The draconian law 498a

It is termed draconian law and it is also termed as legal terrorism by honorable supreme court of India . This law has given a lot of bad name to India but still it has not amended . The law is famous anti Dowry Law , 498a .

498a law

The legal definition of 498a goes like this ,” 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. “

The definition does not talk about Dowry and the time limit (till when it can be filed ). So , a dowry case can be filed anytime in life . Most people confuse 498a with 304B , while 498a can be filed anytime 304B has a time limit . 304B is known as dowry death law , any unnatural death of a married woman within seven years of marriage is called dowry  death and is punishable under 304B . Many people think that they can safeguard themselves from 498a . But this is not true as the law is open to be used anytime anywhere a man cannot save himself from it . There are symptoms of wives who can file 498a , a nagging wife who give threats to file case can file case . Only thing a husband can do is know the law well and be prepare to fight . The more a man is scared the more 498a will hurt . The good way to fight with 498a is to accept the danger and make good strategy to fight against it .

498a is cognizable, non-compoundable (0nly Andhra Pradesh has a compoundable 498a ) and non – bailable .

  • Cognizable means , a case will be registered on mere complaint of a wife ,
  • Non compoundable , means once a case is registered it cannot be taken back , only a court can quash the case .
  • Non – Bailable ,means police cannot grant bail in 498a , it is a criminal offence and only a court has power to grant bail .

Criminal offence means the crime is committed against state not the person . Now the question arises what if no gifts are exchanged in a marriage ? As the law is cognizable police can not listen to this part , they will have to still register a case. Generally people say that we did not take any gift in marriage so no case should be filed but the law is not about Dowry so case is filed .

3/4 DP ( Dowry prohibition act 1961 )act  was for dowry prior to 498a  . And now a normal case of 498a has 3/4DP act , IPC 323 , IPC506 IPC 504 IPC 406 included in it . IPC 504 is for intentional insult with breach of trust , IPC 506 is for criminal intimidation , IPC 323 is for punishment for voluntarily causing hurt . IPC 406 is criminal breach of trust , this one is important to know . This is related to stree dhan or the gifts exchanged in marriage . A list of gifts is given by wife in mediation centre or court and it is generally exaggerated . You have to smartly accept the things you possess and the things she already took away . It is good not to return any gift without written statement . So , all gifts should be given in either police station or court and get the gift list duly signed by concerned officer .

Earlier there used to be immediate arrest in 498a now little change has come . But in  interior areas of country still there is immediate arrest . Also just to ensure arrest IPC 377 ( unnatural sex ) and IPC 307 ( attempt to murder ) is filed along with 498a .In the cases of 498a you get a call either from police or from women cell . Once a 498a is filed you must use two important tools to protect your self  :

  1. Recent supreme court guidelines – Any complaint will first go to family welfare committee and after this committee gives report FIR will be filed . Once you get a call from police you must ask police about mediation . Join the mediation process and be ready with lawyer as once FIR is lodged you will need bail . Remember , you do not need a lawyer in mediation center . Also it has provisions that family members are not required at mediation . If it is important to take statement of family members it can be taken on phone or video conferencing .

 

  1. Arnesh kumar versus Bihar judgement – For getting bail you must use this judgment which says it is important to serve 41(a) notice before arrest .

 

Bail process is little complicated everywhere and different form of bails are available in different states of India . In some states there is not anticipatory bail available , there you have to go for stay on arrest . Also , bail depends upon how much influential is the Wife’s side  is . If the wife’s side is influential then one should prepare himself for arrest . One thing should keep in mind that always negotiate with the lawyer for bail price . They will exaggerate the money , it is always good to talk to people who always went through similar situation . But every case is different so same strategy cannot be applied to all cases .

If the wife is ready to compromise in 498a mediation and wants to come back to husband it is purely husband’s choice . It is not advisable to bring back a 498a wife because she will do it again that too in a complex way .

Do not file for divorce from your side till 498a is decided . Because if the divorce is done husband will keep on fighting 498a ( remember it is a criminal offence ) while wife will start her life again after divorce . Husband should not file case from his side if there is matrimonial dispute 9 ( depends upon circumstances ) . If husband files for divorce or section 9 of HMA( restitution of conjugal rights ) it triggers wife and she files at least three cases as a revenge DV , CRPC 125 and 498a . So , a husband has to run in four or five different cases . If your wife has left house most lawyers will advice to file section 9 or RCR . And the logic they will give is that in 498a is filed bail will be granted easily as husband filed section 9 of HMA which means he wanted his wife to come back . This is not correct , bail process will be still complicated . So , do not make a series of cases in your life . Most of the 498a cases are settled with money so wait for that situation to come . The more you are eager to settle the more it will get complicated . The cases where children are involved become for intense . You need a lot of mental and emotional strength to fight such cases . These cases are actually a game of chess where you have to take every step very carefully . All the cases should be closed before a divorce is signed . Read the terms and conditions carefully of divorce so that there should not be any maintenance and alimony option open for future .

Do not make case as your life goal , keep enjoying little things in life . Take 498a as an ailment where you have to take a pill everyday to control the bad effects .

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