Jaising was instrumental in getting his sister arrested.

You can read about it here: NRI doctor fleeced for 40 Lakhs

If this is not extortion, then what is ?

Here is the news article: Mumbai HC: Hubby Can Be Jailed Despite Patch-Up

Here is the 107 Page judgment:  Mumbai HC Judgement: Hubby Can Be Jailed Despite Patch-Up

Here is the graphic:

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The Comprehensive Guide To Surviving IPC 498A

The Survivor’s Guide To IPC498A has been renamed, rewritten and divided into an introduction and 3 chapters.

Chapter one contains comprehensive excerpts from Supreme Court and High Court judgments that describe your rights and the limits on the powers of the police. Please read it to defend yourselves effectively.

Here is the link to the same document and supporting material:

A Guide To Surviving IPC 498A

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Nandini Satpathy Vs PL Dani: Right Against Self Incrimination

Nandini Satpathy – former Chief Minister of Orissa – against whom a case had been registered under the Prevention of Corruption Act, was asked to appear before the Deputy Superintendent of Police [Vigilance] for questioning. The police wanted to interrogate her by giving her a string of questions in writing. She refused to answer the questionnaire, on the grounds that it was a violation of her fundamental right against self-incrimination. The police insisted that she must answer their questions and booked her under Section 179 of the Indian Penal Code, 1860, which prescribes punishment for refusing to answer any question asked by a public servant authorised to ask that question. The issue before the Supreme Court was whether Nandini Satpathy had a right to silence and whether people can refuse to answer questions during investigation that would point towards their guilt.
Supreme Court Observations:
Article 20 (3) of the Constitution lays down that no person shall be compelled to be a witness against her/himself. Section 161 (2) of the Code of Criminal Procedure, 1973 [CrPC], casts a duty on a person to truthfully answer all questions, except those which establish personal guilt to an investigating officer.
The Supreme Court accepted that there is a rivalry between societal interest in crime detection and the constitutional rights of an accused person. They admitted that the police had a difficult job to do especially when crimes were growing and criminals were outwitting detectives. Despite this, the protection of fundamental rights enshrined in our Constitution is of utmost importance, the Court said. In the interest of protecting these rights,we cannot afford to write off fear of police torture leading to forced self incrimination.
While any statement given freely and voluntarily by an accused person is admissible and even invaluable to an investigation, use of pressure whether ?subtle or crude, mental or physical, direct or indirect but sufficiently substantial? by the police to get information is not permitted as it violates the constitutional guarantee of fair procedure. The Supreme Court affirmed that the accused has a right to silence during interrogation if the answer exposes her/him into admitting guilt in either the case under investigation or in any other offence. They pointed out that ground realities were such that a police officer is a commanding and authoritative figure and therefore, clearly in a position to exercise influence over the accused.
Supreme Court Directives
1. An accused person cannot be coerced or influenced into giving a statement pointing to her/his guilt.
2. The accused person must be informed of her/his right to remain silent and also of the right against self incrimination.
3. The person being interrogated has the right to have a lawyer by her/his side if she/he so wishes.13
4. An accused person must be informed of the right to consult a lawyer at the time of questioning, irrespective of the fact whether s/he is under arrest or in detention.
5. Women should not be summoned to the police station for questioning in breach of Section 160 (1) CrPC.14
An essential element of a fair trial is that the accused cannot be forced to give evidence against her/himself. Forcing suspects to sign statements admitting their guilt violates the constitutional guarantee against self incrimination and breaches provisions of the Code of Criminal Procedure, 1973 (CrPC). It is also inadmissible as evidence in a court of law. In addition, causing ‘hurt’ to get a confession is punishable by imprisonment up to seven years.

Here is the judgment: Nandini Satpathy Vs PL Dani: Right Against Self Incrimination

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What Is IPC 498A?

The Supreme Court has stated that: “Consequences of cruelty which are likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health, whether mental or physical of the woman is required to be established in order to bring home the application of Section 498A IPC.”

Here is the link to the pdf: What Is Section 498A Of The Indian Penal Code?

Here is the same in text:

People don’t know what Section 498A of the IPC is nor do they know what to do when a 498A case is registered against them. For starters, 498A is a criminal offence that came into existence to combat domestic violence and protect women from dowry harassment.The history of this law runs as follows. In the 1980s, the incidences of ‘dowry deaths’ were steadily rising in India. A dowry death is the murder of a young woman; committed by the in-laws, when she was unable to fulfill their coercive demands for money, articles or property, categorized as dowry. Organizations across the country pressurized and urged the government to provide legislative protection to women against domestic violence and dowry. The objective was to allow the state to intervene rapidly and prevent the murders of young girls who were unable to meet the dowry demands of their in-laws. As a result of the intense campaigning and lobbying, significant amendments were made in the Indian Penal Code, the Indian Evidence Act and the Dowry Prohibition Act, with the intention of protecting women from marital violence, abuse and dowry demands. The most important amendment came in the form of the introduction of Section 498A in the Indian Penal Code (IPC).
The text of the law is given below:
Indian Penal Code – Section 498A, IPC
Introduced in the Penal Code by Criminal Law (Second Amendment) Act of 1983
(Act No. 46 of 1983)
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 the purposes of this section, “cruelty” means
(a) Any willful 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.
Analysis of the section shows that this law deals with four types of cruelty:
Any conduct that is likely to drive a woman to suicide,
Any conduct which is likely to cause grave injury to the life, limb or health of the woman,
Harassment with the purpose of forcing the woman or her relatives to give some property,
or
Harassment because the woman or her relatives are either unable to yield to the demand for more money or do not give some share of the property.
Section 498A of the Indian Penal Code, is a criminal offence. It is a cognizable, non-bailable, and non-compoundable offence.
Unfortunately, the formulation of this law left a host of loopholes for exploitation and abuse.
20+ years later, if a family has an estranged `Bahu’ (daughter in law) in their family, the entire family can be jailed under Section 498A of the IPC, based on a complaint in the police station. The objective of the ‘Bahu’ and her parents is to subject the family to an ordeal designed to break their will and ensure that they give in to whatever demands put forward.

This law exposes families who belong to the middle and upper middle classes of society and NRIs, as these segments of society are vulnerable to legalized extortion by corrupt agencies of the government.
There is no way to avoid a 498A from being filed, unless the family is very well connected or somehow manage to make her realize that it is not in her long term interest to change a domestic dispute into a criminal offence.
A typical case will go on for 3 to 7 years.
From the people you talk to and from the online portals you visit, you will learn that this is a criminal law to combat domestic violence and dowry harassment etc, etc, etc. I’ll ignore this and cut to the chase.
In its present form,

498a is an extortion racket

In legal terms, 498A is an offence, which is:

• Cognizable: Offences are divided into cognizable and non-cognizable. By law, the police are duty bound to register and investigate a cognizable offence. 498A is a cognizable offence.
• Non-Bailable: There are two kinds of offences, bailable and non-bailable. 498A is non bailable. This means that the magistrate has the power to refuse bail and remand a person to judicial or police custody.
• Non-Compoundable: A non-compoundable case, e.g. Rape, 498A etc, cannot be withdrawn by the petitioner. The exception is in the state of Andhra Pradesh, where 498A was made compoundable.

In actual terms, 498A is an offence, which is:

• Cognizable: The police will register a 498A case since it is required by law, but they don’t investigate but go on to arrest people because of the money to be made in bribes from both sides in a 498A case.
• Non-Bailable: Since bail is at the discretion of the magistrate, all sorts of games will be played to have families locked up while negotiations go on to settle the case. This may happen in cases where the magistrates are allegedly corrupt or, the public prosecutor and the cops are in cahoots.
• Non-Compoundable: Though 498A is non compoundable, the courts are allowing the withdrawal of the case when the parties agree to reconcile or settle case. In real terms, if you pay up, the case goes away. If you don’t you’ll get stuck with a criminal case that will go on for years.

The other characteristics of this extortion racket are:

• It is a law that fosters corruption and enables govt agencies like the police to violate Fundamental Rights.
• It plays a role in gender based vote bank politics.
• It denies justice to the real victims of dowry harassment.
• It exposes innocent families to the evils of the corrupt Indian criminal justice system.
• This is a law poisoning the lower judiciary by exposing it to corruption.
• Above all, this is a gamble bound to fail if the accused choose to fight back.

Motives And Instigators:

Let’s start with the motives and instigators:

• Money: The greatest of motivators. A 498A can lead to great terms for a fat cash settlement, or help her dad or sibling in their ventures, etc, etc.
• Vengeance: Hell hath no fury like a woman scorned. She will have her revenge and the family will collectively bear the brunt of it. The 498A Wives have a soft corner for their mothers -in law and sisters -in law. They may very well see the inside of a prison.
• Guilt: She’s done something wrong, may have committed adultery and got caught in the act. She wants to cover it up with a dowry harassment case to garner sympathy and to provide cover for her guilt. It also puts her in a good position to negotiate a fat settlement and gain custody of kids, if kids are involved. 498A will be filed when paternity is in question. Don’t count on DNA evidence, as the courts do not/ or are reluctant to allow it. Indian law is still ruled by the evidence act from 1872.
• She Is Just Not Into Her Husband: She may not like her husband and 498A is a convenient tool to get out of the marriage.
• She Is A Control Freak: She wants to control her husband in every possible way. She may also want her husband to not support his parents and siblings in any fashion regardless of his ability to do so. She may want her husband to throw his parents out of their house. Her goal is to gain control of all aspects of his life, including finances and to break the bonds and responsibilities that tie him to his family. Her failure to do so will result in a 498A.
• To Marry The Boyfriend: This is a new trend whereby she will file a 498A just to force her husband into settling the divorce with a chunk of cash and then go on to marry her boyfriend. They will use the cash to set up their “Chota Sa Ghar”, or their “Premiyon Ka Mahal” if the settlement is large enough.

498A is the perfect tool for extortion and/or to wreak vengeance on a family. The main ingredients that go into making it an extortion racket are:

• The involvement of the corrupt, untrained, Indian police force in a domestic dispute.
• The involvement of the overburdened and unregulated lower courts and the convoluted and lengthy Indian justice delivery system.
• The non-enforcement of penalties (Section 182) for filing frivolous cases or for perjury.
• Political/police influence from the other side. If this is a factor in your case, I kid you not; you are in for an ordeal that will require extra doses of fortitude, courage and patience to overcome.

All these factors will be used to leverage money out of a family or subject ther family to the kind of harassment that can only be defined as torture. It is no wonder that the Supreme Court (Sushil Kumar Sharma Vs. Union of India Writ petition(C) no.141 of 2005) has condemned 498A as “Legal Terrorism”, though ruling 498A constitutional.
To understand how to survive this ordeal read the contents of the link below:

A Guide To Surviving IPC 498A

END

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The Definition Of Torture, As Per The Supreme Court Of India

The Supreme Court in Arvinder Singh Bagga v. State of U.P, 1994, described how the police treated Nidhi, the victim, in the following manner:

“On a careful consideration of all the evidence on record in the light of the surrounding circumstances I accept the claim of Nidhi that she was tortured by the police officers on 24th, 25th and 26th July, 1993. On 24.7.93 she was pressurised by J.C. Upadhyaya S.H.O., Sukhpal Singh, S.S.I, and Narendrapal Singh S.I. and threatened and commanded to implicate her husband and his family in a case of abduction and forcible marriage thereafter. She was threatened with physical violence to her husband and to herself in case of her default and when she refused her family members were brought in to pressurise her into implicating them. On 25th July 1993 she was jolted out of sleep by Sukhpal Singh S.S.I. and made to remain standing for a long time. She was abused and jostled and threatened by J.C. Upadhyay, Sukhpal Singh and Narendrapal Singh with injury to her body if she did not write down the dictated note. Sukhpal Singh SSI even assaulted her on her leg with Danda and poked it in her stomach. She did not yield to the pressure.”

The Ho’nble judge then went on to define torture:

“Torture is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands. When the threats proceed from a person in Authority and that too by a police officer the mental torture caused by it is even more grave”

From this judgment, it is very clear that each time our families are threatened by the police with the old threat of “Pay up, or else…”, they are subjecting them to torture.

Torture, in the words of the Supreme Court of India is “is not merely physical, there may be mental torture and psychological torture calculated to create fright and submission to the demands or commands”

SC: The Definition Of Torture Given In Arvinder Singh Bagga v. State of U.P

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